Filed: Jul. 02, 2014
Latest Update: Jul. 02, 2014
Summary: DECISION ON JOINT STIPULATION 1 THOMAS L. GOWEN, Special Master. Marilyn Zolnowsky ["petitioner"] filed a petition as the mother and natural guardian of A.J.B., a minor, for compensation under the National Vaccine Injury Compensation Program 2 on January 15, 2013. Petitioner alleges that A.J.B. suffered intussusception that was caused in fact by the Rotavirus vaccinations she received on June 2, 2010, and August 4, 2010. See Stipulation, filed June 30, 2014, at 2, 4. Further, petitione
Summary: DECISION ON JOINT STIPULATION 1 THOMAS L. GOWEN, Special Master. Marilyn Zolnowsky ["petitioner"] filed a petition as the mother and natural guardian of A.J.B., a minor, for compensation under the National Vaccine Injury Compensation Program 2 on January 15, 2013. Petitioner alleges that A.J.B. suffered intussusception that was caused in fact by the Rotavirus vaccinations she received on June 2, 2010, and August 4, 2010. See Stipulation, filed June 30, 2014, at 2, 4. Further, petitioner..
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DECISION ON JOINT STIPULATION1
THOMAS L. GOWEN, Special Master.
Marilyn Zolnowsky ["petitioner"] filed a petition as the mother and natural guardian of A.J.B., a minor, for compensation under the National Vaccine Injury Compensation Program2 on January 15, 2013. Petitioner alleges that A.J.B. suffered intussusception that was caused in fact by the Rotavirus vaccinations she received on June 2, 2010, and August 4, 2010. See Stipulation, filed June 30, 2014, at ¶¶ 2, 4. Further, petitioner alleges that A.J.B. experienced residual effects of her injury for more than six months. Id. at ¶ 4. Respondent denies that the Rotavirus vaccine or any other vaccine caused A.J.B.'s intussusception or any other injury or her current disabilities. Id. at ¶ 6.
Nevertheless, the parties have agreed to settle the case. On June 30, 2014, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.
Respondent agrees to pay petitioner:
(a) A lump sum of $6,000.00 in the form of a check payable to petitioner, Marilyn Zolnowsky as the guardian/conservator of A.J.B.'s estate. This amount represents compensation for all damages that would be available under § 300aa-15(a), except as set forth in paragraphs (b) and (c);
(b) A lump sum of $350.00 in the form of a check payable to petitioner, Marilyn Zolnowsky, for past unreimbursed medical expenses;
(c) A lump sum of $17,523.13, which amount represents reimbursement of a State of South Dakota Medicaid lien, in the form of a check payable jointly to petitioner and:
South Dakota Department of Social Services, Recoveries and
Investigations
South Dakota Department of Social Services
Recoveries and Fraud Investigations
700 Governors Drive
Pierre, South Dakota 57501-2291
Case number:000268881
Attn: Ms. Melanie McDonald
Petitioner agrees to endorse this check to the appropriate State agency; and
(d) A lump sum of $13,600.00 in the form of a check payable jointly to petitioner and petitioner's attorney, Sheila A. Bjorklund, Esq., for attorneys' fees and costs available under § 300aa-15(e); and, in compliance with General Order #9, no out-of-pocket expenses were incurred by petitioner in proceeding on the petition.
The special master adopts the parties' stipulation attached hereto, and awards compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of her minor daughter, A.J.B, petitioner filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 LLS.C. §300aa.10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to A.J.B.'s receipt of the Rotavirus vaccine, which vaccine Is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. 100.3 (a).
2. A.J.E. received the-Rotavirus vaccine on June 2, 2010, and August 4, 2010.
3. The vaccine WAS administered within the United States.
4. Petitioner alleges that A.J.B. suffered intussusception as a result of the vaccine and 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 for damages on behalf of A.J.B. as a result of her condition,
6. Respondent denies that the Rotavirus vaccine or any other vaccine caused A.J.B's intussuseeption or any other injury or her current disabilities.
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 ofjudgment 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)(1), the Secretary of Health and Human Services will issue the followin vaccine compensation payments:
a. A lump sum of $6,009.00 in the form of a check payable to petitioner as the guardian/conservator of A.J.B.'s estate, This amount represents all damages that would be available under 42 U.S.C. § 300aa-15(a), except as set forth in paragraphs 8.b. and 8.c.;
b. A lump sum of $350,00 in the form of a check payable to petitioner for past unreimbursed medical expenses;
c. A lump sum of $17,523.13, which amount represents rehnbursement of a State of South Dakota Medicaid lien, in the form of a check payable jointly to petitioner and
South Dakota Department of Soda Services, Recoveries and Investigations
South Dakota Department of Social Services
Recoveries and Fraud Investigations
700 Governors Drive
Pierre, South Dakota 57501,2291
Case Number: 000268881
Attn: Ms. Melanie McDonald
Petitioner agrees to endorse this check to the appropriate State
agency; and
d. A lump sum of $13,600.00 in the form of a check payable jointly to petitioner and petitioner's attorney, Sheila A. Bjoridund, Esq., for attorneys' fees and costs available under 42 U.S.C. § 300aa-15(e). in compliance with General Order No. 9, petitioner represents that she did not incur any personal expenses in proceeding on the petition.
9. 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 primarily liable tinder 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 XDC of the Social Security Act (42 U.S.C. § 1396 et seq,)), or by entities that provide health services on a pre-paid basis.
10. Payments made pursuant to paragraph 8 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.
11. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of A.J. 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),
12. Petitioner represents that she presently is, or within 90 days of the date of judgment will become, duly authorized to serve gurdian/conservator of A.J.B.'s estate under the laws of the State of South Dakota.
13. In return for the payments described in paragraph 8, petitioner, in her individual capacity and as legal representative of A.J.B., on behalf of herself, A.J.B., and A.J.B.'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 Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, log of services, expenses and ail demands of whatever kind or nature) that have been brought, could have been brought, or could be Oniely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300 aa-10 et seq., on Recount of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of A.J.B. resulting from, or alleged to have resulted from, the Rotavirus vaccinations administered on or about June 2, 2010 and August 4, 2010, as alleged by petitioner ill ft petition for vaccine compensation filed on or about January 15, 2013, in the United States Court of Federal Claims as petition No, 13-036V.
14. If A.J.B. 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 tile 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 jucigrnent in conformity with a 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 Hability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended. 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 shalt not be construed as an admission by the United States or the Secretary of Health and Human Services that A.J.B. suffered intussusception or any other injury as the result of the Rotavirus vaccine or any other vaccine, or that her current disabilities are sequelac of her alleged vaccine-relatal injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and assigns as legal representatives of A.J.B.
