VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01517 Package ID: USCOURTS-cofc-1_20-vv-01517 Petitioner: Gloria Supernaw Filed: 2020-11-03 Decided: 2024-10-10 Vaccine: influenza Vaccination date: 2019-09-28 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 98336 AI-assisted case summary: Gloria Supernaw, an adult, filed a petition for compensation under the National Vaccine Injury Compensation Program alleging she suffered a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccine administered on September 28, 2019. The initial ruling on entitlement focused on the disputed site of vaccine administration, with the court ultimately finding that the flu vaccine was more likely than not administered in her right arm, establishing entitlement to compensation for a Table SIRVA claim. The respondent initially opposed compensation, arguing the vaccine was not given in the injured arm, but later conceded entitlement after the court's ruling. The case then proceeded to the damages phase. The parties stipulated to an award of $98,336.35, which included $95,000.00 for pain and suffering and $3,336.35 for past unreimbursable expenses. The court issued a decision on damages on October 10, 2024, awarding the stipulated amount. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01517-0 Date issued/filed: 2024-08-09 Pages: 9 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/10/2024) regarding 41 Ruling on Entitlement, Scheduling Order. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 1 of 9 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1517V GLORIA SUPERNAW, Chief Special Master Corcoran Petitioner, v. Filed: July 10, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew D. Downing, Downing, Allison & Jorgenson, Phoenix, AZ , for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 3, 2020, Gloria Supernaw 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 shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on September 28, 2019. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). As set forth in more detail below, I find that Petitioner more likely than not received the flu vaccine in her injured right arm. And based on the lack of any other objections from Respondent, along with an 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 (2012). Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 2 of 9 independent review of the record, I find that Petitioner has preponderantly established all other requirements for a Table SIRVA claim – making her entitled to compensation. I. Procedural History The November 2020 Petition was accompanied by Exhibits (“Exs.”) 1 – 16 (ECF Nos. 1, 6 – 7, 20, 23). Respondent opposed compensation of the claim, on the grounds that Petitioner had not received a covered vaccine in her injured right arm. Rule 4(c) Report filed Aug. 17, 2022 (ECF No. 30). Both parties were afforded a final opportunity to file briefs and any additional evidence they wished to have considered in my adjudication of the disputed site issue. Scheduling Order filed Nov. 7, 2022 (ECF No. 31); see also Ex. 17 (ECF No. 32); Petitioner’s Brief Regarding Site of Vaccine Administration filed Feb. 9, 2023 (ECF No. 34) (hereinafter “Brief”); Respondent’s Response filed May 25, 2023 (ECF No. 36) (“Response”); Petitioner’s Reply filed June 28, 2023 (ECF No. 37) (“Reply”). The matter is now ripe for adjudication. II. Authority Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). Contemporaneous medical records are presumed to be accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90– 2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). 2 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 3 of 9 In addition to requirements concerning the vaccination received, the duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must establish that she suffered an injury meeting the Table criteria, in which case causation is presumed, or an injury shown to be caused-in-fact by the vaccination she received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the accompanying QAI are as follows: Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g., tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological abnormality is not known). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time frame; 3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of his injury for more than six months, died from his injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E). 3 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 4 of 9 (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g., NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). 42 C.F.R. § 100.3(c)(10) (2017). III. Finding of Fact and Conclusions of Law – Flu Vaccine Administration Site I have reviewed all of the filings submitted by both parties to date, but focus the below summary on evidence most relevant to the disputed issue of the flu vaccine’s administration site. • On September 28, 2019, at a local Walgreens pharmacy, Petitioner4 received Fluzone (flu) and Pneumovax 23 vaccines.5 Ex. 10 at 2. o The Walgreens “Vaccine Administration Record (VAR) – Informed Consent for Vaccination” form for the flu vaccine contains a handwritten circle around the letter “L”, indicating a left deltoid site of administration, followed by the immunizer’s signature. Ex. 10 at 10 at 5 – 6. o Walgreens’ VAR pertaining to the Pneumovax vaccine does not document a site of administration. Ex. 10 at 3 – 4, see also id. at 9 – 10. 4 Prior to September 28, 2019, Petitioner “had no history of shoulder pain, inflammation, or dysfunction.” Rule 4(c) Report at 2. 5 To receive compensation under the Vaccine Act, a petitioner must show that he or she received a vaccine set forth in the Vaccine Injury Table (the “Table”). See § 11(c)(1)(A); 42 C.F.R. § 100.3. “There are two types of pneumococcal vaccines ... pneumococcal conjugate and polysaccharide vaccine[s]. The polysaccharide vaccine is distributed under the brand name Pneumovax.” Bundy v. Sec’y of Health & Hum. Servs., No. 12-0769V, 2014 WL 348852, at *1 (Fed. Cl. Spec. Mstr. Jan. 8, 2014). Only pneumococcal conjugate vaccines, routinely administered to children, are covered by the Vaccine Program. Id.; see also Morrison v. Sec’y of Health & Hum. Servs., No. 04-1683V, 2005 WL 2008245, at *1 (Fed. Cl. Spec. MStr. July 26, 2005) (describing how and when pneumococcal conjugate vaccines were added to the Vaccine Table). Thus, Pneumovax (pneumococcal polysaccharide) vaccines are not included on the Table, and cannot be the basis for a Program claim. 4 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 5 of 9 • Also on September 28, 2019, via text message,6 Petitioner stated that after receiving her flu and Pneumovax vaccines that afternoon, she had developed severe soreness in both arms. Ex. 14 at 1. Petitioner stated that the vaccines were given very high and bilaterally. Id. at 1, 3. On September 29, 2019, Petitioner stated: “my pneumonia arm is still sore but not the flu one.” Id. at 4. • Thirty-seven (37) days post-vaccination, on November 4, 2019, at Sierra Pacific Orthopedics, Petitioner attended a follow-up appointment for an unrelated issue. These records did not include any information about her recent vaccinations or any right shoulder injury. Ex.9 at 23 – 25. • Eighty-six (86) days post-vaccination, on December 16, 2019, at the Simonian Sports Medicine Clinic, Petitioner attended her first follow-up appointment for a second unrelated issue. Ex. 4 at 15; see also id. at 16 – 17, 49 – 50. During this appointment, Petitioner also complained of right shoulder pain “that started after a flu shot” that was administered “rather high near to her acromion.” Ex. 4 at 15. Peter T. Simonian, M.D., documented decreased range of motion (“ROM”) and tenderness at the acromioclavicular (“AC”) joint, tentatively assessed as impingement, inflammation, and adhesive capsulitis. Id. • Also on December 16, 2019, an MRI of the right shoulder visualized AC joint arthrosis, and bursal surface tearing at the junction of the supraspinatus and infraspinatus tendons. Ex. 4 at 75. • On December 23, 2019, Dr. Simonian administered a cortisone injection and referred Petitioner to physical therapy (“PT”) for her right shoulder. Ex. 4 at 14. • At a January 6, 2020, PT initial evaluation, Petitioner again attributed her right shoulder injury to the “flu vaccination” she had received in September 2019. Ex. 6 at 2. She a total of 5 PT sessions that month. See generally Ex. 13 at 316 – 48.7 6 Respondent requests that Petitioner file certified copies of the text messages from her cell phone provider. Rule 4(c) Report at n. 2; see also Response at n. 2. Petitioner avers that she has provided sufficient documentation of the text messages, they are authentic, Respondent has not actually disputed their authenticity, and any such dispute would be unwarranted here. Reply at 5. I find that Petitioner has supplied enough documentation of the text messages to be reasonable and necessary for adjudication of the current dispute. 7 Dr. Simonian directed all subsequent treatment of Petitioner’s right shoulder injury – including a February 2020 arthroscopic surgery, post-operative follow-up appointments; an initial post-operative PT evaluation; a repeat MRI; one platelet-rich plasma injection, and a repeat steroid injection. Ex. 4 at 5, 10 – 13, 43 – 48, 63 – 64, 95 – 105, 110 – 120; Ex. 16 at 3. These records do not contain further histories or other information relevant to the disputed vaccine administration site issue, however. 5 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 6 of 9 • In a letter dated and sent to Walgreens on June 28, 2020, Petitioner advised that from her review, both VARs were both incomplete and incorrect. Ex. 17 at 1. Petitioner stated: “I asked the pharmacist which drug was being given into which arm[.] She verbally told me she was injecting the pneumonia vaccine into my left shoulder, proceeded to administer it[,] and then she said she was injecting the influenza into my right shoulder.” Id. Petitioner asked Walgreens to amend the records to correct these “errors… pursuant to [her] patient rights under [HIPAA] and Walgreens’ Notice of Privacy Practices.” Id. • I have also reviewed Petitioner’s October 3, 2020, declaration (Ex. 1).8 In relevant part, Petitioner recalls that the Walgreens pharmacist seemed disorganized, took substantial time to gather the necessary paperwork, and told Petitioner to sit in the public retail area rather than behind a privacy screen. Id. at ¶¶ 3 – 4. In response to Petitioner’s specific questioning, the pharmacist narrated administering the Pneumovax vaccine into her left arm, followed by the flu vaccine in her right arm. Id. at ¶ 4. Petitioner also states that she first obtained copies of the VARs in April 2020. Id. at ¶ 13. • On August 18, 2021, the state pharmacy board advised that “its review of an investigation… initiated by [Petitioner’s] complaint” was complete. Ex. 15 at 1.9 As a result of that investigation, the board concluded that the immunizing pharmacist10 had engaged in unprofessional conduct, including “disregard[ing] Walgreens policies and procedures for immunization. She should have indicated on the [VAR] which site the Pneumovax 23 vaccination was administered in, and this place was left blank on the form.” Id. at 7. The pharmacist also utilized an “incorrect vaccination technique resulting in shoulder injury” (but “due to incomplete information on the VAR, it is not possible to determine if [the injurious vaccine] was Fluzone HD or Pneumovax 23).” Id. at 6. The pharmacist also failed to provide documentation of the vaccinations to Petitioner, and to her primary care provider 8 Respondent notes that Petitioner’s declaration is not notarized. Response at 5. However, Petitioner’s declaration is sworn under penalty of perjury. Ex. 1 at 2; see also 28 U.S.C.A. § 1746 (providing that such a declaration may be afforded like force and effect as a notarized affidavit). 9 After reviewing Ex. 15, Respondent requested “copies of all documents, correspondence, and communications between Petitioner, Walgreens, and the California State Board of Pharmacy concerning alleged pharmacist misconduct as it relates to the vaccinations administered to Petitioner on September 28, 2019.” Rule 4(c) Report at n. 3 (emphasis added). Petitioner did not address this request, and it was not renewed by Respondent. See generally Brief; Response; Reply. 10 Based on the submitted evidence (and lack of argument from the parties), I find it more likely than not that the Walgreens VARs (see generally Ex. 10) and the state pharmacy board citation (Ex. 15 at 6 – 7) identify the same pharmacist, despite utilizing different first names. 6 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 7 of 9 (“PCP”). Id. at 6 – 7.11 The pharmacist was ordered to either pay a $1,000.00 fine, or a lesser fine of $500.00 and complete three hours of remedial education in immunization. Id. at 7 – 8.12 The only issue requiring adjudication is the covered flu vaccine’s administration site. My experience with SIRVA cases (over 2,000 within SPU since my appointment as Chief Special Master, additional cases handled within chambers, and review of opinions issued by other special masters) teaches that it is not unusual for information regarding the vaccine administration site to be incorrect – especially information contained in computerized records, which may feature a ‘dropdown’ menu which may not be updated each time a separate vaccine is administered.13 By contrast, however, information which requires specific action on the part of the vaccine administrator (often at the very time of administration), such as a handwritten notation on a printed form, generally warrants more significant weight.14 But the implications of handwritten notations can be rebutted by additional, case-specific evidence and circumstances.15 Here, Petitioner claims a right-sided SIRVA – requiring evidence that a covered vaccine was administered in her right arm. But the handwritten notation from the VAR indicates the flu vaccine was administered in her left arm. This VAR appears complete and reliable, when viewed in isolation. Petitioner notes, however, that the VAR for her concurrent, non-covered Pneumovax vaccine does not document situs, and this (plus other evidence) suggest the VAR is not completely reliable on the issue of situs. Brief at 15 – 16. 11 Accord Ex. 2 at 4 – 5 (PCP records, not reflecting the at-issue vaccinations). 12 The state pharmacy board also issued a letter of admonishment to the pharmacist-in-charge, and a citation to the Walgreens location, Ex. 15 at 2 – 5, but those did not involve any fines or remedial education. 13 See, e.g., Mezzacapo v. Sec’y of Health Servs., No. 18-1977, 2021 WL 1940435, at *2 (Fed. Cl. Spec. Mstr. Apr. 19, 2021); Desai v. Sec’y of Health & Human Servs., No 14-0811V, 2020 WL 4919777, at *14 (Fed. Cl. Spec. Mstr. July 30, 2020); Rodgers v. Sec’y of Health & Human Servs., No. 18-0559V, 2020 WL 1870268, at *5 (Fed. Cl. Spec. Mstr. Mar. 11, 2020); Stoliker v. Sec’y of Health & Human Servs., No. 17- 0990V, 2018 WL 6718629, at *4 (Fed. Cl. Spec. Mstr. Nov. 9, 2018). 14 See, e.g., Schmidt v. Sec’y of Health & Hum. Servs., No. 17-1530V, 2021 WL 5226494, at *8 (Fed. Cl. Spec. Mstr. Oct. 7, 2021); Marion v. Sec’y of Health & Hum. Servs., No. 19-0495V, 2020 WL 7054414 at *8 (Fed. Cl. Spec. Mstr. Oct. 27, 2020). 15 See, e.g., Toothman v. Sec’y of Health & Hum. Servs., No. 22-0207V, 2024 WL 2698520, at *4 (Fed. Cl. Spec. Mstr. Apr. 19, 2024); Rizvi v. Sec’y of Health & Hum. Servs., No. 21-0881V, 2022 WL 2284311 at * 3 (Fed. Cl. Spec. Mstr. May 13, 2022). 7 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 8 of 9 In response, Respondent contends that the record of a left-sided flu vaccine administration has not been rebutted by “preponderant evidence in the form of testimony, written statements, or other medical records.” Response at 10. Petitioner’s “complaints to, and subsequent citations issued from, the [state pharmacy board…] are based solely upon Petitioner’s statements, and not upon independent information or other objective evidence.” Id. But after receiving Petitioner’s complaint, the state pharmacy board in fact conducted its own “review” and “investigation.” Ex. 15 at 1. The board then issued conclusions that the immunizing pharmacist had failed to record the Pneumovax vaccine’s site of administration; improperly administered one or more vaccines; failed to provide documentation of the vaccinations to Petitioner and her PCP. Based on these conclusions, the board took disciplinary action against the immunizing pharmacist (and to a lesser extent, the pharmacist-in-charge, and the Walgreens store location). Id. at 6 – 8. This constitutes independent evidence undermining the reliability of both VARs. The state pharmacy board’s conclusions are further corroborated by two medical providers’ records from about three months post-vaccination, at which time Petitioner attributed her ongoing right shoulder injury to the flu vaccine. The Federal Circuit has counseled that. patient histories “in general, warrant consideration as trustworthy evidence… [as they] contain information supplied to… health professionals to facilitate diagnosis and treatment.” Cucuras, 993 F.2d at 1528. Petitioner’s declaration provides additional, consistent details about the pharmacist’s conduct. I have also considered Respondent’s argument that Petitioner’s text messages weaken her site allegations. Response at 10 (citing Ex. 14 at 4 (providing that “my pneumonia arm is still sore but not the flu one”)). In response, Petitioner persuasively explained that the reported improvement of pain approximately 24 hours post-vaccination did not preclude the possibility of a subsequently more persistent injury, let alone where the flu vaccine was most likely administered. The text messages do not warrant particular weight in establishing each vaccine’s site of administration. Overall, the flu vaccine’s VAR is the only evidence supporting a finding that it was administered in Petitioner’s left arm. All other evidence collectively supports a finding of the flu vaccine’s administration in her right arm, as alleged. At worst, this factual dispute is a “close call,” which should be resolved in Petitioner’s favor. Conclusion and Scheduling Order Respondent does not raise any other objections to entitlement (see generally Rule 4(c) Report), and based on my independent review, I find that Petitioner has preponderantly established all other requirements for a Table SIRVA claim. 42 C.F.R. §§ 8 Case 1:20-vv-01517-UNJ Document 42 Filed 08/09/24 Page 9 of 9 100.3(a), (c)(10). Accordingly, she need not prove causation-in-fact. Section 11(c)(1)(C). I also find that Petitioner has satisfied all other requirements of Section 11(c) including a sufficiently severe injury, and the lack of other award or settlement. Section 11(c)(A), (B), and (D).16 For the foregoing reasons, I find that Petitioner has established entitlement and is thus entitled to compensation for a right-sided SIRVA following the right- sided administration of the flu vaccine on September 28, 2019. Therefore, the case is now formally in the damages phase. By no later than Monday, August 26, 2024, Petitioner shall file a Status Report updating on the parties’ efforts towards informally resolving damages – specifically including the date on which Respondent responded to the previously- submitted demand, see Status Reports (ECF No. 22, 25). If Respondent has not yet responded, the parties shall confer, and Petitioner shall report the date by which Respondent expects to respond. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 16 The parties did not request determination of the non-covered Pneumovax vaccine’s site of administration. That fact would be more difficult to determine, given the undisputed lack of contemporaneous documentation. However, even if it were found that Petitioner received both a covered flu vaccine and non- covered Pneumovax vaccine in her injured right arm, that would not obviously bar entitlement for a SIRVA. See, e.g., Kalail v. Sec’y of Health & Hum. Servs., No. 20-0593V, 2022 WL 4115755 (Fed. Cl. Spec. Mstr. Aug. 8, 2022) (approving Respondent’s concession of entitlement notwithstanding concurrent administration of Tdap and Pneumovax vaccines); Hustead v. Sec’y of Health & Hum. Servs., No. 20- 1212V, 2021 WL 5775149 (Fed. Cl. Spec. Mstr. Nov. 3, 2021) (involving flu, Tdap, and Pneumovax vaccines). 9 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01517-1 Date issued/filed: 2024-10-10 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 09/09/2024) regarding 45 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01517-UNJ Document 51 Filed 10/10/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1517V GLORIA SUPERNAW, Chief Special Master Corcoran Petitioner, v. Filed: September 9, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew D. Downing, Downing, Allison & Jorgenson, Phoenix, AZ , for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On November 3, 2020, Gloria Supernaw 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 shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on September 28, 2019. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). On July 10, 2024, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On September 9, 2024, Respondent filed a Proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the 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-01517-UNJ Document 51 Filed 10/10/24 Page 2 of 5 proffered award. Id. at 1 – 2. 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 Proffer, I award the following compensation: A lump sum of $98,336.35 (representing $95,000.00 for pain and suffering, and $3,336.35 for past unreimbursable expenses) in the form of a check payable to Petitioner. Proffer at 2. This amount represents compensation for all damages that would be available under Section 15(a). Id. 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-01517-UNJ Document 51 Filed 10/10/24 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS GLORIA SUPERNAW, Petitioner, No. 20-1517V Chief Special Master Corcoran (SPU) v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On November 3, 2020, Gloria Supernaw (“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 Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on September 28, 2019. Petition at 1. On August 17, 2022, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case was not appropriate for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 30. After briefing from both parties, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation on July 10, 2024. ECF No. 41. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $95,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:20-vv-01517-UNJ Document 51 Filed 10/10/24 Page 4 of 5 B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $3,336.35. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees. These amounts represent 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 $98,336.35, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Gloria Supernaw: $98,336.35 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 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. Case 1:20-vv-01517-UNJ Document 51 Filed 10/10/24 Page 5 of 5 TRACI R. PATTON Assistant Director Torts Branch, Civil Division /s/ Eleanor A. Hanson ELEANOR A. HANSON Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 305-1110 Eleanor.Hanson@usdoj.gov DATED: August 28, 2024 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01517-cl-extra-10734021 Date issued/filed: 2024-10-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267431 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1517V GLORIA SUPERNAW, Chief Special Master Corcoran Petitioner, v. Filed: September 9, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew D. Downing, Downing, Allison & Jorgenson, Phoenix, AZ , for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On November 3, 2020, Gloria Supernaw 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 shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on September 28, 2019. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). On July 10, 2024, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On September 9, 2024, Respondent filed a Proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the 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). proffered award. Id. at 1 – 2. 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 Proffer, I award the following compensation: A lump sum of $98,336.35 (representing $95,000.00 for pain and suffering, and $3,336.35 for past unreimbursable expenses) in the form of a check payable to Petitioner. Proffer at 2. This amount represents compensation for all damages that would be available under Section 15(a). Id. 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 GLORIA SUPERNAW, Petitioner, No. 20-1517V Chief Special Master Corcoran (SPU) v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On November 3, 2020, Gloria Supernaw (“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 Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on September 28, 2019. Petition at 1. On August 17, 2022, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case was not appropriate for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 30. After briefing from both parties, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation on July 10, 2024. ECF No. 41. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $95,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $3,336.35. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees. These amounts represent 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 following 1: a lump sum payment of $98,336.35, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Gloria Supernaw: $98,336.35 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 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. TRACI R. PATTON Assistant Director Torts Branch, Civil Division /s/ Eleanor A. Hanson ELEANOR A. HANSON Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 305-1110 Eleanor.Hanson@usdoj.gov DATED: August 28, 2024 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01517-cl-extra-10790737 Date issued/filed: 2025-01-30 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10324149 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1517V GLORIA SUPERNAW, Chief Special Master Corcoran Petitioner, v. Filed: December 30, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On November 3, 2020, Gloria Supernaw 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 shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza vaccine administered to her on September 28, 2019. Petition (ECF No. 1). On September 9, 2024, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 45. 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet . In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 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 $41,331.86 (representing $40,695.50 in fees plus $636.36 in costs). Application for Attorneys’ Fees and Costs filed September 10, 2024, ECF No. 47. Furthermore, counsel for Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. Id. at 20. Respondent reacted to the motion on September 11, 2024, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-3, ECF No. 50. Petitioner has not filed a reply. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees 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 rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. Regarding the number of hours billed, I deem the total amount of time devoted to briefing to be excessive. See Petitioner’s Brief Regarding Site of Vaccine Administration, filed Feb. 9, 2023, ECF No. 34; Petitioner’s Reply in Support of Brief Regarding Site of Vaccine Administration, filed June 28, 2023, ECF No. 37. Petitioner’s counsel expended approximately 36.23 hours on briefing – 23.1 hours drafting the initial brief and 13.1 hours drafting the reply brief. ECF No. 47 at 23-25. My above calculation does not include time spent communicating with Petitioner, analyzing and preparing additional supporting damages documentation such as medical records, diary entries, and affidavits or signed declarations, which is also being awarded in full. See, e.g., ECF No. 47 at 23-24 (entries dated 2/4/23 – 1.0 hour for client phone call, and 2/13/23). It is unreasonable for counsel to spend so much time briefing the factual issue of situs in this case. I have identified numerous cases (which may reasonably be compared to time spent in this matter),4 in which attorneys have accomplished a similar task in about half the time.5 3 These totals are calculated as follows: 25.5 hours billed on 1/31/23, 2/1/23, 2/2/23, 2/3/23, 2/6/23, 2/7/23, 2/8/23, 2/9/23, 5/25/23, 5/31/23, 6/18/23, 6/24/23, 6/25/23, 6/26/23, and 6/27/23 by Courtney Jorgenson, at a rate of $345 and 10.7 hours billed on 2/3/23, 2/4/23 (.8 hours only, not counting 1.0 hour for client phone call), 2/7/23, 2/9/23, and 6/28/23, by Andrew Downing, at a rate of $445. 4 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). 5 See, e.g., Fletcher v. Sec’y of Health & Hum. Servs., No. 20-0127V (Apr. 25, 2024) (12.7 and 9.0 billed for a brief and reply regarding onset and symptoms location); Lamine v. Sec’y of Health & Hum. Servs., No. 20-1560V (Mar. 27, 202) (8.9 and 7.2 hours billed for a brief and reply brief regarding onset and severity); Davenport v. Sec’y of Health & Hum. Servs., No. 20-0206V (Mar. 25, 2024) (16.5 and 2.6 billed for a brief and reply regarding prior pain, onset, and possible alternative cause); Graczyk v. Sec’y of Health & Hum. Servs., No. 21-0376V (Feb. 9, 202) (5.8 and 8.3 hours billed for a brief and reply brief regarding onset); Sisneros v. Sec’y of Health & Hum. Servs., No. 20-2070V (Feb. 8, 2024) (10.5 hours billed for drafting a reply brief for a factual ruling regarding severity); Alsip v. Sec’y of Health & Hum. Servs., No. 21-1815V (Mar. 22, 2023) (9.6 billed for a brief regarding severity); Law v. Sec’y of Health & Hum. Servs., No. 21- 0699V (Feb. 23, 2023) (13.2 hours billed for a brief regarding severity); Smith v. Sec’y of Health & Hum. Servs., No. 19-0314V (Apr. 26, 2022) (11 and 5 hours billed for drafting a motion and reply for a factual ruling regarding onset); Alsip v. Sec’y of Health & Hum. Servs., No. 21-1815V (Mar. 22, 2023) (9.6 billed for a brief regarding severity); Law v. Sec’y of Health & Hum. Servs., No. 21-0699V (Feb. 23, 2023) (13.2 3 Although I still find the amount of time expended to be excessive, I will reduce the hours billed by a lower amount than I otherwise would apply. 6 See, e.g., Moreland v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2023 WL 7104781 (Fed. Cl. Spec. Mstr. Aug. 31, 2023). Having prevailed in this case, a fees award is generally appropriate. 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 36.2 hours, or $13,559.00) by twenty percent. Such an across-the-board reduction (which I am empowered to adopt) 7 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 reduction of $2,711.80.8 ATTORNEY COSTS Furthermore, Petitioner has provided supporting documentation for all claimed costs, ECF No. 47 at 27-33, 54-55, 57-67. And Respondent offered no specific objection to the rates or amounts sought. I have reviewed the requested costs and find them to be reasonable. 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 $38,620.06 (representing $37,983.70 in hours billed for a brief regarding severity); Smith v. Sec’y of Health & Hum. Servs., No. 19-0314V (Apr. 26, 2022) (11 and 5 hours billed for drafting a motion and reply for a factual ruling regarding onset). 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 Dec. 7, 2024). 6 Kosma v. Sec’y of Health & Hum. Servs., No. 21-0538V (May 20, 2024) (applying a thirty percent deduction). This decision 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 Dec. 7, 2024). 7 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). 8 This amount is calculated as follows: (25.5 x $345 x .20) + (10.7 x $445 x .20) = $2,711.80. 4 fees plus $636.36 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Andrew D. Downing. 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.9 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 5