Thibodeaux v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-891V Filed: February 19, 2015 Not for Publication

************************************* MERYL THIBODEAUX, * * Petitioner, * Damages decision based on * stipulation; influenza (flu) vaccine; v. * arm pain; vomiting; nausea; tinnitus; * vertigo; dizziness; loss of SECRETARY OF HEALTH * equilibrium; bruising; falling; AND HUMAN SERVICES, * hearing loss; fees and costs * decision based on stipulation Respondent. * * * ************************************* Michael L. Cave, Baton Rouge, LA, for petitioner.

Debra A. Filteau Begley, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS 1 On February 19, 2015, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Petitioner alleges that she developed arm pain, vomiting, nausea, tinnitus, vertigo, dizziness, loss of equilibrium, bruising (from falling), and hearing loss as a result of her receipt of influenza (“flu”) vaccine on November 15, 2010.

Petitioner further alleges that she suffered the residual effects of these injuries for more than six months.

Because this unpublished decision contains a reasoned explanation for the special master’s action in this case, the special master intends to post this unpublished decision on the United States Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document=s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall redact such material from public access.

Respondent denies that the flu vaccine caused petitioner’s arm pain, vomiting, nausea, tinnitus, vertigo, dizziness, loss of equilibrium, bruising (from falling), and hearing loss, or any other condition, and further denies that petitioner suffered the residual effects of these injuries, except for hearing loss, for more than six months. Nonetheless, the parties agreed to resolve this matter informally.

The court finds the terms of the stipulation to be reasonable, hereby adopts the parties’ stipulation, and awards compensation in the amount and on the terms set forth therein. Pursuant to the attached stipulation, the court awards $20,000.00 for reimbursement for all damages that would be available under 42 U.S.C. § 300aa-15(a) (2006).

The parties have also agreed on an appropriate amount for attorneys’ fees and costs in this case. In accordance with General Order #9, petitioner asserts that she did not incur out-of- pocket expenses in pursuit of her petition. Petitioner requests $7,500.00 in attorneys’ fees and costs. Respondent does not object to this amount. The undersigned finds this amount to be reasonable.

Accordingly, the court awards: a. a lump sum of $20,000.00, representing compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). The award shall be in the form of a check made payable to petitioner in the amount of $20,000.00; and b. a lump sum of $7,500.00, representing reimbursement for attorneys’ fees and costs.

The award shall be in the form of a check made payable jointly to petitioner and Cave Law Firm, L.L.C. in the amount of $7,500.00.

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.2

IT IS SO ORDERED.

Dated: February 19, 2015 /s/ Laura D. Millman Laura D. Millman Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review.