Daniels v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-461V (Not to be published) ***************************** * JEANNE DANIELS, * Filed: March 26, 2015 * Petitioner, * * Decision by Stipulation; Damages; v. * Attorney’s Fees and Costs; * Influenza (“Flu”) Vaccine; SECRETARY OF HEALTH AND * Tetanus-Diphtheria-Acellular HUMAN SERVICES, * Pertussis (“Tdap”); Gastrointestinal Respondent. * (“GI”) Problems; Rheumatological * Symptoms ***************************** Carol Gallagher, Carol L. Gallagher, Esquire, LLC, Linwood, NJ, for Petitioner.

Lisa Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES AND ATTORNEY’S FEES AND COSTS1 On June 2, 2014, Jeanne Daniels filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving the influenza (“flu”) and tetanus-diphtheria-acellular pertussis (“Tdap”) vaccines on January 15, 2013, she suffered from an autoimmune response including, but not limited to, gastrointestinal (“GI”) problems and rheumatological symptoms that lasted for more than six months.

Respondent denies that the Tdap vaccine or flu vaccine caused Petitioner’s alleged GI problems, rheumatologic symptoms, or any other injury, and further denies that Petitioner’s current disabilities are sequelae of a vaccine-related injury. Nonetheless both parties, while maintaining Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, 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)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the public. Id. The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 to 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to § 300aa of the Act. their above-stated positions, agreed in a stipulation (filed March 25, 2015) that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation.

In a separate stipulation (filed on March 12, 2015), the parties indicated that they had reached an agreement regarding attorney’s fees and costs. The stipulation laid out the amount of compensation that should be awarded to Petitioner’s attorney in the form of a check made payable jointly to Petitioner and Petitioner’s counsel. This included reimbursement for attorney’s fees in the amount of $21,695.00 and attorney’s costs in the amount of $585.49. Pursuant to General Order #9, the stipulation also indicated that Petitioner had expended $57.90 in costs in proceeding on the petition for which she claims reimbursement.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulations are reasonable. I therefore adopt them as my decision in awarding damages, and attorneys’ fees and costs, on the terms set forth therein.

The stipulations award:  A lump sum of $75,000.00 in the form of a check payable to Petitioner. The amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Damages Stipulation (ECF No. 25) ¶ 8; and  A lump sum of $22,338.39 in the form of a check payable jointly to Petitioner and Petitioner’s attorney, Carol Gallagher, Esq. for attorney’s fees and costs available under 42 U.S.C. § 300aa-15(e). Stipulation of Facts Concerning Attorneys’ Fees and Costs (ECF No. 23) ¶¶ 3-4.

I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. 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

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.