Kaplan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-667V
Filed: February 4, 2015
UNPUBLISHED
* * * * * * * * * * * * *
MATTHEW KAPLAN, *
*
Petitioner, * Stipulation; Damages;
* Flu; Hepatitis A; Meningococcal;
v. * Chronic Fatigue Syndrome;
* Fibromyalgia
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Jeffrey Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner.
Ann Martin, U.S. Dep’t. of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Gowen, Special Master:
On September 11, 2013, Matthew Kaplan (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that as a result of receiving an influenza (“flu”) vaccine on September 12,
2010, 3 he suffered from chronic fatigue syndrome [CFS] and fibromyalgia. Stipulation ¶ 2, 4,
filed Feb. 4, 2015. Further, petitioner alleged that he experienced residual effects of this injury
for more than six months. Id. at ¶ 4.
On February 4, 2015, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation. Respondent denies that the flu vaccine, or any
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 days within which to request
redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
3
Petitioner also received a Hepatitis A and meningococcal vaccine on September 12, 2010. Stip. at ¶ 2.
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other vaccine, caused petitioner to suffer from CFS, fibromyalgia, or any other injury or his
current condition. Id. at ¶ 6. Nevertheless, the parties agree to the joint stipulation, attached
hereto. The undersigned finds the stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following compensation:
(a) A lump sum of $5,000.00 in the form of a check payable to petitioner,
Matthew Kaplan. This amount represents compensation for all damages
that would be available under § 300aa-15(a).
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms
of the parties’ stipulation. 4
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
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Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the
right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
MATTHEW KAPLAN, )
)
Petitioner, )
) No. 13-667V
v. ) Special Master Gowen
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner filed a petition for vaccine compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine Program”). The petition
seeks compensation for injuries allegedly related to petitioner’s receipt of an influenza vaccine,
which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received influenza, Hepatitis A, and meningococcal immunizations on
September 12, 2010.
3. The vaccines were administered within the United States.
4. Petitioner alleges that he suffers from chronic fatigue syndrome (“CFS”) and
fibromyalgia as a result of receiving the influenza vaccine.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that the influenza immunization, or any other immunization,
caused petitioner to suffer from CFS, fibromyalgia, or any other injury or his current condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue a
lump sum payment of $5,000.00 in the form of a check payable to petitioner. This amount
represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings
before the special master to award reasonable attorneys’ fees and costs incurred in proceeding
upon this petition.
10. Petitioner and his attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. §
1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 and any amount awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject
to the availability of sufficient statutory funds.
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12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys’ fees, litigation costs, and past unreimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a
strict construction of 42 U.S.C. §§ 300aa-15(a) and (d), and subject to the conditions of
42 U.S.C. §§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity and on behalf of his heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Human Services from any and all actions or causes of action
(including agreements, judgments, claims, damages, loss of services, expenses and all demands
of whatever kind or nature) that have been brought, could have been brought, or could be timely
brought in the Court of Federal Claims, under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all
known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, the influenza vaccination, the Hepatitis A vaccination,
and/or the meningococcal vaccination administered on September 12, 2010, as alleged by
petitioner in a petition for vaccine compensation filed on or about September 11, 2013, in the
United States Court of Federal Claims as petition No. 13-667V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
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decision that is in complete conformity with the terms of this Stipulation, then the parties’
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the influenza vaccine, Hepatitis A vaccine, and/or
the meningococcal vaccine caused petitioner’s CFS, fibromyalgia, or any other injury or his
current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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