DECISION AWARDING DAMAGES AND ATTORNEYS' FEES AND COSTS1
LAURA D. MILLMAN, Special Master.
On May 19, 2014, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Petitioner alleges that he suffered from brachial neuritis ("BN") as a result of his receipt of influenza ("flu") vaccine on October 9, 2009. Petitioner further alleges that he suffered the residual effects of this injury for more than six months. Respondent denies that petitioner's BN or any other injury was caused by the flu vaccine. Nonetheless, the parties agreed to resolve this matter informally.
The court finds the terms of the stipulation to be reasonable, hereby adopts the parties' stipulation, and awards compensation in the amount and on the terms set forth therein. Pursuant to the stipulation, the court awards $49.52 for reimbursement of the State of Michigan's Medicaid lien and $465,000.00 for reimbursement for damages.
The parties have also agreed on an appropriate amount for attorneys' fees and costs in this case. In accordance with General Order #9, petitioner asserts that he did not incur out-of-pocket expenses in pursuit of his petition. Petitioner requests $25,000.00 in attorneys' fees and costs for petitioner's current attorney, Edward Kraus, and $7,500.00 in attorneys' fees and costs for petitioner's former counsel, McKeen & Associates. Respondent does not object to these amounts. The undersigned finds these amounts to be reasonable.
Accordingly, the court awards:
a. a lump sum of $49.52, for reimbursement of the State of Michigan's Medicaid lien. The award shall be in the form of a check payable jointly to petitioner and
First Recovery Group, LLC
26899 Northwester Hwy., Suite 250
Southfield, MI 28033
Attn.: John Lysz.
Petitioner agrees to endorse this payment to First Recovery Group, LLC; and
b. a lump sum of $465,000.00, representing compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a) (2006). The award shall be in the form of a check payable to petitioner; and
c. a lump sum of $25,000.00, representing reimbursement for Edward Kraus's attorneys' fees and costs. The award shall be in the form of a check payable jointly to petitioner and Law Offices of Chicago Kent; and
d. a lump sum of $7,500.00, representing reimbursement for McKeen & Associates' attorneys' fees and costs. The award shall be in the form of a check payable jointly to petitioner and McKeen & Associates.
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.2
IT IS SO ORDERED.
STIPULATION
1. Gabriel Vina-Quintana ("petitioner") filed a petition for vaccine compensation under the National Vaccine injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). Petitioner seeks compensation for injuries allegedly related to his receipt of an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received his flu vaccine on October 9, 2009,
3. The vaccine was administered within the United States,
4. Petitioner alleges that he sustained a vaccine-related injury diagnosed as Brachial Neuritis ("BN") that was caused-in-fact by the flu vaccine, and that he experienced the residual effects of that injury for over six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of his condition.
6. Respondent denies that the, flu vaccine caused petitioner's BN or any other injury,
7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. .§ 300aa-2E(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payments:
a. A lump sum of $49.52, for reimbursement of the State of Michigan's Medicaid Lien, in the form of a check payable jointly to petitioner and
First Recovery Group, LLC
26899 Northwester Hwy., Suite 250
Southfield, MI 28033
Attn.: John Lysz
Petitioner agrees to endorse this payment to First Recovery Group, LLC.
b. A lump sum of $465,000,00 in the form of a check payable to petitioner, This amount represents compensation for damages that would be available under 42 U.S.C. § 300aa-15(a).
c. A lump sum of $25,000.00 in the form of a check payable jointly to petitioner and petitioner's attorney, Edward Kraus, and a lump sum of $7,500.00 in the form of a check payable jointly to petitioner and petitioner's former attorneys McKeen & Associates 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,
9. Petitioner and his attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a pre-paid basis.
10. Payments made pursuant to paragraph 8 of this Stipulation will he made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds.
11. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation, will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).
12. In return for the payments described in paragraph 8, petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on October 9, 2009, as alleged by petitioner in a petition for vaccine compensation filed on or about September 12, 2011, in the United States Court of Federal Claims as petition No. 11-585V.
13. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties,
14. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement mid this Stipulation shall be voidable at the sole discretion of either party.
15. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement.
16. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the petitioner's BN or any other injuries were caused-in-fact by the flu vaccine.
17. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns.
