VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01397 Package ID: USCOURTS-cofc-1_19-vv-01397 Petitioner: Catalina Sastre Filed: 2019-09-12 Decided: 2023-05-30 Vaccine: influenza Vaccination date: 2017-10-09 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 50958.43 AI-assisted case summary: Catalina Sastre filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 9, 2017. She claimed to have experienced residual effects for more than six months. Respondent denied that petitioner sustained a Table injury for SIRVA or that the flu vaccine caused her injury. Despite these disagreements, the parties filed a joint stipulation to settle the case and award compensation. The court adopted the stipulation, awarding Catalina Sastre a total of $50,958.43. This amount included a lump sum of $40,000.00 payable to her, $4,261.38 to reimburse a Medicaid lien from the Commonwealth of Pennsylvania, and $4,697.05 to reimburse a Medicaid lien from the City of New York. These payments represent compensation for all eligible damages under the Vaccine Act. The stipulation also addressed future proceedings for attorneys' fees and costs. In return for these payments, Catalina Sastre released the United States and the Secretary of Health and Human Services from all claims related to the flu vaccine administered on October 9, 2017. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01397-0 Date issued/filed: 2023-05-30 Pages: 9 Docket text: PUBLIC DECISION (Originally filed: 5/5/2023) regarding 51 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (st) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 1 of 9 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1397V Filed: May 5, 2023 UNPUBLISHED CATALINA SASTRE, Petitioner, Joint Stipulation on Damages; v. Influenza (“Flu”) Vaccine; Shoulder Injury Related to Vaccine SECRETARY OF HEALTH AND Administration (SIRVA) HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Washington, DC, for petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On September 12, 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 she suffered a shoulder injury related to vaccine administration (“SIRVA”) following receipt of her October 9, 2017 influenza (“flu”) vaccination. Petition at 1; Stipulation, filed May 5, 2023, at ¶ 4. Petitioner further alleges that she has experienced the residual effects of her 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 her condition, and that her vaccine was administered in the United States. Petition at 3; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table injury for SIRVA, and denies that the flu vaccine caused petitioner to suffer a left shoulder injury or any other injury, and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6. 1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will be posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (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 the special master, upon review, agrees that the identified material fits within this definition, it will be redacted from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 2 of 9 Nevertheless, on May 5, 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 $40,000.00 in the form of a check payable to petitioner; and • A lump sum of $4,261.38, representing reimbursement of a Medicaid lien for services rendered to petitioner by the Commonwealth of Pennsylvania, in the form of a check payable jointly to petitioner and the Pennsylvania Department of Human Services: Bureau of Program Integrity Division of Third Party Liability Recovery Section P.O. Box 8486 Harrisburg, PA 17105-8486 Petitioner agrees to endorse this check to the Pennsylvania Department of Human Services; and • A lump sum of $4,697.05 representing reimbursement of a Medicaid lien for services rendered to petitioner by the City of New York, in the form of a check payable jointly to petitioner and the New York City Division of Liens and Recovery: New York City Division of Liens and Recovery P.O. Box 414733 Boston, MA 02241 Petitioner agrees to endorse this check to the New York City Division of Liens and Recovery. These amounts represent 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.3 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 3 of 9 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 4 of 9 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) CATALINA SASTRE, ) ) Petitioner, ) No. 19-1397V ) Special Master Horner v. ) ECF ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The parties hereby stipulate to the following matters: 1. Catalina Sastre (“petitioner”) filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt of an influenza (“flu”) vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). 2. Petitioner received the flu vaccine on October 9, 2017. 3. The vaccination was administered within the United States. 4. Petitioner alleges that she suffered from a left shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table, and suffered the residual effects of her alleged injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 5 of 9 6. Respondent denies that petitioner sustained a Table injury for SIRVA, and denies that the flu vaccine caused petitioner to suffer a left shoulder injury or any other injury, and denies that her current condition is a sequelae of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payments: A. A lump sum of $40,000.00 in the form of a check payable to petitioner; B. A lump sum of $4,261.38,1 representing reimbursement of a Medicaid lien for services rendered to petitioner by the Commonwealth of Pennsylvania, in the form of a check payable jointly to petitioner and the Pennsylvania Department of Human Services: Bureau of Program Integrity Division of Third Party Liability Recovery Section P.O. Box 8486 Harrisburg, PA 17105-8486 Petitioner agrees to endorse this check to the Pennsylvania Department of Human Services; and 1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of Pennsylvania may have against any individual as a result of any Medicaid payments the Commonwealth of Pennsylvania has made to or on behalf of Catalina Sastre from the date of her eligibility for benefits through the date of judgment in this case as a result of her alleged vaccine-related injury suffered on or about October 9, 2017, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h). 2 Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 6 of 9 C. A lump sum of $4,697.05,2 representing reimbursement of a Medicaid lien for services rendered to petitioner by the City of New York, in the form of a check payable jointly to petitioner and the New York City Division of Liens and Recovery: New York City Division of Liens and Recovery P.O. Box 414733 Boston, MA 02241 Petitioner agrees to endorse this payment to the New York City Division of Liens and Recovery. These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this petition. 10. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 2 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the City of New York may have against any individual as a result of any Medicaid payments the City of New York has made to or on behalf of Catalina Sastre from the date of her eligibility for benefits through the date of judgment in this case as a result of her alleged vaccine-related injury suffered on or about October 9, 2017, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h). 3 Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 7 of 9 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- 15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys’ fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccine administered on October 9, 2017, as alleged by petitioner in her petition for vaccine compensation filed on or about September 12, 2019, in the United States Court of Federal Claims as petition No. 19-1397V. 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 4 Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 8 of 9 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that petitioner sustained a Table injury, or that the flu vaccine either caused or significantly aggravated petitioner’s alleged injury or any other injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION / / / / / / / / / / 5 Case 1:19-vv-01397-UNJ Document 55 Filed 05/30/23 Page 9 of 9 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01397-cl-extra-10734315 Date issued/filed: 2024-09-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267725 -------------------------------------------------------------------------------- CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1397V Filed: June 27, 2024 CATALINA SASTRE, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 12, 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 she suffered a shoulder injury related to vaccine administration (“SIRVA”) following receipt of her October 9, 2017 influenza (“flu”) vaccination. Petition at 1. On May 5, 2023, the parties filed a joint stipulation, which I adopted as my decision awarding compensation on the same day. (ECF Nos. 50-51). On November 13, 2023, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 56) (“Fees App.”). Petitioner requests attorneys’ fees in the amount of $46,136.10 and attorneys’ costs in the amount of $3,419.12. Fees App. at 1. Pursuant to General Order No. 9, petitioner certified that she incurred postage costs totaling $10.40 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). related to the prosecution of her petition. Id. at 2. Thus, the total amount requested is $49,565.32. On November 14, 2023, respondent filed a response to petitioner’s motion. (ECF No. 57). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys' fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully requests that the Court exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner filed a reply on November 17, 2023. (ECF No. 58). 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. § 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 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 & 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, 434 (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. 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 (Fed. Cl. 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 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the 2 reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant part, 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 Petitioner requests the following rates of compensation for his attorneys: for Ms. Leah V. Durant (“LVD”), $377.00 per hour for work performed in 2018, $380.00 per hour for work performed in 2019, $395.00 per hour for work performed in 2020, $420.00 for work performed in 2021, $441.00 for work performed in 2022, and $463.00 per hour for work performed in 2023; for Mr. Glenn MacLeod (“GM”), $525.00 per hour for work performed in 2022, and $553.00 for work performed in 2023; for Ms. Summer Abel (“SA”), $250.00 per hour for work performed in 2019, and $260.00 per hour for work performed in 2020; and for Ms. Tiffany Greaves (“TG”), $315.00 per hour for work performed in 2022. 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. 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. 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, 2015 WL 5634323, at *26. Upon review, the overall number of hours billed appears to be reasonable. 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 $46,136.10. c. Attorneys’ 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 $3,419.12 in attorneys’ costs, comprised of acquisition of medical records, review of those records by Mr. Timothy Hancock, postage, Medicaid lien resolution fees, and the Court’s filing fee. Fees App. Ex. 2 at 15. These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought. 3 Pursuant to General Order No. 9, petitioner states that personal costs were incurred in the amount of $10.40. Fees App. at 2. Petitioner has provided adequate documentation supporting the requested cost and she is awarded the full amount requested. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), 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 her counsel as follows: 1) A lump sum in the amount of $49,555.22, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Ms. Leah V. Durant. 2) A lump sum of $10.40 in the form of a check payable to petitioner. 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