Marco v. Secretary of Health and Human Services ( 2021 )

Sn the Cited States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No. 15-1178V
Filed: April 13, 2021
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JONI MARCO, ** UNPUBLISHED
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Petitioner, * Decision on Joint Stipulation;
** Transverse Myelitis (“TM”);
Vv. * Diverticulitis; Hernia;
** Bowel Obstruction;
SECRETARY OF HEALTH ** Neurogenic Bladder;
AND HUMAN SERVICES, * Influenza (“Flu”) Vaccine.
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Respondent. **
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Maxamillian J. Muller Esq., Muller Brazil, LLP, Dresher, PA, for petitioner.
Catherine E. Stolar, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION!
Roth, Special Master:
On October 13, 2015, Joni Marco [“Ms. Marco” or “petitioner” ] filed a petition for
compensation under the National Vaccine Injury Compensation Program.’ Petitioner alleges that
she suffered from transverse myelitis and related complications, including a perforated
diverticulum, hernia, small bowel obstruction, neurogenic bladder, and aggravation of
diverticulitis, as a result of receiving an influenza (“flu”) vaccine on October 11, 2013.Stipulation,
! Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will
be available to anyone with access to the internet. 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 will be available to the public. Jd.
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
filed April 13, 2021, at {§ 1-4. Respondent denies that the immunization caused petitioner’s
injuries. Stipulation at] 6.
Nevertheless, the parties have agreed to settle the case. On April 13, 2021, the parties filed
a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to issue the following payment:
A lump sum of $20,000.00 in the formof a check payable to petitioner, Joni Marco.
This amount represents compensation for all damages that would be available under §
300aa-15(a).
I adopt the parties’ stipulation attached hereto, and award compensation in the amount and
on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance
with this decision.?
IT ISSO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
* Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
JONI MARCO, )
)
Petitioner, )
) No. 15-1178V
v. ) Special Master Roth
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Joni Marco, 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 mjuries allegedly related to petitioner’s receipt of an
influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”),
42 C.F.R. § 100.3 (a).
2. Petitioner received the flu vaccine on October 11, 2013.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered from transverse myelitis and related complications
including a perforated diverticulum, hernia, small bowel obstruction, neurogenic bladder, and
aggravation of diverticulitis, as a result of receiving the flu vaccine.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner suffered transverse myelitis or any associated
complications, and denies that the flu vaccine caused petitioner to suffer transverse myelitis or
any other alleged injury or her 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
the following vaccine compensation payment:
A lump sum of $20,000.00 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 her 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, msurance 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 of this Stipulation and any amounts awarded
pursuant to paragraph 9 of this Stipulation will be made m accordance with 42 U.S.C. § 300aa-
15(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys’ fees and litigation costs, and past unreimbursed 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 her
individual capacity, and on behalf of her 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 Vaccme 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 myuries to or death of petitioner resulting
from, or alleged to have resulted from, the flu vaccination administered on October 11, 2013, as
alleged by petitioner in a petition for vaccine compensation filed on or about October 13, 2015,
in the United States Court of Federal Claims as petition No. 15-1178V.
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
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 lability 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 flu vaccine caused petitioner to develop
transverse myelitis or any other injury or her 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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84/82/2021 11:37 6194648899
Respectfully submitted,
PETITIONER:
Ms MARCO |
ATTORNEY OF RECORD FOR
PETITIONER:
Ay
MAXAMILLIAN J. MULLER
Counsel for Petitioner
MULLER BRAZIL, LLLP
715 Twining Road
Suite 208
Dresher, Pennsylvania 19025
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH.
AND HUMAN SERVICES:
CAET Dats Wushler, DW Se, for
TAMARA OVERBY
Acting Director, Division of Injury
Compensation Programs
Healthcare Systems Bureau
Health Resources and Services Administration
U.S. Department of Health and Human Services
5600 Fishers Lane, Mail Stop 08N146B
Rockville, MD 20857
Dated: Ow /13}207 J
DANIELLE GAFFEN, MSRD PAGE 68/88
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
AMA Pe9 LAW —
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
bey Nectton 2 Pert
CATHERINE E. STOLAR
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel.: (202) 353-3299
Fax: (202) 616-4310
Email: catherine.stolar@usdoj.gov