VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01007 Package ID: USCOURTS-cofc-1_20-vv-01007 Petitioner: Debbie Myers Filed: 2020-08-13 Decided: 2023-11-29 Vaccine: influenza Vaccination date: 2017-10-24 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 50000 AI-assisted case summary: Debbie Myers filed a petition for compensation under the National Vaccine Injury Compensation Program on August 13, 2020, alleging she suffered a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 24, 2017. The case was assigned to the Special Processing Unit. After a factual ruling confirmed that Ms. Myers received the influenza vaccine intramuscularly in her left deltoid on October 24, 2017, the respondent, the Secretary of Health and Human Services, filed a report on June 2, 2023, indicating that it would not contest entitlement to compensation, as SIRVA is a defined Table injury. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on June 2, 2023, finding Ms. Myers entitled to compensation. Subsequently, on October 26, 2023, the respondent filed a proffer agreeing to an award of $50,000.00 for pain and suffering, which Ms. Myers accepted. The public decision, issued on November 29, 2023, awarded Debbie Myers a lump sum payment of $50,000.00 for pain and suffering. Petitioner was represented by Lawrence R. Cohan of Saltz, Mongeluzzi, & Bendesky, and respondent was represented by Parisa Tabassian of the U.S. Department of Justice. The Special Master was Brian H. Corcoran. Theory of causation field: Petitioner Debbie Myers filed a petition alleging a Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza vaccine on October 24, 2017. SIRVA is a defined Table injury. Following a factual ruling confirming the vaccination, the Respondent conceded entitlement. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on June 2, 2023. On October 26, 2023, Respondent filed a proffer agreeing to an award of $50,000.00 for pain and suffering, which Petitioner accepted. The final decision on November 29, 2023, awarded a lump sum of $50,000.00 to Petitioner for pain and suffering. Petitioner was represented by Lawrence R. Cohan, and Respondent by Parisa Tabassian. The Special Master was Brian H. Corcoran. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01007-0 Date issued/filed: 2023-04-25 Pages: 8 Docket text: PUBLIC ORDER/RULING (Originally filed: 03/22/2023) regarding 43 Findings of Fact & Conclusions of Law,, Scheduling Order, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1007V UNPUBLISHED DEBBIE MYERS, Chief Special Master Corcoran Petitioner, Filed: March 22, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Missing Vaccine HUMAN SERVICES, Record; Site of Vaccination Influenza (Flu) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA) Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner. Parisa Tabbassian, U.S. Department of Justice, Washington, DC, for Respondent. FINDINGS OF FACT1 On August 13, 2020, Debbie Myers 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 shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza (“flu”) vaccine on October 24, 2017. Petition at 1, ¶¶ 3, 16. 1 Because this unpublished Fact 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). This means the Fact 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. 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 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 2 of 8 A dispute has arisen between the parties regarding one of the claim’s Table elements. For the reasons discussed below, I find the flu vaccine was most likely administered intramuscularly in Petitioner’s left deltoid on October 24, 2017, as alleged. I. Relevant Procedural History Within approximately one month of filing the Petition, Ms. Myers filed the affidavit and most medical records required by the Vaccine Act. Exhibits 1-6, filed Aug. 17, 2020, ECF No. 6; Exhibit 7, filed Sept. 15, 2020, ECF No. 8. Approximately four months later, she filed additional medical records. Exhibit 8, filed Jan. 18, 2021, ECF No. 15. Despite being granted subpoena authority on two separate occasions (ECF Nos. 22-23) and allowed an additional six months, Petitioner was unable to provide a vaccine record – a consent form or other documentation. Status Report, filed July 19, 2021, ECF No. 26. On November 10, 2021, the case was activated and assigned to the “Special Processing Unit” (OSM’s adjudicatory system for resolution of cases deemed likely to settle). ECF No. 27. Over the subsequent eight months, Petitioner filed copies of the record requests she made when attempting to procure a vaccine record, documentation of her successful worker’s compensation claim for her vaccine-related injury, a supplemental affidavit, and briefing. Exhibit 9, filed Mar. 11, 2022, ECF No. 31; Exhibits 10-12, filed May 24, 2022, ECF No. 33; Exhibit 13, filed July 7, 2022, ECF No. 36; Petitioner’s Brief in Support of Petitioner’s Position that She Received the Flu Vaccine as Alleged in her Petition (“Brief”), filed July 7, 2022, ECF No. 37. Emphasizing her significant efforts to obtain a vaccine record, the favorable results of her worker’s compensation claim, and specific medical records entries (Brief at 1-2, 4-5, 8), Petitioner insists “there is ample evidence confirming a vaccination in her left arm on that date” (id. at 1). In September 2022, Respondent suggested Petitioner check with the State of New Jersey Immunization Information System to determine if they had a record of Petitioner’s vaccination. ECF No. 38. If not, he requested that I resolve the issue through a factual ruling, requesting time to file a response to Petitioner’s brief. Id. at 2. On November 14, 2022, Petitioner filed a November 1st email response from the State of New Jersey and status report indicating no vaccine record was found. Exhibit 14, ECF No. 39; Status Report, ECF N0. 40. On December 9, 2022, Respondent filed a status report indicating he expected the HHS review to be completed in January 2023, and a response to Petitioner’s brief. Status Report, ECF No. 41; Respondent’s Brief Regarding Vaccination Record (“Opp.”), ECF No. 42. Arguing that the contemporaneously provided histories and successful worker’s 2 Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 3 of 8 compensation claim are not sufficient to establish vaccination, especially considering the requirement that this type of documentation be maintained (Opp. at 1-3), Respondent asks that I render a factual finding on the issue (id. at 4). II. Issue At issue is whether, despite the absence of a vaccine record, Petitioner received a flu vaccine intramuscularly in her left deltoid on October 24, 2017, as alleged. III. Authority 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). 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 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, this rule does not always apply. “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The United States Court of Federal Claims has outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events 3 Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 4 of 8 when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that 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 fact 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 special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. The special master is obligated to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). IV. Findings of Fact I make these findings after a complete review of the record, including all medical records, affidavits, and additional evidence filed. Specifically, I base my findings on the following evidence: • Prior to receiving the flu vaccine, Ms. Myers (then 47 years old) suffered common illnesses and conditions, but no prior left shoulder pain. Exhibit 6 at 6-76. In late 2016, she experienced chest pain determined to be caused by “[m]ild adenopathy and scattered pulmonary nodules.” Id. at 9. 4 Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 5 of 8 • In her affidavit, Petitioner alleges that she received the flu vaccine on October 24, 2017, at her place of employment – AtlantiCare Egg Harbor Township Hospital. Exhibit 7 at 2-3. Petitioner works as a medical assistant at the urgent care unit of the hospital, and as a massage therapist for another employer. E.g., Exhibit 1 at 10; Exhibit 3 at 1. • Approximately two weeks later (November 7th), Petitioner visited the worker’s compensation unit complaining of pain in her left shoulder and some limited range of motion (“ROM”), after receiving a flu shot on October 24th. Exhibit 1 at 10. As a result of her injury, Petitioner reported difficulties performing her second job as a massage therapist. No swelling was observed, but Petitioner’s ROM was assessed as being limited by 50 percent. Id. Petitioner was instructed to take Motrin, apply warm compresses, and return in three weeks. Id. at 10-11. • Ten days later (now November 17th) Petitioner return to the worker’s compensation unit for treatment of a possible allergic reaction to something she had eaten. Exhibit 1 at 7. At this visit, she again complained of continued left shoulder pain after receiving a flu shot on October 24th. In response to her statement that her primary care provider (“PCP”) was unwilling to treat her vaccine reaction, Petitioner was provided with information regarding how to obtain another PCP if desired. Id. • At her first physical therapy (“PT”) session on November 28th, Petitioner again reported left shoulder pain after receiving the flu shot. Exhibit 3 at 1. In this record, the date of vaccination is listed as both October 24 and 25, 2017. Describing her left shoulder pain as radiating into her neck and finger, Petitioner rated its severity as between four and nine. Id. • Later that same day, Petitioner returned to the worker’s compensation unit, with the same complaint of left shoulder pain. Exhibit 1 at 5. Additional PT was authorized. Id. at 6. • This same report of left shoulder pain following an October 2017 flu vaccine is repeated throughout the records from 23 PT sessions during December 2017 through February 2018. Exhibit 3 at 2-21. • At her last visit to the worker’s compensation unit on December 19, 2017, Petitioner was provided a referral to an orthopedist. Exhibit 1 at 3-4. 5 Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 6 of 8 • When first seen by the orthopedist on December 21st, Petitioner again attributed her left shoulder pain to the flu vaccine she received in October 2017. Exhibit 2 at 12. Diagnosing Petitioner with “[l]eft shoulder cuff tendinitis and bursitis with referred pain into the back of the hand,” the orthopedist opined that “within a reasonable degree of medical probability that [Petitioner’s] left shoulder pain is causally related to the flu shot on October 24, 2017.” Id. at 13. • When Petitioner returned to the orthopedist on March 1, 2018, she indicated she “[wa]s still in a lot of pain.” Exhibit 2 at 8. The orthopedist ordered an MRI. Id. • The MRI, performed on March 14th, revealed minimal fluid in the subacromial subdeltoid bursa, evidence of possible capsulitis, an “[i]ncidentlly noted intramuscular lipoma of the interior deltoid,” and an intact biceps tendon and cartilage. Exhibit 2 at 15. • On March 29th, the orthopedist discussed the results of the MRI with Petitioner. Exhibit 2 at 6. Petitioner reported slight improvement over the last few weeks. Id. • In the records from eight additional PT sessions in late March through April 2018, Petitioner again attributed her left shoulder pain to the October 24, 2017 flu vaccine she received. Exhibit 3 at 26-37. At her last session on April 25th, she was provided with a disability score of 40. Id. at 37. • At her final orthopedic appointment on April 26th, Petitioner reported that she continued to experience significant pain, especially after repetitive arm movements such as when answering the phone. Exhibit 2 at 4. She was assessed as having full ROM and normal strength. Id. None of the information in these later medical records counters the orthopedist’s earlier impression that Petitioner’s left shoulder pain was vaccine-caused. • Documentation for Petitioner’s successful worker’s compensation claim listed her as “developed pain in her left shoulder after receiving her annual flu shot.” Exhibit 11 at 1 (all capital letters in the original). • In her supplemental affidavit, Petitioner indicated that she received the flu vaccine as a requirement of her employment with a group of fellow 6 Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 7 of 8 employees in a room containing tables – described as a small cafeteria, and three women administering vaccinations. Exhibit 13 at ¶¶ 2-6. As a threshold matter, to prevail under the Vaccine Act a petitioner must establish that he “received a vaccine set forth in the Vaccine Injury Table.” Section 11(c)(1)(A). Additionally, when alleging a Table SIRVA injury as in this case, a petitioner must show he received the vaccine intramuscularly in his injured upper arm/shoulder. 42 C.F.R. § 100.3(c)(10) (2017) (Qualifications and Aids to Interpretation for a Table SIRVA). When presented with preponderant evidence – such as consistent references in contemporaneously created medical records and/or credible witness testimony - special masters have found sufficient proof of vaccination even in cases lacking a written contemporaneous record memorializing the event. Hinton v. Sec’y of Health & Hum. Servs., No. 16-1140V, 2018 WL 3991001, at *10-11 (Fed. Cl. Spec. Mstr. Mar. 9, 2018); Gambo v. Sec’y of Health & Hum. Servs., No. 13-0691V, 2014 WL 7739572, at *3-4 (Fed. Cl. Spec. Mstr. Dec. 18, 2014); Lamberti v. Sec’y of Health & Hum. Servs., No. 99-0507V, 2007 WL 1772058, at *7 (Fed. Cl. Spec. Mstr. May 31, 2007). However, evidence has found to be insufficient in cases involving inconsistencies related to Petitioner’s vaccination status and the events surrounding vaccination. Matthews v. Sec’y of Health & Hum. Servs., No. 19-0414V, 2021 WL 4190265, at *6-7, 9 (Fed. Cl. Spec. Mstr. Aug. 19, 2021) aff’d 157 Fed. Cl. 777 (2021) (petitioner’s reliance primarily on later notations of an allergic reaction). In this case, the medical records show Petitioner consistently reported left shoulder pain following receipt of a flu vaccine on October 24, 2017. Her first report of pain occurred on November 7, 2017 - only two weeks post-vaccination. And she provided this same history in every medical record thereafter. Furthermore, the results of Petitioner’s MRI – which showed a minimal amount of bursa fluid, and statements by her orthopedist that he believed her injury to have been vaccine-caused provide additional support for Petitioner’s claim. Additionally, the circumstances surrounding the administration of the flu vaccine, as described by Petitioner, rationally explain why a vaccine record would be missing. It is reasonable to conclude that, during such a large-scale vaccine administration event in a cafeteria temporarily converted for that purpose, some documentation was not properly completed. And, despite the lack of a vaccine record, Petitioner’s employer – from whom she received the vaccine - did not contest her worker’s compensation claim, further supporting the truth of her assertion. 7 Case 1:20-vv-01007-UNJ Document 46 Filed 04/25/23 Page 8 of 8 Thus, given all of the foregoing, I find that despite the lack of a specific vaccine record, Petitioner has provided preponderant evidence establishing that she received a flu vaccine intramuscularly in her left deltoid on October 24, 2017, as alleged. V. Scheduling Order In light of my findings regarding vaccination, Petitioner should finalize a reasonable demand which she should convey, along with any needed supporting documentation, to Respondent at any time. Respondent should consider his tentative position in this case. Respondent shall file a status report indicating how he intends to proceed following my ruling by no later than Monday, April 24, 2023. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01007-1 Date issued/filed: 2023-07-06 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/02/2023) regarding 48 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01007-UNJ Document 51 Filed 07/06/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1007V UNPUBLISHED DEBBIE MYERS, Chief Special Master Corcoran Petitioner, Filed: June 2, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Uncontested; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Lawrence R. Cohan, Saltz, Mongeluzzi, & Bendesky, Philadelphia, PA, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 13, 2020, Debbie Myers 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 shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza (“flu”) vaccine on October 24, 2017. Petition at 1, ¶¶ 3, 16. Petitioner further alleges that she received the flu vaccine in the United States, that she suffered the residual effects of her SIRVA for more than six months, and that neither she nor any other party has filed a civil 1 Because this Ruling 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 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. 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). Case 1:20-vv-01007-UNJ Document 51 Filed 07/06/23 Page 2 of 2 case or received compensation for her SIRVA injury. Id. at ¶¶ 3, 16-17. The case was assigned to the Special Processing Unit of the Office of Special Masters. Because Petitioner had been unable to procure a vaccine record, I addressed the issue of proof of vaccination in a factual ruling – determining that the record supported Petitioner’s assertion that she received a flu vaccine intramuscularly in her left deltoid on October 24, 2017. ECF No. 43. On June 2, 2023, Respondent filed a Rule 4(c) Report, indicating that in light of my factual ruling and while preserving his right to appeal, he would not contest entitlement. ECF No. 47. Specifically, he indicates that “[b]ased on [my] fact ruling, and the medical record evidence submitted in this case, DICP will not continue to contest that [P]etitioner received a flu vaccine, as alleged, and suffered SIRVA as defined by the Vaccine Injury Table.” Id. at 6. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01007-2 Date issued/filed: 2023-11-29 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 10/26/2023) regarding 58 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01007-UNJ Document 61 Filed 11/29/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1007V DEBBIE MYERS, Chief Special Master Corcoran Petitioner, Filed: October 26, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Lawrence R. Cohan, Saltz, Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 13, 2020, Debbie Myers 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 shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza (“flu”) vaccine on October 24, 2017. Petition at 1, ¶¶ 3, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 2, 2023, I issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On October 26, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $50,000.00, representing compensation for pain and suffering. Proffer at 2. In the Proffer, Respondent 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). Case 1:20-vv-01007-UNJ Document 61 Filed 11/29/23 Page 2 of 5 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. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $50,000.00, representing compensation for pain and suffering in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief 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 1:20-vv-01007-UNJ Document 61 Filed 11/29/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS DEBBIE MYERS, Petitioner, No. 20-1007V Chief Special Master Brian H. Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 13, 2020, Debbie Myers (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”), 42 U.S.C. §§ 300aa-1 to -34. Petitioner alleges that she received an influenza (“flu”) vaccination in her left deltoid on October 24, 2017, and thereafter suffered from a shoulder injury related to vaccine administration (“SIRVA”). See Petition at 1-2. On June 2, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that based on the Chief Special Master’s March 22, 2023 factual findings regarding proof of vaccination (ECF No. 43), respondent would not defend the case any further. ECF No. 47. Also on June 2, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation.1 ECF No. 48. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief 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 June 2, 2023, entitlement decision. 1 Case 1:20-vv-01007-UNJ Document 61 Filed 11/29/23 Page 4 of 5 I. Items of Compensation Respondent proffers that petitioner should be awarded $50,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following2: a lump sum payment of $50,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Debbie Myers: $50,000.00 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 TRACI R. PATTON 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, unreimbursed expenses, future lost earnings and future pain and suffering. 2 Case 1:20-vv-01007-UNJ Document 61 Filed 11/29/23 Page 5 of 5 /s/ Parisa Tabassian PARISA TABASSIAN 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) 305-4035 Parisa.Tabassian@usdoj.gov DATED: October 26, 2023 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01007-cl-extra-10736884 Date issued/filed: 2023-11-29 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270294 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1007V DEBBIE MYERS, Chief Special Master Corcoran Petitioner, Filed: October 26, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Lawrence R. Cohan, Saltz, Mongeluzzi & Bendesky, Philadelphia, PA, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 13, 2020, Debbie Myers 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 shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza (“flu”) vaccine on October 24, 2017. Petition at 1, ¶¶ 3, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 2, 2023, I issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On October 26, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $50,000.00, representing compensation for pain and suffering. Proffer at 2. In the Proffer, Respondent 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). 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. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $50,000.00, representing compensation for pain and suffering in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief 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 DEBBIE MYERS, Petitioner, No. 20-1007V Chief Special Master Brian H. Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 13, 2020, Debbie Myers (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”), 42 U.S.C. §§ 300aa-1 to -34. Petitioner alleges that she received an influenza (“flu”) vaccination in her left deltoid on October 24, 2017, and thereafter suffered from a shoulder injury related to vaccine administration (“SIRVA”). See Petition at 1-2. On June 2, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that based on the Chief Special Master’s March 22, 2023 factual findings regarding proof of vaccination (ECF No. 43), respondent would not defend the case any further. ECF No. 47. Also on June 2, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation.1 ECF No. 48. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief 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 June 2, 2023, entitlement decision. 1 I. Items of Compensation Respondent proffers that petitioner should be awarded $50,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following2: a lump sum payment of $50,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Debbie Myers: $50,000.00 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 TRACI R. PATTON 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, unreimbursed expenses, future lost earnings and future pain and suffering. 2 /s/ Parisa Tabassian PARISA TABASSIAN 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) 305-4035 Parisa.Tabassian@usdoj.gov DATED: October 26, 2023 3 ================================================================================ DOCUMENT 5: USCOURTS-cofc-1_20-vv-01007-cl-extra-10735057 Date issued/filed: 2024-06-11 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268467 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1007V DEBBIE MYERS, Chief Special Master Corcoran Petitioner, v. Filed: May 6, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Lawrence R. Cohan, Saltz, Mongeluzzi, & BendeskyPhiladelphia, PA, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On August 13, 2020, Debbie Myers (“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 left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving the influenza vaccine on October 24, 2017. Petition at 1, ¶¶ 3, 16. On October 26, 2023, I issued a decision awarding damages to Petitioner, based on Respondent’s proffer. ECF No. 58. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $28,934.43 (representing $27,947.20 for fees and $987.23 for costs). Petitioner’s Application for Attorneys’ Fees, filed Apr. 26, 2024, ECF No. 63. In accordance with 1Because 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). General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of- pocket expenses. Id. at 35-36. Respondent reacted to the motion on April 26, 2024, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 64. Petitioner has not filed a reply. The rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations, and will therefore be adopted. Petitioner has also requested a 2024 attorney hourly rates of $584 for work performed by Lawrence Cohan - representing a rate increase of $31. ECF No. 83 at 19. Additionally, Petitioner requests an hourly rate of $197 for paralegal work. Id. I find these 2024 hourly rates to be reasonable, and will award the attorney’s fees requested. I also note this case required additional briefing due to the lack of a vaccine record in this case. See Petitioner’s Brief in Support of Petitioner’s Position That She Received the Flu Vaccine as Alleged in Her Petition, filed July 7, 2022, ECF No. 37. Petitioner’s counsel expended approximately 12.7 hours drafting the brief. ECF No. 63 at 13-14. I find the time billed to the matter, as well all billed time, was reasonably incurred. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 63 at 21-34. And Respondent offered no specific objection to the rates or amounts sought. I have reviewed the requested costs and find them to be reasonable. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). I award a total of $28,934.43 (representing $27,947.20 for fees and $987.23 for costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Lawrence R. Cohan. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2