Zolnowsky v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 13-036V Filed: July 2, 2014 (Not to be published) ************************* MARILYN ZOLNOWSKY, as the * mother and natural guardian of * A.J.B., a minor, * Petitioner, * v. * Stipulation; Rotavirus; Intussusception; * Medicaid Lien; Attorney’s Fees & Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * Respondent. * **************************** Sheila A. Bjorklund, Esq., Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.

Melonie J. McCall, Esq., U.S. Dept. of Justice, Washington, DC for respondent.

DECISION ON JOINT STIPULATION 1 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 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.

Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in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)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).

Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access.

National 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 (2006).

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 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.

s/ Thomas L. Gowen Thomas L. Gowen Special Master Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.