VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01569 Package ID: USCOURTS-cofc-1_21-vv-01569 Petitioner: Katie Perette Filed: 2021-07-06 Decided: 2023-07-21 Vaccine: influenza Vaccination date: 2018-11-20 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 116047 AI-assisted case summary: Katie Perette filed a petition for compensation under the National Vaccine Injury Compensation Program alleging that she suffered a shoulder injury as a result of her November 20, 2018 influenza vaccination. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 10, 2023, Respondent filed a Rule 4(c) report conceding that Petitioner is entitled to compensation, finding that she established a Table case for a Shoulder Injury Related to Vaccine Administration (SIRVA). Respondent noted that Petitioner had no prior history of shoulder issues, her pain and reduced range of motion occurred within 48 hours of vaccination, her symptoms were limited to the vaccinated shoulder, and no other condition explained her symptoms. On January 12, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation. On June 21, 2023, Respondent filed a proffer on award of compensation, indicating Petitioner should be awarded a lump sum payment of $116,047.92, consisting of $115,000.00 for pain and suffering and $1,047.92 for past unreimbursable expenses. Petitioner agreed with the proffered award. The Chief Special Master issued a decision awarding Petitioner the lump sum of $116,047.92. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01569-0 Date issued/filed: 2023-02-13 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 01/12/2023) regarding 30 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01569-UNJ Document 32 Filed 02/13/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1569V UNPUBLISHED KATIE PERETTE, Chief Special Master Corcoran Petitioner, Filed: January 12, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on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) John David Blaisdell, Keches Law Group, Bridgewater, MA, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On July 6, 2021, Katie Perette 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 as a result of her November 20, 2018 influenza (“flu”) vaccination. Petition at 1. Petitioner further alleges that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. Petition at ¶¶ 25-26. 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-01569-UNJ Document 32 Filed 02/13/23 Page 2 of 2 On January 10, 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 1. Specifically, Respondent indicates that Petitioner has established a Table case under the Vaccine Act for a Shoulder Injury Related to Vaccine Administration (“SIRVA”) noting that: [m]edical personnel at the Division of Injury Compensation Programs, Department of Health and Human Services (“DICP”), have reviewed the petition and medical records filed in the case. It is respondent’s position that petitioner has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”). That is, petitioner had no relevant history of pain, inflammation, or dysfunction in her right shoulder; her pain and reduced range of motion occurred within 48 hours of receipt of an intramuscular vaccination; her symptoms were limited to the shoulder in which the vaccine was administered; and no other condition or abnormality was identified to explain her symptoms. Id. at 7 (citing 42 C.F.R. § 100.3(a), (c)(10)). Respondent further indicates that “[t]he scope of damages to be awarded is limited to petitioner’s right-sided SIRVA and its related sequelae only.” Id. at 8. 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 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01569-1 Date issued/filed: 2023-07-21 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 06/21/2023) regarding 35 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01569-UNJ Document 38 Filed 07/21/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1569V KATIE PERETTE, Chief Special Master Corcoran Petitioner, Filed: June 21, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. John David Blaisdell, Keches Law Group, Bridgewater, MA, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On July 6, 2021, Katie Perette 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 she suffered a shoulder injury as a result of her November 20, 2018 influenza (“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 12, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA Table injury. On June 21, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a lump sum payment of $116,047.92 (consisting of $115,000.00 for pain and suffering and $1,047.92 for past unreimbursable expenses). Proffer at 1-2. In the Proffer, Respondent represented 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-01569-UNJ Document 38 Filed 07/21/23 Page 2 of 5 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 $116,047.92 (consisting of $115,000.00 for pain and suffering and $1,047.92 for past unreimbursable expenses) 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.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-01569-UNJ Document 38 Filed 07/21/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) KATIE PERETTE, ) ) Petitioner, ) ) No. 21-1569V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On July 6, 2021, Katie Perette (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, as amended (“Vaccine Act” or “Act”). Petitioner alleges that she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccine administered on November 20, 2018. Petition at 1. On January 10, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury, and on January 12, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 27; ECF No. 30. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $115,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:21-vv-01569-UNJ Document 38 Filed 07/21/23 Page 4 of 5 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 $1,047.92. See 42 U.S.C. § 300aa- 15(a)(1)(B). 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 provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $116,047.92, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Katie Perette: $116,047.92. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division 1 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 lost earnings and future pain and suffering. 2 Case 1:21-vv-01569-UNJ Document 38 Filed 07/21/23 Page 5 of 5 HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division LARA A. ENGLUND Assistant Director Torts Branch, Civil Division /s/Mary E. Holmes MARY E. HOLMES Trial Attorney Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-5022 Mary.E.Holmes@usdoj.gov DATED: June 21, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01569-cl-extra-10735843 Date issued/filed: 2024-03-25 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269253 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1569V KATIE PERETTE, Chief Special Master Corcoran Petitioner, v. Filed: February 23, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. John David Blaisdell, Keches Law Group, Bridgewater, MA, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On July 6, 2021, Katie Perette 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 she suffered a shoulder injury as a result of a November 20, 2018 vaccination. Petition, ECF No. 1. On June 21, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 35. 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 $30,246.79 (representing $28,700.00 in fees, plus $1,546.79 in costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”), filed Nov. 28, 2023, ECF No. 40. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out of pocket costs expenses. Id. at 5. Respondent reacted to the motion on Nov. 29, 2023, noting 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. 41. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees and costs to be awarded appropriate, for the reason stated below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 2 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES Petitioner requests the following hourly rates for Attorney John D. Blaisdell: $400 per hour for time billed in 2020-21, and $500 per hour for time billed in 2022-23. ECF No. 40-2. Some of these rates require adjustment. Mr. Blaisdell represents that he has been a licensed attorney since 2002 (ECF No. 40-1), placing him in the rage of attorneys with 20-30 years’ experience based on the OSM Attorneys’ Forum Hourly Rate Fee Schedules. 3 Although the requested rates are within the appropriate experience ranges, Mr. Blaisdell does not have demonstrated Vaccine Act experience. It is therefore improper for Mr. Blaisdell to receive rates established for comparably experienced counsel who also have lengthy experience in the Program. See McCulloch v. Sec’y of Health and Hum. Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). Rather, I find it reasonable to compensate Mr. Blaisdell at the lesser rate of $400 per hour for all time billed in this matter, including 2022-23. This reduces the amount of fees to be awarded herein by $2,830.00 4 ATTORNEY COSTS Petitioner requests $1,546.79 in overall costs. ECF No. 40-4. This amount is comprised of obtaining medical records, postage fees, and the Court’s filing fees. I have reviewed the requested costs and find the majority of them to be reasonable, with the exception of $115.89 in requested costs that have not been substantiated by any supporting documentation, such as an invoice or proof of payment. When Petitioners fail to provide appropriate documentation to substantiate a requested cost, special masters have refrained from awarding the relevant sum. See, e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). Additionally, I deny $303.00 in requested costs from bar admission fees and 3 The Attorneys’ Fee Schedule are available at http://www.cof c.uscourts.gov/node/2914. 4 This amount consists of : ($500 - $400 = $100 x 28.30) = $2,830.00 3 certificate of good standing. The Vaccine Program does not reimburse fees associated with the Court’s bar admission process, nor application fees for the certificate of good standing. Thus, I disallow such costs reducing the total amount of litigation costs by $418.89. CONCLUSION 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 $25,617.90 (representing $24,490.00 in attorney’s fees and $1,127.90 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, John D. Blaisdell. 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. 5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 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. 4