VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-02034 Package ID: USCOURTS-cofc-1_20-vv-02034 Petitioner: Jacqueline Archibald Filed: 2020-12-30 Decided: 2023-09-05 Vaccine: Tdap Vaccination date: 2019-09-05 Condition: brachial neuritis Outcome: compensated Award amount USD: 99362 AI-assisted case summary: Jacqueline Archibald filed a petition for compensation under the National Vaccine Injury Compensation Program alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) and Parsonage Turner Syndrome (PTS) as a result of a tetanus-diphtheria-acellular-pertussis (Tdap) vaccine administered on September 5, 2019. The original petition was filed on December 30, 2020. Respondent filed a Rule 4(c) report conceding that Petitioner is entitled to compensation for PTS, noting that the injury's onset occurred within two to twenty-eight days following the Tdap vaccination. Respondent also agreed that the case was timely filed, the vaccine was administered in the United States, and Petitioner met the statutory severity requirement. A ruling on entitlement was issued on March 6, 2023, finding Petitioner entitled to compensation for PTS. Subsequently, on August 2, 2023, Respondent filed a proffer on award of compensation, recommending an award of $95,000.00 for pain and suffering and $4,362.12 for past unreimbursable expenses, totaling $99,362.12. Petitioner agreed with this proffered award. The Chief Special Master issued a decision awarding damages on September 5, 2023, granting Petitioner a lump sum payment of $99,362.12. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-02034-0 Date issued/filed: 2023-04-06 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 03/06/2023) regarding 44 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-02034-UNJ Document 46 Filed 04/06/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2034V UNPUBLISHED JACQUELINE ARCHIBALD, Chief Special Master Corcoran Petitioner, Filed: March 6, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Respondent. Shoulder Injury Related to Vaccine Administration (SIRVA); Parsonage Turner Syndrome (PTS) Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On May 5, 2022, Jacqueline Archibald filed an amended petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) and Parsonage Turner syndrome (“PTS”)3 as a result of a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccine administered to her on September 5, 2019. Amended Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished Ruling contains a reasoned explanation for the action 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 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). 3 PTS is also known as brachial neuritis and as neuralgic amyotrophy. Case 1:20-vv-02034-UNJ Document 46 Filed 04/06/23 Page 2 of 2 On March 6, 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 states that Petitioner “suffered brachial neuritis, the onset of which occurred within two to twenty-eight days following her September 5, 2019 Tdap vaccination.” Id. at 7. Respondent further agrees that “the records show that the case was timely filed, that the vaccine was administered in the United States, and that [P]etitioner satisfies the statutory severity requirement by suffering the residual effects or complications of her injury for more than six months after vaccine administration.” Id. at 8. 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-02034-1 Date issued/filed: 2023-09-05 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 08/03/2023) regarding 52 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-02034-UNJ Document 56 Filed 09/05/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2034V JACQUELINE ARCHIBALD, Chief Special Master Corcoran Petitioner, Filed: August 3, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On May 5, 2022, Jacqueline Archibald filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) and Parsonage Turner syndrome (“PTS”) as a result of a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccine administered to her on September 5, 2019. Amended Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On March 6, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for PTS. On August 2, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $95,000.00 in pain and suffering, and past unreimbursable expenses in the amount of $4,362.12. Proffer at 2. In 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-02034-UNJ Document 56 Filed 09/05/23 Page 2 of 5 the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $99,362.12 (representing $95,000.00 for pain and suffering and $4,362.12 for past unreimbursable expenses) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:20-vv-02034-UNJ Document 56 Filed 09/05/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JACQUELINE ARCHIBALD, Petitioner, No. 20-2034 Chief Special Master Brian H. Corcoran v. (ECF) SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On May 5, 2022, Jacqueline Archibald (“petitioner”) filed an Amended Petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, as amended (the “Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34.1 Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”) and Parsonage Turner Syndrome (“PTS”), as a result of a tetanus-diptheria-aceullular-pertussis (“Tdap”) vaccine administered to her on September 5, 2019. Amended Petition at 1. On March 6, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a PTS injury,2 and on March 6, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 43; ECF No. 44. 1 The original Petition was filed on December 30, 2020. 2 Respondent recommended that compensation be awarded for petitioner’s alleged PTS injury and denied that compensation was appropriate for petitioner’s alleged SIRVA claim. Case 1:20-vv-02034-UNJ Document 56 Filed 09/05/23 Page 4 of 5 I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $95,000.00 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 $4,362.12. 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 following3: a lump sum payment of $99,362.12, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Jacqueline Archibald: $99,362.12 3 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 Case 1:20-vv-02034-UNJ Document 56 Filed 09/05/23 Page 5 of 5 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 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Amanda Pasciuto AMANDA PASCIUTO Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 616-4847 Amanda.Y.Pasciuto@usdoj.gov Dated: August 2, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-02034-cl-extra-10735230 Date issued/filed: 2024-05-24 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268640 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2034V JACQUELINE ARCHIBALD, Chief Special Master Corcoran Petitioner, v. Filed: April 23, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 30, 2020, Jacqueline Archibald filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration and/or Parsonage-Turner syndrome as a result of a tetanus- diphtheria-acellular-pertussis vaccine administered to her on September 5, 2019. Petition at 1. On August 3, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 52. 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 $28,481.26 (representing $27,582.90 for fees, plus $898.36 for costs). Application for Attorneys’ Fees filed Feb. 26, 2024, ECF No. 58. Petitioner also filed a signed statement representing that Petitioner incurred $17.28 in personal out-of-pocket expenses. ECF No. 59. Respondent reacted to the motion on Mar. 8, 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, ECF No. 60. Petitioner filed no reply. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs to successful claimants. 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 that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 2 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. TIMELINESS OF MOTION Vaccine Rule 13 provides that a request for fees and costs must be filed no later than 180 days after judgment is entered. RCFC, Vaccine Rule 13(a). In this case, Judgment was entered on August 18, 2023, making Petitioner’s motion due on February 14, 2024. But Petitioner filed her motion on Feb. 26, 2024 – eleven days past the required deadline (accounting for the holiday on Feb. 19, 2024). Petitioner has also not offered any explanation to justify the untimely filing, nor did she file a motion for enlargement of time. This is cause by itself to deny Petitioner's request for fees and costs in its entirety. But I will nevertheless award the attorney's fees and costs in this matter. However, counsel should not expect the same leniency for future fees requests. Any future requests for fees and costs that are untimely filed, or requests for extensions that themselves are untimely, will be denied, or at least result in a curtailed award. ATTORNEY FEES The rates requested for work performed through the end of 2023 are reasonable and consistent with prior determinations and will therefore be adopted. Petitioner has also requested the same 2023 attorney hourly rate of $500 per hour for work performed by Ronald Homer in 2024. ECF No. 58. Additionally, Petitioner requests an hourly rate of $185 for paralegal work performed in 2024. Id. I find these hourly rates to be reasonable. However, the attorney’s fees must be reduced for redundant time billed for the review of status reports, correspondence cover letters, and other cursory documents prepared by another attorney. ECF No. 58 (entries dated 2/2/22; 3/21/22; 10/28/22; 11/28/22; 2/6/23; 5/17/23; 6/20/23; 7/20/23). I note that it is common practice for Conway, Homer, P.C. to have several attorneys assist over the course of a case. And I do not purport to invade the firm’s judgment in apportioning work amongst its attorneys. In some instances, such as when preparing substantive documents like the petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that document. But additional attorneys should not bill for time to review routine filings (i.e. status reports and motions for enlargement of time) when those filings were prepared (and billed for) by another attorney – and possibly at a lower rate as well. 3 This is not the first time I or other special masters have noted this particular issue concerning Conway, Homer, P.C.’s billing practices. See, e.g., Manetta v. Sec’y of Health & Hum. Servs., No. 18-172V, 2020 WL 7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Hum. Servs., No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr. Oct. 2, 2020). I will not award attorney’s fees for this redundant work. This results in a reduction in the amount of fees to be awarded of $370.50. Lastly, Petitioner has provided supporting documentation for all claimed costs. Motion at 23-36. Respondent offered no specific objection to these costs, and they will be awarded in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded the total amount of $28,128.04 3 as follows: • A lump sum of $28,110.76, (representing reimbursement in the amount of $27,212.40 in fees plus $898.36 in costs), in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Ronald Craig Homer; and • A lump sum of $17.28, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner. 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. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as f ees f or legal services rendered. Furthermore, Section 15(e)(3) prevents an attorney f rom charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 4 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. 4