Zerbey v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1514V
(not to be published)
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ARTHUR ZERBEY, *
* Special Master Corcoran
*
Petitioner, * Filed: February 22, 2018
*
v. *
* Decision by Stipulation; Damages;
SECRETARY OF HEALTH * Influenza (“Flu”) Vaccine; Brachial
AND HUMAN SERVICES, * Plexitis.
*
Respondent. *
*
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Ronald Homer, Conway, Homer, P.C., Boston, Ma, for Petitioner.
Camille Collett, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On November 15, 2016, Arthur Zerbey filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that he
suffered from brachial plexitis, as a result of his September 16, 2015, influenza (“flu”) vaccine.
Petitioner further alleges that he has experienced the residual effects of this condition for more
than six months.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the ruling 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 Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Decision in its present form will be
available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Respondent denies that the flu vaccine caused Petitioner’s brachial plexitis or any other
injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a
stipulation (filed on February 22, 2018) that the issues before them could be settled, and that a
decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.
The stipulation awards:
 A lump sum of $92,500.00, in the form of a check payable to Petitioner.
Stipulation ¶ 8. This amount represents compensation for all damages that would be available
under Section 15(a) of the Act.
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the Court is directed to enter judgment herewith.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2