VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01184 Package ID: USCOURTS-cofc-1_21-vv-01184 Petitioner: Karen Zeisler Filed: 2021-04-12 Decided: 2023-06-29 Vaccine: influenza Vaccination date: 2019-09-23 Condition: transverse myelitis Outcome: compensated Award amount USD: 322735 AI-assisted case summary: Karen Zeisler filed a petition under the National Vaccine Injury Compensation Program on April 12, 2021, alleging that she suffered from transverse myelitis as a result of an influenza vaccine received on September 23, 2019. The respondent, the Secretary of Health and Human Services, denied that the flu vaccine caused Ms. Zeisler's transverse myelitis or any other injury. Despite maintaining their respective positions, both parties agreed to settle the case through a joint stipulation filed on June 29, 2023. Special Master Katherine E. Oler reviewed the file and adopted the parties' stipulation as her decision. The stipulation awarded Ms. Zeisler a lump sum of $322,735.52, intended to cover first-year life care expenses, lost earnings, pain and suffering, and past unreimbursable expenses. This lump sum was to be paid as a check to the petitioner. The remainder of the damages was to be paid in the form of an annuity contract, to be purchased as soon as practicable after the entry of judgment. The Special Master ordered the respondent to purchase an annuity contract from a life insurance company meeting specific financial and rating criteria for the benefit of Karen Zeisler. This award represents compensation for all damages available under 42 U.S.C. § 300aa-15(a). The Special Master approved the award and directed that judgment be entered, unless a motion for review was filed. Petitioner was represented by Alison Haskins of Maglio Christopher and Toale, and respondent was represented by Sarah Rifkin of the U.S. Department of Justice. Theory of causation field: Karen Zeisler filed a petition alleging transverse myelitis as a result of an influenza vaccine received on September 23, 2019. The respondent denied causation. The parties reached a settlement via joint stipulation, which was adopted by Special Master Katherine E. Oler. The stipulation awarded a lump sum of $322,735.52 for first-year life care expenses, lost earnings, pain and suffering, and past unreimbursable expenses, with the remainder to be paid as an annuity. The public decision does not describe the specific theory of causation, medical experts, clinical details of the injury, onset, symptoms, tests, or treatments. The decision date was June 29, 2023. Petitioner counsel was Alison Haskins, and respondent counsel was Sarah Rifkin. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01184-0 Date issued/filed: 2023-08-01 Pages: 11 Docket text: PUBLIC DECISION (Originally filed: 6/29/2023) regarding 41 DECISION of Special Master - Stipulation. Signed by Special Master Katherine E. Oler. (emh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 1 of 11 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1184V ** * * * * * * * * * * * * * * * * * * * * * * * * * * KAREN ZEISLER, * * Petitioner, * Special Master Katherine E. Oler * * v. * * SECRETARY OF HEALTH AND * Filed: June 29, 2023 HUMAN SERVICES, * * * Respondent. * * ** * * * * * * * * * * * * * * * * * * * * * * * * Alison Haskins, Maglio Christopher and Toale, Sarasota, FL, for Petitioner Sarah Rifkin, U.S. Department of Justice, Washington, DC, for Respondent DECISION ON JOINT STIPULATION1 On April 12, 2021, Karen Zeisler (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges she suffered from transverse myelitis as a result of the influenza (“flu”) vaccine she received September 23, 2019. Id. at 1, 4. See Stipulation ¶ 2, 4 dated June 29, 2023 (ECF No. 40); see also Pet. at 1. Respondent denies “that the flu vaccine caused petitioner to develop transverse myelitis, or any other injury or condition, and denies that her current condition is a sequela of a vaccine- 1 Because this Decision contains a reasoned explanation for the action 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 Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 2 of 11 related injury.” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed June 29, 2023 that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: 1. A Lump Sum A lump sum of $322,735.52, which amount represents compensation for first year life care expenses, lost earnings, pain and suffering, and past unreimburseable expenses, in the form of a check payable to petitioner; and 2. An Annuity The remainder of damages shall be paid in the form of an annuity contract, which shall be purchased as soon as practicable after entry of judgment. Accordingly, pursuant to 42 U.S.C. § 300aa-15(f)(4), I order Respondent to purchase, and take ownership of, an annuity contract as described below: Each Life Insurance Company must meet the following criteria: 1. Have a minimum of $250,000,000 of capital and surplus, exclusive of any mandatory security valuation reserve; and 2. have one of the following ratings from two of the following rating organizations: a) A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b) Moody’s Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa; c) Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; d) Fitch Credit Rating Company, Insurance Company Claims-Paying Ability Rating: AA-, AA, AA+, or AAA. The Secretary of Health and Human Services shall purchase an annuity contract from the Life Insurance Company for the benefit of Karen Zeisler as described in paragraph 10 of the attached Stipulation. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 2 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 3 of 11 I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith.3 IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review. 3 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 4 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 5 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 6 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 7 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 8 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 9 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 10 of 11 Case 1:21-vv-01184-UNJ Document 45 Filed 08/01/23 Page 11 of 11 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01184-cl-extra-10734306 Date issued/filed: 2024-09-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267716 -------------------------------------------------------------------------------- CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: May 22, 2024 * * * * * * * * * * * * * * KAREN ZEISLER, * * Petitioner, * No. 21-1184V * Special Master Oler v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Danielle Anne Strait, Maglio Christopher & Toale, Seattle, WA, for Petitioner. Sarah Black Rifkin, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On April 12, 2021, Karen Zeisler (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”). 2 Pet. at 1, ECF No. 1. Petitioner alleges she suffered from transverse myelitis as a result of the influenza (“flu”) vaccine she received September 23, 2019. Id. at 1, 4. On June 29, 2023, the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on that same day. (ECF No. 41). On September 7, 2023, Petitioner filed an application for final attorneys’ fees and costs. 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 Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2018)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. (“Fees App.”). (ECF No. 46). Petitioner requests total attorneys’ fees and costs in the amount of $173,501.71, representing $149,263.20 in attorneys’ fees and $24,238.51 in attorneys’ costs. Fees App. at 1. Pursuant to General Order No. 9, Petitioner has indicated that she personally has not incurred any costs related to the prosecution of her petition. Ex. 38 at 1. Respondent responded to the motion on September 26, 2023, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting “that the Court exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3. (ECF No. 47). Petitioner filed her reply that same day, requesting the requested fees and costs be awarded in full. (ECF No. 48). This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs. It is “well within the special master's discretion” to determine the reasonableness of fees. Saxton v. Sec'y of Health & Hum. Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec'y of Health & Hum. 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 & Hum. Servs., 85 Fed. Cl. 313, 316–18 (2008). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). 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. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. a. Reasonable Hourly Rates Petitioner requests the following rates of compensation for their attorneys at mctlaw: for Ms. Alison Haskins: $414.00 per hour for work performed in 2020, $440.00 per hour for work performed in 2021, $460.00 per hour for work performed in 2022, and $492.00 per hour for work performed in 2023; for Mr. Altom Maglio: $420.00 per hour for work performed in 2020, and $445.00 per hour for work performed in 2021; and for Ms. Diana Stadelnikas: $415.00 per hour for work performed in 2019, and $525.00 per hour for work performed in 2023. Ex. 36 at 63. These rates are consistent with what counsel have previously been awarded for their Vaccine Program 2 work and the undersigned finds them to be reasonable herein. The undersigned shall also award the requested paralegal time at the provided rates.3 b. Reasonable 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 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Hum. Servs., No. 02-1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018). 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 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018). The overall hours spent on this matter appear to be reasonable. The undersigned has reviewed the billing entries and finds that they adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable, nor has Respondent identified any entries as objectionable. Accordingly, Petitioner is awarded final attorneys’ fees in the amount of $149,263.20. c. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $24.238.51 in attorneys’ costs. This amount is comprised of DocuSign fees, acquiring medical records, postage, and the Court’s filing fee. Ex. 37 at 1-3. This amount also includes economic services performed by LitCon Group, LLC at $335.00 per hour for 35.5 hours, and $265.00 per hour for 2 hours, totaling $12,422.50, as well as life care planner services performed 3 The rates for the 20 paralegals who worked on this matter are also consistent with what has been previously awarded and in accordance with the Office of Special Masters’ fee schedule. Amy Semanie billed $145.00 in 2020, $155.00 in 2021, and $160.00 in 2022. Audrey Harper billed $165.00 in 2021, and $170.00 in 2022. Chelsea Harris billed $165.00 in 2021, and $170.00 in 2022. Danielle Matthews billed $154.00 in 2019, and $160.00 in 2020. Dashea King billed $145.00 in 2020, and $155.00 in 2021. Elena Siamas billed $170.00 in 2022, and $180.00 in 2023. Elyssa Estrella billed $160.00 in 2021 and $165.00 in 2022. Jennifer Gutierrez billed $160.00 in 2022. Kendall Wallin billed $165.00 in 2021. Kimberly Dutra billed $154.00 in 2019, $160.00 in 2020, $165.00 in 2021, and $170.00 in 2022. Kristin Harding billed $160.00 in 2022. Lindsay Wilkinson billed $160.00 in 2021, and in 2022. Mackenzie Riordan billed $160.00 in 2021, and in 2022. Makia Walker billed $165.00 in 2021. Mandy Houston billed $145.00 in 2020. Melissa Sealy billed $154.00 in 2019, and $160.00 in 2020. Tammie Adeyanju billed $165.00 in 2021, and $170.00 in 2022. Tara Thorn billed $160.00 in 2020, and $165.00 in 2021. Theresa LaCroix billed $165.00 in 2021. Vincent Antinori billed $170.00 in 2022, and $180.00 in 2023. Ex. 36 at 63-64. 3 by Ms. Lynne Trautwein at $175.00 per hour for 46.9 hours, totaling $8,207.50, plus travel expenses for the joint life care plan visit in the amount of $962.28. Id. at 84, 103-104, 110. While all these costs are typical of Vaccine Program litigation, and Petitioner has provided adequate documentation to support them, the undersigned finds that the final award of costs attributable to Ms. Trautwein’s work must be reduced. First, Ms. Trautwein billed her full hourly rate for travel without any indication that work was being performed while traveling. In the Vaccine Program, special masters traditionally have compensated time spent traveling when no other work was being performed at one-half of the hourly rate. See Williams v. Sec’y of Health & Human Servs., No. 16-24V, 2020 WL 3619504, at *2 (Fed. Cl. Spec. Mstr. Jun. 23, 2020); Hocraffer v. Sec’y of Health & Human Servs., No. 99– 533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. Jul. 25, 2011); Rodriguez v. Sec’y of Health & Human Servs., No. 06–559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs., No. 01–61V, 2006 WL 3419805, at *12–13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). The billing records indicate that Ms. Trautwein billed 19 hours for travel. Ex. 37 at 103-104. Accordingly, $1,662.50 is reduced from the final award of costs. Additionally, the billing entries indicate that Ms. Trautwein typically billed at least 12 minutes for all communications such as sending emails and making phone calls. Upon review, this has led to an overall issue of excessive hours billed, as it is unlikely that most of Ms. Trautwein’s emails took at least 12 minutes to draft. An appropriate reduction for this overbilling is $500.00. Accordingly, Petitioner is awarded final attorneys’ costs in the amount of $22,076.01. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. The undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows: Attorneys’ Fees Requested $149,263.20 (Reduction to Fees) - Total Attorneys’ Fees Awarded $149,263.20 Attorneys’ Costs Requested $24,238.51 (Reduction to Costs) ($2,162.50) Total Attorneys’ Costs Awarded $22,076.01 Total Amount Awarded $171,339.21 Accordingly, the undersigned awards a lump sum in the amount of $171,339.21 representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s attorney, mctlaw, and requests the check be forwarded to mctlaw, 1605 Main Street, Suite 710, Sarasota, Florida 34236. 4 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.4 IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master 4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 5