McDonough v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ************************* REGIS MCDONOUGH, * * No. 12-621V Petitioner, * Special Master Christian J. Moran * v. * Filed: June 12, 2014 * SECRETARY OF HEALTH * Stipulation; Tetanus-Diptheria- AND HUMAN SERVICES, * acellular-Pertussis (“Tdap”) vaccine; * sensory neuropathy; attorneys’ fees Respondent. * and costs. ************************* Jeffrey Golvash, Brennan, Robins, & Daley, P.C. Pittsburgh, PA, for Petitioner; Jennifer Reynaud, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

UNPUBLISHED DECISION1 On June 9, 2014, respondent filed a stipulation concerning the petition for compensation filed by Regis McDonough on September 20, 2012. In his petition, Mr. McDonough alleged that the Tetanus-Diphtheria-acellular Pertussis (“Tdap”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on September 8, 2011, caused him to suffer sensory neuropathy. Petitioner further alleges that he experienced 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 alleged sensory neuropathy and residual effects were caused-in-fact by the Tdap vaccine. Respondent further denies that the Tdap vaccine caused petitioner any other injury or his current condition.

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), 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.

Nevertheless, the parties agree to the joint stipulation, attached hereto as “Appendix A.”

Respondent also filed a joint stipulation of fact concerning final attorneys’ fees and costs on April 30, 2014. Prior to filing this stipulation, Mr. McDonough informally submitted a draft application for attorneys’ fees and costs to respondent for review. Upon review of petitioner’s application, respondent raised objections to certain items but did not find the total amount of fees and costs requested to be unreasonable. Mr. McDonough requested $14,291.51, in attorneys’ fees and costs, an amount to which respondent does not object. Additionally, in compliance with General Order No. 9, Mr. McDonough states that he incurred $350.00 of out-of- pocket litigation expenses while pursuing this claim. The Court awards these amounts.

The undersigned finds said stipulations reasonable and adopts it as the decision of the Court in awarding damages and attorneys’ fees and costs, on the terms set forth therein.

Compensation awarded in the stipulations includes: A. A lump sum of $9,000 in the form of a check payable to petitioner, Regis McDonough. This amount represents compensation for all damages that would be available under 42 U. S.C. § 300aa- 15(a).

B. A lump sum of $14,291.51 in the form of a check payable jointly to petitioner and petitioner’s attorney, Jeffrey Golvash of the Brennan, Robins, & Daley, P.C. Law Firm, for attorneys’ fees and costs available under 42 U.S.C. §300aa-15(e).

C. A lump sum of $350.00 in the form of a check payable to petitioner, Regis McDonough, for costs he incurred in pursuit of his petition.

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 12-621V according to this decision and the attached stipulation.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.

Any questions may be directed to my law clerk, Mary Holmes, at (202) 357- 6353.

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master