VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01058 Package ID: USCOURTS-cofc-1_20-vv-01058 Petitioner: Linda Brantley-Karasinski Filed: 2020-09-28 Decided: 2023-10-31 Vaccine: influenza Vaccination date: 2019-10-08 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 125721 AI-assisted case summary: Linda Brantley-Karasinski, an adult, received an influenza vaccine on October 8, 2019. Within 48 hours, she developed right-side Shoulder Injury Related to Vaccine Administration (SIRVA), characterized by shoulder pain and limited range of motion. She sought compensation under the National Vaccine Injury Compensation Program, alleging her injury was a Table injury. The respondent initially contested entitlement, arguing that her pain and reduced range of motion were not limited solely to the shoulder. However, the court found that the evidence predominantly supported her claim, establishing entitlement to compensation. The case then proceeded to damages. Petitioner requested $130,000 for pain and suffering and $721.11 for unreimbursed medical expenses, citing extensive treatment including surgery and physical therapy. Respondent proposed $110,000 for pain and suffering. The court awarded Linda Brantley-Karasinski a total of $125,721.11, comprising $125,000.00 for pain and suffering and $721.11 for medical expenses, finding her injury comparable to other SIRVA cases but slightly less severe than the primary comparable cited. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01058-0 Date issued/filed: 2023-10-31 Pages: 8 Docket text: PUBLIC ORDER/RULING (Originally filed: 09/28/2023) regarding 51 Ruling on Entitlement, DECISION of Special Master, PUBLIC DECISION (Originally filed: 09/28/2023) regarding 51 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 1 of 8 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1058V UNPUBLISHED LINDA BRANTLEY-KARASINKSKI, Chief Special Master Corcoran Petitioner, Filed: September 28, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Entitlement to Compensation; Table HUMAN SERVICES, Injury; Decision Awarding Damages; Pain and Suffering; Influenza (Flu) Respondent. Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA) Danielle Anne Strait, Maglio Christopher & Toale, Seattle, WA, for Petitioner. Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1 On August 21, 2020, Linda Brantley-Karasinski filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”), alleging that she suffered a right-side Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on October 8, 2019. Petition, ECF No. 1 at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). For the reasons described below, I find that Petitioner is entitled compensation, and I award damages in the total amount of $125,721.11, consisting of $125,000.00 for Petitioner’s actual pain and suffering, plus $721.11 for Petitioner’s unreimbursed medical expenses. 1 Under Vaccine Rule 18(b), each party has fourteen (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 files 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 present form. Id. 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-01058-UNJ Document 55 Filed 10/31/23 Page 2 of 8 I. Relevant Procedural History As noted above, this case was initiated in August 2020. On June 3, 2022, after attempting to resolve this case informally, Petitioner filed a status report stating that the parties had reached an impasse. (ECF No. 38). That same day, Petitioner filed a Motion for Ruling on Record and Brief in support of Damages (“Motion”), arguing that she had established entitlement to compensation for her SIRVA injury, and requesting $130,000.00 for her past/actual pain and suffering, plus $721.11 for her past reimbursed expenses. (ECF No. 37). Petitioner specifically asserted that the evidence in the record preponderantly established that she received a vaccine in her right shoulder on October 8, 2019, that her shoulder injury began within 48 hours of receiving the vaccine, and that she was therefore entitled to compensation. Id. Respondent filed a Rule 4(c) Report and Response to Petitioner’s Motion on July 12, 2022 (“Response”) recommending that entitlement to compensation be denied under the terms of the Vaccine Act. (ECF Nos. 43-44). Respondent argued that the Table criterion for SIRVA that required that pain and reduced range of motion be limited to the shoulder in which the intramuscular vaccine was administered had not been met in this case. Response at 7. In the event Petitioner is awarded entitlement, Respondent proposes $110,000.00 for past/actual pain and suffering, conceding $721.11 for her past reimbursed expenses. Id. at 11-15. Petitioner filed her Reply on July 26, 2022, reiterating the facts and arguments previously set forth in her Motion. (ECF No. 48). II. Factual Findings and Ruling on Entitlement A. Legal Standards Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). Contemporaneous medical records are presumed to be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a 2 Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 3 of 8 petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In addition to requirements concerning the vaccination received, the duration and severity of petitioner’s injury, and the lack of other award or settlement,3 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 a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the accompanying QAI are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological abnormality is not known). 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; 3 In summary, a petitioner must establish that he 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 his injury for more than six months, died from his 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). 3 Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 4 of 8 (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). B. Factual Finding Regarding QAI Criteria for Table SIRVA The only Table requirement for SIRVA that Respondent contests is the third criterion, i.e., whether Petitioner’s pain and reduced range of motion were limited to her left shoulder. Response at 7. Based upon a review of the entire record, and for the reasons set forth below, I find that this criterion has preponderant evidentiary support. Respondent’s argument relies on multiple references in the record documenting radiation of pain to Petitioner’s neck and back, along with the fact that radiation of pain outside of the shoulder persisted. See Ex. 11 at 3-9.4 While these instances are clearly established in the record, I credit Petitioner’s argument that her pain originated in her right shoulder, rather than from another source. Reply at 5. And this is not a case where the bulk of Petitioner’s pain complaints consistently included an area broader than the shoulder region. On the contrary, the vast majority of records concentrate on Petitioner’s complaints and treatment for right shoulder pain after vaccination. See, e.g., Ex. 4 at 26, 28, 30 (exhibiting only right shoulder an deltoid pain); Ex. 9 at 13 (diagnosing right shoulder pain); Ex. 11 at 3–4 (“[Right] arm pain feels heavy sore since had flu shot … ”). At most, evidence regarding pain extrinsic to the shoulder are relevant to damages.5 But they do not defeat an otherwise-meritorious SIRVA claim—especially 4 In fact, Respondent argues, Petitioner had longstanding neck and back pain issues predating vaccination, suggesting an independent cause of Petitioner’s concerns. See Ex. 11. But Respondent has not advanced the argument that the SIRVA criterion relating to an alternative “condition or abnormality” is unmet. 5 Petitioner also cites to other SIRVA cases where Petitioner suffered other injuries but was still awarded compensation. See, e.g., Berge v. Sec'y of Health & Hum. Servs., No. 19-1474V, 2021 WL 1784423 (Fed. Cl. Spec. Mstr. Apr. 2, 2021) (chronic back and neck pain); Johnson v. Sec'y of Health & Hum. Servs., No. 19-1117V, 2021 WL 829558 (Fed. Cl. Spec. Mstr. Jan. 25, 2021) (chronic back, thoracic, and neck pain); Murray v. Sec'y of Health & Hum. Servs., No. 18-0534V, 2019 WL 6120001 (Fed. Cl. Spec. Mstr. Sept. 6, 2019) (neurologic symptoms); Lucarelli v. Sec'y of Health & Hum. Servs., No. 16-1712V, 2019 WL 5889235 (Fed. Cl. Spec. Mstr. Aug. 21, 2019) (carpal tunnel and neuralgic pain). 4 Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 5 of 8 where there is ample and preponderant evidence of consistent, primary shoulder pain. Accordingly, this element of the claim has been met. C. Other Requirements for Entitlement As stated above, I find that Petitioner has satisfied all requirements for a Table SIRVA and is entitled to a presumption of causation. Even if a petitioner has satisfied the requirements of a Table injury or established causation-in-fact, he or she must also provide preponderant evidence of the additional requirements of Section 11(c), i.e., receipt of a covered vaccine, residual effects of injury lasting six months, etc. See generally § 11(c)(1)(A)(B)(D)(E). But those elements are established or undisputed. I therefore find that Petitioner is entitled to compensation in this case. D. Damages a. The Parties’ Arguments Citing three6 prior damages determinations, Petitioner requests $130,000.00 in actual pain and suffering. Motion at 9-11. She asserts that her course of treatment (including an MRI, multiple physical therapy sessions, three cortisone injections, a right shoulder arthroscopy with rotator cuff repair, subacromial decompression, synovectomy, and debridement, as well as a post-surgical cortisone injection and home exercise program) is comparable to the aforementioned surgical SIRVA cases and warrants an award at that level. Id. at 2-4, 9-11. In particular, she highlights what the petitioner received in Blanco,7 since “she also underwent physical therapy, three cortisone injections, a right shoulder arthroscopy with rotator cuff repair, subacromial decompression, synovectomy, and debridement, as well as a post-surgical cortisone injection and home exercise program.”8 Motion at 9. Petitioner also emphasizes that her work, familial, and personal life was greatly affected by her SIRVA even after surgery. Motion at 10. In her Reply, Petitioner also addressed the cases listed by Respondent. Reply at 6-10. She argued that they were distinguishable for several reasons, but 6 Petitioner discusses the following cases in her Motion: S.C. v. Sec'y of Health & Hum. Servs., No. 19- 341V, 2021 WL 2949763 (Fed. Cl. Spec. Mstr. June 14, 2021); Blanco v. Sec'y of Health & Hum. Servs., No. 18-1361V, 2020 WL 4523473 (Fed. Cl. Spec. Mstr. July 6, 2020); Reed v. Sec'y of Health & Hum. Servs., No. 16-1670V, 2019 WL 1222925, at *1 (Fed. Cl. Spec. Mstr. Feb. 1, 2019) (Special Master Dorsey) 7 Blanco v. Sec'y of Health & Hum. Servs., No. 18-1361V, 2020 WL 4523473, at *2-3 (Fed. Cl. Spec. Mstr. July 6, 2020). 8 The petitioner in Blanco was awarded $135,000.00 in pain and suffering. Blanco, 2020 WL 4523473, at *2-3. 5 Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 6 of 8 ultimately because her treatment lasted longer and was more involved than with other petitioners. Id. Respondent proposes an award of no more than $110,000.00 for Petitioner’s pain and suffering. Response at 11–15. He argues that “Petitioner’s right shoulder injury was mild to moderate,” and Respondent cites eight9 prior SIRVA damages decisions, which he finds are consistent with a $110,000.00 pain and suffering assessment. Id. at 11. Respondent argues that the cases Petitioner cites as comparables are distinguishable because Petitioner reported only moderate pain and her symptoms resolved within one year of surgery, physical therapy, and steroid injections compared to situations in which petitioners received far more treatment and endured more significant or ongoing sequelae. Id. at 14-15. b. Legal Standards for Damages Awards In another recent decision, I discussed at length the legal standard to be considered in determining damages and prior SIRVA compensation within SPU. I fully adopt and hereby incorporate my prior discussion in Sections II and III of Berge v. Sec’y Health & Human Servs., No. 19-1474V, 2021 WL 4144999, at *1-3. (Fed. Cl. Spec. Mstr. Aug. 17, 2021). In sum, compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Factors to be considered when determining an award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of the suffering.10 c. Appropriate Compensation for Pain and Suffering 9 Respondent discusses the following cases in his Opposition Brief: Smith v. Sec'y of Health & Hum. Servs., No. 19-0745V, 2021 WL 2652688 (Fed. Cl. Spec. Mstr. May 28, 2021); Shelton v. Sec'y of Health & Hum. Servs., No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021); Martin v. Sec'y of Health & Hum. Servs., No. 19-830V, 2021 WL 2350004 (Fed. Cl. Spec. Mstr. May 5, 2021); Weed v. Sec'y of Health & Hum. Servs., No. 18-1473V, 2021 WL 1711800 (Fed. Cl. Spec. Mstr. Mar. 30, 2021); Cates v. Sec'y of Health & Hum. Servs., No. 18-0277V, 2020 WL 3751072 (Fed. Cl. Spec. Mstr. June 5, 2020); Wilt v. Sec'y of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Curri v. Sec'y of Health & Hum. Servs., No. 17-432V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). 10 I.D. v. Sec’y of Health & Human Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). 6 Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 7 of 8 In this case, awareness of the injury is not disputed. The record reflects that at all times Petitioner was a competent adult with no impairments that would impact her awareness of his injury. Therefore, I analyze principally the severity and duration of Petitioner’s injury. When performing this analysis, I review the same record relied upon to determine entitlement, including the filed affidavits and medical records, and written briefs. I have also considered prior awards for pain and suffering in both SPU and non- SPU SIRVA cases, and rely upon my experience adjudicating these cases. First, I note that Petitioner's pain was immediate, and prompted her to seek treatment only days after her October 8, 2019, flu vaccination. Ex. 10 at 4. Thereafter, she underwent significant treatment for her injury for over a year, to include: physical therapy, three steroid injections (Ex. 4 at 28; Ex. 5 at 9; Ex. 10 at 11), an MRI scan (Ex. 4 at 109), a right shoulder arthroscopy with rotator cuff repair, subacromial decompression, synovectomy, and debridement (Ex. 15 at 23), as well as a post-surgical cortisone injection (Ex. 17 at 8). and home exercise program (12 at 6). Second, Petitioner's medical records establish that she suffered a fairly moderate injury. Petitioner’s chiropractic visit two weeks post-vaccination documented that her pain was “moderate,” with pain of 5-6 on a scale of 10. Ex. 11 at 3. By February 2020, Petitioner identified sharp pain in her right should that became a 6-8 out of 10 on the pain scale. Ex. 5 at 9. She eventually had her surgery on September 21, 2020. Ex. 15 at 23-24. By November 25, 2020, (three months after surgery), Petitioner reported that her range of motion in her right shoulder was equal and equivalent to her left shoulder. Ex. 17 at 13. Though she received a corticosteroid injection for pain in her right shoulder after this surgery in January 2021, Petitioner reported no other issues in her right shoulder by February 2021. Ex. 17 at 6. By this time, it was noted that Petitioner was “freely engaged in her regular activities with no current issues,” and although she had some mild pain post-operation, she could continue her normal activities. Ex. 17 at 6-7 I find that Petitioner's injury is comparable to, but not as severe as, the injury experienced by the petitioner in the Blanco case cited by Petitioner in support of her proposed award. Blanco v. Sec'y of Health & Hum. Servs., No. 18-1361V, 2020 WL 4523473 (Fed. Cl. Spec. Mstr. July 6, 2020) (awarding $135,000.00 for past pain and suffering and $1,140.52 in unreimbursable medical expenses). While Petitioner suffered a moderate injury for over a year which required extensive treatment, she ultimately made a strong recovery subsequent to surgery. This is similar to the Blanco petitioner, but there the petitioner suffered for over two years and had a more severe SIRVA injury. Id. at *2. This warrants a slightly lower amount of compensation to be awarded for the difference in pain levels. Under such circumstances, and considering the arguments presented by both 7 Case 1:20-vv-01058-UNJ Document 55 Filed 10/31/23 Page 8 of 8 parties, a review of the cited cases, and based on the record as a whole, I find that $125,000.00 in compensation for Ms. Brantley-Karasinkski’s actual pain and suffering is reasonable and appropriate in this case. Although Petitioner’s request for $130,000.00 is reasonable, and consistent with the “best” comparable in my view, I will discount this award slightly to account for the fact that Ms. Brantley-Karasinkski’s complaints of pain were not wholly reflective of a SIRVA, but included non-compensable problems like pain radiating to her neck and back. I therefore award Petitioner $125,000.00 for her actual pain and suffering. d. Award for Past Unreimbursed Expenses Ms. Brantley-Karasinkski’s requested $721.11 in past unreimbursable expenses. Motion at 13. Respondent finds that the unreimbursed expenses are adequately documented. Response at 15 (citing exhibits 20-27). As such, I award Ms. Brantley- Karasinski $721.11 for past unreimbursable expenses. Conclusion In light of all of the above, the I award Petitioner a lump sum payment of $125,721.11, (representing $125,000.00 for Petitioner’s actual pain and suffering and $721.11 for unreimbursable medical expenses) in the form of a check payable to Petitioner, Linda Brantley-Karasinski. This amount represents compensation for all damages that would be available under Section 15(a) of the Vaccine Act. Id. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance with this Decision.11 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 11 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. 8 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01058-cl-extra-10735461 Date issued/filed: 2024-05-01 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268871 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1058V LINDA BRANTLEY-KARASINKSKI, Chief Special Master Corcoran Petitioner, v. Filed: March 29, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jamie A. Robinson, Maglio Christopher and Toale, PA, Washington, DC, for Petitioner. Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On August 21, 2020, Linda Brantley-Karasinski 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 alleged that she suffered a right-side shoulder Injury related to vaccine administration (known as SIRVA) as a result of an influenza vaccine administered to her on October 8, 2019. Petition, ECF No. 1. On September 28, 2023, I issued a ruling on entitlement and decision awarding damages to Petitioner, following briefing by the parties. ECF No. 51. 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $58,312.62 (representing $57,307.10 for fees and $1,005.52 for costs). Application for Attorneys’ Fees and Costs, filed Nov. 22, 2023, ECF No. 57. In accordance with General Order No. 9, Petitioner represents that Petitioner incurred $3.40 in out-of-pocket expenses. ECF No. 57-3. Respondent reacted to the motion on November 29, 2023, representing that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. ECF No. 58. Petitioner filed a reply reiterating her request for fees and costs. ECF No. 59. Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees and costs to be awarded appropriate, for the reasons set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). 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 & Hum. 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 & Hum. 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 and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 2 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES Most of the rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations. However, the 2023 hourly rate requested for Petitioner’s counsel, Jamie Robinson - $275, requires adjustment. ECF No. 57-1. Mr. Robinson has been a licensed attorney since 2020, equating to two years of experience at the beginning of 2023. ECF No. 57-4 at 2. Therefore, his hourly rate should be in the upper portion of the appropriate range for attorneys with less than four years’ experience based on the OSM Attorney Fee Rate Schedules ($193 - $289). However, Mr. Robinson does not have demonstrated Vaccine Act experience. He was not admitted to practice before this Court until September 2023 (ECF No. 57-4 at 2) and did not enter an appearance in this case until November 2023 (ECF No. 55). And Mr. Robinson will remain within this same range for the current year’s work as well. Therefore, it improper for Mr. Robinson to receive a 2023 hourly rate so close to the upper limit of this range which should be reserved for comparably experienced counsel who also have lengthy experience in the Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-0293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). Accordingly, I find it reasonable to reduce Mr. Robinson’s rate to $250 per hour for all time billed in 2023. Application of the foregoing reduces the amount of fees to be awarded herein by $210.00.3 Mr. Robinson will be entitled to rate increases in the future, as he demonstrates more experience in the Vaccine Program. Additionally, regarding the number of hours billed, I deem the total amount of time devoted to briefing damages to be excessive. See Status Report (reporting an impasse in settlement negotiations), filed June 3, 2022, ECF No. 36; Petitioner’s Motion for Findings of Fact and Conclusions of Law Regarding Entitlement to Compensation, filed June 3, 2022, ECF No. 37; Petitioner’s Reply to Respondent’s Response to Petitioner’s 3 This amount is calculated as: ($275 - $250 = $25 x 8.4 hrs.) = $210.00 3 Motion for Findings of Fact and Conclusions of Law Regarding Entitlement to Compensation and Respondent’s Rule 4(c), filed July 26, 2022, ECF No. 48. Petitioner’s counsel expended approximately 21.0 hours drafting the motion for a ruling on the record and 19.1 hours drafting the reply brief, for a total of 40.14 hours. See ECF No. 57-1 at 19- 21. My above calculation does not include time spent preparing the initial demand which would have informed this later work – 4.50 hours – and I am therefore awarding fees associated with that task in full.5 Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., ECF No. 57-1 at 19 (entry dated 2/14/22). It is unreasonable for counsel to spend so much time briefing, even the issue of both entitlement and damages in this case, where the issues presented are not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter),6 in which attorneys have accomplished this task in about half the time.7 See, e.g., Johnson v. Sec’y of Health & Hum. Servs., No. 19-1543V (Aug. 17, 2023) (17.8 and 9.7 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Piccolotti v. Sec’y of Health & Hum. Servs., No. 20- 0135V (June 8, 2023) (11.6 and 3.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023) (9.8 hours billed for drafting an entitlement and damages brief – although some time was doubtlessly saved by my March 9, 2020 factual ruling finding an appropriate pain onset); C.H. v. Sec’y of Health & Hum. Servs., No. 20-0249V (May16, 2023) (12.9 and 6.1 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively). 4 This total is calculated as follows: 34.3 hours billed on: 4/6/22 (two entries), 4/8/22, 4/11/22, 4/13/22, 5/9/22 (two entries), 5/10/22, 6/2/22, 6/3/22, 7/12/22, 7/13/22, 7/14/22, 7/18/22, 7/21/22, 7/22/22 (two entries), 7/25/22, and 7/26/22 (two entries), by LeeAnne Pedrick at a rate of $220; 5.5 hours billed on: 6/2/22 and 7/26/22 (four entries), by Jessica Olins at a rate of $290; and 0.3 hours billed on 7/13/22 by paralegal Audrey Harper at a rate of $170. 5 This time was billed on 9/13/21; 9/17/21 (two entries); 9/20/21; and 11/30/21 totaling $1,288.80 in fees. See ECF No. 57-1 at 15-18. 6 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 7 These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Mar. 24, 2024). 4 The circumstances of this case did not warrant devoting so much time to the damages briefing. The primary areas of dispute involved symptom location8 and the appropriate amount of compensation for Petitioner’s past pain and suffering. See Brantley-Karasinkski v. Sec’y of Health & Hum. Servs., No. 20-1058V, 2023 WL 7160919, at *3-4 (Fed. Cl. Spec. Mstr. Sept. 28, 2023). The parties’ views differed by $20,000.00 - Petitioner sought $130,000.00, and Respondent countered with $110,000.00. Id. at *4. Although I ultimately awarded an amount closer to that proposed by Petitioner ($125,000.00) (id. at *5), differing by only $5,000.00 – supporting the need for damages briefing, I still find the amount of time expended to be excessive. Of course, having prevailed in this case, a fees award is generally appropriate. But the Act permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be awarded for damages briefing (a total of 40.1 hours, or $9,192.00) by thirty percent. Such an across-the-board reduction (which I am empowered to adopt)9 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a reduction of $2,757.60.10 ATTORNEY COSTS Petitioner requests $1,005.52 in overall costs and $3.40 in Petitioner’s out-of- pocket expenses. ECF No. 57-2 (attorney’s costs); ECF No. 57-3 (Petitioner’s costs). Petitioner has provided supporting documentation for all claimed costs. And Respondent offered no specific objection to the rates or amounts sought. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for 8 42 C.F.R. § 100.3(c)(10)(iii) (2017). 9 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 10 This amount is calculated as follows: (34.3 hrs. x $220 x .30) + (5.5 hrs. x $290 x .30) + (0.20 hrs. x $170 x .30) = $2,757.60. 5 attorney’s fees and costs. Petitioner is awarded the total amount of $55,348.4211 as follows: • A lump sum of $55,345.02, representing $54,339.50 for attorney’s fees and $1,005.52 in attorney’s costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel; and • A lump sum of $3.40, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner. Per Petitioner’s request the checks are to be forwarded to Maglio Christopher and Toale Law: 1605 Main Street, Suite 710, Sarasota Florida 34236. 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.12 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 11 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, Section 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 12 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 6