Johnny E. Pennington v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 11-653V Filed: March 21, 2013

************************************* JOHNNY E. PENNINGTON, * NOT TO BE PUBLISHED

* Petitioner, * Special Master Zane *

v. * Stipulation; influenza (flu) vaccine;

* Guillain-Barre Syndrome (“GBS”) SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

************************************* Robert O’Conor, Jr., Houston, TX, for Petitioner Traci R. Patton, United States Dep’t of Justice, Washington, DC, for Respondent

UNPUBLISHED DECISION 1

On March 20, 2013, the parties in the above-captioned case filed a Stipulation memorializing their agreement as to the appropriate amount of compensation in this case. Petitioner alleged that he suffered from Guillain-Barre Syndrome (“GBS”) as a consequence of his receipt of the influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table, 42 C.F.R § 100.3(a), and which he received on or about October 13, 2009. Petitioner alleges that he experienced the residual effects of this injury for more than six months. Petitioner also represents that there have been no prior awards or settlement of a civil action for these damages. Petitioner seeks compensation related to his injuries pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 to 34.

Respondent denies that the vaccines caused Petitioner’s GBS or any other injury or his current disabilities. Nonetheless, the parties have agreed informally to resolve this matter. Stipulation, Appendix A hereto. The court hereby ADOPTS the parties’ said Stipulation, attached hereto as Appendix A, and awards compensation in the amount and on the terms set forth therein.

Because Petitioner is being awarded compensation pursuant to this decision, Petitioner is entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). In their stipulation, the parties have agreed that an award of $49,223.59 in attorneys’ fees and costs would be reasonable. Petitioner has represented that he personally has not incurred any litigation costs. The undersigned finds that the amount requested is reasonable. In accordance with 42 U.S.C. §§ 300aa–15(b) and (e)(1), the undersigned awards the amount of attorneys’ fees and costs to which Respondent has agreed.

Specifically, Petitioner is awarded:

1) a lump sum of $350,000.00, 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); and

2) a lump sum of $49,223.59 in the form of a check payable jointly to petitioner and petitioner’s attorney, Robert O’Conner, Jr., for attorneys’ fees and costs awarded pursuant to 42 U.S.C. §§ 300aa-15(b) and 15(e)(1).

The Court thanks the parties for their cooperative efforts in resolving this matter. In the absence of a motion for review filed pursuant to RCFC, Appendix B, the Clerk is directed to enter judgment accordingly. 2

IT IS SO ORDERED. s/Daria J. Zane Daria J. Zane Special Master