VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01959 Package ID: USCOURTS-cofc-1_20-vv-01959 Petitioner: Allison A. Hayes Filed: 2020-12-23 Decided: 2024-09-27 Vaccine: Tdap Vaccination date: 2019-09-11 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 55000 AI-assisted case summary: Allison A. Hayes filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that a Tdap vaccine administered on September 11, 2019, caused a shoulder injury related to vaccine administration (SIRVA). Although the vaccination record indicated the shot was given in her right arm, Hayes consistently reported to medical providers that it was administered in her left arm, experiencing severe pain within hours. Medical records from her primary care physician and an orthopedist documented left arm/shoulder pain, tenderness, swelling, and decreased range of motion, consistent with her claim. The respondent initially moved to dismiss, arguing Hayes failed to establish a Table SIRVA claim and the statutory severity requirement. However, the court found that Hayes's consistent reporting, corroborated by medical records, established that the vaccine was administered in her left arm. Furthermore, evidence of continued left shoulder weakness and treatment through June 2020, more than six months after symptom onset, satisfied the severity requirement. The court determined that Hayes met all requirements for a Table SIRVA claim and was entitled to compensation. Subsequently, a proffer was filed, and the court awarded Hayes $55,000.00 for pain and suffering. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01959-0 Date issued/filed: 2024-08-26 Pages: 7 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/23/2024) regarding 49 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. Modified on 9/27/2024 to correct the document hyperlink and the docket text. (fm). -------------------------------------------------------------------------------- Case 1:20-vv-01959-UNJ Document 54 Filed 08/26/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1959V ALLISON A. HAYES, Chief Special Master Corcoran Petitioner, Filed: July 23, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Scott William Rooney, Nemes, Rooney, P.C., Farmington Hills, MI, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. FINDINGS OF FACT AND RULING ON ENTITLEMENT1 On December 23, 2020, Allison Hayes 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 left shoulder injury related to vaccine administration (“SIRVA”) following a Tdap vaccine she received on September 11, 2019. Amended Petition at ¶4, 20. The case was assigned to the Special Processing Unit of the Office of Special Masters. For the reasons discussed below, I find that Petitioner more likely than not received the vaccine in her left shoulder, and suffered the residual effects of her alleged vaccine- 1 Because this 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-01959-UNJ Document 54 Filed 08/26/24 Page 2 of 7 related injury for more than six months. Petitioner has satisfied all of the requirements of a Table SIRVA claim, and is therefore entitled to compensation under the Vaccine Act. I. Relevant Procedural History On March 31, 2023 (more than two years after the case was initiated), Respondent filed a Motion to Dismiss and Rule 4(c) Report. See ECF No. 31. Respondent argues that Petitioner has failed to establish that she received a covered vaccine in her injured shoulder, and that she could not satisfy the statutory severity requirement. Rule 4(c) Report at 4-6. Petitioner filed additional affidavits and medical records on July 24, 2023, September 11, 2023, and January 11, 2024 (ECF No. 33-34, 45, 47) and a Brief Regarding On-Set of Severity of Injury Site (“Br.”) on July 24, 2023. ECF No. 37. Respondent filed a responsive brief on September 11, 2023 (“Repl.”). ECF No. 44. The matter is now ripe for adjudication. II. Factual History Petitioner received a Tdap vaccine on September 11, 2019, at an urgent care in Lansing, Michigan. Ex. 2 at 98. Although the vaccination record states that it was administered into her right arm, Petitioner alleges that the vaccine was administered into her left arm. Id.; Ex. 7 at ¶8. She recalled developing “severe pain within hours after the vaccination.” Id. at ¶9. On September 16, 2019 (five days after vaccination), Petitioner was seen by her primary care physician (“PCP”) for left arm pain. Ex. 4 at 685. She reported that “she had her Tdap on 09-11-19 in her left arm.” Id. at 686. She reported that “when the injection occurred about halfway through . . . it sounded like there was air and a gurgling noise.” Id. On exam, her left upper arm was tender and swollen. Id. She was assessed with a left deltoid muscle strain and sent for an ultrasound. Id. at 685. The ultrasound revealed a small amount of fluid in the bursa and “moderate fluid/thickening of the biceps tendon sheath.” Ex. 1 at 14-15. Petitioner reported her left shoulder pain to an orthopedist on October 21, 2019, adding that symptoms began suddenly on the day of vaccination. Ex. 1 at 51. On exam, Petitioner displayed significantly decreased range of motion, decreased strength, and positive impingement testing. Id. at 52. Petitioner received a cortisone injection and was given an “extensive home exercise program.” Id. at 53. On December 11, 2019, Petitioner returned to her orthopedist with improved left shoulder symptoms. Ex. 1 at 42. She now reported that the cortisone injection provided significant relief for the first two weeks and overall improvement of 50%. Id. Petitioner continued to have weakness in her left shoulder, but had improved range of motion and 2 Case 1:20-vv-01959-UNJ Document 54 Filed 08/26/24 Page 3 of 7 negative impingement testing. Id. at 43. She was instructed to continue her home exercises, to use oral anti-inflammatories, and to return as needed. Id. More than five months later, on May 13, 2020, Petitioner began a course of physical therapy to address temporomandibular joint disorder (“TMJ”), cervicalgia, neck pain, and headaches. Ex. 2 at 59. During the initial evaluation, Petitioner was assessed with 4+/5 strength in her left shoulder and given a long-term goal of improving upper extremity strength. Id. at 60, 62. Although treatment did not focus on her left shoulder in all sessions, Petitioner received shoulder exercises in during at least six of twelve sessions (between June 1, 2020, and June 30, 2020). Id. at 12, 15, 36, 40, 44, 48. During a re-evaluation on June 19, 2020, the therapist noted that Petitioner had “gained in left shoulder IR/ER.” Id. at 24. At discharge on July 22, 2020, Petitioner had made “some progress” toward her upper extremity strength goal. Id. at 5. Over two years later, on February 17, 2023, Petitioner saw a specialist in osteopathic neuromusculoskeletal medicine for neck pain with numbness and tingling down both arms. Ex. 14 at 3. She reported that she had had “a vaccine injury to [her] left shoulder in 2019” which caused “a lot of pain and stiffness.” Id. On exam, Petitioner had 4/5 strength in her left deltoid. Id. at 7. She was treated with osteopathic manipulative treatment and given a home exercise program. Id. at 9-11. She retuned on March 3, 2023 complaining of stabbing pain in both arms. Id. at 12. She again received osteopathic manipulative treatment. Id. at 16-17. On November 21, 2023, Petitioner returned to physical therapy for her left shoulder. Ex. 15 at 27. She reported having an injection in her shoulder on September 11, 2019, which led to frozen shoulder. Id. She reported current pain with occasional numbness/tingling. Id. On exam, Petitioner had reduced range of motion and reduced strength with abduction. Id. at 28-29. Impingement tests were positive. Id. at 29. Treatments twice a week for up to eight weeks was planned. Id. at 30. Petitioner had additional physical therapy treatments on December 6 and 13, 2023. Id. at 4, 10. No additional records have been filed. III. Applicable Legal Standards Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove by a preponderance of the evidence the matters required in the petition by Vaccine Act Section 11(c)(1). The Vaccine Act also requires that a petitioner demonstrate that “residual effects or complications” of a vaccine-related injury continued for more than six months. Vaccine Act §11(c)(1)(D)(i). A petitioner cannot establish the length or ongoing nature of an injury merely through self-assertion unsubstantiated by medical records or medical opinion. §13(a)(1)(A). “[T]he fact that a petitioner has been discharged from medical care does not necessarily indicate that there are no remaining or residual effects from her alleged 3 Case 1:20-vv-01959-UNJ Document 54 Filed 08/26/24 Page 4 of 7 injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013V, 2019 WL 978825, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014). Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. In Lowrie, the special master wrote that “written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Lowrie, at *19. And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The United States Court of Federal Claims has recognized that “medical records may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998). The Court later outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 4 Case 1:20-vv-01959-UNJ Document 54 Filed 08/26/24 Page 5 of 7 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). The special master is obligated to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master's discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). IV. Findings of Fact A. Site of Vaccination The entirety of the record preponderantly supports the conclusion that Petitioner more likely than not received the September 11, 2019 vaccination in her left arm. While the vaccine administration record admittedly states that the Tdap vaccine was administered to Petitioner’s right deltoid, Petitioner consistently reported to her medical providers that she received the vaccine in her left arm. Ex. 2 at 98. Petitioner in fact reported receiving the vaccine in her left arm only five days after her vaccination, deeming it the cause of her left arm/shoulder pain. Ex. 4 at 685-686. A month later, Petitioner again reported that she had had a Tdap vaccine to her left arm to her orthopedist. Ex. 1 at 51. Petitioner’s consistency in reporting that she received her vaccination in her left arm continued for more than three years. See Ex. 14 at 3 (Petitioner reported “a vaccine injury to [her] left shoulder in 2019.”); Ex. 15 at 27 (She reported having an injection in her shoulder in 2019, which led to frozen shoulder.). The degree to which Petitioner was consistent in reporting her left shoulder pain as related to her Tdap vaccine when seeking treatment is especially convincing evidence supporting her situs argument. Further, there is no evidence other than the initial administration record that the vaccination was administered in Petitioner’s right arm. And I have noted in many prior cases that vaccination records are often incorrect, assuming a situs of administration before the vaccination occurs, with no subsequent correction. See e.g., Rodriguez v. Sec’y of Health & Human Servs., 2022 WL 4458350, at *3 (Fed. Cl. Spec. Mstr. August 23, 2022). Thus, Petitioner’s assertions are sufficiently corroborated by the medical records to accept her contention of vaccine situs. 5 Case 1:20-vv-01959-UNJ Document 54 Filed 08/26/24 Page 6 of 7 B. Severity To establish six months of residual effects, Petitioner must demonstrate that her symptoms more likely than not continued until at least March 11, 2020. The undisputed record establishes that Petitioner had continuous treatment for her injury through her orthopedist appointment on December 11, 2019 – three months after vaccination. Respondent argues that Petitioner has not provided preponderant evidence that her injury lasted three months more, noting that she “sought no medical treatment for any left shoulder issues,” after December 11, 2019, despite having physical therapy treatment “for other conditions unrelated to her left shoulder.” Resp. at 5-6. Despite the gap in medical records between December 11, 2019, and May 13, 2020, there is still preponderant support for the finding that Petitioner’s symptoms continued for more than six months. At the time of her orthopedist appointment on December 11, 2019, Petitioner’s most significant remaining deficit was left shoulder weakness. Ex. 1 at 43. Similarly, when Petitioner began physical therapy on May 13, 2020, she was assessed with left shoulder weakness. See Ex. 2 at 60. Her long-term therapy goals included upper extremity strengthening. Id. at 62. Thereafter, during at least six physical therapy treatments in June 2020, Petitioner received shoulder-specific exercises. Id. at 12, 15, 36, 40, 44, 48. At a re-evaluation on June 19, 2020, the physical therapist noted improvement in “left shoulder IR/ER.” Id. at 24. Although Petitioner’s physical therapy course was precipitated by other non-related diagnoses, including TMJ and cervicalgia, she was assessed with specific shoulder symptoms which mirrored the symptoms she had in December 2019 and she received shoulder specific treatment, resulting in improvement. Thus, there is preponderant evidence that Petitioner continued to suffer left shoulder weakness at least through June 2020, which is more than six months after symptoms onset. V. Ruling on Entitlement A. Requirements for Table SIRVA Other than the foregoing, Respondent has not contested Petitioner’s proof on the remaining elements of a Table SIRVA. See Respondent’s Rule 4(c) Report. There are no records indicating that Petitioner had pain or dysfunction of her left shoulder prior to her Tdap vaccination. When seeking treatment, Petitioner reported that her pain began within 48 hours of her vaccination and she reported pain that was limited to her left upper arm and shoulder. See Ex. 1 at 51; Ex. 4 at 685-686; Ex. 7 at ¶9. I have found that Petitioner has preponderantly established that her Tdap vaccination was administered to her left 6 Case 1:20-vv-01959-UNJ Document 54 Filed 08/26/24 Page 7 of 7 shoulder, rather than her right, satisfying the third QAI element. Finally, no other condition has been identified to explain Petitioner’s post-vaccination symptoms. See 42 C.F.R. § 100.3(c)(10)(i)-(iv). Accordingly, I find that Petitioner has provided preponderant evidence to establish that she suffered a Table SIRVA injury. B. Additional Requirements for Entitlement Because Petitioner has satisfied the requirements of a Table SIRVA, she need not prove causation. Section 11(c)(1)(C). However, she must satisfy the other requirements of Section 11(c) regarding the vaccination received, the duration and severity of injury, and the lack of other award or settlement. Section 11(c)(A), (B), and (D). The vaccine record shows that Petitioner received a Tdap vaccination on September 11, 2019 at an urgent care in Lansing, MI. Ex. 4 at 98; Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration within the United States or its territories). Additionally, Petitioner has stated that she has not filed any civil action or received any compensation for her vaccine-related injury, and there is no evidence to the contrary. See Amended Petition at ¶10; Ex. 7 at ¶15; Section 11(c)(1)(E) (lack of prior civil award). And as noted above, I have found that severity has been established. See Section 11(c)(1)(D)(i) (statutory six-month requirement). Therefore, Petitioner has satisfied all requirements for entitlement under the Vaccine Act. Conclusion Based on the entire record in this case, I find that Petitioner has provided preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is entitled to compensation in this case. A separate damages order will be issued. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01959-1 Date issued/filed: 2024-09-27 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 08/23/2024) regarding 53 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01959-UNJ Document 61 Filed 09/27/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1959V ALLISON A. HAYES, Chief Special Master Corcoran Petitioner, Filed: August 23, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Scott William Rooney, Nemes, Rooney, P.C., Farmington Hills, MI, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 23, 2020, Allison A. Hayes 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”) following a Tdap vaccination she received on September 11, 2019. Petition at ¶¶ 4, 9, 23. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 23, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On August 23, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $55,000.00 for pain and suffering. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. 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-01959-UNJ Document 61 Filed 09/27/24 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $55,000.00 for pain and suffering 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-01959-UNJ Document 61 Filed 09/27/24 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ALLISON A. HAYES, Petitioner, v. No. 20-1959V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER On December 23, 2020, Allison Hayes (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 et seq. (“Vaccine Act”). On December 28, 2020, petitioner filed an amended petition for compensation. She alleges that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination administered in her left arm on September 11, 2019, caused a shoulder injury related to vaccine administration (“SIRVA”). Amended Petition at 1-3. On March 31, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report recommending against compensation because petitioner had not established a Table1 SIRVA claim. Subsequently, the parties filed briefs regarding factual issues surrounding the site of vaccination administration and severity. ECF Nos. 37, 44. On July 23, 2024, the Chief Special Master issued a Ruling on 1 The Vaccine Injury Table is located at 42 C.F.R. § 100.3. 1 Case 1:20-vv-01959-UNJ Document 61 Filed 09/27/24 Page 4 of 5 Entitlement finding petitioner entitled to compensation. ECF No. 49. Respondent now files this proffer regarding the amount of damages to be awarded.2 I. Items of Compensation Respondent proffers that petitioner should be awarded $55,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represents 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 following3: a lump sum payment of $55,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Allison A. Hayes: $55,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General 2 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s July 23, 2024, entitlement decision. 3 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, unreimbursed expenses, future lost earnings and future pain and suffering. 2 Case 1:20-vv-01959-UNJ Document 61 Filed 09/27/24 Page 5 of 5 C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division LARA A. ENGLUND Assistant Director Torts Branch, Civil Division s/ PARISA TABASSIAN PARISA TABASSIAN 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) 305-4035 Parisa.Tabassian@usdoj.gov Dated: August 23, 2024 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01959-cl-extra-10734126 Date issued/filed: 2024-09-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267536 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1959V ALLISON A. HAYES, Chief Special Master Corcoran Petitioner, Filed: August 23, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Scott William Rooney, Nemes, Rooney, P.C., Farmington Hills, MI, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES 1 On December 23, 2020, Allison A. Hayes 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”) following a Tdap vaccination she received on September 11, 2019. Petition at ¶¶ 4, 9, 23. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 23, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On August 23, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $55,000.00 for pain and suffering. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. 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). Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $55,000.00 for pain and suffering 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ALLISON A. HAYES, Petitioner, v. No. 20-1959V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER On December 23, 2020, Allison Hayes (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 et seq. (“Vaccine Act”). On December 28, 2020, petitioner filed an amended petition for compensation. She alleges that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination administered in her left arm on September 11, 2019, caused a shoulder injury related to vaccine administration (“SIRVA”). Amended Petition at 1-3. On March 31, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report recommending against compensation because petitioner had not established a Table1 SIRVA claim. Subsequently, the parties filed briefs regarding factual issues surrounding the site of vaccination administration and severity. ECF Nos. 37, 44. On July 23, 2024, the Chief Special Master issued a Ruling on 1 The Vaccine Injury Table is located at 42 C.F.R. § 100.3. 1 Entitlement finding petitioner entitled to compensation. ECF No. 49. Respondent now files this proffer regarding the amount of damages to be awarded. 2 I. Items of Compensation Respondent proffers that petitioner should be awarded $55,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represents 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 following3: a lump sum payment of $55,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Allison A. Hayes: $55,000.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General 2 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s July 23, 2024, entitlement decision. 3 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, unreimbursed expenses, future lost earnings and future pain and suffering. 2 C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division LARA A. ENGLUND Assistant Director Torts Branch, Civil Division s/ PARISA TABASSIAN PARISA TABASSIAN 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) 305-4035 Parisa.Tabassian@usdoj.gov Dated: August 23, 2024 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01959-cl-extra-10818885 Date issued/filed: 2025-03-07 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10352297 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1959V ALLISON A. HAYES, Chief Special Master Corcoran Petitioner, v. Filed: January 27, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Scott William Rooney, Nemes, Rooney, P.C., Farmington Hills, MI, for Petitioner. Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 23, 2020, Allison A. Hayes filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration following a Tdap vaccination she received on September 11, 2019. Petition, ECF No. 1. On August 23, 2024, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 53. 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 $11,314.00 (representing $10,912.00 in fees plus $402.00 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed September 11, 2024, ECF No. 58. Furthermore, counsel for Petitioner represents that Petitioner incurred $119.69 in personal out-of-pocket expenses. ECF No. 58 at 1-2. Respondent reacted to the motion on September 11, 2024, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-4, ECF No. 59. Petitioner filed a reply requesting an award of fees and costs as indicated in the Motion. ECF No. 60. 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. 58 at 13-16. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full. 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. Petitioner is awarded attorneys’ fees and costs in the total amount of $11,433.69 (representing $11,314.00 in attorneys’ fees and costs, plus $119.69 for petitioner’s personally incurred costs) to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. 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