Bartosiewicz v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 9, 2019
* * * * * * * * * * * * *
ANDREW BARTOSIEWICZ and *
LONYA BARTOSIEWICZ, as parents *
and natural guardians of J.B., a minor, * UNPUBLISHED
*
Petitioners, * No. 17-1988V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Diphtheria-Tetanus-Acellular
AND HUMAN SERVICES, * Pertussis (“DTaP”); Hepatitis A
* (“Hep A”); Febrile Seizures;
Respondent. * Encephalitis; Stipulation.
* * * * * * * * * * * * *
Jeffrey A. Golvash, Brennan, Robins & Daley, P.C., Pittsburgh, PA, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On December 20, 2017, Andrew Bartosiewicz and Lonya Bartosiewicz (“petitioners”),
on behalf of their minor child J.B., filed a petition for compensation under the National Vaccine
Injury Compensation Program.2 Petition (ECF No. 1). J.B. received diphtheria-tetanus-acellular
pertussis (“DTaP”) and Hepatitis A (“Hep A”) vaccines on or about January 12, 2015.
Stipulation filed April 9, 2019 (ECF No. 29) at ¶ 2. Petitioners alleged that the DTaP and Hep A
vaccines, either singly or in combination, caused J.B. to develop “febrile seizures and/ or
encephalitis,” and that J.B. experienced the residual effects of this injury for more than six
months. Id. at ¶ 4.
1
In accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012), because this opinion contains a
reasoned explanation for the action in this case, this opinion will be posted on the website of the United States
Court of Federal Claims. This means the opinion will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published Decision’s inclusion of
certain kinds of confidential information. Specifically, Under 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). If neither
party files a motion for redaction within 14 days, the entire opinion will be posted on the website and available
to the public in its current form. Id.
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 (2012)
(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.
On April 9, 2019, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioners. Stipulation. Respondent denies that the DTaP
and Hep A vaccines, either singly or in combination, caused J.B.’s alleged seizures/ and or
encephalitis, or any other injury. Id. at ¶ 6. Maintaining their respective positions, the parties
nevertheless now agree that the issues between them shall be settled and that a decision should
be entered awarding compensation according to the terms of the stipulation attached hereto as
Appendix A. Id. at ¶ 7.
The stipulation awards:
1) A lump sum payment of $864.02, representing compensation for satisfaction of a
Commonwealth of Pennsylvania Medicaid lien, in the form of a check payable
jointly to petitioners and:
Commonwealth of Pennsylvania
Bureau of Program Integrity
Division of Third Party Liability
Recovery Section
P.O. Box 8486
Harrisburg, PA 17105-8486
Petitioners agree to endorse this payment to the Commonwealth.
2) A lump sum of $50,000.00, in the form of a check payable jointly to petitioners,
as guardians/ conservators of the estate of J.B. This amount represents all
remaining compensation for damages that would be available under 42 U.S.C. §
300aa-15(a).
No payments pursuant to this stipulation shall be made until petitioners provide the
Secretary with documentation establishing their appointment as guardians/ conservators of J.B.’s
estate. Stipulation at ¶ 12.
I find the stipulation reasonable and I adopt it as the decision of the Court in awarding
damages, on the terms set forth therein. Accordingly, the Clerk of the Court SHALL ENTER
JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2