VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01645 Package ID: USCOURTS-cofc-1_21-vv-01645 Petitioner: Robert Anderson Filed: 2021-08-02 Decided: 2023-09-12 Vaccine: influenza Vaccination date: 2020-09-01 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 47500 AI-assisted case summary: Robert Anderson filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a shoulder injury as the result of an influenza vaccination received on September 1, 2020. The respondent conceded that the injury was consistent with SIRVA (shoulder injury related to vaccine administration) as defined by the Vaccine Injury Table. The respondent noted that Mr. Anderson had no prior history of shoulder issues, the pain occurred within 48 hours after the vaccination, was limited to the injection site, and no other condition explained the pain. The respondent also agreed that Mr. Anderson suffered residual effects for more than six months, satisfying all legal prerequisites for compensation. A ruling on entitlement was issued on July 25, 2023, finding Mr. Anderson entitled to compensation. Subsequently, on August 9, 2023, the respondent proffered an award of $47,500.00 for actual pain and suffering, which Mr. Anderson accepted. The Chief Special Master awarded this lump sum payment to Mr. Anderson. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01645-0 Date issued/filed: 2023-08-28 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/25/2023) regarding 29 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01645-UNJ Document 38 Filed 08/28/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1645V ROBERT ANDERSON, Chief Special Master Corcoran Petitioner, Filed: July 25, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Edward Ira Zwilling, Law Office of Edward I. Zwilling, LLC, Birmingham, AL, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 2, 2021, Robert Anderson 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 he suffered a shoulder injury as the result of an influenza (“flu”) vaccination received on September 1, 2020. Petition at 1-3. Petitioner further alleges the vaccine was administered within the United States, that he suffered the residual effects of his injury for more than six months, and that there has been no prior award or settlement of a civil action on his behalf as a result of his injury. See Petition at ¶¶ 2, 12, 14. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this Ruling 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 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 (2018). Case 1:21-vv-01645-UNJ Document 38 Filed 08/28/23 Page 2 of 2 On July 24, 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 he has concluded that [P]etitioner’s alleged injury is consistent with SIRVA [or shoulder injury related to vaccine administration] as defined by the Vaccine Injury Table. Specifically, [P]etitioner had no history of pain, inflammation, or dysfunction of his left shoulder prior to vaccination; pain occurred within 48 hours after receipt of an intramuscular vaccination; pain was limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain [P]etitioner’s shoulder pain. Id. at 6 (citing 42 C.F.R. §§ 100.3(a), (c)(10)). Respondent further agrees that “based on the medical records outlined above, [P]etitioner suffered the residual effects of his condition for more than six months. Therefore, based on the record as it now stands, [P]etitioner has satisfied all legal prerequisites for compensation under the Act.” Id. (citing Sections 13(a)(1)(B) and 11(c)(1)(D)(i)). 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-01645-1 Date issued/filed: 2023-09-12 Pages: 4 Docket text: PUBLIC DECISION (Originally filed: 08/09/2023) regarding 32 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01645-UNJ Document 39 Filed 09/12/23 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1645V ROBERT ANDERSON, Chief Special Master Corcoran Petitioner, Filed: August 9, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Edward Ira Zwilling, Law Office of Edward I. Zwilling, LLC, Birmingham, AL, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 2, 2021, Robert Anderson 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 he suffered a shoulder injury as the result of an influenza (“flu”) vaccination received on September 1, 2020. Petition at 1-3. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 25, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 9, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $47,500.00 in actual pain and suffering. Proffer at 1. In the Proffer, Respondent represented that Petitioner 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-01645-UNJ Document 39 Filed 09/12/23 Page 2 of 4 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 (in actual 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.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-01645-UNJ Document 39 Filed 09/12/23 Page 3 of 4 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ROBERT ANDERSON, Petitioner, No. 21-1645V v. Chief Special Master Corcoran ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 2, 2021, Robert Anderson (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that he suffered a Table shoulder injury related to vaccine administration (“SIRVA”), as the result of an influenza (“flu”) vaccination received on September 1, 2020. Petition at 1. On July 24, 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 July 25, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 29. I. Items of Compensation Pain and Suffering Respondent proffers that Robert Anderson should be awarded $47,500.00 in actual pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amounts represent all Case 1:21-vv-01645-UNJ Document 39 Filed 09/12/23 Page 4 of 4 elements of compensation to which petitioner would be 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 be made as a lump sum payment of $47,500.00, in the form of a check payable to petitioner.1 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 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Alexa Roggenkamp ALEXA ROGGENKAMP Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 616-4179 alexa.roggenkamp@usdoj.gov DATED: August 9, 2023 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 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01645-cl-extra-10737059 Date issued/filed: 2023-11-13 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270469 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1645V ROBERT ANDERSON, Chief Special Master Corcoran Petitioner, v. Filed: October 11, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Edward Ira Zwilling, Law Office of Edward I. Zwilling, LLC, Birmingham, AL, for Petitioner. Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 2, 2021, Robert Anderson 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 he suffered a shoulder injury as the result of an influenza vaccination received on September 1, 2020. Petition, ECF No. 1. On August 9, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. 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 $33,832.40 (representing $32,122.00 in attorney’s fees and $ 1,710.40 in attorney’s costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Aug. 15, 2023, ECF No. 36. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that Petitioner incurred no out-of-pocket expenses. ECF No. 36-5. Respondent reacted to the motion on Aug. 25, 2023, indicating 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. 37. Petitioner did not file a reply thereafter. The rates requested for work performed through the end of 2020 are reasonable and consistent with prior determinations and will therefore be adopted. Petitioner has also requested the hourly rate of $400 for work performed by Attorney Edward Zwilling in the 2021-23 timeframe. ECF No. 36-1. I find this hourly rates to be reasonable and will award the attorney’s fees requested. (And all time billed to the matter was also reasonably incurred). Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 36-1. 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 $33,832.40 (representing $32,122.00 in attorney’s fees and $ 1,710.40 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Edward Zwilling. 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