Musto v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 11, 2016
* * * * * * * * * * * * * * * UNPUBLISHED
KEVIN MUSTO and STACEY MUSTO, *
as Parents and Legal Representatives *
of their Minor Daughter, K.M., *
* No. 11-801V
Petitioners, *
*
v. * Chief Special Master Dorsey
*
SECRETARY OF HEALTH * Joint Stipulation on Damages;
AND HUMAN SERVICES, * MMR Vaccine; Opsoclonus
* Myoclonus Syndrome (OMS)
Respondent. *
* * * * * * * * * * * * * * *
DECISION 1
On November 30, 2011, Kevin Musto and Stacey Musto (“petitioners”) filed a petition
pursuant to the National Vaccine Injury Compensation Program on behalf of their minor child,
K.M. 2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioners allege that K.M. developed opsoclonus
myoclonus syndrome (“OMS”) as a result of receiving the measles-mumps-rubella (“MMR”)
vaccine on December 4, 2008. Petition at ¶¶ 1, 2.
On March 10, 2016, the parties filed a stipulation in which they stated that a decision
should be entered awarding compensation. Respondent denies that the MMR vaccine caused
K.M.’s alleged OMS or any other injury. Nevertheless, the parties agree to the joint stipulation,
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, 44 U.S.C. § 3501 note
(2012)(Federal Management and Promotion of Electronic Government Services). 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 (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.
attached hereto as Appendix A. 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 lump sum in the amount of $37,500.00 in the form of a check payable to
petitioners, Kevin Musto and Stacey Musto, as guardians/conservators of K.M.’s estate.
This amount represents compensation for all damages that would be available under 42 U.S.C. §
300aa-15(a). Stipulation dated March 10, 2016, (ECF No. 55) at ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation. 3
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.