VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01304 Package ID: USCOURTS-cofc-1_20-vv-01304 Petitioner: Yolanda Stibor Filed: 2020-10-01 Decided: 2023-03-16 Vaccine: influenza Vaccination date: 2018-10-29 Condition: transverse myelitis Outcome: dismissed Award amount USD: AI-assisted case summary: David Stibor, as personal representative of the estate of Yolanda Stibor, filed a petition for compensation alleging that Ms. Stibor suffered from transverse myelitis and subsequently passed away as a result of receiving an influenza vaccine on October 29, 2018. The petition was filed on October 1, 2020. The court reviewed the information and found that the record did not contain evidence of a Table Injury, nor persuasive evidence that the alleged injuries were caused by the flu vaccine. Furthermore, the medical records were insufficient to prove the claim by a preponderance of the evidence, and no supportive expert opinion on causation had been filed. Consequently, the petitioner filed an unopposed motion to dismiss the case, stating that further proceedings would be unreasonable and a waste of resources. The court granted the dismissal for insufficient proof. The decision was issued on March 16, 2023. Theory of causation field: unclear Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01304-0 Date issued/filed: 2023-03-16 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 02/28/2023) regarding 41 DECISION of Special Master - Dismissal. Signed by Special Master Herbrina Sanders. (arm) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01304-UNJ Document 42 Filed 03/16/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 28, 2023 * * * * * * * * * * * * * * * DAVID STIBOR, personal representative * No. 20-1304V of estate of YOLANDA STIBOR, * * Petitioner, * Special Master Sanders * v. * Dismissal; Insufficient Proof; * Influenza (“Flu”) Vaccine; SECRETARY OF HEALTH * Transverse Myelitis (“TM”); AND HUMAN SERVICES, * Death * Respondent. * * * * * * * * * * * * * * * * Bridget McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner. Tyler King, U.S. Department of Justice, Washington, DC, for Respondent. DISMISSAL1 On October 1, 2020, David Stibor (“Petitioner”) filed a petition for compensation on behalf of the estate of Yolanda Stibor (“Ms. Stibor”) under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that Ms. Stibor suffered from transverse myelitis and subsequently passed away as a result of her receipt of an influenza (“flu”) vaccine on October 29, 2018. Pet. at 1, 5, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program. On February 28, 2023, Petitioner filed an unopposed motion for a decision dismissing his petition. ECF No. 40. In his motion, Petitioner stated that “[a]n investigation of the facts and science supporting his case has demonstrated to [P]etitioner that he will be unable to prove that he is entitled to compensation in the Vaccine Program.” Id. at 1. He continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, [ R]espondent, and the Vaccine Program.” Id. 1 This Decision shall be posted 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 Decision will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted Decision. If, upon review, the I agree that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01304-UNJ Document 42 Filed 03/16/23 Page 2 of 2 To receive compensation under the Program, Petitioner must prove either (1) that Ms. Stibor suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table— corresponding to the vaccination, or (2) that she suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that Ms. Stibor suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Ms. Stibor’s alleged injuries were caused-in-fact by the flu vaccine. Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim by preponderant evidence, and at this time, Petitioner has not filed a supportive opinion on causation from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01304-cl-extra-10734309 Date issued/filed: 2024-09-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267719 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: June 24, 2024 * * * * * * * * * * * * * * * * DAVID STIBOR, personal representative * No. 20-1304V of estate of YOLANDA STIBOR, * * Special Master Sanders Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Bridget McCullough, Muller Brazil PA, Dresher, PA, for Petitioner; Tyler King, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On October 1, 2020, David Stibor (“Petitioner”) filed a petition for compensation on behalf of the estate of Yolanda Stibor (“Ms. Stibor”) under the National Vaccine Injury Compensation Program.2 42 U.S.C. § 300aa-10 to 34 (2018) (the “Vaccine Act” or “Program”). Petitioner alleged that Ms. Stibor suffered from transverse myelitis and subsequently passed away as a result of her receipt of an influenza (“flu”) vaccine on October 29, 2018. Pet. at 1, 5, ECF No. 1. On February 28, 2023, petitioner filed a motion to dismiss and on that same day I issued a decision dismissing the petition for insufficient proof. (ECF No. 41). 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. On August 7, 2023, Petitioner filed a motion for attorneys’ fees and costs. Pet’r’s Mot. for Final Attorneys’ Fees and Costs [hereinafter “Pet’r’s Mot. for AFC”], ECF No. 46. Petitioner requests total attorneys’ fees and costs in the amount of $25,957.72, representing $20,874.60 in attorneys’ fees and $5,083.12 in attorneys’ costs. Pet’r’s Mot. for AFC at 2. Pursuant to General Order No. 9, Petitioner has indicated that he has not personally incurred any costs in pursuit of his petition. Id. Respondent responded to the motion on August 9, 2023, stating that Respondent “is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp. at 2, ECF No. 47. Petitioner did not file a reply. This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although the petition was eventually dismissed, I am satisfied that good faith and reasonable basis have been met in the instant case. Respondent has also indicated he is satisfied that good faith and reasonable basis have been met. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs. The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. 2 A. Hourly Rate The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee Schedules can be accessed online.3 Petitioner requests the following hourly rates for the work of his counsel at Muller Brazil; for Ms. Bridget McCullough, $250.00 per hour for work performed in 2020, $275.00 per hour for work performed in 2021, $300.00 per hour for work performed in 2022, and $350.00 per hour for work performed in 2023; for Ms. Shealene Mancuso, $275.00 per hour for work performed in 2020; and for Mr. Max Muller, $325.00 per hour for work performed in 2019, and $400.00 per hour for work performed in 2022. These rates are consistent with what counsel have previously been awarded for their Vaccine Program work and the undersigned finds them to be reasonable herein. B. Reasonable Number of Hours Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is well-established that billing for administrative or clerical tasks is not permitted in the Vaccine Program. See e.g., Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (stating that services that are “primarily of a secretarial or clerical nature . . . should be considered as normal overhead office costs included within the attorneys’ fee rates”); see also Isom v. Sec’y of Health & Human Servs., No. 94-770, 2001 WL 101459, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2001) (agreeing with Respondent that tasks such as filing and photocopying are subsumed under overhead expenses); Walters v. Sec’y of Health & Human Servs., No. 15- 1380V, 2022 WL 1077311, at *5 (Fed. Cl. Spec. Mstr. Feb. 23, 2022) (failing to award fees for the review of CM/ECF notifications and the organization of the file); McCulloch, 2015 WL 5634323, at *26 (noting that clerical and secretarial tasks should not be billed at all, regardless of who performs them). Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review, the undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $20,874.60. C. Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests 3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. 3 a total of $5,083.12 in attorneys’ costs. This amount is comprised of acquisition of medical records, postage, process server fees, and the Court’s filing fee. Pet’r’s Mot. for AFC, Ex. B at 1. These costs have been supported with the necessary documentation and are reasonable. Petitioner also requests expert fees for Dr. Joseph S. Jeret at a rate of $530.00 per hour for 7 hours, totaling $3,710.00. Dr. Jeret was previously awarded an hourly rate of $500.00. I agree that this rate is appropriate. See Bristow v. Sec’y of Health & Human Servs., No. 19-457V, 2022 WL 17821111 at *6 (Fed. Cl. Spec. Mstr. Nov. 15, 2022) (reducing Dr. Jeret’s requested hourly rate from $550/hour to $500/hour). A complete invoice was submitted, and Dr. Jeret’s hours appear to be reasonable. This results in a reduction of $210.00.4 Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $4,873.12. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2018), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to compensate Petitioner and his counsel as follows: Attorneys’ Fees Requested $20,874.60 (Reduction to Fees) - Total Attorneys’ Fees Awarded $20,874.60 Attorneys’ Costs Requested $4,873.12 (Reduction to Costs) ($210.00) Total Attorneys’ Costs Awarded $4,873.12 Total Attorneys’ Fees and Costs $25,747.72 Accordingly, the undersigned awards a lump sum in the amount of $25,747.72, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and his counsel, Ms. Bridget McCullough. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.5 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 4 ($530.00 - $500.00) x 7 hrs. = $210.00. 5 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