Judith Morgan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12-160V Filed: April 30, 2013

************************************* JUDITH MORGAN, * NOT TO BE PUBLISHED

* Petitioner, * Special Master Zane *

v. * Stipulation; influenza (flu) vaccine;

* Diptheria-Tetanus (“DT”) vaccine; SECRETARY OF HEALTH * brachial plexopathy; attorneys’ fees AND HUMAN SERVICES, * and costs

*

Respondent. *

*

************************************* Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for Petitioner Traci Patton, United States Dep’t of Justice, Washington, DC, for Respondent

UNPUBLISHED DECISION 1

On April 30, 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 she suffered from brachial plexopathy as a consequence of her receipt of the influenza (“flu”) vaccine or Diptheria-Tetanus (“DT”) vaccine, which are vaccines contained in the Vaccine Injury Table, 42 C.F.R § 100.3(a), and which she received on or about September 28, 2010. Petitioner alleges that she 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 her injuries pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 to 34.

Respondent denies that the flu vaccine or the DT vaccine caused Petitioner’s brachial plexopathy or any other injury and denies that Petitioner’s current disabilities are sequelae of her alleged vaccine-related injury. 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 $16,000.00 in attorneys’ fees and costs would be reasonable. Petitioner has represented that she 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(e), the undersigned awards the amount of attorneys’ fees and costs to which Respondent has agreed.

Specifically, Petitioner is awarded:

1) a lump sum of $70,000.00, 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 $16,000.00 in the form of a check payable jointly to petitioner and petitioner’s attorney, Mark L. Krueger, for attorneys’ fees and costs awarded pursuant to 42 U.S.C. §§ 300aa-15(e).

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