VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01874 Package ID: USCOURTS-cofc-1_20-vv-01874 Petitioner: Bria Barry Filed: 2020-12-16 Decided: 2023-07-25 Vaccine: influenza Vaccination date: 2018-10-26 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 115444 AI-assisted case summary: Bria Barry, a 41-year-old woman, filed a petition for compensation under the National Vaccine Injury Compensation Program on December 16, 2020. She alleged that she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) resulting from an influenza vaccine administered on October 26, 2018. Ms. Barry stated that the vaccination occurred in the United States, that she experienced residual effects of her injury for more than six months, and that no related lawsuits had been filed. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on July 25, 2022, conceding that Ms. Barry was entitled to compensation as she met the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation for SIRVA. A ruling on entitlement was issued on July 28, 2022, by Chief Special Master Brian H. Corcoran, finding Ms. Barry entitled to compensation. The parties were unable to agree on damages, leading to a decision on damages. Ms. Barry's medical history indicated that approximately eight weeks after vaccination, on December 18, 2018, she presented to orthopedist Dr. Garrett Lynch with left shoulder pain, rating it 5/10. She reported the pain began on the day of vaccination. She received two cortisone injections, was prescribed ibuprofen, and referred for an MRI and physical therapy. An MRI revealed tendinopathy of the rotator cuff tendons and edema in the deltoid muscle, possibly related to injections. Ms. Barry underwent physical therapy from December 2018 to January 2019. She returned to Dr. Lynch on January 11, 2019, reporting some relief from cortisone injections but that they were wearing off, and received two more injections. On February 1, 2019, she reported continued pain, and surgery was discussed. She sought a second opinion from Dr. Cyrus Lashgari on February 25, 2019, who noted a partial rotator cuff tear. Ms. Barry elected to continue conservative treatment. She returned to Dr. Lynch on February 28, 2019, and scheduled surgery. On March 25, 2019, she underwent arthroscopic surgery including distal clavicle excision, rotator cuff debridement, SLAP lesion debridement, and subacromial decompression. Post-operative diagnoses included a partial rotator cuff tear, chronic impingement syndrome, chronic AC joint pain, and a partial tear of the biceps tendon. She underwent a second round of physical therapy from March to June 2019. Her pain levels varied post-surgery, managed with medication. By July 1, 2019, her pain was rated 0/10, and by August 20, 2019, it was occasional dull pain rated 1/10. She experienced a slip and fall on October 9, 2019, but her shoulder exam the next day was normal. In the decision awarding damages, issued on July 25, 2023, Chief Special Master Corcoran awarded Ms. Barry $113,000.00 for pain and suffering and $2,444.81 for past unreimbursable expenses, totaling $115,444.81. The decision considered the severity and duration of her pain, her inability to care for her young children, and compared her case to other SIRVA awards involving surgery, finding the case of Issertell to be the most comparable. Petitioner counsel was Ronald Craig Homer. Respondent counsel was Rachelle Bishop. Chief Special Master Brian H. Corcoran issued the rulings. Theory of causation field: Petitioner Bria Barry, age 41, received an influenza vaccine on October 26, 2018. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA). Respondent conceded entitlement, finding Petitioner met the criteria on the Vaccine Injury Table. Medical records documented left shoulder pain beginning approximately eight weeks post-vaccination, leading to physical therapy, cortisone injections, and arthroscopic shoulder surgery. The parties could not agree on damages. Chief Special Master Brian H. Corcoran issued a decision awarding Petitioner $113,000.00 for pain and suffering and $2,444.81 for past unreimbursable expenses, totaling $115,444.81. The award was based on the severity and duration of her pain, the impact on her ability to care for her children, and comparison to SIRVA cases involving surgery, particularly Issertell v. Sec’y of HHS. Petitioner counsel was Ronald Craig Homer, and Respondent counsel was Rachelle Bishop. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01874-0 Date issued/filed: 2022-08-29 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/28/2022) regarding 26 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01874-UNJ Document 29 Filed 08/29/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1874V UNPUBLISHED BRIA BARRY, Chief Special Master Corcoran Petitioner, Filed: July 28, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 16, 2020, Bria Barry 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 suffered a shoulder injury related to vaccine administration (SIRVA) resulting from the administration of an influenza (flu) vaccination on October 26, 2018. Amended Petition at 1. Petitioner further alleges that the vaccination was administered within the United States, she suffered the residual effects of her injury for more than six months, and no lawsuits have been filed or settlements or awards accepted by anyone, including Petitioner, due to her vaccine-related injury. Id. at 1, 12- 13. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Ruling 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-01874-UNJ Document 29 Filed 08/29/22 Page 2 of 2 On July 25, 2022, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent determined that “[P]etitioner has satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation for SIRVA.” Id. at 6. Respondent further agrees that “the records show that [P]etitioner timely filed her case, that she received the flu vaccine in the United States, and that she satisfies the statutory severity requirement by suffering the residual effects or complications of her injury for more than six months after vaccine administration.” Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01874-1 Date issued/filed: 2023-07-25 Pages: 9 Docket text: PUBLIC DECISION (Originally filed: 06/23/2023) regarding 39 DECISION of Special Master, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 1 of 9 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1874V UNPUBLISHED BRIA BARRY, Chief Special Master Corcoran Petitioner, Filed: June 23, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Decision Awarding Damages; Pain HUMAN SERVICES, and Suffering; Influenza (Flu) Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA) Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 16, 2020, Bria Barry filed a petition2 for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from the administration of an influenza (flu) vaccine on October 26, 2018. Amended Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. Although Respondent conceded entitlement, the parties could not agree to damages, and so the matter was submitted to a “Motions Day” proceeding. For the 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 Petitioner filed an amended petition on February 23, 2021. ECF No. 12. 3 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-01874-UNJ Document 43 Filed 07/25/23 Page 2 of 9 reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount of $115,444.81 reflecting $113,000.00 for her actual pain and suffering plus $2,444.81 for her past unreimbursable expenses. I. Relevant Procedural History Nearly two years after this case was initiated, Respondent filed his Rule 4(c) Report conceding that Petitioner was entitled to compensation. ECF No. 25. A ruling on entitlement was subsequently issued on July 28, 2022. ECF No. 26. The parties thereafter attempted to informally resolve damages but were unsuccessful, and Petitioner filed a brief to substantiate her damages request. ECF No. 30, 31 (“Br.). Respondent reacted with a brief of his own, and then Petitioner filed her reply. ECF Nos. 32 (“Opp.”), and 35 (“Resp.”). The parties agreed to argue their positions at a motions hearing, at which time I would decide the disputed damages issues. ECF. No. 37. (They agreed on the unreimbursed expenses at issue, and therefore I adopt that sum herein). That hearing was held on May 26, 2023,4 and the case is now ripe for a determination. II. Relevant Medical History A complete recitation of the facts can be found in the Petition, the Rule 4(c) Report, and in the parties’ respective pre-hearing briefs. In summary, at the time of vaccination Ms. Barry was a 41-year-old employed mother of two toddler children, with a non-contributory medical history. Exhibit (Ex.) 1 at 1; Ex. 4 at 156; Ex. 19 at 5. She received the flu vaccine in her left deltoid on October 26, 2018. Ex. 1 at 1. On December 18, 2018, almost eight weeks after vaccination, Ms. Barry presented to an orthopedist, Dr. Garrett Lynch, with complaints of left shoulder pain. Ex. 11 at 1. She reported that her pain started on October 26, 2018, “after she got her flu shot,” and that “symptoms occur constantly” and “[t]he problem is worse.” Id. At this visit, Petitioner rated her pain at 5/10. Id. Petitioner received two cortisone injections at this visit, one in the subacromial space and one in the glenohumeral joint. Id. at 4. Petitioner was diagnosed with impingement syndrome of the left shoulder, prescribed 800 milligrams of ibuprofen, and referred for an MRI and formal physical therapy (PT). Id. Also on December 18, 2018, Ms. Barry underwent an x-ray and MRI of her left shoulder. The MRI revealed: “1. Mild AC joint hypertrophy and edema in the distal clavicle probably chronic. 2. Rotator cuff shows tendinopathy supraspinatus infraspinatus tendons 4 At the end of the hearing held on May 26, 2023, I issued an oral ruling from the bench on damages in this case. That ruling is set forth fully in the transcript from the hearing. The transcript from the hearing is fully incorporated into this Decision. 2 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 3 of 9 but no evidence of rotator cuff tear. Muscle edema within the anterior and posterior aspects the deltoid as well as some fluid in the subdeltoid bursa and may be related to previous injections. 4. Small amount of marrow edema noted at the teres minor insertion site along the humerus which may be related to previous injection as well.” Ex. 11 at 55. The x-ray was unremarkable. Id. at 54. On December 20, 2018, Ms. Barry received an initial PT evaluation and plan of care. Ex. 15 at 15. On evaluation, Petitioner displayed limited range of motion (ROM) and reported pain at 6/10 with certain activities of daily living (ADLs). Petitioner attended a total of seven (7) visits through January 29, 2019, during the first round of PT. On January 11, 2019, Ms. Barry returned to Dr. Lynch, reporting that the cortisone injections provide some relief, but were wearing off. Ex. 11 at 6. At this visit, Petitioner rated her pain at 3/10. Id. Petitioner received two additional cortisone injections at this visit, one in the subacromial space and one in the bicep tendon sheath. Id. at 9. On February 1, 2019, Ms. Barry returned to Dr. Lynch reporting continued left shoulder pain, consistently rated at 3-6/10 depending on the activity. Id. at 11. The possibility of surgery was discussed, but Dr. Lynch noted that Ms. Barry had two small children and was not sure when she would be able to proceed with surgery. Id. No steroid injections were given at this visit. See id. On February 25, 2019, Ms. Barry presented to Dr. Cyrus Lashgari for a second opinion, rating her pain at 2/10 at this visit. Ex. 8 at 14. Dr. Lashgari noted a partial rotator cuff tear. Id. Petitioner elected to continue conservative treatment, including PT using anti-inflammatory medication. Id. at 15. Ms. Barry returned to Dr. Lynch on February 28, 2019, and scheduled her shoulder surgery. Ex. 11 at 20. On March 25, 2019, Petitioner underwent (1) left arthroscopic distal clavicle excision; (2) extensive arthroscopic debridement, large undersurface partial- thickness tear rotator cuff supraspinatus tendon; (3) limited arthroscopic debridement, type 1 SLAP lesion; and (4) arthroscopic subacromial decompression (arthroscopic acromioplasty) with coracoacromial ligament release using electrocautery. Id. at 70. Petitioner’s post-operative diagnoses were: (1) Partial tear rotator cuff middle and anterior 1/3 supraspinatus tendon estimated to be torn approximately 50% (primarily an articular sided tear.); (2) Chronic impingement syndrome with a large subacromial spur and marked fraying of the coracoacromial ligament.; (3) Chronic left AC joint pain.; (4) Partial tear of biceps tendon, 25% torn near its insertion, stable biceps anchor. Id. Ms. Barry had a post-operative PT evaluation on March 27, 2019, and PT services were recommended for her to return to premorbid functional. Ex. 19 at 5-6. She attended 3 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 4 of 9 a total of 17 PT sessions during the second round of therapy through June 26, 2019. Id. at 22. Ms. Barry had a one-week post-operative visit with Dr. Lynch on April 1, 2019. Ex. 11 at 28. Petitioner reported that she was doing well overall, but rated her pain at 6/10 (noting pain when reaching and at night) managed with naproxen and Percocet. Id. Follow-up was recommended in three to four weeks. Id. at 32. Ms. Barry returned to Dr. Lynch on May 6, 2019, rating her pain at 2-4/10, and indicating that she was still taking non-steroidal anti-inflammatories (NSAIDs) for pain. Ex. 11 at 34, 37-38. On July 1, 2019, Ms. Barry rated her current pain at 0/10, and reported that she was doing very well, and that her maximum pain was rare, rated at 1/10. Id. at 39. Petitioner’s ROM was noted to be normal, but still with decreased strength. By August 20, 2019, Petitioner’s symptoms were still occasional with dull pain rated at 1/10, and relieved by PT. Id. Ms. Barry subsequently had a slip and fall on October 9, 2019. Id. at 48. Despite this fall, Petitioner’s left shoulder exam the following day was normal. Id. III. Legal Standard Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment award such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no mathematic formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional distress are inherently subjective and cannot be determined by using a mathematical formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is inherently a subjective evaluation”). Factors to be considered when determining an award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). 4 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 5 of 9 I may also consider prior pain and suffering awards to aid my resolution of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”). And, of course, I may rely on my own experience (along with my predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters would use their accumulated expertise in the field of vaccine injuries to judge the merits of individual claims). Although pain and suffering in the past was often determined based on a continuum, as Respondent argues, that practice was cast into doubt by the Court several years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579, 489-90 (2013). In Graves, Judge Merrow rejected a special master’s approach of awarding compensation for pain and suffering based on a spectrum from $0.00 to the statutory $250,000.00 cap. Judge Merrow maintained that to do so resulted in “the forcing of all suffering awards into a global comparative scale in which the individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 590. Instead, Judge Merrow assessed pain and suffering by looking to the record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible awards as falling within a spectrum that ends at the cap. IV. Appropriate Compensation for Petitioner’s Pain and Suffering In this case, Petitioner’s awareness of her injury is not disputed, leaving only its severity and duration to be considered. In determining appropriate compensation for Petitioner’s pain and suffering, I have carefully reviewed and considered the complete record in this case. I have also considered prior awards for pain and suffering in both SPU and non-SPU SIRVA cases, and relied upon my experience adjudicating such cases.6 My 5 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the majority of SPU cases were reassigned to me as the current Chief Special Master. 6 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood v. Sec’y of Health & Hum. Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29, 2020). 5 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 6 of 9 determination, however, is ultimately based upon the specific circumstances of this case. Ms. Barry requests $125,000.00 for her past pain and suffering. Br. at 26. She asserts that she has “endured considerable pain and suffering as a result of her SIRVA and subsequent medical treatment.” Br. at 16. In all, formal medical treatment for her SIRVA lasted ten months, and included 24 PT sessions, four cortisone injections administered on two occasions, an arthroscopic shoulder surgery five months post- vaccination. Id. at 20-23. Ms. Barry detailed how her SIRVA impacted her ability to care for her then one- and three-year-old children, including loss of quality time, not being able to hold her one year old, not being able to lift them in and out of car seats or cribs, and not being able to bathe or diaper them. Id. at 24-25. Ms. Barry also detailed her struggles with fertility and IVF treatments, highlighting how important her children and family are to her. Id. at 20, n. 6. In response, Respondent recommends a pain and suffering award of no more than $87,500.00. Opp. at 14. Petitioner’s delay in seeking treatment, mild to moderate self- reported pain ratings, mild deficits of physical exams, and clinical course less than 10 months, all support a moderate award. Id. at 8. Respondent argues that Petitioner’s voluntary delay suggests that her pain was not significant enough to prompt sooner treatment. Id. Respondent also asserts that Petitioner often reported mild pain levels and never reported pain at more than 6/10, she often had full ROM, experienced relief on the two occasions she had cortisone injections, and did not take prescription pain medication until after surgery. Id. at 9. Respondent noted that Petitioner quickly decided, after four months, to have surgery, and the surgery provided substantial and long-term relief. Id. at 9-10. Pursuant to my oral ruling on May 26, 2023 (which is fully adopted herein), I find that $113,000.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering. As a general matter, an award of at least $100,000.00 is not automatically appropriate in all cases where arthroscopic surgery is involved. To the contrary, other facts specific to a case can justify a lower pain and suffering award. Shelton v. Sec’y of HHS, No. 19-1556V, 2022 WL 2196412 (Fed. Cl. Spec. Mstr. May 6, 2022), at *1, 9. Hunt v. Sec'y of HHS, No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022), at *1, 10. However, the fact that a petitioner must undergo arthroscopic surgery to alleviate her symptoms inherently suggests a greater level of pain and suffering, and/or more intrusive treatment. In addition, Program goals are generally served by creation of a few foundational rubrics that can be considered when faced with pain and suffering disputes – a common disagreement that too often obstructs the speedy resolution of SIRVA cases. Thus, it is not unreasonable to apply a baseline six-figure “yardstick” to 6 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 7 of 9 SIRVA pain and suffering demands in cases involving surgery (although one that can be rebutted) – and for those reasons, the best comparables under the circumstances are cases involving surgery. While no one specific case is completely analogous to the circumstances herein, the cases cited by both Petitioner and Respondent are all instructive. Ms. Barry looks to comparative guidance for similar SIRVA cases including Issertell, Hall, and Moore.7 Br. at 20-21. In particular, Petitioner points to Issertell (in which $112,500.00 was awarded) as an appropriate benchmark on which to compare her case. Id. Ms. Issertell had an arthroscopic shoulder surgery and her treatment course included one cortisone injection, a total of 32 therapeutic visits (14 PT sessions, 12 chiropractic visits, and 6 acupuncture visits), an MRI and her injury was approximately ten months. Issertell, 2022 WL 2288247, at *7. Ms. Barry argues, however, that her objective treatment course was more severe than Ms. Issertell’s, which supports a pain and suffering award higher than what Ms. Issertell received. Br. at 23. Ms. Barry also considered Hall and Moore to provide appropriate guidance in this case. See Br. at 20-21, n. 7. In Hall (in which $110,000.00 was awarded), that petitioner had an arthroscopic surgery and her treatment course included one cortisone injection, 18 PT sessions, one MRI, and approximately seven months of aggressive medical care. Hall, 2022 WL 2196412, at *3. In Moore (in which $115,000.00 was awarded), that petitioner had an arthroscopic surgery, and her treatment course included one cortisone injection, 30 PT sessions, one MRI, and 15 months of documented treatment. Moore, 2022 WL 962524, at *2-3. Respondent asserts that Issertell, Hall, Moore are distinguishable from Ms. Barry’s case and do not support Petitioner’s requested damages award. Opp. at 9. The claimants in those cases sought treatment much sooner than Ms. Barry (less than two weeks), and had a more severe or a longer treatment course than Ms. Barry. Id. at 10-12. Instead, Respondent argues that cases like Hunt and Shelton are more analogous to this case, and further, that this case warrants an award below the lowest value surgical cases to date.8 Opp. at 13. While Ms. Barry had “a few more PT sessions and one 7 Issertell v. Sec’y of HHS, No. 20-0099V, 2022 WL 2288247 (Fed. Cl. Spec. Mstr. May 6, 2022) (awarding $112,500.00 for past pain and suffering); Hall v. Sec’y of HHS, No. 19-1556V, 2022 WL 2196412 (Fed. Cl. Spec. Mstr. May 6, 2022) (awarding $110,000.00 for past pain and suffering). Moore v. Sec'y of HHS, No. 19-1805V, 2022 WL 962524 (Fed. Cl. Spec. Mstr. Feb. 25, 2022) (awarding $115,000.00 for past pain and suffering) 8 Shelton v. Sec’y of HHS, No. 19-1556V, 2022 WL 2196412 (Fed. Cl. Spec. Mstr. May 6, 2022) (awarding $97,500.00 for past pain and suffering); Hunt v. Sec'y of HHS, No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022) (awarding $95,000.00 for past pain and suffering). Respondent’s counsel also 7 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 8 of 9 additional steroid injection,” the petitioner in Hunt had more immediate unmanageable pain, she presented for care within three weeks, she had greater tenderness, reduced ROM, and strength deficits, more significant initial pain levels, pre-operative steroid prescription medication, and a longer duration; thus, Ms. Barry’s pain and suffering award should be lower than the Hunt petitioner. Id. Similarly, Respondent asserts that Ms. Barry’s pain and suffering award should be lower than the petitioner in Shelton, because the Shelton petitioner’s pain levels were higher, she endured more months of pain and suffering before surgery, and her surgery was more extensive. Id. at 13-14. Although a surgical case, Shelton involves a unique set of facts and circumstances, including an initial delay of five months before any complaint of pain and an additional three-month delay before further treatment was pursued. Shelton, 2021 WL 2550093, at *7. Here, Ms. Barry explained that she asked around to family members if their shot has been particularly painful, and delayed treatment out of uncertainty as to the seriousness of her situation, but eventually relented as her pain was became more intense rather than going away. Br. at 16; Ex. 20 at 3. And although not documented in the record, Ms. Barry provides a very detailed and credible account of reporting her pain to a pharmacy employee who was “very dismissive.” Ex. 20 at 3-4. Thus, while I take Petitioner’s treatment delay into account, it is distinguishable from the five-month delay in Shelton. Hunt was also a SIRVA case featuring surgery which resulted in pain and suffering close to, but not in excess of $100,000.00. But that petitioner’s SIRVA was described as mild to moderate for the initial six weeks after vaccination, and mild thereafter. Hunt, 2022 WL 2826662, at *9. The Hunt petitioner had surgery approximately six months post- vaccination, was noted to have “benefited from significant reduction in her pain following each cortisone injection . . . resulting in periods of little-to-no pain during the course of her injury . . . .” and returned to baseline approximately fourteen months after vaccination. Id. at *8-9. The Hunt petitioner also responded very well to the corticosteroid injections, had periods of little-to-no pain, and her mostly mild treatment course only lasted about fourteen months. Thus, Hunt is also unique and distinguishable. Overall, this case presents a moderate-severe SIRVA involving surgery. The Issertell case is the one I deem most comparable. Ms. Barry consistently experienced a moderate amount pain for the duration of her injury (rated between 3-6/10), experienced limited ROM, she attended 24 PT sessions, had four cortisone injections administered on two occasions which provided some temporary relief, an arthroscopic shoulder surgery five months post-vaccination after failing conservative treatment, and her treatment course was ten months. Although there was a minor delay in seeking treatment, Ms. Barry referenced Martin v. Sec’y of HHS, No. 19-830V, 2021 WL 2350004 (Fed. Cl. Spec. Mstr. May 5, 2021) however, this case was not included in Respondent’s brief. 8 Case 1:20-vv-01874-UNJ Document 43 Filed 07/25/23 Page 9 of 9 also experienced an emotional component – being unable to provide certain care for her toddler children – which adds some value to her claim, slightly above the petitioner in Issertell. Conclusion For all of the reasons discussed above, and based on consideration of the record as a whole, I find that $113,000.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering.9 I also find that Petitioner is entitled to $2,444.81 in actual past unreimbursable expenses. Accordingly, I award Petitioner a lump sum payment of $115,444.81 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 the Court is directed to enter judgment in accordance with this Decision.10 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 9 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See § 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)). 10 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. 9 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01874-cl-extra-10735955 Date issued/filed: 2024-03-12 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269365 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1874V BRIA BARRY, Chief Special Master Corcoran Petitioner, v. Filed: February 9, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On December 16, 2020, Bria Barry filed a petition2 for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from the administration of an influenza (flu) vaccine on October 26, 2018. Amended Petition at 1. On June 23, 2023, I issued a decision awarding 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 Petitioner filed an amended petition on February 23, 2021. ECF No. 12. 3 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 to Petitioner, following briefing by the parties and expedited Motions Day argument by the parties. ECF No. 39. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $39,327.35 (representing $37,496.30 for fees and $1,831.05 for costs). Petitioner’s Application for Attorneys’ Fees and Costs, filed Nov. 15, 2023, ECF No. 46. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he incurred no out-of-pocket expenses. ECF No. 47. Respondent reacted to the motion on December 4, 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, 3 n.2, ECF No. 48. Petitioner has filed no reply but provided a missing receipt on February 8, 2024. ECF No. 49. 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 2023 are reasonable and consistent with our prior determinations, and will therefore be adopted. ECF No. 46 at 4-24. Regarding the number of hours billed, however, I deem the total amount of time devoted to briefing damages to be excessive. See Status Report, filed Sept. 14, 2022, ECF No. 30 (reporting an impasse in damages discussions); Petitioner’s Memorandum in Support of Damages, filed Oct. 14, 2022, ECF No. 31; Petitioner’s Reply to Respondent’s November 17, 2022 Brief on Damages, filed Jan. 12, 2023, ECF No. 34; Hearing Minute Entry, dated May 30, 2023 (regarding the May 26, 2023 hearing). Petitioner’s counsel expended approximately 27.3 hours drafting the brief in support of damages; and 6.0 hours drafting the reply brief, totaling 33.34 hours. ECF No. 46 at 9. In addition, drafting of the damages briefs involved the work of two attorneys, billing between $341 to $441 per hour, and thus suggesting some degree of unnecessary overlap/inefficiency compounding the excessive cost associated with this task. My above calculation does not include time spent preparing the initial demand which would have informed this later work – 6.3 hours – and I am therefore awarding fees associated with that task in full.5 Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations or preparing for or participating in the Expedited Motions Day hearing, which is also being awarded in full. See, e.g., ECF No. 46 at 19 (12/2/22 entry). It is unreasonable for counsel to spend so much time briefing the issue of damages in this case, once the sum in question is calculated, and where the issues presented are 4 This total is calculated as follows: 25.2 hours billed on 9/29/22, 9/20/22, 10/6/22, 10/11/22 (two entries), 10/12/22, 10/13/22, and 10/14/22 by Nathaniel Enos at a rate of $280; 5.5 hours billed on 1/11/23 and 1/12/23 by Nathaniel Enos at a rate of $320; 2.1 hours billed on 10/14/22 by Joseph Pepper at a rate of $415; and 0.5 hours billed on 1/12/23 by Christina Ciampolillo at a rate of $470. 5 This time was billed by Nathaniel Enos, using an hourly rate of $280 and Patrick Kelly, using an hourly rate of $250, and results in $1,752.00 in attorney’s fees. ECF No. 46 at 17-18. 3 not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter),6 in which attorneys have accomplished this task in about half the time.7 See, e.g., Mulloy v. Sec’y of Health & Hum. Servs., No. 19-1396V (Nov. 6, 2023) (19.7 and 9.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Gao v. Sec’y of Health & Hum. Servs., No. 21-1884V (Oct. 25, 2023) (16.5 and 9.4 hours billed for drafting a damages brief and responsive damages brief, respectively); Knasel v. Sec’y of Health & Hum. Servs., No. 20-1366V (Oct. 25, 2023) (11.5 and 13.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Langdon v. Sec’y of Health & Hum. Servs., No. 20-1311V (Oct. 25, 2023) (12.5 and 12.8 hours billed for drafting a damages brief and responsive damages brief, respectively); Mantagas v. Sec’y of Health & Hum. Servs., No. 20-1720V (Oct. 17, 2023) (6.7 and 4.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Majerus v. Sec’y of Health & Hum. Servs., No. 20-1346V (Oct. 17, 2023) (11.0 and 4.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Cosden v. Sec’y of Health & Hum. Servs., No. 20-1783 (Aug. 8, 2023) (6.3 hours billed for drafting a damages brief); Balch v. Sec’y of Health & Hum. Servs., No. 20-0872V (June 30, 2023) (18.7 hours billed for drafting a damages brief); Kestner v. Sec’y of Health & Hum. Servs., No. 20-0025V (June 22, 2023) (6.00 and 4.10 hours billed for drafting a damages brief and responsive damages brief, respectively); Juno v. Sec’y of Health & Hum. Servs., No. 18-0643V (June 14, 2023) (5.8 hours billed for drafting a damages brief); Deutsch v. Sec’y of Health & Hum. Servs., No. 18-0527V (June 12, 2023) (7.4 and 4.4 hours billed for drafting a damages brief and responsive damages brief, respectively); Edminister v. Sec’y of Health & Hum. Servs., No. 19-0184V (May 30, 2023) (15.3 and 3.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Aponte v. Sec’y of Health & Hum. Servs., No. 20-1031V (May 18, 2023) (6.9 hours billed for drafting a damages brief); Gray v. Sec’y of Health & Hum. Servs., No. 20-1708V (May 18, 2023) (5 hours billed for drafting a damages brief); Horky v. Sec’y of Health & Hum. Servs., No. 20-0239V (May 18, 2023) (5.8 hours billed for drafting a damages brief); Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V (May 18, 2023) (9.5 and 2.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Rice-Hansen v. Sec’y of Health & Hum. Servs., No. 20-1338V (May 17, 2023) (12.9 and 6.1 hours billed for drafting a damages brief and responsive damages brief, respectively). 6 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 7 These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Feb. 7, 2024). 4 The circumstances of this case did not warrant devoting so much time to damages briefing. The parties agreed upon the amount of past expenses, and the only area of dispute was the appropriate amount of compensation for Petitioner’s past pain and suffering. See Barry v. Sec’y of Health & Hum. Servs., No. 20-1874V, 2023 WL 4742421 (Fed. Cl. Spec. Mstr. June 23, 2023). And the parties’ views differed by only $37,500.00 - Petitioner sought $125,000.00, and Respondent countered with $87,500.00. Id. at *4. However, the amount I ultimately awarded was closer to that proposed by Petitioner – supporting the need for damages briefing, and the hours billed were not as excessive as in other cases. Id. at *6; see, e.g., Moreland v. Sec’y of Health & Hum. Servs., No. 18- 1319V, 2023 WL 7104781 (Fed. Cl. Spec. Mstr. Aug. 31, 2023). Thus, I will reduce the hours billed by a lower amount than I otherwise would apply. Of course, having prevailed in this case, a fees award is generally appropriate. See Barry, 2023 WL 4742421, at *6. But the Act permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be awarded for damages briefing (a total of 33.3 hours, or $9,922.50) by twenty percent. Such an across-the- board reduction (which I am empowered to adopt)8 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a reduction of $1,984.50.9 ATTORNEY COSTS Petitioner has provided supporting documentation for all claimed attorney costs, except for $18.56 paid for postage and $0.10 for 1 page of in-house copying costs which I nevertheless will allow. ECF No. 46 at 23-51; ECF No. 49 at 4-5. And Respondent offered no specific objection to the rates or amounts sought. Therefore, I will award the amount of attorney’s costs sought in full. 8 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 9 This amount is calculated as follows: (25.2 hrs. x $280 x .20) + (5.5 hrs. x $320 x .20) + (2.1 hrs. x $415 x .20) + (0.5 hrs. x $470 x .20) = $1,984.50. 5 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 $37,342.85 (representing $35,511.80 for fees and $1,831.05 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.10 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 10 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 6