United States Court of Federal Claims, 2019

Bartosiewicz v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided May 28, 2019 · Thomas L. Gowen

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: April 9, 2019

* * * * * * * * * * * * * ANDREW BARTOSIEWICZ and * LONYA BARTOSIEWICZ, as parents * and natural guardians of J.B., a minor, * UNPUBLISHED

* Petitioners, * No. 17-1988V

* v. * Special Master Gowen

* SECRETARY OF HEALTH * Diphtheria-Tetanus-Acellular AND HUMAN SERVICES, * Pertussis (“DTaP”); Hepatitis A

* (“Hep A”); Febrile Seizures; Respondent. * Encephalitis; Stipulation.

* * * * * * * * * * * * * Jeffrey A. Golvash, Brennan, Robins & Daley, P.C., Pittsburgh, PA, for petitioner. Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.

DECISION ON STIPULATION1

On December 20, 2017, Andrew Bartosiewicz and Lonya Bartosiewicz (“petitioners”), on behalf of their minor child J.B., filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). J.B. received diphtheria-tetanus-acellular pertussis (“DTaP”) and Hepatitis A (“Hep A”) vaccines on or about January 12, 2015. Stipulation filed April 9, 2019 (ECF No. 29) at ¶ 2. Petitioners alleged that the DTaP and Hep A vaccines, either singly or in combination, caused J.B. to develop “febrile seizures and/ or encephalitis,” and that J.B. experienced the residual effects of this injury for more than six months. Id. at ¶ 4.

On April 9, 2019, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioners. Stipulation. Respondent denies that the DTaP and Hep A vaccines, either singly or in combination, caused J.B.’s alleged seizures/ and or encephalitis, or any other injury. Id. at ¶ 6. Maintaining their respective positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding compensation according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶ 7.

The stipulation awards:

1) A lump sum payment of $864.02, representing compensation for satisfaction of a

Commonwealth of Pennsylvania Medicaid lien, in the form of a check payable jointly to petitioners and:

Commonwealth of Pennsylvania Bureau of Program Integrity Division of Third Party Liability

Recovery Section P.O. Box 8486

Harrisburg, PA 17105-8486

Petitioners agree to endorse this payment to the Commonwealth.

2) A lump sum of $50,000.00, in the form of a check payable jointly to petitioners, as guardians/ conservators of the estate of J.B. This amount represents all remaining compensation for damages that would be available under 42 U.S.C. § 300aa-15(a).

No payments pursuant to this stipulation shall be made until petitioners provide the Secretary with documentation establishing their appointment as guardians/ conservators of J.B.’s estate. Stipulation at ¶ 12.

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.3

IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

1 In accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012), because this opinion contains a reasoned explanation for the action in this case, this opinion will be posted on the website of the United States Court of Federal Claims. This means the opinion will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published 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). If neither party files a motion for redaction within 14 days, the entire opinion will be posted on the website and available to the public in its current form. 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. §§ 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. 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).

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