VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01573 Package ID: USCOURTS-cofc-1_21-vv-01573 Petitioner: Hannah R. Boudreau Filed: 2021-07-14 Decided: 2023-09-26 Vaccine: Tdap Vaccination date: 2019-05-20 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 48000 AI-assisted case summary: Hannah R. Boudreau 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 a Tdap vaccination received on May 20, 2019. She stated the vaccine was administered in the United States and that she experienced residual effects for more than six months, with no prior award or settlement for her injury. Respondent denied that Ms. Boudreau sustained a Table SIRVA injury or that the vaccine caused her condition. Despite these differing positions, the parties filed a joint stipulation to settle the case and award compensation. The court adopted the stipulation, awarding Ms. Boudreau a lump sum of $48,000.00. This amount represents compensation for all damages available under the Vaccine Act. The parties also agreed to submit to further proceedings for reasonable attorneys' fees and costs. The stipulation was not an admission by the United States that Ms. Boudreau sustained a Table SIRVA injury or that the vaccine caused her condition. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01573-0 Date issued/filed: 2023-09-26 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 07/28/2023) regarding 46 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01573-UNJ Document 53 Filed 09/26/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1573V HANNAH R. BOUDREAU, Chief Special Master Corcoran Petitioner, Filed: July 28, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. William Bliss Hicky, Thompson Burton PLLC, Nashville, TN, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On July 14, 2021, Hannah Boudreau 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 he suffered a Table shoulder injury related to vaccine administration (“SIRVA”), as the result of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination received on May 20, 2019. Petition at 1, ¶ 2; Stipulation, filed at July 27, 2023, ¶¶ 1-2, 4. Petitioner further alleges 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 prior award or settlement of a civil action on her behalf as a result of her injury. Stipulation at ¶¶ 3-6; See Petition at ¶¶ 2, 14. “Respondent denies that [P]etitioner sustained a Table SIRVA injury; denies that the vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6. 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-01573-UNJ Document 53 Filed 09/26/23 Page 2 of 7 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. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $48,000.00 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-01573-UNJ Document 53 Filed 09/26/23 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS HANNAH R. BOUDREAU, Petitioner, No. 21-1573V Chief Special Master Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. On July 14, 2021, Hannah Boudreau (“petitioner”) filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 to -34 (the “Vaccine Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt of a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). 2. Petitioner received the Tdap vaccine on May 20, 2019. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the Tdap vaccine. Petitioner alleges that she experienced the residual effects of this condition for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her condition. 1 Case 1:21-vv-01573-UNJ Document 53 Filed 09/26/23 Page 4 of 7 6. Respondent denies that petitioner sustained a Table SIRVA injury; denies that the vaccine caused petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $48,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this petition. 10. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 2 Case 1:21-vv-01573-UNJ Document 53 Filed 09/26/23 Page 5 of 7 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys’ fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. §300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h). 13. In return for the payment described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300 aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from the Tdap vaccination administered on May 20, 2019, as alleged by petitioner in a petition for vaccine compensation filed on or about July 14, 2021, in the United States Court of Federal Claims as petition No. 21-1573V. 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 3 Case 1:21-vv-01573-UNJ Document 53 Filed 09/26/23 Page 6 of 7 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that petitioner sustained a SIRVA Table injury; that the Tdap vaccine caused any other injury; or that her current condition is a sequela of a vaccine- related injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION / / / / / / / / 4 Case 1:21-vv-01573-UNJ Document 53 Filed 09/26/23 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01573-cl-extra-10737011 Date issued/filed: 2023-11-17 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270421 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1573V HANNAH R. BOUDREAU, Chief Special Master Corcoran Petitioner, v. Filed: October 17, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. William Bliss Hicky, Thompson Burton PLLC, Nashville, TN, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On July 14, 2021, Hannah Boudreau 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 he suffered a Table shoulder injury related to vaccine administration as the result of a tetanus-diphtheria-acellular pertussis vaccination received on May 20, 2019. Petition at 1. On July 28, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 46. 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 $44,857.17 (representing $42,462.80 for fees and $2,394.37 for costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Aug. 7, 2023, ECF No. 50. In accordance with General Order No. 9, Petitioner represents that Petitioner incurred no out-of-pocket expenses. ECF No. 51. Respondent reacted to the motion on Aug. 16, 2023, stating 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. 52. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reason listed 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 compensation for her attorney William B. Hicky at the following rates: $446 per hour for time billed in 2021; $458 per hour for time billed in 2022; and $470 per hour for time billed in 2023. ECF No. 50 at 2. These rates require adjustment. Attorney Hicky was previously awarded lower hourly rates for his work in the vaccine program: $407 for 2021; $417 for 2022; and $427 for 2023. See Tucker v. Sec’y of Health & Human Servs., No. 22-0293V, Slip. Op. 36, (Fed. Cl. Spec. Mstr. Jul. 12, 2023). I find no reason to deviate from these previously-established rates. Accordingly, I reduce Mr. Hicky’s rates to be consistent with what he has been previously awarded for all time billed in the 2021-23 timeframe. This results in a reduction of attorney’s fees to be awarded of $3,777.00. 3 ATTORNEY COSTS Petitioner requests $2,394.37 in overall costs. ECF No. 50-1 at 2. This amount is comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have reviewed the requested costs and find them to be reasonable, and shall award them in full. 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 $41,080.17 (representing $38,685.80 for fees and $2,394.37 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, William B. Hicky. 3 This amount consists of: ($446 - $407 = $39 x 45 hrs = $1,755.00) + ($458 - $417 = $41 x 29.60 hrs = $1,213.60) + ($470 - $427 = $43 x 18.80 hrs = $808.40). 3 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. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 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