VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01523 Package ID: USCOURTS-cofc-1_20-vv-01523 Petitioner: Judy Rousseau Filed: 2023-06-14 Decided: 2023-07-19 Vaccine: Tdap Vaccination date: 2020-03-15 Condition: right shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 40000 AI-assisted case summary: Judy Rousseau filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a right shoulder injury related to vaccine administration (SIRVA) resulting from a tetanus-diphtheria-acellular pertussis (Tdap) vaccine she received on March 15, 2020. She stated that the vaccine was administered in the United States, she experienced residual effects for more than six months, and there had been no prior award or settlement for her condition. Respondent denied that Ms. Rousseau sustained a SIRVA Table injury, denied that the vaccine caused her injury, and denied that the Tdap vaccine caused any other injury. Despite these denials, the parties filed a joint stipulation agreeing that a decision should be entered awarding compensation. The court found the stipulation reasonable and adopted it as its decision. Ms. Rousseau was awarded a lump sum of $40,000.00, representing compensation for all items of damages available under Section 15(a) of the Vaccine Act. The case was settled as a Table injury claim, and the award covers all damages. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01523-0 Date issued/filed: 2023-07-19 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 06/14/2023) regarding 33 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1523V JUDY ROUSSEAU, Chief Special Master Corcoran Petitioner, Filed: June 14, 2023 v. Special Processing Unit (“SPU”); SECRETARY OF HEALTH AND Joint Stipulation; Tetanus-Diphtheria- HUMAN SERVICES, Acellular Pertussis (“Tdap”) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (“SIRVA”) Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On November 4, 2020, Judy Rousseau 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”), a Table injury, resulting from a tetanus-diphtheria- acellular pertussis (“Tdap”) vaccine she received on March 15, 2020. Pet. at 1, ECF No. 1; Stipulation at 1, ECF No. 32. Petitioner further alleges that the vaccine was administered in the United States, she experienced the residual effects of her condition for more than six months, and there has been no prior award or settlement of a civil action for damages on Petitioner’s behalf as a result of her condition. Pet. at 3; Stipulation at 1. Respondent denies “that [P]etitioner sustained a SIRVA Table injury, denies that [P]etitioner’s alleged shoulder injury was caused-in-fact by the Tdap vaccine, and denies 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 2 of 7 that the Tdap vaccine caused [P]etitioner any other injury or her current condition.” Stipulation at 2. Nevertheless, on June 13, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $40,000.00 in the form of a check payable to Petitioner. Stipulation at 2. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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 inesign Document ID: 245AEC98-245E-4080-AF2A-A5C35138799C Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) JUDY ROUSSEAU, ) ) Petitioner, ) ) No. 20-l 523V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) STIPULATION The parties hereby stipulate to the following matters: 1. Judy Rousseau, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the"Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of a tetanus, diphtheria, acellular-pertussis ("Tdap") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § I00.3(a). 2. Petitioner received the Tdap vaccine in her right shoulder on March 15, 2020. 3. The vaccination was administered within the United States. 4. Petitioner alleges that she suffered a right Shoulder Injury Related to Vaccine Administration ("SIRVA") within the time period set forth in the Table, and further alleges that she experienced the residual effects ofh er injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. he signed document can be validated at https://app.vinesign.comNerify Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 4 of 7 6. Respondent denies that petitioner sustained a SIRVA Table injury, denies that petitioner's alleged shoulder injury was caused-in-fact by the Tdap vaccine, and denies that the Tdap vaccine caused petitioner any other injury or her current condition. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry ofj udgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of$40,000.00 in the fonn of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry ofj udgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), and an applicatio~ the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. I 0. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l 5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 2 Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 5 of 7 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa- 1S(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-1S(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and • the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claim~ damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown. suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the T dap vaccination administered on March 15, 2020, as alleged by petitioner in a petition for vaccine compensation filed on or about November 4, 2020, in the United States Court of Federal Claims as petition No. 20-1523V. 14. If petitioner should die prior to entry ofj udgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 3 Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 6 of 7 15. If the special master fails to issue a decision in complete conformity with the tenns of this Stipulation or if the Court of Federal Claims fails to enter judgment in confonnity with a decision that is in complete conformity with the tenns of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressJy stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sough4 is not grounds to modify or revise this agreement 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the Tdap vaccine caused petitioner's alleged shoulder injury or any other injury, or that petitioner suffered an injury contained in the Vaccine Injury Table. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION I I I I I I I I I 4 Case 1:20-vv-01523-UNJ Document 38 Filed 07/19/23 Page 7 of 7 Respectfully submitted, PETITIONER: JUDY ROUSSEAU ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: c t ~ ~ ~':tlJ?e.o \AN lJ. II c--._ HEATHER L. PEARLMAN v Muller Brazil Deputy Director 715 Twining Road, Suite 208 Torts Branch Dresher, PA 19025 Civil Division Tel: (215) 885-1655 U.S. Depanment of Justice Email: Jeigh@mullerbrazil.com P.O. Box 146 Benjamin FrankJin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE AITORNEYOFRECORDFOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: · t ~--- Henry P DlgltallyslgnedbyHenryP. • Mcmlbn-S3 -~,,6 by Mcmillan -S3 :~023.os.311s:12:2• CDR GEORGE REED GRIMES, :MD, MPH KYLE E. POZZA ' Director, Division of Injury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Deparnnent of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Hwnan Services Washington, DC 20044..0146 5600 Fishers Lane, 08N146B Tel: (202) 616-3661 Rockville, MD 20857 E-mail: Kyle.Pozza@usdoj.gov Dated: 5 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01523-cl-extra-10736882 Date issued/filed: 2023-11-29 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270292 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1523V JUDY ROUSSEAU, Chief Special Master Corcoran Petitioner, v. Filed: October 27, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Lara A. Englund, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On November 4, 2020, Judy Rousseau 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 a Table injury, resulting from a tetanus-diphtheriaacellu lar pertussis vaccine she received on March 15, 2020. Petition, ECF No. 1. On June 14, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 33. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other inf ormation, the disclosure of which would constitute an unwarranted invasion of privacy. If , upon review, I agree that the identified material fits within this definition, I will redact such material f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $10,772.54 (representing $10,300.40 in attorney’s fees and $472.14 in attorney’s costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Aug. 29, 2023, ECF No. 39. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on Aug. 30, 2023, 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, ECF No. 40. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion at 14-21. Respondent offered no specific objection to the rates or amounts sought. 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 $10,772.54 (representing $10,300.40 in attorney’s fees and $472.14 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Leigh A. Finfer. 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. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 2