Colvis v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-841V
Filed: January 14, 2015
* * * * * * * * * * * * * * * * UNPUBLISHED
BRAD COLVIS, *
* Special Master Gowen
Petitioner, *
* Joint Stipulation on Damages and
v. * Attorneys’ Fees and Costs
* Influenza (“Flu”) Vaccine;
SECRETARY OF HEALTH * Acute Necrotizing Myopathy;
AND HUMAN SERVICES, * Polymyositis
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Matthew J. Devoti, Casey & Devoti, P.C., Saint Louis, MO, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On October 28, 2013, Brad Colvis (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged
that as a result of receiving an influenza (“flu”) vaccine on or about November 16, 2010, he
developed an acute necrotizing myopathy, polymyositis and related sequelae. Stipulation ¶ 2, 4,
filed Jan. 14, 2015. Further, petitioner alleged that he experienced residual effects of this injury
for more than six months. Id. at ¶ 4.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling 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
Vaccine Rule 18(b), each party has 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).
2
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) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
On January 14, 2015, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation. Respondent denies that the flu vaccination caused
petitioner’s alleged acute necrotizing myopathy, polymyositis, and/or any other injury. Id. at ¶ 6.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court in
awarding damages, on the terms set forth therein.
The parties also stipulate to an award of attorneys’ fees and costs. The parties agree to a
total award of attorneys’ fees and costs in the amount of $35,853.00. In accordance with General
Order #9, petitioner represents that he advanced no reimbursable costs in pursuit of his claim. Id.
at ¶ 8(c). The undersigned finds the stipulation for fees and costs reasonable and adopts it as the
decision of the Court.
The parties stipulate that petitioner shall receive the following compensation:
a) An amount sufficient to purchase an annuity contract to provide the benefits
described in Paragraph 10 of the attached joint stipulation, to be paid to a life
insurance company meeting the criteria described in Paragraph 9.
b) A lump sum of $643,053.00, in the form of a check payable to petitioner, Brad
Colvis. This amount represents compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a).
c) A lump sum of $35,853.00, in the form of a check jointly payable to petitioner
and to petitioner’s attorney, Matthew J. Devoti, Esq., pursuant to 42 U.S.C. §
300 aa-15(e), for attorneys’ fees and costs.
Id. at ¶ 8.
The undersigned approves the requested amount for petitioner’s compensation and
attorneys’ fees and costs. Accordingly, the clerk of the court SHALL ENTER JUDGMENT in
accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2