Terry v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-774V Filed: November 13, 2015 * * * * * * * * * * * * * * * WILEY TERRY, * * Petitioner, * * v. * Joint Stipulation on Damages; Attorney * Fees and Costs; Influenza (Flu) Vaccine; SECRETARY OF HEALTH * Tdap Vaccine; MMR Vaccine; Polio AND HUMAN SERVICES, * Vaccine; Twinrix Vaccine; Brachial * Neuritis Respondent. * * * * * * * * * * * * * * * * * Anne Carrion Toale, Esq., Maglio Christopher and Toale, Sarasota, FL, for petitioner.

Justine E. Walters, Esq., US Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1 Roth, Special Master: Wiley Terry [“petitioner”] filed a petition for compensation under the National Vaccine Injury Compensation Program2 on August 25, 2014. Petitioner alleges that he developed an arm injury and/or brachial neuritis as a result of receiving Tdap, MMR, polio, influenza, and Twinrix immunizations on September 27, 2013. See Stipulation, filed November 13, 2015, at ¶¶ 1-4.

Respondent denies that the Tdap, MMR, polio, influenza, or Twinrix immunizations caused petitioner’s injury. Stipulation at ¶ 6.

Nevertheless, the parties have agreed to settle the case. On November 13, 2015, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms.

Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in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), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Respondent agrees to issue the following payments: (1) A lump sum of $70,000.00 in the form of a check payable to petitioner, Wiley Terry. This amount represents compensation for all damages that would be available under § 300aa-15(a); and (2) A lump sum of $13,382.38 in the form of a check made payable to petitioner and petitioner’s attorney, Anne C. Toale, Esq. This amount represents all attorneys’ fees and costs available under § 300aa-15(e). Petitioner’s counsel represents that, in compliance with General Order #9, petitioner incurred no out-of-pocket expenses.

I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. Further, I find that the amount of stipulated fees is reasonable, and thus an award for fees and costs is appropriate pursuant to § 300aa-15(e)(1). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master

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