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

Sn the Giuted States Court of Federal Clanns
OFFICE OF SPECIAL MASTERS
No. 17-918V
Filed: May 11, 2021
UNPUBLISHED
RONALD SKRAJNER,
Petitioner, ; ; ;
V. Joint Stipulation on Damages;
Influenza (Flu) Vaccine;
SECRETARY OF HEALTH AND Sensorineural Hearing Loss (SNHL)
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION'
On July 7, 2017, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,? (the “Vaccine
Act’). Petitioner alleges that he suffered sensorineural hearing loss caused by his
receipt of the influenza vaccine on October 12, 2015. Petition at 1; Stipulation, filed
May 11, 2021, at ¢§ 2,4. Petitioner further alleges he experienced the residual effects
of his condition for more than six months and that there are no prior award or settlement
of a civil action for damages as a result of his condition. Petition at 9; Stipulation at 94
4-5. “Respondent denies that the influenza vaccine is the cause of petitioner's alleged
SNHL, any other injury, or his current condition.” Stipulation at { 6.
Nevertheless, on May 11, 2021, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. | find the stipulation
reasonable and adopt it as the decision of the Court in awarding damages, on the terms
set forth therein.
' Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
lf the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
? 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).
Pursuant to the terms stated in the attached Stipulation, | award the following
compensation:
A lump sum of $45,000.00 in the form of a check payable to petitioner.
Stipulation at § 8. This amount represents compensation for all items of
damages that would be available under § 15(a). /a.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment in accordance with this decision.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
RONALD SKRAJNER, )
)
Petitioner, )
)
Vv. ) No. 17-918V
) Special Master Daniel T. Horner
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner Ronald Skrajner (“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 injuries allegedly related to
petitioner’s receipt of the seasonal influenza vaccination, which is a vaccine contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3 (a).
2. Petitioner received a seasonal influenza vaccine on or about October 12, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that the influenza vaccine caused him to suffer sensorineural
hearing loss (““SNHL”) and that he experienced the residual effects of this condition for more
than six months.
5. Petitioner represents that there has been no prior awardor settlement of a civil action
for damages as a result of his condition.
6. Respondent denies that the influenza vaccine is the cause of petitioner’s alleged
SNHL, any other injury, or his 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 $45,000.00, 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 his attorney represent that they have identified to respondent all
known sources of payment for items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies,
Federal or State health benefits programs (other than Title XIX of the Social Security Act (42
U.S.C. § 1396 et seq.)), or entities that provide health services ona pre-paid basis.
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in 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 unreimbursable 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 his
individual capacity, and on behalf of his 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 Vaccine 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 injuries to or death of petitioner resulting
from, or alleged to have resulted from, the influenza vaccination administered on or about
October 12, 2015, as alleged by petitioner in a petition for vaccine compensation filed on or
about July 7, 2017, in the United States Court of Federal Claims as petition No. 17-918V.
14. Ifpetitioner 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. Ifthe 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 liability 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 influenza vaccine caused petitioner’s alleged
SNHL, any other injury, or his 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
~~ “~~
Respecttully submitted,
PETITIONER:
A St 7 o Lf Yt
Seed eH Shigy Lil pe
RONALD SKRAJNER Jf
i
ATTORNEY OF RECORD FOR
PETITIONER:
CA fe
rx QW] —
“REXALD & HOMER
CONWAY HOMER. PLC.
16 Shawmut Street
Boston, MA 02116
(617) 695-1990
AUTHORIZED REPRESENTATIVE
OF THE SECRETARY OF HEALTH
AND HUMAN SERVICES:
CAPT Dale Wushlar, PNSe, 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
$600 Fishers Lane. O8N146B
Rockville, MD 20857
Dated: O§ ly b O24
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Mi dorrun th Pron IV
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:
Mes Laken Ob AA
ly Heder EL?
MATTHEW L. MURPHY
Trial Attorney
Torts Branch
Civil Division
U.S. Department of Justice
P.O, Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
(202) 616-4840
Matthew.Murphy@ usdoj.gov