O'Leary v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-737V Filed: May 12, 2015 **************************** Michael O’Leary, * * Petitioner, * Stipulation; Influenza; v. * Guillain-Barre Syndrome (GBS); * Special Processing Unit (SPU); SECRETARY OF HEALTH * Awarding Damages; Attorney Fees AND HUMAN SERVICES, * and Costs * Respondent. * * **************************** Lawrence R. Cohen, Anapol Schwartz, Philadelphia, PA, for petitioner.

Claudia Barnes Gangi, United States Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1 Vowell, Special Master: On August 14, 2014, Michael O’Leary (“petitioner”) 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 alleged that, as a result of receiving an influenza vaccine on October 26, 2011, he suffered Guillain-Barre Syndrome (“GBS”) the residual effects of which lasted more than six months. (See Stipulation for Award, filed May 11, 2015, ¶¶ 1-4 (ECF No. 21).) Respondent denies that the influenza vaccination caused petitioner’s alleged shoulder injury or any other injury. (Id., ¶. 6.)

Because this unpublished ruling contains a reasoned explanation for the action in this case, it will be posted on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006).

Nevertheless, the parties have agreed to settle the case. On May 11, 2015, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.

Respondent agrees to pay petitioner: a. A lump sum of $140,000.00 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 b. A lump sum of $21,500.00 in the form of a check payable to petitioner and petitioner’s attorney, Lawrence R. Cohen, ANAPOL AND SCHWARTZ, 1710 Spruce Street, Philadelphia, PA, 19103, for attorneys’ fees and costs available under 42 U.S.C. § 300aa-15(e). (Id, ¶ 8.)

In accordance with General Order #9, petitioner’s counsel has separately indicated that petitioner incurred no out-of-pocket litigation expenses. (See informal communication docketed 5/12/2015.)

I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. 3 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. 4

IT IS SO ORDERED.

s/Denise K. Vowell Denise K. Vowell Special Master

3 The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). I find the proposed amount to be reasonable.

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

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