Turiano v. Secretary of Health and Human Services

United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-803V
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*
MARGARET TURIANO, *
*
Petitioner, *
* Filed: September 22, 2014
v. *
* Damages Decision based on
SECRETARY OF HEALTH AND * Stipulation; influenza (flu) vaccine;
HUMAN SERVICES, * shoulder injury related to vaccine
* administration (SIRVA)
Respondent. *
*
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Paul R. Brazil, Muller Brazil, LLP, Philadelphia, PA, for Petitioner.
Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES1
On October 15, 2013, Margaret Turiano filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that
she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of
receiving the influenza ("flu") vaccine on or about January 23, 2013.
On September 19, 2014, the parties filed a stipulation indicating that this case can be
settled and that a decision should be entered awarding Petitioner compensation. As the
1
Because this decision contains a reasoned explanation for my action in this case, I will 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)). As provided by 42
U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of
confidential information. Specifically, under 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). Otherwise, the whole decision will
be available to the public. Id.
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.A. ' 300aa-10-34 (2006))
[hereinafter “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.
stipulation indicates, the parties agree that Petitioner suffered a SIRVA from the administration
of the flu vaccine. Likewise, the parties agree that there is not a preponderance of evidence
demonstrating that Petitioner’s condition is due to a factor unrelated to her January 23, 2013
vaccination. The other elements of eligibility for compensation have also been established. See
42 U.S.C. § 300aa—11(c), 13. Consequently, the stipulation states that “[P]etitioner is entitled to
compensation.” Stipulation ¶ 8.
The stipulation also indicated that the parties had reached an agreement regarding
attorneys’ fees and costs. The stipulation laid out the amount of compensation that should be
awarded to Petitioner’s attorney in a check made payable jointly to Petitioner and Petitioner’s
counsel. It also indicated that no out-of-pocket litigation related costs had been incurred by
Petitioner.
I have reviewed the file, and based upon that review, I conclude that the parties’
stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms
set forth therein.
The stipulation awards:
A lump sum of $80,000.00, 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).
A lump sum of $15,500.00, in the form of a check payable jointly to Petitioner and
Petitioner's attorney, Paul R. Brazil, for attorneys’ fees and costs available under
42 U.S .C. § 300aa-15(e). In compliance with General Order #9, Petitioner
incurred no out-of-pocket litigation expenses in proceeding on the petition.
Stipulation ¶ 9.
I approve a Vaccine Program award in the requested amount set forth above to be made
to Petitioner, and (with respect to the attorneys’ fees requested) to Petitioner and Petitioner’s
counsel. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by both (either separately or jointly)
filing a notice renouncing their right to seek review.
2