Marra, Jr. v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 29, 2018 ************************* SCOTT V. BARTKUS, Administrator of the * UNPUBLISHED Estate of LAWRENCE A. MARRA, JR, * * No. 15-261V Deceased, * Petitioner, * Special Master Gowen v. * * Joint Stipulation; Influenza; SECRETARY OF HEALTH * Necrotizing Muscle Myopathy; AND HUMAN SERVICES, * Death. * Respondent. * ************************* Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.

Lisa Ann Watts, United States Department of Justice, Washington, DC, for respondent.

DECISION ON STIPULATION1 On March 13, 2015, Lawrence A. Marra, Jr. (“Mr. Marra”) filed a petition in the National Vaccine Injury Compensation Program (“Program”).2 Petition, ECF No. 1. Mr. Marra filed an amended petition on June 10, 2015. Amended Petition, ECF No. 10. On April 16, 2018, the case caption was amended to reflect that Mr. Marra had passed away and Mr. Scott V. Bartkus (“petitioner”), was appointed administrator of his estate. Order Granting Motion to Amend Case Caption, ECF No. 63. Mr. Bartkus filed a second amended petition on June 29, 2018, alleging that Mr. Marra suffered necrotizing muscle myopathy as the result of an influenza (“flu”) vaccination

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 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 (2012) (“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. he received on or about September 17, 2012.3 Second Amended Petition, ECF No. 70. Petitioner further alleged that Mr. Marra’s death was the result of the effects of the flu vaccination. Second Amended Petition at Preamble & ¶ 20.

On October 29, 2018, the parties filed a joint stipulation in which they stated that a decision should be entered awarding compensation to petitioner. Stipulation for Award, ECF No. 74.

Respondent denied that the flu vaccine caused Mr. Marra’s alleged necrotizing muscle myopathy, or any other injury, and further denied that Mr. Marra’s death was a sequela of a vaccine-related injury. Id. at ¶ 6.

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 compensation to petitioner according to the terms of the joint stipulation attached hereto as Appendix A.

The joint stipulation awards: A lump sum of $95,000.00 in the form of a check payable to petitioner as legal representative of the Estate of Lawrence A. Marra, Jr. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

I find the stipulation reasonable and I adopt it as the decision of the Court in awarding damages, on the terms set forth therein.

Accordingly, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.4 IT IS SO ORDERED.

s/Thomas L. Gowen Thomas L. Gowen Special Master

The September 17, 2012 date of vaccination is supported by Mr. Marra’s vaccination record. See Petitioner’s Exhibit 6 at 100. Petitioner’s Petition, Amended Petition, and Second Amended Petition inaccurately note the date of vaccination as September 22, 2012.

Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.

IN THE UNITED STATES COURT OF FEDERAL CLAIT:v!S OFFrCE OF SPECIAL MASTERS

SCOTT BARTKUS, ) Administtatpr of the Estate of, ) LAWREN CE A. MARRA, JR., Deceased, ) ) Petitioner, ) ) No. lS:-261 V (ECF) v. ) Special Master Gowen ) SECRETARY OF.HEALTH AND ) HU:M'AN SERVICES, ) ) Respondent. )

STIPULATION The parties hereby stipulite to the following_ matters; 1. Lawrence Marra1 Jr. (''Mr. Marra") filed a petitio:o.forvaccine compensation under the National Vaccine Injury Compensation.Program, 4;;2. U$,C. § 300aa-10 to 34 (the '"Vaccine Program"), �eeking compensation for injuries allegedly related to Mr. Marra1s receipt of the influenza (''flu'') vaccine, which vaccine is contained in the Vaccine .1njw.:y Table (the. "'.fable"), 42 C.F.R. § 100.3(a}. An amended petition fled by Seott V, Bati;kus, Administrator ofthe Estate of Law:renee A. Marra, Jr. {''petitioner"), 1 clanns that Mr. Marra's alleged vaccine-related fojury led to M'.r. Marra's' death on Februatv-1-2, . 2018.

2. Mr.. Marra rec.eived a flu vaccine on or about September 17, 2012, 2 3. The vaacine w�s administered within the United States.

1 The case caption wal3 changed by the Special Master on April 16, 20 rn.

2This date is supported by Mr. Marra's vaccination,• record. See Petitioner• s Exhibit 6 at 100.

The petitions filed on March 13-, 2015, June 10, 2015, and J�ne 293 2018, include an incorrect vaccination date·ofSeptember 22, 2012.