VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00222
Package ID: USCOURTS-cofc-1_19-vv-00222
Petitioner: Sandy Ginsberg
Filed: 2019-02-08
Decided: 2024-07-31
Vaccine: influenza
Vaccination date: 2017-01-09
Condition: left shoulder injury related to vaccine administration / off-Table shoulder injury
Outcome: compensated
Award amount USD: 40000

AI-assisted case summary:
On February 8, 2019, Sandy Ginsberg filed a petition alleging that an influenza vaccine administered in her left deltoid on January 9, 2017 caused a shoulder injury. She was 67 years old at vaccination and had no pre-vaccination history of left-shoulder or cervical symptoms.

Ms. Ginsberg reported severe left arm and shoulder pain beginning within 48 hours. On January 19, 2017, her primary-care provider recorded numbness and pain after the flu shot, with concern for neuropathy, radiculopathy, muscle spasm, and cervical strain. Physical therapy noted excruciating throbbing pain radiating from the arm toward the neck and hand, with difficulty dressing, doing her hair, and shelving books. Neurologist Dr. Singh later documented mild carpal tunnel syndrome and mild C6 cervical radiculopathy on EMG, and a cervical MRI showed degenerative changes. A May 2017 shoulder MRI showed full-thickness rotator cuff tears, biceps tenosynovitis, effusion, and AC arthrosis; a later MRI showed tendinosis, partial tearing, and bursitis.

Petitioner's expert, Dr. Naveed Natanzi, opined that the vaccine caused bursitis and made underlying rotator cuff pathology symptomatic. Respondent's experts, orthopedist Dr. Paul Cagle and neurologist Dr. Brian Callaghan, emphasized cervical radiculopathy, degenerative rotator cuff tearing, and age-related shoulder disease. Special Master Moran denied the on-Table SIRVA claim because cervical radiculopathy was an exclusionary condition, but he found that Ms. Ginsberg proved an off-Table shoulder injury caused by the flu vaccine. He awarded $40,000.00 for past pain and suffering and no future pain and suffering, lost earnings, or unreimbursed expenses.

A later 2025 Court of Federal Claims opinion concerned attorneys' fees and costs, not additional injury compensation. Judge Carolyn N. Lerner affirmed most fee reductions but remanded the expert hourly-rate calculation.

Theory of causation field:
Influenza vaccine January 9, 2017 at age 67 causing off-Table left shoulder injury. COMPENSATED. Onset within 48 hours: severe left arm/shoulder pain, PT functional deficits; records later showed cervical radiculopathy, rotator cuff tears/tendinosis, bursitis. Petitioner expert Dr. Naveed Natanzi: vaccine caused bursitis and symptomized rotator cuff pathology. Respondent experts Dr. Paul Cagle and Dr. Brian Callaghan: cervical radiculopathy/degenerative shoulder disease. SM Moran denied Table SIRVA due cervical radiculopathy exclusion but granted off-Table causation and awarded $40,000 pain/suffering on July 31, 2024. Later 2025 opinion addressed fees only.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00222-0
Date issued/filed: 2024-08-22
Pages: 22
Docket text: PUBLIC DECISION (Originally filed: 7/31/24) regarding 119 DECISION of Special Master, Signed by Special Master Christian J. Moran. (ceo) Service on parties made.
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Case 1:19-vv-00222-CNL Document 123 Filed 08/22/24 Page 1 of 22
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * *
SANDY GINSBERG, *
* No. 19-222V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: July 31, 2024
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * *
Amy Senerth, Muller Brazil, Dresher, PA, for petitioner;
Elizabeth Andary, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION AWARDING COMPENSATION1
Sandy Ginsberg alleged that the influenza (“flu”) vaccine damaged her left
shoulder. She alleged both an on-Table claim that the vaccine caused her to suffer
a left shoulder injury related to vaccine administration (“SIRVA”) and an off-Table
claim that the vaccine was the cause-in-fact of her shoulder problem. Am. Pet.,
filed Oct. 29, 2021. The Secretary disputed this allegation, contending that Ms.
Ginsberg failed to either establish that her SIRVA was a Table injury or
demonstrate that the flu vaccine caused-in-fact her left shoulder injury. Am.
Resp’t’s Rep., filed Nov. 22, 2021. The Secretary claimed that she, instead,
suffered from cervical radiculopathy and age-related tears in her rotator cuff. Id.
The parties developed their positions by presenting expert reports, arguing through
1 Because this Decision contains a reasoned explanation for the action taken in this case,
it must be made publicly accessible and will be posted on the United States Court of Federal
Claims’ website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. Any changes will appear in the
document posted on the website.

Case 1:19-vv-00222-CNL Document 123 Filed 08/22/24 Page 2 of 22
legal memoranda, and presenting oral testimony. Ms. Ginsberg’s expert is Dr.
Natanzi. The Secretary’s experts are Dr. Callaghan and Dr. Cagle.
For the reasons explained below, the evidence preponderates in favor of
finding that Ms. Ginsberg established that the flu vaccine harmed her. A
reasonable amount of compensation for this injury is $40,000.
I. Facts
A. Before Vaccination
Ms. Ginsberg was born in 1949. Before receiving the flu vaccine, she had a
history of pain in her lower back and entire right lower extremity (right hip, right
thigh and buttocks). Exhibit 5 at 2. She described the pain in all extremity
locations as “aching, gnawing, and shooting.” Id. From April 4, 2016 to June 13,
2016, she attended nine physical therapy sessions for her right hip. Exhibit 2 at 1-
49. The medical records from 2015 and 2016 do not indicate any left shoulder
pain or cervical spine issues. See Exhibit 5; Exhibit 2; see also Tr. 14, 104, 355.
She was 67 years old in January 2017 when she received the vaccination.
She was relatively active, working part-time as a clerk in a library and exercising at
a gym about two times per week. Tr. 13, 39, 64-65.
B. Vaccination
Ms. Ginsberg received the flu vaccine in her left deltoid on January 9, 2017.
Exhibit 1. She recalled that during the administration of the vaccine, she was
sitting and the administrator may have been standing. Tr. 14-15.
Ms. Ginsberg’s shoulder pain developed within 48 hours of her vaccination.
Tentative Finding, issued June 12, 2023. The evening of the vaccination, Ms.
Ginsberg rated her pain as an “8” and then increased to a “10” in the days that
followed. Tr. 15-16. She took some left-over pain medication, but the pain was so
excruciating that her sleep was disrupted. Tr. 16-17, 55.
C. January 19, 2017: Dr. Ionescu
Medical Records
On January 19, 2017, Ms. Ginsberg saw her usual doctor at All Family
Medicine, Dr. Danita Ionescu, and complained of numbness and pain in her left
arm after receiving the flu vaccine ten days ago. Exhibit 42 (Dr. Ionescu’s medical
record); Exhibit 43 (transcript of Dr. Ionescu’s medical record). Dr. Ionescu noted
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that Ms. Ginsberg was concerned with a clot in her left arm and Dr. Ionescu
observed that “her pain comes from the cervical spine on exertion.” Id. Dr.
Ionescu also noted: “Walked in, had flu shot and concerned she should sue (No
reason), Million hearts, Doppler [left] arm – [negative] for [deep vein thrombosis],
Osteoporosis, Neuropathy/Radiculopathy, Muscle Spasm, Cervical Strain,
Flex[e]ril 10mg QHS, Naproxen 500 mg bid, Send for PT, Next visit – chronic
conditions.” Id.2
Ms. Ginsberg’s Testimony
Ms. Ginsberg sought treatment from Dr. Ionescu. In her opinion, Dr.
Ionescu is a good listener. Tr. 71.
Ms. Ginsberg told Dr. Ionescu about the flu shot and that pain in her arm
was radiating to her neck. Tr. 19. She remembers more pain than numbness. Tr.
41. Ms. Ginsberg did not recall Dr. Ionescu physically examining her shoulder or
neck, but Dr. Ionescu might have touched her. Tr. 21, 43. Dr. Ionescu referred
Ms. Ginsberg for physical therapy. Tr. 43.
Expert Commentary
Dr. Natanzi
During Ms. Ginsberg’s direct examination, she elicited relatively little
testimony from Dr. Natanzi. Thus, most of Dr. Natanzi’s testimony about Ms.
Ginsberg’s visit with Dr. Ionescu was during cross-examination.
Dr. Natanzi acknowledged that Dr. Ionescu’s record does not refer to Ms.
Ginsberg’s arm being red or being swollen. Tr. 152. Dr. Natanzi similarly agreed
that Dr. Ionescu’s note does not suggest an acute trauma. Tr. 153, 197. This lack
of external signs did not concern Dr. Natanzi. In his view, when people suffer
shoulder injuries induced by vaccine administration, their arms do not look
abnormal. Tr. 154. Dr. Natanzi has not opined that the flu vaccine caused Ms.
Ginsberg to suffer cellulitis or an injury that would cause warmth or swelling. Tr.
153.
2 A left upper extremity arterial duplex sonography from that day showed mild
atherosclerotic plaguing. Exhibit 11 at 5. The interpreting physician concluded that the arterial
study was normal. Id. According to the experts, searching for a blood clot was reasonable. Tr.
134 (Dr. Natanzi), 349 (Dr. Cagle).
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Dr. Callaghan
Dr. Callaghan testified that Dr. Ionescu’s record discusses numbness, which
is associated with cervical radiculopathy. It does not discuss shoulder pathology.
Tr. 259.
Dr. Cagle
Like Dr. Natanzi, Dr. Cagle’s testimony about Dr. Ionescu’s medical record
came on cross-examination. In this context, Dr. Cagle acknowledged that Dr.
Ionescu’s medical record does not contain a line stating that she examined Ms.
Ginsberg’s shoulder. Tr. 351-53. However, Dr. Cagle remarked that Dr. Ionescu’s
record states that Ms. Ginsberg’s “pain comes from the cervical spine.” Tr. 352;
see also Exhibit 43 at 2.
Dr. Cagle testified that based upon his research, a person with a shoulder
injury due to vaccination often seeks treatment within the first two weeks after the
vaccination. Tr. 398-99; see also Exhibit A-7. (Cagle, Shoulder Injury after
Vaccination: A Systematic Review). Thus, Ms. Ginsberg’s presentation within 10
days of the vaccination did not concern him. Tr. 398.
D. Physical Therapy
Medical Records
On January 24, 2017, Lori Karchinski, a physical therapist, evaluated Ms.
Ginsberg’s cervical radiculopathy and shoulder pain. Exhibit 2 at 52. Ms.
Ginsberg reported that she has had “excruciating throbbing pain in her arm
radiating to her neck and down into her hand” since her flu vaccine and suspected
the pain was secondary to getting a flu shot. Id. at 52, 53. Ms. Ginsberg reported
that she had difficulty dressing herself and was unable to shelve books in the
library. Id. The results of the Hawkins-Kennedy and “empty can” tests were
negative. Id. at 55. The Hawkins-Kennedy test (sometimes referred to as just the
“Hawkins test”) is an impingement test where the back of the shoulder is stabilized
and the arm is moved to cause an internal rotation. The movement causes the
rotator cuff and bursa to be pinched under the bone. If there is anything wrong, the
test will cause pain. Tr. 212-23.
The empty can test traditionally involves putting the arm in a position as if
one is emptying a can, and then somebody resists the upward force to test the
supraspinatus tendon. A tearing of the supraspinatus and infraspinatus would be
expected to yield a positive empty can test. Tr. 119. Ms. Karchinski stated that
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Ms. Ginsberg had “signs and symptoms consistent with a diagnosis of cervical
[radiculopathy] and left shoulder pain” and recommended “skilled physical
therapy” three times a week for four weeks.3 Id. at 55, 57.
Ms. Ginsberg’s Testimony
Ms. Ginsberg had received care from Ms. Katchinski when Ms. Ginsberg
had her hip treated. Tr. 44. Ms. Ginsberg felt comfortable being honest with her.
Id.
In the subjective account, Ms. Katchinski memorialized that Ms. Ginsberg
“reports date of injury to be 1/16/17.” Exhibit 2 at 52. However, Ms. Ginsberg did
not recall providing that information. Tr. 23. Ms. Ginsberg did recall telling Ms.
Katchinski that the “mechanism of injury was secondary to getting flu shot.”
Exhibit 2 at 52; see also Tr. 23.
Ms. Ginsberg agreed that the document reflects that she was having pain in
her left shoulder. Tr. 23; see also Exhibit 2 at 52. Ms. Ginsberg recalled that much
of the physical therapy was for her neck, not her shoulder. Id. at 25. She stopped
attending physical therapy on February 7, 2017. Exhibit 2 at 73. Ms. Ginsberg
stated that she believed the physical therapy on her neck was not helping with the
shoulder pain. Tr. 25.
Expert Commentary
Dr. Natanzi
A portion of the cross-examination of Dr. Natanzi focused on differences
between Ms. Katchinski’s records and Dr. Natanzi’s recitation of those records.
See Tr. 155-58. For example, Ms. Katchinski wrote that Ms. Ginsberg “reports
getting a flu shot on 1/16/17 and since then has had excruciating throbbing pain in
her arm radiating to her neck and down into her hand.” Exhibit 2 at 58. However,
Dr. Natanzi’s summary of this portion of the record says, “Pain in neck and
shoulder since the flu shot.” Exhibit 19 at 2. The Secretary, therefore, questioned
why Dr. Natanzi had omitted the portion of Ms. Katchinski’s physical therapy
record documenting “pain in her arm radiating to her neck and down into her
3 It appears that Ms. Ginsberg did not attend all the recommended physical therapy
sessions. A February 7, 2017 medical record indicated that Ms. Ginsberg was not interested in
continuing physical therapy because she felt that it was not appropriate for her injury. Exhibit 2
at 75.
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hand.” Tr. 158. The Secretary suggested that “radiating pain” was consistent with
a cervical radiculopathy. Id. Dr. Natanzi defended the format of his report by
pointing out that he expressed his opinion regarding cervical radiculopathy in
another portion of his report.
On redirect examination, Dr. Natanzi discussed Ms. Katchinski’s range of
motion testing in both shoulders and neck. The active range of motion for Ms.
Ginsberg’s cervical spine showed some decreases with the decreases being the
same on the left and right side. Tr. 229; see also Exhibit 2 at 53-54. Dr. Natanzi
opined that this equivalence is inconsistent with a cervical radiculopathy. Tr. 229.
In contrast, the active range of motion testing for Ms. Ginsberg’s shoulders
showed movements with pain on only the left side. Tr. 229; see also Exhibit 2 at
54. A similar result occurred with the manual muscle test of the right and left
shoulders. Ms. Ginsberg was weaker on her left side. Tr. 230; see also Exhibit 2
at 54.
On re-cross examination, the Secretary asked Dr. Natanzi about a different
pair of tests. Ms. Katchinski recorded that Ms. Ginsberg’s Hawkins-Kennedy and
empty can tests were negative. Exhibit 2 at 55. Dr. Natanzi could not explain why
these results were negative. Tr. 234. The Secretary suggested that a potential lack
of accuracy in administering these tests could imply a lack of accuracy in the range
of motion testing. Id.
Dr. Callaghan
In Dr. Callaghan’s direct testimony, he emphasized that Ms. Ginsberg
reported pain was radiating into the hand and up to the neck. Tr. 273, discussing
Exhibit 2 at 52. This presentation is “typical” for cervical radiculopathy according
to Dr. Callaghan. Id. Cervical radiculopathy was also the diagnosis of the physical
therapist. Id., citing Exhibit 2 at 52.
Ms. Ginsberg reported symptoms consistent with cervical radiculopathy.
The quality of pain was listed as throbbing, not burning or numbness. Tr. 274; see
also Exhibit 2 at 53. Ms. Ginsberg told the physical therapist that she was having
difficulty getting dressed, doing her hair, and shelving books at the library. Exhibit
2 at 53. These are consistent with cervical radiculopathy. Tr. 275.
Dr. Callaghan also discussed the range of motion findings. These showed
equal, but restricted, movements. Tr. 275.
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Dr. Callaghan acknowledged that some portions of Ms. Ginsberg’s
experience with the physical therapist were not consistent with cervical
radiculopathy. For example, the referral for physical therapy stated that the range
of motion in her shoulders was affected. Exhibit 2 at 53; see also Tr. 275. The
physical therapist detected tenderness to palpation of the middle deltoid. Exhibit 2
at 55. The physical exam of Ms. Ginsberg was “not completely normal.” Tr. 288.
These factors are not consistent with cervical radiculopathy. Tr. 276.
Dr. Cagle
Dr. Cagle’s testimony concerning Ms. Ginsberg’s physical therapy began
with Dr. Ionescu’s referral. Dr. Ionescu sent Ms. Ginsberg to physical therapy for
her neck and shoulder. Exhibit 2 at 53; see also Tr. 349. Ms. Katchinski wrote
that the pain is located in the left shoulder and radiating into the hand and up to the
neck. Exhibit 2 at 53; see also Tr. 350. Dr. Cagle interpreted this record as
showing pain in her entire arm. Tr. 351.
The physical therapist’s record states that Ms. Ginsberg reported pain with
overhead activities. Exhibit 2 at 52. In Dr. Cagle’s view, this presentation is
expected from a person with a chronic massive rotator cuff tear. Tr. 355.
With respect to shoulder testing by the physical therapist, Dr. Cagle agreed
that Ms. Ginsberg’s range of motion was “limited compared to the contralateral
side.” Tr. 383. A cervical radiculopathy would not explain this limited range of
motion. Id.
E. February 2, 2017: Dr. Singh
Medical Record
Ms. Ginsberg saw a neurologist, Dr. Jasjit Singh, on February 2, 2017 for
“severe left hand pain and arm pain after having a flu shot about a month and half
ago.” Exhibit 3 at 9. Dr. Singh evaluated her cervical spine and found that there
was tenderness with limited range of motion. Id. Dr. Singh noted that she had
“diffuse sensory loss down [her] left upper extremity” and “positive Tinel and
Phalen signs” in her left upper extremity. Id.
Dr. Singh ordered studies to evaluate Ms. Ginsberg’s condition. A sensory
motor nerve conduction velocity study revealed “a mild carpal tunnel syndrome on
the right [extremity] and mild to moderate carpal tunnel syndrome on the left
[extremity].” Id. Electromyography of both upper extremities revealed “mild
denervation of the left abductor pollicis brevis muscles consistent with . . . carpal
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tunnel syndrome, more severe on the left than on the right . . . mild denervation of
the left biceps brachii muscle consistent with the mild cervical radiculopathy on
the left side at the C6 level.” Id. at 2. Dr. Singh assessed her with cervical
radiculitis, carpal tunnel syndrome, and neuritis secondary to the flu shot. Id. at
10. Dr. Singh referred her to get an MRI of the cervical spine on February 8, 2017.
Id.; Exhibit 3 at 5.
Ms. Ginsberg’s testimony
Ms. Ginsberg stated that her family doctor recommended that she see a
neurologist. Tr. 26. Before this appointment with Dr. Singh, she had not seen a
neurologist. Id.
Ms. Ginsberg recalled that Dr. Singh tested her arm and neck. Tr. 27, 46.
Ms. Ginsberg did not recall any specifics about the EMG testing. Tr. 46.
Although Dr. Singh diagnosed her with “cervical radiculopathy,” Ms. Ginsberg did
not understand the meaning of this medical terminology. Tr. 47.
Expert Commentary4
Dr. Natanzi
Dr. Natanzi emphasized that Dr. Singh reached two diagnoses. Tr. 109.
These were “cervical radiculitis” and “neuritis secondary to the flu shot.” Exhibit
3 at 9.5 Of these two, Dr. Natanzi favored “neuritis,” as that condition is from the
flu vaccination, not cervical radiculopathy. Tr. 108.
In his oral testimony, Dr. Natanzi questioned the reliability of Dr. Singh’s
EMG. Tr. 111. The gist of Dr. Natanzi’s opinion in his oral testimony was that
Dr. Singh did not perform all the necessary tests. Tr. 105, 110-11, 187-88.6
4 The experts extensively testified about Dr. Singh’s EMG and cervical MRI, which is
discussed in the following section.
5 More precisely, Dr. Singh diagnosed Ms. Ginsberg with a third condition, carpal tunnel
syndrome. However, the presence (or absence) of carpal tunnel syndrome does not affect Ms.
Ginsberg’s claim that the flu vaccine harmed her shoulder. Tr. 136, 358.
6 Dr. Natanzi did not disclose an opinion that the EMG testing was incomplete in his
report. See Exhibit 19. Without this disclosure, the Secretary could have objected to Dr.
Natanzi’s testimony. See Simanski v. Sec’y of Health & Hum. Servs., 671 F.3d 1368 (Fed. Cir.
2012). In his oral testimony, Dr. Natanzi explained that his opinion regarding the presence of
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Dr. Natanzi also testified that Dr. Singh’s examination did not include any
signs of cervical radiculopathy. Tr. 187.
Dr. Callaghan
To Dr. Callaghan, Dr. Singh’s EMG was “thorough.” Tr. 259. Dr. Singh
tested many different muscles in both arms. Id. The EMG could exclude a
problem in the nerve that corresponds to the bicep muscle. Tr. 288-90. Therefore,
the result of the EMG test, an impairment in the motor nerves at the C5-6 level, is
likely to be accurate. Tr. 260, 297.7
Dr. Cagle
Dr. Cagle’s testimony about Ms. Ginsberg’s February 2, 2017 appointment
with Dr. Singh and the EMG of that date was relatively limited. Dr. Cagle
recognized that Dr. Singh reached three diagnoses and one of these three was
“neuritis secondary to the flu shot.” Tr. 356-58.
F. February 8, 2017: MRI of Cervical Spine
Dr. Singh had referred Ms. Ginsberg for an MRI. She underwent this
procedure on February 8, 2017. Exhibit 3 at 5-6.
The radiologist, Ronald Wagner, interpreted the MRI as showing problems
from C3 to T2. Id. More specifically, Dr. Wagner found:
• There are posterior annular disc bulges at C4/5 and C5/6 with left
foraminal stenosis at C4/5 and bilateral foraminal stenosis at C5/6.
• Broad posterior disc herniations and bony ridging at C5/6 and C-0/7
abutting the ventral surface of the cord and there is bilateral foraminal
stenosis and mild stenosis at C5/6 and bilateral foraminal narrowing
at C6/7.
Exhibit 3 at 5.
Ms. Ginsberg recalled that the MRI showed she had stenosis in her neck. Tr.
27.
cervical radiculopathy shifted after he wrote his report because he has testified in more cases
involving SIRVA and he looked at the results of Ms. Ginsberg’s EMG again. Tr. 186.
7 “Specificity” is a term used to measure the value of a positive test. Tr. 262.
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Both Dr. Natanzi and Dr. Callaghan testified that Ms. Ginsberg’s cervical
spine was affected by degenerative (or age-related) changes. Tr. 112, 277. They
also agreed that Ms. Ginsberg’s problem in her cervical spine was worse on her left
side. Tr. 112, 260.
G. February 27, 2017: Dr. Singh
Medical Record
On February 27, 2017, Ms. Ginsberg had a follow-up appointment with Dr.
Singh. Exhibit 3 at 7. At this visit, Dr. Singh reviewed the February 8, 2017 MRI,
showing multilevel disc abnormalities. Id. Dr. Singh stated that the MRI
explained Ms. Ginsberg’s pain radiating down her left upper extremity. Id. at 7.
Dr. Singh noted that Ms. Ginsberg, however, insisted that “the pain [was] coming
from the flu shot. Id. at 8.
Dr. Singh’s assessment included “cervical radiculitis.” Exhibit 3 at 8. He
also wanted to rule out an internal derangement in her left shoulder. Id. He
suggested that Ms. Ginsberg obtain an MRI of her left shoulder and consult an
orthopedist. Id. Dr. Singh added that Ms. Ginsberg “is not comfortable with my
explanation to her.” Id.
Ms. Ginsberg’s Testimony
Ms. Ginsberg recognized that after the cervical MRI, Dr. Singh had told her
that her pain was coming from her cervical spine. Tr. 47. She has reservations
about Dr. Singh’s treatment of her. Tr. 72.
Expert Commentary
Dr. Natanzi
With respect to Dr. Singh’s treatment on February 27, 2017, Dr. Natanzi
made essentially three points. First, Dr. Natanzi acknowledged that Dr. Singh had
stated that Ms. Ginsberg’s pain was due to problems in her cervical spine / discs.
Tr. 115, 161, 178. Next, Dr. Natanzi seemed to question the thoroughness of Dr.
Singh’s evaluation, stating that Dr. Singh appeared not to have examined Ms.
Ginsberg’s shoulder8 and did not conduct any special tests like a Spurling
8 The record suggests that Dr. Singh did examine Ms. Ginsberg’s shoulder, as he “Rule[d]
out left shoulder internal derangement” and noted that she had “limited range of motion in the
upper left extremity.” Exhibit 3 at 8.
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maneuver. Tr. 116-17. Last, Dr. Natanzi inferred that because Dr. Singh referred
Ms. Ginsberg to an orthopedist, Dr. Singh must have thought that the cervical
radiculopathy was not explaining everything. Tr. 179.
Dr. Callaghan
Dr. Callaghan’s opinion regarding Dr. Singh’s conclusions was succinct.
Dr. Callaghan stated that Dr. Singh, a neurologist, diagnosed cervical
radiculopathy. Tr. 269, 276. Dr. Callaghan acknowledged that Dr. Singh referred
her to an orthopedist but Dr. Callaghan did not know the reason for the referral. Id.
Dr. Cagle
Dr. Cagle, arguably, provided some insight as to why Dr. Singh might have
referred Ms. Ginsberg to an orthopedist. According to Dr. Cagle, patients may
request other evaluations. Tr. 359. Dr. Singh’s memorialization that Ms. Ginsberg
does not agree with his assessment is a subtle point, suggesting that the referral to
an orthopedist originated with Ms. Ginsberg, not Dr. Singh. Id.
H. March 8, 2017 through April 11, 2017: Dr. McCormack and
Physical Therapy
Medical Records
From March 2017 to June 2017, Ms. Ginsberg saw Richard McCormack, an
orthopedist, for left shoulder pain three times. Exhibit 4 at 2; Exhibit 5 at 7-9. In
the first appointment, Ms. Ginsberg described the pain as “throbbing and
stabbing.” Exhibit 4 at 2 (March 8, 2017). Ms. Ginsberg had positive empty can,
Neer, and Hawkins tests. Id. at 2. Dr. McCormack diagnosed Ms. Ginsberg with
left deltoid bursitis and recommended her to resume physical therapy for “cuff
strengthening [and] modalities.”9 Id. at 3.
Ms. Ginsberg underwent a second round of physical therapy from March 15,
2017 to April 11, 2017. Exhibit 2 at 95-97. However, this set of physical therapy
appointments appear not to contribute to assessing whether the flu vaccine harmed
Ms. Ginsberg’s shoulder as the experts did not discuss this set.
Ms. Ginsberg’s Testimony
9 An April 11, 2017 medical record shows that Ms. Ginsberg attended a total of three
physical therapy sessions before discontinuing treatment for the second time. Exhibit 2 at 95-97.
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Ms. Ginsberg stated that Dr. McCormack is a general orthopedist. Tr. 48.
When she saw Dr. McCormack, Ms. Ginsberg was having radiating pain going
from her shoulder down to her arm. Tr. 49. Dr. McCormack took an X-ray, stated
that she had bursitis, and sent her to physical therapy. Tr. 28. During March 2017,
Ms. Ginsberg did exercises with a towel at home. Tr. 29.
Expert Commentary
Dr. Natanzi and Dr. Cagle
Dr. Natanzi and Dr. Cagle assessed Dr. McCormack’s March 2, 2017 report
differently. (Dr. Callaghan did not provide any meaningful testimony about this
piece of evidence.)
Dr. Natanzi emphasized Dr. McCormack’s diagnosis of bursitis, calling it
“spot on.” Tr. 118. The bursa is a pad or cushion under the deltoid muscle and
above the rotator cuff. Id. Inflammation of the bursa is known as “bursitis.”
Dorland’s Illus. Med. Dict. 260 (33rd ed. 2020). In Dr. Natanzi’s opinion, the
bursa is “vaccine-sensitive,” and the location of many shoulder injuries induced by
vaccine administration. Tr. 118.
In contrast, Dr. Cagle did not agree with the diagnosis of bursitis. Dr. Cagle
stated that the correct diagnosis is a rotator cuff tear. Tr. 363.
I. May 24, 2017: Dr. McCormack
On May 24, 2017, Ms. Ginsberg returned to Dr. McCormack. She
complained about pain in her left shoulder, which was not radiating and was “dull,
throbbing, and burning.” Exhibit 5 at 8. She also reported that since the previous
visit, she had improved. Id. As part of an examination of Ms. Ginsberg’s left
shoulder, Dr. McCormack reported positive empty can and Neer tests and a
negative Hawkins test. Id. at 8.
Dr. McCormack ordered a left shoulder MRI. Exhibit 5 at 8. The purpose
was to rule out a potential tear in her rotator cuff. Id.
There was relatively little meaningful testimony from the experts about this
visit with Dr. McCormack. The experts focused on the results of the left shoulder
MRI.
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J. May 25, 2017: Left Shoulder MRI
Medical Record
Ms. Ginsberg underwent an MRI for her left shoulder on May 25, 2017.
Exhibit 5 at 13. The MRI revealed several problems including:
1. Full-thickness tearing of the distal supraspinatus and
infraspinatus tendons and surrounding bursitis . . . without evidence of
tendon retraction or muscle atrophy.
2. Partial tearing of the subscapularis tendon.
3. Biceps tenosynovitis.
4. Glenohumeral joint effusion.
5. AC joint arthrosis.
Id.
Expert Commentary
Dr. Natanzi
Dr. Natanzi explained some of the shoulder’s anatomy. The supraspinatus
tendon is on top of the shoulder. The infraspinatus tendon originates from the
person’s back. The subscapular tendon originates from the person’s front. Each
tendon is approximately one centimeter thick. Tr. 180-82.
In Dr. Natanzi’s opinion, the tears to the supraspinatus tendon and the
infraspinatus tendon were “caused by the vaccine needle.” Tr. 122. Later, Dr.
Natanzi testified that the full tears to these two tendons “were made symptomatic
because of the vaccine. I can say that definitively.” Tr. 194. He continued: “If
there was a partial tear there before, I don’t know, but I can tell you . . . the
symptomization of the rotator cuff tear was also caused by the vaccine.” Id.
With respect to the bursitis that accompanied the tears in two rotator cuff
tendons, Dr. Natanzi stated: “I can say definitively that the bursitis in entirety was
caused by the vaccine.” Tr. 194. He equated “bursitis” as a classic SIRVA
finding. Tr. 122. Ms. Ginsberg’s bursitis is “100 percent attributable to the
vaccine, especially given the clinical context, how she presented right away with a
bursitis.” Id.
Dr. Natanzi explained bursitis in more detail. Bursitis in the shoulder can
develop acutely, such as for baseball pitchers. Tr. 185. In theory, some bursitis
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could be chronic, although Dr. Natanzi tends not to use the term “chronic bursitis.”
Instead, Dr. Natanzi describes some problems as chronic tendinitis. Tr. 186. Ms.
Ginsberg’s MRI did not show any signs of an acute trauma, like swelling. Tr. 190.
A lack of acuteness did not matter to Dr. Natanzi’s opinion because the MRI was
performed months after the vaccination. Id. A final point about bursitis was that
the radiologist did not quantify the degree of bursitis. Tr. 183-84.
For the AC joint arthritis, Dr. Natanzi stated that this deterioration reflects a
chronic problem due to wear and tear. Tr. 121, 182. The vaccine did not cause
arthritis in the AC joint. Tr. 182.
Dr. Cagle
Dr. Cagle agreed with some portions of Dr. Natanzi’s testimony regarding
bursitis. The term “bursitis” is not very descriptive. Tr. 400. Bursitis can be acute
or chronic. Tr. 400. Although Ms. Ginsberg’s MRI did show bursitis, the MRI did
not show any acute pathology in the shoulder. Tr. 338, 396, 399. Because Ms.
Ginsberg shoulder problem was not acute, Dr. Cagle tended to think of the problem
as “chronic,” meaning it had lasted longer than six weeks. Tr. 387.
As to relationship between the bursitis and the rotator cuff tears, Dr. Cagle
disagreed with Dr. Natanzi. Dr. Cagle stated that the MRI revealed a “massive”
tear. Tr. 324.10 Massive rotator cuff tears are likely to cause dysfunction at some
time. Tr. 325.
Dr. Natanzi testified that around fifty percent of people over 50 years old
who have rotator cuff tears do not have problems or symptoms. Tr. 112-13, 191-
92. Dr. Cagle did not know why Ms. Ginsberg’s (assumed) rotator cuff tear
became symptomatic after the vaccination. Tr. 365.
Regardless of the reason the rotator cuff tear became noticeable, the rotator
cuff tear is the reason for the bursitis. In Dr. Cagle’s opinion, looking at Ms.
Ginsberg’s bursitis is missing the forest for the trees. Tr. 364. The pathology that
should be treated is the rotator cuff tears. Tr. 363.
10 Dr. Cagle stated that a system classifies tears in two tendons as “massive.” Tr. 324.
Although the term “massive” sounds “grandiose,” this label is appropriate in Ms. Ginsberg’s
case.
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Finally, Dr. Cagle agreed with Dr. Natanzi’s assessment of the arthritis in
the AC joint. That problem is consistent with wear and tear of tendon for many
years. Tr. 325.
K. June 14, 2017: Dr. McCormack
Medical Record
After the MRI on her left shoulder, Ms. Ginsberg returned to Dr.
McCormack on June 14, 2017. Exhibit 5 at 9-10. Ms. Ginsberg had pain in her
left shoulder, which she rated as a 4 out of 10 and for which she was not taking any
medication. Id. at 9. “The pain does not radiate and is described as throbbing.”
Id.
Upon examination, Ms. Ginsberg was found to have almost normal strength
throughout her left shoulder. Id. at 9-10. The empty can test and the Neer test
were positive. Id. at 11. The Hawkins test was negative. Id.
Dr. McCormack recommended that Ms. Ginsberg undergo an operation.
Exhibit 5 at 10. He noted that Ms. Ginsberg was “not interested at this time.” Id.;
accord Tr. 30 (Ms. Ginsberg’s testimony).
Expert Commentary
The experts had relatively little to say about the June 14, 2017 appointment
with Dr. McCormack. Dr. Natanzi stated that Dr. McCormack’s plan for a surgery
shows that there is a problem in Ms. Ginsburg’s shoulder. Tr. 124, 217. Dr. Cagle
pointed out that Ms. Ginsberg had surprisingly good range of motion and strength
despite the tears. Because of this functioning, Dr. Cagle would not have offered an
operation. Tr. 371-72.
L. October 2017: Second Opinions from Dr. Tinker
Medical records
Ms. Ginsberg sought a second medical opinion for her condition from
another orthopedist, Jonathan Ticker. During her first appointment on October 16,
2017, Ms. Ginsberg described the duration of her pain and present characteristics.
Exhibit 7 at 4. Dr. Ticker reviewed both the reports and the films of the left
shoulder MRI. However, Dr. Ticker was “not convinced about the tear.” Id. at 5.
Dr. Ticker examined Ms. Ginsberg’s shoulder and detected “mild” pain at the end
of the range of motion. Id. at 4. Dr. Ticker also performed a Spurling test on Ms.
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Ginsberg’s neck and the result was negative. Id. at 5. Dr. Ticker diagnosed her
with a left rotator cuff tear and wrote that a “repeat MRI is clearly indicated.” Id.
at 5.
The second MRI revealed advanced supraspinatus and infraspinatus
tendinosis with a mild to moderate partial-thickness articular sided tear at the
junction of the tendons, mild infraspinatus tendinosis, moderate AC joint arthrosis
and subacromial/subdeltoid bursitis. Exhibit 5 at 12 (Oct. 18, 2017).
At a follow-up exam on October 21, 2017, Dr. Ticker discussed the October
18, 2017 MRI with Ms. Ginsberg. Dr. Ticker advised Ms. Ginsberg to take
Medrol, return to physical therapy, and consider an injection. Exhibit 7 at 2. If
these methods failed, Dr. Ticker suggested surgery as an option. Id.
Expert Commentary
Dr. Natanzi commented that Dr. Ticker twice looked for evidence of nerve
compression via the Spurling test, but twice these results were negative. Tr. 106.
Dr. Cagle interpreted the two MRIs as being fundamentally the same with
the second one showing some advanced tendinosis. Tr. 326-27. Dr. Cagle also
noted that Dr. Ticker did not recommend surgery as an immediate next step. Tr.
401-02.
M. Current Status
Ms. Ginsberg did not seek additional treatment after this appointment with
Dr. Ticker. Tr. 35, 53. Her pain has resolved, except for a few episodes each
month. Tr. 50. She has returned to exercising at a gym. Tr. 34.
II. Procedural History
Ms. Ginsberg initiated a claim in the National Vaccine Injury Compensation
Program by filing a petition on February 8, 2019. She alleged that she suffered
from SIRVA as a result of receiving the flu vaccine on January 9, 2017. She filed
medical records and confirmed that the record was complete on February 14, 2019.
This statement of completion was subsequently amended on July 1, 2019 and then
again on April 8, 2020.
The Secretary contended that the medical evidence did not support
petitioner’s allegation and recommended that compensation be denied. Resp’t’s
Rep., filed July 22, 2020. Specifically, the Secretary argued that Ms. Ginsberg’s
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SIRVA did not meet the regulatory definition of SIRVA, as defined on the Vaccine
Injury Table. Id. at 3. Her pain was not limited to the left shoulder in which the
vaccine was injected, as the pain had consistently radiated down her left arm. Id.
at 4. Furthermore, a February 2017 MRI of her cervical spine revealed multilevel
disc abnormalities that explain a cause for her left shoulder pain. Id. The
Secretary was uncertain whether there was a claim for causation-in-fact but still
addressed it. If a claim for causation-in-fact were alleged, the Secretary
maintained that Ms. Ginsberg failed to show her alleged injury more likely than
not resulted from the flu vaccine. Id.
The case was reassigned to the undersigned on January 21, 2021. A status
conference was held on February 25, 2021 to discuss upcoming deadlines for filing
expert reports.
Ms. Ginsberg filed a report from a pain specialist whom she had retained,
Dr. Naveed Natanzi, on March 9, 2021. Exhibit 19. The Secretary responded by
submitting a report from an orthopedist whom he had retained, Dr. Paul Cagle, on
May 27, 2021 and a report from a neurologist whom he had retained, Dr. Brian
Callaghan, on June 14, 2021. Exhibits A and C. Thereafter, Ms. Ginsberg
presented a supplemental expert report from Dr. Natanzi on July 23, 2021 (Exhibit
34) and the Secretary submitted a supplemental expert report from Dr. Cagle on
September 20, 2021 (Exhibit D).
At the October 12, 2021 status conference, both parties discussed their
experts’ disagreement on the diagnostic usefulness of empty can, Hawkins, and
Neer’s maneuver. Despite this disagreement, both parties advised that the expert
report phase had concluded and that they were ready to proceed to the briefing
stage. The briefing instructions were issued on October 28, 2021. Afterwards,
Ms. Ginsberg filed an amended petition, asserting an off-table shoulder injury
claim in addition to her on-table SIRVA claim.
A November 8, 2021 order directed respondent to file an amended Rule 4(c)
Report, which the Secretary filed on November 22, 2021. The Secretary construed
the November 8, 2021 order as requiring a discussion on the 48-hour onset criteria
and hence focused on this issue in the Rule 4(c) Report. Am. Resp’t’s Rep at 1
n.2.
On January 5, 2022, Ms. Ginsberg filed a brief in support of a ruling on the
record. On March 7, 2022, the Secretary submitted his brief along with a
supplemental expert report from Dr. Cagle. On April 6, 2022, Ms. Ginsberg filed a
reply brief.
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A review of the parties’ briefs revealed that Ms. Ginsberg had not filed
medical records created close in time to the vaccination. She was, therefore,
directed to obtain those records. Order, issued Nov. 2, 2022. Ms. Ginsberg
submitted a critical record from Dr. Ionescu, which was handwritten. Exhibit 42.
She later obtained a transcription. Exhibit 43.
Dr. Ionescu’s record from 10 days after the vaccination was a primary basis
for finding that Ms. Ginsberg developed shoulder pain within 48 hours of her
vaccination. Tentative Finding, issued June 12, 2023. Due to other disputes
among the experts, the case was scheduled for a hearing. Order, issued July 12,
2023.
The hearing was held in two sessions. Ms. Ginsberg testified on November
7, 2023 via videoconferencing. Another session was held on November 29-30,
2023, in Ann Arbor, Michigan. Dr. Natanzi, Dr. Cagle, and Dr. Callaghan testified
in accord with their reports.
After the hearing, Ms. Ginsberg requested an opportunity to argue her case
through a post-hearing brief. She did so on April 12, 2024. The Secretary
responded on May 28, 2024. Ms. Ginsberg spoke last. Pet’r’s Reply, filed July 11,
2024. With the submission of the reply brief, the case is ready for adjudication.
III. Standards for Adjudication
A petitioner is required to establish her case by a preponderance of the
evidence. 42 U.S.C. § 300aa-13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted). Proof of medical certainty is not required. Bunting v. Sec’y of Health &
Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991).
Distinguishing between “preponderant evidence” and “medical certainty” is
important because a special master should not impose an evidentiary burden that is
too high. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379-80 (Fed.
Cir. 2009) (reversing a special master’s decision that petitioners were not entitled
to compensation); see also Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d
1357 (Fed. Cir. 2000); Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961
(Fed. Cir. 1993) (disagreeing with the dissenting judge’s contention that the special
master confused preponderance of the evidence with medical certainty).
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IV. On-Table Claim
The Vaccine Injury Table associates the flu vaccine with a shoulder injury
related to vaccine administration. 42 C.F.R. § 100.3. The regulations further
define “SIRVA”:
SIRVA manifests as shoulder pain and limited range of
motion occurring after the administration of a vaccine
intended for intramuscular administration in the upper
arm. These symptoms are thought to occur as a result of
unintended injection of vaccine antigen or trauma from
the needle into and around the underlying bursa of the
shoulder resulting in an inflammatory reaction. SIRVA is
caused by an injury to the musculoskeletal structures of
the shoulder (e.g. tendons, ligaments, bursae, etc.).
SIRVA is not a neurological injury and abnormalities on
neurological examination or nerve conduction studies
(NCS) and/or electromyographic (EMG) studies would
not support SIRVA as a diagnosis (even if the condition
causing the neurological abnormality is not known). A
vaccine recipient shall be considered to have suffered
SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected
shoulder prior to intramuscular vaccine administration that would
explain the alleged signs, symptoms, examination findings, and/or
diagnostic studies occurring after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in
which the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain
the patient’s symptoms (e.g. NCS/EMG or clinical evidence of
radiculopathy, brachial neuritis, mononeuropathies, or any other
neuropathy).
Here, the presence of cervical radiculopathy prevents Ms. Ginsberg from
meeting the regulatory definition of SIRVA. See, e.g., Durham v. Sec’y of Health
& Hum. Servs., No. 17-1899V, 2023 WL 3196229, at *13-15 (Fed. Cl. Spec. Mstr.
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May 2, 2023); Humbert v. Sec’y of Health & Hum. Servs., No. 17-360, 2023 WL
2565729, at *19 (Fed. Cl. Spec. Mstr. Feb. 22, 2023); Truett v. Sec’y of Health &
Hum. Servs., No. 17-1772V, 2022 WL 17348386, at *16-21 (Fed. Cl. Spec. Mstr.
Nov. 1, 2022); Colbert v. Sec’y of Health & Hum. Servs., No. 18-166V, 2022 WL
2232210, at *17 (Fed. Cl. Spec. Mstr. May 27, 2022).
Although Ms. Ginsberg is not entitled to compensation for an on-Table
SIRVA claim, she might remain entitled to compensation for an off-Table claim.
That alternative path to recovery is addressed next.
V. Off-Table Claim
When pursuing an off-Table injury, a petitioner bears a burden “to show by
preponderant evidence that the vaccination brought about [the vaccinee’s] injury
by providing: (1) a medical theory causally connecting the vaccination and the
injury; (2) a logical sequence of cause and effect showing that the vaccination was
the reason for the injury; and (3) a showing of a proximate temporal relationship
between vaccination and injury.” Althen v. Sec’y of Health & Hum. Servs., 418
F.3d 1274, 1278 (Fed. Cir. 2005).
In Ms. Ginsberg’s case, there is no meaningful dispute regarding the first
Althen prong and the third Althen prong. Dr. Cagle agreed that vaccinations can
cause shoulder injuries. Tr. 344. He also stated that the appropriate temporal
window between the vaccination and the onset of shoulder pain might extend to 10
days. Tr. 399.11 Consequently, the controversy concerns the second Althen prong.
The Federal Circuit has elaborated on the significance of this element:
The second prong of the Althen III test is not without
meaning. There may well be a circumstance where it is
found that a vaccine can cause the injury at issue and
where the injury was temporally proximate to the
vaccination, but it is illogical to conclude that the injury
was actually caused by the vaccine.
Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1327
(Fed. Cir. 2006).
11 Dr. Cagle recognized that limiting SIRVA cases to an onset of 48 hours helps legally.
However, from a medical perspective, he questioned this limitation. Tr. 407.
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In opposing Ms. Ginsberg’s claim that the January 9, 2017 flu vaccination
harmed her, the Secretary posits two other explanations for Ms. Ginsberg’s
shoulder problems: a pre-existing cervical radiculopathy and age-related tears in
her rotator cuff. See Resp’t’s Posthear’g Br. at 15-16. In the Secretary’s view, the
flu vaccination played no role.
The Secretary’s arguments do not measure up. The Secretary is effectively
saying that Ms. Ginsberg had a cervical radiculopathy for which there is no
evidence of her receiving any medical treatment until after the flu vaccination and
Ms. Ginsberg had chronic rotator cuff problems for which there is no evidence of
her receiving any medical treatment until after the flu vaccination. Then,
coincidentally after the flu vaccination, she started to manifest problems of her
previously silent cervical radiculopathy. Concomitantly, coincidentally after the
flu vaccination, she started to manifest problems of her previously silent rotator
cuff problems. This argument overemphasizes the role of coincidences.
Instead, Ms. Ginsberg meets her burden of proof to establish a logical
sequence of cause and effect between the flu vaccination and her shoulder pain.
Ms. Ginsberg emphasizes the acuteness of her injury. See Pet’r’s Reply at 4-7.
Although a sequence of events in which a vaccination preceded the onset of an
injury does not always mean that the vaccination caused the injury, the sequence of
events, statements from medical professionals, and Dr. Natanzi’s opinion are
sufficient to carry the day for Ms. Ginsberg.
Accordingly, Ms. Ginsberg is entitled to compensation.12
VI. Compensation
Before the hearing, the parties disputed the amount of compensation that
was reasonable for Ms. Ginsburg’s pain and suffering. The foundation for the
parties’ arguments was the written evidence, including medical records, affidavits,
and expert opinions. The undersigned determined that this record supported an
award of $40,000 in compensation for past pain and suffering and no compensation
was appropriate for future pain and suffering.
The oral testimony produced some evidence that arguably might have
affected the amount of compensation. However, the evidence tended to confirm
12 Although in theory the Secretary might attempt to prove an alternative factor caused
Ms. Ginsberg’s shoulder problem, the Secretary has declined. See Resp’t’s Prehear’g Br. at 27.
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that an award of $40,000 as compensation for Ms. Ginsberg’s past pain and
suffering was reasonable.
Ms. Ginsberg’s pain due to the vaccination was limited both anatomically
and temporally. Anatomically, Ms. Ginsberg did not persuasively refute the
opinion of her treating doctors and Dr. Callaghan that she had a problem in her
neck. The presence of a cervical radiculopathy does not preclude a petitioner, like
Ms. Ginsberg, from also incurring a shoulder injury that was caused-in-fact by the
vaccination. Ms. Ginsburg recognizes that her “cervical radiculopathy was not
caused by the vaccination.” Pet’r’s Prehear’g Br., filed Jan. 5, 2022, at 17.
Similarly, the arthritis in Ms. Ginsberg’s acromioclavicular joint and partial tearing
in the subscapularis tendon were not, by Dr. Natanzi’s testimony, caused by the
vaccination. Tr. 121-22.
The duration of Ms. Ginsberg’s vaccine-related shoulder pain was also
limited. Ms. Ginsberg stated that she does not currently have pain, except for
occasional throbbing for which she takes ibuprofen. Tr. 31, 34-35, 50-51. She has
returned to exercising in a gym and lifting light weights. Tr. 34.
This evidence tends to show that the degree of Ms. Ginsberg’s pain and
suffering was relatively mild. As such, compensation in the amount of $40,000 for
past pain and suffering is reasonable. Furthermore, Ms. Ginsberg is not claiming
lost earnings and is not claiming unreimbursed expenses. Tr. 36.
VII. Conclusion
Ms. Ginsberg has established with preponderant evidence that the flu
vaccine caused an injury to her shoulder. As such, she is entitled to compensation.
A reasonable amount of compensation for this injury is $40,000.
The Clerk's Office is instructed to enter judgment in accord with this
decision unless a motion for review is filed. Information about filing a motion for
review, including the deadline, can be found in the Vaccine Rules, which are
available on the website for the Court of Federal Claims.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
22

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-00222-2
Date issued/filed: 2025-11-26
Pages: 11
Docket text: JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) re: 132 Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Judge Carolyn N. Lerner. (Ab) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00222-CNL Document 135 Filed 11/26/25 Page 1 of 11
In the United States Court of Federal Claims
SANDY GINSBERG,
Petitioner,
v.
No. 19-2221
(Filed: November 26, 2025)
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent.
Amy Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Eleanor Hanson, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
OPINION AND ORDER
LERNER, Judge.
Petitioner Sandy Ginsberg seeks review of an attorneys’ fee award under the National
Childhood Vaccine Injury Act of 1986, 42 U.S.C. § 300aa-1 et seq. (“Vaccine Act”). Pet’r’s
Mot. for Review (hereinafter “Mot. for Review”) at 2, ECF No. 128.
On February 8, 2019, Ms. Ginsberg filed a petition with the Office of Special Masters
alleging she suffered a shoulder injury following an influenza vaccination. Pet. at 1, ECF No. 1.
After a hearing on entitlement, Special Master Christian Moran found Petitioner is entitled to
$40,000 in compensation. Decision Awarding Compensation at 2, ECF No. 119. Petitioner filed
an application seeking attorneys’ fees and costs totaling $200,531.67. Pet’r’s App. for Att’ys’
Fees (hereinafter “Pet’r’s App.”) at 2, ECF No. 124. The Special Master determined some of the
claimed costs were inappropriate; he deducted $48,295.71 and awarded a total of $152,235.96.
Decision Awarding Att’ys’ Fees and Costs (hereinafter “Dec.”) at 10, ECF No. 126.
The Special Master acted within his discretion by reducing the reasonable hours spent by
Petitioner’s counsel on literature review and denying Petitioner’s excessive charge for forty-eight
straight hours of expert testimony. He also acted within his authority to enforce a pretrial order
when he imposed a double deduction of the expert’s first-class airfare charge, which Petitioner
submitted in violation of that order. However, he reduced the hourly rate for Petitioner’s expert
from $600 to $500 without citing evidence that $500 was a reasonable market rate. Accordingly,
1 This Opinion was originally filed under seal on November 7, 2025. ECF No. 132. The Court
provided the parties the opportunity to review the Opinion and submit proposed redactions by
November 21, 2025. The parties did not propose any redactions.

Case 1:19-vv-00222-CNL Document 135 Filed 11/26/25 Page 2 of 11
Petitioner’s Motion for Review is GRANTED-IN-PART and DENIED-IN-PART, and the
Special Master’s Decision is AFFIRMED-IN-PART and VACATED-IN-PART.
I. Background
On February 8, 2019, Ms. Ginsberg filed a petition for compensation under the Vaccine
Act alleging that she suffered a shoulder injury related to vaccine administration (“SIRVA”)
following a January 2017 influenza vaccination. Dec. at 2. Petitioner submitted expert reports
from Dr. Naveed Natanzi, a rehabilitation specialist, while Respondent filed expert reports from
Dr. Paul Cagle, an orthopedic surgeon, and Dr. Brian Callaghan, a neurologist. Id. A hearing
was held in Ann Arbor, Michigan on November 29 and 30, 2023, at which all three experts
testified. Id. at 4. Special Master Moran issued a decision on July 31, 2024, finding Petitioner
was entitled to $40,000 in compensation. Id.
Petitioner subsequently filed an application for attorneys’ fees and costs, seeking a total
of $200,531.67, including $134,265.95 in attorneys’ fees and $66,265.72 in costs. Id. The
application attached billing entries for Petitioner’s counsel, Amy Senerth and Max Muller,
several paralegals, and Dr. Natanzi. Id. at 6–10; see generally Pet’r’s App.
Respondent objected to four items in Petitioner’s application: Dr. Natanzi’s first-class
airfare to Ann Arbor, which cost $1,897.81; his $600 hourly rate; his $28,800 bill for two
twenty-four hour days of testimony; and his $9,000 fee for “Outside Los Angeles appearance fee
to EAST Coast including 1.0 missed days of work due to restrictions in traveling cross country
and time difference.” Resp. to Pet’r’s App. at 5–10, ECF No. 125 (first citing Pet’r’s App. at
58–60; then citing Pet’r’s App. at 49–50; and then quoting Pet’rs App. at 49–50). Petitioner did
not file a reply. Dec. at 4.
On August 8, 2025, the Special Master issued a decision awarding Petitioner $152,235.96
using the “lodestar” method to calculate reasonable attorneys’ fees and costs. Id. at 5–6. He
reduced Petitioners’ requested fees in four principal areas. Id. at 10. First, he deducted $2,000
from attorneys’ fees to account for “attorneys billing time to direct” paralegals filing documents.
Id. at 7 (citing Guerrero v. Sec’y of Health & Hum. Servs., No. 12-689V, 2015 WL 3745354, at
*6 (Fed. Cl. Spec. Mstr. May 22, 2015), aff’d in part, rev’d in part, 124 Fed. Cl. 153 (2015)).
Second, he reduced the reasonable number of hours spent by Ms. Senerth reading
medical literature and, “to a lesser extent,” case law. Id. at 7–8. As an example, the Special
Master pointed to her invoice for half-an-hour to read a well-known article by S. Atanasoff about
SIRVA injuries. Id. at 7. He reasoned that, given Ms. Senerth’s experience, she “is likely to
have encountered and reviewed Atanasoff before,” and “[i]n any event, the Atanasoff article is
only four pages, and the terminology is not complicated.” Id. The Special Master also
questioned the time spent reviewing legal opinions, citing an invoice for one hour to read a
twenty-two page opinion and three entries in which Ms. Senerth re-reviewed the same case. Id.
at 8. He deducted $4,000 from attorneys’ fees to “account for these issues.” Id.
2

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The Special Master also reduced Dr. Natanzi’s hourly rate from the requested $600 to
$500. Id. He noted “Dr. Natanzi’s work has typically been compensated at $500.00 by the
undersigned and other special masters,” offering a prior decision as an example. Id. (citing
Karapetian v. Sec’y of Health & Hum. Servs., No. 19-546V, 2022 WL 1865083, at *3 (Fed. Cl.
Spec. Mstr. May 9, 2022)). However, the cited decision did not involve Dr. Natanzi. See
Karapetian, 2022 WL 1865083, at *3 (awarding a $500 hourly rate to Dr. Frederick Nahm, a
neurologist). In any case, the Special Master declined to increase Dr. Natanzi’s rate because his
“work was not of such exceptional quality that his work merits a premium increase.” Dec. at 8.
Fourth, the Special Master denied in full two of Dr. Natanzi’s “exorbitant” charges. Id. at
8–9. Dr. Natanzi charged $28,800 for two days of trial testimony. Id. at 8. Dividing that
amount by the $600 hourly rate, the Special Master calculated that this represented forty-eight
straight hours of work, “regardless of whether he was awake or asleep.” Id. at 8–9. This charge
“so greatly exceeds the bounds of reasonableness” that the Special Master denied the entire
amount. Id. at 9. He did the same for Dr. Natanzi’s $9,000 “appearance fee” for missing work.
Id. The Special Master explained that the “purpose of not awarding any compensation for such
an unreasonable request is to deter other people from making similarly outrageous requests.” Id.
(first citing Valdes v. Sec’y of Health & Hum. Servs., No. 99-310V, 2009 WL 1456437, at *4
(Fed. Cl. Spec. Mstr. Apr. 30, 2009); then citing Env’t Def. Fund, Inc. v. Reilly, 1 F.3d 1254,
1258 (D.C. Cir. 1993); and then citing Dorr v. Weber, 741 F. Supp. 2d 1022, 1036 (N.D. Iowa
2010)).
Finally, the Special Master penalized Petitioner for requesting Dr. Natanzi’s first-class
airfare. Id. He cited a prior order specifically warning the parties that submitting a first-class
travel expense would result in a deduction for twice the amount charged. Id.; see also Order on
Travel Expenses (hereinafter “Travel Order”) at 2, ECF No. 94 (“If a request for reimbursement
of costs includes an airline fare more expensive than coach, the request is likely to be deducted at
TWICE the rate submitted.”). Accordingly, he deducted double the $1,887.81 first-class charge,
removing $3,795.62. Dec. at 9. In total, Petitioner’s $200,531.67 request was reduced by
$48,295.71, resulting in a $152,235.96 award. Id. at 10.
Petitioner filed a motion for review challenging each reduction except the $2,000
deduction for paralegal work and the $9,000 appearance fee. Mot. for Review at 5–11. She
contends the time spent reviewing case law and medical literature is reasonable; the reduction of
Dr. Natanzi’s hourly rate ignored more recent case law supporting $600 per hour; and the
complete denial of the two-day testimony charge was inappropriately severe. Id. at 5–8.
Petitioner characterizes those deductions as abuses of discretion, unsupported by the record, and
inconsistent with “Vaccine Program Practice.” Id. Finally, she argues the double deduction for
first-class airfare constitutes a punitive sanction unauthorized by the Vaccine Act’s mandate to
award reasonable costs. Id. at 8–9. As policy considerations, Petitioner adds that unfair fee
reductions penalize counsel for performing their ethical obligations and discourage qualified
professionals from participating in the Vaccine Program. Id. at 10–11.
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On October 2, 2025, Respondent filed a response largely defending the Special Master’s
decisions, emphasizing that “[a]buse of discretion is a highly deferential standard of review.”
Resp. to Mot. for Review at 2, ECF No. 131. Respondent further claims Petitioner waived her
arguments regarding Dr. Natanzi’s fees because she did not file a reply. Id. at 7 (citing Rules of
the Court of Federal Claims (hereinafter “RCFC”) App. B, Rule 8(f)). Petitioner’s challenge to
the airfare deduction is also waived, Respondent argues, because the Travel Order put her on
notice of the double deduction, and she failed to seek an exemption from the Order. Id. at 8–9.
II. Standard of Review
The U.S. Court of Federal Claims may set aside a special master’s decision if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42
U.S.C. § 300aa–12(e)(2)(B). A special master’s determination of reasonable attorneys’ fees and
costs is a discretionary ruling that this Court reviews under the abuse of discretion standard.
Lewis v. Sec’y of Health & Hum. Servs., 149 Fed. Cl. 308, 313 (2020) (first citing Hall v. Sec’y
of Health & Hum. Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011); and then citing Caves v. Sec’y of
Dep’t of Health & Hum. Servs., 111 Fed. Cl. 774, 778–79 (2013)). An abuse of discretion occurs
when “(1) the court’s decision is clearly unreasonable, arbitrary, or fanciful; (2) the decision is
based on an erroneous conclusion of law; (3) the court’s findings are clearly erroneous; or (4) the
record contains no evidence on which the . . . court rationally could have based its decision.” Id.
at 313–14 (quoting Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1022 (Fed. Cir.
1986)).
Abuse of discretion “is a highly deferential standard of appellate review.” Bayer
CropScience AG v. Dow AgroSciences LLC, 851 F.3d 1302, 1306 (Fed. Cir. 2017). This Court
“must grant the special master wide latitude in determining the reasonableness of both attorneys’
fees and costs.” Hines ex rel. Sevier v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750, 753
(1991). Nonetheless, this wide latitude does not amount to a “rubber stamp.” Lewis, 149 Fed.
Cl. at 314 (quoting Paluck v. Sec’y of Health & Hum. Servs., 104 Fed. Cl. 457, 467 (2012)). And
any legal questions raised by a special master’s ruling are reviewed de novo. Munn v. Sec’y of
Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
III. Legal Standards
Under the Vaccine Act, a prevailing petitioner shall be awarded reasonable attorneys’
fees and other costs incurred during the petition proceedings. 42 U.S.C. § 300aa–15(e)(1). Fees
for experts “are subject to the same reasonableness standard as [attorneys’ fees].” Lewis, 149
Fed. Cl. at 314 (quoting Frantz v. Sec’y of Health & Hum. Servs., 146 Fed. Cl. 137, 145 (2019)).
A special master may use the “lodestar approach” to determine reasonable fees. Avera v. Sec’y
of Health & Hum. Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008) (citation omitted). This is a
two-step process: first, the special master determines a reasonable hourly rate and multiplies it by
a reasonable number of hours spent on litigation. Id. at 1347–48 (quoting Blum v. Stenson, 465
U.S. 886, 888 (1984)). Second, the special master may depart from this initial calculation “based
on other specific findings.” Id. at 1348.
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The petitioner bears the burden to establish the lodestar. Sabella v. Sec’y of Health &
Hum. Servs., 86 Fed. Cl. 201, 205 (quoting Rupert ex rel. Rupert v. Sec’y of Health & Hum.
Servs., 52 Fed. Cl. 684, 686 (2002)). The petitioner must “show that the hours claimed are
reasonable . . . and that proper documentation of the hours expended and hourly rates has been
submitted.” Id. at 211 (citations omitted). The petitioner must also prove the appropriate hourly
rate. Lewis, 149 Fed. Cl. at 314 (citations omitted).
A determination of the reasonable number of hours must exclude “hours that are
excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health &
Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433–34 (1983)). The reasonable hourly rate is “‘the prevailing market rate,’ defined as the rate
‘prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.’” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11).
Special masters should use the forum (here, the District of Columbia) to determine the market
rate, unless the bulk of the work is done outside the District and rates are substantially lower
there. Id. at 1349 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v.
EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). The special master “must adequately explain his
reasons for developing the stated reasonable rate.” Sabella, 86 Fed. Cl. at 205 (citing Rupert, 52
Fed. Cl. at 694).
Fee applicants must provide contemporaneous billing records. Lewis, 149 Fed. Cl. at 317
(first citing Rumsey v. Dep’t of Just., 866 F.3d 1375, 1379 (Fed. Cir. 2017); then citing
Naporano Iron & Metal Co. v. United States, 825 F.2d 403, 404 (Fed Cir. 1987); and then citing
Am. Fed. Bank, FSB v. United States, 74 Fed. Cl. 208, 223 (2006)). Under this Court’s Rules, a
petitioner seeking reimbursement of expert costs must submit “(a) contemporaneous time sheets
showing how many hours were billed on a specific task multiplied by a proposed hourly rate; and
(b) any other information petitioner deems necessary to substantiate the reasonableness of the
work for which reimbursement is being sought.” RCFC 2d Supp. to App. B, Rule 3; see also
RCFC 2d Supp. to App. B, Rule 1(a)(i)(B) (“Each individual task should have its own entry
indicating the amount of time dedicated to that task. Time should be billed in increments of
one-tenth of an hour.”).
The “failure to document the claimed costs results in denial of that claim.” Sabella, 86
Fed. Cl. at 205 (quoting Wilcox v. Sec’y of Health & Hum. Servs., No. 90-991V, 1997 WL
101572, at *4 (Fed. Cl. Spec. Mstr. Feb. 14, 1997)); see also Naporano, 825 F.2d at 404 (“The
court needs contemporaneous records of exact time spent on the case . . . . In the absence of such
an itemized statement, the court is unable to determine whether the hours, fees and expenses, are
reasonable for any individual item.”) (citation omitted). A court has no obligation to reconstruct
the petitioner’s bills. See Naporano, 825 F.2d at 405.
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IV. Discussion
A. The Special Master Reasonably Reduced Hours Spent Reviewing Literature.
The Special Master’s reduction of time for reviewing medical literature and case law is
not an abuse of discretion. He determined Petitioner’s counsel spent “more time than expected
on almost all articles filed as exhibits,” citing her thirty-minute review of the Atanasoff article as
an example because (1) it should have been familiar to counsel, (2) its terminology was not
complicated, and (3) it was only four pages long. Dec. at 7–8. The Special Master concluded
counsel also excessively charged for reviewing legal opinions, citing an invoice item for one
hour to review a twenty-two page opinion with additional entries to review the same case. Id. at
8.
To determine a reasonable number of hours, the Special Master may draw on prior
experience with Vaccine Program fee applications. See Saxton, 3 F.3d at 1521 (“It [is] well
within the special master’s discretion to reduce the hours to a number that, in his experience and
judgment, was reasonable for the work done.”). The reduction of time based on special masters’
estimates of reasonable efficiency is a well-established practice. See, e.g., Thompson v. Sec’y of
Health & Hum. Servs., No. 12-475V, 2018 WL 1559799, at *3–4 (Fed. Cl. Spec. Mstr. Feb. 28,
2018) (reducing fees awarded by $1,999.90 based on the special master’s estimate that it should
not take six minutes to enter a date on one’s calendar); Yang v. Sec’y of Health & Hum. Servs.,
No. 10-33V, 2013 WL 4875120, at *7 (Fed. Cl. Spec. Mstr. Aug. 22, 2013) (reducing time for
billing thirty minutes to draft and file a notice of intent to remain in the Vaccine Program to
fifteen minutes).
In Caves v. Sec’y of Health & Hum. Servs., for example, the Court upheld a special
master’s determination that an expert “should have . . . been somewhat familiar with the
literature” and therefore be capable of greater efficiency. 111 Fed. Cl. 774, 783 (2013).
Similarly, in Broekelschen v. Sec’y of Health & Hum. Servs., the Court upheld the reduction of
thirty-five hours to seven hours based on an estimate of one page per minute as a reasonable
reading speed for experienced counsel. No. 07-137V, 2008 WL 5456319, at *8. Likewise, in
Morse v. Sec’y of Health & Hum. Servs., the Court upheld a twenty-seven hour reduction from
forty total billed hours where the petitioner failed to show that the special master’s efficiency
estimate was “the product of erroneous fact finding, misinterpretation of law, or error of
judgment.” 89 Fed. Cl. 683, 689 (2009) (citation omitted).
Here, Petitioner argues against the reduction of time because “repetition does not negate
necessity,” “complexity is not measured by page length,” and other courts have upheld spending
half-an-hour or more on similar article review. Mot. for Review at 5–6 (citing O’Neill v. Sec’y of
Health & Hum. Servs, No. 08-243V, 2015 WL 2399211 (Fed. Cl. Spec. Mstr. Apr. 28, 2015)).
But the Special Master did not suggest it is unnecessary to be thorough when reviewing
materials—rather, he made an estimate of reasonable efficiency. Such an incremental,
experience-based reduction lies squarely within the Special Master’s discretion.
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Furthermore, citations to other decisions awarding similar charges do not contradict the
reasonableness of a different outcome. See Lewis, 149 Fed. Cl. at 315 (rejecting petitioner’s
argument that three cases awarding a $500 hourly rate obligated the special master to do the
same). So long as the Special Master articulated a rational basis to estimate the appropriate
number of hours, this Court must defer to his discretion. See id. Here, the Special Master based
the modest $4,000 reduction on his prior experience and example invoices he found
unreasonable. Because his determinations rest on relevant experience and rational standards of
efficiency, the $4,000 reduction is affirmed.
B. The Special Master Abused his Discretion by Reducing Dr. Natanzi’s Rate
without Citing Evidence of a Prevailing Market Rate.
The Special Master’s reduction of Dr. Natanzi’s rate from $600 per hour to $500 per hour
is an abuse of discretion because the cited evidence does not support the reduction. The Special
Master must make a reasonable estimate of the “prevailing market rate” for Dr. Natanzi’s
services. See Avera, 515 F.3d at 1348 (citing Blum, 465 U.S. at 896 n.11). He found that “Dr.
Natanzi’s work has typically been compensated at $500.00 by the undersigned and other special
masters.” Dec. at 8 (citing Karapetian, 2022 WL 1865083, at *3).
However, the one case he cites in support of this finding does not discuss Dr. Natanzi’s
rate. Instead, it awarded a $500 hourly rate to a neurologist named Dr. Frederick Nahm. See
Karapetian, 2022 WL 1865083, at *3. Dr. Natanzi is a rehabilitation specialist, not a
neurologist. Dec. at 2. Though it may indeed exist, the Special Master provides no case law or
other authority to support a prevailing market rate of $500 for Dr. Natanzi or similarly qualified
rehabilitation specialists.
Furthermore, even if the Special Master recalls awarding a $500 rate to Dr. Natanzi based
on prior experience, courts should take inflationary adjustments into account when evaluating
rates. Local forum rates “are usually determined by finding a reasonable rate for one year, and
then increasing it or decreasing it by an inflation factor.” Anthony v. Sec’y of Health & Hum.
Servs., No. 14-680, 2016 WL 7733084, at *2 (Fed. Cl. Spec. Mstr. Dec. 15, 2016) (citations
omitted). For example, Petitioner provides a 2023 case in which the Chief Special Master
accepted Dr. Natanzi’s $600 hourly rate. Mot. for Review at 6–7 (citing Peka v. Sec’y of Health
& Hum. Servs., No. 20-1099V, 2023 WL 9288151 (Fed. Cl. Dec. 20, 2023)). The Chief Special
Master awarded this rate even though it reflected an increase from 2022. Peka, 2023 WL
9288151, at *4 n.8.
Fees for experts and attorneys’ fees “are subject to the same reasonableness standard.”
Lewis, 149 Fed. Cl. at 314 (quoting Frantz v. Sec’y of Health & Hum. Servs., 146 Fed. Cl. 137,
145 (2019)). A special master “must adequately explain his reasons for developing the stated
reasonable rate.” Sabella, 86 Fed. Cl. at 205 (citing Rupert, 52 Fed. Cl. at 694). Without
accurate evidence supporting a prevailing market rate of $500 for Dr. Natanzi, the record is
insufficient to review the Special Master’s decision. The Court remands this matter to the
Special Master to determine a reasonable rate for Dr. Natanzi’s services citing applicable factors
and current prevailing rates.
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C. Because Petitioner Provided No Documentation of Dr. Natanzi’s Hours for
Testifying, the Special Master Reasonably Denied the Full Charge.
The Special Master acted within his discretion by completely denying Petitioner’s
unreasonable $28,800 charge for forty-eight straight hours of testimony by Dr. Natanzi.
Petitioner did not meet her burden to establish the reasonable number of hours Dr. Natanzi
testified and made no attempt to do so. The two hearing days at which Dr. Natanzi testified
lasted for around seven and two and a half hours, respectively, and he did not testify the entire
time. See Certified Transcript of November 29 Hearing at 82, 314, ECF No. 107; Certified
Transcript of November 30 Hearing at 319, 426, ECF No. 108. While of course impossible,
forty-eight straight hours of testimony are particularly glaring in the context of a hearing that
lasted nine and a half hours in its entirety.
Furthermore, an invoice for “[t]wo days of trial testimony” provides no basis upon which
the Special Master could reasonably estimate the hours Dr. Natanzi actually testified. Ordinarily,
if a statute requires the award of attorneys’ fees, then even “[w]here documentation is
inadequate, the [trial] court is not relieved of its obligation to award a reasonable fee.” Rumsey
v. Dep’t of Just., 866 F.3d 1375, 1380 (Fed. Cir. 2017) (quoting Slimfold Mfg. Co. v. Kinkead
Indus., Inc., 932 F.2d 1453, 1459 (Fed. Cir. 1991)). But the fee applicant in Rumsey still
provided itemized billing records, even though she conceded that her attorney’s charges should
not be fully compensable. See id. at 1381. Here, the invoice provides no breakdown of Dr.
Natanzi’s testimony that would allow the court to “fulfill its duty to examine the application for
noncompensable hours.” See id. at 1379 (quoting Gagnon v. United Technisource, Inc., 607
F.3d 1036, 1044 (5th Cir. 2010)). The Special Master had no obligation to “reconstruct the bills”
by attempting to deduce the hours Dr. Natanzi actually spent testifying. See Naporano, 825 F.2d
at 405.
As the Special Master notes, “Dr. Natanzi appeared in court in Ann Arbor, and ordinarily,
would be entitled to some compensation for his time.” Dec. at 9. But because Petitioner charged
a fictitious number of hours and failed to document even a reasonable estimate of Dr. Natanzi’s
testimony, the total denial of compensation is appropriate. See Sabella, 86 Fed. Cl. at 205.
D. The Special Master Acted Within his Authority to Enforce a Pretrial Order
by Deducting Double Dr. Natanzi’s First-Class Airfare.
By deducting double Petitioner’s $1,897.81 charge for Dr. Natanzi’s first-class airfare,
the Special Master effectively imposed an additional $1,897.81 sanction against Petitioner.
Although section 300aa–15(e)(1) of the Vaccine Act does not explicitly contemplate this kind of
penalty, the Special Master has authority under the Act and the Vaccine Rules to issue pretrial
orders and sanction parties for disobeying them.
Prior to the November hearings, the Special Master issued a Travel Order explicitly and
emphatically advising the parties that “[t]ravelers should fly on a commercial airline in coach
class. If a request for reimbursement of costs includes an airline fare more expensive than coach,
the request is likely to be deducted at TWICE the rate submitted.” Travel Order at 2 (emphasis
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in original). When Petitioner ignored this Order, the Special Master penalized her exactly as
warned. Dec. at 9.
Petitioner argues the double deduction “was punitive and inconsistent with the Vaccine
Act’s mandate to award ‘reasonable’ costs, not to impose sanctions.’” Mot. for Review at 8 (first
citing 42 U.S.C. § 300aa–15(e)(1); then citing Perreira v. Sec’y of Health & Hum. Servs., 27
Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); and then citing Valdes, 2009 WL
1456437, at *4)) (cleaned up). But section 300aa–15(e)(1) only pertains to attorneys’ fees;
Petitioner cites no Vaccine Act provision or case law limiting a special master’s authority to
sanction parties for violating an express order.
Special masters have “broad authority in conducting proceedings under the [Vaccine]
Act.” W.J. by R.J. v. Sec’y of Health & Hum. Servs., 93 F.4th 1228, 1242 (Fed. Cir. 2024)
(quoting Simanski v. Sec’y of Health & Hum. Servs., 671 F.3d 1368, 1371 (Fed. Cir. 2012)).
“This broad authority is embodied in . . . Vaccine Rule 1(b),” which provides that in “any matter
not specifically addressed by the Vaccine Rules, the special master may regulate applicable
practice, consistent with these rules and with the purpose of the Vaccine Act, to decide the case
promptly and efficiently.” Id. (quoting RCFC App. B, Rule 1(b)).
Under the Vaccine Act, special masters have authority to “conduct such hearings as may
be reasonable and necessary.” 42 U.S.C. § 300aa–12(d)(3)(B)(v). In support of this authority,
the Vaccine Rules contemplate the power to issue pretrial orders and enforce them with
sanctions, authorizing special masters to “order a party, its attorney, or both to pay the reasonable
expenses—including attorney’s fees—incurred because of any noncompliance with a scheduling
or other pretrial order.” RCFC App. B, Rule 5(c)(1). While this Rule discusses imposing
attorneys’ fees to compensate a party for costs incurred, the Rules do not suggest this is the only
mechanism available to special masters to enforce their orders. Cf W.J. by R.J., 93 F.4th at
1242–43 (upholding a special master’s authority to rule on 12(b)(6) motions to dismiss because
the Vaccine Rules authorize summary judgment rulings and “do not prohibit motion to dismiss
practice”).
The imposition of punitive attorneys’ fees to enforce orders are consistent with a special
master’s general authority to conduct hearings. “[S]pecial masters, like judges, have wide
latitude in managing their docket.” Id. at 1243 (citing Landis v. N. Am. Co., 299 U.S. 248,
254–55 (1936)). And federal judges have “inherent power to assess attorney’s fees against
counsel” in certain circumstances. Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (quoting
Roadway Exp. Inc. v. Piper, 447 U.S. 752, 765 (1980)). A “court may assess attorney’s fees as a
sanction for the ‘willful disobedience of a court order.’” Id. (quoting Alyeska Pipeline Serv. Co.
v. Wilderness Soc., 421 U.S. 240, 258 (1975)). To determine whether a party willfully disobeyed
an order, a court “need not find that the party acted in bad faith.” Stiegler v. Sec’y of Health &
Hum. Servs., 176 Fed. Cl. 786, 802 (2025) (quoting Pyramid Real Est. Servs., LLC v. United
States, 95 Fed. Cl. 613, 623 (2010)). Instead, it may find a willful violation “when it determines
that a party took an action that ‘it knew or should have known to be contrary to an express court
order.’” Id. (quoting Pac. Gas & Elec. Co. v. United States, 82 Fed. Cl. 474, 483 (2008)).
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When assessing attorneys’ fees, a court “must comply with the mandates of due process.”
Chambers, 501 U.S. at 50 (citing Roadway Exp., 447 U.S. at 767). Due process requires that
“deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity
for hearing appropriate to the nature of the case.” Allen v. United States, 88 F.4th 983, 987 (Fed.
Cir. 2023) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)); see
also Roadway Exp., 447 U.S. at 767 (“Like other sanctions, attorney’s fees certainly should not
be assessed lightly or without fair notice and an opportunity for a hearing on the record.”).
Here, Petitioner had both notice and an opportunity to be heard. The Travel Order was
her notice; it made its warning clear. Travel Order at 2 (advising that requests for first-class
airfare were “likely to be deducted at TWICE the rate submitted”). Petitioner should have
known that an unexplained invoice for first-class airfare would violate the Order. See Stiegler,
176 Fed. Cl. at 802 (finding it “readily apparent” that petitioner’s counsel should have known
filing a reply brief was contrary to an express court order denying permission to file one).
Petitioner’s motion for attorneys’ fees and costs was her opportunity to be heard.
Knowing that a first-class charge violated the Travel Order, Petitioner had the opportunity to
explain why Dr. Natanzi flew first-class anyway. She did not. See Pet’r’s App. at 1–4.
Furthermore, a court does not need to hold a hearing to sanction an attorney when “[a]ll the
relevant ‘conduct’ is laid out in the briefs themselves” and “neither the mental state of the
attorney nor any other factual issue is pertinent to the imposition of sanctions.” Romala Corp. v.
United States, 927 F.2d 1219, 1226–27 (Fed. Cir. 1991) (quoting Hill v. Norfolk W. Ry. Co., 814
F.2d 1192, 1201–02 (7th Cir. 1987)). Presented with an unexplained violation of a court order,
the Special Master reasonably imposed the double deduction as he said he would.
Petitioner attempts to defend the first-class airfare for the first time in her Motion for
Review, but her arguments are as unavailing as they are late. She submits that “first-class can be
available at or near coach rates depending on departure time,” and “[p]unishing Petitioners for a
ticket label, rather than assessing the reasonableness of the actual fare, is arbitrary.” Mot. for
Review at 9. Such a justification should have been presented to the Special Master, not this
Court. As Respondent points out, under the Vaccine Rules, “[a]ny fact or argument not raised
specifically in the record before the special master will be considered waived and cannot be
raised by either party in proceedings on review of a special master’s decision.” Resp. to Mot. for
Review at 7 (quoting RCFC App. B, Rule 8(f)(1)).
Furthermore, Petitioner has not provided evidence, either to the Special Master or this
Court, that Dr. Natanzi’s first-class airfare was, in fact, “at or near coach rates.” Mot. for
Review at 9. And she bore the burden of providing documentation necessary to substantiate the
reasonableness of the cost for which reimbursement is being sought. See RCFC 2d Supp. to
App. B, Rule 13(a)(1); Lewis, 149 Fed. Cl. at 317. Without a compelling reason for violating the
Travel Order, this Court applies the abuse of discretion standard and defers to the Special
Master’s determination that first-class airfare was an unreasonable charge. See Hines, 22 Cl. Ct.
at 753. The $3,795.62 deduction for first-class airfare is affirmed.
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V. Conclusion
For these reasons, the Petitioner’s Motion for Review is GRANTED-IN-PART and
DENIED-IN-PART. ECF No. 128. The Special Master’s August 8, 2025 Decision on
Attorneys’ Fees and Costs is AFFIRMED-IN-PART and VACATED-IN-PART. ECF No.
126. This matter is REMANDED to the Special Master to provide a sufficient basis to
determine Dr. Natanzi’s hourly rate and recalculate Petitioner’s costs.
Petitioner is awarded interim fees of $128,265.95 for her attorneys’ fees. Pursuant to
Rule 54(b), there being no just reason for delay, the Clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.
s/ Carolyn N. Lerner
CAROLYN N. LERNER
Judge
11