VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01526 Package ID: USCOURTS-cofc-1_20-vv-01526 Petitioner: N.V. Filed: 2020-11-04 Decided: 2023-08-07 Vaccine: influenza Vaccination date: 2018-01-23 Condition: Guillain-Barré syndrome (GBS) Outcome: compensated Award amount USD: 185000 AI-assisted case summary: On November 4, 2020, Sarah Voeller filed a petition on behalf of her minor child, N.V., alleging that N.V. suffered Guillain-Barré syndrome (GBS) as a result of an influenza vaccine received on January 23, 2018. N.V., who was four years old at the time of vaccination, began complaining of leg pain 38 days later, which progressed to difficulty walking and severe pain. After multiple hospital visits and extensive testing, N.V. was diagnosed with GBS and received treatment, including IVIG infusions. She was hospitalized for a total of ten days, followed by a 16-day stay in inpatient rehabilitation and seven sessions of outpatient physical therapy. N.V. experienced a good recovery, returning to full-time daycare and activities within four months, though she continued to report some mild residual symptoms such as fatigue, occasional leg pain, and sensory sensitivity. The respondent conceded entitlement, and the case proceeded to a damages determination. Petitioner sought $190,000 for past pain and suffering and an annuity for future medical expenses, while the respondent proposed $88,000 for pain and suffering and argued that future care would be covered by insurance. Chief Special Master Brian H. Corcoran awarded $185,000 for past pain and suffering, finding it appropriate given N.V.'s initial severe presentation and treatment course, balanced against her excellent recovery and prognosis. The request for future medical expenses and an annuity was denied, as the court found that N.V.'s ongoing symptoms were manageable, she had excellent recovery, and future costs were speculative and likely covered by insurance. Petitioner was represented by David John Carney of Green & Schafle LLC, and Respondent was represented by Claudia Barnes Gangi of the U.S. Department of Justice. Theory of causation field: The petitioner alleged that N.V. suffered Guillain-Barré syndrome (GBS) as a result of an influenza vaccine received on January 23, 2018. The respondent conceded entitlement. The Special Master found that N.V. was aware of her injury and treatment. N.V.'s GBS diagnosis followed a difficult path involving multiple hospital visits and extensive testing, leading to a ten-day hospitalization, IVIG infusions, and a 16-day inpatient rehabilitation stay. While N.V. experienced a good recovery, with normal neurological exams and no restrictions on activities by 14 months post-vaccination, she continued to report mild residual symptoms such as fatigue, occasional leg pain, and sensory sensitivity. The Special Master considered prior GBS cases, Dillenbeck and Devlin, which involved adult petitioners, and Sand, which involved an adult petitioner. Balancing N.V.'s initial severe presentation and treatment course against her excellent recovery and prognosis, Chief Special Master Brian H. Corcoran awarded $185,000 for past pain and suffering. The request for an annuity for future medical expenses was denied, as the Special Master determined that N.V.'s ongoing symptoms were manageable, her recovery was excellent, and future costs were speculative and likely covered by insurance. Petitioner was represented by David John Carney of Green & Schafle LLC, and Respondent was represented by Claudia Barnes Gangi of the U.S. Department of Justice. The decision was issued on August 7, 2023. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01526-0 Date issued/filed: 2023-08-07 Pages: 14 Docket text: PUBLIC DECISION (Originally filed: 07/06/2023) regarding 41 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 1 of 14 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1526V UNPUBLISHED SARAH VOELLER, as parent and Chief Special Master Corcoran natural guardian, on behalf of N.V., a minor, Filed: July 6, 2023 Petitioner, Special Processing Unit (SPU); v. Decision Awarding Damages; Pain and Suffering; Influenza (Flu) SECRETARY OF HEALTH AND Vaccine; Guillain-Barré Syndrome HUMAN SERVICES, (GBS) Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On November 4, 2020, Sarah Voeller filed a petition on behalf of her minor child, N.V., for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that that N.V. suffered from Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine she received on January 23, 2018. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters, and although Respondent conceded entitlement, the parties were not able to settle damages. 1 Because this unpublished Decision 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 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-01526-UNJ Document 42 Filed 08/07/23 Page 2 of 14 For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount of $185,000, reflecting past pain and suffering. I. Relevant Procedural History Within seven months of the case’s initiation, Respondent filed a Rule 4(c) Report conceding entitlement. ECF No. 17. A Ruling on Entitlement was thus issued on June 16, 2021. ECF No. 22. The parties thereafter attempted to resolve the issue of damages, but informed me in February 2022 that they could not. ECF No. 27. Petitioner thus filed a Motion for Ruling on the Record for Petitioner’s Damages (“Mot.”) on April 25, 2022. ECF No. 29. Respondent’s reaction (“Resp.”) was filed on August 12, 2022, after a delay to allow Petitioner to obtain N.V.’s most recent treatment records. ECF No. 36. Petitioner filed a reply (“Repl.”) on September 2, 2022. ECF No. 37. The matter is now ripe for resolution. Petitioner argues that an award of $190,000 in past pain and suffering, plus an annuity to fund future medical expenses proposed by Petitioner’s life care planner, is appropriate. Mot. at 1; Repl. at 1. Petitioner highlights the long duration of N.V.’s GBS symptoms, including ongoing pain, fatigue, and sleep and behavioral issues. Id. at 26. Petitioner argues that N.V.’s young age at the time of her GBS injury has “largely impacted” her life, and that she will “suffer from this condition and the effects it has had on her for the rest of her life.” Id. Petitioner’s life care planner has proposed treatment for the duration of N.V.’s life, including neurology follow-ups, periodic physical therapy evaluations, massage and chiropractic therapy, psychological counseling, membership at an athletic club, and several items of medical and assistive equipment. Id. at 31-32. Respondent, in contrast, proposes that the lesser award of $88,000.00 in pain and suffering is appropriate because of “N.V.’s limited hospital stays, conservative treatment, relatively short inpatient rehabilitation stay, brief course of PT, her recorded successful recovery from GBS four months post-vaccination, and resolution of her GBS symptoms other than variable feelings of ‘achy and heavy’ legs and sensitivity issues.” Resp. at 12. Respondent also opposes an award of an annuity for Petitioner’s future care because while Respondent’s life care planner found some items reasonable and necessary for N.V. in the future, all such care would be covered by Petitioner’s insurance. Id. at 16-17. II. Relevant Medical History N.V. was four years old when she received flu and varicella vaccines at her pediatrician’s office in St. Louis Park, Minnesota on January 23, 2018. Ex. 1 at 5. Petitioner recalled that N.V. began to complain of pain in her legs on March 2, 2018 (38 days after vaccination). Ex. 2 at ¶10. The following morning, N.V. was unable to get out 2 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 3 of 14 of bed on her own and had trouble walking, complaining of pain in her hips and thighs. Id. at ¶11. On March 5, 2018, Petitioner brought N.V. to the emergency room. Ex. 3 at 30-31. An ultrasound of N.V.’s hips was normal and an x-ray revealed only constipation. Id. at 30. Her pain was treated with Toradol. Id. Doctors considered several potential diagnoses, including GBS. Id. at 31. At this time, N.V. refused to lay on her back, experienced severe pain while in a sitting position, and woke every couple of hours due to pain and itching. Ex. 2 at ¶12. N.V. presented to her pediatrician the following day, March 6, 2018. Ex. 12 at 48-49. She was diagnosed with transient synovitis and advised to use over-the-counter medications for pain. Id. at 50. N.V.’s symptoms persisted and worsened, such that she refused to sit on the toilet due to pain. Ex. 2 at ¶ 13. N.V. was admitted to the hospital on March 9, 2018 for further evaluation. Ex. 3 at 5. She continued to have difficulty walking and complained of thigh pain. Id. N.V. underwent extensive testing, including blood tests, and MRIs of her pelvis and lumbosacral spine. Id. at 5-11. Many of the tests were significantly distressing for such a young child, particularly those that required her to fast from food and drink. Ex. 2 at ¶16-17. She was discharged on March 11, 2018 (after three days) with only a diagnosis of constipation. Id. at 6. On March 14, 2018, Petitioner took N.V. to the emergency room at another hospital because she had developed areflexia and persistent limb pain that had progressed to her upper extremities. Ex 4 at 14. In addition to her limb pain, N.V. reported “pain out of proportion to touch” and a few falls while walking. Id. She underwent further testing, including a lumbar puncture and nerve conduction study, both of which were consistent with GBS. Id. at 23. She was treated with two IVIG infusions and discharged on March 21, 2018 (after seven days) to inpatient rehab. Id. N.V. remained in inpatient rehab until April 6, 2018, when she was discharged home. Ex. 5 at 9. She received physical and occupational therapy, therapeutic recreation, and rehab psychology services. Id. at 10. Upon discharge, N.V. could walk unassisted, including up and down stairs, and had significantly reduced pain. Id. Her remaining pain was “well controlled with naproxen” and she had discontinued gabapentin. Id. She continued with outpatient physical therapy from April 9, 2018 through May 16, 2018, completing seven sessions. Ex. 6 at 4. Upon discharge from physical therapy, N.V. had returned to running and jumping, and to her full-time daycare. Id. at 5. She continued to report some increased fatigue but could make it through her regular day without problem. Id. 3 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 4 of 14 On April 13, 2018 (three months after vaccination), at a follow up with her pediatrician, Petitioner reported that N.V. had improved since her discharge, including better sleep and only occasional reports of pain (which Petitioner was unsure was true pain versus frustration). Ex. 12 at 55. On exam, N.V. had “dramatic improvement” and was able to run “with a slightly wide-based gait and exaggerated sway of the hips.” Id. at 56. Petitioner was instructed to follow up for N.V.’s five-year well-check or as needed. Id. On May 29, 2018 (now four months after vaccination), N.V. had a neurology follow- up appointment with Dr. Hyoung Won Choi. Ex. 4 at 7-9. On exam, N.V. appeared to have regained full strength. Id. at 7. Dr. Choi thus opined that N.V. had “successfully recovered from” her GBS, with some “residual emotional/physical effect following her long hospitalization,” which he expected to “gradually improve over time.” Id. There are no subsequent medical records for the next almost seven months, when N.V. returned to her pediatrician on December 14, 2018, for a consultation prior to international travel. Ex. 12 at 58. Petitioner now reported that N.V. was experiencing “no recurrent neurological symptoms.” Id. On March 19, 2019 (14 months after vaccination), N.V. returned to Dr. Choi for a neurology examination. Ex. 4 at 5. Petitioner reported that N.V. complained of leg pain when she was tired, and that her feet felt like “bees.” Id. Her neurological exam was normal, however, with full strength and normal reflexes. Id. Dr. Choi discharged N.V. from his care and referred Petitioner to an infectious disease specialist to discuss future vaccinations for N.V. Id. On April 10, 2019, Petitioner presented to infectious disease specialist, Dr. Laura Norton. Ex. 16 at 8. N.V. displayed no residual neurological deficits at this time, and Petitioner was encouraged to obtain additional vaccinations for N.V. Id. at 8, 9. Petitioner consulted an immunologist on July 16, 2020, reporting that N.V.’s “only lingering issue . . . is that she may get tired quicker with activities.” Ex. 7 at 5. More than a year later, on November 27, 2020, N.V. returned to her pediatrician with complaints of itching. Ex. 17 at 21. Petitioner reported that N.V. (now age six) “always liked to be scratched” “to help her relax or fall asleep.” Id. She returned on February 23, 2021 (more than two years after her vaccination) for her seven-year-old well-check. Id. at 24. Petitioner reported that N.V. complains of tired legs in the morning and at bedtime and asked to be carried and that N.V. “always wants to be scratched.” Id. N.V.’s exam was normal. Id. at 27. On February 1, 2022, N.V. presented to her pediatrician for her eight-year-old well- check (four years after vaccination). Ex. 21 at 26. Petitioner again reported that N.V. complained of leg pain when very tired and liked to be scratched. Id. at 27. She reported that N.V. “seemed to keep up with peers, but needs a longer time to recover after physical 4 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 5 of 14 activity” and was very sensitive to hair brushing. Id. Dr. Holland referred N.V. to physical medicine and rehab specialists for further evaluation of her ongoing leg pain and fatigue following her recovery from GBS. Id. at 28. Dr. Holland opined in a letter on March 2, 2022, that she believes N.V.’s continued reports of “wobbly legs” and fatigue are directly related to her GBS diagnosis. Ex. 19 at 1. She noted that while it is difficult to know what Nora may need in the future, “there is potential that she may benefit from regular physical therapy, long-term support from a physical medicine and rehab specialist or neurologist, mental health support, and access to physical exercise. Id. On June 20, 2022, N.V. was evaluated by Dr. Andrea Paulson, a physical medicine and rehab specialist. Ex. 22 at 6. N.V. reported occasional pain in her legs and a “heavy, achy feeling.” Id. Petitioner reported that N.V. “is keeping up with peers” and that there was no tripping or falling, and that N.V. “needs her whole body scratched/rubbed down from a sensory perspective” and feels itchy at night. Id. Dr. Paulson noted that N.V. “had complete recovery of motor function and reflexes and has been back to baseline function,” but that N.V. appeared to have some nerve irritability. Id. at 8. N.V. was referred to occupational therapy to work on “sensory input options including desensitization” and referred for custom orthotics “to help with good foot placement.” Id. Dr. Paulson also discussed possible physical therapy for endurance, pain psychology, and possible use of gabapentin in the future. Id. On October 14, 2022, N.V. underwent an occupational therapy evaluation. Ex. 23 at 4. N.V. complained of restlessness in her legs when she is fatigued, mostly at bedtime. Id. at 6. The therapist noted that “these concerns . . . are not impeding to the point where cannot function in daily living tasks.” Id. at 7. Ongoing occupational therapy was not recommended. Id. There are no further records of treatment. Petitioner states that N.V. continues to “experience fatigue more frequently and faster than other children her age” and still benefits from a daily nap (which is unusual for children hear age). Ex. 2 at ¶32. N.V. continues to experience increased emotional reactions, including anxiety about medical appointments. Id. III. Parties’ Life Care Plans A. Petitioner’s Life Care Plan – Roberta Hurley On September 24, 2021, Roberta Hurley provided a Summary and Needs Assessment for N.V. Ex. 18. She also provided a supplemental report, on April 21, 2022, in the form of a response to Respondent’s life care plan. Ex. 20. 5 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 6 of 14 Ms. Hurley noted that, at the time of her initial assessment, N.V. “says her feet feel like bees are stinging her,” complains of leg and hip pain, and headaches, and requires more sleep than most children. Ex. 18 at 2. She acknowledged that N.V. swims and rides horses “on a regular basis,” but nevertheless tires “faster than her peers.” Id. N.V. was not on any medications at the time and was not receiving any specialist medical care. Id. Ms. Hurley states that N.V. is currently covered by medical insurance, and will continue to have that coverage through age 26. Id. She acknowledged that “it is more than likely that N.V. will be able to secure a full-time job with benefits, but [that she would] put in some safeguards for her medical issues in the event her GBS flares up.” Id. She included the full costs of her recommended items because “a full medical insurance plan is not warranted when [N.V.] is 26, 2040.” Id. Ms. Hurley recommends that N.V. have periodic evaluations with neurology and physical therapy, as well as regular massage, chiropractic, and psychological therapy. Ex. 18 at 3-4. She also recommends that N.V. obtain a membership to a health club with a pool and have various medical and assistive devices, including, but not limited to compression socks, heating pads, walker, and electric wheelchair. Id. at 4. Ms. Hurley’s supplemental report provides a direct response to the life care plan of Respondent’s expert, Laura Fox. See Ex. 20. Ms. Hurley opines that Ms. Fox did not allow Ms. Hurley or N.V.’s parents to ask questions during her interview, and focused her questioning on topics that “were not relevant.” Id. at 1. She states that Ms. Fox’s interview “did not address any of N.V.’s needs regarding pain and the inability to perform tasks for a child her age....” Id. Ms. Hurley reiterated her belief that the services in her life care plan were necessary for N.V. in the future. Id. at 2. B. Respondent’s Life Care Plan – Laura Fox In January 2022, Laura Fox provided a Nursing Assessment and Life Care Plan for N.V. on behalf of Respondent. ECF No. 36, Ex. A-B. Ms. Fox began by noting that at the time of her assessment, N.V. ambulated without restrictions and was not on any medications, but did complain of hip and leg pain and was easily tired and frustrated. Ex. 36, Resp. Ex. A at 1. She observed N.V. run, hop and play catch with her father. Id. at 3. She noted that N.V.’s parents described that she is “often very labile in her emotions” at home, but has “no behavioral concerns at school.” Id. N.V.’s parents also described her “extreme anxiety over medical appointments and injections.” Id. Ms. Fox’s life care plan recommended that N.V. have psychological counseling (12 sessions at age 16, 18, and 21) and an annual follow-up with her pain management and rehab specialist, as well as custom orthotics. Id. at 1-3. Ms. Fox did not recommend the remaining items recommended by Ms. Hurley in her life care plan, however. Id. For the 6 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 7 of 14 items recommended, Ms. Fox opined that they would be covered, in their entirety, by N.V.’s existing health insurance. Id. IV. 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 awarding such expenses which (i) resulted from the vaccine-related injury for which the 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, 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 (citing 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 that of my predecessor Chief Special Masters) adjudicating similar claims.3 Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress 3 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. 7 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 8 of 14 contemplated that 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). In Graves, the 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 589-90. 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 593-95. 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 offers a reasoned understanding of the issues involved in pain and suffering calculations. V. Appropriate Compensation for Petitioner’s Pain and Suffering Although neither party disputes N.V.’s awareness of her injury, analysis is complicated by her young age at the time of her GBS injury. In determining whether a Petitioner was aware of her pain and suffering, the question is whether there were any impediments that may have prevented her from perceiving the injury. Wright v. Sec’y of Health & Human Servs., No. 16-0498V, 2020 WL 6281782, at *15 (Fed. Cl. Spec. Mstr. Sept. 25, 2020). “Thus, when an infant or young child is injured, it is reasonable to consider whether the child's age and limited cognitive abilities would have impaired their awareness of the injury.” Id. Here, there is no evidence in the record that N.V. suffered from any condition that would impact her ability to perceive the physical pain and suffering from her GBS and/or the medical treatment she received. Therefore, I find that N.V., even at age four, was aware of her injury and treatment at all relevant times. When performing analysis of the duration and severity of the injury, I review the record as a whole, including the medical records and affidavits filed, and all assertions made by the parties in written documents. N.V.’s medical records and Petitioner’s affidavits describe the course of her GBS. N.V.’s path to diagnosis was difficult, with three visits to the hospital and extensive testing before she was diagnosed with GBS and began treatment. See Ex. 3 at 7-31; Ex. 4 at 14-69. N.V. was hospitalized for ten days hospitalization, had numerous MRIs, an EMG/NCS, and a lumbar puncture, and received two IVIG infusions. Id. Petitioner described the impact of the various tests and treatment on N.V. during this time. See Ex. 2 (N.V. had to be held down for blood draws and IVs, had to fast from food and drink for long periods of time for medical tests, and had multiple 8 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 9 of 14 sedations.). After her diagnosis, however, N.V. had a moderate in duration treatment course and a good recovery, which included a 16-day stay in inpatient rehab. See Ex. 5. Upon discharge, N.V. was able to walk with minimal assistance, could go up and down stairs with a railing, and only occasionally complained of pain. Id. at 8-12. She had seven sessions of outpatient physical therapy and was discharged having met all of her therapy goals. Ex. 6 at 4-6. At that time (four months post-vaccination) she had returned to full- time daycare, had returned to running and jumping, and could “typically make it through the day without issue.” Id. at 5. Petitioner did not seek care for N.V. again until eleven months after her vaccination, when she visited her pediatrician before an international trip (and not for specific concerns related to N.V.’s GBS). Ex. 12 at 58. N.V.’s neurological exam from this time period was normal, with “no recurrent neurological symptoms.” Id. By 14 months post-vaccination, N.V.’s neurologist also noted that she had a normal neurological exam, had full strength and reflexes and discharged her from further care. Ex. 4 at 5. For the next three years through 2022, N.V. returned to her pediatrician for regular, annual wellness exams. Ex. 17 at 21, 26, 27. Petitioner reported that N.V. continued to experience mild symptoms, including fatiguing more easily than her peers, experiencing pain in her hips and legs when tired, and liking to have her skin scratched. Id. Most recently, in mid-to-late 2022, N.V. was evaluated for some residual sensory issues but was not found to need substantial ongoing care. Ex. 22 at 6; Ex. 23 at 4-7. Although there is follow-up care and mild sequela, which is common in GBS cases, N.V. was substantially recovered from her GBS by four months after her vaccination. Both parties rely on prior GBS cases involving adult petitioners, as they accurately note that there are no available decisions involving petitioners as young as N.V. to consider with respect to damages. Petitioner relies primarily on Dillenbeck v. Secretary of Health & Human Services., No. 17-0428V, 2019 WL 4072069 (Fed. Cl. Spec. Mstr. July 29, 2019), and Devlin v. Secretary of Health & Human Services., No. 19-0191V, 2020 WL 5512505 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) to support her requested pain and suffering award. The petitioner in Dillenbeck received $170,000 in past pain and suffering (along with a future award) for a treatment course including a 14-day hospitalization, 5 days inpatient rehab, multiple rounds of IVIG treatment, and one month of outpatient physical therapy. Dillenbeck, 2019 WL 4072069 at *1-2, 14. In addition, Ms. Dillenbeck suffered from ongoing sequela, including paresthesias in her hands and feet and an unsteady gait, which prevented her from continuing to work in her preferred profession as a veterinary technician. Id. at *2, 10-11. The petitioner in Devlin was awarded $180,000 in past pain and suffering for GBS treatment course involving 12-days in the hospital, seven plasmapheresis treatments, and 12 sessions of out-patient physical therapy. Devlin, 2020 WL 5512505 at *3. His last treatment occurred about 18 months after his 9 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 10 of 14 vaccination and he enjoyed a good recovery, with some “residual symptoms that are common GBS sequelae.” Id. Petitioner argues that N.V. received similar treatments as Ms. Dillenbeck, but had a more severe initial presentation and a longer (more than four year) period of ongoing sequela. Mot. at 23. Petitioner further argues that N.V. suffered longer than Mr. Devlin and that her sequela has not improved over time. Id. Respondent relies on Sand v. Secretary of Health & Human Services, 19-1104V, 2021 WL 4704665 (Fed. Cl. Spec. Mstr. Aug. 31, 2021) in support of his proposed award. That petitioner was awarded $130,000 in past pain and suffering for his GBS injury. Id. at *1. Mr. Sand was not diagnosed with GBS for approximately five months after his vaccination, during which he underwent several MRIs and an EMG/NCV study, which precluded him from treatment with IVIG. Id. at *6. He treated his GBS symptoms, primarily back pain and upper body weakness, with gabapentin. Id. at *2-3. Mr. Sand continued to suffer from ongoing sequela, including numbness in his fingertips and feet and decreased stamina. Id. at *3. Respondent argues that N.V.’s case was less severe than the Sand petitioner because Mr. Sand reported higher levels of initial pain and experienced anxiety while awaiting diagnosis, and experienced slow and gradual improvement, rather than the quicker improvement of N.V. Resp. at 15. Respondent also acknowledges that he used cases settled by proffer, without explaining his specific reasoning, to arrive at his lower proposed award for N.V. Id. at 15-16. Given N.V.’s treatment course, I find Respondent’s recommendation of $88,000 is far too low, and fails to properly recognize N.V.’s experience with her initial symptoms, diagnosis, hospitalizations, and treatment course. In addition, Respondent’s proposed comparable – Sand – is distinguishable. That petitioner was not hospitalized, did not undergo a lumbar puncture, did not receive any IVIG treatment, did not receive any rehab or physical therapy treatment – and still received a higher award than what Respondent proposes. I have noted in prior decisions that GBS constitutes a particularly alarming kind of vaccine injury – and that as a result, pain and suffering awards in this context should be a bit higher than average, to account for the frightening nature of the condition. Gross v. Sec’y of Health & Human Servs., No. 19-0835V, 2021 WL 2666685 at *5 (Fed. Cl. Spec. Mstr. Mar. 11, 2021). Respondent has not provided proper justification for why N.V.’s experience with GBS was substantially below that of Mr. Sand. N.V.’s medical records reveal a clinical course more similar to the Dillenbeck and Devlin petitioners. She was hospitalized a total of ten days (three days initially when seeking diagnosis and then seven days once GBS was diagnosed), received IVIG treatment and pain medications, spent 16 days in inpatient rehab, and had seven sessions of outpatient physical therapy. N.V. endured a more difficult path to diagnosis, with one ER visit and two hospitalizations, along with several medical tests (made more difficult due to her young age), to arrive at her GBS diagnosis. Although N.V. has suffered from some relatively mild ongoing sequela, her neurological exams have been normal, 10 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 11 of 14 with full strength and reflexes since 14 months after her vaccination, and she attends school and activities without restrictions. She also suffers from common ongoing sequela, such as fatigue and occasional pain or sensory changes, but there is no evidence that the sequela have had a significant impact on her life. N.V. attends a regular school without restrictions, and participates in activities, including horseback riding and swimming on a regular basis. See Ex. 18. N.V. currently has no mobility issues, and no “physical or social limitations.” Id. at 4; Ex. 19 at 1. Petitioner described N.V.’s ongoing sequela as “manageable, but notable.” Ex. 17 at 27. On balance, N.V.’s pain and suffering award should be in the same range at Dillenbeck and Devlin. Petitioner also argues that N.V.’s GBS injury justifies a higher pain and suffering award because of her young age and the impact of her injury on her childhood experience, as well as the impact of the injury on her future. Mot. at 23-25. While N.V.’s clinical course is similar to that of the adult petitioners in Dillenbeck and Devlin, Petitioner has provided persuasive evidence that N.V.'s suffering, at least in the early stages of her diagnosis, might have been more significant than for an adult. In her affidavit, Petitioner described the impact of the hospitalization and treatment on N.V., who was four years old at the time. See Ex. 2. N.V. had to be held down for IV’s and blood draws (which is far less likely for an adult patient), struggled being woken throughout the night in the hospital for tests and treatment, became frustrated and fearful of the many medical staff who treated her, and endured several periods of fasting from food and drink to accomplish medical tests. Id. at ¶12, 14-18, 21. On the other hand, N.V. has enjoyed an excellent recovery from her GBS after a relatively short treatment course. By three months after her vaccination, her pediatrician noted “dramatic improvement in balance, gait, and endurance.” Ex. 12 at 5. By four months after her vaccination, on May 29, 2018, her neurologist declared her “successfully recovered from the illness” with only some residual emotional and physical effects that were expected to improve over time. Ex. 4 at 7-9. At that time, N.V. had been discharged from physical therapy having met all of her treatment goals. Ex. 6 at 4. Petitioner did not seek any treatment for N.V. for seven more months – after which N.V. consistently had normal neurological exams and no restrictions on activities. See Ex. 4 at 5; Ex. 12 at 58. Although Petitioner noted some ongoing sequela at N.V.’s annual wellness exams, N.V. did not receive any additional treatment or evaluation until June 2022, when she was determined not to need significant additional treatment. See Ex. 22 at 6; Ex. 23 at 4. Accordingly, balancing the severity of N.V.’s GBS injury and the impact on her personally against her demonstrably excellent recovery, and considering the arguments presented by both parties, a review of the cited cases, and based on the record as a whole, I find that $185,000.00 in compensation for actual/past pain and suffering is reasonable and appropriate in this case. This figure exceeds Petitioner’s comparables, and thus takes into account N.V.’s specific circumstances – but is also slightly lower than 11 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 12 of 14 Petitioner’s demand, since I give some weight to N.V.’s post-vaccination recovered health and prognosis. VI. Award for Future Medical Expenses Future unreimbursed expenses may be paid when they are “reasonably projected to be incurred in the future.” Section 15(a)(1)(A)(iii)(II); Goldman v. Sec’y of Health & Human Servs., No. 16-1523V, 2020 WL 6955394, at *10 (Fed. Cl. Spec. Mstr. Nov. 2, 2020). Future unreimbursed expenses should be awarded to a degree “beyond that which is required to meet the basic needs of the injured person ... but short of that which may be required to optimize the injured person's quality of life.” Scheinfeld v. Sec’y of Health & Human Servs., No. 90-212V, 1991 WL 94360 at *2 (Cl. Ct. Spec. Mstr. May 20, 2991). As noted, both parties retained life care planners to support their positions regarding the appropriate amount of future medical expenses awarded to N.V. See Exs. 18, 20, A, and B. Petitioner requests an annuity to fund future medical care for N.V., including periodic neurology and physical therapy evaluations, regular massage and chiropractic treatment, behavioral counseling, health club membership, and adaptive and mobility equipment, beginning when N.V. reaches adulthood and continuing throughout her life.4 See Ex. 18, Mot. at 32-33. Petitioner argues that the requested items have been endorsed by N.V.’s treating pediatrician. Mot. at 33; Ex. 18. Respondent’s life care planner evaluated the recommended items and interviewed N.V. and her parents. See Resp. Ex. A-B. Respondent agrees that certain items are reasonable and necessary, including annual follow-up evaluations at Gillette Children’s Specialty Healthcare through age 12; behavioral counseling for one year each at age 16, 18, and 21; and custom foot orthotics. Resp. Ex. B. With respect to the remaining items requested by Petitioner, Respondent argues that there are no medical recommendations for such treatment or equipment and no evidence that N.V.’s GBS is “progressive.” Id. And even the agreed-upon items would be covered by N.V.’s medical insurance, with no out-of-pocket expense – and hence no annuity at all is required. Id. It can be difficult to determine what is “reasonably necessary” in any case, but that difficulty is compounded when dealing with a minor who has been injured, as here. However, N.V.’s medical records reveal a very nearly full recovery. N.V.’s neurological exams have been normal for more than three years, since 14 months after her vaccination. See Ex. 4 at 5. Further, since her recovery from GBS, N.V. has not had any restrictions on her activities: she attends a regular school without accommodations, does 4 Petitioner’s life care planner acknowledged that N.V. can be covered by her parent’s TriCare insurance through age twenty-six. Ex. 18 at 2, 3. 12 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 13 of 14 not take any medications, and regularly participates in extracurricular activities. See Ex. 19 at 2; Ex. 21 at 1; Resp. Ex. A at 2-3. While Petitioner has submitted credible evidence that N.V. continues to suffer from some mild sequela of her GBS injury, including fatigue, occasional pain, and sensory sensitivity, Petitioner described N.V.s ongoing sequela as “manageable, but notable.” Ex. 17 at 27. N.V. has not received treatment for her GBS sequela since her initial course of treatment ended. When Petitioner sought evaluation for some ongoing issues recently, no significant treatment was recommended. At most, the record does suggest the potential for future treatment, including annual re-evaluations as well as possible physical therapy for endurance, gabapentin for symptoms control, occupational therapy for sensory desensitization, and pain psychology.5 See Ex. 22 at 6-8. But none of this possible treatment is comparable to the scope and length of the expenses requested by Petitioner. Further, even if certain expenses for future medical care do become necessary, it is likely that all or a majority of the out-of-pocket costs will be covered by a medical insurance plan. Neither party suggests that there are likely to be significant future out-of- pocket expenses through N.V.’s age 26 (in the year 2040) due to her continuing coverage. And Petitioner (who bears the burden of proof on demonstrating the reasonability of any item of damages) has not shown that existing medical insurance coverage is not likely to support N.V. in this way. Therefore, it is unlikely she will experience required care costs for the next 15-plus years that would not be covered, foregoing the need for the Program (which is always the “payor of last resort”) to reimburse these otherwise-speculative care costs. See e.g. Hulon v. Sec’y of Health & Human Servs., No. 19-1985V, 2022 WL 2069141, at *1 (Fed. Cl. Spec. Mstr. May 3, 2022). I conclude the same for the period thereafter. Petitioner’s life care planner notes that “it is more than likely that N.V. will be able to secure a full-time job with benefits.” Ex. 18 at 2. And a full review of the record indicates that more distant future medical expenses are simply too speculative to award in this case. While N.V. continues to experience mild ongoing sequela from her GBS injury (as many GBS petitioners do), those sequela do not render her disabled or prevent her from fully living her life. In fact, there is preponderant evidence of the opposite – with N.V. currently attending regular school with no accommodations, “keeping up with her peers during physical activity,” and participating in extracurricular activities on a regular basis. Ex. 19 at 1. And there is not preponderant evidence in the record suggesting that N.V.’s GBS is likely to recur or that her current sequela are likely to worsen over time. As such, the medical services and 5 An October 2022 occupational evaluation suggested that N.V.’s symptoms could be managed with “general strategies” and did not require ongoing occupational therapy treatment. Ex. 23 at 7. 13 Case 1:20-vv-01526-UNJ Document 42 Filed 08/07/23 Page 14 of 14 equipment requested by Petitioner throughout N.V.’s lifetime as not “reasonably projected to be incurred in the future.” See Section 15(a)(1)(A)(iii)(II). Therefore, requested future medical expenses and annuity are denied. Conclusion For all of the above reasons, the I award Petitioner a lump sum payment of $185,000.00 in the form of a check payable to Petitioner Sarah Voeller, on behalf of her minor child, N.V. This amount represents compensation for all damages that would be available under Section 15(a) of the Vaccine Act. Id. The Clerk of Court is directed to enter judgment in accordance with this Decision.6 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 6 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. 14 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01526-cl-extra-10735417 Date issued/filed: 2024-05-03 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268827 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1526V SARAH VOELLER, natural parent and legal guardian, on behalf of N.V., a Chief Special Master Corcoran minor, Filed: April 1, 2024 Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On November 4, 2020, Sarah Voeller, as natural parent and legal guardian, filed a petition on behalf of her minor child, N.V., for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that that N.V. suffered from Guillain-Barré syndrome as a result of an 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). influenza and varicella vaccines received on January 23, 2018. Petition at 1. On July 6, 2023, I issued a decision awarding damages to Petitioner, following briefing by the parties. ECF No. 41. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $77,308.57 as follows: 1. $73,373.81 (representing $63,219.50 for fees and $10,154.31 for costs) for her current Petitioner’s counsel, David Carney (Green & Schafle, LLC); 2. $1,122.50 for fees for her prior Petitioner’s counsel, Kate Westad, while at her current law firm (SiebenCarey P.A.); and 3. $2,812.26 (representing $2,785.00 for fees and $27.26 for costs) for her prior Petitioner’s counsel, Kate Westad while at her former law firm (Larkin Hoffman Law Firm). Petitioner’s First Application for Fees and Costs, filed Feb. 4, 2024, at 1-4, 13, ECF No. 46. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. Id. at 87. Respondent reacted to the motion on February 15, 2024, representing 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. 47. Petitioner did not file a reply. 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 2 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 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 performing work in this matter as follows: 2018 2019 2020 2021 2022 2023 2024 David J. Carney, Esq. $350 $375 $400 $425 $450 Adam M. Green, Esq. X X $425 X X Evan R. Baker - Law X $150 X X X Student Paralegals – Green & $145 $145 $145 X X Schafle, LLC Kate Westad, Esq. $350 $350 $350 Paralegal – Larkin $140 $140 Hoffman ECF No. 46 at 2-3, 15-35. The hourly rates requested for Mr. Carney, Mr. Green, Ms. Baker (as law student), the paralegals at Green & Schafle, LLC, Ms. Westad, and the paralegal at Larkin Hoffaman Law Firm for all time billed in the 2018-2023 period are reasonable and consistent with prior determinations. Additionally, Petitioner has also 3 requested a 2024 attorney hourly rate of $450 for work performed by David Carney - representing a rate increase of $25, which I also find to be reasonable. Id. at 34-35. However, a few of the tasks performed by Mr. Carney are more properly billed using a paralegal rate.3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $823.50.4 B. Billed Hours Regarding the number of hours billed, some adjustments also are merited. First, attorney Adam Green billed 1.1 hours on April 14, 2022, for researching and drafting the “Legal Standard” section of the damages brief. ECF No. 46 at 28. However, the resulting section is virtually identical to the content of previous briefs filed by Petitioner’s counsel in other cases. Review of the damages briefing from the same counsel from 2021 to the present, and filed in 29 other SPU SIRVA cases requiring a substantive damages decision, reveals multiple similarities related to the “Legal Standard” sections containing discussions of authority existing for at least ten years - with only minor changes, or slight, non-substantive differences in how paragraphs were ordered. For example, the briefing in this case is strikingly similar to what counsel filed in 2021 (the year prior to the briefing in this case) in Boyd v. Sec’y of Health & Hum. Servs., No. 19-1107V at ECF No. 29; McCabe v. Sec’y of Health & Hum. Servs., No. 19-1916V at ECF No. 26; Hartman v. Sec’y of Health & Hum. Servs., No. 19-1106V at ECF No. 32; Niemi v. Sec’y of Health & Hum. Servs., No. 19-1535V at ECF No. 31; Morrison-Langehough v. Sec’y of Health & Hum. Servs., No. 19-1103V at ECF No. 42; Carlow v. Sec’y of Health & Hum. Servs., No. 19-1449V at ECF No. 25; Buckley v. Sec’y of Health & Hum. Servs., No. 19-1602V at ECF No. 23; Guerrero v. Sec’y of Health & Hum. Servs., No. 20-0851V at ECF No. 30; Clappe-Mixell v. Sec’y of Health & Hum. Servs., No. 19-1538V at ECF No. 36; Black v. Sec’y of Health & Hum. Servs., No. 20-0777V at ECF No. 24; Miller v. Sec’y of Health & 3 These entries describing the preparation of a notice of filing, the bates stamping medical records, and filing both documents are dated as follows: 11/3/20, 11/18/20 (two entries), 4/14/21, 4/21/22, 7/6/22, and 11/17/22. ECF No. 46 at 22-23, 29-30, 32. 4 This amount consists of ($350 - $145) x 2.2 hrs. + ($375 - $145) x 0.4 hrs. + ($400 - $145) x 1.1 hrs. = $823.50. 4 Hum. Servs., No. 20-0604V at ECF No. 31; Klausen v. Sec’y of Health & Hum. Servs., No. 19-1977V at ECF No. 44 (in chronological order). Attorney’s fees which included 1.4 to 1.8 hours, respectively, for work by Mr. Green, have already been awarded in those cases. “If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of Health & Hum. Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007). While I do not fault counsel for recycling “boilerplate” in briefs that is relevant in different cases, it is not appropriate to bill fully for such work either when it is not novel (or only requires minor updating). Accordingly, I will award only .5 hours of time for this task, reducing the time billed by 0.6 hours. This results in a reduction of $255.00.5 Second, I deem the total amount of time devoted to briefing entitlement and damages to be excessive. See Status Report, filed Feb. 22, 2022, ECF No. 27 (reporting an impasse in damages discussions); Petitioner’s Motion on Damages, filed Apr. 25, 2022, ECF No. 29; Petitioner’s Reply Brief in Support of Petitioner’s Motion for Ruling on the Record and Brief in Support of Damages, filed Sept. 2, 2022, ECF No. 37. After accounting for the reduction already mentioned, Petitioner’s counsel expended approximately 22.3 hours drafting the damages brief and 16.8 hours drafting the reply damages brief, totaling 39.16 hours. ECF No. 46 at 28-32. My above calculation does not include time spent preparing the initial demand which would have informed this later work – 15.4 hours – and I am therefore awarding fees associated with that task in full.7 Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations or preparing for or participating in the Expedited Motions Day hearing, which is also being awarded in full. See, e.g., ECF No. 46 at 31 (8/25/22 entry). 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 5 This amount is calculated as follows: 0.6 hrs. x $425 = $255.00. 6 This total is calculated as follows: 29.2 hours billed on: 9/15/22, 9/16/22, 9/17/22, 9/18/22, 9/26/22, 9/27/22, 9/28/22, 10/21/22, 10/22/22, 10/24/22, and 10/25/22, by Adam Green at a rate of $425; and 9.9 hours billed on: 11/17/23 and 12/1/23, by David Carney at a rate of $400. 7 This time was billed by Evan Baker, using an hourly rate of $150 and Dave Carney, using an hourly rate of $375, and results in $4,380.00 in attorney’s fees. ECF No. 46 at 25-26. 5 time spent in this matter),8 in which attorneys have accomplished this task in about half the time.9 See, e.g., Staffaroni v. Sec’y of Health & Hum. Servs., No. 21-1951V (Nov. 2, 2023) (19.2 and 5.4 hours billed for drafting a damages brief and responsive damages brief, respectively); Granville v. Sec’y of Health & Hum. Servs., No. 21-2098V (Oct. 25, 2023) (16.4 and 6.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Schenck v. Sec’y of Health & Hum. Servs., No. 21-1768V (Oct. 20, 2023) (8.0 and 3.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Weil v. Sec’y of Health & Hum. Servs., No. 21-0831V (Oct. 20, 2023) (14.5 and 1.5 hours billed for drafting a damages brief and reviewing Respondent’s responsive damages brief, respectively); Hernandez v. Sec’y of Health & Hum. Servs., No. 21-1572V (July 21, 2023) (14.7 hours billed for drafting a damages brief); Miles v. Sec’y of Health & Hum. Servs., No. 20-0146V (July 20, 2023) (16.4 and 7.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Merchant v. Sec’y of Health & Hum. Servs., No. 20-0450V (July 12, 2023) (15.5 and 2.7 hours billed for drafting a damages brief and responsive damages brief, respectively); Elenteny v. Sec’y of Health & Hum. Servs., No. 19-1972V (May 31, 2023) (16.7 hours billed for drafting a damages brief); Miller v. Sec’y of Health & Hum. Servs., No. 21-1559V (May 30, 2023) (17.5 and 4.5 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 the damages briefing. The only areas of dispute involved the appropriate amount of compensation for Petitioner’s past pain and suffering and whether annuity for future medical expenses is needed. See Voeller v. Sec’y of Health & Hum. Servs., No. 20- 1526V, 2023 WL 5019830, at *1 (Fed. Cl. Spec. Mstr. July 6, 2023). The parties’ views differed by $102,000.00 - Petitioner sought $190,000.00, and Respondent countered with $88,000.00. Although I denied Petitioner’s request for future medical expenses, I ultimately awarded was close to that proposed by Petitioner($185,000.00) – supporting the need for damages briefing. Id. However, I still find the amount of time expended to be excessive, but will reduce the hours billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs., No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023). Of course, 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 39.1 hours, or 8 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). 9 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 March 24, 2024). 6 $16,370.00) by twenty percent. Such an across-the-board reduction (which I am empowered to adopt)10 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 $3,274.00.11 ATTORNEY COSTS Petitioner requests $10,154.31 in costs to Mr. Carney’s firm and $27.26 in costs to Larkins Hoffman Attorneys. ECF No. 46 at 2. She has provided receipts for all except $9.87 in postage costs, which I will nevertheless allow. Id. at 37-85; 94-95. 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. Petitioner is awarded the total amount of $72,956.0712 as follows: • A lump sum of $69,021.31, representing reimbursement in the amount of $58,867.00 for attorney’s fees and in the amount of $10,154.31 for attorney’s costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, David J. Carney; and 10 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). 11 This amount is calculated as follows: (29.2 hrs. x $425 x .20) + (9.9 hrs. x $400 x .20) = $3,274.00. 12 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, Section 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 7 • A lump sum of $1,122.50, representing reimbursement for attorney’s fees, in the form of a check payable jointly to Petitioner and Petitioner’s former counsel’s current law firm, SiebenCarey, P.A.; and • A lump sum of $2,812.26, representing reimbursement in the amount of $2,785.00 for attorney’s fees and in the amount of $27.26 for attorney’s costs, in the form of a check payable to Petitioner and Petitioner’s former counsel’s prior law firm, Larkin Hoffman Law Firm. 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.13 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 13 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 8