Arshakyan v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* MARINA ARSHAKYAN, * No. 15-1004V * Special Master Christian J. Moran Petitioner, * * Filed: November 2, 2017 v. * * Stipulation; measles mumps rubella SECRETARY OF HEALTH * (“MMR”) vaccine; eye pain; AND HUMAN SERVICES, * decreased vision; vision loss; optic * neuritis; fatigue Respondent. * ********************* Mark Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner; Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION1 On November 1, 2017, the parties filed a joint stipulation concerning the petition for compensation filed by Marina Arshakyan on September 10, 2015. The petition alleged that the measles mumps rubella vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), caused petitioner to suffer or significantly aggravated eye pain, decreased vision, vision loss, optic neuritis and fatigue following its administration on September 19, 2012. Petitioner further alleges that she suffered the residual effects of these injuries 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. 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. Respondent denies that the measles mumps rubella vaccine caused petitioner to suffer or significantly aggravated eye pain, decreased vision, vision loss, optic neuritis, fatigue, or any other injury. 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 $130,000.00 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). In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 15-1004V 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 ST ATES.. COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) MARINA ARSHAKYAN, ) ) Petitioner, ) ) No. 15-1004V V. ) Special Master Moran ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) STIPULATION The parties hereby stipulate to the following matters: 1. On September 10, 2015 , Marina Arshakyan (" 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 a measles mumps rubella ("MMR") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a). 2. Petitioner received a MMR immunization on September 19, 2012. 3. The vaccine was administered within the United States. 4 . Petitioner alleges that she suffered from eye pain, decreased vision, vision loss, optic neuritis and fatigue that was caused-in-fact or significantly aggravated by her MMR vaccination. Petitioner further alleges that she experienced residual effects of this injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action -1- for damages as a result of her alleged injuries. 6. Respondent denies that petitioner's alleged injuries were caused-in-fact by her MMR vaccination, and denies that the vaccine caused any other injury or her 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)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $130,000.00 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)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attorney's fees and costs incurred in proceeding upon this petition. 10. Petitioner and her 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 on a pre-paid basis. 11 . Payments made pursuant to paragraph 8, and any amounts awarded pursuant to -2- 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 attorney's fees and litigation costs and past mrreimbursable 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-l S(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her 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 (i ncluding 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-l 0 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 MMR vaccination administered on September 19, 20 12 as alleged in a petition for vaccine compensation filed on or about September 10, 2015 , in the United States Court of Federal Claims as petition No. 15-1004V. 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 -3- 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 MMRvaccine caused petitioner's alleged eye pain, decreased vision, vision loss, optic neuritis, fatigue or any other injury or her current disabilities. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION I I I I I I -4- Respectfully submitted, ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERA.L: MARKT. SADAK.A ~ c~ L REEVES -- Attorney for Petitioner Deputy Directo r Sadaka Associates Torts Branch 155 N. Dean Street Civil Division 41h Floor l.i .S. Department of Justice Englewood, NJ 07631 P.O. Box 146 (800) 810-3457 Benjamin FranU in Station Washington, DC 20044-0146 ATTORI'liEY OF RECORD FOR RESPONDEI'liT: / ,MD -~~ ----'s ~~ ALEXIS B. BA BCOCK Director, Division oflnjury Assistant Director Compensation Programs (DICP) Torts Branch Healthcare Systems Bureau Civil Division U.S. Department of Health U.S. Department of Justice and Human Services P.O. Box 146 5600 Fishers Lane Benjamin fran :J in Station Parklawn Building, Mail Stop 081'\146B Washington, DC 20044-0146 Rockville, MD 20857 (202) 616-7678 Dated: l\ l I 11'1 ~~---"-~~~~~~ -5-