Judges: Nora Beth Dorsey
Filed: Nov. 27, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-89V Filed: September 27, 2019 UNPUBLISHED MEHMET OZGUR, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Tetanus SECRETARY OF HEALTH AND Diphtheria acellular Pertussis (Tdap) HUMAN SERVICES, Vaccine; Shoulder Injury Respondent. Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON J
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-89V Filed: September 27, 2019 UNPUBLISHED MEHMET OZGUR, Petitioner, v. Special Processing Unit (SPU); Joint Stipulation on Damages; Tetanus SECRETARY OF HEALTH AND Diphtheria acellular Pertussis (Tdap) HUMAN SERVICES, Vaccine; Shoulder Injury Respondent. Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JO..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-89V
Filed: September 27, 2019
UNPUBLISHED
MEHMET OZGUR,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Tetanus
SECRETARY OF HEALTH AND Diphtheria acellular Pertussis (Tdap)
HUMAN SERVICES, Vaccine; Shoulder Injury
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On January 18, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered a left shoulder injury as a result of his
October 29, 2016 Diphtheria acellular Pertussis (Tdap) Vaccine. Petition at 1;
Stipulation, filed September 26, 2019, at ¶¶ 2, 4. Petitioner further alleges that the
vaccine was administered within the United States, that he suffered the residual effects
of his injury for more than six months, and that there has been no prior award or
settlement of a civil action on his behalf as a result of his injury. Stipulation at ¶¶ 3, 5;
Petition at ¶¶ 10-11. “Respondent denies that petitioner suffered a SIRVA table injury,
and denies that the Tdap vaccine caused petitioner to suffer from a left shoulder injury
or any other injury or his current condition.” Stipulation at ¶ 6.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on September 26, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $30,000.00 in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
MEHMET OZGUR, )
)
Petitioner, )
) No. 18-89V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters :
l. Mehmet Ozgur, 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 tetanus-diphtheria-acellular pertussis ("Tdap") vaccine, which vaccine is contained in the
Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a).
2. Petitioner received the Tdap vaccine on October 29, 2016.
3. The vaccination was administered within the United States.
4. Petitioner alleges that he suffered from a left shoulder injury as a result of receiving
the Tdap vaccine.
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 petitioner suffered a SIRVA table injury, and denies that the
Tdap vaccine caused petitioner to suffer from a left shoulder injury or any other injury or his
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-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $30,000.00 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- l 5(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 attorneys' fees and costs incurred in proceeding
upon this petition.
10. Petitioner and 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-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 XIX of the Social Security Act (42 U .S .C.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
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11. Payment 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-
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 attorneys' fees and litigation costs, and past unreimbursed 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-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity, and on behalf of his 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, 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 O 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 Tdap vaccination administered on October 29, 2016,
as alleged by petitioner in a petition for vaccine compensation filed on or about January 18,
20 I 8, in the United States Court of Federal Claims as petition No. l 8-89V.
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.
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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
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 farther 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 caused petitioner to have a left
shoulder injury or any other injury or his current 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
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Respectfully submitted,
PETITIONER:
MEHMET OZGUR
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
OF THE ATTORNEY GENERAL:
df;;:
Muller Brazil LLP
~~
~ARINE E. REEVES
Deputy Director
715 Twining Road, Suite 208 Torts Branch, Civil Division
Dresher, PA 19025 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY, M.D, CHRISTINE M . BECER
Acting Director, Division of Injury Trial Attorney
Compensation Programs Torts Branch, Civil Division
Healthcare Systems Bureau U.S . Department of Justice
U.S. Department of Health P.O. Box 146
and Human Services Benjamin Franklin Station
5600 Fishers Lane Washington, DC 20044-0146
Parklawn Building, Mail Stop 08N 146B Tel: (202) 616-3665
Rockville, MD 20857
Dated: _ _ q_/_
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