VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01766 Package ID: USCOURTS-cofc-1_20-vv-01766 Petitioner: Ellen Decker Filed: 2023-09-22 Decided: 2023-10-24 Vaccine: influenza Vaccination date: 2019-10-28 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 20000 AI-assisted case summary: On September 22, 2023, Ellen Decker filed a petition for compensation under the National Vaccine Injury Compensation Program. She alleged that she suffered a left shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on October 28, 2019. Petitioner further alleged that the vaccine was administered in the United States, that she suffered the residual effects of her injury for more than six months, and that there had been no prior award or settlement of a civil action for damages on her behalf. The respondent denied that petitioner suffered the onset of her alleged SIRVA within the Table timeframe, denied that the flu vaccine caused her alleged shoulder injury or any other injury, and denied that her current disabilities were a sequela of a vaccine-related injury. Despite these denials, the parties filed a joint stipulation on September 21, 2023, agreeing to a settlement. Chief Special Master Brian H. Corcoran adopted the stipulation as the court's decision. Pursuant to the stipulation, Ellen Decker was awarded a lump sum of $20,000.00, payable to Petitioner, as compensation for all damages available under the Vaccine Act. This award represents a settlement of liability and damages. The stipulation also provides for future proceedings to award reasonable attorneys' fees and costs. Petitioner was represented by Leigh Finfer of Muller Brazil, LLP, and the respondent was represented by Mallori Browne Openchowski of the U.S. Department of Justice. Theory of causation field: Petitioner Ellen Decker received an influenza vaccine on October 28, 2019. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) as a consequence of this vaccination. Respondent denied that the SIRVA onset occurred within the Table timeframe, denied that the flu vaccine caused the alleged shoulder injury or any other injury, and denied that her current disabilities were a sequela of a vaccine-related injury. The parties reached a joint stipulation for settlement. Chief Special Master Brian H. Corcoran adopted the stipulation, awarding Petitioner a lump sum of $20,000.00 for all damages under 42 U.S.C. § 300aa-15(a). The stipulation also allows for future proceedings to award reasonable attorneys' fees and costs. Petitioner was represented by Leigh Finfer (Muller Brazil, LLP), and Respondent was represented by Mallori Browne Openchowski (U.S. Department of Justice). The decision date was October 24, 2023. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01766-0 Date issued/filed: 2023-10-24 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 09/22/2023) regarding 44 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01766-UNJ Document 48 Filed 10/24/23 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1766V ELLEN DECKER, Chief Special Master Corcoran Petitioner, Filed: September 22, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 4, 2020, Ellen Decker filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On January 18, 2023, Petitioner filed an amended petition. Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on October 28, 2019. Amended Petition at 1; Stipulation, filed September 21, 2023, at ¶¶ 2-4. Petitioner further alleges the vaccine was administered in the United States, she suffered the residual effects of her injury for more than six months, and there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Amended Petition at ¶¶ 2, 10-12; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner suffered the onset of her alleged SIRVA within the Table timeframe; denies that the flu vaccine caused 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. 2National 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-01766-UNJ Document 48 Filed 10/24/23 Page 2 of 8 petitioner’s alleged shoulder injury or any other injury and further denies that her current disabilities are a sequela of a vaccine-related injury.” Stipulation at ¶ 6. Nevertheless, on September 21, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $20,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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-01766-UNJ Document 48 Filed 10/24/23 Page 3 of 8 Vinesign Document ID: 1833C127-EC63-4EE6-BBDA-5853F483F164 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ELLEN DECKER, Petitioner, No. 20-l 766V Chief Special Master Corcoran v. SPU SECRETARY OF HEAL TH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: I. Petitioner, Ellen Decker, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received a flu vaccine on or about October 28, 2019. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") as a consequence of the flu immunization she received on or about October 28, 2019, and further alleges that she suffered the residual effects of this injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on her behalf as a result of her condition. Page l of 5 The signed document can be validated at https://app.vinesign.comNerlfy Case 1:20-vv-01766-UNJ Document 48 Filed 10/24/23 Page 4 of 8 6. Respondent denies that petitioner suffered the onset of her alleged SIRVA within the Table timeframe; denies that the flu vaccine caused petitioner's alleged shoulder injury or any other injury and further denies that her current disabilities are a sequeJa ofa vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $20,000.00, in the form of a check payable to petitioner, representing compensation for all damages that would be available under 42 U. S.C. § 300aa-15(a). 9. As soon as practicable after the entry ofj udgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U. S.C. § 300aa-2l(a)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. I 0. Petitioner and her attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l 5(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a prepaid basis. Page 2 of 5 Case 1:20-vv-01766-UNJ Document 48 Filed 10/24/23 Page 5 of 8 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors, and assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the United States Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the flu vaccination administered on or about October 28, 2019, as alleged by petitioner in a petition for vaccine compensation filed on or about December 4, 2020 in the United States Court of Federal Claims as petition No. 20-1766V. 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. Page 3 of 5 Case 1:20-vv-01766-UNJ Document 48 Filed 10/24/23 Page 6 of 8 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. J6 . This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged shoulder injury or any other injury or any of her current disabilities. J8 . All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION Page 4 of 5 Case 1:20-vv-01766-UNJ Document 48 Filed 10/24/23 Page 7 of 8 Respectfully submitted, PETITIONER: ELLEN DECKER ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PET OF THE ATTORNEY GENERAL: '-- }( I c\;)<'£.. .. L ~--f_{) ( ~~ LEI HEATHER L. PEARLMAN MULLER BRAZIL LLP Deputy Director 715 Twining Road Torts Branch Suite 107 Civil Division Dresher, PA I 9025 U.S. Department of Justice (215) 885-1655 P. 0. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 AUTHORIZED REPRESENTATIVE OF ATTORNEY OF RECORD FOR THE SECRETARY OF HEALTH AND RESPONDENT: HUMAN SERVICES: 1vlt.i.t.G~\ G Ope,,nc ~.,.),~ • Henry P. --.. -•.-·.. pc by Mcmillan -S3 _..,. ............. . PY 1-:k c~ L ..,..vv'--- CDR GEORGE REED GRIMES, MD, MPH MALLORI B. OPENCHOWSKI Director, Division of Injury Trial Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department ofJ ustice Health Resources and Services P.O. Box 146 Administration Benjamin Franklin Station U.S. Department of Health Washington, D.C. 20044-0146 and Human Services Tel: (202) 305-0660 5600 Fishers Lane, 08N 146B maJlori.b.openchowski@usdoj.gov Rockville, MD 20857 Page 5 of 5 Case 1:20-vv-01766-UNJ Document 48 Filed 10/24/23 Page 8 of 8 Vineslgn ~ Verification Complete lht: l'll offi(1,1lly ve11fitU. Document Status -, Signed & Verified Document Name Stipulation • Ellen Decker Sender Name Muller Bra?il Document Key 1833C127-EC63-4EE6-B8DA-5853F483F 164 Recipient 1 IPAddntss s1snature Ellen Decker 73.117.219.10S ellend37@gmall.com (660) 216-S938 Order 1 Document History ActMty Due&Tlme Recipient ActMty Oeulls 09/19/2023 21:04 UTC Ellen Decker Signed by Ellen Decker (ellend37@gmall.com) llockdlllft llock WfBqq-kXPF?•a7IqGJTnSpt+vZISl78JIEqhC3YipY• Document Completed Document HUii QUMtiiiD 64704F8203C188S61761694957f 882I BF8FAF4289343BBFA04E783A9888A5FB6 Tifflestamp 0911912023 21 :04 \ITC 09/19/202321:00 UTC Ellen Decker Viewed by Ellen Decker Document Viewed 09/19/202321:00 UlC Ellen Decker Viewed by Ellen Decker (eUend37@gmall.com) Document Viewed 09/19/2023 20:42 UTC Ellen Decker Viewed by Ellen Decker Document Viewed 09/19/2023 20:42 UTC Ellen Decker Viewed by Ellen Decker (ellend37@gmail.com) Document Viewed 09/19/2023 20:25 UTC Ellen Decker Viewed by Ellen Decker cellend37@gmall.com) Document Viewed 09/19/2023 18: 17 UTC Ellen Decker Viewed by Ellen Decker (ellend37@gmall.com) Document Vi.-.! 09/19/2023 17:09 UlC Ellen Decker Sent out via email to Ellen Decker (ellend37@gmall.com) Document Sent 09/19/202317:09 UTC Ellen Decker Sent out via text to Ellen Decker ((660) 216-S938) Document Sent I 09/19/2023 17:09 UlC Created by Muller Brazil (medlcalrecords@myvacclnelav,yer.com) Document Created ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01766-cl-extra-10735724 Date issued/filed: 2024-04-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269134 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1766V ELLEN DECKER, Chief Special Master Corcoran Petitioner, v. Filed: March 4, 2024 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 4, 2020, Ellen Decker filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). On January 18, 2023, Petitioner filed an amended petition. Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on October 28, 2019. Amended Petition at 1. On September 22, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 44. 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 $13,120.40 (representing $12,264.90 in fees plus $855.50 in costs). Petitioner’s Final Motion for Attorney Fees and Cost (“Motion”) filed Dec. 4, 2023, ECF No. 49. In accordance with General Order No. 9, counsel for Petitioner states that Petitioner did not personally incur any out-of-pocket expenses in pursuit of this claim. Motion at 2. Respondent reacted to the motion on December 13, 2023, 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, ECF No. 50. Petitioner filed no reply. 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. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion, at 18 - 27. 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 $13,120.40 (representing $12,264.90 in fees plus $855.50 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Leigh Finfer. 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. 2