Gal v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-0739V Filed: February 8, 2016 Unpublished **************************** NINEBETH GAL, * * Joint Stipulation on Damages; Petitioner, * Influenza (“flu”) Vaccine; Shoulder * Injury; Attorneys’ Fees and Costs; * Special Processing Unit (“SPU”) SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * **************************** Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner.

Lisa A. Watts, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION 1 Dorsey, Chief Special Master: On July 16, 2015, Ninebeth Gal (“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”). Petitioner alleges that she developed a left shoulder injury due to the receipt of an influenza (“flu”) vaccine on December 21, 2012. Petition at 1; Stipulation, filed Feb. 8, 2016, at ¶¶ 1, 2, 4. Petitioner further alleges she suffered the effects of this injury for at least six months. Pet. at ¶ 21; Stip. at ¶ 4. Respondent denies that the flu vaccine caused petitioner’s alleged left shoulder injury, or any other injury, and further denies that petitioner’s current disabilities are sequelae of a vaccine- related injury. Stip. at ¶ 6.

Nevertheless, on February 8, 2016, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of Electronic Government Services). 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2National 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). finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Additionally, the parties stipulated to an award of attorneys’ fees and costs. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. Based on the reasonableness of petitioner’s request and the lack of any objection by respondent, the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs.

The parties stipulated that petitioner shall receive the following compensation: A. A lump sum payment of $95,000.00 in the form of a check payable to petitioner, Ninebeth Gal. Stip. at ¶ 8. This amount represents compensation for all items of damages that would be available under 42 U.S.C. § 300aa-15(a).

B. A lump sum payment of $8,428.00 3 in the form of a check payable to petitioner and petitioner’s attorney, Jeffrey S. Pop, for attorneys’ fees and costs available under 42 U.S.C. § 300aa-15(e); and in compliance with General Order #9, no out-of-pocket expenses were incurred by petitioner in proceeding on the petition. Id. The undersigned approves the requested amount for petitioner’s compensation.

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/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.

Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir. 1991).

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