VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-00695 Package ID: USCOURTS-cofc-1_15-vv-00695 Petitioner: Michael Rishwain Filed: 2015-07-06 Decided: 2016-08-30 Vaccine: influenza Vaccination date: 2013-10-22 Condition: brachial neuritis Outcome: compensated Award amount USD: 25000 AI-assisted case summary: Michael Rishwain filed a petition for vaccine compensation on July 6, 2015, alleging that an influenza vaccine he received on October 22, 2013, caused him to suffer brachial neuritis and its residual effects for more than six months. The respondent, the Secretary of Health and Human Services, denied that the flu vaccine caused Mr. Rishwain's condition or any other injury. Despite these differing positions, the parties reached a joint stipulation to settle the case. The Special Master, Christian J. Moran, found the stipulation reasonable and adopted it as the decision of the Court. Mr. Rishwain was awarded a lump sum payment of $25,000.00, payable by check to him, as compensation for all damages. This award represents a compromise of the parties' respective positions on liability and damages. The decision was entered on August 30, 2016. Petitioner was represented by Jeffrey S. Pop, and respondent was represented by Adriana Ruth Teitel. The public decision does not describe the specific onset of symptoms, diagnostic tests, treatments, or the medical experts consulted by either party. It also does not detail the specific mechanism by which the vaccine allegedly caused the brachial neuritis. Theory of causation field: Petitioner Michael Rishwain alleged that an influenza vaccine received on October 22, 2013, caused brachial neuritis and residual effects lasting over six months. The vaccine is listed on the Vaccine Injury Table. Respondent denied causation. The parties reached a stipulation to settle the case, agreeing to an award of $25,000.00 as compensation for all damages under 42 U.S.C. § 300aa-15(a). Special Master Christian J. Moran adopted the stipulation on August 30, 2016. Petitioner was represented by Jeffrey S. Pop, and respondent by Adriana Ruth Teitel. The public decision does not detail the specific medical mechanism, expert opinions, or evidence presented regarding causation, relying instead on a stipulation to resolve the claim. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_15-vv-00695-0 Date issued/filed: 2016-08-30 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 08/03/2016) regarding 28 DECISION Stipulation/Proffer. Signed by Special Master Christian J. Moran. (SP) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * MICHAEL RISHWAIN, * * No. 15-695V Petitioner, * Special Master Christian J. Moran * v. * Filed: August 3, 2016 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * brachial neuritis. * Respondent. * * * * * * * * * * * * * * * * * * * * * * Jeffrey S. Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for Petitioner; Adriana Ruth Teitel, U.S. Dep’t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION1 On August 2, 2016, the parties filed a joint stipulation concerning the petition for compensation filed by Michael Rishwain on July 6, 2015. In his petition, petitioner alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on October 22, 2013, caused him to suffer brachial neuritis. Petitioner further alleges that he suffered the residual effects of this injury for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Respondent denies that petitioner’s brachial neuritis and its residual effects were caused-in-fact by his flu vaccine. Respondent further denies that the vaccine caused petitioner any other injury or his current condition. 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 2 of 7 Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Damages awarded in that stipulation include: A lump sum payment of $25,000.00 in the form of a check payable to petitioner, Michael Rishwain. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 15-695V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Shannon Proctor, at (202) 357-6360. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge. 2 Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS · OFFICE OF SPECIAL MASTERS MICHAEL RISHWA IN, Petitioner, V. No. 15-695V Special Master Moran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following malters: 1. Petitioner Michael Rish wain ("petitioner") filed·a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza vaccine ("flu"), which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received his flu immunization on October 22, 2013. 3. The vaccine W"1S administered within the United States. 4. Petitioner alleges that he sustained a vaccine-related injury diagnosed as brachia! neuritis that was caused-in-fact by the flu vaccine he received. He further alleges that he experienced the residual effects of this injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of his condition. Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 4 of 7 6. Respondent denies that petitioner's brachia! neuritis and its residual effects were caused-in-fact by his flu vaccine. Respondent further denies that the vaccine caused petitioner any other injury or his current condition. 7. 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 the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry ofj udgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of$25,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry ofj udgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. 10. Petitioner and his attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-·15(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis. 2 Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 5 of 7 11. Payment made pursuant to paragraph 8 and any amounts awarded pw·suant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of4 2 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of4 2 U.S.C. § 300aa-15(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on October 22, 2013, as alleged by petitioner in his petition for vaccine compensation filed on July 6, 2015, in the United States Court of Federal Claims as petition No. 15-695V. 14. If petitioner should die prior to entty of judgment, this agreement shall be voidable upon proper notice to the Court on behalf ofe ither or both of the parties. 3 Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 6 of 7 15. If the special master fails to issue a decision in complete conformity with the tenns · of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by t11e United States or the Secretary ofHealth and Human Services that ilie flu vaccination caused petitioner to suffer brachial neuritis or any other injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION I I I I I I I I l I I 4 Case 1:15-vv-00695-UNJ Document 38 Filed 08/30/16 Page 7 of 7 Respectfully submitted, ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTA11VE PETITIONER: ~G~ ;§f~ATES RINE E. REEVES g Deputy Director 9107 Wilshire Blvd, Suite 700 Torts Branch Beverly Hills, CA 90210 Civil Division (310) 273-5462 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTilOIUZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECREJ:AR'£.O~H EALT H UESPONDENT: AND HUf1AN ~E¥VIfES: ! l 1 · , i i : .\ .· 2 ii ·'ll >··/· .... 'l-...