VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01238 Package ID: USCOURTS-cofc-1_20-vv-01238 Petitioner: Melanie Fatone Filed: 2020-09-21 Decided: 2023-05-10 Vaccine: influenza Vaccination date: 2017-10-19 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 42750 AI-assisted case summary: Melanie Fatone filed a petition for compensation on September 21, 2020, alleging that she suffered a left shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine she received on October 19, 2017. She stated that her injuries persisted for more than six months and that she had not received prior compensation for these injuries. The respondent, the Secretary of Health and Human Services, denied that Ms. Fatone sustained a Table injury for SIRVA or that the flu vaccine caused her injury. Despite these denials, the parties filed a joint stipulation on May 10, 2023, agreeing that the case should be settled with an award of compensation. The court adopted the stipulation as its decision. Ms. Fatone was awarded $42,750.00 as a lump sum payment. This amount represents compensation for all items of damages available under the Vaccine Act. The case proceeded as a Table claim, as SIRVA is listed on the Vaccine Injury Table. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01238-0 Date issued/filed: 2023-06-12 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 05/10/2023) regarding 48 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01238-UNJ Document 49 Filed 06/12/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1238V UNPUBLISHED MELANIE FATONE, Chief Special Master Corcoran Petitioner, Filed: May 10, 2023 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA) Heather M. Bonnet-Hebert, Feingold Bonnet-Hebert, P.C., New Bedford, MA, for Petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On September 21, 2020, Melanie Fatone 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 shesuffered a left shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”)3 vaccine received on October 19, 2017. Petition at 1; Stipulation, filed May 10, 2023, at ¶¶ 2-4; Ex. 1 at 2-3. Petitioner further alleges the vaccine was received in the United States, her injuries have persisted 1 Because this unpublished 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 of2002. 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. 2National 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). 3The stipulation acknowledges that the preamble of the petition refersto a tetanus diphtheria vaccine, but states that the remainder of the petition refers to the influenza vaccine, and states that the parties agree thatPetitionerdoes not allege any claim arising from the receipt of a tetanus diphtheria vaccine. Case 1:20-vv-01238-UNJ Document 49 Filed 06/12/23 Page 2 of 7 for more than six months, and neither she, nor any other party, has ever received compensation in the form or an award or settlement, or filed a civil action prior to this petition, for her vaccine-related injuries. Petition at ¶¶ 2, 23, 24; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner sustained a Table injury for SIRVA, and denies that the flu vaccine caused petitioner to suffer a left shoulder injury or any other injury, and denies that her current condition is a sequelae of a vaccine-related injury.” Stipulation at ¶ 6. Nevertheless, on May 10, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $42,750.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this decision.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 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-01238-UNJ Document 49 Filed 06/12/23 Page 3 of 7 IN THE UNITED STA TES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) MELANIE FA TONE, ) ) Petitioner, ) No. 20-1238V ) Chief Special Master Corcoran v. ) ECF ) SECRETARY OF HEALT H ) AND HUMAN SERVICES, ) ) Respondent. ) STIPULATION The parties hereby stipulate to the following matters: I. Melanie Fatone ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza ("flu") vaccine,1 which is a vaccine contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a). 2. Petitioner received the flu vaccine on October 19, 2017, in her left shoulder. 3. The vaccination was administered within the United States. 4. Petitioner alleges that she suffered from a left shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table, and suffered the residual effects of her alleged injury for more than six months. 1 Although the preamble references the "Tetanus-Diphtheria vaccination," the remainder of the petition refers to the flu vaccine. The parties agree that petitioner does not allege any claim against respondent arising from the receipt of a "Tetanus-Diphtheria vaccination." Case 1:20-vv-01238-UNJ Document 49 Filed 06/12/23 Page 4 of 7 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. 6. Respondent denies that petitioner sustained a Table injury for SIRVA, and denies that the flu vaccine caused petitioner to suffer a left shoulder injury or any other injury, and denies that her current condition is a sequelae of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry ofj udgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $42,750.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry ofj udgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(I), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. 10. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or 2 Case 1:20-vv-01238-UNJ Document 49 Filed 06/12/23 Page 5 of 7 State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa l S(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l S(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l O et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccine administered on October 19,2017, as alleged by petitioner in her petition for vaccine compensation filed on or about September 21, 2020, in the United States Court of Federal Claims as petition No. 20-1238V. 3 Case 1:20-vv-01238-UNJ Document 49 Filed 06/12/23 Page 6 of 7 14. If petitioner should die prior to entry ofj udgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that petitioner sustained a Table injury, or that the flu vaccine either caused or significantly aggravated petitioner's alleged injury or any other injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION I I I I I I I 4 Case 1:20-vv-01238-UNJ Document 49 Filed 06/12/23 Page 7 of 7 Respectfully submitted, PETITIONER: 9NE I ATT RNEYOFRECORDFOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: UJk?JdU ~~f&~-U\~ HEATHERM. BONNET-HEBERT Feingold Bonnet-Hebert, P.C. Deputy Director 700 Pleasant Street, Suite 250 Torts Branch, Civil Division New Bedford, Massachusetts 02740 U.S. Department of Justice Tel.: (508) 999-1119 P.O. Box 146 Fax: (508) 999-0300 Benjamin Franklin Station Email: heather@rbflaw.net Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes DlgltaflysignedbyGeorgeR Grtmes-S14 -514 Date:2023.04.2816:23:40-1)4'00' ~ / ~ THERINE CDR GEORGE REED GRIMES, MD, MPH A E. STOLAR Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Adm in i strati on Benjamin Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel.: (202) 3 53-3299 5600 Fishers Lane, 08N146B Fax: (202) 616-4310 Rockville, :MD 20857 Email: catherine.stolar@usdoj.gov 5 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01238-cl-extra-10735752 Date issued/filed: 2024-04-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269162 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1238V MELANIE FATONE, Chief Special Master Corcoran Petitioner, v. Filed: March 4, 2024 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Heather M. Bonnet-Hebert, Feingold, Bonnet-Hebert, P.C., New Bedford, MA, for Petitioner. Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On September 21, 2020, Melanie Fatone 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”) resulting from an influenza (“flu”) vaccine received on October 19, 2017. Petition at 1. On May 10, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 48. 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 $24,048.53 (representing $23,456.00 in fees plus $592.53 in costs). Petitioner’s Motion for Attorneys’ Fees and Costs (“Motion”) filed Dec. 4, 2023, ECF No. 53. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. ECF No. 52. Respondent reacted to the motion on December 15, 2023, 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, ECF No. 54. Petitioner filed no reply. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion, Ex. 1 at 22 - 38. Respondent offered no specific objection to the rates or amounts sought. 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 attorney’s fees and costs. I award a total of $24,048.53 (representing $23,456.00 in fees plus $592.53 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Heather M. Bonnet-Herbert. 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