VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01993 Package ID: USCOURTS-cofc-1_20-vv-01993 Petitioner: Emily Smith Filed: 2020-12-28 Decided: 2024-04-30 Vaccine: hepatitis B Vaccination date: 2019-12-27 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: dismissed Award amount USD: AI-assisted case summary: Emily Smith, a 21-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on December 28, 2020. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of a hepatitis B vaccine administered on December 27, 2019. The case was assigned to the Special Processing Unit. The respondent recommended dismissal, arguing that the petitioner could not satisfy the statutory severity requirement, which mandates that the injury, its residual effects, or complications must have persisted for at least six months post-vaccination. The petitioner was directed to show cause why her case should not be dismissed on these grounds. Petitioner submitted sworn statements and a brief arguing her injury was eligible for the Program. The Special Master reviewed the medical records and submissions. Upon receiving the vaccine in her left arm on December 27, 2019, Ms. Smith had no prior left shoulder condition. Thirteen days later, on January 9, 2020, she presented to an orthopedist with left shoulder pain, rating it 7/10, which began after the vaccination. The orthopedist suspected an inflammatory condition and recommended rest, ice, elevation, and Naproxen. Subsequent appointments showed improvement. An EMG on February 10, 2020, indicated that her symptoms had begun to improve about two weeks prior, with only mild pain upon certain movements. By February 11, 2020, her pain, range of motion, and strength were improved. Physical therapy commenced on February 20, 2020, with goals to improve strength and function. By her last formal PT session on March 9, 2020, her pain at rest was 0/10, though she reported some difficulty with specific movements and a maximum pain level of 2-3/10. Formal PT was cut short due to the COVID-19 pandemic, and she was discharged on March 25, 2020, to continue with home exercises. There was a gap in medical records from March 2020 to January 2021. On January 26, 2021, an orthopedist conducted a virtual visit, noting that Ms. Smith's pain had resolved with formal physical therapy but returned when she resumed weightlifting. The Special Master found that the evidence indicated the injury had resolved before the six-month mark post-vaccination. The petitioner's subsequent statements, filed in October 2023, did not provide contemporaneous evidence of an ongoing injury during the critical period and contained some inaccuracies when compared to the medical records. The Special Master concluded that the petitioner had not established the statutory severity requirement, finding it more likely than not that her condition resolved prior to six months post-vaccination, with subsequent pain likely due to a new injury from weightlifting. Therefore, Ms. Smith's claim was dismissed. Petitioner was represented by Paul R. Brazil of Muller Brazil, LLP, and the respondent was represented by Emilie Williams of the U.S. Department of Justice. The decision was issued by Chief Special Master Brian H. Corcoran. Theory of causation field: Petitioner Emily Smith, age 21, received a hepatitis B vaccine on December 27, 2019, and alleged a shoulder injury related to vaccine administration (SIRVA). The claim was filed on December 28, 2020. The respondent argued that the injury did not persist for the required six months post-vaccination. Medical records indicated improvement in shoulder pain and range of motion by February 2020, with formal physical therapy concluding on March 9, 2020, and discharge due to COVID-19 on March 25, 2020. A follow-up in January 2021 noted that the pain had resolved with PT but returned upon resuming weightlifting. The Special Master, Brian H. Corcoran, found insufficient evidence that the injury persisted for at least six months post-vaccination, concluding that the pain likely resolved before the statutory period and that subsequent pain was attributable to a new injury from weightlifting. The claim was dismissed for failing to meet the statutory severity requirement. The public decision does not name specific medical experts or detail the mechanism of injury beyond the general SIRVA diagnosis. Petitioner was represented by Paul R. Brazil and respondent by Emilie Williams. The decision was issued on April 30, 2024. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01993-0 Date issued/filed: 2024-04-30 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 03/22/2024) regarding 38 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1993V EMILY SMITH, Chief Special Master Corcoran Petitioner, v. Filed: March 22, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent. DECISION DISMISSING CASE1 On December 28, 2020, Emily Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Program”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of a hepatitis B (“hep B”) vaccine administered to her on December 27, 2019. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). Based on Respondent’s opposition and careful review of the entirety of Petitioner’s submissions, I find that there is not preponderant evidence that the alleged injury or its residual effects or complications persisted for at least six months post-vaccination. See Section 1 Because this unpublished decision 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 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-01993-UNJ Document 40 Filed 04/30/24 Page 2 of 8 11(c)(1)(D)(i). Therefore, her claim is not eligible to proceed within the Vaccine Program, and it must be dismissed. I. Procedural History The December 2020 petition was initially supported by affidavits from Petitioner, Ex. 1, and from her counsel, Ex. 2 (averring that the petition was filed prior to Respondent’s anticipated declassification of SIRVA as a Table injury).3 Most of the required medical records were filed as Exs. 3 – 7 in September 2021 (ECF No. 12), followed the case’s assignment to SPU in February 2022 (ECF No. 18), and one final set of outstanding medical records as Ex. 8 in April 2022 (ECF No. 23). On May 24, 2023, Respondent filed his Report pursuant to Vaccine Rule 4(c) in which he recommended dismissal on the grounds that Petitioner could not satisfy the statutory severity requirement. Rule 4(c) Report (ECF No. 33) at 5-6. On August 8, 2023, Petitioner was directed to show cause why her case should not be dismissed for that reason. Show Cause Order (ECF No. 35). On October 10, 2023, Petitioner filed sworn fact witness statements as Exs. 9 – 12 (ECF No. 36),4 and a brief averring that her injury was eligible for the Program. Show Cause Response (ECF No. 37). The matter is now ripe for adjudication. II. Authority The petitioner carries the burden of establishing the matters required in the petition by a preponderance of the evidence. Section 13(a)(1)(A). One such requirement is documentation demonstrating severity – generally, that the injured party “suffered the residual effects or complications of such [vaccine-related] illness, disability, injury, or condition for more than 6 months after the administration of the vaccine.” Section 3 On July 20, 2020, the Secretary of Health and Human Services proposed the removal of SIRVA from the Vaccine Injury Table. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Proposed Rule, 85 Fed. Reg. 43794 (July 20, 2020). The proposed rule was finalized six months later. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Final Rule, 86 Fed. Reg. 6249 (Jan. 21, 2021). Approximately one month later, the effective date for the final rule was delayed. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Delay of Effective Date, 86 Fed. Reg. 10835 (Feb. 23, 2021) (delaying the effective date of the final rule until April 23, 2021). On April 22, 2021, the final rule removing SIRVA from the Vaccine Table was rescinded. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Withdrawal of Final Rule, 86 Fed. Reg. 21209 (Apr. 22, 2021). 4 All statements are sworn under penalty of perjury. See 28 U.S.C.A. § 1746 (providing that such a declaration may be afforded “like force and effect” as an affidavit). 2 Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 3 of 8 11(c)(1)(D)(i)5; see also Black v. Sec’y of Health & Human Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning that the “potential petitioner” must not only make a prima facie case, but clear a jurisdictional threshold, by “submitting supporting documentation which reasonably demonstrates that a special master has jurisdiction to hear the merits of the case”), aff’d, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted). Congress has stated that the severity requirement was designed “to limit the availability of the compensation system to those individuals who are seriously injured from taking a vaccine.” H.R. REP. 100-391(I), at 699 (1987), reprinted in 1987 U.S.C.C.A.N. 2313–1, 2313–373, cited in Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1335 (Fed. Cir. 2011), cert. denied, 132 S.Ct. 1908 (2012); Wright v. Sec’y of Health & Human Servs., 22 F.4th 999, 1002 (Fed. Cir. 2022). The Act prohibits finding a petition requirement “based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.” Section 13(a)(1). Medical records must be considered, see Section 13(b)(1), and are generally afforded substantial weight. Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). 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)). However, the Federal Circuit has 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). It is thus certainly the case that factual matters required to prove elements of a Vaccine Act claim may be established by a mix of witness statements and record proof, with the special master required to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 (2013) (citing Section 12(d)(3); Vaccine Rule 8), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). III. Medical Record Evidence Upon receiving the subject vaccine in her left arm on December 27, 2019, (see Ex. 3 at 3), Petitioner had “no prior left shoulder condition.” Resp. Report at 2; see generally Exs. 4-5 (primary care records). She was twenty-one (21) years old, enjoyed “running 5 Section 11(c)(1)(D) presents two alternative grounds for eligibility to compensation if a petitioner does not meet the six months threshold: (ii) death from the vaccine, and (iii) inpatient hospitalization and surgical intervention. Neither alternative is alleged or implicated in this claim. 3 Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 4 of 8 and lifting,” and was studying neuroscience at a university approximately one hour away from home. Ex. 8 at 114. Thirteen (13) days post-vaccination, on January 9, 2020, Petitioner presented as a new patient to an orthopedist to address left shoulder pain “for the past 2 weeks… start[ing] on 12/27/19 after receiving her hepatitis B vaccine.” Ex. 8 at 12. She recalled that the shot had been placed “higher than usual.” Id. She rated her pain at 7/10, which was worsened by forward and lateral flexion, and improved by rest. Id. Physical exam revealed mild tenderness to palpation over the biceps tendon and lateral deltoid; 4/5 strength on several measures; mildly reduced AROM on forward flexion (170 degrees); and a positive Hawkins test (evidencing impingement). Id. at 13. The orthopedist suspected “an inflammatory condition localized to the L shoulder such as Parsonage- Turner syndrome.” Id. at 14. The orthopedist recommended rest, ice, elevation, and Naproxen to treat her pain,6 pending an EMG. Ex. 8 at 14; see also id. at 40-41 (unremarkable x-ray findings). On January 17, 2020, Petitioner reported that her EMG had been scheduled for February 10th and her orthopedics follow-up appointment for the next day. Ex. 8 at 57. In the interim, she requested recommendations for treating her shoulder pain – noting that the Naproxen had not helped and caused gastrointestinal side effects. Id. She had been taking ibuprofen “when the pain is really intense, which has some effect but doesn’t help very much.” Id. The orthopedist recommended ibuprofen and ice, and he placed a referral for physical therapy (“PT”). Id. at 56. At the February 10, 2020, EMG appointment, Petitioner reported the same history of post-vaccination shoulder pain. Ex. 8 at 68. “Following the vaccine, she had shoulder pain and difficulty with any range of motion (flexion, abduction). Symptoms began to improve about 2 weeks ago. At this time, she notes twinges of pain with donning her coat and opening the door. She returned to weight training yesterday, and noted a sensation of asymmetry when using her shoulder, without frank pain… There is mild pain over the border of the upper trapezius on the left, present only over the past few weeks.” Id. During this appointment, a physical exam found full strength, full range of motion with some pain, and a “mildly positive” empty can test. Id. The EMG found no evidence of Parsonage- Turner syndrome, neuropathy, or radiculopathy. Id. The orthopedist promptly acknowledged the findings. Id. at 69. 6 Within this medical record, the current medication list reflects that Petitioner was also taking butalbital- acetaminophen-caffeine tablets as needed. Ex. 8 at 3. This medication does not appear to have been newly prescribed to treat shoulder pain – and instead, seems more likely a treatment for Petitioner’s preexisting migraine headaches. 4 Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 5 of 8 The next day, February 11, 2020, the orthopedist recorded that Petitioner’s pain, range of motion, and strength were “improved since our last visit.” Ex. 8 at 78. A physical exam revealed the same mild tenderness at the biceps tendon and lateral deltoid, 4/5 strength, and mildly reduced AROM on forward flexion – but a negative Hawkins test (previously positive). Id. at 80. The orthopedist’s assessment was “less impingement signs[,] more signs of supraspinatus tendonitis,” and shoulder weakness, for which Petitioner should undergo formal PT and follow up with him as needed. Id. At the February 20, 2020, PT initial consult (also recorded as the first visit), Petitioner provided a similar history of post-vaccination shoulder pain. Ex. 8 at 114. “[The pain] lingered and got gradually worse over the past month. She states about a month ago she did notice the pain getting better, but now she feels really weak and achy. Rates pain 3-4/10 and describes it as tweaky… She would like to return to lifting weight[s] and sleeping through the night.” Id. Physical exam of the left shoulder/arm revealed mild tenderness at the biceps tendon and lateral deltoid, 4/5 strength, and normal range of motion – including on forward flexion (175 degrees, equivalent to the non-injured right arm); and no impingement signs. Id. at 114 – 15. The therapist planned to improve Petitioner’s left upper extremity and scapular strength. Id. at 115. The goals were for Petitioner to demonstrated independence with a home exercise program (“HEP”); restore “independent and safe” overhead lifting and reaching, self-care and grooming, and activities of daily living; and improve her functional score of 73/100 by at least 10%. Id. at 115 – 16. The therapist planned 2-3 formal sessions per week for 4 weeks – while certifying that the plan of care would “be reviewed in 30 days.” Id. at 116; see also id. at 104-05 (home exercise worksheets provided to Petitioner that same day). Petitioner returned for formal PT sessions on February 24; March 2; March 4; and March 9, 2020. Ex. 8 at 142-44, 165-66, 179-80, 202-03. The records do not specifically document whether her strength was improving or whether she was progressing towards her other goals. At the last visit on March 9, 2020, Petitioner reported that at rest, her pain level was 0/10. Id. at 202. But she reported difficulty putting on a shirt and opening doors, and a maximum pain level of 2-3/10. Id. The therapist recorded a need for “cuing to avoid excessive ant[erior] stress on left shoulder [and…] to achieve optimal scapular retraction and stabilization.” The therapist planned to “cont[inue] to progress with focus on strength.” Id. at 203. Petitioner cancelled three further PT visits citing the emerging Pandemic. Id. at 215, 222, 235. On March 25, 2020, Petitioner communicated that she was “not planning to return [to PT] at this time.” Ex. 8 at 266. The therapist recorded: “Symptom[s] were unchanged 5 Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 6 of 8 at last visit. VAS7 of 2-3/10. D/c due to COVID-19.” Id. The therapist was then prompted to select a reason for discharge. Id. She chose: “Patient has reached a plateau in their progress, minimal changes expected” – but wrote in, again, that the discharge was “due to COVID-19 pandemic.” Id. The therapist recorded that Petitioner would be discharged to continue with her independent HEP. Id.8 On January 14, 2021 – ten months later - an employee of the orthopedics practice recorded that Petitioner had “request[ed] a new PT script for continued shoulder pain.” Ex. 8 at 293. The employee questioned: “[s]he hasn’t been since 2/11/2020, is this something we could get or would she need a vv with [the orthopedist] first?” Id. On January 26, 2021, the orthopedist conducted a virtual visit “for follow up of left shoulder impingement.” Ex. 8 at 300. He recorded Petitioner’s report that “pain resolved with formal PT, however in the past months, she progressed her activity to weightlifting in the gym and the pain has returned. She describes the pain as mild, lateral in location, and worse with abduction against resistance, typing on the computer, and using her phone. She denies any new symptoms at this time.” Id. In his assessment, the orthopedist reiterated: “[Petitioner’s] symptoms had resolved a year ago with formal physical therapy but returned when she began lifting weight in the gym again.” Id. He recommended home exercises; ice and NSAIDs for pain; and following up as needed. Id. However, there are no further medical records. Status Report filed Sept. 22, 2022 (ECF No. 28). IV. Respondent’s Rule 4(c) Report and Show Cause Analysis To establish the statutory severity requirement, Petitioner must demonstrate that after her December 27, 2019, vaccination, her shoulder injury persisted for at least six months – until at least June 27, 2020. Respondent argues, citing to the medical records, that “preponderant evidence demonstrates that Petitioner’s left shoulder injury… resolved less than six months post-vaccination, and that her complaints upon her return to care were likely a new injury, attributable to her weightlifting.” Rule 4(c) Report at 5. On preliminary review, I found these arguments to be well-founded – noting that Petitioner’s pain and mild limitations in range of motion were already improving by about six weeks post-vaccination. Show Cause Order at 5. The subsequent PT records 7 Presumably an abbreviation for visual analogue scale – which is a measure of pain intensity. See Visual Analogue Scale, Physiopedia, https://www.physio-pedia.com/Visual Analogue Scale (last accessed Mar. 21, 2024). 8 Both parties suggest that Petitioner actually attended a PT session on March 25, 2020. See Rule 4(c) Report at 3; Show Cause Response at 3, 6. But there is little evidence to support that interpretation – given that the record describes only Petitioner’s statements to the therapist, and she had canceled three prior encounters in light of the Pandemic. 6 Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 7 of 8 reflected further decreases in pain, and the initial PT certification was for just 4 weeks. Id. Although that initial PT course was cut somewhat short by the Pandemic (with a discharge on March 25, 2020), it seems more likely than not given the overall record that Petitioner’s condition was highly likely to resolve fully not long thereafter. Id. That was followed by a nine-month gap in any medical record documentation or even patient portal messages evidencing an ongoing injury. Id. That gap is followed by the orthopedist’s follow-up appointment which noted that Petitioner’s post-vaccination pain “resolved,” and then “returned when she began lifting weight in the gym again.” Id. at 6. Such medical record documentation is typically seen as reliable – including the patient’s own history therein – and the explanation for pain recurrence seemed logical in this case. Id. But Petitioner received a further opportunity to offer any further evidence and briefing. V. Petitioner’s Show Cause Response and Further Analysis In arguing that her claim should proceed, Petitioner maintains that she was “clearly symptomatic” in March 2020, and that there is no contemporaneous evidence of a full recovery – only a “treatment gap.” Show Cause Response at 6. As previously noted in the Order to Show Cause, however, the available evidence indicates that the injury was already improving by six weeks post-vaccination, and further improved by the last formal PT session which was on March 9, 2020 – two months and thirteen days post-vaccination. Therefore, the available evidence suggests that Petitioner’s injury would likely have fully recovered by six months post-vaccination. Petitioner has submitted some additional statements, all prepared in October 2023. Two are unhelpful because they skip over the crucial “treatment gap” in this case (from March 2020 – January 2021).9 The other statements, from Petitioner and her mother, describe that the vaccine injury persisted past her March 2020 formal PT discharge, despite daily adherence to the provided home exercise program plus additional suggestions found online. Petitioner wanted additional treatment for her shoulder in fall 2020, but that was delayed because of other family members’ more emergent medical concerns involving hospitalizations; financial constraints; and their high-deductible health insurance plan. These statements lack any discussion of Petitioner resuming or increasing her weightlifting regimen, or suffering any aggravation or new injury, however 9 A friend recalls being with Petitioner “almost every waking hour” while they were in college together, but also that they were sent home “due to COVID in March 2020.” Ex. 9 at ¶¶ 1 – 3. The friend’s recollections then jump forward to her “being surprised when [Petitioner] was still complaining about pain from her shoulder during the Spring 2021 semester.” Id. at ¶ 4. Similarly, while Petitioner’s former boyfriend recalls how the post-vaccination injury impacted her daily life during the spring 2020 semester, he seems to skip forward to their “catch[ing] up via a phone call in the fall of 2021.” Ex. 12 at ¶ 4. 7 Case 1:20-vv-01993-UNJ Document 40 Filed 04/30/24 Page 8 of 8 – which is the key concern identified in the Rule 4(c) Report and the Show Cause Order. See generally Exs. 10 – 11. The October 2023 statements also contain some inaccuracies when compared to the contemporaneous medical record documentation. For instance, Petitioner recalls attending “about two months” of formal PT, Ex. 11 at ¶ 4, when it was actually just five formal PT sessions within a single month. Her mother’s recollection of the health insurance deductible amount is higher than what is reflected in the contemporaneous records. Compare Ex. 10 at ¶ 5 and Ex. 8 at 214. And notwithstanding the asserted concern about treatment costs, the over nine-month-gap in any contemporaneous documentation or even patient portal messages to established providers (which Petitioner had utilized in the past, and would not obviously cost anything) cuts against the allegation of an ongoing injury or residual effects. The only other medical record evidence relevant to severity demonstrates that Petitioner’s shoulder pain had “resolved with formal PT however, in the past months, she progressed her activity to weightlifting in the gym and the pain has returned” as of January 2021. Ex. 8 at 300. Petitioner argues that the formal PT records ending in March 2020 do not document a full recovery, and any “resolution” should be attributed to her HEP, which continued on to some later date. Show Cause Response at 6. She also argues that the above description does not sound like a new injury, but rather, an aggravation or residual effects of the vaccine injury. Id. at 7. However, the overall balance of evidence weighs against this determination, and better supports the conclusion that she had recovered prior to the severity cut-off, with subsequent issues not likely attributable to any initial vaccine reaction, but instead reflective of a new, unrelated injury. Conclusion Petitioner has not established the statutory severity requirement. Therefore, she is ineligible to pursue compensation under the Program. In the absence of a timely-filed motion for either reconsideration or review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this Decision.10 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 10 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 8 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01993-cl-extra-10820640 Date issued/filed: 2025-03-11 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10354052 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1993V EMILY SMITH, Chief Special Master Corcoran Petitioner, v. Filed: February 4, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On December 28, 2020, Emily Smith filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Program”). Petitioner alleged that after her receipt of a hepatitis B (“hep B”) vaccine on December 27, 2019, she suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, lasting over six months. Petition (ECF No. 1). I previously concluded that there was not preponderant evidence that Petitioner’s alleged injury persisted for at least six months post-vaccination, and therefore the claim 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). warranted dismissal. Dismissal Decision (ECF No. 38), available at Smith v. Sec’y of Health & Hum. Servs., No. 20-1993V, 2024 WL 1886118 (Fed. Cl. Spec. Mstr. Mar. 22, 2024). That decision – including the summary of the previous procedural history, and the underlying evidence – is fully incorporated and relied upon herein. For the reasons discussed below, I find that even though the claim was untenable, there was a reasonable basis for Petitioner’s claim, and she is otherwise entitled to an award of attorneys’ fees and costs. I. Post-Dismissal Procedural History As noted above, the claim was dismissed in March 2024. Judgment entered on April 26, 2024. ECF No. 39. On July 29, 2024, Petitioner filed a motion requesting $15,381.75 (representing $14,532.70 in attorneys’ fees, and $849.05 for attorneys’ costs). ECF No. 42 at 2. However, the application does not address the statutory requirements of good faith and reasonable basis – prerequisites for any attorney’s fees and costs award in unsuccessful cases. See Section 15(e)(1). On July 31, 2024, Respondent filed a response, in which he defers to my determination of whether the statutory requirements for an award of attorneys’ fees and costs are met in this uncompensated case. ECF No. 43. Petitioner has not filed a reply. The matter is ripe for adjudication. II. Reasonable Basis A. Applicable Legal Standards Motivated by a desire to ensure that petitioners have adequate assistance from counsel when pursuing their claims, Congress determined that attorney’s fees and costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S.Ct. 1886, 1895 (2013) (discussing this goal when determining that attorneys’ fees and costs may be awarded even when the petition was untimely filed). This is consistent with the fact that “the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Hum. Servs., 105 Fed. Cl. 627, 634 (2012). Indeed, it may be the only federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs. However, Congress did not intend that every losing petition be automatically entitled to attorney’s fees. Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful 2 case. The special master or court may award attorney’s fees and costs to an unsuccessful claimant only if “the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). Reasonable basis is a prerequisite to a fee award for unsuccessful cases – but establishing it does not automatically require an award, as special masters are still empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these two requirements are satisfied, a special master retains discretion to grant or deny attorneys’ fees”). As the Federal Circuit has explained, whether a discretionary fees award is appropriate involves two distinct inquiries, but only reasonable basis is at issue herein.3 Reasonable basis is deemed “an objective test, satisfied through objective evidence.” Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Cottingham I”). “The reasonable basis requirement examines “not at the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The Federal Circuit recently explained “that a reasonable basis analysis is limited to objective evidence, and that subjective considerations, such as counsel’s subjective views on the adequacy of a complaint, do not factor into a reasonable basis determination.” James-Cornelius, 984 F.3d at 1379. Although clearly easier to meet than the preponderant standard required for compensation, “courts have struggled with the nature and quantum of evidence necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Hum. Servs., 155 Fed. Cl. 665, 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must furnish some evidence in support of the claim.’” Id. Citing the prima facie elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed that the level of the objective evidence sufficient for a special master to find reasonable basis 4should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so much as set its outer bounds.” Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328, 333, (Fed. Cl. 2022) (“Cottingham II”), aff’d without op., 2023 WL 754047 (Fed. Cir. Nov. 14, 2023). “[T]he Federal Circuit’s statement that a special master ‘could’ find reasonable basis based upon more than a mere scintilla does not 3 Claimants must also establish that the petition was brought in good faith. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 289 (2014)). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99- 0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). But good faith is not disputed herein, and I do not ascertain evidence in the record calling it into question. 3 mandate such a finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971 F.3d at 1346). Furthermore, the issue of reasonable basis is not a static inquiry. Reasonable basis for a claim at the time of filing may cease to exist as further evidence is presented. Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s determination that reasonable basis was lost after Petitioner’s “expert opinion, which formed the basis of the claim, was found to be unsupported by either medical literature or studies.” Id. at 1376. At issue here, Vaccine Act Section 11(c)(1)(D)(i) requires the establishment of an injury and residual effects lasting for over six months after the date of vaccination. This is a threshold requirement for entitlement. Black v. Sec’y of Health & Hum. Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning that the “potential petitioner” must not only make a prima facie case, but clear a jurisdictional threshold, by “submitting supporting documentation which reasonably demonstrates that a special master has jurisdiction to hear the merits of the case”), aff’d, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted). B. Analysis As noted in the Dismissal Decision, Petitioner’s allegedly causal vaccination (which took place on December 27, 2019) was followed by an initially acute shoulder injury. A January 9, 2020 orthopedics initial consult documented a 7/10 pain rating, tenderness, mildly reduced AROM on forward flexion, and a positive Hawkins test (evidencing impingement). Smith, 2024 WL 1886118, at *2. But the injury was treated relatively conservatively – briefly with Naproxen that was discontinued in light of gastrointestinal side effects, followed only by over-the-counter pain medication. Id. at *3. Petitioner then attended one orthopedics follow-up, and underwent an EMG which did not identify any neurological injury. Smith, 2024 WL 1886118, at *3. Her pain and mild limitations in range of motion improved with just five PT sessions, spanning from February 20 to March 9, 2020. Id. She was formally discharged from PT – citing both a “plateau” in progress and the emerging Pandemic – on March 25, 2020. Id. at *4. The PT course was followed by an eight-month gap in any medical record documentation or even patient portal messages (which Petitioner and her medical providers had utilized at other times), and then by a January 2021 virtual appointment with her orthopedist (coinciding with the filing of this compensation claim). Smith, 2024 WL 1886118, at *4. In January 2021, the orthopedist characterized the appointment as a “follow up of left shoulder impingement,” but also recorded Petitioner’s report that “pain 4 resolved with formal PT, however in the past months, she progressed her activity to weightlifting in the gym and the pain has returned.” Id. In his assessment, the orthopedist reiterated: “[Petitioner's] symptoms had resolved a year ago with formal physical therapy but returned when she began lifting weight in the gym again.” Id. The Dismissal Decision explained that the medical records supported a determination that Petitioner’s post-vaccination shoulder injury was not particularly severe, improved by the last formal medical record from March 9, 2020, and likely resolved within six months of vaccination. Smith, 2024 WL 1886118, at *5. The January 2021 orthopedics follow-up record also supported such a conclusion, in specifically stating that Petitioner’s post-vaccination injury “resolved with formal physical therapy,” and was followed by a “return” of symptoms associated with lifting weights. Id. That positive evidence of the alleged vaccine injury’s resolution, and a specifically identified alternative cause for a later (albeit) similar injury were significant obstacles, which were not sufficiently cured by later sworn declarations. Id. Overall, and after weighing the evidence, I determined that here was not preponderant evidence of a post-vaccination injury lasting for at least six months, as required to proceed in the Program under Section 11(c)(1)(D)(i) – requiring the claim’s dismissal. But the current inquiry is whether or not this unsuccessful claim possessed a reasonable basis – an inquiry governed by a much lower evidentiary standard. In that context, I see some minimal evidence that might have supported a favorable severity finding. First, the PT records reflect that Petitioner’s discharge was at least in part due to the Pandemic’s emergence in March 2020. Second, Petitioner and her mother swear under penalty of perjury that the injury persisted for over six months. While these statements did not ultimately carry the day in establishing the severity requirement, they must be considered. James-Cornelius, 984 F.3d 1374, 1380 (holding that “sworn testimony as to facts within the witness’s personal knowledge, such as… severity of symptoms” constituted objective evidence, during a reasonable basis analysis). Additionally, Respondent’s Rule 4(c) Report, and my own review of the objective evidence, recognized that there was objective evidence supporting many other elements of a Table SIRVA claim – including receipt of a covered vaccine; shoulder pain onset within 48 hours; and the lack of evidence for an exclusionary condition such as radiculopathy, brachial neuritis, or neuropathy. For these reasons, I find that the claim possessed a reasonable basis until it was dismissed. Therefore, the only remaining question is the appropriate amount of the attorney’s fees and costs to be awarded. 5 II. Appropriate Amount to be Awarded A. Legal Standard 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). B. Attorney’s Fees and Costs 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. Petitioner billed a reasonable amount of time using hourly rates previously approved for all attorneys and paralegals performing this work. Motion at 4 – 9. She provided supporting documentation for all claimed costs. Id. at 11 – 15. And Respondent offered no specific objection to the rates or amounts sought. See generally Response. Conclusion I have determined that an award of reasonable attorney’s fees and costs is appropriate in this case even though compensation was not awarded. Section 15(e)(1). Additionally, no reduction in the amount of attorney’s fees and costs is warranted. Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs and award a total of $15,381.75 (representing $14,352.70 in fees and $849.05 in costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. The Clerk of the Court is directed to enter judgment in accordance with this Decision.4 4 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. 6 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 7