VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01514 Package ID: USCOURTS-cofc-1_20-vv-01514 Petitioner: Kimberly Starnes Filed: 2020-11-02 Decided: 2023-11-21 Vaccine: influenza Vaccination date: 2019-11-06 Condition: right shoulder injury related to vaccine administration (SIRVA), resulting in bursitis and adhesive capsulitis in her right shoulder Outcome: compensated Award amount USD: 80032 AI-assisted case summary: Kimberly Starnes, an adult, received an influenza vaccine on November 6, 2019. Within 48 hours, she developed a right shoulder injury related to vaccine administration (SIRVA), diagnosed as bursitis and adhesive capsulitis. She alleged that her injuries persisted for more than six months. The respondent conceded entitlement to compensation, agreeing that Ms. Starnes had no prior shoulder issues, her pain occurred shortly after vaccination, was limited to the injection site, and no other condition explained her symptoms. The case proceeded to a damages determination. After a hearing, the court awarded Ms. Starnes $80,032.06, comprising $78,000.00 for pain and suffering and $2,032.06 for past unreimbursed expenses. The court noted that while her pain was severe at times and lasted for 34 months with treatment gaps, it ultimately decreased to a moderate level, and her prognosis was good, distinguishing her case from those with more severe or permanent injuries. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01514-0 Date issued/filed: 2022-04-11 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 03/11/2022) regarding 26 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01514-UNJ Document 28 Filed 04/11/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1514V UNPUBLISHED KIMBERLY STARNES, Chief Special Master Corcoran Petitioner, Filed: March 11, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 2, 2020, Kimberly Starnes 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 right shoulder injury related to vaccine administration (“SIRVA”) resulting in bursitis and adhesive capsulitis in her right shoulder, as a result of an influenza vaccine received on November 6, 2019. Petition at ¶¶ 2, 10. Petitioner further alleges that the vaccine was administered in the United States, her injuries have persisted for more than six months, and neither Petitioner nor any other party has ever filed any action or received compensation in the form of an award for her vaccine-related injury. Petition at ¶¶ 2, 12, 13, 15; Ex. 1 at 3. The case was assigned to the Special Processing Unit of the Office of Special Masters. 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01514-UNJ Document 28 Filed 04/11/22 Page 2 of 2 On March 11, 2022, 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 agrees that “petitioner had no pre-vaccination history of pain, inflammation, or dysfunction of her right shoulder; pain occurred within 48 hours after receipt of an intramuscular vaccination; pain and reduced range of motion were limited to the shoulder in which the vaccine was administered; and, no other condition or abnormality, such as brachial neuritis, has been identified to explain petitioner’s shoulder pain.” Id. at 6. Respondent further agrees that “based on the medical records outlined [in the Rule 4(c) Report], petitioner suffered the residual effects of her condition for more than six months. Therefore, based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the 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-01514-1 Date issued/filed: 2023-11-21 Pages: 9 Docket text: PUBLIC DECISION (Originally filed: 10/13/2023) regarding 45 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 1 of 9 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1514V KIMBERLY STARNES, Chief Special Master Corcoran Petitioner, Filed: October 13, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. L. Cooper Harrell, Turning Point Litigation, Greensboro, NC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On November 2, 2020, Kimberly Starnes filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”), alleging that she suffered a right shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, after receiving an influenza (“flu”) vaccine on November 6, 2019. Petition, ECF No. 1. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). For the reasons described below, and after holding a brief hearing, I award damages in the amount of $80,032.06, representing $78,000.00 in actual pain and suffering, plus $2,032.06 in past unreimbursed expenses. 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 (2012). Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 2 of 9 I. Relevant Procedural History While this case was awaiting medical review, Petitioner submitted a settlement demand to Respondent on June 2, 2021. ECF No. 16. Nearly one year later, on March 11, 2022, Respondent filed his Rule 4(c) Report conceding that Petitioner was entitled to compensation for her SIRVA. ECF No. 25. The same day, I issued a Ruling on Entitlement and ordered the parties to engage in damages discussions. ECF Nos. 26-27. But the parties were unable to resolve their disagreement, and they proceeded to filing briefs on damages. Petitioner filed a Memorandum in support of her request for damages on January 20, 2023. ECF No. 40. On March 6, 2023, Respondent filed his brief. ECF No. 41. In late August 2023, I proposed this case for an expedited hearing on October 6, 2023, at which time I would decide the disputed issue of damages based on all evidence filed to date and any oral argument from counsel. ECF No. 43. The parties agreed, and the “Motions Day” hearing took place as scheduled. ECF No. 44; Minute Entry dated Oct. 10, 2023.3 During the hearing, I made an oral damages determination. This Decision memorializes those findings and determinations. II. Legal 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). Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment award such expenses which (i) resulted from the vaccine-related injury for which 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, 3 As of the date of this Decision, the transcript of the October 6, 2023 Motions Day hearing has not been filed, but my oral ruling is incorporated by reference herein. 2 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 3 of 9 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 (quoting McAllister v. Sec’y of Health & 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 my predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated 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, as Respondent argues, 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 Graves 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 590. Instead, Graves assessed pain and suffering 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 595. 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. Although Graves is not controlling of the outcome in this case, it provides reasoned guidance in calculating pain and suffering awards. 4 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, including the majority of SIRVA claims, 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. 3 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 4 of 9 III. Prior SIRVA Compensation Within SPU5 A. Data Regarding Compensation in SPU SIRVA Cases SIRVA cases have an extensive history of informal resolution within the SPU. As of July 1, 2023, 3,304 SPU SIRVA cases have resolved since the inception of SPU on July 1, 2014. Compensation was awarded in 3,211 of these cases, with the remaining 93 cases dismissed. 1,834 of the compensated SPU SIRVA cases were the result of a reasoned ruling that petitioner was entitled to compensation (as opposed to a settlement or concession).6 In only 173 of these cases, however, was the amount of damages also determined by a special master in a reasoned decision.7 As I have previously stated, the written decisions setting forth such determinations, prepared by neutral judicial officers (the special masters themselves), provide the most reliable precedent setting forth what similarly-situated claimants should also receive.8 The data for all groups described above reflect the expected differences in outcome, summarized as follows: 5 All figures included in this decision are derived from a review of the decisions awarding compensation within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited are approximate. 6 The remaining 1,377 compensated SIRVA cases were resolved via stipulated agreement of the parties without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements, and thus represent a reduced percentage of the compensation which otherwise would be awarded. Because multiple competing factors may cause the parties to settle a case (with some having little to do with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge of the appropriate amount of compensation to be awarded in other SPU SIRVA cases. 7 The rest of these cases resulting in damages after concession were either reflective of a proffer by Respondent (1,632 cases) or stipulation (29 cases). Although all proposed amounts denote some form of agreement reached by the parties, those presented by stipulation derive more from compromise than instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of damages. 8 Of course, even though any such informally-resolved case must still be approved by a special master, these determinations do not provide the same judicial guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases, these determinations nevertheless “provide some evidence of the kinds of awards received overall in comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by the parties and cases in which damages are determined by a special master). 4 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 5 of 9 Damages Proffered Stipulated Stipulated9 Decisions by Damages Damages Agreement Special Master Total Cases 173 1,632 29 1,377 Lowest $40,757.91 $22,500.00 $45,000.00 $5,000.00 1st Quartile $70,203.12 $62,825.18 $90,000.00 $38,134.81 Median $92,299.83 $83,039.25 $130,000.00 $55,000.00 3rd Quartile $125,000.00 $111,475.61 $162,500.00 $80,803.17 Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00 B. Pain and Suffering Awards in Reasoned Decisions In the 173 SPU SIRVA cases in which damages were the result of a reasoned decision, compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00 to $215,000.00, with $90,000.00 as the median amount. Only seven of these cases involved an award for future pain and suffering, with yearly awards ranging from $250.00 to $1,500.00.10 In cases with lower awards for past pain and suffering, many petitioners commonly demonstrated only mild to moderate levels of pain throughout their injury course. This lack of significant pain is often evidenced by a delay in seeking treatment – over six months in one case. In cases with more significant initial pain, petitioners usually experienced this greater pain for three months or less. Most petitioners displayed only mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered from unrelated conditions to which a portion of their pain and suffering could be attributed. These SIRVAs usually resolved after one to two cortisone injections and two months or less of physical therapy (“PT”). None required surgery. Except in one case involving very mild pain levels, the duration of the SIRVA injury ranged from six to 30 months, with most petitioners averaging approximately nine months of pain. Although some petitioners asserted residual pain, the prognosis in these cases was positive. Cases with higher awards for past pain and suffering involved petitioners who suffered more significant levels of pain and SIRVAs of longer duration. Most of these petitioners subjectively rated their pain within the upper half of a ten-point pain scale and sought treatment of their SIRVAs more immediately, often within 30 days of vaccination. 9 Two awards were for an annuity only, the exact amounts which were not determined at the time of judgment. 10 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018). 5 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 6 of 9 All experienced moderate to severe limitations in range of motion. MRI imaging showed more significant findings, with the majority showing evidence of partial tearing. Surgery or significant conservative treatment, up to 133 PT sessions - occasionally spanning several years, and multiple cortisone injections, were required in these cases. In six cases, petitioners provided sufficient evidence of permanent injuries to warrant yearly compensation for future or projected pain and suffering. IV. The Parties’ Arguments The only disputed issue of damages is pain and suffering.11 Maintaining that she continued to suffer shoulder pain for nearly three years (34 months) post vaccination and describing her pain as severe enough to warrant the suggestion of surgery as a last treatment resort, Petitioner seeks $120,000.00. Mem. at 12. She favorably compares the facts and circumstances of her case to those experienced by the petitioners in Danielson, Leslie, and Dawson-Savard, who received $110,000.00, $125,000.00, and $130,000.00, respectively for their past pain and suffering.12 Id. at 12-15. In contrast, Respondent asserts that Petitioner should receive the lesser amount of $72,500.00. Response at 2. Emphasizing Petitioner’s combined sixteen-month gap in treatment and rapid decline of pain to a moderate level within approximately one month of vaccination with only conservative treatment, Respondent argues that the facts and circumstances more closely resemble the circumstances of the petitioners in George, Miller, and Edens, who received $67,000.00, $75,000.00, and $60,000.00, respectively in past pain and suffering.13 Id. at 14-15. He also maintains that this case is distinguishable from the cases cited by Petitioner, because of the injury’s more mild nature and lack of unique characteristics warranting a higher award. Id. at 11-13. V. Appropriate Compensation to be Awarded Here, awareness of the injury is not disputed. The record reflects that at all times Petitioner was a competent adult with no impairments that would impact her awareness of her injury. Therefore, I analyze principally the severity and duration of Petitioner’s 11 The parties have agreed on an amount for past unreimbursed expenses in this matter ($2,032.06). 12 Danielson v. Sec’y of Health & Hum. Servs., No. 18-1878V, 2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020); Leslie v. Sec’y of Health & Hum. Servs., No. 18-39V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 8, 2021); Dawson-Savard v. Sec’y of Health & Hum. Servs., No. 17-1238V, 2020 WL 4719291 (Fed. Cl. Spec. Mstr. July 14, 2020). 13 George v. Sec’y of Health & Hum. Servs., No. 18-426V, 2020 WL 4692451, at *2-3 (Fed. Cl. Spec. Mstr. July 10, 2020); Miller v. Sec’y of Health & Hum. Servs., No. 20-604V, 2022 WL 3641716, at *5-6 (Fed. Cl. Spec. Mstr. July 22, 2022); Edens v. Sec’y of Health & Hum. Servs., No. 19-1110V, 2020 WL 8457671, at *5-7 (Fed. Cl. Spec. Mstr. Apr. 26, 2021). 6 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 7 of 9 injury. In determining appropriate compensation for pain and suffering, I have carefully reviewed and taken into account the complete record in this case, including, but not limited to: Petitioner’s medical records, affidavit, filings, and all assertions made by the parties in written documents and at the expedited hearing held on October 6, 2023. I have also considered prior awards for pain and suffering in both SPU and non-SPU SIRVA cases, and relied upon my experience adjudicating these cases. However, my determination is ultimately based upon the specific circumstances of this case. Pursuant to my oral ruling on October 6, 2023 (which is fully adopted herein), I find that $78,000.00 represents a fair and appropriate amount of compensation for Petitioner’s pain and suffering. With respect to severity and duration of the injury, Petitioner’s medical records reveal a moderate, non-surgical SIRVA. While I credit Petitioner’s arguments regarding the potential need for surgical intervention in the future, I cannot compare the facts of this case to other surgical SIRVA cases in awarding damages – where surgery had occurred. Particularly significant to my decision includes the evidence demonstrating Petitioner’s treatment with her PCP within six days of her vaccination, subsequent treatment with an orthopedic surgeon, prescription for steroid medication, one cortisone injection, MRI – revealing “thinning, fraying, and shallow partial tearing14 along the bursal surface of the supraspinatus tendon diffusely, subacromial/subdeltoid bursitis, and rotator cuff tendinosis,” and participation in 16 PT sessions (including dry needling sessions). Additionally, she described severe pain at the beginning of her injury, which lasted for less than one month, and then significantly decreased to a moderate level for the duration of her lengthy treatment course (34 months with two gaps in treatment totaling 16 total months). Petitioner had a reported pain level of a 9/10 on December 2, 2019. Ex. 3 at 12. Her pain seemed to peak at this point and then rapidly decreased to a 5/10 later that month, by December 20, 2019, with conservative treatment (oral steroids), only. Id. at 7. Petitioner’s pain had “partially improved” (4/10) by the end of her first course of PT in May 2020. Id. at 4. Following an eight and a half month gap in treatment, on February 10, 2021, Petitioner returned for a “second opinion” after her pain had not subsided, although it had not worsened but remained fairly moderate and consistent with her pre-gap rating at a 6/10. Ex. 6 at 7. Thus, more aggressive treatment (injection or surgery) was recommended, but Petitioner declined (due, in part, to a purported fear of needles – E.g., Ex. 3 at 12) and subsequently decided to forgo treatment for another seven months following this recommendation. Id. at 8. Indeed, Petitioner’s pain seemed to stay somewhat consistently moderate during this second gap in treatment, because when she 14 There is no evidence for or against whether this tear was believed by Petitioner’s treaters to be vaccine- caused or a result of another factor. 7 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 8 of 9 returned for further treatment on September 20, 2021, her pain level was again rated at a moderate level of 5/10. Ex. 7 at 8. Petitioner ultimately received a cortisone injection and additional sporadic rounds of PT, with a final result of normal mobility except for limitations/tightness with reaching behind her head and back. Ex. 7 at 9; Ex. 8 at 10-18; Ex. 9 at 5. Her prognosis is generally “good.” Ex. 10 at 5. The severity and duration of Petitioner’s pain, although significant (at times) and lengthy, is offset by the long temporal gaps in her treatment. As I noted during the expedited hearing, when petitioners in the Program have gaps in treatment, I weigh the reason for the gaps against evidence of a petitioner’s purported pain. When a petitioner’s history reveals several gaps, as here, I typically deem the decision to forego treatment as evidence that heavily underscores the mildness of the injury, since it could be endured without medical assistance for periods of time. In making her request for pain and suffering, Petitioner relied on other non-surgical SIRVA cases wherein an award above $100,000.00 was appropriate. Petitioner’s cited cases are outliers, however, and therefore not entirely persuasive. The petitioners in such cases established specific and unique factors to warrant such high awards not present under these circumstances. For example, the Leslie petitioner’s injury required a bone marrow aspiration, a bone scan, and treatment with a specialist at the Mayo Clinic, outside of the petitioner’s state. No. 18-39V, 2021 WL 837139, at*2-5, *9-11 (Fed. Cl. Spec. Mstr. Jan. 8, 2021). In that case, I determined that the uncertainty and stress of testing related to Leslie’s bone erosion and possible ongoing infection supported a larger pain and suffering award. Leslie was able to show his SIRVA was unlike others in the Program. In both Danielson and Dawson-Savard, the petitioners treated for severe pain for a longer period of time (9+ months and 24+ months, respectively – compared to Petitioner’s less than 1 month), neither had gaps in treatment, and had “poor” and permanent prognoses, respectively. No. 18-1878V, 2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020); No. 17-1238V, 2020 WL 4719291 (Fed. Cl. Spec. Mstr. July 14, 2020). Petitioner here does not have comparable unique characteristics to support her requested award in excess of $100,000.00. At the same time, Respondent’s cited cases (two below his proffered amount and one above) are also somewhat unsuited – but albeit more factually analogous to Petitioner’s case. The petitioner in George, for example, reported pain at a 4/10 level at most, and had a shorter overall injury course than Petitioner (including a significant gap in treatment), culminating in full ROM and 0-1/10 pain, compared to Petitioner’s ongoing ROM limitations/tightness. No. 18-426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr. July 10, 2020). Similarly, Edens reported pain at a 5/10 (at most), had 4 cortisone injections (with relief), and did not require any treatment with formal PT. No. 19-1110V, 2020 WL 8457671, at *5-7 (Fed. Cl. Spec. Mstr. Apr. 26, 2021). Petitioner here underwent 16 8 Case 1:20-vv-01514-UNJ Document 49 Filed 11/21/23 Page 9 of 9 (sporadic) PT sessions where dry needling was included. As I stated during the expedited damages hearing, I accept Petitioner’s contention that dry needling is a form of serious treatment, more intrusive than conservative approaches like icing or ibuprofen. And although Miller underwent objectively more treatment than Petitioner, but over a shorter period of time, Miller delayed seeking treatment for two months – a fact which supports the proposition that Miller’s initial SIRVA was less painful than Petitioner’s. No. 20-604V, 2022 WL 3641716, at *5-6 (Fed. Cl. Spec. Mstr. July 22, 2022). Thus, Petitioner’s actual pain and suffering award should be higher than the awards in those cases - $78,000.00.15 VI. Conclusion Based on the record as a whole and arguments of the parties, I award Petitioner a lump sum payment of $80,032.06, representing compensation for her actual pain and suffering and past unreimbursed expenses, in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a) of the Vaccine Act. The Clerk of the Court is directed to enter judgment in accordance with this Decision.16 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 15 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)). 16 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. 9 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01514-cl-extra-10734982 Date issued/filed: 2024-06-17 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268392 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1514V KIMBERLY STARNES, Chief Special Master Corcoran Petitioner, v. Filed: May 13, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On November 2, 2020, Kimberly Starnes 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 alleging that she suffered a right shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, after receiving an influenza vaccine on November 6, 2019. Petition, ECF No. 1. On October 13, 2023, I issued a decision awarding compensation to Petitioner, following briefing and expedited Motions Day argument by the parties. ECF No. 45. 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $45,422.32 as follows: 1. $44,894.32 (representing $43,815.00 for fees and $1,079.32 for costs) for Petitioner’s counsel’s current law firm, Turning Point Litigation; and 2. $528.00 (representing $528.00 for fees) for Petitioner’s counsel’s prior law firm, Black Ward Law. Petitioner’s Motion for Fees and Costs filed Apr. 3, 2024, ECF No. 52; ECF 52-1 at 14- 15. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he incurred no out-of-pocket expenses. ECF No. 52-3. Respondent reacted to the motion on April 17, 2024, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 53. The same day, Petitioner filed a reply stating that Petitioner “concurs with Respondent’s recommendation.” ECF No. 54. Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees to be awarded appropriate, for the reasons 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). 2 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 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES A. Hourly Rates Petitioner requests hourly rates for attorneys and paralegals at Turning Point Litigation performing work in this matter as follows: 2020 2021 2022 2023 2024 Nancy Meyers, Esq. $400 $430 $460 $490 $530 L. Cooper Harrell, Esq. X X $430 $470 Paralegals $150 $155 $160 $165 $180 ECF No. 52-1 at 1-14. The hourly rates requested for all work performed at Ward Black Law and work performed at Turning Point Litigation by Ms. Meyers and paralegals through 2023, and for Mr. Harrell through 2022 are reasonable and consistent with prior determinations. Additionally, Petitioner has also requested a 2024 attorney hourly rate of $530 for work performed by Nancy Meyers - representing a rate increase of $40,3 and a 2024 paralegal hourly rate of $180 - representing a rate increase of $15. Id. at 1, 14. I find these 2024 hourly rates to be reasonable, and will therefore be adopted. However, the 2023 attorney hourly rate requested for L. Cooper Harrell requires adjustment. For his 2023 work, Mr. Harrell had 21 years of overall experience, but less than one year of experience in the Vaccine Program.4 Thus, his 2023 hourly rate should fall 3 Although this yearly increase is greater than I normally would allow, it is due to the arguably lower hourly rate assigned to Ms. Meyers 2023 work, not because her requested 2024 rate is too high. 4 An attorney’s level of experience is calculated at the beginning of each year and is generally based upon the attorney’s bar date. See McCulluch v. Sec’y of Health & Hum. Servs., No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (providing the framework for determining the appropriate compensation for attorneys' fees based upon the attorneys' experience). No adjustment is made for the 3 within the range allowed for attorneys with 20 to 30 years of overall experience ($450 - $534), albeit on the lower end of this range.5 Properly reflecting these levels of experience, Mr. Harrell’s 2022 hourly rate ($430) is close to the minimal for the 2022 range ($427 - $507).6 After obtaining only one more year of experience within this ten year range, Mr. Harrell has requested a 2023 hourly rate of $470 - representing a $40 increase and placing him almost one-fourth of the distance above the 2023 minimal amount ($450). Although the quality of Mr. Harrell’s work is good, his lower overall and vaccine-related experience dictates the application of a slightly lower hourly rate. Thus, I will award attorney’s fees for the 2023 work performed by Mr. Harrell using a rate of $460 per hour. This results in a reduction of $589.00 from the attorney’s fees paid to Turning Point Litigation.7 B. Hours Billed Regarding the number of hours billed, I deem the total amount of time devoted to briefing damages to be excessive. See Status Report, filed Dec. 8, 2022, ECF No. 39; Petitioner’s Damages Brief, filed Jan. 20, 2023, ECF No. 40; Hearing Minute Entry dated September 27, 2023 (regarding proceedings on Sept. 27, 2023). Petitioner’s counsel expended approximately 37.78 hours drafting the damages brief.9 ECF No. 52-1 at 11. My above calculation does not include time spent preparing the initial demand which would have informed this later work, and I am therefore awarding fees associated with that task in full. See, e.g., 52-1 at 5 (partial time in entries dated 4/14/21, 4/15/21, exact month when the attorney passed the bar. Because he was first barred in 2001, Mr. Harrell had 21 years of experience at the beginning of 2023. Petitioner appears to be using an incorrect method when calculating levels of experience as she lists Mr. Harrell’s overall experience for 2024, as 23 years. ECF No. 52-1 at 1. Likewise, she has listed a level of experience one year greater than is accurate for all attorneys. Id. Petitioner’s counsel should note this error and make the necessary correction in future motions. 5 See OSM Attorneys’ Forum Hourly Rate Fee Schedule: 2022 which can be found on the Court’s website at www.uscfc.uscourts.gov (last visited May 6, 2024). 6 See OSM Attorneys’ Forum Hourly Rate Fee Schedule: 2023 which can be found on the Court’s website at www.uscfc.uscourts.gov (last visited May 6, 2024). 7 This amount is calculated as follows: ($470 - $460) x 58.9 hrs. = $589.00. 8 This total is calculated as follows: 0.6 hours billed on 1/20/23 (partial time), billed by Nancy Meyers at a rate of $490 per hour; and 37.1 hours billed on 1/9/23, 1/10/23, 1/11/23, 1/12/23, 1/17/23, 1/18/23, and 1/19/23, billed by L. Cooper Harrell at a rate of $460 per hour, after the rate decrease detailed in this Fee Decision. See supra Attorney Fees, Section A. 9 Petitioner’s counsel billed only 0.2 hours reviewing Respondent’s brief which I find reasonable. ECF No. 52-1 at 12. 4 and 4/20/21 regarding 4.7 hours of work). Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., ECF No. 52-1 at 11 (partial time in entry dated 1/20/23). It is unreasonable for counsel to spend so much time briefing the issue of damages in this case, once the sum in question is calculated, and where the issues presented are not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter),10 in which attorneys have accomplished this task in about half the time.11 See, e.g., Axelrod v. Sec’y of Health & Hum. Servs., No. 21-0980V (Mar. 29, 2024) (11.9 and 12.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Benz v. Sec’y of Health & Hum. Servs., No. 21-1197V (Mar. 26, 2024) (19.5 and 6.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Hansler-Point v. Sec’y of Health & Hum. Servs., No. 21-0045V (Mar. 26, 2024) (9.6 and 4.9 hours billed for drafting a damages brief and responsive damages brief, respectively); Dulaney v. Sec’y of Health & Hum. Servs., No. 20-1488V (Mar. 26, 2024) (6.6 and 0.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Glanville v. Sec’y of Health & Hum. Servs., No. 19-1973V (Mar. 26, 2024) (8.7 hours billed for drafting a damages brief); Stokes v. Sec’y of Health & Hum. Servs., No. 19-0752V (Feb. 29, 2024) (15.3 and 8.1 hours billed for drafting a damages brief and responsive damages brief, respectively); Richardson v. Sec’y of Health & Hum. Servs., No. 20-0674V (Feb. 9, 2024) (9.2 and 6.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Edwards v. Sec’y of Health & Hum. Servs., No. 21-0056V (Feb. 5, 2024) (11.3 and 7.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Villa v. Sec’y of Health & Hum. Servs., No. 20- 0569V (Feb. 5, 2024) (6.0 and 5.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Jackson v. Sec’y of Health & Hum. Servs., No. 20-0051V (Feb. 5, 2024) (15.4 and 7.7 hours billed for drafting a damages brief and responsive damages brief, respectively); Mulloy v. Sec’y of Health & Hum. Servs., No. 19-1396V (Nov. 6, 2023) (19.7 and 9.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Gao v. Sec’y of Health & Hum. Servs., No. 21-1884V (Oct. 25, 2023) (16.5 and 9.4 hours billed for drafting a damages brief and responsive damages brief, respectively); Knasel v. Sec’y of Health & Hum. Servs., No. 20-1366V (Oct. 25, 2023) (11.5 and 13.6 hours billed for drafting a damages brief and responsive damages 10 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 11 These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Feb. 7, 2024). 5 brief, respectively); Langdon v. Sec’y of Health & Hum. Servs., No. 20-1311V (Oct. 25, 2023) (12.5 and 12.8 hours billed for drafting a damages brief and responsive damages brief, respectively); Mantagas v. Sec’y of Health & Hum. Servs., No. 20-1720V (Oct. 17, 2023) (6.7 and 4.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Majerus v. Sec’y of Health & Hum. Servs., No. 20-1346V (Oct. 17, 2023) (11.0 and 4.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Cosden v. Sec’y of Health & Hum. Servs., No. 20-1783 (Aug. 8, 2023) (6.3 hours billed for drafting a damages brief); Balch v. Sec’y of Health & Hum. Servs., No. 20-0872V (June 30, 2023) (18.7 hours billed for drafting a damages brief); Kestner v. Sec’y of Health & Hum. Servs., No. 20-0025V (June 22, 2023) (6.00 and 4.10 hours billed for drafting a damages brief and responsive damages brief, respectively); Juno v. Sec’y of Health & Hum. Servs., No. 18-0643V (June 14, 2023) (5.8 hours billed for drafting a damages brief); Deutsch v. Sec’y of Health & Hum. Servs., No. 18-0527V (June 12, 2023) (7.4 and 4.4 hours billed for drafting a damages brief and responsive damages brief, respectively); Edminister v. Sec’y of Health & Hum. Servs., No. 19-0184V (May 30, 2023) (15.3 and 3.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Aponte v. Sec’y of Health & Hum. Servs., No. 20-1031V (May 18, 2023) (6.9 hours billed for drafting a damages brief); Gray v. Sec’y of Health & Hum. Servs., No. 20-1708V (May 18, 2023) (5 hours billed for drafting a damages brief); Horky v. Sec’y of Health & Hum. Servs., No. 20-0239V (May 18, 2023) (5.8 hours billed for drafting a damages brief); Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V (May 18, 2023) (9.5 and 2.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Rice-Hansen v. Sec’y of Health & Hum. Servs., No. 20-1338V (May 17, 2023) (12.9 and 6.1 hours billed for drafting a damages brief and responsive damages brief, respectively). The circumstances of this case did not warrant devoting so much time to damages briefing. The parties agreed upon the amount of past expenses, and the only area of dispute was the appropriate amount of compensation for Petitioner’s past pain and suffering. See Starnes v. Sec’y of Health & Hum. Servs., No. 20-1514V, 2023 WL 8110730 (Fed. Cl. Spec. Mstr. Oct. 13, 2023). Furthermore, the parties’ views differed by $47,500.00 - Petitioner sought $120,000.00, and Respondent countered with $72,500.00, an. Id. at *4. I ultimately awarded an amount for pain and suffering closer to that proposed by Respondent, $78,000.00 – further underscoring the extent to which Petitioner’s efforts in this behalf had a futile quality (since I ultimately found the higher figure was not adequately defended). Id. at *6. Of course, having prevailed in this case, a fees award is generally appropriate. 6 See Starnes, 2023 WL 8110730, at *6. But the Act permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be awarded for damages briefing (a total of 37.7 hours, or $17,360.00) by thirty percent. Such an across-the- board reduction (which I am empowered to adopt)12 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a further reduction of $5,208.00 from the attorney’s fees paid to Turning Point Litigation.13 ATTORNEY COSTS Petitioner requests $1,079.32 in overall costs and has provided receipts for all but $0.15 in copying and $1.40 in postage, which I will nevertheless allow. ECF No. 52-1 at 14-49. And Respondent offered no specific objection to the rates or amounts sought. 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 $39,625.32 (representing $38,546.00 for fees and $1,079.32 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel’s current law firm, Turning Point Litigation.14 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.15 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 12 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 13 This amount is calculated as follows: (0.6 hrs. x $490 x .30) + (37.1 hrs. x $460 x .30) = $5,208.00. 14 Petitioner’s counsel represents that she will ensure the proper funds are paid to Ward Black Law. ECF No. 52 at 2. 15 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 7