VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01537 Package ID: USCOURTS-cofc-1_21-vv-01537 Petitioner: Eileen Arcery Filed: 2021-07-01 Decided: 2023-06-12 Vaccine: influenza Vaccination date: 2020-09-26 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 47500 AI-assisted case summary: Eileen Arcery filed a petition for compensation on July 1, 2021, alleging she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) from an influenza vaccine received on September 26, 2020. The case was assigned to the Special Processing Unit. Initially, the respondent moved to dismiss, arguing that Ms. Arcery had not established a claim. However, after Ms. Arcery provided additional medical evidence, the respondent revised his position and filed an amended report conceding entitlement. On January 25, 2023, a ruling on entitlement was issued, finding Ms. Arcery entitled to compensation for SIRVA as a Table injury. Ms. Arcery passed away from cancer on November 20, 2022, and Marianne Fredericks Grant was appointed executor of her estate. Subsequently, on May 5, 2023, the respondent filed a proffer on award of compensation, recommending $47,500.00 for pain and suffering, which the petitioner's estate agreed to. On June 12, 2023, a decision was issued awarding the estate a lump sum payment of $47,500.00. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01537-0 Date issued/filed: 2023-03-01 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 01/25/2023) regarding 36 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01537-UNJ Document 44 Filed 03/01/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1537V UNPUBLISHED EILEEN ARCERY, Chief Special Master Corcoran Petitioner, Filed: January 25, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On July 1, 2021, Eileen Arcery 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 sustained a shoulder injury related to vaccine administration (“SIRVA”) as a result of her receipt of an influenza (“flu”) vaccine administered on September 26, 2020. Petition at 1. Petitioner further alleges that the vaccine was administered within the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no compensation in the form of an award or settlement for her vaccine-related injury. Petition at 1-4. 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). Case 1:21-vv-01537-UNJ Document 44 Filed 03/01/23 Page 2 of 2 On January 19, 2023, Respondent filed an Amended Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case.3 Respondent’s Rule 4(c) Report at 1. Specifically, Respondent has reviewed the Petitioner, medical records, and affidavits filed in this case. Id. at 6. Respondent has concluded that Petitioner has satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation for a SIRVA. 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 3 Respondent previously filed a Motion to Dismiss and Rule 4(c) Report on October 24, 2022. ECF No. 24. 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01537-1 Date issued/filed: 2023-06-12 Pages: 5 Docket text: PUBLIC ORDER/RULING (Originally filed: 05/10/2023) regarding 47 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01537-UNJ Document 51 Filed 06/12/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1537V UNPUBLISHED MARIANNE FREDERICKS GRANT, as Chief Special Master Corcoran Executor of the Estate of EILEEN ARCERY, Deceased Filed: May 10, 2023 Petitioner, Special Processing Unit (SPU); Joint v. Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury SECRETARY OF HEALTH AND Related to Vaccine Administration HUMAN SERVICES, (SIRVA) Respondent. Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES 1 On July 1, 2021, Eileen Arcery filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Ms. Archery alleged that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of her influenza (“flu”) vaccination on September 26, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. 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-01537-UNJ Document 51 Filed 06/12/23 Page 2 of 5 On January 25, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA.3 On May 5, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $$47,500.00 in pain and suffering. Proffer at 2-3. 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. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $47,500.00 (representing pain and suffering) 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Ms. Arcery died on November 20, 2022, and Marianne Fredericks Grant was appointed as the executor of Ms. Arcery’s Estate and substituted as Petitioner herein. ECF Nos. 39, 41-42. 4 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-01537-UNJ Document 51 Filed 06/12/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS __________________________________________ ) MARIANNE FREDERICKS GRANT, ) as Executor of the Estate of ) EILEEN ARCERY, Deceased, ) ) Petitioner, ) ) No. 21-1537V (ECF) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On July 1, 2021, Eileen Arcery (“Ms. Arcery”) filed a petition for compensation (ECF No. 1) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, as amended (“Vaccine Act”). Ms. Arcery alleged that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of her receipt of an influenza (“flu”) vaccination on September 26, 2020. ECF No. 1 at 1. On October 24, 2022, the Secretary of Health and Human Services (“respondent”) filed a motion to dismiss and Rule 4(c) report (ECF No. 24), in which he argued that Ms. Arcery had failed to establish a claim for compensation under the Vaccine Act, and because of that, the case should be dismissed. After respondent filed his motion to dismiss and Rule 4(c) report, Ms. Arcery filed additional evidence pertaining to treatment that she received for her SIRVA. See Petitioner’s Exhibits (“Exs.”) 9, 10. Ms. Arcery filed a response to respondent’s motion to dismiss on November 7, 2022 (ECF No. 28). After reviewing the additional evidence that Ms. Arcery filed, respondent filed a combined status report and reply to Ms. Arcery’s response to his motion to dismiss (ECF No. 34) Case 1:21-vv-01537-UNJ Document 51 Filed 06/12/23 Page 4 of 5 on December 5, 2022, in which he stated that he wished to file an amended Rule 4(c) report in order to revise his position in this case. On January 19, 2023, respondent filed an amended Rule 4(c) report (ECF No. 35) indicating that this case was appropriate for compensation under the terms of the Vaccine Act for a SIRVA Table injury. On January 25, 2023, the Chief Special Master issued a Ruling on Entitlement (ECF No. 36), finding that Ms. Arcery was entitled to compensation. Ms. Arcery died of cancer on November 20, 2022. On February 13, 2023, petitioner’s counsel filed documentation establishing that on January 10, 2023, Marianne Fredericks Grant was appointed as the executor of Ms. Arcery’s Estate under the laws of the State of New York. See Ex. 11. All references to petitioner herein refer solely to Marianne Fredericks Grant in her representative capacity as the executor of the Estate of Eileen Arcery. I. Item of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $47,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount represents 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. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that 2 Case 1:21-vv-01537-UNJ Document 51 Filed 06/12/23 Page 5 of 5 the Chief Special Master’s decision and the Court’s judgment award the following:1 a lump sum payment of $47,500.00, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Marianne Fredericks Grant, as Executor of the Estate of Eileen Arcery: $47,500.00 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 TRACI R. PATTON Assistant Director Torts Branch, Civil Division /s/ Benjamin P. Warder BENJAMIN P. WARDER Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Telephone: (202) 532-5464 Email: Benjamin.P.Warder@usdoj.gov DATE: May 5, 2023 1 If for some reason petitioner is not authorized by a court of competent jurisdiction to serve as the executor of the Estate of Eileen Arcery at the time a payment pursuant to this Proffer is to be made, then any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as executor of the Estate of Eileen Arcery upon submission of written documentation of such appointment to respondent. 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01537-cl-extra-10736677 Date issued/filed: 2023-12-21 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270087 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1537V MARIANNE FREDERICKS GRANT as executor of Chief Special Master Corcoran ESTATE OF EILEEN ARCERY, Filed: November 21, 2023 Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner. Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On July 1, 2021, Eileen Arcery 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 as a result of her influenza vaccination on September 26, 2020. Petition, 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). ECF No. 1. On May 10, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 47. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $19,656.92 (representing $18,282.90 in fees plus $1,374.02 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Sept. 7, 2023, ECF No. 52. In accordance with General Order No. 9, Petitioner filed a signed statement representing that Petitioner incurred no out-of-pocket expenses. ECF No. 52-3. Respondent reacted to the motion on Sept. 21, 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. 53. 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. 52-2. 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 $19,656.92 (representing $18,282.90 in fees plus $1,374.02 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Bruce W. Slane. 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