VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01383 Package ID: USCOURTS-cofc-1_20-vv-01383 Petitioner: Michelle Tverberg Filed: 2020-10-13 Decided: 2023-10-16 Vaccine: influenza Vaccination date: 2017-10-26 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: AI-assisted case summary: Michelle Tverberg filed a petition alleging she suffered a shoulder injury related to vaccine administration (SIRVA) after her October 26, 2017, influenza vaccination. Initially, the respondent contested entitlement, suggesting other neurological diagnoses might explain her symptoms and that her symptoms were not limited to the affected shoulder. However, after reviewing the medical records and petitioner's expert report, the respondent reversed his position. He conceded that Ms. Tverberg suffered a SIRVA within the meaning of the Vaccine Injury Table, agreeing that her pain and reduced range of motion were limited to the affected shoulder and that no other condition explained her symptoms. The respondent also agreed that all other statutory and jurisdictional requirements were met. The parties subsequently agreed upon a proposed proffer for an award of compensation. Based on the respondent's concession, the Special Master found that Ms. Tverberg is entitled to compensation for a Table Injury of SIRVA. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01383-0 Date issued/filed: 2023-10-16 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 9/19/2023) regarding 45 Ruling on Entitlement. Signed by Special Master Daniel T. Horner. (sh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01383-UNJ Document 52 Filed 10/16/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1383V Filed: September 19, 2023 MICHELLE TVERBERG, Special Master Daniel Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On October 13, 2020, Michelle Tverberg (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. (“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of her October 26, 2017 influenza (“flu”) vaccination. (ECF No. 1.) On April 7, 2022, respondent filed his Rule 4(c) Report. He contended that petitioner had not preponderantly demonstrated a SIRVA because other neurologic diagnoses discussed within the medical records may explain petitioner’s symptoms and, relatedly, her symptoms were not limited to the shoulder in which the vaccine was administered. (ECF No. 28, pp.8-9.) He raised no issue with respect to any prior history of shoulder dysfunction or whether onset of shoulder pain began within 48 hours of vaccination. (See id.) Thereafter, petitioner filed an expert report. (ECF No. 36-1.) Petitioner’s expert opined that petitioner suffered immediate post-injection shoulder pain that constitutes a SIRVA; however, petitioner’s expert posited the neurologic issues 1 Because this document 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 document 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. 1 Case 1:20-vv-01383-UNJ Document 52 Filed 10/16/23 Page 2 of 2 raised by respondent constituted additional, separate neurologic injuries that should also be considered vaccine-caused. (Id. at 15.) Subsequently, on August 21, 2023, respondent filed an Amended Rule 4(c) Report reversing his position with respect to the Table Injury of SIRVA. (ECF No. 42.) In his amended report, respondent did not address petitioner’s expert report but conceded based on his own review of the medical records that petitioner suffered a SIRVA within the meaning of the Vaccine Injury Table, this time indicating in pertinent part that his own medical personnel have concluded that no other condition or abnormality is present that would explain petitioner’s symptoms and that petitioner’s pain and reduced range of motion were limited to her affected shoulder. (Id. at 7 (discussing 42 C.F.R. § 100.3 (a)(XIV)(B) and (c)(10)).) Respondent also agreed that all other statutory and jurisdictional requirements are satisfied. (Id. at 7-8.) Respondent stressed that his concession was limited to petitioner’s SIRVA and its sequela only. (Id. at 8.) On August 23, 2023, I held a status conference with the parties. (See ECF No. 43.) I explained that “given the overall circumstances of the case it would be appropriate for the parties to first explore whether they can reach a meeting of the minds regarding the scope of damages for the conceded SIRVA, which necessarily excludes a neurologic injury, before I determine whether to issue a ruling on entitlement based on the concession.” (Id.) On September 19, 2023, respondent filed a status report indicating that the parties had agreed upon a proposed proffer on award of compensation and requesting that a ruling on entitlement be issued. (ECF No. 44.) In view of Respondent’s position, I find that Petitioner is entitled to compensation for a Table Injury of SIRVA. IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01383-1 Date issued/filed: 2023-10-16 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 9/20/2023) regarding 48 DECISION based on Proffer. Signed by Special Master Daniel T. Horner. (sh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01383-UNJ Document 53 Filed 10/16/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1383V Filed: September 20, 2023 MICHELLE TVERBERG, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On October 13, 2020, Michelle Tverberg (“petitioner”) 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 Shoulder Injury Related to Vaccine Administration (“SIRVA”). (ECF No. 1) On September 19, 2023, a ruling on entitlement was issued, finding petitioner entitled to compensation for SIRVA. (ECF No. 45.) On September 20, 2023, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $120,000.00. (ECF No. 47.) In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $120,000.00, representing compensation for pain and suffering, 1 Because this document 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 document 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. Case 1:20-vv-01383-UNJ Document 53 Filed 10/16/23 Page 2 of 5 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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. 2 Case 1:20-vv-01383-UNJ Document 53 Filed 10/16/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MICHELLE TVERBERG, Petitioner, v. No. 20-1383V (ECF) Special Master Horner SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 13, 2020, Michelle Tverberg (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”), 42 U.S.C. §§ 300aa-1 to -34, alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine that she received on October 26, 2017. ECF No. 1 at 1. On August 21, 2023, respondent filed an Amended Rule 4(c) Report, recommending that this Court enter a ruling finding petitioner entitled to compensation. See ECF No. 42 at 8. On September 19, 2023, Special Master Horner issued a Ruling on Entitlement, finding that petitioner was “entitled to compensation for a Table injury of SIRVA.” ECF No. 45 at 2. I. Items of Compensation a. Pain and Suffering Respondent proffers that petitioner should be awarded $120,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees that this resolves all alleged injuries and damages. Case 1:20-vv-01383-UNJ Document 53 Filed 10/16/23 Page 4 of 5 II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Special Master’s decision and the Court’s judgment award the following:1 a lump sum payment of $120,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Michelle Tverberg: $120,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division 1 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 Case 1:20-vv-01383-UNJ Document 53 Filed 10/16/23 Page 5 of 5 /s/ Joseph Leavitt JOSEPH D. LEAVITT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515 Email: joseph.leavitt@usdoj.gov Dated: September 20, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01383-cl-extra-10733977 Date issued/filed: 2024-10-16 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267387 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1383V Filed: August 30, 2024 MICHELLE TVERBERG, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On October 13, 2020, Michelle Tverberg (“petitioner”) 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 shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine she received on October 26, 2017. (ECF No. 1.) On September 20, 2023, the parties filed a proffer, which I adopted as my decision awarding compensation on the same day. (ECF Nos. 47-48.) On October 23, 2023, petitioner filed a final motion for attorneys’ fees and costs. (ECF No. 54.) (“Fees App.”). Petitioner requests attorneys’ fees in the amount of $68,945.00, and attorneys’ costs in the amount of $8,488.56, for counsel at Green & 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. 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). Schafle, LLC.3 Fees App. at 3. Petitioner also requests attorneys’ fees in the amount $1,860.00 for her prior counsel at SiebenCarey, P.A. Pursuant to General Order No. 9, petitioner indicates that she has not personally incurred any costs in pursuit of this litigation. Id. Thus, the total amount requested is $77,433.56 for her counsel at Green & Schafle, and $1,860.00 for prior counsel at SiebenCarey. Id. On October 31, 2023, respondent filed a response to petitioner’s motion. (ECF No. 55.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys' fees and costs.” Id. at 1. Respondent “defers to the special master regarding whether the statutory requirements for an award of attorney’s fees and costs are met in this case.” Id. at 2. Respondent “respectfully requests that the Court exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner did not file a reply thereafter. This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). 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, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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 894-95. 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. 3 The motion for attorneys’ fees and costs states that the litigation costs were $9,890.96. Fees App. at 3 This appears to be a typographical error. 2 Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (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 claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521. a. Hourly Rates i. Green & Schafle, LLC Petitioner requests the following rates of compensation for her attorneys and paralegals at Green & Schafle, LLC: for 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; for Mr. Adam Green, $425.00 per hour for work performed in 2022 and 2023; for law clerk, Ms. Evan Baker, $175.00 per hour for work in 2021, $185.00 per hour for work performed in 2022, and $195.00 per hour for work performed in 2023; and for the paralegals, $145.00 per hour for work performed from 2019-2022, and $175.00 per hour for work performed in 2023. The hourly rates requested for Mr. Carney, Mr. Green, and paralegals for all time billed in the 2019-2023 period are reasonable and consistent with prior determinations and shall therefore be awarded herein. The hourly rates requested for Ms. Baker, however, require adjustment. Categorized as a law clerk, Ms. Baker was a law student who began working at the firm during the summer of 2021. Fees App. at 9. She has remained at the firm and planned to take the bar exam in July 2023. Id. However, the hourly rates for her 2021, 2022 and 2023 work exceeds the student hourly rate established in other cases, and what she has been previously awarded - $150.00 per hour for 2021, and $165.00 per hour for 2022 and 2023. See, e.g., Bryant v. Sec’y of Health & Human. Servs., No. 21-2241V, 2024 WL 2863522, at *2 (Fed. Cl. Spec. Mstr. May 6, 2024); see also Mason-Chavez v. Sec’y of Health & Human Servs., No. 21-1989V, 2024 WL 920568, at *2 (Fed. Cl. Spec. Mstr. Jan. 30, 2024). Accordingly, I shall instead compensate Ms. Baker's 2021 work at the rate of $150.00 per hour and her 2022 and 2023 work at the rate of $165.00 per hour. This reduces the amount of fees to be awarded by $969.50.4 4 This amount consists of (($175 - $150) x 15.1 hrs.) + (($185 - $165) x 16.4 hrs.) + (($195 - $165) x 8.8 hrs.) = $25 x 15.1 hrs. + $20 x 16.4 hrs. + $30 x 8.8 hrs = $782.00. 3 ii. SiebenCarey, P.A. Petitioner requests the following rates of compensation for her attorney and paralegal at SiebenCarey, P.A.: for Attorney Kate Westad, $350.00 per hour for work performed in 2019 and 2020; and for paralegal Teresa Lyon, $125.00 per hour for work performed in 2019 and 2020. The hourly rates requested for Ms. Westad and Ms. Lyon for all time billed in 2019 and 2020 are reasonable and consistent with prior determinations and shall therefore be awarded herein. b. Hours Expended 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. While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Upon review, the overall number of hours billed appears to be reasonable. I have reviewed the billing entries and find that they adequately describe the work done on the case and the amount of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent identified any as such. Petitioner is therefore awarded final attorneys’ fees of $67,975.50 for counsel at Green & Schafle, LLC, and $1,860.00 for counsel at SiebenCarey, P.A. c. Attorneys’ 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 a total of $8,488.56 in attorneys’ costs comprised of acquiring medical records, the court’s filing fee, and expert services provided by neurologist Joseph S. Jeret, M.D. at $500.00 per hour for 13.5 hours totaling $6,625.00. Fees App. Ex. 2 at 23. These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the billing records and costs in this case and finds that petitioner’s request for fees and costs is reasonable. I find it reasonable to compensate petitioner and her counsel as follows: 1) A lump sum in the amount of $76,464.06, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to 4 petitioner and petitioner’s counsel, David J. Carney and Green & Shafle, LLC. 2) A lump sum in the amount of $1,860.00, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s prior counsel, SiebenCarey, P.A. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court shall enter judgment in accordance herewith.5 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 5