VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01688 Package ID: USCOURTS-cofc-1_20-vv-01688 Petitioner: Jane Robinson Filed: 2024-03-04 Decided: 2024-04-04 Vaccine: influenza Vaccination date: Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 118478 AI-assisted case summary: Jane Robinson filed a petition on March 4, 2024, seeking compensation under the National Vaccine Injury Compensation Program. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine. The case was assigned to the Special Processing Unit. The respondent, the Secretary of Health and Human Services, disputed entitlement, specifically arguing that the petitioner failed to establish that the pain was limited to her left shoulder, as required by 42 C.F.R. § 100.3(a)(I)(C) and (c)(10). The parties were ordered to brief entitlement and damages, and the matter was ultimately resolved via an expedited hearing on February 26, 2024. Petitioner's counsel was Ronald Craig Homer of Conway, Homer, P.C., and respondent's counsel was Benjamin Patrick Warder of the U.S. Department of Justice. Chief Special Master Brian H. Corcoran presided over the case. In a ruling issued on April 4, 2024, Chief Special Master Corcoran found that Petitioner had established the SIRVA Table requirements pursuant to 42 C.F.R. § 100.3(a)(XIV)(B) and (c)(10), as well as the general elements for a claim under Section 11(c) of the Vaccine Act, including receipt of a covered vaccine and residual effects lasting six months. The Special Master adopted and incorporated his prior discussions from Winkle v. Sec’y Health & Hum. Servs., No. 20-0485V, 2022 WL 221643, regarding the legal standards for entitlement and damages in SIRVA cases. Based on the record and the reasons discussed in his oral ruling, Chief Special Master Corcoran found Petitioner entitled to compensation. He awarded Jane Robinson a total of $118,478.69. This amount included $118,000.00 for actual pain and suffering and $478.69 for actual unreimbursable expenses. The award for pain and suffering was not reduced to present value as it represented actual, rather than projected, damages. The Clerk of Court was directed to enter judgment accordingly. Theory of causation field: Petitioner Jane Robinson filed a petition on March 4, 2024, alleging a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination. The case proceeded as a Table claim under 42 U.S.C. § 300aa-11(c)(1)(A)(B)(D)(E) and 42 C.F.R. § 100.3(c)(10). Respondent disputed entitlement, arguing Petitioner failed to establish that pain was limited to the left shoulder per 42 C.F.R. § 100.3(a)(I)(C) and (c)(10). Chief Special Master Brian H. Corcoran presided. In a decision dated April 4, 2024, the Special Master found Petitioner established the SIRVA Table requirements and general elements for a claim under Section 11(c), including residual effects lasting six months. The Special Master incorporated prior legal standards from Winkle v. Sec’y Health & Hum. Servs., No. 20-0485V, 2022 WL 221643. Petitioner was awarded $118,478.69, consisting of $118,000.00 for actual pain and suffering and $478.69 for actual unreimbursable expenses. Petitioner's counsel was Ronald Craig Homer; Respondent's counsel was Benjamin Patrick Warder. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01688-0 Date issued/filed: 2024-04-04 Pages: 3 Docket text: PUBLIC DECISION (Originally filed: 03/04/2024) regarding 53 DECISION of Special Master, Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01688-UNJ Document 59 Filed 04/04/24 Page 1 of 3 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1688V JANE ROBINSON, Chief Special Master Corcoran Petitioner, Filed: March 4, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1 On November 25, 2020, Jane Robinson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. Because entitlement was contested, the parties were ordered to file briefs addressing whether Petitioner has established a Table case, and setting forth their respective arguments on damages should I find entitlement in favor 1 Because this Ruling and 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-01688-UNJ Document 59 Filed 04/04/24 Page 2 of 3 of Petitioner. The parties were subsequently notified that I would resolve this dispute via an expedited “Motions Day” hearing, which ultimately took place on February 26, 2024 Petitioner argues she has established a Table claim for a SIRVA pursuant to 11(c)(1)(A)(B)(D)(E) of the Vaccine Act and 42 C.F.R. § 100.3(c)(10). She requests $125,000.00 in compensation for her actual pain and suffering. Respondent disputes that Petitioner has established a Table claim for a SIRVA. Specifically, Respondent argues Petitioner has failed to establish that pain was limited to her left shoulder where she received the flu vaccine pursuant to 42 C.F.R. § 100.3(a)(I)(C), (c)(10). If I find that Petitioner has established a Table case, Respondent recommends an award of $90,000.00. After listening to the arguments of both sides, I issued an oral ruling on entitlement and damages constituting my findings of fact and conclusions of law, pursuant to Section 12(d)(3)(A). 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. And as discussed during my oral ruling, in another recent decision I discussed at length the legal standards to be considered in determining entitlement and damages and prior SIRVA compensation within SPU. I incorporate herein my prior discussion in Sections 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 entitlement and 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 Petitioner has established the SIRVA Table requirements pursuant to 42 C.F.R. § 100.3(a)(XIV)(B) and (c)(10) , as well as the elements for a claim under Section 11(c), i.e., receipt of a covered vaccine, residual effects of injury lasting six months, etc. See generally Section 11(c)(1)(A)(B)(D)(E). I therefore find that Petitioner is entitled to compensation in this case. I also find that $118,000.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering.3 And Petitioner is entitled to $478.69 in actual unreimbursable expenses. 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)). 2 Case 1:20-vv-01688-UNJ Document 59 Filed 04/04/24 Page 3 of 3 Accordingly, I award Petitioner a lump sum payment of $118,478.69 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 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. 3 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01688-cl-extra-10787684 Date issued/filed: 2025-01-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10321096 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1688V JANE ROBINSON, Chief Special Master Corcoran Petitioner, v. Filed: December 26, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Benjamin Patrick Warder , U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On November 25, 2020, Jane Robinson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. On March 4, 2024, I issued a ruling finding Petitioner entitled to compensation and decision awarding damages following briefing and expedited Motions Day argument by the parties. ECF No. 53. 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet . In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $43,439.45 (representing $42,659.80 for fees and $779.65 for costs). Petitioner Application for Attorneys’ Fees, filed Sept. 9, 2024, ECF No. 60. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of- pocket expenses. ECF No. 61. Respondent reacted to the motion on September 19, 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. 62. Petitioner filed no reply. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 2 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. Regarding the time billed, I note this case required additional briefing and argument regarding entitlement and damages. See Petitioner’s Motion for Ruling on the Record Regarding Entitlement and Memorandum in Support of Damages, filed Mar. 9, 2023, ECF No. 48; Petitioner’s Reply to Respondent’s April 20, 2023 Response to Petitioner’s Motion for Ruling on the Record and Damages Brief, filed Apr. 27, 2023, ECF No. 50; Minute Entry, dated Mar. 4, 2024 (for February 26, 2024 expedited hearing). Petitioner’s counsel expended approximately 7.4 hours drafting the brief and 11.0 hours drafting the reply, for a combined total of 18.4 hours. ECF No. 60 at 22. I find this amount of time to be reasonable and will award the attorney’s fees requested. However, a small amount must be reduced for attorney time billed for the review of status reports and other cursory documents prepared by another attorney. ECF No. 60 at 20-21, 24 (entries dated 4/29/22, 1/23/23, 3/5/23, 3/25/23) I note that it is common practice for Conway, Homer, P.C. to have several attorneys assist over the course of a case. In some instances, such as when preparing substantive documents like the petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that document. See, e.g., ECF No. at 12, 21 (entries dated 2/4/21 and 2/2/23). However, it is not reasonable to have an attorney bill for time to review routine filings, such as status reports and motions for enlargement of time, when those filings were prepared (and billed for) by another attorney. This is not the first time I or other special masters have noted this particular issue concerning Conway, Homer, P.C. billing practices. See, e.g., Manetta v. Sec’y of Health & Hum. Servs., No. 18-172V, 2020 WL 7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Hum. Servs., No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr. Oct. 2, 2020). I will not award attorney’s fees for this redundant work. This results in a reduction of $148.50. ATTORNEY COSTS Petitioner has provided supporting documentation for all claimed costs for all but expenses of $15.00 for copying and $28.73 for postage. ECF No. 60 at 25-42. I will nevertheless allow reimbursement of these unsubstantiated costs. And Respondent 3 offered no specific objection to the rates or amounts sought. ECF No. 62. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). I award a total of $43,290.95 (representing $42,511.30 for fees and $779.65 for costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Ronald Craig Homer. 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 filing a joint notice renouncing their right to seek review. 4