United States Court of Federal Claims, 2019

Berkow v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided February 12, 2019 · Katherine E. Oler

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1587V (Not to be published)

***************************** JANICE BERKOW, *

* Petitioner, * Filed: December 14, 2018

* v. * Decision by Stipulation; Damages;

* Influenza (“Flu”) Vaccine. *

SECRETARY OF HEALTH AND * HUMAN SERVICES, *

* Respondent. *

***************************** Maximillian Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Jay All, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On October 23, 2017, Petitioner Janice Berkow filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Petition, ECF No. 1. Petitioner alleges that she developed “neurological symptoms, to include left shoulder neuritis” as a result of receiving an influenza (“flu”) vaccination on August 19, 2016. See Stipulation ¶ 4, dated December 13, 2018 (ECF No. 23); See also Petition.

Respondent denies “that the flu vaccine is the cause of [P]etitioner’s alleged neurological injuries or any other injury or condition.” See Stipulation ¶ 6. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation filed December 13, 2018 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:

A lump sum of $35,000.00 in the form of a check payable to Petitioner. Stipulation ¶ 8. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3

IT IS SO ORDERED. s/ Katherine E. Oler

Katherine E. Oler Special Master

1 Because this decision contains a reasoned explanation for my action in this case, I will 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)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of confidential information. Specifically, under 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). Otherwise, the whole decision will be available to the public. (Id.) 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.A. ' 300aa-10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa. 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.

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