Turiano v. Secretary of Health and Human Services

United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 13-803V

*************************

* MARGARET TURIANO, *

* Petitioner, *

* Filed: September 22, 2014 v. *

* Damages Decision based on SECRETARY OF HEALTH AND * Stipulation; influenza (flu) vaccine; HUMAN SERVICES, * shoulder injury related to vaccine

* administration (SIRVA) Respondent. *

* ************************* Paul R. Brazil, Muller Brazil, LLP, Philadelphia, PA, for Petitioner.

Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES1 On October 15, 2013, Margaret Turiano filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the influenza ("flu") vaccine on or about January 23, 2013.

On September 19, 2014, the parties filed a stipulation indicating that this case can be settled and that a decision should be entered awarding Petitioner compensation. As the stipulation indicates, the parties agree that Petitioner suffered a SIRVA from the administration of the flu vaccine. Likewise, the parties agree that there is not a preponderance of evidence demonstrating that Petitioner’s condition is due to a factor unrelated to her January 23, 2013 vaccination. The other elements of eligibility for compensation have also been established. See 42 U.S.C. § 300aa—11(c), 13. Consequently, the stipulation states that “[P]etitioner is entitled to compensation.” Stipulation ¶ 8.

The stipulation also indicated that the parties had reached an agreement regarding attorneys’ fees and costs. The stipulation laid out the amount of compensation that should be awarded to Petitioner’s attorney in a check made payable jointly to Petitioner and Petitioner’s counsel. It also indicated that no out-of-pocket litigation related costs had been incurred by Petitioner.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:

A lump sum of $80,000.00, 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).

A lump sum of $15,500.00, in the form of a check payable jointly to Petitioner and Petitioner's attorney, Paul R. Brazil, for attorneys’ fees and costs available under 42 U.S .C. § 300aa-15(e). In compliance with General Order #9, Petitioner incurred no out-of-pocket litigation expenses in proceeding on the petition.

Stipulation ¶ 9.

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner, and (with respect to the attorneys’ fees requested) to Petitioner and Petitioner’s counsel. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran Special Master