VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01140 Package ID: USCOURTS-cofc-1_21-vv-01140 Petitioner: Kerrie Burkett Filed: 2021-03-31 Decided: 2023-09-15 Vaccine: influenza Vaccination date: 2020-10-30 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 87083 AI-assisted case summary: Kerrie Burkett, an adult, filed a petition for compensation under the National Vaccine Injury Compensation Program alleging she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of her October 30, 2020 influenza vaccination. The respondent conceded that Ms. Burkett was entitled to compensation, stating that she had no prior history of shoulder pain, that her pain and reduced range of motion began within 48 hours of the vaccination and were limited to the injection site, and that there was no other condition that could explain her symptoms. The respondent also agreed that the case was timely filed, the vaccination occurred in the United States, and Ms. Burkett met the statutory severity requirement. The case proceeded as a Table claim for SIRVA. On July 26, 2023, a ruling on entitlement was issued finding Ms. Burkett entitled to compensation. Subsequently, on August 21, 2023, the respondent filed a proffer on award of compensation, which Ms. Burkett agreed to. The court awarded Ms. Burkett a total of $87,082.61, consisting of $85,000.00 for pain and suffering, $1,013.39 for past unreimbursable expenses, and $1,069.22 for lost wages. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01140-0 Date issued/filed: 2023-08-21 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 7/26/2023) regarding 44 Ruling on Entitlement. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01140-UNJ Document 48 Filed 08/21/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1140V Filed: July 26, 2023 KERRIE BURKETT, Special Master Daniel Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for petitioner. Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On March 31, 2021, petitioner 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”) as a result of her October 30, 2017 influenza (“flu”) vaccination. Petition at 1. On July 13, 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 10-11. Specifically, Respondent states that: [P]etitioner had no history of left shoulder pain, inflammation, or dysfunction prior to her October 2020 flu vaccination that would explain the alleged symptoms and examination findings occurring after her vaccine injection. 1 Because this document 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 document 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa. Case 1:21-vv-01140-UNJ Document 48 Filed 08/21/23 Page 2 of 2 In addition, petitioner more likely than not suffered the onset of her left shoulder pain within forty-eight hours of her flu vaccine administration; and her left shoulder pain and reduced range of motion were limited to the should in which the vaccine was administered. There is no other condition or abnormality present that would explain petitioner’s symptoms. Id. Respondent further agrees that “the existing records show that this case was timely filed, that petitioner received her October 2020 flu vaccination in the United States, and that petitioner satisfies the statutory severity requirement by suffering the residual effects or complications of her left shoulder injury for more than six months after vaccine administration.” Id. at 11. However, respondent limits his concession “to petitioner’s left- sided SIRVA and its resulting sequelae only.” Id. On July 18, 2023, petitioner filed a status report, confirming her agreement that a ruling should be issued subject to the limitations of respondent’s concession. (See ECF No. 43.) In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation for her left-sided SIRVA and its resulting sequelae. IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01140-1 Date issued/filed: 2023-09-15 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 8/21/2023) regarding 49 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01140-UNJ Document 54 Filed 09/15/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1140V Filed: August 21, 2023 KERRIE BURKETT, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ , for petitioner. Jamica Maria Littles, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On March 31, 2021, petitioner 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”) as a result of her October 30, 217 influenza vaccination. (ECF No. 1.) On July 26, 2023, a ruling on entitlement was issued, finding petitioner entitled to compensation for SIRVA. (ECF No. 44.) On August 21, 2023, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $85,000.00 for pain and suffering, $1,013.39 for past unreimbursable expenses, and $1,069.22 for lost wages. (ECF No. 47.) In 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. 1 Because this document 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 document 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. Case 1:21-vv-01140-UNJ Document 54 Filed 09/15/23 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $87,082.61, representing $85,000.00 for pain and suffering, $1,013.39 for past unreimbursable expenses, and $1,069.22 for lost wages, in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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 1:21-vv-01140-UNJ Document 54 Filed 09/15/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) KERRIE BURKETT, ) ) Petitioner, ) ) No. 21-1140V v. ) Special Master Horner ) ECF SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________ ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On March 31, 2021, Kerrie Burkett (“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”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine that she received on October 30, 2020. Petition, ECF No. 1 at 1. On December 5, 2022, petitioner filed a Motion for Decision on the Record (“Motion”).1 ECF No. 30. Respondent filed a response to petitioner’s Motion on February 23, 2023. ECF No. 32. Petitioner filed a reply on March 9, 2023. ECF No. 33. This case was reassigned to Special Master Horner on March 10, 2023 (ECF No. 35), and on April 26, 2023, respondent filed a status report indicating that he had completed his medical review (ECF No. 38). On July 13, 2023, respondent filed his Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 40. 1 When petitioner filed her Motion on December 5, 2022, respondent had not completed his medical review of this case. Case 1:21-vv-01140-UNJ Document 54 Filed 09/15/23 Page 4 of 5 On July 26, 2023, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 44. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $85,000.00 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 $1,013.39. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees. C. Lost Wages Evidence supplied by petitioner documents that she incurred past lost wages related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past lost wages in the amount of $1,069.22. See 42 U.S.C. § 300aa-15(a)(3)(A). 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 be provided to petitioner through a lump sum payment as described below and requests that the Court’s decision and the Court’s judgment 2 Case 1:21-vv-01140-UNJ Document 54 Filed 09/15/23 Page 5 of 5 award the following2: a lump sum payment of $87,082.61, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Kerrie Burkett: $87,082.61 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/ Jamica M. Littles JAMICA M. LITTLES Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-4014 Email: jamica.m.littles@usdoj.gov DATED: August 21, 2023 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, unreimbursed expenses, future lost earnings and future pain and suffering. 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01140-cl-extra-10736021 Date issued/filed: 2024-03-05 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269431 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 31, 2024 * * * * * * * * * * * * * * UNPUBLISHED KERRIE BURKETT, * No. 21-1140V * Special Master Horner Petitioner, * * v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Andrew D. Downing, Downing, Allison, & Jorgenson, Phoenix, AZ, for Petitioner. Jamica M. Littles, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On March 31, 2021, petitioner 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”) as a result of her October 30, 2017 influenza vaccination. (ECF No. 1.) On August 21, 2022, the parties filed a proffer, which I adopted as my decision awarding compensation on the same day. (ECF No. 49). On August 22, 2023, petitioner filed an application for attorneys’ fees and costs. (ECF No. 51) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $32,994.89, representing $32,257.00 in attorneys’ fees and $737.89 in costs. Fees App. Ex. 2 at 2. Pursuant to General Order No. 9, petitioner has indicated that she has not personally incurred any costs in pursuit of this litigation. Fees App. Ex. 7. Respondent did not file a response to petitioner’s motion. This matter is now ripe for consideration. 1 I intend to post this Ruling on the United States Court of Federal Claims’ website. 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. 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). 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521. a. Hourly Rates Petitioner requests the following hourly rates for the work of his counsel: for Mr. Andrew Downing, $385.00 per hour for work performed in 2021 and $415.00 or $445.00 per hour for work performed in 2022 and $445.00 per hour for work performed in 2023; and for Ms. Courtney Jorgenson (also billing time as Courtney Van Cott), $275.00 per hour for work performed in 2021 2 and $325.00 or $345.00 per hour for work performed in 2022 and 2023 The difference in 2022 rates is due to counsel increasing their rates in-year upon changing law firms. However, the Vaccine Program typically does not award counsel increased hourly rates mid-year, especially when counsel had previously increased their hourly rate for the year and billed time at that rate, and other special masters have declined to award this mid-year increase. See, e.g., Pryor v. Sec’y of Health & Human Servs., No. 18-1288V, 2022 WL 17973236, at *4 (Fed. Cl. Spec. Mstr. Dec. 28, 2022). Accordingly, Mr. Downing and Ms. Jorgenson shall be awarded $415.00 and $325.00 per hour respectively for all work performed in 2022, resulting in a reduction of $702.00. b. Hours Expended Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Upon review, the overall number of hours billed appears to be reasonable. I have reviewed the billing entries and find that they adequately describe the work done on the case and the amount of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent identified any as such. Petitioner is therefore awarded final attorneys’ fees of $31,555.00. c. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $737.89 in attorneys’ costs. This amount is comprised of acquisition of medical records, the Court’s filing fee, and postage costs. Fees App. at 4. These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the billing records and costs in this case and finds that petitioner’s request for fees and costs is reasonable. I find it reasonable to compensate petitioner and her counsel as follows: a lump sum in the amount of $32,292.89 representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Mr. Andrew D. Downing, Esq. 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.3 3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 4