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

Sn the Cunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: June 8, 2021
RONALD MALINSKI, *
Petitioner, * No. 20-1156V
*
V. * Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation; Influenza (“flu”);
AND HUMAN SERVICES, * Transverse myelitis.
*
Respondent. *
* OF OF OF KF OK OK UKRLU KURU OK
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for petitioner.
Mollie D. Gorney, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON STIPULATION!
On September 8, 2020, Ronald Malinski (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Program.’ Petition at Preamble (ECF No. 1). Petitioner
received an influenza (“flu”) vaccine on September 11, 2017. /d. Petitioner alleges that as a
result of receiving the flu vaccine on September 11, 2017, he suffered from transverse myelitis.
Id. at Preamble.
On June 8, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 19). Respondent denies that
the flu vaccine is the cause of petitioner’s alleged injuries, or any other injury or his current
condition. /d. at | 6. Nevertheless, maintaining their respective positions, the parties now agree
that the issues between them shall be settled and that a decision should be entered awarding the
compensation to the petitioner according to the terms of the stipulation attached hereto as
Appendix A. Id. at {.7.
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 am required 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. This means the
opinion will be available to anyone with access to the Internet. 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
decision.” /d. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. /d.
? 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.
The stipulation provides:
1) A lump sum of $123,295.00, in the form of a check payable to petitioner. This
amount represents compensation for all damages, including pain and suffering
and past unreimbursed expenses that would be available under 42 U.S.C. §
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 SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation.?
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).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
RONALD MALINSKI, )
)
Petitioner, )
) No. 20-1156V
v. ) Special Master Gowen
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Ronald Malinski, 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 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 September 11, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he suffered from transverse myelitis (“TM”) as a result of
receiving the flu vaccine and suffered the residual effects of this alleged injury for more than six
months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that the flu vaccine caused petitioner to suffer from TM or any
other injury, and denies that the flu vaccine caused petitioner’s 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 $123,295.00 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), including pain and suffering and past, unreimbursed
medical expenses.
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 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, 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 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 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 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 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 flu vaccination administered on September 11, 2017,
as alleged by petitioner in a petition for vaccine compensation filed on or about September 8,
2020, in the United States Court of Federal Claims as petition No. 20-1156V.
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 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 flu vaccine caused petitioner to develop TM or
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
~~~ NNN
May, 27,2021 1:49PM No. 7357 P. 4/4
Respectfully submitted,
———PTITIONER? —— — se — — Sorcerers em
. 2 { M i ° Q .
RONALD MALINSKI
ATTORNEY OF RECORD FOR. AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
sash Any ye dstun_ Ve Cx SIN —
LEIGH A. FINFER © HEATHER L. PEARLMAN
Counsel for Petitioner Acting Deputy Director
MULLER BRAZIL, LLP Torts Branch, Civil Division
715 Twining Road, Suite 208 U.S, Department of Justice
Dreshner, PA 19025 P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE _ ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH _ RESPONDENT:
AND. HUMAN SERVICES:
CAPT Dale P, Mishler, DHSo, APRN, for Helis Covey 26 og AA
TAMARA OVERBY . MOLLIE D, GORNEY
Acting Director, Division of Injury Trial Attorney
’ Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S. Department of Justice
Health Resources and Services P.O. Box 146
Administration Benjamin Franklin Station
U.S. Department of Health ' “Washington, DC 20044-0146
and Human Services (202) 616-4029
5600 Fishers Lane, O8N146B mollie.d,gorney@usdoj.gov
‘Rockville, MD 20857
Dated: 06 (08/267, |.