Judith Morgan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-160V
Filed: April 30, 2013
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JUDITH MORGAN, * NOT TO BE PUBLISHED
*
Petitioner, * Special Master Zane
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v. * Stipulation; influenza (flu) vaccine;
* Diptheria-Tetanus (“DT”) vaccine;
SECRETARY OF HEALTH * brachial plexopathy; attorneys’ fees
AND HUMAN SERVICES, * and costs
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Respondent. *
*
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Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for Petitioner
Traci Patton, United States Dep’t of Justice, Washington, DC, for Respondent
UNPUBLISHED DECISION 1
On April 30, 2013, the parties in the above-captioned case filed a Stipulation
memorializing their agreement as to the appropriate amount of compensation in this case.
Petitioner alleged that she suffered from brachial plexopathy as a consequence of her receipt of
the influenza (“flu”) vaccine or Diptheria-Tetanus (“DT”) vaccine, which are vaccines contained
in the Vaccine Injury Table, 42 C.F.R § 100.3(a), and which she received on or about September
28, 2010. Petitioner alleges that she experienced the residual effects of this injury for more than
six months. Petitioner also represents that there have been no prior awards or settlement of a
1
Because this decision contains a reasoned explanation for the Special Master’s action in this
case, the Special Master intends to post it 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, 113 Stat. 2899,
2913 (Dec. 17, 2002). All decisions of the Special Master will be disclosed and made available
to the public unless they contain trade secret or commercial or financial information that is
privileged and confidential, or medical and similar files the disclosure of which would constitute
a clearly unwarranted invasion of privacy. When such a decision or designated substantive order
is filed, a party has 14 days to identify and to move to redact such information before the
document’s disclosure. If upon review of a timely-filed motion to redact along with which a
proposed redacted decision is submitted, the Special Master agrees that the identified material
fits within the categories listed above, the Special Master shall redact such material from the
decision made available to the public. 42 U.S.C. § 300aa-12 (d) (4); Vaccine Rule 18 (b). In the
absence of a motion or should the Special Master disagree with the proposed redactions, the
decision shall be disclosed in its entirety.
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civil action for these damages. Petitioner seeks compensation related to her injuries pursuant to
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 to 34.
Respondent denies that the flu vaccine or the DT vaccine caused Petitioner’s brachial
plexopathy or any other injury and denies that Petitioner’s current disabilities are sequelae of her
alleged vaccine-related injury. Nonetheless, the parties have agreed informally to resolve this
matter. Stipulation, Appendix A hereto. The court hereby ADOPTS the parties’ said
Stipulation, attached hereto as Appendix A, and awards compensation in the amount and on the
terms set forth therein.
Because Petitioner is being awarded compensation pursuant to this decision, Petitioner is
entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). In their
stipulation, the parties have agreed that an award of $16,000.00 in attorneys’ fees and costs
would be reasonable. Petitioner has represented that she personally has not incurred any
litigation costs. The undersigned finds that the amount requested is reasonable. In accordance
with 42 U.S.C. §§ 300aa–15(e), the undersigned awards the amount of attorneys’ fees and costs
to which Respondent has agreed.
Specifically, Petitioner is awarded:
1) a lump sum of $70,000.00, in the form of a check payable to Petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a); and
2) a lump sum of $16,000.00 in the form of a check payable jointly to petitioner and
petitioner’s attorney, Mark L. Krueger, for attorneys’ fees and costs awarded
pursuant to 42 U.S.C. §§ 300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this matter. In the
absence of a motion for review filed pursuant to RCFC, Appendix B, the Clerk is directed to
enter judgment accordingly. 2
IT IS SO ORDERED.
s/Daria J. Zane
Daria J. Zane
Special Master
2
This document constitutes a final “decision” in this case pursuant to 42 U.S.C. § 300aa-
12(d)(3)(A). Unless a motion for review of this decision is filed within 30 days, the Clerk of the
Court shall enter judgment in accordance with this decision. Pursuant to Vaccine Rule 11(a), the
parties can expedite entry of judgment by each party filing a notice renouncing the right to seek
review by a United States Court of Federal Claims judge.
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