VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01381 Package ID: USCOURTS-cofc-1_20-vv-01381 Petitioner: Edward Vallee Filed: 2020-10-13 Decided: 2023-08-29 Vaccine: influenza Vaccination date: 2018-11-02 Condition: Guillain-Barre Syndrome (GBS) Outcome: compensated Award amount USD: 162090 AI-assisted case summary: On October 13, 2020, Edward Vallee filed a petition under the National Vaccine Injury Compensation Program, alleging that he suffered Guillain-Barre Syndrome (GBS) as a result of an influenza vaccine administered on November 2, 2018. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Mr. Vallee met the criteria for GBS under the Vaccine Injury Table and was entitled to compensation. Chief Special Master Brian H. Corcoran issued a Ruling on Entitlement on June 21, 2021, finding Mr. Vallee entitled to compensation. Mr. Vallee passed away from unrelated causes on August 9, 2021, with GBS listed as a contributing condition. Patricia Vallee was substituted as petitioner as the administrator of Mr. Vallee's estate. The case proceeded to a damages hearing, with the parties reaching an impasse on the award for pain and suffering. Petitioner sought $180,000.00 for pain and suffering and $2,090.30 for unreimbursed expenses. Respondent argued for $106,500.00 for pain and suffering, not disputing the unreimbursed expenses. Chief Special Master Corcoran reviewed Mr. Vallee's medical history, which included chronic conditions such as hypertension, hyperlipidemia, coronary artery disease, kidney disease, and diabetes, as well as sequelae from bilateral subdural hematomas requiring prior surgeries. Mr. Vallee received the influenza vaccine on November 2, 2018. Thirteen days later, on November 15, 2018, he presented with weakness in his extremities, diagnosed with GBS. He was hospitalized from November 15-19, 2018, and received IVIG treatment. Following hospitalization, he underwent extensive outpatient physical and occupational therapy sessions over approximately seven months. Mr. Vallee continued to experience weakness, fatigue, and numbness, requiring a walker for mobility until his death. Chief Special Master Corcoran found that while Mr. Vallee's GBS course was moderate and prolonged, it was not as severe as in some other GBS cases. He considered Mr. Vallee's pre-existing comorbidities, noting they complicated his recovery but did not diminish the impact of the GBS. Balancing the severity of GBS, Mr. Vallee's personal loss, the moderate disease course, and treatment requirements, and reviewing prior case awards, Chief Special Master Corcoran awarded $160,000.00 for pain and suffering and $2,090.30 for unreimbursed expenses, for a total award of $162,090.30. The decision was issued on August 29, 2023. Theory of causation field: Edward Vallee received an influenza vaccine on November 2, 2018. Approximately thirteen days later, he developed symptoms consistent with Guillain-Barre Syndrome (GBS), for which he was diagnosed and treated. The respondent conceded that Mr. Vallee's GBS satisfied the criteria for a "Table Injury" under the National Vaccine Injury Compensation Program. Entitlement to compensation was granted on June 21, 2021. Mr. Vallee passed away from unrelated causes on August 9, 2021, with GBS listed as a contributing condition. The case proceeded to a damages determination. Chief Special Master Brian H. Corcoran awarded a total of $162,090.30, comprising $160,000.00 for pain and suffering and $2,090.30 for unreimbursed expenses. Petitioner counsel was Ronald Craig Homer, and respondent counsel was Jennifer A. Shah. The decision was issued on August 29, 2023. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01381-0 Date issued/filed: 2021-07-28 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/21/2021) regarding 30 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01381-UNJ Document 39 Filed 07/28/21 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1381V UNPUBLISHED EDWARD VALLEE, Chief Special Master Corcoran Petitioner, Filed: June 21, 2021 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner. Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On October 13, 2020, Edward Vallee 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 he suffered Guillain-Barre Syndrome (“GBS”) as a result of an influenza vaccine administered on November 2, 2018. Amended Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 17, 2021, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent has concluded that Petitioner has satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation for GBS. Id. 1 Because this unpublished 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 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01381-UNJ Document 39 Filed 07/28/21 Page 2 of 2 at 6. Respondent further agrees that Petitioner has satisfied the statutory requirements necessary for entitlement. Id. at 6-7. 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 2: USCOURTS-cofc-1_20-vv-01381-1 Date issued/filed: 2023-08-29 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 07/27/2023) regarding 68 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1381V UNPUBLISHED PATRICIA VALLEE, Administrator of Chief Special Master Corcoran ESTATE OF EDWARD VALLEE, Filed: July 27, 2023 Petitioner, v. Special Processing Unit (SPU); Ruling on the Record; Damages; SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Guillain- HUMAN SERVICES, Barré Syndrome (GBS) Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner. Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On October 13, 2020, Edward Vallee2 filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”). Petitioner alleged that Mr. Vallee suffered from Guillain Barré syndrome (“GBS”) caused by an influenza (“flu”) vaccine administered on November 2, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”), and entitlement was found in the Petitioner’s favor on June 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 Mr. Vallee passed away from other causes, and Patricia Vallee was substituted in as Petitioner on December 6, 2021. ECF No. 46. 3 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-01381-UNJ Document 74 Filed 08/29/23 Page 2 of 8 21, 2021. The parties reached on impasse on the appropriate award for pain and suffering from Mr. Vallee’s injury, however, so the matter was submitted for an SPU “Motions Day” hearing. For the reasons described below, I award $160,000.00 in damages, representing compensation for actual pain and suffering, plus $2,090.30 representing unreimbursed expenses. I. Medical Records Prior to receiving the flu vaccine, Mr. Vallee’s medical history included several chronic conditions, including hypertension, hyperlipidemia, coronary artery disease, kidney disease, and diabetes. Ex. 5 at 327. Additionally, he had bilateral subdural hematomas that required several surgeries approximately eight months prior to his vaccination that resulted in chronic weakness, pain, and fatigue. Ex. 12 at 1198-99. Mr. Vallee received a flu vaccine on November 2, 2018. Ex. 1 at 1; Ex. 5 at 214. At that time, he reported that he still had some symptoms associated with his subdural hematomas, including an unsteady gait that was improving, and fatigue. Ex. 5 at 207, 214. On November 15, 2018 (thirteen days after his vaccination), Mr. Vallee presented to the emergency department complaining of weakness in his extremities that began one week earlier. Ex. 8 at 302. He reported that he had weakness and chronic pain with walking since the March surgery. Id. at 303-09. However, his weakness and fatigue had increased markedly following his flu shot, stating that “he normally performs 18 push-ups, but could only do 3 last week.” Id. at 302. A lumber puncture indicted elevated protein in his cerebral spinal fluid, and he was diagnosed with GBS. Id. at 305. Mr. Vallee was hospitalized from November 15-19 and underwent a 5-day course of IVIG. Id. at 39-41.4 Mr. Vallee began out-patient physical therapy on December 4, 2018. Ex. 8 at 1052. At that time, he required the use of a walker and had lower extremity weakness but was able to get into bed alone and had reportedly “fair” balance. Id. at 1052. From December 4, 2018, through July 10, 2019, Mr. Vallee attended fifty-one physical therapy sessions. Id. at 1012-17; 1048, 1050-51, 1056; Ex. 21 at 91, 93-106. On December 18, 2018, Mr. Vallee had a follow-up at his primary care clinic. Ex. 5 at 150. He reported continued left leg weakness and the need to use a walker. Id. He 4 Mr. Vallee was also treated for an antibiotic-resistant urinary tract infection during his hospital stay. Ex. 8 at 39. 2 Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 3 of 8 also was reportedly attending physical therapy sessions twice a week. On January 4, 2019, Mr. Valle began occupational therapy. Ex. 8 at 29. He continued to report weakness in his extremities and fatigue. Id. Between January 4, 2019 and April 3, 2019, he attended seventeen occupational therapy sessions. Id. at 29, 61-62, 64-65, 67-68, 70-73. Mr. Vallee presented to the emergency department for worsening weakness on January 7, 2019. Ex. 8 at 833. His weakness was thought to be related to a urinary tract infection and not a GBS relapse. Id. at 656. He then saw Dr. Herminio Cuervo, a neurologist, on February 7, 2019. He reported constant and severe numbness, tingling, and weakness that was more pronounced on his left side. Ex. 6 at 69-72. A follow-up with Dr. Cuervo on April 23, 2019, noted that Mr. Vallee was making slow progress, and that he had regained “most of the strength in the left arm and hand.” He was diagnosed with sequelae of GBS and diabetic polyneuropathy. Id. at 66-67. Mr. Vallee indicated that he continued to attend physical therapy twice weekly. A third follow-up with Dr. Cuervo on August 15, 2019, indicated Mr. Vallee continued to improve but still exhibited weakness and balance issues. Id. at 61-262. On January 9, 2020, Mr. Vallee again saw Dr. Cuervo, who noted he still had weakness and diminished reflexes, but that he “continues to recover slowly.” Ex. 6 at 55- 56. By May 19, 2020, Mr. Vallee reported ongoing weakness in his left side, but his left arm had improved significantly. Ex. 17 at 36. His symptoms continued to linger however, and on November 18, 2020 he reported weakness and fatigue to Dr. Cuervo. Further, Mr. Vallee stated that “[h]e wants to get over his GBS.” Id. at 31-33; see also Ex. 15 at 52 (reports of fatigue and weakness from January 4, 2021). Mr. Vallee saw Dr. Cuervo on May 12, 2021. He reported continued frustration, lack of energy, and left-sided weakness. Ex. 14 at 1-5. Additionally, he was still utilizing a walker for mobility. On August 9, 2021, Mr. Vallee passed away. Ex. 22. His cause of death was acute coronary syndrome, and GBS was listed as a significant condition contributing to, but not the cause of, his death.5 II. Affidavit Evidence Mr. Vallee’s wife submitted an affidavit in support of this petition on December 13, 2021. Ex. 16. She stated that she and her husband were competitive dancers, and after 5 Additional significant contributing conditions included diabetes, coronary artery disease, and kidney disease. Ex. 2 at 2. 3 Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 4 of 8 Mr. Vallee recovered after he had blood clots removed from his head. Id. at 2. She also described Mr. Vallee’s course of treatment, and how his GBS impacted the last years of his life. Id. at 2-4. III. Damages The sole contested damages component to be decided is pain and suffering. Petitioner filed a memorandum in support of damages on June 10, 2022, seeking $180,000.00 for pain and suffering and $2,090.30 for unreimbursed expenses. Petitioner’s Memorandum in Support of Damages (“Pet. Br.”), ECF No. 60. Respondent reacted with his own brief on August 10, 2022, arguing that $106,500.00 is an appropriate amount for pain and suffering, but not disputing the unreimbursed expenses. Respondent’s Response to Petitioner’s Memorandum on Damages (“Res. Br.”), ECF No. 63. Petitioner filed a reply on September 6, 2022. Petitioner’s Reply to Respondent’s Response to Petitioner’s Brief in Support of Damages (“Reply”), ECF No. 64. IV. Standard 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).6 Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment awarding such expenses which (i) resulted from the vaccine-related injury for which the petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no mathematic formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional distress are inherently subjective and cannot be determined by using a mathematical formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is inherently a subjective evaluation”). 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. I.D., 2013 WL 2448125, at *9 (citing McAllister v. Sec’y of Health 6 Petitioner does not make the claim for the Vaccine Act’s $250,000.00 Death Benefit. Pet. Br. at 24. 4 Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 5 of 8 & Hum. 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)). I may also consider prior pain and suffering awards to aid my resolution of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”). And, of course, I may rely on my own experience (along with that of my predecessor Chief Special Masters) adjudicating similar claims.7 Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated that the special masters would use their accumulated expertise in the field of vaccine injuries to judge the merits of individual claims). Although pain and suffering in the past was often determined based on a continuum (between zero and the $250,000.00 cap), that practice was cast into doubt by the Court several years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). The Court maintained that to do so resulted in “the forcing of all suffering awards into a global comparative scale in which the individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.” Id. at 589-90. Instead, pain and suffering should be assessed by looking to the record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program. Id. at 593-95. Under this alternative approach, the statutory cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible awards as falling within a spectrum that ends at the cap. While Graves does not control the process used herein to calculate pain and suffering, it stands as wise counsel. V. Appropriate Compensation for Pain and Suffering In this case, awareness of the injury is not disputed. The record reflects that at all times Mr. Vallee was a competent adult with no impairments that would impact the awareness of his injury. Therefore, my analysis focuses primarily on the severity and duration of Mr. Vallee’s injury. When performing this analysis, I review the record as a whole, including the medical records and affidavits filed, all assertions made by the parties in written documents, and the arguments presented during the Motions Day hearing. Petitioner 7 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For the next four years, until September 30, 2019, all SPU cases were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the majority of SPU cases were reassigned to me as the current Chief Special Master. 5 Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 6 of 8 cites to a number of damages decisions involving GBS injuries that resulted in $180,000.00 awards.8 Pet. Br. at 23. Petitioner notes that Mr. Vallee’s treatment included a five-day course of hospitalization, a lumbar puncture, IVIG, and significant physical therapy over the last three years of his life. Pet. Br. at 17-22. Respondent argues that the severity of Mr. Vallee’s GBS was less than what is evident from previous cases, and should be assessed in light of his pre- and post-vaccine comorbidities. Res. Br. at 8-9. Respondent notes that the cases cited by Petitioner involved substantially longer hospitalizations, intensive therapies, and petitioners that did not have pre-existing medical conditions that complicated recovery. Id. at 9-10. He also cites to Bircheat v. Sec'y of Health & Hum Servs. as a comparable case. No. 19-1088V, 2021 WL 3026880 (Fed. Cl. Spec. Mstr. June 16, 2021) (awarding $170,000.00 for pain and suffering). Respondent notes that the petitioner in Bircheat had a more severe course of treatment, consisting of seven days of hospitalization, a feeding tube, twenty-four days at an inpatient rehabilitation facility, and long-term reports of severe neuropathic pain. Id. at *2. After reviewing the record in this case, the evidence best supports the conclusion that Mr. Vallee experienced the onset of GBS in November 2018, followed by a moderate, if prolonged, course of treatment. He was fortunate to receive a relatively prompt diagnosis and appropriate treatment with IVIg. He was in the hospital for five days but and not require in-patient therapy. However, Mr. Vallee underwent an extensive course of therapy after his hospital stay, consisting of sixty-eight therapy (including both physical therapy and occupational therapy) sessions over approximately seven months. Mr. Vallee gradually improved over the next several years. However, he required supportive devices to ambulate and reported weakness, fatigue, and numbness until his death on August 9, 2021. While the course of his injury was not as severe as other GBS cases, I give some weight to the fact that the last three years of his life were occupied with his recovery. Respondent contends that Mr. Vallee’s comorbidities support a significantly lower award than most GBS cases, arguing that his pain and suffering was not solely due to his 8 In particular, Petitioner cited to McCray v. Sec’y of Health & Hum. Servs., No. 19-0277V, 2021 WL 4618549 (Fed. Cl. Spec. Mstr. Aug 31, 2021); Cegielski v. Sec’y of Health & Hum. Servs., No. 17-0570V, 2021 WL 1440205 (Fed. Cl. Spec. Mstr. Mar. 16, 2021); Fedewa v. Sec’y of Health & Hum. Servs., 17- 1808V (Fed. Cl. Spec. Mstr. March 26, 2020); Presley v. Sec’y of Health & Hum. Servs., No. 17-1888V, 2020 WL 1898856 (Fed. Cl. Spec. Mstr. Mar. 23, 2020) (awarding $180,000 for pain and suffering); Devlin v. Sec’y of Health & Hum. Servs., 19-191V, 2020 WL 5512505 (Fed. Cl. Spec. Mstr. Aug. 7, 2020); and Johnson v. Sec’y of Health & Hum. Servs., No. 16-1356V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00 for pain and suffering). Pet. Br. at 23. 6 Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 7 of 8 GBS. Res. Br. at 8-9. I recognize that his concurrent conditions complicated his GBS, but the mere fact that a claimant had pre-vaccination comorbidities does not per se diminish the impact of injury on his life – especially one as alarming and potentially life-altering as GBS – and therefore is not alone a reason for a lower award. Those comorbidities are still relevant to pain and suffering, since their ongoing nature means that not all of his post-vaccination suffering can in fact be attributed to the vaccine injury – but at the same time the additional suffering imposed by the vaccine-caused GBS warrants recognition in the total award. Respondent’s proposed award of $106,500.00 does not give sufficient credence to the seriousness of GBS as a general matter, or to the facts of this specific case. Although Mr. Vallee did experience a relatively mild initial course of treatment, he had significant therapy thereafter and lingering sequela including weakness, fatigue, and the need of a walker until his death approximately three years later. Petitioner has far better substantiated her demand than Respondent. And the number he seeks reasonably balances the seriousness of GBS generally and the relatively invasive nature of Mr. Vallee’s treatment. However, I do agree with Respondent's contention that the present facts are not directly comparable to the damages determinations cited by Petitioner. In such cases, where pain and suffering awards were $180,000.00, the injured party experienced an identifiable effect on their career, life, or daily living, which is harder to show here due to Mr. Vallee’s status as a retired individual with significant comorbidities. See, e.g. Dillenbeck 2019 WL 4072069, at *14; Devlin, 2020 WL 5512505 at *3; Francesco, 2020 WL 6705564 at *4; W.B., 2020 WL 5509686 at *5. Mr. Vallee’s situation is most similar to the petitioner in Turner v. Sec'y of Health & Hum Servs., No. 19-1051V, 2021 WL 3834198 (Fed. Cl. Spec. Mstr. July 27, 2021) (awarding $150,000 for pain and suffering). That individual also had significant medical comorbidities, including hypertension and recurrent oral cancer (from which he ultimately passed away). The initial treatment period was more severe and required 12 days of in- patient rehabilitation. Upon discharge, his treatment consisted of physical therapy (43 sessions) over ten months until he passed away from cancer. Mr. Vallee had a less severe initial treatment phase, but also attended more therapy over a longer period of time. Balancing the severity of a GBS injury and Mr. Vallee’s personal loss against the relatively low severity of his moderate disease course and treatment requirements, and considering the arguments presented by both parties, a review of the cited cases, and based on the record as a whole, I find that $160,000.00 in compensation for actual pain and suffering is reasonable and appropriate in this case. 7 Case 1:20-vv-01381-UNJ Document 74 Filed 08/29/23 Page 8 of 8 Conclusion For all of the reasons discussed above, and based on consideration of the record as a whole, I award Petitioner a lump sum payment of $162,090.30 (representing an award of $160,000.00 for past pain and suffering, and unreimbursed expenses of $2,090.30) in the form of a check payable to Petitioner. This amount represents compensation for all items of damages that would be available under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance with this Decision.9 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 8 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01381-cl-extra-10735511 Date issued/filed: 2024-04-26 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268921 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1381V PATRICIA VALLEE, administrator of ESTATE OF EDWARD VALLEE, Chief Special Master Corcoran Petitioner, Filed: March 26, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On October 13, 2020, Edward Vallee2 filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”). Petitioner alleged that Mr. Vallee suffered from Guillain Barré syndrome caused by an influenza vaccine administered on November 2, 2018. Petition at 1. On July 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 After Mr. Vallee passed away from causes unrelated to his vaccine injury, Patricia Vallee (as administrator of Edward Vallee’s estate) was substituted in as Petitioner on December 6, 2021. ECF No. 46. 3 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). 27, 2023, I issued a decision awarding damages to Petitioner, following briefing and expedited Motions Day argument by the parties. ECF No. 68. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $57,200.21 (representing $52,255.60 for fees and $4,944.61 for costs). Application for Attorneys’ Fees, filed Jan. 17, 2024, ECF No. 75. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred $3,546.36 in out-of-pocket expenses. ECF No. 76. Respondent reacted to the motion on January 31, 2024, representing 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. 77. Petitioner filed no reply. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. 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 2 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 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES The rates requested for work performed through the end of 2023 are reasonable and consistent with prior determinations, and will therefore be adopted. Petitioner has also requested the same 2023 attorney rate of $500 per hour for work performed by Ronald Homer in 2024. ECF No. 75 at 32. Additionally, Petitioner requests an hourly rate of $185 for paralegal work. Id. I find these hourly rates to be reasonable. Regarding the time billed, I note this case required additional briefing and argument regarding damages. See Petitioner’s Memorandum in Support of Damages, filed June 10, 2022, ECF No. 60; Petitioner’s Reply to Respondent’s Response to Petitioner’s Brief in Support of Damages, filed Sept. 6, 2022, ECF No. 64; Minute Entry, dated July 26, 2023 (for July 14, 2023 expedited hearing). Petitioner’s counsel expended approximately 7.1 hours drafting the brief and 4.1 hours drafting the reply, for a combined total of 11.2 hours. ECF No. 75 at 28-29. I find this amount of time to be reasonable and will award the attorney’s fees requested. However, a small amount must be reduced for attorney time billed for the review of status reports, the PAR Questionnaire, and other cursory documents prepared by another attorney. ECF No. 75 at 15, 19, 21-22, 25-27, 29, 31-32 (entries dated 11/25/20, 12/18/20, 7/19/21, 8/18/21, 10/12/21, 12/2/21, 2/24/22, 4/11/22, 5/11/22, 11/7/22, 8/3/23, 11/13/23). I note that it is common practice for Conway, Homer, P.C. to have several attorneys assist over the course of a case. In some instances, such as when preparing substantive documents like the petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that document. See ECF No. 75 at 12, 23, 28-29 (entries dated 10/13/20, 12/6/21, 6/9/22, 9/6/22). However, it is not reasonable to have an attorney bill for time to review routine filings, such as status reports and motions for enlargement of time, when those filings were prepared (and billed for) by another attorney. This is not the first time I or other special masters have noted this particular issue concerning Conway, Homer, P.C. billing practices. See, e.g., Manetta v. Sec’y of Health & Hum. Servs., No. 18-172V, 2020 WL 7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Hum. Servs., No. 18-414V, 2020 WL 6578229 (Fed. 3 Cl. Spec. Mstr. Oct. 2, 2020). I will not award attorney’s fees for this redundant work. This results in a reduction of $551.00. ATTORNEY COSTS Petitioner has provided supporting documentation for all claimed costs for all but expenses of $15.00 for copying and $26.87 for postage. ECF No. 75 at 32-33, 35-52 (receipts for attorney’s costs), 53-64 (receipts for Petitioner’s costs). I will nevertheless allow reimbursement of these unsubstantiated costs. And Respondent offered no specific objection to the rates or amounts sought. ECF No. 77. Petitioner’s out-of-pocket costs include $3,530.00 in legal fees for the establishment of Edward Vallee’s estate and appointment of Patricia Vallee as administrator. ECF No. 75 at 57-64. “Special masters generally award the reasonable costs of establishing an estate and appointing a representative,” but not costs which are excessive or related to the administration of the estate. Fulling v. Sec’y of Health & Hum. Servs., No. 18-1549V, 2022 WL 3023505, at *3 (Fed. Cl. Spec. Mstr. July 11, 2022); accord. Durand v. Sec’y of Health & Hum. Servs., No. 15-1153V, 2020 WL 639372, at *6- 7 (Fed. Cl. Spec. Mstr. Jan. 16, 2020). These costs were reasonable, and I will award the full amount requested. 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 attorney’s fees and costs. Petitioner is awarded the total amount of $60,195.574 as follows: • A lump sum of 56,649.21, representing reimbursement in the amount of $51,704.60 for attorney’s fees and in the amount of $4,944.61 for attorney’s costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Ronald Craig Homer; and 4 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). 4 • A lump sum of $3,546.36, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner. 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.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 5