Albanez v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 27, 2020
* * * * * * * * * * * * *
JACIE ALBANEZ as mother and natural *
guardian, and MARIO ALBANEZ as father *
and natural guardian of N.A., * UNPUBLISHED
*
Petitioners, * No. 18-774V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Rotavirus; Intussusception.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioners.
Debra A. Filteau Begley, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION1
On May 30, 2018, Jacie and Mario Albanez (“petitioners”), on behalf of their minor son
N.A., filed a petition for compensation within the National Vaccine Injury Compensation
Program.2 Petition (ECF No. 1). The petition seeks compensation for injuries allegedly related
to N.A. receipt of a rotavirus vaccine, which vaccine is contained in the Vaccine Injury Table
(the “Table”), 42 C.F.R. § 100.3(a).
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting 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). An objecting party must provide the Court with a proposed
redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. 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.
N.A. received diphtheria-tetanus-acellular pertussis (“DTaP”), inactivated polio (“IPV”),
haemophilus influenzae (“HIB”), hepatitis B, pneumococcal conjugate, and rotavirus
vaccinations on Marck 28, 2017. These vaccinations were administered within the United States.
Petitioners allege that N.A. sustained an intussusception within the time period set forth
in the Table for the rotavirus vaccine. In the alternative, petitioners allege that N.A.’s
intussusception was caused-in-fact by the rotavirus vaccination. They further allege that N.A.
was hospitalized and underwent surgical intervention as a result of his alleged injury.
On May 27, 2020, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioners on behalf of N.A. Stipulation (ECF No. 40).
Respondent denies that N.A. sustained a intussusception Table injury; denies that DTaP, IPV,
HIB, hepatitis B, pneumococcal conjugate, and/or rotavirus vaccines caused N.A.’s
intussusception, or any other injury; and denies that N.A.’s current condition is a sequelae of a
vaccine-related 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) An amount not to exceed $35,000.00 to purchase the annuity contract described
in paragraph 10 of the stipulation (attached hereto as Appendix A), paid to the
life insurance company from which the annuity will be purchased (the “Life
Insurance Company”).
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). I adopt the stipulation as the decision of the Court and hereby award
compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of 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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
JACIE ALBANEZ, as mother and natural *
guardian, and MARIO ALBANEZ, as *
father and natural guardian of N.A., *
*
Petitioners, * No.18-774V
* Special Master Gowen
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
;
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of their son, N.A., petitioners filed a petition for vaccine compensation
under the Natio11al Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 34 (the
"Vaccine Program"). The petition seeks compensation for injuries allegedly related to N.A.'s
receipt of a rotavirus vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3 (a).
2. N.A. received diphtheria-tetanus-acellular pertussis ("DTaP"), inactivated polio
("IPV"), haemophilus influenza ("HIB"), hepatitis B, pneumococcal conjugate, and rotavirus
vaccines on Ma�ch 28, 2017.
3. These vaccines were administered within the United States.
4. P�titioners allege that N.A. sustained an intussusception within the time period set
forth in the Table for the rotavirus vaccine. In the alternative, petitioners alleged that N.A.'s