VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01825 Package ID: USCOURTS-cofc-1_20-vv-01825 Petitioner: Ernesto Cardenas Filed: 2020-12-10 Decided: 2023-09-18 Vaccine: influenza Vaccination date: 2020-01-08 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 22500 AI-assisted case summary: Ernesto Cardenas filed a petition for compensation under the National Vaccine Injury Compensation Program after receiving an influenza vaccine on January 8, 2020. He alleged that he sustained a shoulder injury related to vaccine administration (SIRVA) within the time period set forth in the Vaccine Injury Table and experienced residual effects for more than six months. The respondent denied that Mr. Cardenas sustained a Table injury or that the vaccine caused his alleged shoulder injury. Despite these positions, the parties filed a joint stipulation agreeing to settle the case and award compensation. Chief Special Master Corcoran adopted the stipulation as his decision, awarding Mr. Cardenas a lump sum of $22,500.00 for all items of damages. This amount represents compensation for his SIRVA claim, which is a Table injury. The parties agreed that this stipulation constitutes a full and complete negotiated settlement of liability and damages, and Mr. Cardenas released the United States from further claims related to the vaccination. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01825-0 Date issued/filed: 2023-10-23 Pages: 9 Docket text: PUBLIC DECISION (Originally filed: 09/18/2023) regarding 42 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 1 of 9 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1825V ERNESTO CARDENAS, Chief Special Master Corcoran Petitioner, v. Filed: September 18, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 10, 2020, Ernesto Cardenas 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 8, 2020, Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that he sustained a shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table. He further alleges that he experienced the residual effects of this alleged injury for more than six months. Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that his current condition is a sequela of a vaccine-related injury. 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 (2012). Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 2 of 9 Nevertheless, on September 18, 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 $22,500.00 in the form of a check payable to Petitioner. This amount represents compensation for all items of damages that would be available under Section 15(a). Stipulation at ¶ 8. 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-01825-UNJ Document 46 Filed 10/23/23 Page 3 of 9 Vinesign Document ID: 137E066E-9220-41A8-8D93-D96381C81724 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ERNESTO CARDENAS, Petitioner, No. 20-l 825V Chief Special Master Corcoran V. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Ernesto Cardenas ("petitioner"), 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 an influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a).1 2. Petitioner received a flu vaccine on January 8, 2020. 3. The vaccine was administered within the United States. 4. Petitioner alleges that he sustained a shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table. He further alleges that he experienced the residual effects of this condition for more than six months. 1 On October 4, 2021, petitioner filed an amended petition that corrected the vaccination administration date. No substantive claims were added. 1 The signed document can be validated at https://app.vinesign.comNerify Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 4 of 9 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his alleged injury. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that his current condition is a sequel a of a 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 ofj udgment 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-21(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $22,500.00 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-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)(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 his attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be 2 Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 5 of 9 expected to be made under any 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 by entities that provide health services on a pre-paid basis. l l. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation 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-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity, and on behalf of his heirs, executors, administrators, successors or 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 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 January 8, 2020, as alleged in a petition for vaccine compensation filed on December I 0, 2020, amended on October 3 Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 6 of 9 4, 2021,2 in the United States Court of Federal Claims as petition No. 20-1825V. 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. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the 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 to 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 injury or any other injury or her current disabilities, or that petitioner suffered an injury contained in the Vaccine Injury Table. 2 The petition filed on December 10, 2020, mistakenly alleged that the subject vaccine was administered on January 3, 2020. Petition at 1. On October 4, 2021, petitioner filed an amended petition, correcting the vaccination administration date to properly reflect January 8, 2020. Amended Petition at l; ECF No. 14. 4 Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 7 of 9 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-01825-UNJ Document 46 Filed 10/23/23 Page 8 of 9 Respectfully submitted, PETITIONER: ERNESTO CARDENAS ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF THE ATTORNEY GENERAL: ~ R ~ ~(?e "'-U IV'...__ AMY A. SENERTH HEATHER L. PEARLMAN MULLER BRAZIL Deputy Director 715 Twining Road, Suite 208 Torts Branch Dresher, PA 19025 Civil Division (215) 885-1655 U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THE SECRETARY OF HEAL TH RESPONDENT: AND HUMAN SERVICES: Henry P. DigitallysignedbyHenryP. Mcmillan-53 by Mcmillan -53 ~~'.~~~023.09.oa 16:sa:06 'uu'etf\~ HURLEY CDR GEORGE REED GRIMES, MD, MPH DORIAN Director, Division oflnjury Trial Attorney Compensation Programs Torts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08Nl46B Tel: (202) 353-7751 Rockville, MD 20857 E-mail: Dorian.Hurley@usdoj.gov 'fb f/2025 Dated: 6 Case 1:20-vv-01825-UNJ Document 46 Filed 10/23/23 Page 9 of 9 Vinesign ~ Verification Complete The document has been officially verified Document Status -, Signed & Verified Document Name Stipulation -Cardenas Sender Name Muller Br azi) Document Key 137E066E-922041 A!H!D93-D96381 C81724 Recipient 1 IP Address Signature Ernesto Cardenas 108.147.92.72 e_cardenas9@live.com (773) 799-4531 Order 1 Document History Activity Date&Tlme Recipient Activity Details 09/13/2023 20:15 Ernesto Signed by Ernesto Cardenas ((773) 799-4531) 9 UTC Cardenas Blockchaln Block WTFOy2U2MRF8x1 IOhchFlqGCN991 DldrOsVAvXT 4L0= Document Completed Document Hash @MMIMt- 6EA 13 98FE7CAA37E D4A 12892222 E4729F282A082E688C2364D4401 F3A201 8304 Tlmestamp 09/1312023 20: 15 UTC 0 09/13/2023 20:15 Ernesto Viewed by Ernesto Cardenas ((773) 799-4531) UTC Cardenas Document Viewed 4 09/13/2023 20: 15 Ernesto Sent out via email to Ernesto Cardenas (e_cardenas9@live.com) UTC Cardenas Document Sent 4 09/13/2023 20:15 Ernesto Sent out via text to Ernesto Cardenas ((773) 799-4531) UTC Cardenas Document Sent I 09/13/2023 20:15 Created by Muller Brazil (medicalrecords@myvaccinelav,yer.com) UTC Document Created ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01825-cl-extra-10735364 Date issued/filed: 2024-05-09 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268774 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1825V ERNESTO CARDENAS, Chief Special Master Corcoran Petitioner, v. Filed: March 27, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 10, 2020, Ernesto Cardenas 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 received an influenza vaccine on January 8, 2020, and alleged that he sustained a shoulder injury related to vaccine administration. Petition, ECF No. 1. On September 18, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 42. 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 $15,863.61 (representing $15,273.70 in fees plus $589.91 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Feb. 6, 2024, ECF No. 47. 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 Feb. 20, 2024, reporting 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. 48. Petitioner did not file a reply thereafter. The rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations and will therefore be adopted herein. All time billed to the matter was reasonably incurred and Petitioner has provided supporting documentation for all claimed costs. Motion at 15-20. 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 $15,863.61 (representing $15,273.70 in fees plus $589.91 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Amy A. Senerth. 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 f iling a joint notice renouncing their right to seek review. 2