Schik v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1591V (Not to be published) ***************************** BRUCHY SCHIK, * * Petitioner, * Filed: May 28, 2019 * v. * Decision by Stipulation; Damages; * Tetanus-diphtheria-acellular * pertussis (“Tdap”) Vaccine.

SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * ***************************** Alison Haskins, Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner.

Camille Collett, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On October 24, 2017, Bruchy Schik (“Petitioner”) filed2 a petition seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).3 Pet., ECF No. 1. Petitioner alleges that she suffered a shoulder injury related to vaccine administration as a result of receiving a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination on August 11, 2016. Id. Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims’ website, in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 (2012)). This means the ruling 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 decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 Decision in its present form will be available.

Id. This matter was initially assigned to Special Master Roth and re-assigned to my docket on June 8, 2018.

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.

Respondent denies “that the Tdap vaccine is the cause of [P]etitioner’s alleged shoulder injury, or any other injury or condition.” See Stipulation ¶ 6, dated May 28, 2019, ECF No. 31.

Nonetheless both parties, while maintaining their above-stated positions, agreed in a joint stipulation filed May 28, 2019 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: 1. A lump sum of $45,000.00 in the form of a check payable to Petitioner.

Stipulation ¶ 8. This award represents compensation for all damages that would be available under U.S.C. § 300aa-15(a).

I approve a Vaccine Program award in the requested amount set forth above. 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.4 IT IS SO ORDERED.

s/ Katherine E. Oler Katherine E. Oler Special Master

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review.