VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01658 Package ID: USCOURTS-cofc-1_20-vv-01658 Petitioner: David Kim Filed: 2020-11-23 Decided: 2023-05-15 Vaccine: Tdap Vaccination date: 2020-01-03 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 103706 AI-assisted case summary: David Kim filed a petition for compensation under the National Vaccine Injury Compensation Program on November 23, 2020, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) after receiving a Tdap vaccine on January 3, 2020. He further alleged that his SIRVA symptoms persisted for more than six months. The case was assigned to the Special Processing Unit. Respondent conceded that Petitioner is entitled to compensation, stating that the injury met the criteria in the Vaccine Injury Table and the Qualifications and Aids to Interpretation for SIRVA. Respondent also agreed that the case was timely filed, the vaccine was received in the United States, and the statutory severity requirement was met. A ruling on entitlement was issued on January 10, 2023, finding Petitioner entitled to compensation. Subsequently, on May 12, 2023, Respondent filed a proffer on award of compensation, proposing an award of $103,706.65, consisting of $97,500.00 for past pain and suffering and $6,206.65 for unreimbursable out-of-pocket expenses. Petitioner agreed with this proffered award. The Chief Special Master issued a decision awarding Petitioner a lump sum payment of $103,706.65. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01658-0 Date issued/filed: 2023-02-13 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 01/10/2023) regarding 41 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01658-UNJ Document 44 Filed 02/13/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1658V UNPUBLISHED DAVID KIM, Chief Special Master Corcoran Petitioner, Filed: January 10, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Respondent. Shoulder Injury Related to Vaccine Administration (SIRVA) Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 23, 2020, David Kim 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 that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of a Tdap vaccination he received on January 3, 2020. Petition at 1. Petitioner further alleges that his “SIRVA symptoms persisted for more than six months.” Petition at ¶4. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 6, 2023, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01658-UNJ Document 44 Filed 02/13/23 Page 2 of 2 1. Specifically, Respondent “it is Respondent’s position that Petitioner has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”) for SIRVA.” Id. at 7. Respondent further agrees that “the records show that Petitioner timely filed his case, that he received the Tdap vaccine in the United States, and that he satisfies the statutory severity requirement by suffering the residual effects or complications of his injury for more than six months after vaccine administration.” Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01658-1 Date issued/filed: 2023-06-16 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 05/15/2023) regarding 49 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01658-UNJ Document 53 Filed 06/16/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1658V UNPUBLISHED DAVID KIM, Chief Special Master Corcoran Petitioner, Filed: May 15, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA) Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On November 23, 2020, David Kim 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of a Tdap vaccine he received on January 3, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 10, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. On May 12, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $103,706.65, 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 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-01658-UNJ Document 53 Filed 06/16/23 Page 2 of 5 representing $97,500.00 for past pain and suffering and $6,206.65 for unreimbursable out-of-pocket expenses. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $103,706.65, representing $97,500.00 for past pain and suffering and $6,206.65 for unreimbursable out-of-pocket expenses, in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). 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-01658-UNJ Document 53 Filed 06/16/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) DAVID KIM, ) ) Petitioner, ) No. 20-1658V ECF ) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________ ) PROFFER ON AWARD OF COMPENSATION1 I. Procedural History On November 23, 2020, David Kim (“petitioner”) filed a petition for compensation (“Pet.”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended. Petitioner alleges that he suffered from a left Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of a tetanus-diphtheria-pertussis (“Tdap”) vaccination administered on January 3, 2020. Pet. at 1. On January 6, 2023, respondent filed his Vaccine Rule 4(c) Report, concluding that petitioner suffered from SIRVA as defined by the Vaccine Injury Table, within the Table timeframe. ECF No. 40. On January 10, 2023, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for a SIRVA Table injury. ECF No. 41. 1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued. Case 1:20-vv-01658-UNJ Document 53 Filed 06/16/23 Page 4 of 5 II. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded a lump sum of $103,706.65, consisting of $97,500.00 for past pain and suffering and $6,206.65 for unreimbursable out-of-pocket expenses. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. III. Form of the Award 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: A lump sum payment of $103,706.65 in the form of a check payable to petitioner.2 Petitioner agrees. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division LARA A. ENGLUND Assistant Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 2 Case 1:20-vv-01658-UNJ Document 53 Filed 06/16/23 Page 5 of 5 s/ Joseph A. Lewis JOSEPH A. LEWIS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 T: (202) 451-7495 E: joseph.a.lewis@usdoj.gov DATED: May 12, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01658-cl-extra-10736474 Date issued/filed: 2024-01-16 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269884 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1658V DAVID KIM, Chief Special Master Corcoran Petitioner, v. Filed: December 15, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On November 23, 2020, David Kim filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine administration as a result of a Tdap vaccine he received on January 3, 2020. Petition, ECF No. 1. On May 15, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 49. 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 $16,675.50 (representing $15,220.60 in fees plus $1,454.90 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Oct. 2, 2023, ECF No. 54. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 2. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion at 15-26. Respondent reacted to the motion on Oct. 6, 2023, reporting that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, ECF No. 55. 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. 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 $16,675.50 (representing $15,220.60 in fees plus $1,454.90 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Paul R. Brazil. 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