VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01969 Package ID: USCOURTS-cofc-1_20-vv-01969 Petitioner: Dawn Felton Filed: 2020-12-23 Decided: 2024-12-05 Vaccine: influenza Vaccination date: 2020-09-18 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 64708 AI-assisted case summary: On December 23, 2020, Dawn Felton filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of an influenza vaccine administered on September 18, 2020. Petitioner, who was 60 years old at the time of vaccination, alleged that she received the vaccine in the United States and that there had been no prior award or settlement of a civil action for her injury. The case was assigned to the Special Processing Unit. On June 23, 2023, the Respondent filed a Rule 4(c) report conceding Petitioner's entitlement to compensation, stating that she met the criteria for SIRVA as set forth in the Table and Qualifications and Aids to Interpretation (QAI). Specifically, Respondent noted that Petitioner had no relevant history of pain, inflammation, or dysfunction in her right shoulder; her pain and reduced range of motion occurred within 48 hours of the intramuscular vaccination; her symptoms were limited to the vaccinated shoulder; and no other condition explained her symptoms. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on June 27, 2023, finding Petitioner entitled to compensation. Although entitlement was conceded, the parties disputed the proper damages. A hearing was held on October 25, 2024, to address the damages. Petitioner requested $105,000.00 for past pain and suffering, while Respondent proposed $47,500.00. The parties agreed to $708.99 for unreimbursed expenses. Chief Special Master Corcoran reviewed Petitioner's medical records, affidavits, filings, and arguments from both parties, as well as prior SIRVA cases. Petitioner's medical records indicated that three days after vaccination, she complained of right shoulder pain, and an ultrasound showed changes consistent with a recent injection. She sought treatment from an orthopedist approximately two weeks later, reporting severe pain, tenderness, reduced range of motion, and impingement syndrome. She was referred to physical therapy but declined a steroid injection. Petitioner underwent approximately nine months of treatment, including nine physical therapy sessions, with reported pain levels varying from mild to high. She was discharged from physical therapy on June 25, 2021, reporting improvement but not full recovery. The Special Master considered Petitioner's inability to fully participate in Tae Kwon Do, her profession as a master level instructor. In determining the award, the Special Master found Petitioner's injury was initially severe but her treatment was conservative over nine months, with a five-month gap and no surgery or steroid injections. The Special Master compared the case to prior SIRVA awards, finding Petitioner's case more severe than those cited by Respondent but less severe in duration and treatment intensity than those cited by Petitioner. Ultimately, Chief Special Master Corcoran awarded Dawn Felton a total of $64,708.99, consisting of $64,000.00 for actual pain and suffering and $708.99 for unreimbursed expenses, payable by check to Petitioner. This award compensates for all damages available under Section 15(a) of the Vaccine Act. The decision was issued on December 5, 2024. Theory of causation field: Petitioner Dawn Felton, age 60, received an influenza vaccine on September 18, 2020. She alleged a Shoulder Injury Related to Vaccine Administration (SIRVA), a condition listed in the Vaccine Injury Table. Respondent conceded entitlement, agreeing that Petitioner met the Table criteria for SIRVA, including onset of pain and reduced range of motion within 48 hours of vaccination, symptoms limited to the vaccinated shoulder, and no other identified cause. The case proceeded to damages. Petitioner sought $105,000 for pain and suffering, while Respondent proposed $47,500. Petitioner's treatment lasted approximately nine months, including nine physical therapy sessions, with pain levels ranging from zero to eight out of ten. Chief Special Master Brian H. Corcoran awarded $64,000 for pain and suffering and $708.99 for unreimbursed expenses, totaling $64,708.99, in a decision issued December 5, 2024. Petitioner was represented by Jonathan Joseph Svitak of Shannon Law Group, PC, and Respondent was represented by Mary Eileen Holmes of the U.S. Department of Justice. The public text does not detail the specific mechanism of injury or name any medical experts. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01969-0 Date issued/filed: 2023-07-31 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/27/2023) regarding 37 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01969-UNJ Document 40 Filed 07/31/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1969V DAWN FELTON, Chief Special Master Corcoran Petitioner, Filed: June 27, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, PC, Woodridge, IL, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 23, 2020, Dawn Felton 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 Table injury – Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of her September 18, 2020 influneza (“flu”) vaccination. Petition at 1. Petitioner further alleges that she received her vaccination in the United States, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. See Petition at ¶¶ 2, 17-18.The case was assigned to the Special Processing Unit of the Office of Special Masters. 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-01969-UNJ Document 40 Filed 07/31/23 Page 2 of 2 On June 23, 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 indicates that it his position that [P]etitioner has satisfied the criteria set forth in the Table and the Qualifications and Aids to Interpretation (“QAI”) for a SIRVA. That is, [P]etitioner had no relevant history of pain, inflammation, or dysfunction in her right shoulder; her pain and reduced range of motion occurred within 48 hours of receipt of an intramuscular vaccination; her symptoms were limited to the shoulder in which the vaccine was administered; and no other condition or abnormality was identified to explain her symptoms. Id. at 3 (citing 42 C.F.R. § 100.3(a)(c)(10)). 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-01969-1 Date issued/filed: 2024-12-05 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 11/04/2024) regarding 48 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01969-UNJ Document 56 Filed 12/05/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1969V UNPUBLISHED DAWN FELTON, Chief Special Master Corcoran Petitioner, Filed: November 4, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, PC, Woodbridge, IL, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 23, 2020, Dawn Felton filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza vaccine administered to her on September 18, 2020. Petition, ECF No. 1. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). Although entitlement was conceded, the parties disputed the proper damages to be awarded. For the reasons described below, and after holding a brief hearing, I find that Petitioner is entitled to damages in the total amount of $64,708.99, representing an 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-01969-UNJ Document 56 Filed 12/05/24 Page 2 of 5 award of $64,000.00 for Petitioner’s actual pain and suffering, plus $708.99 for Petitioner’s unreimbursed expenses. I. Relevant Procedural History As noted above, this case was initiated in December 2020. On June 23, 2023, Respondent filed a Rule 4(c) Report conceding Petitioner’s entitlement to compensation. ECF No. 36. Accordingly, on June 27, 2023, I issued a ruling on entitlement in Petitioner’s favor. ECF No. 37. After attempting to informally resolve the issue of damages, the parties informed me in September 2023 that they could not do so. ECF No. 41. I therefore provided the parties an opportunity to file written briefs, and later scheduled this matter for an expedited hearing and ruling. ECF No. 42; ECF No. 46; Hearing Order (Non-PDF) filed October 4, 2024. The hearing was held on October 25, 2024, and addressed an appropriate award of pain and suffering.3 Petitioner requests that I award her $105,000.00 for past pain and suffering. ECF No. 43; ECF No. 45. Respondent proposes that I award the lesser amount of $47,500.00 for actual pain and suffering. ECF No. 44. The parties agreed to unreimbursed expenses of $708.99. ECF No. 47. II. Legal Standard In another recent decision, I discussed at length the legal standard to be considered in determining damages, and prior SIRVA compensation within SPU. I fully adopt and hereby incorporate my prior discussion in Sections I and II of Yodowitz v. Sec'y of Health & Hum. Servs., No. 21-0370V, 2024 WL 4284926, at *1-3 (Fed. Cl. Spec. Mstr. Aug. 23, 2024). In sum, 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). 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). 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.4 3 A transcript of the October 25, 2024 Hearing has not yet been filed, but is incorporated by reference herein. 4 I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (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)). 2 Case 1:20-vv-01969-UNJ Document 56 Filed 12/05/24 Page 3 of 5 III. Appropriate Compensation for Pain and Suffering In this case, awareness of the injury is not disputed. The record reflects that at all times Petitioner was a competent adult with no impairments that would impact her awareness of her injury. Therefore, I analyze principally the severity and duration of Petitioner’s injury. In determining appropriate compensation for pain and suffering, I have carefully reviewed and taken into account the complete record in this case, including, but not limited to: Petitioner’s medical records, affidavits, filings, and all assertions made by the parties in written documents and at the expedited hearing held on October 25, 2024. I have also considered prior awards for pain and suffering in both SPU and non-SPU SIRVA cases, and relied upon my experience adjudicating these cases. However, my determination is ultimately based upon the specific circumstances of this case. As the record establishes, Petitioner (then 60 years old) received the flu vaccine on September 18, 2020, at the office of her primary care provider (“PCP”). Ex. 2. Only three days later she returned to her PCP on September 21, 2020, complaining of right shoulder pain since the night of her vaccination. Ex. 5 at 15. Petitioner underwent an ultrasound which demonstrated “[n]onspecific hyperechoic texture change in the subcutaneous fat could represent sequela of recent injection.” Ex. 19 at 79. Approximately two weeks later, on October 5, 2020, Petitioner sought treatment from an orthopedist. Ex. 15 at 80-83. Petitioner reported that she had severe pain that began the night of her vaccination. Id. at 83. On examination, Petitioner was found to have tenderness at the acromion, reduced range of motion, and impingement syndrome. Id. at 82-83. X-rays were taken and demonstrated a lateralized acromion. Id. at 82. Petitioner was assessed with a right shoulder pain and impingement, and was referred to physical therapy. Id. at 83. Petitioner was offered but declined a steroid injection to treat her pain. Id. Ultimately, Petitioner underwent treatment for her shoulder injury for approximately nine months,5 including: nine physical therapy sessions.6 Petitioner’s reported pain levels varied from mild to high (ranging from zero out of ten to eight out of ten). See e.g., Ex. 6 at 28, 33, 36; Ex. 15 at 27, 60, 66, 70, 78, 80. Petitioner completed her last physical therapy session on June 25, 2021, and was discharged to a home exercise program. Ex. 6 at 36-41. At that time her condition had 5 This includes a gap in Petitioner’s treatment of approximately five months, between December 9, 2020 and May 12, 2021. Ex. 15 at 52; Ex. 6 at 28. 6 Petitioner’s physical therapy first six sessions occurred between October 9, 2020, and December 9, 2020; Petitioner’s final three physical therapy sessions occurred between May 12, 2021, and June 25, 2021. See generally Ex. 15; Ex. 3; Ex. 6 at 28-36. 3 Case 1:20-vv-01969-UNJ Document 56 Filed 12/05/24 Page 4 of 5 improved, although she was not fully recovered. Ex. 6 at 36-37. Petitioner reported a current pain level of one out of ten, and a worst pain level of eight out of ten. Id. at 36. Overall, Petitioner was described as “80% better but increased pain with [activities of daily living] – toilet, dressing, dishes with mild soreness; some discomfort with making the bed and carrying groceries; have not noticed it with yardwork.” Id. Petitioner sought no further treatment for her shoulder injury, although subsequent unrelated medical records from 2021 reference her shoulder issue. See Ex. 19 at 29, 56. In making my determination, I have fully considered Petitioner’s affidavit and the sworn declarations from her family, friends, and colleagues, describing the pain and limitations she experienced both personally, professionally, and in regard to her activities of daily living, following her vaccination. Exs. 1, 7-14. In particular, a master level instructor of Tae Kwon Do, Petitioner was unable to fully participate in the sport. Exs. 1, 9, 13. In sum, I find I find that Petitioner’s injury was initially relatively severe – causing her to seek treatment only three days after her vaccination. But thereafter her treatment was fairly conservative over the course of nine months, including a five-month gap. She elected not to receive steroid injection, and surgery was not required. Such interventions in my experience are taken by petitioners with more severe SIRVA injuries. Additionally, these interventions (surgery and steroid injections) are often quite painful and extensive, justifying higher awards. I observe that Petitioner did complete two rounds of physical therapy, for a total of nine sessions, which likely contributed to her successful recovery. Petitioner argues in her brief that her case is comparable to Leslie v. Sec’y of Health & Human Servs., No. 18-39V, 2021 WL 837139 (Fed. Cl. Spec. Mstr. Jan. 28, 2021) (awarding $125,000.00 for actual pain and suffering), and Danielson v. Sec’y of Health & Human Servs, No. 18-1878V, 2020 WL 8271642 (Fed. Cl. Spec. Mstr. Dec. 29, 2020) (awarding $110,000.00 in pain and suffering). However, I observe the duration of the injuries in the cases cited by Petitioner were much longer than the duration of her injury. Additionally, the petitioner in Danielson underwent three steroid injections and suffered bone erosion – factors not present in the Petitioner’s case. Overall, Petitioner’s comparable cases do not provide a reasonable range for her pain and suffering award. Respondent, by contrast, cites Mejias v. Sec’y of Health & Human Servs., No. 18- 0442V, 19-1944V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov. 10, 2021) (awarding $45,000.00 for actual pain and suffering) and Ramos v. Sec’y Health & Human Servs., No. 18-1005V, 2021 WL 688576 (Fed. Cl. Spec. Mstr. Jan. 4, 2021) (awarding $40,000.00 for actual pain and suffering) in support of his recommended award of $47,500.00. However, I find that Respondent’s cases represent less severe injuries than the instant 4 Case 1:20-vv-01969-UNJ Document 56 Filed 12/05/24 Page 5 of 5 case. For example, the Ramos petitioner delayed treatment for 121 days. Conversely, while the Mejias petitioner sought care shortly after vaccination, he was then only seen twice before an eight-month gap in treatment and underwent no physical therapy. Rather, I find the following cases, all awarding $65,000.00 in pain and suffering, to be the best comparables to the instant claim. See generally Henderson v. Sec'y of Health & Hum. Servs., No. 20-1261V, 2023 WL 2728778 (Fed. Cl. Spec. Mstr. Mar. 31, 2023); Griffore v. Sec'y of Health & Hum. Servs., No. 19-1914V, 2022 WL 1584682 (Fed. Cl. Spec. Mstr. Apr. 5, 2022); Magee v. Sec’y of Health & Human Servs., No. 18-185V, 2020 WL 5031971 (Fed. Cl. Spec. Mstr. July 21, 2020). These cases, like Petitioner’s claim, all involve relatively conservative treatment that largely took place over the nine to thirteen months following vaccination. However, these cases also involved petitioners whose ability to care for very young children was comprised during the course of their injuries – a unique personal circumstance justifying a slightly higher award. Accordingly, I find that $64,000.00 represents a fair and appropriate amount of compensation for Petitioner’s past or actual pain and suffering. Conclusion I award Petitioner a lump sum payment of $64,708.99, representing $64,000.00 for Petitioner’s actual pain and suffering, plus $708.99 for Petitioner’s unreimbursed 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) of the Vaccine Act. Id. 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.7 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 7 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. 5 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01969-cl-extra-10819784 Date issued/filed: 2025-03-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10353196 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1969V DAWN FELTON, Chief Special Master Corcoran Petitioner, v. Filed: January 29, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jonathan Joseph Svitak, Shannon Law Group, PC, Woodbridge, IL, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On December 23, 2020, Dawn Felton filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza vaccine administered to her on September 18, 2020. Petition, ECF No. 1. On November 4, 2024, I issued a decision awarding damages following briefing and expedited Motions Day argument by the parties. ECF No. 48. 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $53,832.92 (representing $53,127.10 for fees and $705.82 for costs). Petitioner’s Application for Fees and Costs filed Nov. 14, 2024, ECF No. 52. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. Id. at ¶ 10. Respondent reacted to the motion on November 19, 2024, representing 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. 55. Petitioner did not file a reply thereafter. Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees and costs to be awarded appropriate, for the reasons 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. 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 2 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 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. However, a few of the tasks performed by Mr. Svitak and Patrick Anderson (an associate at the firm) are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $286.60.4 Regarding the number of hours billed, there are multiple entries from Mr. Svitak and Mr. Anderson in which the time appears excessive. For example, Mr. Anderson spent 0.7 hours preparing the documentation needed for him to temporarily enter his appearance as attorney of record on March 1, 2021, and 0.3 hours drafting a notice of intent to continue in the program – an extremely basic document consisting of one sentence, on August 23, 2021. ECF No. 52-2 at 18, 23. Furthermore, Mr. Svitak and Mr. Anderson spent almost three hours, from January 2021 to January 2022, filing seven motions requesting additional time to provide the required medical records, which arguably should have been obtained prior to the claim’s filing.5 ECF No. 52-2 at 14, 16- 17, 20, 22-23. And Mr. Svitak expended twice the time normally needed to review basic documents on June 23, 2023, and October 18, 2023. Id. at 6, 8. These tasks should not 3 These entries, drafting basic documents such as an exhibit list, notice of filings, statement of completion, joint notice not to seek review, and election to accept judgment are dated as follows: 12/23/20, 11/18/21, 1/212/1/22, 4/6/22, and 4/25/22. ECF No. 52-2 at 10-11, 13, 15-16, 23. 4 This amount consists of ($280 - $168) x 0.2 hrs. + ($315 - $172) x 0.4 hrs.+ ($315 - $177) x 1.5 hrs. = $286.60. 5 The Petition in this case was filed only three months post-vaccination, and thus 27 months prior to the expiration of the Vaccine Act’s statute of limitations. Section 16(a)(2) (the applicable Vaccine Act’s statute of limitations). Because the claim was initiated so quickly, Petitioner was unable to establish six-months severity until three months after the claims’ initiation. See Section 11(c)(1)(D)(i) (Vaccine Act’s six-month severity requirement for all vaccine claims). 3 have required the amount of time billed, especially at an attorney’s hourly rate. Deducting the time I have found to be excessive reduces the amount of fees to be awarded by $1,090.50.6 Finally, I deem the total amount of time devoted to briefing damages to be excessive. See Status Report, filed Sept. 19, 2023, ECF No. 41 (reporting the parties’ dispute regarding pain and suffering); Petitioner’s Brief Regarding Damages, filed Dec. 4, 2023, ECF No. 43; Petitioner’s Reply Brief Regarding Damages, filed Feb. 1, 2024, ECF No. 45; Minute Entry, dated Oct. 25, 2024 (for Oct. 25, 2024 expedited hearing). Petitioner’s counsel expended approximately 38.7 hours drafting the damages brief and 5.4 hours drafting the reply damages brief, for a combined total of 44.1. 7 ECF No. 52-2 at 2-6. My above calculation does not include time spent preparing the initial demand which would have informed this later work, and I am therefore awarding fees associated with that task in full. See, e.g., ECF No. 52-2 at 7 (entry dated 7/18/23 – 2.0 hours expended researching damages during informal discussions). Nor am I counting time spent preparing for and participating in Motions Day, communicating with Petitioner, and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., id. at 2 (entry dated 10/24/24), 4 (entry dated 11/29/23). It is unreasonable for counsel to spend so much time briefing the issue of damages in this case, where the issues presented are not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter), 8 in which attorneys have accomplished this task in about half the time. 9 6 This amount consists of ($315 x 3.1 hrs.) + ($380 x 0.3 hrs.) = $1,090.50. 7 This total is calculated as follows: 33.3 hours billed on 11/29/23 (15 entries), 11/29/23 (nine entries), 11/30/23 (four entries), 12/1/23 (four entries), and 12/3/23 (nine entries), by Nathan Marchese at a rate of $450; 4.5 hours billed on 12/3/23 and 12/4/23, by Johnathan Svitak at a rate of $380; and 5.4 hours billed on 1/18/24 (two entries) and 2/1/24 (entries), by Johnathan Svitak at a rate of $410. ECF No. 52-2 at 2-6. 8 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). 9 See, e.g., Wirges v. Sec’y of Health & Hum. Servs., No. 19-1670V (Dec. 27, 2024) (16.8 and 7.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Tracy v. Sec’y of Health & Hum. Servs., No. 20-1312V (Dec. 27, 2024) (12.5 and 5.1 hours billed for drafting a damages brief and responsive damages brief, respectively); Tappendorf v. Sec’y of Health & Hum. Servs., No. 20-1592V (Dec. 27, 2024) (14.1and 7.9 hours billed for drafting a damages brief and responsive damages brief, respectively); Stolze v. Sec’y of Health & Hum. Servs., No. 21-0964V (Nov. 22, 2024) (11.8 and 7.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Davidson v. Sec’y of Health 4 Of course, having prevailed in this case, a fees award is generally appropriate. Damages Decision, issued Nov. 4, 2024, ECF No. 48. However, the only disputed issue was the appropriate amount of compensation for Petitioner’s past pain and suffering. Id. & Hum. Servs., No. 20-1617V (Nov. 22, 2024) (14.9 and 3.8 hours billed for drafting a damages brief and responsive damages brief, respectively); M.F. v. Sec’y of Health & Hum. Servs., No. 21-0970V (Nov. Apr. 9, 2024) (13 and 7.8 hours billed for drafting a damages brief and responsive damages brief, respectively); Axelrod v. Sec’y of Health & Hum. Servs., No. 21-0980V (Mar. 29, 2024) (11.9 and 12.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Benz v. Sec’y of Health & Hum. Servs., No. 21-1197V (Mar. 26, 2024) (19.5 and 6.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Hansler-Point v. Sec’y of Health & Hum. Servs., No. 21-0045V (Mar. 26, 2024) (9.6 and 4.9 hours billed for drafting a damages brief and responsive damages brief, respectively); Dulaney v. Sec’y of Health & Hum. Servs., No. 20-1488V (Mar. 26, 2024) (6.6 and 0.5 hours billed for drafting a damages brief and responsive damages brief, respectively); Glanville v. Sec’y of Health & Hum. Servs., No. 19-1973V (Mar. 26, 2024) (8.7 hours billed for drafting a damages brief); Stokes v. Sec’y of Health & Hum. Servs., No. 19-0752V (Feb. 29, 2024) (15.3 and 8.1 hours billed for drafting a damages brief and responsive damages brief, respectively); Richardson v. Sec’y of Health & Hum. Servs., No. 20-0674V (Feb. 9, 2024) (9.2 and 6.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Edwards v. Sec’y of Health & Hum. Servs., No. 21-0056V (Feb. 5, 2024) (11.3 and 7.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Villa v. Sec’y of Health & Hum. Servs., No. 20-0569V (Feb. 5, 2024) (6.0 and 5.6 hours billed for drafting a damages brief and responsive damages brief, respectively); Jackson v. Sec’y of Health & Hum. Servs., No. 20-0051V (Feb. 5, 2024) (15.4 and 7.7 hours billed for drafting a damages brief and responsive damages brief, respectively); 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). These decisions can (or will) 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 Dec. 7, 2024). 5 at 2. Although parties’ proposed amounts differed by almost $60,000.00, I awarded an amount much closer to that advocated by Respondent - further underscoring the extent to which Petitioner’s efforts in this behalf had a futile quality (since I ultimately found the higher figure was not adequately defended). Id. at 2, 5. And the Act permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be awarded for entitlement damages briefing (a total of 44.1 hours, or $19,251.00) by thirty percent. Such an across-the-board reduction (which I am empowered to adopt) 10 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 $5,775.30.11 ATTORNEY COSTS Petitioner requests $705.82 in overall costs and has provided receipts for all expenses. ECF No. 52-4. I have reviewed the requested costs and find them to be reasonable. And Respondent offered no specific objection to the rates or amounts sought. CONCLUSION 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 $46,680.52 (representing $45,974.70 for fees and $705.82 in 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.12 10 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). 11 This amount is calculated as follows: (33.3 hrs. x $450 x .30) + (5.4 hrs. x $380 x .30) + (5.4 x $410 x .30) = $5,775.30. 12 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 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 7