Battistone v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS (Filed: January 17, 2017)

* * * * * * * * * * * * * * * UNPUBLISHED ROBERT BATTISTONE, * * No. 09-878V * Petitioner, * Chief Special Master Dorsey * v. * Influenza (“flu”) Vaccine; Post- * Vaccination Encephalitis; Stipulation. SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * *

Anne Toale, Maglio, Christopher and Toale, Sarasota, Florida, for petitioner. Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

On December 18, 2009, Robert Battistone (“petitioner”) filed a petition in the National Vaccine Injury Compensation Program 2 alleging that he suffered “numerous medical issues,” and post-vaccination encephalitis as the result of the varicella vaccination administered on December 18, 2006. Pet. at preamble.

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of Electronic Government Services). As provided by 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). 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.  On January 17, 2017, the parties filed a stipulation in which they stated that a decision should be entered awarding compensation. Respondent denies that the varicella vaccination either caused or significantly aggravated petitioner’s alleged injuries or any other injury.

Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

The parties stipulate that petitioner shall receive the following compensation:

a. A lump sum of $519,980.79, which represents compensation for first year life care expenses ($44,940.18), and combined lost earnings, pain and suffering, and past expenses ($475,040.61) in the form of a check payable to petitioner;

b. A lump sum of $8,174.50, which represents reimbursement of an invoice for services rendered on behalf of petitioner, in the form of a check payable jointly to petitioner and:

North Cypress Medical Center Billing Department 21214 Northwest Freeway Cypress, TX 77429 ATTN: Lynn Patient ID: V00001394802

Petitioner agrees to endorse this check to North Cypress Medical Center; and

c. An amount sufficient to purchase the annuity contract described in paragraph 10 of the stipulation, paid to the life insurance company from which the annuity will be purchased.

These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Stipulation dated January 17, 2017 (ECF No. 153) at 8.

The undersigned approves the requested amount for petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 3

IT IS SO ORDERED.

/s/ Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.

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