VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01088 Package ID: USCOURTS-cofc-1_21-vv-01088 Petitioner: Lisa Myers Filed: 2021-03-19 Decided: 2024-09-17 Vaccine: influenza Vaccination date: 2018-10-04 Condition: Guillain-Barre syndrome (GBS) Outcome: dismissed Award amount USD: AI-assisted case summary: On March 19, 2021, Lisa Myers filed a petition alleging injury from an influenza vaccination administered on October 4, 2018. The public decision identifies the claimed injury as Guillain-Barre syndrome. Ms. Myers filed medical records and expert reports, but after two Rule 5 status conferences the court advised dismissal. On September 16, 2024, she moved for a decision dismissing her petition, acknowledging that dismissal would result in judgment against her and end her Vaccine Program rights for that claim. Special Master Thomas L. Gowen granted the motion and dismissed the petition on September 17, 2024. The public merits decision does not describe her first neurologic symptoms, onset interval, diagnostic testing, treatment, or the expert opinions. A later September 30, 2025 decision addressed attorneys' fees and costs and found the case had good faith and reasonable basis through its pendency. Theory of causation field: Adult petitioner; influenza vaccine October 4, 2018; alleged GBS/injury from vaccination. DISMISSED voluntarily after Rule 5 conferences and petitioner motion; no injury compensation. Public merits text lacks clinical chronology and expert details. SM Gowen September 17, 2024. Petition filed March 19, 2021. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01088-0 Date issued/filed: 2024-10-21 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 09/17/2024) regarding 43 DECISION of Special Master Signed by Special Master Thomas L. Gowen. (hs) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01088-UNJ Document 44 Filed 10/21/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 17, 2024 * * * * * * * * * * * * * LISA MYERS, * * Petitioner, * No. 21-1088V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Joseph Pepper, Conway Homer, P.C., Boston, MA, for petitioner. Katherine C. Esposito, U.S. Department of Justice, Washington, D.C., for respondent. DISMISSAL DECISION1 On March 19, 2021, Lisa Myers (“petitioner”), filed a petition for compensation under the National Vaccine Injury Compensation Program.2 (Petition) (ECF No. 1). Petitioner alleged that she suffered from an injury resulting from the administration of the influenza (“flu”) vaccine she received on October 4, 2018. Id. On September 16, 2024, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet’r. Mot.”) (ECF No. 42). Petitioner stated that after two Rule 5 Status Conferences, the Court advised petitioner to dismiss her claim. Pet’r. Mot. at ¶ 3. Petitioner understands that a decision dismissing her petition will result in a judgement against her. Id. at ¶ 5. Additionally, she has been advised that a judgment against her will end all her rights in the Vaccine Program with respect to this specific claim. Id. 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act. Case 1:21-vv-01088-UNJ Document 44 Filed 10/21/24 Page 2 of 2 A petitioner may prevail by proving either that (1) the vaccinee suffered an injury listed on the Vaccine Injury Table with onset beginning within a corresponding time period following receipt of a corresponding vaccine (a “Table Injury”), for which causation is presumed or that (2) the vaccinee suffered an injury that was actually caused by a vaccine. In this case, petitioner was alleging she suffered a Table-GBS as a result of receiving the flu vaccine. The Federal Circuit has determined that in certain instances, “if there is a dispute as to the nature of a petitioner’s injury, the special master may opine on the nature of the petitioner’s injury.” Contreras v. Sec’y of Health & Hum. Servs., 844 F.3d 1363, 1368 (Fed. Cir. 2017), citing Hibbard v. Sec’y of Health & Hum. Servs., 698 F.3d 1355 (Fed. Cir. 2012); see also Locane v. Sec’y of Health & Hum. Servs., 686 F.3d 1375 (Fed. Cir. 2012); Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339 (Fed. Cir. 2010)). At times the vaccine causation “question turns on the determination of the injury.” Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1349 (Fed. Cir. 2010). In Lombardi, the Federal Circuit explained: “The function of a special master is not to ‘diagnose’ vaccine-related injuries, but instead to determine ‘based on the record evidence as a whole and the totality of the case, whether it has been shown by a preponderance of the evidence that a vaccine caused the petitioner’s injury.’” Lombardi, 656 F.3d at 1343, citing Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1382 (Fed. Cir. 2009). Even though petitioner filed medical records and expert reports to support her claim, she has been unable to demonstrate that she suffered the injury she alleged by preponderant evidence. Accordingly, she cannot demonstrate that the vaccine was the cause of her injury. Thus, the information in the record indicates that there is insufficient evidence presented at this time to justify an award. In light of petitioner’s motion requesting a decision dismissing his petition, a further investigation is unwarranted. Petitioner’s motion for a decision dismissing her petition is GRANTED and the petition is hereby DISMISSED. The Clerk of the Court shall enter judgment accordingly. 3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01088-cl-extra-10733950 Date issued/filed: 2024-10-21 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267360 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 17, 2024 * * * * * * * * * * * * * LISA MYERS, * * Petitioner, * No. 21-1088V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Joseph Pepper, Conway Homer, P.C., Boston, MA, for petitioner. Katherine C. Esposito, U.S. Department of Justice, Washington, D.C., for respondent. DISMISSAL DECISION1 On March 19, 2021, Lisa Myers (“petitioner”), filed a petition for compensation under the National Vaccine Injury Compensation Program.2 (Petition) (ECF No. 1). Petitioner alleged that she suffered from an injury resulting from the administration of the influenza (“flu”) vaccine she received on October 4, 2018. Id. On September 16, 2024, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet’r. Mot.”) (ECF No. 42). Petitioner stated that after two Rule 5 Status Conferences, the Court advised petitioner to dismiss her claim. Pet’r. Mot. at ¶ 3. Petitioner understands that a decision dismissing her petition will result in a judgement against her. Id. at ¶ 5. Additionally, she has been advised that a judgment against her will end all her rights in the Vaccine Program with respect to this specific claim. Id. 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act. A petitioner may prevail by proving either that (1) the vaccinee suffered an injury listed on the Vaccine Injury Table with onset beginning within a corresponding time period following receipt of a corresponding vaccine (a “Table Injury”), for which causation is presumed or that (2) the vaccinee suffered an injury that was actually caused by a vaccine. In this case, petitioner was alleging she suffered a Table-GBS as a result of receiving the flu vaccine. The Federal Circuit has determined that in certain instances, “if there is a dispute as to the nature of a petitioner’s injury, the special master may opine on the nature of the petitioner’s injury.” Contreras v. Sec’y of Health & Hum. Servs., 844 F.3d 1363, 1368 (Fed. Cir. 2017), citing Hibbard v. Sec’y of Health & Hum. Servs., 698 F.3d 1355 (Fed. Cir. 2012); see also Locane v. Sec’y of Health & Hum. Servs., 686 F.3d 1375 (Fed. Cir. 2012); Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339 (Fed. Cir. 2010)). At times the vaccine causation “question turns on the determination of the injury.” Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1349 (Fed. Cir. 2010). In Lombardi, the Federal Circuit explained: “The function of a special master is not to ‘diagnose’ vaccine-related injuries, but instead to determine ‘based on the record evidence as a whole and the totality of the case, whether it has been shown by a preponderance of the evidence that a vaccine caused the petitioner’s injury.’” Lombardi, 656 F.3d at 1343, citing Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1382 (Fed. Cir. 2009). Even though petitioner filed medical records and expert reports to support her claim, she has been unable to demonstrate that she suffered the injury she alleged by preponderant evidence. Accordingly, she cannot demonstrate that the vaccine was the cause of her injury. Thus, the information in the record indicates that there is insufficient evidence presented at this time to justify an award. In light of petitioner’s motion requesting a decision dismissing his petition, a further investigation is unwarranted. Petitioner’s motion for a decision dismissing her petition is GRANTED and the petition is hereby DISMISSED. The Clerk of the Court shall enter judgment accordingly. 3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01088-cl-extra-11228474 Date issued/filed: 2025-12-19 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10761889 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 30, 2025 * * * * * * * * * * * * * * LISA MYERS, * * Petitioner, * No. 21-1088V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Katherine Carr Esposito, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On April 17, 2025, Lisa Myers, (“Petitioner”) filed a motion for attorneys’ fees and costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 47). For the reasons discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $73,408.82. I. Procedural History On March 19, 2021, Lisa Myers (“Petitioner”), filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that she suffered from an injury resulting from the administration of the influenza (“flu”) vaccine she received on October 4, 2018. Id. On September 16, 2024, after two Rule 5 Status Conferences, Petitioner filed a motion dismissing her petition. (ECF No. 42). On September 17, 2024, I granted Petitioner’s motion, and dismissed the petition. (ECF No. 43). 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 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018) (Vaccine Act or the Act. All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. On April 17, 2025, Petitioner filed a motion for attorneys’ fees and costs. Fees App. at 1. Petitioner requests compensation in the total amount of $73,408.82, representing $48,363.40 in attorneys’ fees and $25,045.42 in costs. Id. Pursuant to General Order No. 9, Petitioner warrants she has not personally incurred any costs in pursuit of her claim. (ECF No. 48). Respondent reacted to the fees motion on April 25, 2025, stating that “Respondent defers to the court regarding whether the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 49). Petitioner did not file a reply thereafter. The matter is now ripe for adjudication. II. Analysis Under the Vaccine Act, the special master may award reasonable attorneys’ fees and costs for a petition that does not result in an award of compensation but was filed in good faith and supported by a reasonable basis. § 300aa–15(e)(1). In this case, although the petition was eventually dismissed, I am satisfied that the case possessed both good faith and reasonable basis throughout its pendency. Respondent also has not advanced any argument that the claim lacked good faith or reasonable basis. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs. Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008). a. Attorneys’ Fees A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of Petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases in which forum rates apply, McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec'y of Health & Human Servs., No 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee Schedules for 2015-2016 and from 2017-2022, which can be accessed online. 2 Petitioner requests the following rates of compensation for her attorneys at Conway Homer, P.C.: 2019 2020 2021 2022 2023 2024 20253 Ronald Homer - - $447 $475 $500 $525 $525 Joseph Pepper $325 $355 $355 $415 $455 $485 $485 Christina Ciampolillo - - - $385 $470 $500 $500 Meridith Daniels - - $350 $410 - - - Nathaniel Enos - - - - - $360 - Patrick Kelly - - - $250 - $345 - Paralegal $145 $155 $155 $170 $185 $195 $195 These rates are consistent with what counsel and staff have previously been awarded for their Vaccine Program work and I find them to be reasonable herein. Turning next to review of the submitted billing statement, I find that the overall hours spent on this matter appear to be reasonable. The entries are reasonable and accurately describe the work being performed and the length of time it took to perform each task. Respondent has not identified any particular entries as being objectionable. Therefore, Petitioner is entitled to final attorneys’ fees of $48,363.40. b. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests attorneys’ costs in the amount of $25,045.42. This amount is comprised of acquiring medical records, postage, the Court’s filing fee, and copies. Fees App. Tab A at 51-52; see also Tab B. These administrative costs are typical in Vaccine Program cases and were reasonably incurred in this matter. Petitioner also requests reimbursement for expert services provided by Dr. David Simpson at a rate of $600.00 per hour for 18.5 hours in 2022, and a rate of $700.00 per hour for 19 hours in 2023, totaling $24,400.00. Fees App. Ex. B at 12-14. In her Motion, Petitioner asserts that Dr. Simpson’s hourly rates are “reasonable and appropriate given his credentials, as well as the benefit of his opinions in bringing petitioner’s claim to resolution.” Fees App. Tab C at 1. Based on the work Dr. Simpson performed in this case, I find his total amount billed to be reasonable and will award it in full.4 3 When petitioner filed her Motion for Attorneys’ fees and costs, the Court had not yet published the OSM Attorneys’ Forum Hour Rate Fee Schedule for 2025. Petitioner explained that time expended in this case by Conway Homer, PC during 2025, was billed at the established 2024 hourly rates, and that once the Court published its guidance, 2025 hourly rates for Conway Homer, PC would be reflected in future fee applications. Fees App. at 1, n. 1. 4 In making this finding, I do not endorse any specific hourly rate for Dr. Simpson. 3 III. Conclusion In accordance with the foregoing, I hereby GRANT Petitioner’s motion for attorneys’ fees and costs and find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as follows: Attorneys’ Fees Requested $48,363.40 (Reduction of Fees) - Total Attorneys’ Fees Awarded $48,363.40 Attorneys’ Costs Requested $25,045.42 (Reduction of Costs) - Total Attorneys’ Costs Awarded $25,045.42 Total Attorneys’ Fees and Costs $73,408.82 Accordingly, I award a lump sum in the amount of $73,408.82 representing reimbursement for Petitioner’s attorneys’ fees and costs, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance herewith.5 IT IS SO ORDERED. /s/Thomas L. Gowen Thomas L. Gowen Special Master 5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 4