VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01909 Package ID: USCOURTS-cofc-1_20-vv-01909 Petitioner: Mackay Wickenheiser Filed: 2020-12-21 Decided: 2023-08-17 Vaccine: influenza Vaccination date: 2020-09-18 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 82716 AI-assisted case summary: Mackay Wickenheiser filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on September 18, 2020. She stated that she had no prior history of shoulder pain or dysfunction, that the pain occurred within 48 hours of the vaccination, was limited to the injection site, and that no other condition could explain the pain. She also stated that the residual effects of her injury lasted for more than six months. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Ms. Wickenheiser was entitled to compensation for a SIRVA Table injury. Based on the respondent's concession and the evidence of record, the Chief Special Master issued a ruling on entitlement. Subsequently, the respondent filed a proffer on award of compensation, which Ms. Wickenheiser agreed with. The court awarded Ms. Wickenheiser a total of $82,716.05, consisting of $82,500.00 for pain and suffering and $216.05 for past unreimbursable expenses, to be paid as a lump sum. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01909-0 Date issued/filed: 2023-07-03 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/01/2023) regarding 37 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01909-UNJ Document 39 Filed 07/03/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1909V MACKAY WICKENHEISER, Chief Special Master Corcoran Petitioner, v. Filed: June 1, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 21, 2020, Mackay Wickenheiser 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”) resulting from an influenza vaccine received in her left deltoid on September 18, 2020. Petition at 1. Petitioner further alleges the vaccine was received in 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. 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 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 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 (2018). Case 1:20-vv-01909-UNJ Document 39 Filed 07/03/23 Page 2 of 2 On June 1, 2023, 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 agrees that “petitioner had no history of pain, inflammation or dysfunction of her left shoulder; pain occurred within 48 hours after receipt of an intramuscular vaccination; pain was limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain petitioner’s shoulder pain.” Id. at 4. Respondent further agrees that “petitioner suffered the residual effects of her condition for more than six months.” Id. at 5. 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-01909-1 Date issued/filed: 2023-08-17 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 07/18/2023) regarding 42 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01909-UNJ Document 46 Filed 08/17/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1909V MACKAY WICKENHEISER, Chief Special Master Corcoran Petitioner, v. Filed: July 18, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On December 21, 2020, Mackay Wickenheiser 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”) resulting from an influenza vaccine received in her left deltoid on September 18, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 1, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On July 18, 2023, Respondent filed a proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with 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 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-01909-UNJ Document 46 Filed 08/17/23 Page 2 of 5 proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $82,716.05 (representing $82,500.00 for pain and suffering, and $216.05 for past unreimbursable expenses) 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 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-01909-UNJ Document 46 Filed 08/17/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) MACKAY WICKENHEISER ) ) Petitioner, ) ) No. 20-1909V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 21, 2020, Mackay Wickenheiser (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on September 18, 2020. Petition at 1. On June 1, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury, and on the same date, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 37; ECF No. 37. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $82,500.00, in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:20-vv-01909-UNJ Document 46 Filed 08/17/23 Page 4 of 5 B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $216.05. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees. These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $82,716.05, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Mackay Wickenheiser: $82,716.05 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 1 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 Case 1:20-vv-01909-UNJ Document 46 Filed 08/17/23 Page 5 of 5 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division /s/ Camille M. Collett CAMILLE M. COLLETT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4098 E-mail: Camille.M.Collett@usdoj.gov DATED: July 18, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01909-cl-extra-10735612 Date issued/filed: 2024-04-15 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269022 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1909V MACKAY WICKENHEISER, Chief Special Master Corcoran Petitioner, v. Filed: March 15, 2024 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for Petitioner. Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 21, 2020, Mackay Wickenheiser (“Petitioner”) 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”) resulting from an influenza vaccine received in her left deltoid on September 18, 2020. Petition at 1. On July 18, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 42. 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $25,551.44 (representing $23,624.10 in fees plus $1,927.34 in costs). Petitioner’s Motion for Attorneys’ Fees and Costs (“Motion”) filed Dec. 26, 2023, ECF No. 47. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. Motion at 2. Respondent reacted to the motion on December 27, 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 filed a reply on December 28, 2023, requesting an award of fees and costs as indicated in Petitioner’s motion. ECF No. 49. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 47 - 2. 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 $25,551.44 (representing $23,624.10 in fees plus $1,927.34 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Leah VaSahnja Durant. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2