VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01358 Package ID: USCOURTS-cofc-1_19-vv-01358 Petitioner: Carmine Maiorano Filed: 2019-09-06 Decided: 2023-08-31 Vaccine: influenza Vaccination date: 2016-09-22 Condition: transverse myelitis Outcome: compensated Award amount USD: 262953 AI-assisted case summary: Carmine Maiorano filed a petition on September 6, 2019, alleging that the influenza vaccine he received on September 22, 2016, caused him to suffer from transverse myelitis (TM) and that the injury lasted for more than six months. The respondent denied that the flu vaccine caused Petitioner's TM or any other injury. On July 21, 2023, the parties filed a joint stipulation agreeing that a decision should be entered awarding compensation to Petitioner. The stipulation stated that Petitioner would receive a lump sum of $262,953.35 for first-year life care expenses, pain and suffering, and past unreimbursable expenses, and an additional amount to purchase an annuity contract. Special Master Herbrina Sanders found the stipulation reasonable and adopted it as the decision of the Court, ordering that judgment be entered in accordance with the terms of the stipulation. Petitioner was represented by Lawrence R. Cohan of Saltz Mongeluzzi & Bendesky, and Respondent was represented by Catherine E. Stolar of the United States Department of Justice. The public decision does not describe the onset, specific symptoms, diagnostic tests, treatments, or the mechanism of injury. The public decision does not name any medical experts. Theory of causation field: Petitioner Carmine Maiorano alleged that the influenza vaccine administered on September 22, 2016, caused transverse myelitis (TM), with an injury lasting more than six months. Respondent denied causation. The parties reached a stipulation for compensation, agreeing to a lump sum of $262,953.35 for first-year life care expenses, pain and suffering, and past unreimbursable expenses, plus an amount for an annuity. Special Master Herbrina Sanders adopted the stipulation as the decision of the Court on August 31, 2023. The public decision does not detail the specific theory of causation, medical experts, or the mechanism of injury, nor does it provide a breakdown of the award beyond the initial lump sum components. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01358-0 Date issued/filed: 2023-08-31 Pages: 9 Docket text: PUBLIC DECISION (Originally filed: 07/31/2023) regarding 64 DECISION Stipulation/Proffer. Signed by Special Master Herbrina Sanders. (rig) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 1 of 9 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 31, 2023 * * * * * * * * * * * * * * * * * * * * * * * * * CARMINE MAIORANO, * No. 19-1358V * Petitioner, * Special Master Sanders v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner. Catherine E. Stolar, United States Department of Justice, Washington, DC, for Respondent. DECISION1 On September 6, 2019, Carmine Maiorano (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that the influenza (“flu”) vaccine he received on September 22, 2016, caused him to suffer from transverse myelitis (“TM”). Pet. at 1, ECF No. 1. Petitioner further alleged that his injury lasted for more than six months. See id. ¶ 50. On July 21, 2023, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. Stipulation ¶ 7, ECF No. 63. Respondent “denies that the flu vaccine caused [P]etitioner to suffer from TM or any other injury or his current condition.” Id. ¶ 6. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. See id. ¶ 7. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. The parties stipulate that Petitioner shall receive the following compensation: 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), 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, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 2 of 9 a. A lump sum of $262,953.35, which [ ] represents compensation for first-year life care expenses, pain and suffering, and past unreimbursable expenses, in the form of a check payable to [P]etitioner; and b. An amount sufficient to purchase the annuity contract described in paragraph 10 [of Appendix A], paid to the life insurance company from which the annuity will be purchased . . . . These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Id. ¶ 8. I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 3 of 9 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 4 of 9 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 5 of 9 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 6 of 9 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 7 of 9 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 8 of 9 Case 1:19-vv-01358-UNJ Document 68 Filed 08/31/23 Page 9 of 9 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01358-cl-extra-10791756 Date issued/filed: 2025-01-31 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10325168 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: November 15, 2024 * * * * * * * * * * * * * * CARMINE MAIORANO, * No. 19-1358V * Special Master Young Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner; Catherine Elizabeth Stolar, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On September 6, 2019, Carmine Maiorano (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq. (2018). Pet. at 1, ECF No. 1. Petitioner alleged that the influenza (“flu”) vaccine he received on September 22, 2016, caused him to suffer from transverse myelitis (“TM”). On July 21, 2023, the parties filed a stipulation, which I adopted as my decision awarding compensation on July 31, 2023. (ECF No. 64). On January 31, 2024, Petitioner filed a motion for attorneys’ fees and costs. Pet’r’s Mot. for Final Attorneys’ Fees and Costs [hereinafter “Pet’r’s Mot. for AFC”], ECF No. 69. Petitioner 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), 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, I agree that the identified material fits within this definition, I 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 (2018). requests total attorneys’ fees and costs in the amount of $32,082.52, representing $23,567.60 in attorneys’ fees and $8,514.92 in attorneys’ costs. Fees App. at 1. Pursuant to General Order No. 9, Petitioner has indicated that he has not personally incurred any costs in pursuit of his claim. Fees App. Ex. C. Respondent responded to the motion on February 8, 2024, stating that Respondent “is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case” and asking the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3 (ECF No. 70). Petitioner did not file a reply. This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because Petitioner was awarded compensation pursuant to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs. The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. a. Hourly Rate The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee Schedules can be accessed online.3 Petitioner requests the following hourly rates for the work of his counsel: for Mr. Lawrence Cohan, $440.00 per hour for work performed in 2018, $450.00 per hour for work performed in 2019, $470.00 per hour for work performed in 2020, $484.00 per hour for work performed in 2021, $505.00 per hour for work performed in 2022, and $553.00 per hour for work performed in 2023; and for Mr. David Carney, $315.00 per hour for work performed in 2018. These rates are consistent with what counsel have previously been awarded for their Vaccine Program work and the undersigned finds them to be reasonable herein. b. Reasonable Number of Hours Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Upon review, I find the overall hours billed to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review, the undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $23,567.60. c. Attorney Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $8,514.92 in attorneys’ costs comprised of acquiring medical records, postage, the Court’s filing fee, records retrieval services provided by Rosen, Schafer & Dimeo, and lifecare planner services provided by Ms. Roberta Hurley and related travel expenses. Fees App. Ex. B at 1-2, 21, 30, 45. Petitioner has provided adequate documentation of all these expenses, and they appear reasonable in the undersigned’s experience. Accordingly, Petitioner is awarded the full amount of costs sought. 3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to compensate Petitioner and his counsel as follows: Attorneys’ Fees Requested $23,567.60 (Reduction to Fees) - Total Attorneys’ Fees Awarded $23,567.60 Attorneys’ Costs Requested $8,514.92 (Reduction of Costs) - Total Attorneys’ Costs Awarded $8,514.92 Total Attorneys’ Fees and Costs $32,082.52 Accordingly, the undersigned awards a lump sum in the amount of $32,082.52 representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s attorneys, Saltz Mongeluzzi Bendesky. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.4 IT IS SO ORDERED. s/Herbrina Sanders Young Herbrina Sanders Young Special Master 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.