VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01362 Package ID: USCOURTS-cofc-1_19-vv-01362 Petitioner: Kevin Kelly Filed: 2019-09-06 Decided: 2024-03-25 Vaccine: influenza Vaccination date: 2016-09-12 Condition: Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) Outcome: compensated Award amount USD: 82500 AI-assisted case summary: Kevin Kelly filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered from Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) as a result of his influenza vaccination on September 12, 2016. He also alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) and Parsonage-Turner syndrome, though the respondent denied these conditions were vaccine-related. The respondent denied that the flu vaccine caused Mr. Kelly's CIDP or any other injury. Despite the denial, the parties filed a joint stipulation agreeing that compensation should be awarded. The court found the stipulation reasonable and adopted it as the decision of the Court. Mr. Kelly was awarded a lump sum of $82,500.00, which represents compensation for all items of damages available under the Vaccine Act. The decision was filed on March 25, 2024, following the petition filed on September 6, 2019. Theory of causation field: unclear Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01362-0 Date issued/filed: 2024-03-25 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 6/29/2023) regarding 47 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1362V Filed: June 29, 2023 UNPUBLISHED KEVIN KELLY, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner. Catherine Elizabeth Stolar , U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On September 6, 2019, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”) as a result of his September 12, 2016, influenza (“flu”) vaccination.3 Petition at 1; Stipulation, filed June 28, 2023, at ¶¶ 3-4. Petitioner further alleges that he has experienced the residual effects of his condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of his condition, and that his vaccine was administered in the United States. Petition at 8; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused 1 Because this document 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 document 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 (2012). 3 Petitioner also alleged that he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) and Parsonage-Turner syndrome. Petition at 1. “Respondent denies that petitioner suffered from these conditions, and, if he did suffer from these conditions, then respondent denies that they were due to his flu vaccination.” Stipulation at 1 n.2. Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 2 of 7 petitioner to develop CIDP or any other injury or his current condition. ” Stipulation at ¶ 6. Nevertheless, on June 28, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $82,500.00 in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.4 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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. 2 Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 3 of 7 Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 4 of 7 Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 5 of 7 Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 6 of 7 Case 1:19-vv-01362-UNJ Document 56 Filed 03/25/24 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01362-cl-extra-10735650 Date issued/filed: 2024-04-12 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269060 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 18, 2024 * * * * * * * * * * * * * * UNPUBLISHED KEVIN KELLY, * No. 19-1362V * Special Master Horner Petitioner, * * v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Paul Brazil, Muller Brazil LLP, Dresher, PA, for Petitioner. Catherine Elizabeth Stolar, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS 1 On September 6, 2019, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10-34 (2018), 2 alleging that he suffered Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”) as a result of his September 12, 2016, influenza (“flu”) vaccination. (ECF No. 1.) On June 28, 2023, the parties filed a joint stipulation, which I adopted as my decision awarding compensation on June 29, 2023. (ECF No. 47). On October 2, 2023, 2023, petitioner filed an application for attorneys’ fees and costs. (ECF No. 51 (“Fees App”).) Petitioner requests total attorneys’ fees and costs in the amount of $31,774.76, representing $30,718.70 in attorneys’ fees and $1,056.06 in costs. (Fees App., p. 2.) Pursuant to General Order No. 9, petitioner has indicated that he has not personally incurred any 1 Because this document 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 document 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 All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa- 10-34. costs in pursuit of this litigation. (Ex. 4.) Respondent filed a response on October 3, 2023, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” (ECF No. 52 (“Response”), p. 2.) Thereafter, 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 costs. § 300aa-15(e). 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 & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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 ex rel. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines ex rel. Sevier 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 ex rel. Savin v. Sec’y of Health & Human 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, 433-34 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 894-95. 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 at 897. Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). When determining the relevant fee reduction, special masters need not engage in a line- by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson ex rel. Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), aff’d per curiam, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521. a. Hourly Rates 2 Petitioner requests the following rates of compensation for his attorneys: for Mr. Paul Brazil, $325.00 per hour for work performed in 2019, $350.00 per hour for work performed in 2020, $375.00 per hour for work performed in 2021, $400.00 per hour for work performed in 2022 and $425.00 per hour for work performed in 2023. (Fees App., p. 1.) These rates are consistent with what counsel have previously been awarded for their Vaccine Program work and the undersigned finds them to be reasonable. b. Hours Expended 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, 461 U.S. at 433-34). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *26 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Upon review, the overall number of hours billed appears to be reasonable. Additionally, I have reviewed the billing entries and find that they adequately describe the work done on the case and the amount of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent identified any as such. Petitioner is therefore awarded final attorneys’ fees of $30,718.70. c. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira ex rel. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Petitioner requests a total of $1,056.06 in attorneys’ costs. (Fees App., p. 2.) This amount is comprised of acquisition of medical records, the Court’s filing fee, and postage. (Fees App., p. 2; Ex. B.). These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2018), I have reviewed the billing records and costs in this case and finds that petitioner’s request for fees and costs is reasonable. I find it reasonable to compensate petitioner and his counsel as follows: a lump sum in the amount of $31,774.76, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Mr. Paul Brazil. 3 In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court shall enter judgment in accordance herewith. 3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 4