In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1889V
(not to be published)
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*
CHANDLER NITZKE, :
* Filed: January 12, 2022
Petitioner, *
*
*
V. * Decision by Stipulation; Damages;
* Influenza (“flu”) Vaccine; Transverse
SECRETARY OF HEALTH AND * Myelitis (“TM”),
HUMAN SERVICES, :
*
Respondent. *
*
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Glen H. Sturtevant, Jr., Rawls Law Group, Richmond, VA., for Petitioner
Lara A. Englund, U.S. Department of Justice, Washington, DC, for Respondent
DECISION ON JOINT STIPULATION!
On December 13, 2019, Chandler Nitzke (‘Petitioner’) filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (“the Vaccine
Program”).” Pet., ECF No. 1. Petitioner alleges that he suffered from transverse myelitis (“TM”)
as a result of the influenza (“flu”) vaccine he received on October 23, 2018. See Stipulation { 2, 4,
dated January 10, 2022 (ECF No. 35); see also Petition.
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
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 Decision in its present form will be available. Jd.
* The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
Respondent denies “that the flu vaccine caused Petitioner to suffer TM, or any other injury
or his current condition.” See Stipulation § 6. Nonetheless, both parties, while maintaining their
above-stated positions, agreed in a stipulation dated January 10, 2022 that the issues before them
can be settled and that a decision should be entered awarding Petitioner compensation. ECF No.
35.
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:
A lump sum of $32,500.00 in the form of a check payable to Petitioner.
Stipulation J 8. This award represents compensation for all damages that would be available under
42 U.S.C. § 300aa-15(a).
I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. 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.
IT ISSO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
> Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice
renouncing their right to seek review.
IN THE UNITED STATES © OURF °F FEDERAL CLAIMS
OFFICE OF SPECIAL MASTFRS
)
CHANDLER NITZKE, )
)
Petitioner, )
) No. 19-1889V
Vv. ) Special Master Oler
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby: stipulate to the following matters:
1, Chandler Nitzke, 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 October 23, 2018.
3. The vaccinations was administered within the United States.
4. Petitioner alleg¢s that he suffered from transverse myelitis (“TM”) as a result of
receiving the flu vaccine, and further alleges that he experienced residual effects of this alleged
injury for more than six mpnths.
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 TM, or any other
injury or his current cond
tion.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall
compensation described i
8. As soon as pra
the terms of this Stipulati
pursuant to 42 U.S.C. § 30
the following vaccine co
A lump sum of $3
amount represents
U.S.C. § 300aa-1
9. As soon as pra
petitioner has filed both a
U.S.C. § 300aa-21(a)(1),
the special master to awa
petition.
10. Petitioner and
be settled and that a decision should be entered awarding the
n paragraph 8 of this Stipulation.
ticable after an entry of judgment reflecting a decision consistent with
yn, and after petitioner has filed an election to receive compensation
)0aa-21(a)(1), the Secretary of Health and Human Services will issue
pensation payment:
,900.00 in the form of a check payable to petitioner. This
‘compensation for all damages that would be available under 42
(a).
ticable after the entry of judgment on entitlement in this case, and after
proper and timely election to receive compensation pursuant to 42
d an application, the parties will submit to further proceedings before
i reasonable attorneys’ fees and costs incurred in proceeding upon this
I
i
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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- (g), to the extent that payment has been made or can reasonably be
expected to be made unde any State compensation programs, insurance policies, Federal or
State health benefits pro
§ 1396 et seq.)), or by enti
s (other than Title XIX of the Social Security Act (42 U.S.C.
ties that provide health services on a pre-paid basis.
n 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
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 naturg) that have been brought, could have been brought, or could be timely
brought in the Court of Fes eral Claims, under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300ga-10 et seq., on account of, or in any way growing out of, any and all
known or unknown, suspet ted or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have résulted from, the flu vaccination administered on October 23, 2018, as
alleged by petitioner in a petition for vaccine compensation filed on or about December 13,
2019, in the United States Court of Federal Claims as petition No. 19-1889V.
14. If petitioner s i uld 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 : aster fails to issue a decision in complete conformity with the terms
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in par. 2 h 9 above. There is absolutely no agreement on the part of the
parties hereto to make an | payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. Th 3 parties further agree and understand that the award described in this
Stipulation may reflect a jompromise of the parties’ respective positions as to liability and/or
amount of damages, and ) rther, that a change in the nature of the injury or condition or in the
items of compensation so ight, 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 have TM, or
any other injury, or his cufrent 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
~ ~~
Respectfully submitted, :
PETITIONER:
CHANDLER NIT.
ATTORNEY OF RECORD
FOR PETITIONER:
Mine abfurbuandf
GLEN H. STURTEVAN:
Rawls Law Group, PC |
211 Rocketts Way, Suite) 100
Richmond, VA 23231
Tel: (804) 344-0038 =|
Email: gsturtevant@rawlslawgroup.com
Compensation Program
Health Systems Bureau {|
Health Resources and Sefvices
Administration
U.S. Department of Heal
and Human Services
$600 Fishers Lane, 08N146B
Rockville, MD 20857
Dated: _D) | olzere_|
AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
Ae dose Yeu
HEATHER L. PEARLMAN
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:
by Wecdthr ee Siem
LARA A. ENGLUND
Assistant Director
Torts Branch
Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 307-3013
Email: lara.a.englund@usdoj.gov
Nitzke v. Secretary of Health and Human Services
Combined Opinion