VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-01094 Package ID: USCOURTS-cofc-1_15-vv-01094 Petitioner: Bethany Zellmer-Cesnik Filed: 2015-12-16 Decided: 2016-04-27 Vaccine: influenza Vaccination date: 2014-09-23 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 75000 AI-assisted case summary: Bethany Zellmer-Cesnik filed a petition for compensation under the National Vaccine Injury Compensation Program on September 29, 2015, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) following her September 23, 2014 influenza vaccination. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on December 15, 2015, conceding that the petitioner was entitled to compensation. The respondent concluded that the petitioner suffered a non-Table injury of SIRVA, that the injury was causally related to the influenza vaccination, that no other cause for the SIRVA had been identified, that the condition had persisted for more than six months, and that all legal prerequisites for compensation under the Vaccine Act had been met. Based on the respondent's concession and the evidence, Chief Special Master Nora Beth Dorsey issued a ruling on entitlement on December 16, 2015, finding the petitioner entitled to compensation. Subsequently, on December 18, 2015, the parties filed a proffer on the award of compensation. The respondent proffered that the petitioner should be awarded a total lump sum of $75,000.00, representing all elements of compensation under 42 U.S.C. § 300aa-15(a), and the petitioner agreed. On April 27, 2016, Chief Special Master Dorsey issued a decision awarding damages, granting the petitioner a lump sum payment of $75,000.00, payable to Bethany Zellmer-Cesnik. Additionally, on December 17, 2015, the parties filed a stipulation of fact concerning attorneys' fees and costs, agreeing to an award of $12,000.00. Petitioner's counsel, Paul Brazil of Muller Brazil, LLP, represented that the petitioner incurred no out-of-pocket expenses. On April 27, 2016, Chief Special Master Dorsey issued a decision on attorneys' fees and costs, granting the stipulated amount of $12,000.00, payable jointly to the petitioner and her counsel, Paul Brazil. The respondent was represented by Douglas Ross of the U.S. Department of Justice. Theory of causation field: Petitioner Bethany Zellmer-Cesnik alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) following an influenza vaccination on September 23, 2014. The respondent conceded that the injury was a non-Table SIRVA and was causally related to the vaccination, with no other identified cause. The public decision does not describe the specific onset, symptoms, medical tests, treatments, or expert testimony. The case resulted in a concession of entitlement and an award of $75,000.00 in damages, plus $12,000.00 for attorneys' fees and costs, totaling $87,000.00. The decision was issued by Chief Special Master Nora Beth Dorsey on April 27, 2016. Petitioner was represented by Paul Brazil (Muller Brazil, LLP) and respondent by Douglas Ross (U.S. Department of Justice). Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_15-vv-01094-0 Date issued/filed: 2016-04-27 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 12/16/2015) regarding 13 Ruling on Entitlement ( Signed by Chief Special Master Nora Beth Dorsey.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-01094-UNJ Document 25 Filed 04/27/16 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1094V Filed: December 16, 2015 Unpublished * * * * * * * * * * * * * * * * * * * * * * * * * * * * BETHANY ZELLMER-CESNIK, * * Petitioner, * Ruling on Entitlement; Concession; * Influenza; * Shoulder Injury (“SIRVA”); SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner. Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 Dorsey, Chief Special Master: On September 29, 2015, Petitioner 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 following receipt of her September 23, 2014 influenza vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 15, 2015, respondent filed her Rule 4(c) report in which she concedes that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent “has concluded that petitioner suffered a non- Table injury of SIRVA [Shoulder Injury Related to Vaccine Administration] and that the preponderance of the medical evidence indicates that the injury was causally related to the flu vaccination she received on September 23, 2014. Id. at 4. Respondent further agrees that no other cause for petitioner’s SIRVA has been identified, that petitioner has 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned intends to 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, the undersigned agrees that the identified material fits within this definition, the undersigned 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 (2012). Case 1:15-vv-01094-UNJ Document 25 Filed 04/27/16 Page 2 of 2 suffered her condition for more than six months, and that petitioner has met all the legal prerequisites for compensation under the Vaccine Act. Id. In view of respondent’s concession and the evidence before me, the undersigned finds that petitioner is entitled to compensation. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_15-vv-01094-1 Date issued/filed: 2016-04-27 Pages: 4 Docket text: PUBLIC DECISION (Originally filed: 12/18/2015) regarding 18 DECISION Stipulation/Proffer ( Signed by Chief Special Master Nora Beth Dorsey.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-01094-UNJ Document 26 Filed 04/27/16 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1094V Filed: December 18, 2015 Unpublished * * * * * * * * * * * * * * * * * * * * * * * * * * * * BETHANY ZELLMER-CESNIK, * * Petitioner, * Damages Decision Based on Proffer; * Influenza; * Shoulder Injury (“SIRVA”); SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner. Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 Dorsey, Chief Special Master: On September 29, 2015, Petitioner 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 following receipt of her September 23, 2014 influenza vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 16, 2015, a ruling on entitlement was issued, finding petitioner entitled to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On December 18, 2015, respondent filed a proffer on award of compensation [“Proffer”] indicating petitioner should be awarded $75,000.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to 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, the undersigned agrees that the identified material fits within this definition, the undersigned 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 (2012). Case 1:15-vv-01094-UNJ Document 26 Filed 04/27/16 Page 2 of 4 award. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $75,000.00 in the form of a check payable to petitioner, Bethany Zellmer-Cesnik. This amount represents compensation for all damages that would be available under § 300aa-15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. Case 1:15-vv-01094-UNJ Document 26 Filed 04/27/16 Page 3 of 4 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * * * * * * * * * BETHANY ZELLMER, * * Petitioner, * * v. * No. 15-1094V (ECF) * CHIEF SPECIAL MASTER * NORA BETH DORSEY SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 16, 2015, the Chief Special Master found that a preponderance of the medical evidence indicates that petitioner suffered a shoulder injury related to vaccine administration (“SIRVA”), which was causally related to the flu vaccination she received on September 23, 2014. The parties have now addressed the amount of compensation to be awarded in this case. I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded a total lump sum of $75,000.00, which amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees. 1 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. Case 1:15-vv-01094-UNJ Document 26 Filed 04/27/16 Page 4 of 4 II. Form of the Award The parties recommend that the compensation provided to petitioner should be made through a lump sum payment of $75,000.00 in the form of a check payable to petitioner. Petitioner agrees. Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division GLENN A. MACLEOD Senior Trial Counsel Torts Branch, Civil Division /s/ DOUGLAS ROSS DOUGLAS ROSS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 616-3667 DATE: December 17, 2015 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_15-vv-01094-2 Date issued/filed: 2016-04-27 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 12/18/2015) regarding 19 DECISION Fees Stipulation/Proffer ( Signed by Chief Special Master Nora Beth Dorsey.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-01094-UNJ Document 27 Filed 04/27/16 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1094V Filed: December 18, 2015 UNPUBLISHED * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * BETHANY ZELLMER-CESNIK, * * Petitioner, * v. * * Attorneys’ Fees and Costs; Stipulation SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner. Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Dorsey, Chief Special Master: On September 29, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the “Vaccine Act”]. Petitioner alleged that she suffered a shoulder injury following receipt of an influenza vaccine. On December 18, 2015, the undersigned issued a decision awarding compensation to petitioner based on respondent’s proffer. On December 17, 2015, the parties filed a Stipulation of Fact Concerning Attorneys’ Fees and Costs. According to the stipulation, the parties stipulate to an award of $12,000.00. In accordance with General Order #9, petitioner’s counsel represents that petitioner incurred no out-of-pocket expenses. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to 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, the undersigned agrees that the identified material fits within this definition, the undersigned 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 (2012). Case 1:15-vv-01094-UNJ Document 27 Filed 04/27/16 Page 2 of 2 The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). Based on the reasonableness of petitioner’s request and the lack of any objection by respondent, the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs. Accordingly, the undersigned awards the total of $12,000.003 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Paul Brazil. The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir.1991). 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.