VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01222 Package ID: USCOURTS-cofc-1_21-vv-01222 Petitioner: Amorette M. Burgess Filed: 2021-04-15 Decided: 2023-07-27 Vaccine: Tdap Vaccination date: 2019-03-22 Condition: shoulder injury related to vaccine injury (“SIRVA”) Outcome: compensated Award amount USD: 102000 AI-assisted case summary: Amorette M. Burgess filed a petition on April 15, 2021, seeking compensation under the National Vaccine Injury Compensation Program. She alleged that on March 22, 2019, she received a Tdap vaccine in her left shoulder and subsequently suffered a shoulder injury related to vaccine administration (SIRVA), with residual effects lasting more than six months. The respondent, the Secretary of Health and Human Services, denied that the petitioner sustained a SIRVA Table injury, denied that the vaccine caused her alleged shoulder injury or any other injury, and denied that her current condition was a sequela of a vaccine-related injury. Despite these denials, on July 27, 2023, the parties filed a joint stipulation agreeing to an award of compensation. Chief Special Master Brian H. Corcoran reviewed the stipulation, found it reasonable, and adopted it as the decision. Pursuant to the stipulation, Ms. Burgess was awarded a lump sum of $102,000.00, payable by check to the Petitioner, as compensation for all items of damages. The public decision does not describe the specific onset of symptoms, medical examinations, diagnostic tests, treatments, or expert witnesses. Petitioner was represented by Howard Dale Mishkind of Mishkind Law Firm Co., L.P.A., and Respondent was represented by Steven Santayana of the U.S. Department of Justice. Theory of causation field: Petitioner Amorette M. Burgess alleged a shoulder injury related to vaccine injury (SIRVA) following a Tdap vaccination on March 22, 2019, with residual effects lasting over six months. Respondent denied the SIRVA Table injury and causation. The parties filed a joint stipulation for compensation on July 27, 2023. Chief Special Master Brian H. Corcoran found the stipulation reasonable and adopted it, awarding a lump sum of $102,000.00 for all damages. The public decision does not detail the specific mechanism of injury, expert testimony, or the basis for the stipulation beyond the parties' agreement. Petitioner was represented by Howard Dale Mishkind, and Respondent by Steven Santayana. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01222-0 Date issued/filed: 2023-08-28 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 07/27/2023) regarding 32 DECISION Stipulation/Proffer, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1222V AMORETTE M. BURGESS, Chief Special Master Corcoran Petitioner, Filed: July 27, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Howard Dale Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for Petitioner. Steven Santayana, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On April 15, 2021, Amorette M. Burgess 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 injury (“SIRVA”) as a result of receiving a tetanus (“Tdap”) vaccine to her left shoulder on March 22, 2019. Petition at 1; Stipulation, filed at July 27, 2023, ¶¶ 1-4. Petitioner further alleges that she experienced the residual effects of her injury for more than six months. Petition at 3; Stipulation at ¶¶ 4-5. “Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner’s alleged shoulder injury or any other injury; and denies that her current condition is sequela of a vaccine-related injury.” Stipulation at ¶ 6. Nevertheless, on July 27, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. 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 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 2 of 7 Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $102,000.00, in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 3 of 7 Case 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 4 of 7 Case 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 5 of 7 Case 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 6 of 7 Case 1:21-vv-01222-UNJ Document 36 Filed 08/28/23 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01222-cl-extra-10736698 Date issued/filed: 2023-12-19 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270108 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1222V AMORETTE M. BURGESS, Chief Special Master Corcoran Petitioner, v. Filed: November 16, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Howard Dale Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for Petitioner. Steven Santayana, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On April 15, 2021, Amorette M. Burgess 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 as a result of receiving a tetanus vaccine to her left shoulder on March 22, 2019. Petition, ECF No. 1. On July 27, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 32. 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 $29,589.21 (representing $27,980.00 in fees plus $1,609.21 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Sept. 5, 2023, ECF No. 37. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 3. Respondent reacted to the motion on Sept 6, 2023, reporting 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. 38. Petitioner did not file a reply thereafter. 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. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 37-3. Respondent offered no specific objection to the rates or amounts sought. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $29,589.21 (representing $27,980.00 in fees plus $1,609.21 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Howard D. Mishkind. 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. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 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. 2