Judges: Lisa Hamilton-Fieldman
Filed: Sep. 17, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-840V Filed: August 21, 2015 * * * * * * * * * * * * * * * * UNPUBLISHED MICHAEL SCHIFFGENS, * * Special Master Hamilton-Fieldman Petitioner, * * Joint Stipulation on Damages; v. * Tetanus-Diphtheria-Acellular * Pertussis (“Tdap”) Vaccine; SECRETARY OF HEALTH * Guillain-Barré Syndrome (“GBS”). AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * John R. Howie, Jr., Howie Law, P.C., Dallas, TX, for Petit
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-840V Filed: August 21, 2015 * * * * * * * * * * * * * * * * UNPUBLISHED MICHAEL SCHIFFGENS, * * Special Master Hamilton-Fieldman Petitioner, * * Joint Stipulation on Damages; v. * Tetanus-Diphtheria-Acellular * Pertussis (“Tdap”) Vaccine; SECRETARY OF HEALTH * Guillain-Barré Syndrome (“GBS”). AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * John R. Howie, Jr., Howie Law, P.C., Dallas, TX, for Petiti..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-840V
Filed: August 21, 2015
* * * * * * * * * * * * * * * * UNPUBLISHED
MICHAEL SCHIFFGENS, *
* Special Master Hamilton-Fieldman
Petitioner, *
* Joint Stipulation on Damages;
v. * Tetanus-Diphtheria-Acellular
* Pertussis (“Tdap”) Vaccine;
SECRETARY OF HEALTH * Guillain-Barré Syndrome (“GBS”).
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * *
John R. Howie, Jr., Howie Law, P.C., Dallas, TX, for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, D.C., for Respondent.
DECISION1
On September 10, 2014, Michael Schiffgens (“Petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that a Tetanus- Diphtheria- Acellular Pertussis (“Tdap”) vaccination
administered on September 6, 2011 caused him to develop Guillain-Barré Syndrome (“GBS”).
Petition (“Pet.”) at 1-9.
On August 21, 2015, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation. Respondent denies that the Tdap vaccine caused or
significantly aggravated Petitioner’s condition or any other injury. However, the parties agree to
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by
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).
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. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (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.
1
the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation
reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth
therein.
The parties stipulate that Petitioner shall receive the following compensation:
A. A lump sum of $129,385.20, in the form of a check payable to Petitioner; and
B. A lump sum of $443.69, which amount represents compensation for reimbursement
of the Medicaid lien, in the form of a check payable jointly to Petitioner and the
Commonwealth of Massachusetts- CRU (Case No. CRG379173), P.O. Box 417811,
Boston, MA 02241-7811. Petitioner agrees to endorse this payment to the
Commonwealth of Massachusetts.
This above amount represent[s] compensation for all damages that would be available under
U.S.C. § 300aa-15(a).
Stipulation ¶ 8.
The undersigned approves the requested amount for Petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.3
IT IS SO ORDERED.
s/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
MICHAEL SCHIFFGE S, )
)
Petitioner, ) No. I 4-840V ECF
)
v. ) Specia l Master Hamilton-Fieldman
)
SECRETARY OF HEALTH )
AND HUMAN SER VICES, )
)
Respondent. )
~~~~~~~~~~~~~~~ )
STIPULAT ION
The parties hereb y stipulate to the fo llowing matters:
l. Petitioner, Michael Schi ffgens, filed a petition for vaccine compensation under the
Nationa l Vaccine Injury Compensation Program, 42 U.S .C. §§ 300aa- I 0 to 34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedl y related to petitioner's receipt
of the tetanus-dip htheria-acellular pertussis ("Tdap") vaccine, which is contained in the Vaccine
Injury Table (the "Table"), 42 C.F.R. § I 00.3(a).
2. On September 6, 20 11 , petitioner received the Tdap vaccine.
3. The Tdap vaccine was administered within the United States.
4. Petitioner alleges that, as a result of receiving the Tdap vaccine, he suffered from
Guillain-Barre syndrome ("GBS"), with an onset date of September 28, 201 1, and that he
experienced symptoms of this injury for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civi l action
for damages as a result of his a lleged injuries.
6. Respondent denies that the Tdap vaccine e ithe r caused o r significantly aggravated
petitioner's a lleged injuri es or any other injury, and de nies that petitioner's curre nt di sabil iti es
are the result of a vaccine-related injury.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them sha ll be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as p racticable after an entry o f judgment re fl ecting a dec ision consistent
w ith the terms of this Stipulation, and after petitioner has filed a n election to receive
compe nsation pursuant to 42 U.S.C. § 300aa-2 l (a)( 1), the Secretary of Health and Hu man
Services will issue the following vaccine compensation payme nts:
a. A lump sum of $ 129,385.20, in the fo rm of a c heck payabl e to petitioner; and
b. A lump sum o f $443.69, which amount represents compensation for
reimburseme nt o f the Medica id lie n, in the form of a check payable jointly to
pe titioner and the Commonwealth of Massachusetts - CRU (Case No.
CRG379 173), P .O. Box 41 78 11 , Boston, MA 02241 -78 11. Petitioner agrees to
e ndo rse this payment to the Commonwealth of Massachusetts.
The above amounts represent compensation for all damages that wou ld be available unde r 42
U.S.C. § 300aa- l 5(a).
9. As soon as p racticable after the entry of j udgment on entitlement in this case, and
after petitioner has fil ed both a p roper and time ly election to receive compensation pursuant to
42 U.S.C. Section 300aa-2 1(a)(l ), and an application, the parties will submit to further
proceed ings before the s pecial master to award reasonable attorneys ' fees and costs incurred in
proceed ing upon this peti tion.
l 0. Petitio ner and hi s attorney represent that compensation to be provided pu rsuant to
this Stipulatio n is not fo r any items or services fo r which the Program is not primar ily liable
2
under 42 U.S.C. § 300aa- 15(g), to the exte nt 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 X IX of the Social Security Act (42 U.S.C.
§ 1396 et seq.)), or by entities that prov ide health services on a pre-paid basis.
11. Payments 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-l 5(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipul ate that, except fo r any award
for attorneys ' fees and litigation costs, the money provided pursuant to this Stipul ation will be
used solely for the benefit of petitio ner, as contemplated by a strict construction of 42 U.S.C.
§ 300aa- l 5(a) and (d), and subj ect to the conditions of 42 U.S.C. §§ 300aa-l 5(g) and (h).
13 . In return for the pa yments described in paragraphs 8 and 9, petitioner, in hi s
individual capacity and on behalf of hi s heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Huma n Services fro m any and all actions, causes of actio n (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 C laims, under the National Vaccine Injury Compe nsation Program , 42
U.S.C. § 300aa- 10 et seq. , on account o f, or in any way growing out o f, 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 Tdap vaccine administered on Septembe r 6, 20 I I, as alleged
by petitioner in a petition for vaccine compensatio n fil ed on or about September l 0, 2014, in the
United States Court o f Federal Claims as petition No. 14-840V.
3
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 paities.
15. If the special master fails to issue a decision in complete confo1mity 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 confom1ity with the terms of this Stipulation, then the patties'
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 Tdap vaccine received by petitioner either caused
or significantly aggravated petitioner's alleged inj uries or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, admin istrators, successors, and/or assigns.
END OF ST IP ULA TION
4
Respectfully submitted,
PETITIONER:
ATTORNEY OF AUTHORIZED REPRESENTATIVE
PETITIONER: OF'fHE ATTORNEY Gj!:NERAL:
7.)lA'\o ~ :J. ~ -
6:1t~ [r-___
JO~OWIE,JR. VINCENT J. MATANOSKI
Howie Law, P.C. Deputy Director
4040 North Central Expressway, Suite 850 Torts Branch
Dallas, TX 75204 Civil Division
(214) 622-6340 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATJVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
A. MELISSA HOU TON, M.D., M.P.H, FAAP DARRYL R. WISHARD
Director, Division of Injury Senior Trial Attorney
Compensation Programs (DICP) Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health and U. S. Department of Justice
Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franl
