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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-788V
Filed: April 24, 2015
Unpublished
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CHERYL SIMMONS, *
*
Petitioner, * Stipulation on Damages;
* Influenza (“Flu”) Vaccine; Shoulder
* Injury; Special Processing Unit (“SPU”)
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Paul R. Brazil, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner.
Lara Ann Englund, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION AWARDING DAMAGES AND ATTORNEYS’ FEES
AND COSTS1
Vowell, Chief Special Master:
On August 29, 2014, Cheryl Simmons 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 alleges that she suffered a shoulder injury that
was caused-in-fact by her influenza [“flu”] vaccination administered on September 22,
2011. Stipulation, filed April 23, 2015, ¶¶ 2, 4. Petitioner further alleges that she
experienced the residual effects of her injury for more than six months, has filed no
other action for this injury, and has received no prior award or settlement. Stipulation¶¶
4-5. Respondent denies that petitioner’s flu vaccine caused petitioner’s shoulder injury,
or any other injury or her current condition. Stipulation, ¶ 6.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I will post
it 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.
2
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 (2006).
Nevertheless, the parties have agreed to settle the case. Stipulation, ¶ 7. On
April 23, 2015, the parties filed a stipulation agreeing to settle this case and describing
the settlement terms.
The Stipulation also includes an award of attorneys’ fees and costs. Stipulation,
¶ 8(b). In accordance with General Order #9, petitioner’s counsel asserts that
petitioner incurred no out-of-pocket expenses. Id.
Respondent agrees to pay petitioner as follows:
a. lump sum of $50,000.00 in the form of a check payable to petitioner. Stipulation,
¶ 8(a). This amount represents compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a). Id.
b. lump sum of $14,750.00 in the form of a check payable to petitioner and
petitioner’s attorney, Paul R. Brazil. Stipulation, ¶ 8(b). This amount represents
compensation for all legal expenses that would be available under 42 U.S.C. §
300aa-15(e). Id.
I adopt the parties’ stipulation attached hereto, and award compensation in the
amount and on the terms set forth therein. 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.3
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
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.
2