VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01785 Package ID: USCOURTS-cofc-1_20-vv-01785 Petitioner: Donna Smith Filed: 2020-12-07 Decided: 2023-09-11 Vaccine: influenza Vaccination date: 2019-11-26 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 95485 AI-assisted case summary: Donna Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccination received on November 26, 2019. She further alleged that she experienced residual effects of this injury for more than six months. Respondent denied that the flu vaccine caused her injury or current condition. Despite these denials, the parties reached a joint stipulation for compensation. The court adopted the stipulation as its decision, awarding Donna Smith a lump sum of $95,000.00 for all damages available under the Vaccine Act. Additionally, $485.22 was awarded to reimburse a Medicaid lien for services rendered to her. The case proceeded as a Table claim, as SIRVA is listed on the Vaccine Injury Table. The stipulation represents a full and complete negotiated settlement of liability and damages, releasing the United States from further claims related to this vaccination. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01785-0 Date issued/filed: 2023-09-11 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 08/10/2023) regarding 44 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 1 of 8 Corrected In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1785V DONNA SMITH, Chief Special Master Corcoran Petitioner, Filed: August 10, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 7, 2020, Donna Smith 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”) as a result of an influenza vaccination she received on November 26, 2019. Petition at 1; Stipulation, filed at August 8, 2023, ¶¶ 2, 4. Petitioner further alleges that she has suffered the residual effects of her SIRVA injury for more than six months. Stipulation at ¶ 4. “Respondent denies that “Petitioner suffered from left shoulder injury as a result of the flu vaccine, and denies that the flu vaccine caused her any other injury or her current condition.” Stipulation at ¶ 6. Nevertheless, on August 8, 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. 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-01785-UNJ Document 48 Filed 09/11/23 Page 2 of 8 Pursuant to the terms stated in the attached Stipulation, I award the following compensation: • A lump sum of $95,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8(A). • A lump sum of $485.22 in the form of a check payable jointly to Petitioner and the New York State Department of Health,3 New York State Department of Health, P.O. Box 415874, Boston, MA 02241-5874, Case ID 198658, representing reimbursement of a Medicaid lien for services rendered to Petitioner. Stipulation at ¶ 8(B). • These amounts represent compensation for all items of damages that would be available under Section 15(a). 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 After the Stipulation was filed, Petitioner confirmed that the check to satisfy Petitioner’s Medicaid lien should be payable jointly to Petitioner and the New York Department of Health, rather than the New York State Treasurer as stated in the Stipulation. Petitioner requested that this Decision reflect the corrected payee and Respondent’s counsel did not object to the change. 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 Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 3 of 8 IN THE UNITED ST ATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) DONNA SMITH, ) ) Petitioner, ) ) No. 20-1785V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEAL TH AND HUMAN ) SERVICES, ) ) ______ Re _ sp _ ond _ en _ t. _______) ) STIPULATION The parties hereby stipulate to the following matters: 1. Donna Smith ("petitioner") filed a 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 is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a). 2. Petitioner received the flu vaccine on or about November 26, 2019. 3. The vaccine was administered in the United States. 4. Petitioner alleges that she suffered a left shoulder injury related to vaccine administration ("SIRVA") as a result of receiving the flu vaccine. Petitioner further alleges that she experienced 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 as a result of her alleged condition. 6. Respondent denies that petitioner suffered from left shoulder injury as a result of the flu vaccine, and denies that the flu vaccine caused her any other injury or her current condition. Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 4 of 8 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-2 l (a)(l ), the Secretary of Health and Human Services will issue the following vaccine compensation payments: A. A lump sum of $95,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-l 5(a). B. A lump sum of $485.22, 1 representing reimbursement of a Medicaid lien for services rendered to petitioner by the State of New York, in the form of a check payable jointly to petitioner and the New York State Treasurer: New York State Department of Health P. 0. Box 415874 Boston, MA 02241-5874 Case ID: 198658 Petitioner agrees to endorse this check to the New York State Treasurer. These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry of judgment 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)(I), and an application, the parties will submit to further proceedings 1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action that the State of New York may have against any individual as a result of any Medicaid payments that the State of New York has made to or on behalf of Donna Smith as a result of her alleged vaccine-related injury suffered on or about October 16, 2019, under Title XIX of the Social Security Act, see 42 U.S.C. § 300aa-15(g), (h). 2 Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 5 of 8 before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. 10. 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-15(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. 11. Payments 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 attorneys' fees and litigation costs, and past unreimbursed 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-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-I 5(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-l 0 et seq., on account of, or in any way growing out 3 Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 6 of 8 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 November 26, 2019, as alleged by petitioner in a petition for vaccine compensation filed on or about December 7, 2020, in the United States Court of Federal Claims as petition No. 20- l 785V. 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. 15. lfthe 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. 16. 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 left shoulder injury, any other injury, or her current condition. 4 Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 7 of 8 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION 5 Case 1:20-vv-01785-UNJ Document 48 Filed 09/11/23 Page 8 of 8 Respectfully submitted, PETITIONER: ,,-£SL cJ!Mffl],F,M:C...1.x:.T=H;;:::,.,_ _ _ _ _ ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITION ER: OF THE ATTORNEY GENERAL: ~71~ 1,, J/dtl,{__ "'1-, D~. ~~ ~ RONALD C. HOMER ~ell 4, 3 . I ( c.)(z.) HEATHER L. PEARLMAN Conway Homer, P.C. C. Deputy Director 16 Shawmut Street Torts Branch Boston, MA 021 16 Civil Division Tel: (617) 695-1990 U.S. Department of Justice Email: pkelly@ccandh.com P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRET ARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Digitally signed by George R. Grimes -S 14 Grimes -514 Date: 2023.07.18 16:32:50 -04'00' CDR GEORGE REED GRIMES, MD, MPH Director, Division ofrnjury Trial Attorn y Compensation Programs Torts Branch, Civi Division Health Systems Bureau U.S. Department of Justice Health Resources and Services P.O. Box 146 Administration Ben Franklin Station U.S. Department of Health Washington, DC 20044-0146 and Human Services Tel: (202) 451-7479 5600 Fishers Lane, 08N l 468 Email: Austin.J.Egan@usdoj.gov Rockville, MD 20857 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01785-cl-extra-10735079 Date issued/filed: 2024-06-07 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268489 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1785V DONNA SMITH, Chief Special Master Corcoran Petitioner, v. Filed: May 8, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 7, 2020, Donna Smith 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 she suffered a shoulder injury related to vaccine administration as a result of an influenza vaccination she received on November 26, 2019. Petition at 1. On August 10, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 44. 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 $28,402.91 (representing $27,628.60 in fees plus $774.31 in costs). Application for Attorneys’ Fees filed Jan. 26, 2024, ECF No. 49. Petitioner filed a signed statement representing that Petitioner incurred $17.55 in out-of-pocket expenses. ECF No. 50. Respondent reacted to the motion on Feb. 13, 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, ECF No. 51. 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 to successful claimants. 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 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 2 461 U.S. at 434. ATTORNEY FEES The rates requested for work performed through the end of 2023 are reasonable and consistent with prior determinations and will therefore be adopted. However, the attorney’s fees must be reduced for redundant time billed for the review of status reports, correspondence cover letters, and other cursory documents prepared by another attorney. ECF No. 49 (entries dated 3/19/21; 10/18/22; 1/3/23; 2/2/23; 4/5/23; 8/24/23). 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. 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 in the amount of fees to be awarded of $250.00. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion at 30-52. 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). Accordingly, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded the total amount of $28,170.46 3 as follows: 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as f ees f or legal services rendered. Furthermore, Section 15(e)(3) prevents an attorney f rom charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 3 • A lump sum of $28,152.91 (representing $27,378.60 in fees plus $774.31 in costs), in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Ronald Craig Homer; and • A lump sum of $17.55, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner. 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. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 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. 4