VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01704 Package ID: USCOURTS-cofc-1_20-vv-01704 Petitioner: Stephen Vaccaro Filed: 2020-11-30 Decided: 2024-04-26 Vaccine: influenza Vaccination date: 2019-09-22 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 43275 AI-assisted case summary: Stephen Vaccaro filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 22, 2019. He claimed this condition was listed on the Vaccine Injury Table. The respondent, the Secretary of Health and Human Services, contested that Mr. Vaccaro met all the Table requirements, specifically disputing the onset of pain within 48 hours of vaccination. Mr. Vaccaro sought $52,000 for pain and suffering, while the respondent recommended $35,000 if entitlement were found. The case was decided via an expedited hearing on April 26, 2024. Chief Special Master Corcoran found that Mr. Vaccaro had established a Table SIRVA claim, including the timely onset of pain and other required elements, as well as residual effects lasting at least six months. Consequently, entitlement was granted. The court awarded Mr. Vaccaro a total of $43,275, comprising $43,000 for actual pain and suffering and $274.67 for unreimbursable past medical expenses, which were stipulated by the parties. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01704-0 Date issued/filed: 2024-05-28 Pages: 3 Docket text: PUBLIC ORDER/RULING AND DAMAGES (Originally filed: 04/26/2024) regarding 53 Ruling on Entitlement, DECISION of Special Master, Order on Motion for Ruling on the Record ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01704-UNJ Document 59 Filed 05/28/24 Page 1 of 3 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1704V STEPHEN VACCARO, Chief Special Master Corcoran Petitioner, v. Filed: April 26, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Michael Joseph Lang, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1 On November 30, 2020, Stephen Vaccaro 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 after receipt of an influenza (“flu”) vaccine on September 22, 2019, he suffered a shoulder injury related to vaccine administration (“SIRVA”), corresponding to a listing on the Vaccine Injury Table (the “Table”). Petition at 1; see also 42 C.F.R. §§ 100.3(a), (c)(10). 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 SIRVA claim, and in the event that 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-01704-UNJ Document 59 Filed 05/28/24 Page 2 of 3 I resolved entitlement in Petitioner’s favor, setting forth their respective arguments on damages. The parties were subsequently notified that I would resolve this dispute via an expedited “Motions Day” hearing, which ultimately took place on April 26, 2024. Petitioner argues that he has established a Table SIRVA, which resulted in actual pain and suffering warranting an award of $52,000.00. ECF Nos. 38, 41, 46. Respondent disputes that one Table element has been met, specifically, that Petitioner has failed to establish that he suffered the onset of pain within 48 hours of vaccination as required by C.F.R. §§ 100.3(a)(XIV)(B), 100.3(c)(10)(ii). ECF No. 40. Otherwise, if I find that Petitioner has established a Table SIRVA, Respondent recommends an award of $35,000.00. ECF No. 48. 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. 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 V - VII of Crawford v. Sec'y of Health & Hum. Servs., No. 19-0544V, 2024 WL 1045147, at *12-22 (Fed. Cl. Feb. 5, 2024) 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 resolution of this matter. 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 that he suffered the onset of pain within 48 hours of her vaccination, and that all other SIRVA Table requirements pursuant to 42 C.F.R. §§ 100.3(a)(XIV)(B), 100.3(c)(10) were satisfied. Additionally, Petitioner has established the additional requirements of Section 11(c), i.e., receipt of a covered vaccine, residual effects of injury lasting six months, etc. See generally § 11(c)(1)(A)(B)(D)(E). I therefore find that Petitioner is entitled to compensation in this case, and that $43,000.00 represents a fair and appropriate amount of damages for Petitioner’s actual pain and suffering.3 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-01704-UNJ Document 59 Filed 05/28/24 Page 3 of 3 Accordingly, I award Petitioner a lump sum payment of $43,274.67 (representing $43,000.00 for actual pain and suffering, and $274.67 for unreimbursable past medical expenses)4 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.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 The parties stipulated to the expenses. ECF No. 46 at 9; ECF No. 48 at n. 2. 5 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-01704-cl-extra-10813645 Date issued/filed: 2025-02-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10347057 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1704V STEPHEN VACCARO, Chief Special Master Corcoran Petitioner, v. Filed: January 27, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Michael Joseph Lang, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On November 30, 2020, Stephen Vaccaro 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 after receipt of an influenza vaccine on September 22, 2019, he suffered a shoulder injury related to vaccine administration (“SIRVA”), corresponding to a listing on the Vaccine Injury Table. Petition at 1. On April 26, 2024, I issued a ruling finding Petitioner entitled to compensation and 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 following briefing and expedited Motions Day argument by the parties. ECF No. 53. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $43,844.43 (representing $43,278.40 for attorney’s fees, $558.28 for attorney’s costs, and $7.75 for Petitioner’s out-of-pocket litigation costs). Petitioner Application for Attorneys’ Fees, filed Dec. 17, 2024, ECF No. 61. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred $7.75 in out-of-pocket expenses. ECF No. 62. Respondent reacted to the motion on December 17, 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. 63. 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. 2 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 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, filed Apr. 26, 2023, ECF No. 38; Minute Entry, dated Apr. 26, 2024 (for April 26, 2024 expedited hearing). Petitioner’s counsel expended approximately 8.6 hours drafting the motion and 4.4 hours reviewing Respondent’s response. ECF No. 61 at 22-23. 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. 61 at 16, 20, 23-26 (entries dated 8/20/21, 12/12/22, 8/16/23, 9/28/23, 3/11/24, 4/29/24, and 5/17/24) 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. id. at 18, 23 (entries dated 3/30/22 and 6/28/23). 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 $295.00. 3 ATTORNEY AND PETITIONER COSTS Petitioner has provided supporting documentation for all claimed costs for all but expenses of $12.00 for copying and $20.56 for postage. ECF No. ECF No. 61 at 28-41. I will nevertheless allow reimbursement of these unsubstantiated costs. Additionally, Petitioner has provided documentation for the $7.75 out-of-pocket litigation costs that he seeks. Id. at 42-43. And Respondent offered no specific objection to the rates or amounts sought. 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 $43,549.43 (representing $42,983.40 for attorney’s fees, $558.28 for attorney’s costs, and $7.75 for Petitioner’s out-of-pocket litigation costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. 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