VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01971 Package ID: USCOURTS-cofc-1_20-vv-01971 Petitioner: Eileen Smestad Filed: 2020-12-23 Decided: 2024-04-26 Vaccine: influenza Vaccination date: 2019-10-25 Condition: right shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 76570 AI-assisted case summary: Eileen Smestad filed a petition for compensation under the National Vaccine Injury Compensation Program alleging she suffered a right shoulder injury related to vaccine administration (SIRVA) causally related to an influenza vaccine she received on October 25, 2019. The petition was filed on December 23, 2020. The court issued a factual ruling on March 14, 2023, finding that the flu vaccine was most likely administered in Ms. Smestad's right shoulder and that onset of her pain occurred within 48 hours of vaccination. Respondent filed an amended Rule 4(c) Report on August 9, 2023, indicating that he would not contest that Ms. Smestad suffered SIRVA as defined by the Vaccine Injury Table. Based on this concession and the evidence of record, the Chief Special Master issued a Ruling on Entitlement on August 10, 2023, finding Ms. Smestad entitled to compensation. Subsequently, on March 26, 2024, Respondent filed a proffer on award of compensation, proposing an award of $76,570.35, representing $75,000.00 for pain and suffering and $1,570.35 for past unreimbursable expenses. Ms. Smestad agreed with this proffered award. The Chief Special Master issued a Decision Awarding Damages on April 26, 2024, awarding Ms. Smestad a lump sum payment of $76,570.35. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01971-0 Date issued/filed: 2023-04-18 Pages: 9 Docket text: PUBLIC ORDER/RULING (Originally filed: 03/14/2023) regarding 33 Findings of Fact & Conclusions of Law,, Scheduling Order, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 1 of 9 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1971V UNPUBLISHED EILEEN SMESTAD, Chief Special Master Corcoran Petitioner, Filed: March 14, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination; HUMAN SERVICES, Onset; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner. Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent. FINDINGS OF FACT1 On December 23, 2020, Eileen Smestad 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 right shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, which was causally related to an adverse reaction to the influenza (“flu”) vaccine she received on October 25, 2019. Petition at 1, ¶¶ 6, 16, 19. 1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Fact Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 2 of 9 For the reasons discussed below, I find the flu vaccine was most likely administered in Petitioner’s right shoulder, as alleged, and that onset of Petitioner’s pain occurred within 48 hours of vaccination. I. Relevant Procedural History During the three months following the filing of her petition, Ms. Smestad filed a signed declaration3 and the medical records required under the Vaccine Act. Exhibits 1- 12, ECF Nos. 5-6, 9; see Section 11(c). In her signed declaration, Petitioner addressed the vaccine record initially provided, which listed the site of vaccination as her left rather than right arm. Exhibit 9. Claiming this designation was incorrect, she stated that since the removal of lymph nodes under her left arm during a bi-lateral mastectomy, she has consistently requested a right arm administration for any vaccine. Id. On March 15, 2021, the case was activated and assigned to the Special Processing Unit (OSM’s process for attempting to resolve certain, likely-to-settle claims (the “SPU”)). ECF No. 10. Thereafter, Petitioner filed updated medical records and worked to finalize her demand. Exhibits 13-16, ECF Nos. 13-15, 22; Status Report, filed Mar. 21, 2022, ECF No. 23. In April 2022, she provided a second signed declaration, as well as a signed declaration from her husband who was present – receiving his own flu vaccine, when the vaccine alleged as causal was administered.4 Exhibits 17-18, ECF No. 24. On May 2, 2022, Respondent filed a Rule 4(c) Report, opposing compensation in this case. ECF No. 25. Among other things, Respondent argues that Petitioner has not demonstrated that she received the vaccine alleged as causal in her injured, right arm or shown a pain onset within 48 hours as required for a Table SIRVA injury. Id. at 8-12; see 42 C.F.R. § 100.3(a) XIV.B. & (c)(10)(ii) (pain onset requirement). Regarding situs, he emphasizes evidence which undercuts Petitioner’s claim that she always requests a right arm situs - entries in the medical records indicating prior vaccines were administered in Petitioner’s left deltoid. Id. at 8-9. Thereafter, Petitioner filed additional evidence related to the site of vaccination, including medical records regarding her prior breast cancer surgery, a signed declaration from a friend5 who usually accompanies Petitioner when obtaining vaccinations and recalled the circumstances surrounding an earlier vaccination on October 21, 2016, and 3 Petitioner’s statement comports with the requirements of 28 U.S.C.A. § 1746. 4 Both declarations are signed under penalty of perjury as required by 28 U.S.C.A. § 1746.3 5 This declaration also is signed under penalty of perjury as required by 28 U.S.C.A. § 1746. 2 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 3 of 9 additional vaccine documentation related to multiple vaccinations - including the one alleged as causal in this case, which was obtained in response to granted subpoena authority. Exhibits 19-25. ECF Nos. 28, 30-31. II. Issue At issue is whether (a) Petitioner received the vaccination alleged as causal in her injured right arm, and (b) Petitioner’s first symptom or manifestation of onset after vaccine administration (specifically pain) occurred within 48 hours as required in the Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(a) XIV.B. (2017) (Table entry for SIRVA following the influenza vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI). III. Authority 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). 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 & Hum. 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 & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)). 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 & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). 3 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 4 of 9 The United States Court of Federal Claims has 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 & Hum. 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 v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such fact testimony must also be determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. 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 & Hum. 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 I make the following findings regarding site of vaccination and onset after a complete review of the record, including medical records, signed declarations, and other additional evidence filed showing: 4 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 5 of 9 • In 2016, Petitioner experienced right shoulder, neck, and arm pain thought to be due to conditions such as cervical radiculopathy, degenerative disc disease, right shoulder osteophytes,6 a lesion of the upper ulnar nerve, tendinitis, and a possible elbow injury. Exhibit 3. Petitioner also believed some of her pain may have been due to breast cancer medication which she discontinued after a discussion with her oncologist. Id. at 11. Obtaining improvement with physical therapy (“PT”), Petitioner’s last visited her orthopedist in early August 2016. Id. at 8-13. • The medical record from a July 12, 2018 visit to Petitioner’s primary care provider (“PCP”) includes a list of current vaccines: a pneumococcal conjugate vaccine dated September 7, 2016, a flu vaccine dated October 20, 2016, and a vaccine dated October 26, 2017. Exhibit 5 at 121. All entries list the site of vaccination as Petitioner’s left deltoid, but only the entry related to the pneumococcal conjugate vaccine contains a notation providing the name of a vaccine administrator. Id. • On October 25, 2019, Petitioner received the flu vaccine alleged as causal at a CVS Pharmacy. Exhibit 1. The vaccine record initially provided appears to be a printed copy of the information contain in the CVS Pharmacy system, and indicates the vaccine was administered in Petitioner’s left deltoid. Id. at 6. • Later obtained documentation from CVS in response to a subpoena indicates the flu vaccine was administered in Petitioner’s right arm. Exhibit 24 at 4. This documentation also contains entries related to the two flu vaccines listed in Petitioner’s July 12, 2018 PCP record, showing they were administered the next day in Petitioner’s right arm (id. at 1-2), as well as another flu vaccine also administered in Petitioner’s right arm on September 29, 2018. (id. at 3). • On January 20, 2020 - almost three months after receiving the flu vaccine alleged as causal - Petitioner visited a new orthopedist, complaining of mild to moderate right shoulder pain after receiving a flu vaccine on October 31, 2019. Exhibit 8 at 2. She also reported “mild pain and stiffness in her neck with movement.” Id. Within this same record, under injury details, the date of injury is listed as November 2019. Id. Assessing Petitioner as suffering 6 An osteophyte is “a bony excrescence or osseous outgrowth.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1348 (32th ed. 2012). 5 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 6 of 9 from SIRVA, as well as cervical strain, spondylosis,7 right shoulder impingement, and biceps tendinitis, the orthopedist prescribed PT, instructed Petitioner to apply moist heat and ice, and discussed the possibility of an MRI if her symptoms continued. Id. at 3. • On her PT intake form, completed the next day (January 21st) Petitioner described her current complaint as “[p]ain in [her] right arm since [the] flu shot [on] 11/1/2019.” Exhibit 4 at 31. When discussing her prior history with the orthopedist, she also reported “feeling intermittent tingling down into her forearm [which] [s]he had experienced . . . in the past following a neck injury.” Id. Regarding this prior symptom, Petitioner indicated her “[r]adicular symptoms had resolved in the past with PT.” Id. • When pursuing massage therapy on February 5th, Petitioner again reported a “flu shot injury.” Exhibit 2 at 4. Attributing her right shoulder pain to this injury, she identified the date or injury and/or flu vaccine as October 2019. Id. at 4, 12, 14-15. Although Petitioner listed multiple areas of joint pain (id. at 14) and sometimes received massage therapy on her neck and upper back as well as right shoulder, the primary focus of her treatment was the right shoulder. See id. at 4-12. • On February 19, 2020, Petitioner returned to the orthopedist for continued right shoulder and neck pain. Exhibit 8 at 6. An MRI performed that day revealed supraspinatus and infraspinatus tendinosis with focal bursitis sided supraspinatus tendon tear, . . . [m]ild thickening in the inferior glenohumeral ligaments, . . . [and] [l]ow lying acromial process with subdeltoid bursitis.” Exhibit 4 at 28. In the history portion of the MRI report, right shoulder pain since October 2019 is indicated. Id. • From late February through March 2020, Petitioner also received acupuncture treatment for right shoulder and knee pain, as well as occasional ankle and headache pain and abdominal issues. Exhibit 2 at 18- 27. • At her third orthopedic visit on May 11, 2020, Petitioner reported that she had not been attending PT due to the COVID pandemic, but had been performing exercises at home. Exhibit 8 at 10. The orthopedist discussed 7 Spondylosis is “degenerative spinal changes due to osteoarthritis.” DORLAND’S at 1754. 6 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 7 of 9 the results of Petitioner’s MRI and possibility of arthroscopic surgery and rotator cuff repair. Id. • On August 12, 2020, Petitioner visited an orthopedic surgeon for a complaint of right shoulder pain after receiving a flu vaccine on October 25, 2019. Exhibit 11 at 4. When providing her history, Petitioner reported that she “is also dealing with a cervical issue that she thinks has been exacerbated by this” – her right shoulder injury. Id. After examining Petitioner, the orthopedic surgeon indicated that he believed Petitioner “would benefit from continued conservative management with an injection at this time.” Id. at 8. He administered a subacromial injection and instructed Petitioner to return for further discussion of her surgical options if her symptoms returned. Id. • In her witness statements, Petitioner indicated that she requested the vaccine be administered in her right, rather than left, deltoid, just before receiving the vaccination, due to the removal of her left-side lymph nodes during a bilateral mastectomy in 2003. Exhibits 9 at 1-2; 17 at 1-2. She also reported acute pain immediately upon vaccination. Exhibits 9 at 2; 17 at 2. • Petitioner’s husband and friend provided witness statements echoing Petitioner’s claims regarding administration and pain onset. Exhibit 18 at 1- 2 (husband’s statement); Exhibit 25 (friend’s statement). • Petitioner’s friend also indicated that she accompanied Petitioner to the pharmacy when receiving an earlier flu vaccine on October 21, 2016. Exhibit 25 at ¶ 3. Stating that Petitioner “always specifically tells every pharmacist to administer vaccines in her right arm” (id. at ¶ 4), she indicated that, on October 21, 2016, she “saw the CVS pharmacist who sat on [Petitioner’s] right side give her the flu shot in her right arm” (id. at ¶ 5). In every post-vaccination record containing a medical history, from the time she first sought treatment in January 2020, Petitioner consistently described right shoulder pain upon vaccination. Without fail, she attributed her injury to the flu vaccine she received. Although she sometimes mistakenly indicated that she received the vaccination on October 31st or November 1st, her situs contentions are corroborated consistently. While these entries were based upon information provided by Petitioner, they still should 7 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 8 of 9 be afforded greater weight than more current representations, as they were uttered contemporaneously with Petitioner’s injury for the purposes of obtaining medical care.8 Additionally, Petitioner has provided a compelling reason why she would request that any vaccine be administered in her right, rather than left deltoid - the removal of her left-sided lymph nodes in 2003. And she has provided signed declarations from her husband and a friend who often accompanied her when receiving other vaccinations which prove further supporting evidence of this routine request. The only evidence which points to administration in Petitioner’s left arm is the July 2018 list of prior vaccinations describing three earlier vaccines as administered in Petitioner’s left deltoid, and the initial record from Petitioner’s October 25, 2019 vaccination. Exhibit 1 at 6. However, the list of prior vaccines has little probative value because the designations related to vaccination situs appear to have been made when the vaccines were ordered, and one day prior to when they were administered at CVS. The initial vaccine record is more credible, but still countered by the more detailed record provided in response to a subpoena indicating a right arm situs, as Petitioner contends. Based upon my experience resolving SPU SIRVA cases (approximately 1,300 cases since my appointment as Chief Special Master) as well as additional SIRVA cases handled in chambers, I find it is not unusual for the information regarding site of vaccination in computerized systems to be incorrect. Many of these systems use a “dropdown” menu to enter information, and the relevant fields are often not updated each time a separate vaccine is administered to a different individual. See, e.g., Mezzacapo v. Sec’y of Health & Hum. Servs., No. 18-1977V, 2021 WL 1940435, at *6 (Fed. Cl. Spec. Mstr. Apr. 19, 2021)9; Desai v. Sec’y of Health & Hum. Servs., No 14-0811V, 2020 WL 4919777, at *14 (Fed. Cl. Spec. Mstr. July 30, 2020); Rodgers v. Sec’y of Health & Hum. Servs., No. 18-0559V, 2020 WL 1870268, at *5 (Fed. Cl. Spec. Mstr. Mar. 11, 2020); Stoliker v. Sec’y of Health & Hum Servs., No. 17-0990V, 2018 WL 6718629, at *4 (Fed. Cl. Spec. Mstr. Nov. 9, 2018). Later provided and more detailed documentation, such as the consent form, tends to be more reliable. 8 The Federal Circuit has stated that “[m]edical records, in general, warrant consideration as trustworthy evidence . . . [as they] contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that greater weight should be accorded to this information even when the information is provided by Petitioner. 9 In this ruling by another special master, the pharmacist who had administered the relevant vaccination testified that she inputs “left deltoid” into the computer system as a matter of course, without confirming the actual site of vaccination, because most vaccinees are right-handed. Mezzacapo, 2021 WL 1940435, at *6. The pharmacist’s testimony was deemed credible, and the site of vaccination found to be as the petitioner alleged, rather than what was indicated in the vaccine record. 8 Case 1:20-vv-01971-UNJ Document 35 Filed 04/18/23 Page 9 of 9 I find the detailed record produced by CVS in response to the served subpoena (and which identifies the site of vaccination as Petitioner’s right arm, as she alleges) to be more persuasive. Coupled with Petitioner’s consistent reports of administration in her right deltoid contained in the contemporaneously-created medical records, and the evidence supporting her assertion that she routinely requests a right deltoid administration and received prior vaccinations in that arm, I find Petitioner has provided preponderant evidence supporting a right arm situs. Additionally, Petitioner’s similar reports of pain upon vaccination are sufficient to establish an immediate pain onset. V. Scheduling Order During a telephonic status conference held in late July 2022, Respondent indicated he may be interested in settlement discussions if I were to determine the record contained sufficient evidence to support Petitioner’s allegations regarding situs. In early 2022, Petitioner was working to finalize her demand (ECF No. 20), but has not yet indicated that a demand has been conveyed to Respondent. Petitioner shall file a status report updating me on the parties’ efforts to informally settle this case, including her efforts to finalize her demand by no later than Friday, April 28, 2023. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 9 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01971-1 Date issued/filed: 2023-09-11 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 08/10/2023) regarding 42 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01971-UNJ Document 45 Filed 09/11/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1971V EILEEN SMESTAD, Chief Special Master Corcoran Petitioner, Filed: August 10, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner. Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 23, 2020, Eileen Smestad 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 right shoulder injury related to vaccine administration (“SIRVA”) causally related to the influenza (“flu”) vaccine she received on October 25, 2019. Petition at 1, ¶¶ 6, 16, 18. Petitioner further alleges that she suffered the residual effects of her SIRVA for more than six months and that neither she nor any other party has filed a civil case or received compensation for her SIRVA 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-01971-UNJ Document 45 Filed 09/11/23 Page 2 of 2 injury. Id. at ¶¶ 17, 20-21. The case was assigned to the Special Processing Unit of the Office of Special Masters. On March 14, 2023, I issued a factual ruling, finding the flu vaccine was most likely administered in Petitioner’s right shoulder, as alleged, and that onset of Petitioner’s pain occurred within 48 hours of vaccination. ECF 33. After Petitioner conveyed her settlement demand on August 3, 2023 (ECF No. 40), Respondent filed an amended Rule 4(c) Report, indicating that he “will not contest that [P]etitioner suffered SIRVA as defined by the Vaccine Injury Table.” Amended Rule 4(c) Report, filed Aug. 9, 2023, at 9, ECF No. 41. He further indicates that “[b]ased on the record as it now stands and subjection to his right to appeal the Findings of Fact, [he] does not dispute that [P]etitioner has satisfied all legal prerequisites for compensation under the Act.” Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01971-2 Date issued/filed: 2024-04-26 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 03/26/2024) regarding 56 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01971-UNJ Document 60 Filed 04/26/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1971V EILEEN SMESTAD, Chief Special Master Corcoran Petitioner, Filed: March 26, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner. Adam Nemeth Muffett, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 23, 2020, Eileen Smestad 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 right shoulder injury related to vaccine administration (“SIRVA”) causally related to the influenza (“flu”) vaccine she received on October 25, 2019. Petition at 1, ¶¶ 6, 16, 18. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 10, 2023, I Issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On March 26, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $76,570.35, representing compensation in the amounts of $75,000.00 for pain and suffering and $1,570.35 for past unreimbursable expenses. Proffer at 1-2. In the Proffer, Respondent 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-01971-UNJ Document 60 Filed 04/26/24 Page 2 of 5 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. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $76,570.35, representing compensation in the amounts of $75,000.00 for pain and suffering and $1,570.35 for actual 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-01971-UNJ Document 60 Filed 04/26/24 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) EILEEN SMESTAD, ) ) Petitioner, ) ) No. 20-1971V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 23, 2020, Eileen Smestad (“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 October 25, 2019. Petition at 1-2. On May 2, 2022, respondent filed a Rule 4(c) Report contesting, among other things, that petitioner was administered the flu vaccine in the right shoulder. ECF No. 25. On March 14, 2023, the Court issued a factual ruling, finding that the flu vaccine was most likely administered in Petitioner’s right shoulder, as alleged, and that onset of Petitioner’s pain occurred within 48 hours of vaccination. ECF No. 33. On August 9, 2023, respondent filed an amended Rule 4(c) Report, indicating that, in light of factual ruling, he would not contest that petitioner suffered a SIRVA as defined by the Vaccine Injury Table. ECF No. 41. On August 10, 2023, the Chief Special Case 1:20-vv-01971-UNJ Document 60 Filed 04/26/24 Page 4 of 5 Master issued a Ruling on Entitlement, finding petitioner entitled to compensation. ECF No. 42. Respondent now proffers the following regarding the amount of compensation to be awarded.1 I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $75,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. 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 $1,570.35. 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 following2: a lump sum payment of $76,570.35 in the form of a check payable to petitioner. 1 The parties have no objection to the amount of the proffered award of damages. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(f), to seek review of the Chief Special Master’s March 14, 2023 factual ruling that was the basis for the August 10, 2023 Ruling on Entitlement. This right accrues following the issuance of a Decision on Damages. 2 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-01971-UNJ Document 60 Filed 04/26/24 Page 5 of 5 III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Eileen Smestad: $76,570.35 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 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Adam N. Muffett ADAM N. MUFFETT Trial Attorney U.S. Department of Justice Torts Branch, Civil Division P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 860-9935 Adam.muffett@usdoj.gov Date: March 26, 2024 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01971-cl-extra-10735512 Date issued/filed: 2024-04-26 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268922 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1971V EILEEN SMESTAD, Chief Special Master Corcoran Petitioner, Filed: March 26, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner. Adam Nemeth Muffett, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 23, 2020, Eileen Smestad 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 right shoulder injury related to vaccine administration (“SIRVA”) causally related to the influenza (“flu”) vaccine she received on October 25, 2019. Petition at 1, ¶¶ 6, 16, 18. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 10, 2023, I Issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On March 26, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $76,570.35, representing compensation in the amounts of $75,000.00 for pain and suffering and $1,570.35 for past unreimbursable expenses. Proffer at 1-2. In the Proffer, Respondent 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). 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. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $76,570.35, representing compensation in the amounts of $75,000.00 for pain and suffering and $1,570.35 for actual 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) EILEEN SMESTAD, ) ) Petitioner, ) ) No. 20-1971V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 23, 2020, Eileen Smestad (“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 October 25, 2019. Petition at 1-2. On May 2, 2022, respondent filed a Rule 4(c) Report contesting, among other things, that petitioner was administered the flu vaccine in the right shoulder. ECF No. 25. On March 14, 2023, the Court issued a factual ruling, finding that the flu vaccine was most likely administered in Petitioner’s right shoulder, as alleged, and that onset of Petitioner’s pain occurred within 48 hours of vaccination. ECF No. 33. On August 9, 2023, respondent filed an amended Rule 4(c) Report, indicating that, in light of factual ruling, he would not contest that petitioner suffered a SIRVA as defined by the Vaccine Injury Table. ECF No. 41. On August 10, 2023, the Chief Special Master issued a Ruling on Entitlement, finding petitioner entitled to compensation. ECF No. 42. Respondent now proffers the following regarding the amount of compensation to be awarded. 1 I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $75,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. 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 $1,570.35. 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 following2: a lump sum payment of $76,570.35 in the form of a check payable to petitioner. 1 The parties have no objection to the amount of the proffered award of damages. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(f), to seek review of the Chief Special Master’s March 14, 2023 factual ruling that was the basis for the August 10, 2023 Ruling on Entitlement. This right accrues following the issuance of a Decision on Damages. 2 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 III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Eileen Smestad: $76,570.35 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 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Adam N. Muffett ADAM N. MUFFETT Trial Attorney U.S. Department of Justice Torts Branch, Civil Division P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 860-9935 Adam.muffett@usdoj.gov Date: March 26, 2024 3 ================================================================================ DOCUMENT 5: USCOURTS-cofc-1_20-vv-01971-cl-extra-10740729 Date issued/filed: 2024-11-14 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10274139 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1971V EILEEN SMESTAD, Chief Special Master Corcoran Petitioner, v. Filed: October 9, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner. Adam Nemeth Muffett, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 23, 2020, Eileen Smestad 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 right shoulder injury related to vaccine administration causally related to the influenza vaccine she received on October 25, 2019. Petition, ECF No. 1. On March 26, 2024, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 56. 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 $40,912.45 (representing $39,661.90 in fees plus $1,250.55 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed June 20, 2024, ECF No. 61. Furthermore, Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. ECF No. 61-3. Respondent reacted to the motion on June 20, 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 2-3, ECF No. 62. Petitioner filed a reply reiterating her request for fees and costs as indicated in the Motion. ECF No. 63. Thereafter, Petitioner filed an amended Motion indicating that Petitioner’s counsel’s office has relocated. ECF No. 64. 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. 61-2. 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. I award a total of $40,912.45 (representing $39,661.90 in fees plus $1,250.55 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Maglio Christopher and Toale Law. Per Petitioner’s request, the check is to be forwarded to 1515 Ringling Blvd., Suite 700, Sarasota, FL 34236. 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