VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01586 Package ID: USCOURTS-cofc-1_19-vv-01586 Petitioner: Carl Jordan Filed: 2019-10-11 Decided: 2022-11-15 Vaccine: influenza Vaccination date: 2016-11-16 Condition: Bell's palsy Outcome: dismissed Award amount USD: AI-assisted case summary: Carl Jordan received an influenza vaccine on November 16, 2016, and subsequently filed a petition alleging he suffered Bell's palsy as a result. Mr. Jordan passed away during the proceedings, and his sister, Denese Jordan, was substituted as executrix of his estate. The petitioner's counsel was unable to secure an expert report to support the claim. Consequently, the petitioner moved for a decision dismissing the case, understanding that this would result in a judgment against her and end her rights in the Vaccine Program, while preserving her right to file a civil action. Respondent had no objection to the motion. The court reviewed the record and, in light of the petitioner's motion and the lack of evidence to establish entitlement under the Vaccine Injury Table or prove causation, found that the petitioner was not entitled to compensation. The case was dismissed, and judgment was entered accordingly. Theory of causation field: unclear Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01586-0 Date issued/filed: 2022-12-12 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 11/15/2022) regarding 87 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (kis) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01586-UNJ Document 88 Filed 12/12/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: November 15, 2022 * * * * * * * * * * * * * * * * * * * DENESE JORDAN, Executrix of the * UNPUBLISHED Estate of Carl Jordan, Deceased, * * Petitioner, * No. 19-1586V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Petitioner’s Motion for a Decision AND HUMAN SERVICES, * Dismissing Her Petition; Influenza (“Flu”) * Vaccine; Bell’s Palsy. Respondent. * * * * * * * * * * * * * * * * * * * * * Amy Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Debra Begley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION1 On October 11, 2019, Carl Jordan, deceased, filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that as a result of an influenza (“flu”) vaccine administered on November 16, 2016, he suffered injuries including Bell’s palsy. Amended Petition at Preamble (ECF No. 33). Mr. Jordan subsequently passed away and on June 27, 2022, the Court granted Petitioner’s motion to substitute for the deceased party his sister, Denese Jordan, as executrix of Mr. Jordan’s estate (“Petitioner”). Order dated June 27, 2022 (ECF No. 78). The information in the record, however, does not show that Petitioner is entitled to an award under the Program. 1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is 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). 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act. 1 Case 1:19-vv-01586-UNJ Document 88 Filed 12/12/22 Page 2 of 2 On November 11, 2022, Petitioner moved for a decision dismissing her case, stating that “[f]ollowing multiple attempts to secure an expert report, Petitioner was unable to do so. In these circumstances, to proceed further would be unreasonable, and would waste the resources of this Court, Respondent, and the Vaccine Program.” Petitioner’s Motion for Decision Dismissing Petition, filed Nov. 11, 2022, at ¶¶ 5-6 (ECF No. 86). “Petitioner understands that a decision dismissing her Petition will result in a judgment against her. Petitioner has been advised that such a judgment will end all of her rights in the Vaccine Program.” Id. at ¶ 7. “Petitioner does intend to protect her rights to file a civil action in the future. Therefore, pursuant to 42 U.S.C. §300aa-21(a)(2), she intends to elect to reject the Vaccine Program Judgment against her and elect to file a civil action.” Id. at ¶ 9. Respondent confirmed via email on November 14, 2022, that Respondent has no objection to Petitioner’s motion. To receive compensation under the Program, Petitioner must prove either (1) that she suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that she suffered an injury that was actually caused by the vaccination. See §§ 11(c)(1), 13(a)(1)(A). The records submitted by Petitioner show that she does not meet the statutory requirement under § 11(c)(1)(D)(i) to establish entitlement to compensation. The Federal Circuit has explained that the eligibility requirements in Section 11(c) are not mere pleading requirements or matters of proof at trial, but instead are “threshold criteri[a] for seeking entry into the compensation program.” Black v. Sec’y of Health & Hum. Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996). Accordingly, in light of Petitioner’s motion and a review of the record, the undersigned finds that Petitioner is not entitled to compensation. Thus, this case is dismissed. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01586-cl-extra-10736306 Date issued/filed: 2024-02-02 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269716 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS (Filed: December 20, 2023) * * * * * * * * * * * * * * DENESE JORDON, Executrix of the * UNPUBLISHED ESTATE OF CARL JORDON * deceased, * * No. 19-1586V Petitioner, * * Special Master Dorsey v. * * Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, D.C., for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On October 11, 2019, Carl Jordan, deceased, filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that as a result of an influenza (“flu”) vaccine administered on November 16, 2016, he suffered injuries including Bell’s palsy. Amended Petition at Preamble (ECF No. 33). Mr. Jordan subsequently passed away and on June 27, 2022, the Court granted Petitioner’s motion to substitute for the deceased party his sister, Denese Jordan, as executrix of Mr. Jordan’s estate (“Petitioner”). On 1 This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public in its current form. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. November 11, 2022, petitioner filed a motion to dismiss and on November 11, 2022, the undersigned issued her decision dismissing the petition for insufficient proof. (ECF No. 87). On June 14, 2023, petitioner filed an application for attorneys’ fees and costs. Motion for Attorney Fees and Costs (ECF No. 91). Petitioner requests compensation in the amount of $22,705.40, representing $21,950.50 in attorneys’ fees and $754.90 in costs. Fees App. at 2. Pursuant to General Order No. 9, petitioner warrants that she has not personally incurred any costs in pursuit of the claim for compensation. Id. Respondent did not file a response to petitioner’s motion. The matter is now ripe for disposition. For the reasons discussed below, the undersigned GRANTS petitioner’s motion and awards a total of $22,705.40. I. Discussion Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). When compensation is not awarded, the special master “may” award reasonable attorneys’ fees and costs “if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Id. at §15(e)(1). In this case, although the petition was eventually dismissed, the undersigned is satisfied that the case maintained good faith and reasonable basis until it was dismissed. Respondent also has not offered any opposition to the claim’s good faith or reasonable basis. Accordingly, petitioner is entitled to a final award of reasonable attorneys’ fees and costs. a. Reasonable Attorneys’ Fees The Federal Circuit has approved use of the lodestar approach to determine reasonable attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348. Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent 2 and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of a petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests … [v]accine program special masters are also entitled to use their prior experience in reviewing fee application.” Saxton, 3 F. 3d at 1521. i. Reasonable Hourly Rates Petitioner requests the following hourly rates for the work of her counsel: for Ms. Amy Senerth, $275.00 per hour for work performed in 2020, $300.00 per hour for work performed in 2021, $325.00 per hour for work performed in 2022, and $375.00 per hour for work performed in 2023; and for Ms. Shealene Mancuso, $225.00 per hour for work performed in 2017, $233.00 per hour for work performed in 2018, $250.00 per hour for work performed in 2019 and $275.00 per hour for work performed in 2020. 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. ii. Reasonable Hours Expended In reducing an award of fees, the goal is to achieve rough justice, and therefore a special master may take into account their overall sense of a case and may use estimates when reducing an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well established that an application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and costs claimed. Id. at *8. The undersigned has reviewed the submitted billing entries and finds the total number of hours billed to be reasonable. The billing entries accurately reflect the nature of the work performed and the undersigned does not find any of the entries to be objectionable. Respondent also has not indicated that he finds any of the entries to be objectionable either. Petitioner is therefore awarded final attorneys’ fees of $21,950.50. b. Attorneys’ Costs 3 Petitioner requests a total of $754.90 in attorneys’ costs. This amount is comprised of acquiring medical records, the Court’s filing fee, and postage costs. The undersigned has reviewed the requested costs and finds them to be reasonable. Accordingly, the full amount of costs shall be awarded. II. Conclusion Based on all of the above, the undersigned finds that it is reasonable compensate petitioner and her counsel as follows: Attorneys’ Fees Requested $21,950.50 (Total Reduction from Billing Hours) - Total Attorneys’ Fees Awarded $21,950.50 Attorneys’ Costs Requested $754.90 (Reduction of Costs) - Total Attorneys’ Costs Awarded $754.90 Total Attorneys’ Fees and Costs Awarded $22,705.40 Accordingly, the undersigned awards $22,705.40 in attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Ms. Amy Senerth. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 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. 4