VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01674 Package ID: USCOURTS-cofc-1_20-vv-01674 Petitioner: Thomas Ross Filed: 2020-11-24 Decided: 2024-01-29 Vaccine: influenza Vaccination date: 2019-11-05 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 59000 AI-assisted case summary: Thomas Ross filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he received an influenza vaccine on November 5, 2019, and subsequently suffered a shoulder injury related to vaccine administration (SIRVA). The petition stated that the vaccine was administered in the United States, that the residual effects of the injury lasted for more than six months, and that no prior award or settlement had been made. Respondent conceded that Mr. Ross's claim met the Table criteria for SIRVA and agreed that the jurisdictional requirements of the Vaccine Act were met. Consequently, a Ruling on Entitlement was issued on October 24, 2022, finding Mr. Ross entitled to compensation. As the parties could not resolve the issue of damages informally, they were ordered to file briefs. After a hearing on December 8, 2023, the Chief Special Master awarded Mr. Ross $59,000.00 in compensation for his actual pain and suffering. This amount was awarded as a lump sum payment. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01674-0 Date issued/filed: 2022-11-29 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 10/24/2022) regarding 29 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01674-UNJ Document 31 Filed 11/29/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1674V UNPUBLISHED THOMAS ROSS, Chief Special Master Corcoran Petitioner, Filed: October 24, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 24, 2020, Thomas Ross 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 received an influenza vaccine on November 5, 2019 and suffered a shoulder injury related to vaccine administration (“SIRVA”) thereafter. Petition at 1. Petitioner further alleges the vaccine was administered within the United States, that he suffered the residual effects of this injury for more than six months, and that there has been no award or settlement for his vaccine injuries. Petition at 2. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01674-UNJ Document 31 Filed 11/29/22 Page 2 of 2 On October 20, 2022, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent has concluded that Petitioner’s claim meets the Table criteria for a SIRVA. Id. at 5. Respondent further agrees that Petitioner has met the jurisdictional requirements of the Vaccine Act. Id. at 6. 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-01674-1 Date issued/filed: 2024-01-29 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 12/18/2023) regarding 37 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01674-UNJ Document 43 Filed 01/29/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1674V THOMAS ROSS, Chief Special Master Corcoran Petitioner, Filed: December 18, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On November 24, 2020, Thomas Ross 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 (“SIRVA”) as a result of an influenza vaccine administered on November 5, 2019. Petition, ECF No. 1 at 2-3. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). On October 20, 2022, Respondent filed a Rule 4(c) Report conceding that Petitioner was entitled to compensation. On October 24, 2022, a Ruling on Entitlement was issued, which held Petitioner is entitled to compensation. ECF No. 29. Because the parties could not informally resolve the issue of 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-01674-UNJ Document 43 Filed 01/29/24 Page 2 of 2 damages, they were ordered to file briefs setting forth their respective arguments and were notified that I would resolve this dispute via an expedited “Motions Day” hearing, which ultimately took place on December 8, 2023. Petitioner requested an award of $72,500.00 in compensation for his actual pain and suffering. Respondent recommended an award of $47,500.00. After listening to the arguments of both sides, I issued an oral ruling on damages constituting my findings of fact and conclusions of law, pursuant to Section 12(d)(3)(A), at the conclusion of the December 8, 2023 hearing. An official recording of the proceeding was taken by a court reporter, although a transcript has not yet been filed in this matter. I hereby fully adopt and incorporate that oral ruling as officially recorded. In another recent decision I discussed at length the legal standard to be considered in determining damages and prior SIRVA compensation within SPU. I fully adopt and hereby incorporate my prior discussion in Sections II and III of Winkle v. Sec’y Health & Hum. Servs., No. 20-0485V, 2022 WL 221643, at *2-4 (Fed. Cl. Spec. Mstr. Jan. 11, 2022) to the instant ruling and decision. Additionally, the official recording of my oral ruling includes my discussion of various comparable cases as well as specific facts relating to Petitioner’s medical history and experience that further informed my decision awarding damages herein. Based on my consideration of the complete record as a whole and for the reasons discussed in my oral ruling, pursuant to Section 12(d)(3)(A), I find that $59,000.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering.3 I award this amount as a lump sum payment, 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)). 4 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 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01674-cl-extra-10735053 Date issued/filed: 2024-06-11 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268463 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1674V THOMAS ROSS, Chief Special Master Corcoran Petitioner, v. Filed: May 6, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On November 24, 2020, Thomas Ross 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 (“SIRVA”) as a result of an influenza vaccine administered on November 5, 2019. Petition, ECF No. 1 at 2-3. On December 18, 2023, I issued a decision awarding 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). damages to Petitioner, following briefing and expedited Motions Day argument by the parties. ECF No. 37. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $17,524.96 (representing $16,764.10 for fees and $760.86 for costs). Petitioner’s Application for Attorneys’ Fees, filed Apr. 18, 2024, ECF No. 44. 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 April 30, 2024, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 45. Petitioner filed no reply. The rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations, and will therefore be adopted. Petitioner has also requested 2024 attorney hourly rates as follows: $450 for work performed by Paul Brazil - representing a rate increase of $25. ECF No. 44 at 1, 11. Additionally, Petitioner requests an hourly rate of $140 to $177 for paralegal work. Id. at 11-12. I find these hourly rates to be reasonable, and will award the attorney’s fees requested. I also note this case required additional briefing and argument regarding the issue of damages. See Status Report, filed Dec. 15, 2022, ECF No. 32 (reporting an impasse in damages discussions); Petitioner’s Motion for Ruling on the Record Regarding Damages, filed Jan. 27, 2023, ECF No. 33. Petitioner’s counsel expended approximately 7.6 hours drafting the brief in support of damages and 1.0 hours reviewing Respondent’s response. ECF No. 44 at 10. I find this amount of time to be reasonable and will award the attorney’s fees requested. (And all time billed to the matter was also reasonably incurred.) Furthermore, Petitioner has provided supporting documentation for all claimed costs, ECF No. 44 at 14-22. And Respondent offered no specific objection to the rates or amounts sought. I have reviewed the requested costs and find them to be reasonable. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). I award a total of $17,524.96 (representing $16,674.10 for fees and $760.86 for 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 2 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 filing a joint notice renouncing their right to seek review. 3