VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01449 Package ID: USCOURTS-cofc-1_20-vv-01449 Petitioner: Jennifer Mire Filed: 2020-10-23 Decided: 2024-02-09 Vaccine: Tdap Vaccination date: 2018-10-24 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 165000 AI-assisted case summary: Jennifer Mire filed a petition for compensation under the National Vaccine Injury Compensation Program alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) caused by a tetanus, diphtheria, and acellular pertussis (Tdap) vaccine administered on October 24, 2018. The petition was filed on October 23, 2020. Respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Petitioner's injury was consistent with a SIRVA as defined by the Vaccine Injury Table and that she met all legal prerequisites for compensation. Based on this concession, a ruling on entitlement was issued on July 31, 2023, finding Petitioner entitled to compensation. Subsequently, on January 3, 2024, Respondent filed a proffer recommending an award of $165,000.00 for pain and suffering, representing all elements of compensation available under the Act. Petitioner agreed with this proffered award. On February 9, 2024, the Chief Special Master issued a decision awarding Jennifer Mire a lump sum payment of $165,000.00. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01449-0 Date issued/filed: 2023-08-31 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/31/2023) regarding 48 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01449-UNJ Document 50 Filed 08/31/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1449V JENNIFER MIRE, Chief Special Master Corcoran Petitioner, Filed: July 31, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 23, 2020, Jennifer Mire 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”) caused by a tetanus, diphtheria, and acellular pertussis vaccine administered on October 24, 2018. Petition at 1. Petitioner further alleges that the vaccine was administered within the United States, that she suffered the effects of her injury for more than six months, and that there has been no compensation in the form of an award for her injury. Petition at 1, 6. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this Ruling 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 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:20-vv-01449-UNJ Document 50 Filed 08/31/23 Page 2 of 2 On July 28, 2023, 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’s injury is consistent with a SIRVA as defined by the Vaccine Injury Table. Id. at 5. Respondent further agrees that Petitioner has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. 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-01449-1 Date issued/filed: 2024-02-09 Pages: 4 Docket text: PUBLIC DECISION (Originally filed: 01/05/2024) regarding 56 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01449-UNJ Document 61 Filed 02/09/24 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1449V JENNIFER MIRE, Chief Special Master Corcoran Petitioner, Filed: January 5, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 23, 2020, Jennifer Mire 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”) following a tetanus, diphtheria, and acellular pertussis vaccine administered on October 24, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 31, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On January 3, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $165,000.00. Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. 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). Case 1:20-vv-01449-UNJ Document 61 Filed 02/09/24 Page 2 of 4 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 $165,000.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to 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), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:20-vv-01449-UNJ Document 61 Filed 02/09/24 Page 3 of 4 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JENNIFER MIRE, Petitioner, No. 20-1449V (ECF) Chief Special Master Corcoran v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 23, 2020, Jennifer Mire (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Table shoulder injury related to vaccine administration (“SIRVA”), as the result of a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine she received on October 24, 2018. Petition, ECF No. 1. On July 28, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury, and, on July 31, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 47, 48. I. Items of Compensation Respondent proffers that petitioner should be awarded $165,000.00 in pain and suffering damages, representing all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. Case 1:20-vv-01449-UNJ Document 61 Filed 02/09/24 Page 4 of 4 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 Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $165,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Jennifer Mire: $165,000.00 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 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division s/Sarah B. Rifkin SARAH B. RIFKIN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-5997 Dated: January 3, 2024 Sarah.Rifkin@usdoj.gov 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 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01449-cl-extra-10736210 Date issued/filed: 2024-02-09 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269620 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1449V JENNIFER MIRE, Chief Special Master Corcoran Petitioner, Filed: January 5, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES 1 On October 23, 2020, Jennifer Mire 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”) following a tetanus, diphtheria, and acellular pertussis vaccine administered on October 24, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 31, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On January 3, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $165,000.00. Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. 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). 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 $165,000.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to 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), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JENNIFER MIRE, Petitioner, No. 20-1449V (ECF) Chief Special Master Corcoran v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 23, 2020, Jennifer Mire (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Table shoulder injury related to vaccine administration (“SIRVA”), as the result of a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine she received on October 24, 2018. Petition, ECF No. 1. On July 28, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury, and, on July 31, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 47, 48. I. Items of Compensation Respondent proffers that petitioner should be awarded $165,000.00 in pain and suffering damages, representing all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. 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 Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $165,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Jennifer Mire: $165,000.00 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 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division s/Sarah B. Rifkin SARAH B. RIFKIN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-5997 Dated: January 3, 2024 Sarah.Rifkin@usdoj.gov 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 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01449-cl-extra-10735368 Date issued/filed: 2024-05-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268778 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1449V JENNIFER MIRE, Chief Special Master Corcoran Petitioner, v. Filed: April 4, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On October 23, 2020, Jennifer Mire 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 alleged that she suffered a shoulder injury related to vaccine administration following a tetanus, diphtheria, and acellular pertussis vaccine administered on October 24, 2018. Petition, ECF No. 1. On January 5, 2024, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 56. 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 inf ormation, 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 f rom 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 ref erences 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 $37,594.50 (representing $36,003.60 in fees plus $1,590.90 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Feb. 6, 2024, ECF No. 60. Furthermore, counsel for Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on Feb. 12, 2024, reporting 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. 62. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reasons listed below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. 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 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 2 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES The hourly rates requested by Attorney Jonathan Svitak, and all other attorney s and paralegals that performed work in this matter, for time billed through the end of 2023 are reasonable and consistent with our prior determinations, and will therefore be adopted herein. But the requested hourly rate of $415 for 2024 work performed by Mr. Svitak requires adjustment. Mr. Svitak was previously awarded a rate of $350 per hour for work performed in 2022, and $380 per hour for work performed in 2023, representing an increase of $30 for each successive year. See Foulker v. Sec'y of Health & Hum. Servs., No. 20-1955, Slip Op, 51 (Fed. Cl. Spec. Mstr. May 31, 2023); Miller v. Sec'y of Health & Hum. Servs., No. 21-0570, Slip Op, 41 (Fed. Cl. Spec. Mstr. Sept. 22, 2023). Accordingly, there is a discrepancy in terms of gradual increase between those rates and what is requested for subsequent years (which if permitted would be a larger increase of $35). In the Vaccine Program, an attorney’s previously established rate is considered when determining and approving subsequent hourly rates. Relying on the rate of increase used in 2023, ($30 for each successive year) would result in a rate of $410 per hour for 2024. Thus, in order to maintain a fair consistency, while also permitting a rate increase, I shall award Mr. Svitak the lesser rate of $410 per hour, for work performed in 2024. Application of this rate results in a reduction in the amount of fees to be awarded herein of $25.50. 3 ATTORNEY COSTS Petitioner requests $1,590.90 in costs. This amount is comprised of obtaining medical records, shipping costs, and the Court’s filing fee. Petitioner has provided supporting documentation for all claimed costs. ECF No. 60-4. Respondent offered no specific objection to the rates or amounts sought. 3 This amount is calculated as: ($415 - $410 = $5 x 5.10 hrs.) = $25.50 3 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. I award a total of $37,569.00 (representing $35,978.10 in fees plus $1,590.90 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Shannon Law Group, P.C. 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. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 4