VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01896 Package ID: USCOURTS-cofc-1_20-vv-01896 Petitioner: Noel Frempter Filed: 2020-12-18 Decided: 2024-06-27 Vaccine: influenza Vaccination date: 2019-10-22 Condition: shoulder injury related to vaccine administration (SIRVA) and osteomyelitis Outcome: compensated Award amount USD: 45000 AI-assisted case summary: On December 18, 2020, Noel Frempter filed a petition under the National Vaccine Injury Compensation Program alleging that an influenza vaccine administered on October 22, 2019, caused a shoulder injury related to vaccine administration (SIRVA) and osteomyelitis, with residual effects lasting more than six months. The respondent denied that the vaccine caused the alleged injuries or that SIRVA was a Table injury, and also denied that the petitioner's current condition was a sequela of a vaccine-related injury. Despite these contested positions, both parties agreed to settle the case. A stipulation was filed on June 27, 2024, and adopted by Chief Special Master Brian H. Corcoran as the court's decision. The stipulation awarded Noel Frempter a lump sum of $45,000.00, payable by check to the petitioner, as compensation for all damages available under Section 15(a) of the Act. The case was compensated based on this stipulation. Petitioner was represented by Leah V. Durant of the Law Offices of Leah V. Durant, PLLC, and respondent was represented by Madylan L. Yarc of the U.S. Department of Justice. Theory of causation field: Petitioner alleged that an influenza vaccine received on October 22, 2019, caused a shoulder injury related to vaccine administration (SIRVA) and osteomyelitis, with residual effects lasting more than six months. Respondent denied that the vaccine caused the alleged injuries or that SIRVA was a Table injury. The parties reached a stipulation to settle the case, and Chief Special Master Brian H. Corcoran adopted the stipulation as the decision. The stipulation awarded Petitioner Noel Frempter $45,000.00 as compensation for all damages under Section 15(a) of the Act. The public decision does not describe the specific mechanism of injury, onset, symptoms, diagnostic tests, treatments, or expert witnesses. The theory of causation was based on a stipulation between the parties, with the respondent denying the alleged SIRVA Table injury. The award was made on June 27, 2024. Petitioner's counsel was Leah V. Durant, and respondent's counsel was Madylan L. Yarc. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01896-0 Date issued/filed: 2024-08-05 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 6/27/2024) regarding 47 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (ag) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1896V * * * * * * * * * * * * * * * * * * * * * * * * * * NOEL FREMPTER, * Chief Special Master Corcoran * Petitioner, * Filed: June 27, 2024 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Madylan L. Yarc, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 18, 2020, Noel Frempter filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleges that she sustained a shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table and suffered osteomyelitis that was caused-in-fact by an influenza (“flu”) vaccine she received on October 22, 2019. Moreover, Petitioner alleges that she experienced residual effects of this injury for more than six months. Respondent denies that Petitioner sustained a SIRVA Table injury or that the flu vaccine caused Petitioner’s alleged shoulder injury, osteomyelitis, or any other injury or condition. Respondent also denies that Petitioner’s current condition is a sequela of a vaccine-related injury. 1 "Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id." 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 2 of 7 Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on June 27, 2024) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: • A lump sum of $45,000.00 in the form of a check payable to Petitioner. Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act. I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith.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 each filing (either jointly or separately) a notice renouncing their right to seek review. Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 3 of 7 Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 4 of 7 Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 5 of 7 Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 6 of 7 Case 1:20-vv-01896-UNJ Document 51 Filed 08/05/24 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01896-cl-extra-10792690 Date issued/filed: 2025-02-03 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10326102 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1896V ************************* * NOEL FREMPTER, * Chief Special Master Corcoran * Petitioner, * Filed: January 3, 2025 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************* Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Madylan L. Yarc, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1 On December 18, 2020, Noel Frempter filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that she sustained a shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table, and suffered osteomyelitis, all of which were caused by an influenza (“flu”) vaccine she received on October 22, 2019. The parties successfully settled the case, and I issued a decision awarding Petitioner compensation. See Decision, dated June 27, 2024 (ECF No. 47). Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion, dated Dec. 6, 2024 (ECF No. 52) (“Mot.”). This is Petitioner’s sole such request. Petitioner requests a total of $51,534.03 in attorney’s fees and costs ($48,963.00 in fees, plus $2,571.03 in 1 "Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id." 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). costs) for the work of the office of attorney Leah V. Durant. Mot. at 1. Respondent reacted to the fees request on December 19, 2024. See Response, dated Dec. 19, 2024 (ECF No. 53) (“Resp.”). Respondent agrees that Petitioner has satisfied the statutory requirements for a fees award, and otherwise defers the calculation of the amount to be awarded to my discretion. Resp. at 2, 4. Petitioner filed a reply, maintaining her position and requesting that she be awarded the requested fees and costs as indicated. Reply, dated Dec. 23, 2024 (ECF No. 54). For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and costs in the total amount of $51,534.03. I. Calculation of Fees Because Petitioner’s claim was successful, she is entitled to a fees and costs award— although only “reasonable” fees or costs may be awarded in the Program. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—“multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensely v. Eckerhart, 461 U.S. 424, 429–37 (1983). An attorney’s reasonable hourly rate is determined by the “forum rule,” which bass the proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis” exception”). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Petitioner requests the following rates for her attorney and support staff, based on the years work was performed: 2019 2020 2021 2022 2023 2024 Leah V. Durant $380.00 $395.00 $420.00 $441.00 $463.00 $486.00 (Attorney) Christopher -- -- -- $341.00 $358.00 $376.00 Williams (Attorney) 2 Mateo Forero -- -- -- -- -- $385.00 (Attorney) Paralegals $150.00 $160.00 $165.00 $173.00 $181.00 $190.00 ECF No. 52-1 at 1–22. Ms. Durant and her colleagues practice in Washington, DC—a jurisdiction that is, by definition, “in forum.” Accordingly, counsel should be paid forum rates as established in McCulloch. See Clavio v. Sec’y of Health & Hum. Servs., No. 17-1179V, 2024 WL 329239 (Fed. Cl. Spec. Mstr. Jan. 2, 2024). The rates requested for Ms. Durant and her colleagues (including newly requested 2024 rates for Mr. Forero and Mr. Williams) are also consistent with what has previously been awarded for their work, in accordance with the Office of Special Masters’ fee schedule. 3 Murray v. Sec’y of Health & Hum. Servs., No. 17-1357V, 2024 WL 1433667 (Fed. Cl. Spec. Mstr. Mar. 5, 2024); E.H. v. Sec’y of Health & Hum. Servs., No. 17-126V, 2023 WL 8543593 (Fed. Cl. Spec. Mstr. Nov. 16, 2023); Aycock v. Sec’y of Health & Hum. Servs., No. 19-235V, 2023 WL 8869423 (Fed. Cl. Spec. Mstr. Nov. 8, 2023). I thus find no cause to reduce them in this instance. And I deem the time devoted to the matter to be reasonable. I will therefore award all fees requested without adjustment. II. Calculation of Attorney’s Costs Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. Cl. 667, 670 (2002): Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Hum. Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as by not providing appropriate documentation to explain the basis for a particular cost, special masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). Petitioner seeks $2,571.03 in outstanding costs, including the filing fee, medical record retrieval costs, mailing costs, and costs associated with the work of a single expert, Timothy Hancock, who provided a medical records review service. ECF No. 52-2 at 2, 11. Mr. Hancock submitted an invoice reflecting a total of $1,250.00 (billing at an hourly rate of $125.00) charged to the matter. Id. at 11. Because I find those expert costs requested to be reasonable overall, they shall be reimbursed in full. All other requested costs in this matter are commonly incurred in the Vaccine Program and are reasonable herein. 3 OSM Attorneys’ Forum Hourly Rate Fee Schedule, https://www.uscfc.uscourts.gov/node/2914 (last visited Jan. 3, 2025). 3 CONCLUSION Based on the foregoing, and in the exercise of the discretion afforded to me in determining the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs in its entirety. Petitioner is awarded a total amount of $51,534.03, reflecting $48,963.00 in attorney’s fees and $2,571.03 in costs, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of 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 if (jointly or separately) they file notices renouncing their right to seek review. 4