In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
MARIXSA RUTH, *
* No. 15-855V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: May 2, 2017
*
SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine;
AND HUMAN SERVICES, * acute disseminated encephalomyelitis
* (“ADEM”).
Respondent. *
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Isaiah R. Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for
Petitioner;
Camille M. Collett, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On May 1, 2017, respondent filed a joint stipulation concerning the petition
for compensation filed by Marixsa Ruth on August 10, 2015. In her petition,
petitioner alleged that the influenza vaccine, which is contained in the Vaccine
Injury Table, 42 C.F.R. §100.3(a), and which she received on or about October 12,
2012, caused her to develop acute disseminated encephalomyelitis (“ADEM”).
Petitioner further alleges that she suffered the residual effects of this injury for
more than six months. 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.
Respondent denies that the influenza immunization is the cause of
petitioner’s alleged ADEM or any other injury or condition.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Nevertheless, the parties agree to the joint stipulation, attached hereto. The
undersigned finds said stipulation reasonable and adopts it as the decision of the
Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $180,000.00 in the form of a check payable to
petitioner, Marixsa Ruth. This amount represents compensation for all
damages that would be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 15-855V according to this decision
and the attached stipulation.2
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPEC I AL MASTERS
MARI XSA RUTH.
Petitioner.
o. 15- 855V
v. Special Master Christian Moran
ECF
EC RETARY OF H EA L TH A D
H UMAN SE RVICES.
Respondent.
STIPULATION
T he parties hereby stipulate to the fol lowing matters:
I . Pet it ioner fil ed a peti tion for vaccine compensation under the ational Vacc ine Injury
Compensation Program. 42 U.S.C. § 300aa- I 0 to 34 (the ··vaccine Program ..). The petition
seeks compensation for injuries alleged ly related to petitioner" s receipt o f the infl uenza vacc ine.
whic h vacc ine is contained in the Vacc ine Injury Table (the .. Table··). 42 C.F. R. ~ I 00.3(a).
2. Petitioner rece ived the influenza vacc inati on on or about October 12. 20 12.
3. T he vacc ine was admini stered within the United States.
4. Petitioner alleges that the influenza vacci ne caused her to develop acute disseminated
encephalom yeliti s (.. ADEM ..) and that she experienced the res idual effects of thi s condition for
more than six months.
5. Petiti oner represents that there has been no prior award or sett lement ora civi l action
for damages as a result of her condition.
6. Respondent denies that the inOuenza immu ni zation is the cause of peti tioner·s alleged
A DEM or any other injury or condition.
7. Maintaini ng their above-stated pos itions. the parties nevertheless now agree that the
issues between them shall be settled and that a dec ision sho uld be entered awarding the
compensation described in paragraph 8 or thi s Stipul atio n.
8. A s soon as practicab le after an entry of judgment reflecting a decision consistent with
the term s o l'this Stipulation. and after petiti oner has fi led an election to receive compensation
pursuant to 42 U.S.C. ~ 300aa-2 I (a)( I ). the Secretary or 1lealth and I luman Services w ill issue
the fo ll owi ng vacc ine compensat ion payment:
A lump sum or $ 180.000.00 in the fo rm or a check payable to pet itioner. T h is
amount represents compensation for all damages that would be avai lable under 42
U.S.C. ~300aa- I 5(a).
9. A s soon as practicable after the entry or judgment on entitlement in thi case. and alter
pet itioner has fi led both a proper and timely election to receive compensation pursuant to 42
U.S.C. ~ 300aa-2 I (a)( I ), and an applica ti on, the parti es wi ll su bm it to further proceedings before
the specia l master to award reasonable attorn eys· fees and costs incurred in proceeding upon thi s
petition.
I 0. Pet itioner and her attorn ey represent that they have identified to respondent all
known sources o l'pay ment fo r items or services for which the Program is not prim aril y liable
under 42 U.S.C. *300aa- I 5(g). includ ing State compensation programs. insurance policies.
Federa l or tate health benelits programs (other than Tit le X IX of the Social Security Act (42
U.S.C. ~ 1396 et seq.)). or entities that provide hea lth services on a pre-paid basis.
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11 . Payment made pursuant to paragraph 8 of thi s Stipul ation. and any amount awarded
pursuant to paragraph 9. wil l be made in accord ance wi th 42 U . .C. § 300aa-l 5( i). subj ect to the
avai labi Iity o f sufficient statutory funds.
12. T he parties and their attorneys further agree and stipulate that. except for any awa rd
for attorneys· fees and litigation costs. and past unreimbursable ex pen es. the money prov ided
pursuant to this Stipul ation w ill be used solely for the benefit o f petitioner as contempl ated by a
strict construction of 42 U.S.C. § 300aa-l 5(a) and (d). and subject to the conditi ons of 42 U.S.C.
§ 300aa-l 5(g) and (h).
13. In return for the payment described in paragraph 8. and any amount awarded
pursuant to paragraph 9. petitioner. in her individ ual ca pac ity. and on behalf o f her heirs.
executo rs. administrators. successors and/or as igns. does forever irrevocab ly and
unconditionall y release. acq uit and discharge the United States and the Sec retary of Hea lth and
Human Services from any and all actions or causes of acti on (includin g agree ments. judgments.
claims. damages. loss o f services. expenses and al l demands of w hatever kind or nature) that
have been brought. coul d have been brought. or could be timely brought in the Court of Federal
Claims. under the ational Vaccin e Injury Compensation Program. 42 U.S.C. ~ 300aa- I 0 et seq ..
o n account o f. or in any way growing out of. any and all known or un known. suspected o r
unsuspected personal injuries to or death o f petitioner resulting fro m. o r alleged to have resulted
from. the inn uenza vacci ne admini stered on or about October 12. 20 12. as al lcged by pet it ioner
in a petition fo r vaccine com pensation fil ed on or about A ugust I 0. 20 15. in the United tate
Court of Federal Clai ms as petition o. I 5- 855V.
14. I f pet itioner shou ld d ie prior to entry of judgment. thi s agreement shal l be voidable
upon proper notice to the Court on beha l f of either or both o f the parties.
..
.)
15. lfthe special master !'ails to issue a deci sion in comp lete conformity with the terms
o f thi s Stipu lat ion or if the Court o f Federal C laim s fai ls to enter judgment in conformity w ith a
dec ision that is in complete conformit y with the terms o f this Stipu lation. then the parties·
settlement and thi s Sti pulation shall be voidab le at the sole discretion o f either party.
16. This Stipul ation expresses a full and complete negotiated settlement of liab ility and
damages claimed under the National Childhood Vaccine Injury Act of 1986. as amended. except
as otherw ise noted in paragraph 9 above. T here is absolutely no agreement on the part o f the
parties hereto to make any payment or do any act or thing other th an is herein express ly stated
and clearly agreed to. The parties further agree and understand that the award described in this
St ipu lat ion may reflect a compromi se of the parties· respective positions as to I iabi Iity and/or
amount o f damages and further, that a change in the nature of the injury or cond ition or in the
items or compensation sought. is not grounds to modify or revi se thi s agreement.
17. T hi s St ipu lation shall not be construed as an admission by the United States or the
Secretary of I lea lth and Human Services that the influenza vaccine caused petitioner" s alleged
ADEM or any other injury or condition.
18. All rights and ob li gations of petitioner hereunder shall app ly equall y to petitioner"s
heirs. executors. admin istrators. successors. and/or assigns.
E Dor STIP ULAT IO
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Rcspcc1rully subm it ted.
PETITIONER:
M.'\ RIXSA RUTH
ATTORNEY OF Rf.CORD FOR AllTI IORIZED Rf.PRS ENTATIVE
PF,TJTIONER: OF TllE ATTOlt\IEY Gf.i\ERAL:
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M:.lglio Christopher & Toal<.:
~1;i'vlcs~_-_-=---~
c1 . )i rct:lor
1775 Pennsyl vania /\venue >J\V. Suite 225 Torts Branch
Washington. DC U.S. Dcpartrncnt ol' .l ust ice
P.O. Box 14()
13cnjarnin Fra nk lin Station
Washington. DC 200-1-1-01 -16
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AUTHORIZED H.EPRESENTATIVE :\ TTOR:\EY OF RE CO RD FOR
OF THE SECR.ET ..~RY OF HEALTH R ES PO~DE:\T :
AND IIUM i\ ~EJ{VJCES:
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NAR/\ Y ' A1R. iVl.D. - C:,\Ml l.LI' M.
Oin:ctor. Divi sion or Injury Compensation Tria l 1\ llnrncy
Programs ( D ICP) Torts I ~rnnch
Healthcare Systems Bureau Civil Division
U.S. Department or Health and lluman Services U.S. Department or .lust ice
5600 Fishers I.ane P.O. Bo:\ 14(>
Pmklawn L3uilding. Mn il Stop I 1C-26 lknj:1111in 1:ra11k lin Station
Rockville. tv!D 20857 Washi ngton. DC 200-14-01-16
Tel: (202) 6 1(> -4098
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