VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01094 Package ID: USCOURTS-cofc-1_20-vv-01094 Petitioner: David Pierson Filed: 2020-08-28 Decided: 2023-04-18 Vaccine: influenza Vaccination date: 2019-10-03 Condition: Guillain-Barré Syndrome (GBS) Outcome: compensated Award amount USD: 95000 AI-assisted case summary: Renee Clark Pierson, as Administratrix of the Estate of David Pierson, filed a petition on August 28, 2020, alleging that David Pierson suffered from Guillain-Barré Syndrome (GBS) as a result of an influenza vaccine received on October 3, 2019, and that this condition caused or contributed to his death. The respondent denied that the decedent sustained a GBS Table injury, denied that the flu vaccine caused the decedent's GBS or any other injury, and denied that the decedent's death was a sequelae of a vaccine-related injury. Despite these denials, the parties filed a stipulation recommending an award of compensation. The stipulation proposed a lump sum of $95,000.00 to Petitioner as compensation for all damages. Special Master Nora Beth Dorsey found the stipulation to be reasonable and adopted it as the decision of the Court. Judgment was to be entered based on the stipulation, provided no motion for review was filed. The public decision does not describe the decedent's specific symptoms, medical history, diagnostic tests, treatments, or the specific mechanism by which the vaccine allegedly caused GBS. Petitioner was represented by David John Carney of Green & Schafle LLC, and Respondent was represented by Katherine Carr Esposito of the U.S. Department of Justice. Theory of causation field: Petitioner alleged that David Pierson suffered Guillain-Barré Syndrome (GBS) and subsequent death as a result of an influenza vaccine administered on October 3, 2019. Respondent denied that the GBS was a Table injury, denied that the vaccine caused the GBS or any other injury, and denied that the death was a sequelae of a vaccine-related injury. The parties reached a stipulation for compensation, with Petitioner receiving a lump sum of $95,000.00 for all damages. Special Master Nora Beth Dorsey adopted the stipulation as the decision of the Court. The theory of causation was considered "Off-Table." The public decision does not name specific medical experts or detail the proposed mechanism of injury. The award was $95,000.00. The decision was issued by Special Master Dorsey on April 18, 2023. Petitioner's counsel was David John Carney, and Respondent's counsel was Katherine Carr Esposito. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01094-0 Date issued/filed: 2023-05-15 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 4/18/2023) regarding 54 DECISION Stipulation. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: April 18, 2023 * * * * * * * * * * * * * * * * * * * RENEE CLARK PIERSON, * as Administratrix of the * UNPUBLISHED Estate of DAVID PIERSON, * * Petitioner, * No. 20-1094V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Decision Based on Stipulation; Influenza AND HUMAN SERVICES, * (“Flu”) Vaccine; Guillain-Barré Syndrome * (“GBS”). Respondent. * * * * * * * * * * * * * * * * * * * * * David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent. DECISION BASED ON STIPULATION1 On August 28, 2020, Renee Clark Pierson (“Petitioner”), as Administratrix of the Estate of David Pierson (“the decedent”), filed a petition in the National Vaccine Injury Program2 alleging that the decedent suffered from Guillain-Barré Syndrome (“GBS”), which caused or contributed to his death, as a result of an influenza (“flu”) vaccine he received on October 3, 2019. Petition at Preamble (ECF No. 1). 1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims’ website 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018) (“Vaccine Act” or “the Act”). All citations in this Decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. 1 Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 2 of 7 On April 18, 2023, the parties filed a stipulation recommending an award of compensation to Petitioner. Stipulation (ECF No. 53). Respondent denies that the decedent sustained a GBS Table injury; denies that the flu vaccine caused the decedent’s GBS, or any other injury; and denies that the decedent’s death is a sequelae of a vaccine-related injury. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. The parties stipulate that Petitioner shall receive the following compensation: (1) A lump sum of $95,000.00 in the form of a check payable to Petitioner as legal representative of the estate of David Pierson. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Stipulation at ¶ 8. The undersigned approves the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Nora B. Dorsey Nora B. Dorsey Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 3 of 7 Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 4 of 7 Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 5 of 7 Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 6 of 7 Case 1:20-vv-01094-UNJ Document 60 Filed 05/15/23 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01094-cl-extra-10736807 Date issued/filed: 2023-12-07 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270217 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS (Filed: October 27, 2023) * * * * * * * * * * * * * * RENEE CLARK PIERSON as * Administratrix of the ESTATE OF * DAVID PIERSON, * UNPUBLISHED * No. 20-1094V Petitioner, * * Special Master Dorsey v. * * Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * David J. Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner. Katherine C. Esposito, U.S. Department of Justice, Washington, D.C., for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On August 28, 2020, Renee Clark Pierson (“petitioner”), as administratrix of the estate of David Pierson, filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (“Vaccine Act”). Petitioner alleged that Mr. Pierson suffered from Guillain-Barré syndrome, which caused or contributed to his death, as a result of an influenza vaccination he received on October 3, 2019. On April 18, 2023, the 1 This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public in its current form. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. §§ 300aa. parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on the same day. (ECF No. 54). On May 2, 2023, petitioner filed an application for attorneys’ fees and costs. Motion for Attorney Fees and Costs (ECF No. 58). Petitioner requests compensation in the amount of $76,704.44, representing $57,787.50 in attorneys’ fees and $18,916.64 in costs. Fees App. at 3. Pursuant to General Order No. 9, petitioner warrants that she has not personally incurred any costs in pursuit of her claim for compensation. Id. Respondent filed his response on April 5, 2023, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 59). Petitioner did not file a reply thereafter. The matter is now ripe for disposition. For the reasons discussed below, the undersigned GRANTS petitioner’s motion and awards a total of $76,704.44. I. Discussion Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). When compensation is not awarded, the special master “may” award reasonable attorneys’ fees and costs “if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Id. at §15(e)(1). In this case, because petitioner was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs. a. Reasonable Attorneys’ Fees The Federal Circuit has approved use of the lodestar approach to determine reasonable attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348. Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent 2 and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of a petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d in relevant part, 988 F. 2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours clamed in attorney fee requests … [v]accine program special masters are also entitled to use their prior experience in reviewing fee application.” Saxton, 3 F. 3d at 1521. i. Reasonable Hourly Rates Petitioner requests the following hourly rates for the work of her counsel, Mr. David Carney: $350.00 per hour for work performed in 2020, $375.00 per hour for work performed in 2021, $400.00 per hour for work performed in 2022, and $425.00 per hour for work performed in 2023. These rates are consistent with what counsel has previously been awarded for his Vaccine Program work, and the undersigned finds them to be reasonable herein. ii. Reasonable Hours Expended In reducing an award of fees, the goal is to achieve rough justice, and therefore a special master may take into account their overall sense of a case and may use estimates when reducing an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well established that an application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and costs claimed. Id. at *8. The undersigned has reviewed the submitted billing entries and finds the total number of hours billed to be reasonable. The billing entries accurately reflect the nature of the work performed and the undersigned does not find any of the entries to be objectionable. Respondent also has not indicated that he finds any of the entries to be objectionable either. Petitioner is therefore awarded final attorneys’ fees of $57,787.50. b. Attorneys’ Costs Petitioner requests a total of $18,916.64 in attorneys’ costs. This amount is comprised of acquiring medical records, the Court’s filing fee, postage, and work performed by a medical expert, Dr. Justin Willer. The undersigned has reviewed the requested costs and finds them to be reasonable. Accordingly, the full amount of costs shall be awarded. 3 II. Conclusion Based on all of the above, the undersigned finds that it is reasonable compensate petitioner and her counsel as follows: Attorneys’ Fees Requested $57,787.50 (Total Reduction from Billing Hours) - Total Attorneys’ Fees Awarded $57,787.50 Attorneys’ Costs Requested $18,916.64 (Reduction of Costs) - Total Attorneys’ Costs Awarded $18,916.64 Total Attorneys’ Fees and Costs Awarded $76,704.44 Accordingly, the undersigned awards $76,704.44 in attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Mr. David Carney. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 4