VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01424 Package ID: USCOURTS-cofc-1_19-vv-01424 Petitioner: Julia Simpson Filed: 2019-09-17 Decided: 2023-06-20 Vaccine: influenza Vaccination date: 2018-10-08 Condition: shoulder injury related to vaccine administration Outcome: dismissed Award amount USD: AI-assisted case summary: Julia Simpson filed a claim alleging she suffered a shoulder injury related to vaccine administration (SIRVA) following her October 8, 2018, influenza vaccination. She filed her petition with the Court of Federal Claims on September 17, 2019. The respondent, the Secretary of Health and Human Services, filed a report recommending against compensation. On May 25, 2023, Ms. Simpson filed a motion to dismiss her own petition, stating she was unable to secure evidence to prove entitlement to compensation. She indicated that proceeding further would be unreasonable and a waste of resources. The respondent did not object to the motion. The Special Master granted the motion, dismissing the petition because Ms. Simpson failed to establish a prima facie case of entitlement, as her medical records did not support her allegations by a preponderance of the evidence and she did not file an expert medical opinion. The case was dismissed on June 20, 2023. Theory of causation field: unclear Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01424-0 Date issued/filed: 2023-06-20 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 5/26/2023) regarding 47 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01424-UNJ Document 49 Filed 06/20/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1424V Filed: May 26, 2023 UNPUBLISHED JULIA SIMPSON, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. William E. Cochran, Jr., Black, McLaren, Jones, Ryland & Griffee, P.C., Memphis, TN, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. DECISION1 On September 17, 2019, petitioner filed a claim under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following receipt of her October 8, 2018, influenza (“flu”) vaccination. (ECF No. 1.) On May 24, 2021, respondent filed his Rule 4 report, recommending against compensation. (ECF No. 28.) On May 25, 2023, petitioner filed a motion for a decision dismissing her petition. (ECF No. 46.). In her motion, petitioner indicated that she “has been unable to secure evidence to prove entitlement to compensation in the vaccine program.” She continues that “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the court, the respondent, and the vaccine program.” (ECF No. 46, p. 1.) Petitioner further stated that she “has been advised by counsel that a decision by the 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. Case 1:19-vv-01424-UNJ Document 49 Filed 06/20/23 Page 2 of 2 Special Master dismissing the petition will result in a judgment against petitioner. Petitioner has been advised that such a judgement will end all of petitioner’s rights in the vaccine program.” (Id.) Petitioner confirms that respondent has no objection to her motion. (Id. at 2.) To receive compensation in the Vaccine Program, petitioner must prove either (1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy her burden of proving causation in fact, petitioner must show by preponderant evidence: “(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 & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from ruling for petitioner based solely on her allegations unsubstantiated by medical records or medical opinion. Petitioner’s medical records do not support her allegations by a preponderance of the evidence and she did not file a medical opinion from an expert in support of her allegations. Accordingly, the undersigned GRANTS petitioner’s Motion for Decision Dismissing Petition and DISMISSES this petition for failure to establish a prima facie case of entitlement to compensation. CONCLUSION This case is now DISMISSED. The clerk of the court is directed to enter judgment in accordance with this decision.2 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01424-cl-extra-10735635 Date issued/filed: 2024-04-12 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269045 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 16, 2024 * * * * * * * * * * * * * * JULIA SIMPSON, * No. 19-1424V * Special Master Horner Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * William E. Cochran, Jr., Black McLaren, et al., PC, Memphis, TN, for Petitioner. Ryan D. Pyles, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 17, 2019, Julia Simpson (“petitioner”) filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012)2, alleging she suffered a shoulder injury related to vaccine administration (“SIRVA”) following receipt of her October 8, 2018, influenza (“flu”) vaccination. (ECF No. 1.) On May 26, 2023, I issued my decision finding petitioner is not entitled to compensation and dismissing the petition for insufficient proof. (ECF No. 47). On July 6, 2023, petitioner filed an application for attorneys’ fees and costs. (ECF No. 52) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $49,040.13 representing $41,915.50 in attorneys’ fees and $7,124.63 in costs. Fees App. at 1. Pursuant to General Order No. 9, petitioner has indicated that she has not personally incurred any costs in pursuit of this litigation. Fees App. at 3. Respondent filed a response on July 6, 2023, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 54). Petitioner filed a supplemental brief on January 5, 2024. 1 I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling 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. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). (ECF No. 55). 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 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 2 Petitioner requests the following rates of compensation for her attorneys: for Mr. William Cochran,, $377.00 per hour for work performed in 2018, $391.00 per hour for work performed in 2019, $405.00 per hour for work performed in 2020, $420.00 per hour for work performed in 2021, $435.00 per hour for work performed in 2022, and $457.00 per hour for work performed in 2023; for Mr. Chris Webb, $395.00 per hour for work performed in 2022 and $415.00 per hour for work performed in 2023; and for Mr. Michael McLaren, $464.00 per hour for work performed in 2018 and $527.00 per hour for work performed in 2023. Upon review, I find that a reduction to the 2023 hourly rates proposed for Mr. Cochran, Mr. Webb, and firm paralegals must be applied because they exceed what has previously been found reasonable for their work. See, e.g., Leonard v. Sec’y of Health & Human Servs., No. 19-714V, 2023 WL 4543730 (Fed. Cl. Spec. Mstr. Jun. 8, 2023). The following hourly rates for 2023 will therefore be applied: $450.00 per hour for Mr. Cochran, $410.00 per hour for Mr. Webb, and $172.00 per hour for paralegals. Application of these rates results in a reduction of $215.40. 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 $41,700.10. 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 $7,124.63 in attorneys’ costs. This amount is comprised of acquisition of medical records, the Court’s filing fee, postage, and work performed by a medical expert, Dr. Uma Srikumaran. Fees App. at 29 - 52. 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) (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: a lump sum in the amount of $48,824.73, representing reimbursement for petitioner’s attorneys’ fees and 3 costs, in the form of a check payable to petitioner and petitioner’s counsel, Mr. William Cochran, Jr. 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.2 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 2 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