VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01959 Package ID: USCOURTS-cofc-1_19-vv-01959 Petitioner: Marva Hogan Filed: 2019-12-26 Decided: 2024-11-04 Vaccine: Td Vaccination date: 2018-01-26 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 110000 AI-assisted case summary: Marva Hogan filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) caused by a tetanus-diphtheria (Td) vaccine administered on January 26, 2018. The Chief Special Master issued a ruling on entitlement on September 25, 2023, finding that Ms. Hogan was entitled to compensation for a Table SIRVA. The ruling noted that while Ms. Hogan had some prior shoulder pain and was in a car accident, the evidence did not indicate a prior condition that would explain her post-vaccination symptoms. The decision found that her pain onset occurred within 48 hours of vaccination, was limited to her left shoulder, and that no other condition explained her symptoms. The respondent initially contested entitlement, arguing that the onset was not within 48 hours and that she had a history of prior shoulder pain, but ultimately conceded that the case was not appropriate for compensation under the terms of the Act for a SIRVA Table injury. On November 4, 2024, a decision awarding damages was issued. The parties agreed to a proffer of $110,000.00 as a lump sum payment for pain and suffering, representing compensation for all damages available under the Vaccine Act. Ms. Hogan is a competent adult, so no guardianship was required. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01959-0 Date issued/filed: 2023-10-31 Pages: 7 Docket text: PUBLIC ORDER/RULING (Originally filed: 09/25/2023) regarding 58 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1959V UNPUBLISHED MARVA BECK, Chief Special Master Corcoran Petitioner, Filed: September 25, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Entitlement to Compensation; Ruling HUMAN SERVICES, on the Record; Findings of Fact; Tetanus (“Td”); Shoulder Injury Respondent. Related to Vaccine Administration (SIRVA); Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 26, 2019, Marva Beck (“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”) caused by a tetanus-diphtheria (“Td”) vaccine administered on January 26, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. For the reasons set forth below, I find that Petitioner is entitled to compensation. 1 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 (2012). Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 2 of 7 I. Relevant Procedural History More than a year after the claim’s initiation, Respondent filed a status report stating that he was willing to engage in settlement discussions, but they did not succeed, and eventually Petitioner was permitted to file a motion for a ruling on the record, doing so on August 15, 2022. Motion for Ruling on the Record (“Mot.”), ECF No. 53. Respondent opposed the motion on October 17, 2022, arguing that Petitioner has not established that onset of her injury was within forty-eight hours of her vaccination, and that she had a history of left shoulder pain prior to her vaccination. Respondent’s Response to Petitioner’s Motion for Ruling on the Record (“Opp.”), ECF No. 55, at 5-6. Petitioner filed a reply on October 24, 2022. Reply to Respondent’s Response to Motion for a Ruling on the Record (“Reply”), ECF No. 56. The matter is ripe for resolution. II. Petitioner’s Medical Records Petitioner’s past medical history includes reports of shoulder pain that radiated into her neck in June and July of 2017. Ex. 3 at 58-67. She sought care on June 3, 2017, and stated that she thought she may have pulled something due to heavy lifting. Id. at 58, 61. She was assessed with muscle spasms in her left trapezius. Id. at 62. Petitioner was also in a car accident on January 5, 2018, although her subsequent physical exam was normal. Ex. 2 at 4-9. An MRI showed moderate degeneration in her spine. Id. at 21-22. Petitioner received a Td vaccine in her left shoulder on January 26, 2018, at Summit Medical Group. Ex. 1 at 25-27, Ex. 7. On February 5, 2018, Petitioner saw an orthopedist for left shoulder pain. Ex. 5 at 9-11. Petitioner reported pain for two weeks (which would be close to – or before – vaccination), and rated it as seven-to-ten out of ten. Id. at 9. A physical exam indicated grossly limited range of motion. She was diagnosed with bursitis, impingement, and received a cortisone injection. Id. Petitioner returned to her primary care physician three months later, on May 10, 2018, with complaints of left arm pain and decreased range of motion. Ex. 1 at 41-44. She reported that the prior steroid injection helped, but the pain had returned. A physical exam showed decreased range of motion and positive impingement signs. Id. at 43. She was diagnosed with tendonitis and received another steroid injection. Id. at 43-44. On August 16, 2018, Petitioner reported worsening left shoulder pain. Ex. 1 at 49-52. An examination showed pain with abduction and signs of impingement. Id. at 51. She received a second cortisone injection. Id. at 51-52. Petitioner presented to Summit Medical Group on September 25, 2018, due to a mosquito bite. She also “requested to try and order another MRI of her left shoulder from 2 Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 3 of 7 previous TDAP injection since she has new insurance. She losses R[ange] O[f] M[otion] when the steroid injection wears off. Ex. 1 at 53. On November 19, 2018, Petitioner presented to the emergency room with complaints of left shoulder pain. Ex. 3 at 160-65. She stated that a tetanus vaccine was administered in April3 and she had been experiencing pain since that time. Id. at 163. X- rays were taken and unremarkable. Ex. 1 at 77. Petitioner followed up with her primary care physician that same day and received another steroid injection. Ex. 1 at 75. Petitioner underwent a second MRI on November 28, 2018, which showed an infraspinatus tear, tendinopathy, and a SLAP tear. Ex. 1 at 78-79. On December 4, 2018, Petitioner presented to Dr. Larry Waldrop for left shoulder pain since a tetanus shot on January 26, 2018. Ex. 4 at 5. She also reported that her pain had not improved, and cortisone injections provided only temporary relief. Id. Petitioner was advised to try physical therapy and return in six weeks. Id. at 6.4 Petitioner next treated for shoulder pain on January 16, 2019. Ex. 5 at 13. An examination indicated grossly limited range of motion with pain. Id. Petitioner was assessed with a complete rotator cuff tear in her left shoulder, rotator cuff tendinitis, and shoulder pain. Id. at 15. On February 28, 2019, Petitioner underwent arthroscopic surgical procedures including left rotator cuff repair, left shoulder debridement, and subacromial decompression. Id. at 24-25. On March 19, 2019, Petitioner returned to her orthopedist for a post-operative visit. Id. at 21-23. She was instructed to continue her physical therapy. Id. Petitioner has submitted an affidavit in support of her claim, dated January 17, 2020. Ex. 6. Therein, she states that she received a tetanus vaccine on January 26, 2018, and that her pain began immediately. Id. III. Fact Findings and Ruling on Entitlement Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). In addition to requirements concerning the vaccination received, the 3 The notation to a tetanus vaccine in April appears to be in error, as there is no record of any vaccine given to Petitioner at that time. 4 There is no indication that Petitioner participated in any formal physical therapy. 3 Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 4 of 7 duration and severity of petitioner’s injury, and the lack of other award or settlement,5 a petitioner must establish that she suffered an injury meeting the Table criteria, in which case causation is presumed, or an injury shown to be caused-in-fact by the vaccination she received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). 42 C.F.R. § 100.3(c)(10). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally 5 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of her injury for more than six months, died from her injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E). 4 Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 5 of 7 contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records are always accurate and complete as to all of the patient’s physical conditions.” Kirby v. Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical professionals may not “accurately record everything” that they observe or may “record only a fraction of all that occurs.” Id. Medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such testimony must also be determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). A. Factual Findings Regarding a Table SIRVA After a review of the entire record, I find that a preponderance of the evidence demonstrates that Petitioner has satisfied the QAI requirements for a Table SIRVA. 1. Petitioner Had No Prior Left Shoulder Condition or Injury that would Explain her Symptoms The first requirement for a Table SIRVA is a lack of problems associated with the affected shoulder prior to vaccination that would explain the symptoms experienced after vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent argues that Petitioner reported left shoulder pain in June and July of 2017, and was in a car accident several weeks before her January 26, 2018, Td vaccination. Opp. at 5. But the filed records indicate that neither the prior report of shoulder pain nor the car accident significantly impacted her shoulder. With regard to the 2017 reports of shoulder pain, Petitioner reported that it may have been a strained muscle, and that she was assessed with muscle spasms. Ex. 3 at 58, 61, 62. The car accident also is not explanatory, as her physical exam appeared normal and no reports 5 Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 6 of 7 of shoulder pain or injury are recorded in association with it. Ex. 2 at 4-9, 21-22. Thus, Petitioner meets this requirement. 2. Onset of Petitioner’s Injury Occurred within Forty-Eight Hours of her Vaccination The medical records preponderantly establish onset of injury close-in-time to vaccination. Petitioner first sought treatment approximately ten days after her January 26, 2018 Td vaccination, stating that her shoulder pain started two weeks prior. Ex. 5 at 9. Thereafter, Petitioner continued to treat and consistently linked her shoulder pain to the Td vaccine. See Ex. 1 at 53 (record from September 25, 2018, requesting a repeat MRI to address a problem stemming from a “previous TDAP injection”); Ex. 3 at 160-65 (record from November 19, 2018, stating she had pain ever since a tetanus vaccine); Ex. 4 at 5 (record from December 4, 2018 complaining of left shoulder pain since a tetanus shot on January 26, 2018). Respondent argues that Petitioner’s statements are vague and inconsistent, with one instance indicating her pain began just prior to her vaccination, and another in April of 2018. Opp. at 6. Even so, a finding of proper onset can be made based on such a record. Program petitioners are not required to marshal records setting forth with chronographic specificity the precise day and hour that their onset manifested. As noted above, Petitioner consistently linked her shoulder pain to the January 26, 2018 Td vaccine. Further, the relevant medical records show that Petitioner reported shoulder pain in a relatively timely manner, when measured from the date of vaccination Thus, Petitioner first began to complain of shoulder pain within ten days of the vaccine, and did not attribute her pain to any other injury or cause. It is common for SIRVA petitioners to delay seeking treatment, thinking the injury will resolve on its own, especially since patients are often told by medical providers at the time of vaccination to expect some soreness and pain for a period of time after. And individuals also often misconstrue the nature of their injury, and therefore fail to inform treaters of all specific facts relevant to onset until later. Here, the added detail of onset did not “wait” for months before being provided, but began to be reported in a reasonable time post-vaccination. And Petitioner affirmatively and repeatedly linked her shoulder pain to the January 26, 2018 Td vaccine. Accordingly, there is preponderant evidence that establishes the onset of Petitioner’s left shoulder pain more likely than not occurred within 48-hours of vaccination. 6 Case 1:19-vv-01959-UNJ Document 61 Filed 10/31/23 Page 7 of 7 3. Petitioner’s Pain was Limited to her Left Shoulder Petitioner’s pain was limited to her left shoulder. Respondent does not contest this aspect of Petitioner’s claim, and there is nothing in the records to suggest otherwise. 4. There is No Evidence of Another Condition or Abnormality The last criteria for a Table SIRVA state that there must be no other condition or abnormality which would explain a petitioner’s current symptoms. 42 C.F.R. § 100.3(c)(10)(iv). Respondent does not contest this aspect of Petitioner’s claim, and there is nothing in the records to suggest that any such condition or abnormality exists. B. Other Requirements for Entitlement In addition to establishing a Table injury, a petitioner must also provide preponderant evidence of the additional requirements of Section 11(c). Respondent does not dispute that Petitioner has satisfied these requirements in this case, and the overall record contains preponderant evidence to fulfill these additional requirements. The record shows that Petitioner received a Td vaccine intramuscularly on January 26, 2018, in the United States. Ex. 7; see Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration within the United States or its territories). There is no evidence that Petitioner has collected a civil award for her injury. Ex. 6; Section 11(c)(1)(E) (lack of prior civil award). Based upon all of the above, Petitioner has established that she suffered a Table SIRVA. Additionally, she has satisfied all other requirements for compensation. I therefore find that Petitioner is entitled to compensation in this case. Conclusion In view of the record, I find preponderant evidence that Petitioner satisfies the QAI requirements for a Table SIRVA, and that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01959-1 Date issued/filed: 2024-11-04 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 10/8/2024) regarding 80 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01959-UNJ Document 84 Filed 11/04/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1959V Filed: October 8, 2024 MARVA HOGAN, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner. Katherine Edwards, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On December 26, 2019, Marva Hogan 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 left-sided Table Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of a tetanus diphtheria vaccination she received on January 26, 2018. (ECF No. 1, pp. 1, 3.) On September 25, 2023, a ruling on entitlement was issued, finding petitioner entitled to compensation for a Table SIRVA. (ECF No. 58.) On October 8, 2024, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $110,000.00. (ECF No. 79.) In the Proffer, respondent represented that petitioner agrees with the proffered award. (Id.) Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer. 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. Case 1:19-vv-01959-UNJ Document 84 Filed 11/04/24 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $110,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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. 2 Case 1:19-vv-01959-UNJ Document 84 Filed 11/04/24 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MARVA HOGAN, Petitioner, v. No. 19-1959V Special Master Daniel T. Horner SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. PROFFER ON AWARD OF COMPENSATION On December 26, 2019, Marva Hogan (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on January 26, 2018. ECF No. 1, Petition at 3. On August 15, 2022, petitioner filed a Motion for Ruling on the Record requesting that the Chief Special Master find in favor of entitlement. ECF No. 53. The Secretary of Health and Human Services (“respondent”) filed his response on October 17, 2022, indicating that this case was not appropriate for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 55. On September 25, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation.1 ECF 58. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s September 25, 2023 entitlement decision. Case 1:19-vv-01959-UNJ Document 84 Filed 11/04/24 Page 4 of 5 I. Items of Compensation Respondent proffers that petitioner should be awarded $110,000.00 in pain and suffering.2 See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is therefore not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $110,000.00, in the form of a check payable to petitioner. Petitioner agrees. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future pain and suffering. 2 Case 1:19-vv-01959-UNJ Document 84 Filed 11/04/24 Page 5 of 5 /s/ Katherine Edwards____ KATHERINE EDWARDS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 742-6374 Katherine.Edwards2@usdoj.gov Dated: October 8, 2024 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_19-vv-01959-cl-extra-10733818 Date issued/filed: 2024-11-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267228 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1959V Filed: October 8, 2024 MARVA HOGAN, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner. Katherine Edwards, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On December 26, 2019, Marva Hogan 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 left-sided Table Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of a tetanus diphtheria vaccination she received on January 26, 2018. (ECF No. 1, pp. 1, 3.) On September 25, 2023, a ruling on entitlement was issued, finding petitioner entitled to compensation for a Table SIRVA. (ECF No. 58.) On October 8, 2024, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $110,000.00. (ECF No. 79.) In the Proffer, respondent represented that petitioner agrees with the proffered award. (Id.) Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer. 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. Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $110,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MARVA HOGAN, Petitioner, v. No. 19-1959V Special Master Daniel T. Horner SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. PROFFER ON AWARD OF COMPENSATION On December 26, 2019, Marva Hogan (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on January 26, 2018. ECF No. 1, Petition at 3. On August 15, 2022, petitioner filed a Motion for Ruling on the Record requesting that the Chief Special Master find in favor of entitlement. ECF No. 53. The Secretary of Health and Human Services (“respondent”) filed his response on October 17, 2022, indicating that this case was not appropriate for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 55. On September 25, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. 1 ECF 58. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s September 25, 2023 entitlement decision. I. Items of Compensation Respondent proffers that petitioner should be awarded $110,000.00 in pain and suffering.2 See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is therefore not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $110,000.00, in the form of a check payable to petitioner. Petitioner agrees. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future pain and suffering. 2 /s/ Katherine Edwards____ KATHERINE EDWARDS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 742-6374 Katherine.Edwards2@usdoj.gov Dated: October 8, 2024 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_19-vv-01959-cl-extra-11126633 Date issued/filed: 2025-08-25 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10660046 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1959V Filed: June 30, 2025 MARVA HOGAN, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner. Katherine Edwards, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On December 26, 2019, Marva Hogan filed a petition under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that she suffered a left-sided Table Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of a tetanus diphtheria vaccination she received on January 26, 2018. (ECF No. 1). On October 8, 2024, the parties filed a proffer, which I adopted as my decision awarding compensation on the same day. (ECF Nos. 79-80). On November 8, 2024, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 85) (“Fees App.”). Petitioner requests the following compensation: attorneys’ fees and costs in the amount of $30,555.42, representing $28,992.30 in fees and $1,563.12 in costs. Fees App. Tab A. Petitioner warrants she did not personally incur 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), Petitioners have 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). any costs in pursuit of this claim. Fees App. Tab H. On November 22, 2024, respondent filed a response to petitioner’s motion. (ECF No. 86). 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 4. 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. § 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 2 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 Petitioner requests the following rates of compensation for his attorneys at Richard Gage, P.C.: for Mr. Richard Gage: $318.00 per hour for work performed in per hour for work performed in 2018, $338.00 per hour for work performed in 2019, $350.00 per hour for work performed in 2020, $386.00 per hour for work performed in 2021, $393.00 per hour for work performed in 2022, and $422.00 per hour for work performed in 2023; for Ms. Kristen Blume: $338.00 per hour for work performed in 2019, $350.00 per hour for work performed in 2020, and $393.00 per hour for work performed in 2022. See Fees App. Ex. B. Additionally, Petitioner requests between $120.00 to $159.00 per hour for work performed by paralegals from 2018-2024. See id. All of the requested rates Ms. Blume and the paralegals, and all of the requested rates for Mr. Gage, with the exception of 2021, have been previously awarded. See, e.g., Allen-Scott v. Sec’y of Health & Human Servs., No. 19-1517V, 2024 WL 4839286, at *3 (Fed. Cl. Spec. Mstr. Aug. 14, 2024); Crawford v. Sec'y of Health & Human Servs., No. 18-198V, 2024 WL 4043704, at *1 (Fed. Cl. Spec. Mstr. May 29, 2024). However, for 2021, Mr. Gage’s hourly rate has been set and awarded at $362.00, not the requested $386.00. See, e.g., id. I will therefore apply the previously determined rate for 2021 to Mr. Gage’s billing here, resulting in a reduction of $28.80.3 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 $28,963.50. 3 This amount is calculated as ($386 - $362 = $24 x 1.2 hrs. = $28.80) 3 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 $1,563.12 in attorneys’ costs. Fees App. at 1. These costs are comprised of acquisition of medical records and the Court’s filing fee. I find that 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 his counsel as follows: a lump sum in the amount of $30,526.62, representing reimbursement for petitioner’s attorneys’ fees and costs, to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. 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.4 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 4 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