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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-414V
(Not to be published)
*****************************
*
IVANKA PENTCHOLOV, as mother and *
natural guardian of minor, A.P., *
*
Petitioner, * Filed: March 4, 2016
*
v. * Decision by Stipulation; Damages;
* Tetanus-diphtheria-acellular
* pertussis (“Tdap”) vaccine;
SECRETARY OF HEALTH AND * Meningococcal vaccine;
HUMAN SERVICES, * Aplastic Anemia
*
Respondent. *
*
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Jeffrey S. Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for Petitioner.
Darryl R. Wishard, U.S. Dep’t of Justice, Washington, DC, for Respondent
DECISION AWARDING DAMAGES1
On May 14, 2014, Petitioner Ivanka Pentcholov filed a petition on behalf of her daughter
seeking compensation under the National Vaccine Injury Compensation Program. 2 Petitioner
alleges that A.P. suffered aplastic anemia and its related sequelae as a result of receiving the
tetanus-diphtheria-acellular pertussis (“Tdap”) and meningococcal vaccines on August 20, 2012.
Respondent denies that A.P.’s medical problems were caused by the receipt of the Tdap
and/or meningococcal vaccines. Nonetheless both parties, while maintaining their above-stated
1
Because this decision contains a reasoned explanation for my action in this case, I will post this decision on the
United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, § 205, 116 Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42
U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of
confidential information. Specifically, under 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). Otherwise, the whole decision will be
available to the public. (Id.)
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. 3758, codified as amended, 42 U.S.C.A. ' 300aa-10 to ' 300aa-34 (2012).
positions, agreed in a stipulation filed March 4, 2016, that the issues before them can 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
is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth
therein.
The stipulation awards:
An amount sufficient to purchase the annuity contract (as provided for in ¶ 10 of the
Stipulation, paid to the Life Insurance Company which in turn will pay (among other
things) $101,617.75 as a lump sum to A.P. on August 11, 2019.
Stipulation ¶ 8.
I approve a Vaccine Program award as described above. 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 jointly filing notice renouncing their
right to seek review.
2
Case 1:14-vv-00414-UNJ Document 36 Filed 03/04/16 Page 1 of 6
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
IVANKA PENTCHOLOV, as mother and )
natural guard ian of minor, A.P., )
)
Petitioner, ) No. 14-4 14V ECF
)
v. ) Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
- -- - - - - - - - - - - - )
STIPULATION
The parties hereby stipulate to the fo llowing matters:
I. Petitioner, lvanka Pentcholov, filed a petition for vaccine compensation on behalf of
her daughter, A.P. ("AP"), under the National Vaccine Injury Compensation Program , 42 U.S.C.
§ 300aa-l 0 to 34 (the " Vaccine Program .. ). The petition seeks compensation for injuries
alleged ly related to AP' s receipt of th e tetanus-diphtheria-acellu lar pe1tussis ("'Tdap") and
meningococcal vaccines, which are contained in the Vaccine Injury Tab le (the "Tab le''), 42
C.F.R. § I00.3(a).
2. AP received the vaccines on August 20, 20 12.
3. The vaccines were admin istered within the United States.
4. Petitioner alleges that, as a result of receiving the vacci nes, AP suffered from ap lastic
anemia and its related sequelae, and that AP experienced the residual effects o f thi s injury for
more th an six months.
5. Petitioner represents that there has been no prior award or settl ement of a civil action
Case 1:14-vv-00414-UNJ Document 36 Filed 03/04/16 Page 2 of 6
for damages on behalf of AP as a result of her condition.
6. Respondent denies that the vaccines caused or sign ificant ly aggravated AP· s alleged
medical condition, any of her on going symptoms. or any other injury.
7. Maintaining their above-stated positions, the parties neve11heless 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 thi s Stipulation.
8. As soon as practicable after an entry of judgment refl ecting a decision consistent with
the terms of th is Stipu lation, and after petitioner has fi led an electi on to receive compensati on
pursuant to 42 U.S.C. § 300aa-2 l (a)( l ), the Secretary of Health and Human Services wi ll issue
the fo llowing vaccine compensation payment for all damages that would be avai lab le under 42
U.S.C. §300aa- l 5(a):
An amount suffici ent to purchase the annuity contract descri bed in paragraph I0 below,
paid to the life insurance company from which the an nuity wi ll be purchased (the " Life
Insurance Company").
9. The Life Insurance Company must have a minimum of $250,000,000.00 capital and
surplus, exclusive of any mandatory security va luation reserve. The Life In surance Company
must have one of the fo ll owing ratin gs from two o f the fo ll owing ratin g organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r. or A+s;
b. Moody's Investor Service Claim s Payin g Rating: Aa3, Aa2, Aa I, or Aaa;
c. Standard and Poor's Corporation In surer Claims-Paying Ability Rating: AA -,
AA, AA+, or AAA ;
d. Fitch Cred it Rating Company, Insurance Company Claims Paying Abil ity Rating:
AA-, AA, AA+, or AAA.
I0. The Secretary of Health and Human Services agrees to purchase an annuity contract
from the Life Insurance Company for the benefit of AP, pursuant to which the Life Insurance
2
Case 1:14-vv-00414-UNJ Document 36 Filed 03/04/16 Page 3 of 6
Company wi ll agree to make a payment to AP for all damages that would be ava ilable under 42
U.S.C. §300aa- 15(a), as fol lows:
a. $ 10 1,6 17.75 payable in a certain lump sum on August 11, 20 19.
The payment provided for in thi s paragraph I0 shall be made as set forth above. Should AP
predecease the certain lump sum payment set fo rth above, said certain lump sum payment shall
be made to her estate. Written notice to the Secretary of Health and Human Services and to the
Life Insurance Company shall be provided within twenty (20) days o f AP's death .
11. The annu ity contract will be owned solely and exclusively by the Secretary of Health
and Human Serv ices and will be purchased as soon as practicable fo ll owing the entry of a
judgment in conform ity with this Stipu lation. The parties stipulate and agree that the Secretary
of Health and Human Services and the United States of America are not responsible for the
payment of any sums other than the amounts set forth in paragraph 8 herein and the amounts
awarded pursuant to paragraph 12 herein, and that they do not guarantee or in sure any of the
future annuity payments. Upon the purchase of th e ann uity contract, the Secretary of Hea lth and
Human Services and the United States of America are released from any and all ob ligations with
respect to future annuity payments.
I 2. As soon as practicab le after the entry of judgment on entitlement in thi s case, and
after petitioner has ti led both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-2 I (a)( I), and an app lication, the parties will submit to further proceed in gs
before the special master to award reasonab le attorneys· fees and costs incurred in proceed in g
upon this petition.
13. 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 primaril y liab le
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Case 1:14-vv-00414-UNJ Document 36 Filed 03/04/16 Page 4 of 6
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 Soc ial Security Act (42 U.S.C. §
1396 et seq.)), or by entities that provide health serv ices on a pre-paid basis.
14. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 12 of this Stipu lation will be made in accordance with 42 U.S.C. § 300aa-l 5(i),
subject to the availabil ity of suffi cient statutory funds.
15. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys' fees and liti gation costs, the money prov ided pursuant to this Stipulation will be
used solely for the benefit of AP, as contemplated by a strict construction of 42 U.S.C. §300aa-
l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h).
16. In return for the payments described in paragraphs 8 and 12, petitioner, in her
individual capacity and as legal representati ve of AP, on behalfof herse lf, AP, and A P's heirs,
executors, administrators, successors or assigns, does foreve r irrevocably and unconditionally
release, acquit and discharge the Un ited States and the Secretary of Hea lth and Hum an Serv ices
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 brou ght, or cou ld be timely brought in the Court of Federal Claim s, under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300 aa- 10 et seq., on account of, or
in any way growing out of, any and all known or unknown, suspected or unsuspected personal
inj uries to or death of AP res ulting from, or alleged to have resulted from, the vaccinations
admin istered on August 20, 20 12, as alleged by peti tioner in a petition for vaccine com pensation
fil ed on or about May 14, 20 14, in the U.S. Court of Federal Claim s as petition No. 14-414V.
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Case 1:14-vv-00414-UNJ Document 36 Filed 03/04/16 Page 5 of 6
17. If AP should die prior to entry of judgment, thi s agreement shall be voidable upon
proper notice to the Court on behalf of either or both of the parties.
18. If the special master fa ils to issue a decision in complete confo rmity with the terms
of thi s Stipu lation or if the Court of Federal Claims fails to enter judgment in conform ity with a
decision that is in complete conform ity with the terms of th is Stipulati on, then the parties'
settlement and this Stipulation shall be voidable at the so le discretion of either pa11y.
19. This Stipu lation expresses a full and complete negotiated settlement of liability and
damages claimed under the Nati onal Childhood Vaccine Injury Act of I986, as amended, except
as otherwi se noted in paragraph 12 above. There is abso lutely 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 refl ect a compromise of the parties· respective pos itions as to liabi lity 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 modi fy or rev ise this agreement.
20. Petitioner hereby authorizes respondent to di sclose documents filed by petitioner in
this case consistent with the Privacy Act and the ro utine uses described in the National Vaccine
Injury Compensation Program System of Records, No. 09-1 5-0056.
2 1. This Stipu lation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the Tdap and meningococcal vaccines caused AP
to suffer aplastic anemia or any other injury or condition.
22. A ll rights and obligations of petitioner hereunder shall appl y equally to petitioner's
heirs, executors, adm inistrators, successors, and/or assigns as legal representatives of AP.
END OF STIPULATION
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Respectfully submitted,
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE
PETITIONER: OFT~ ATTORNEY GENERAL:
~~
Jeffrey S. Pop & Associates
~~
Deputy Director
9107 Wilshire Blvd., Suite 700 Torts Branch
Beverly Hills, CA 90210 Civil Division
(310) 273-5462 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
ATTORNEY OF RECORD FOR
RESPONDENT:
AIR,M.D DARRYLR. WISHARD
Acting Director, Division of Injury Senior Trial Attorney
Compensation Programs To1ts Branch
Healthcare Systems Bmeau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 11 C-26 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-4357
Dated:
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