Simmons v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 14-788V

Filed: April 24, 2015

Unpublished

**************************** CHERYL SIMMONS, *

*

Petitioner, * Stipulation on Damages;

* Influenza (“Flu”) Vaccine; Shoulder * Injury; Special Processing Unit (“SPU”)

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

**************************** Paul R. Brazil, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner. Lara Ann Englund, Esq., US Department of Justice, Washington, DC, for respondent.

DECISION ON STIPULATION AWARDING DAMAGES AND ATTORNEYS’ FEES

AND COSTS1 Vowell, Chief Special Master:

On August 29, 2014, Cheryl Simmons filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,2 [the “Vaccine Act” or “Program”]. Petitioner alleges that she suffered a shoulder injury that was caused-in-fact by her influenza [“flu”] vaccination administered on September 22, 2011. Stipulation, filed April 23, 2015, ¶¶ 2, 4. Petitioner further alleges that she experienced the residual effects of her injury for more than six months, has filed no other action for this injury, and has received no prior award or settlement. Stipulation¶¶ 4-5. Respondent denies that petitioner’s flu vaccine caused petitioner’s shoulder injury, or any other injury or her current condition. Stipulation, ¶ 6.

Nevertheless, the parties have agreed to settle the case. Stipulation, ¶ 7. On April 23, 2015, the parties filed a stipulation agreeing to settle this case and describing the settlement terms.

The Stipulation also includes an award of attorneys’ fees and costs. Stipulation, ¶ 8(b). In accordance with General Order #9, petitioner’s counsel asserts that petitioner incurred no out-of-pocket expenses. Id.

Respondent agrees to pay petitioner as follows: a. lump sum of $50,000.00 in the form of a check payable to petitioner. Stipulation,

¶ 8(a). This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Id.

b. lump sum of $14,750.00 in the form of a check payable to petitioner and petitioner’s attorney, Paul R. Brazil. Stipulation, ¶ 8(b). This amount represents compensation for all legal expenses that would be available under 42 U.S.C. § 300aa-15(e). Id. I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 s/Denise K. Vowell Denise K. Vowell Chief Special Master