VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01771 Package ID: USCOURTS-cofc-1_21-vv-01771 Petitioner: Amarah Elzabad Filed: 2021-08-27 Decided: 2023-10-10 Vaccine: MMR Vaccination date: 2020-09-09 Condition: cellulitis and subsequent scarring in her right deltoid Outcome: compensated Award amount USD: 101791 AI-assisted case summary: Amarah Elzabad filed a petition on August 27, 2021, alleging that she suffered cellulitis and subsequent scarring in her right deltoid after receiving the measles, mumps, and rubella (MMR) vaccination on September 9, 2020. The respondent, the Secretary of Health and Human Services, reviewed the petition and medical records and acknowledged that Ms. Elzabad's claim was compensable under the National Childhood Vaccine Injury Act. The respondent conceded that the evidence showed Ms. Elzabad suffered cellulitis and scarring as a result of the MMR vaccine, with onset occurring within the appropriate timeframe. Based on this concession, the Chief Special Master issued a ruling on entitlement, finding Ms. Elzabad entitled to compensation. Subsequently, on September 15, 2023, the respondent filed a proffer proposing an award of compensation. The court reviewed the proffer and found it reasonable, adopting it as the decision awarding damages. The award included a lump sum of $100,072.08 for pain and suffering and past unreimbursable expenses, and an additional $1,719.51 to satisfy the State of Michigan Medicaid lien, for a total award of $101,791. The case proceeded as a Table claim, and entitlement was granted, leading to a compensated outcome. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01771-0 Date issued/filed: 2023-07-10 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/15/2023) regarding 35 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01771-UNJ Document 37 Filed 07/10/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1771V * * * * * * * * * * * * * * * * * * * * * * * * * * AMARAH ELZABAD, * Chief Special Master Corcoran * Petitioner, * Filed: June 15, 2023 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Nancy Tinch, U.S. Dep’t of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 27, 2021, Amarah Elzabad filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petition (ECF No. 1) at 1. Petitioner alleges that she suffered from cellulitis and subsequent scarring in her right deltoid after she received the measles, mumps, and rubella (“MMR”) vaccination on September 9, 2020. Id. In his Rule 4(c) Report, Respondent has acknowledged that Petitioner’s claim is compensable under the Act. See Respondent’s Report, dated June 9, 2023 (ECF No. 34). Respondent specifically stated that medical personnel at the Division of Injury Compensation Programs, Department of Health and Human Services, have reviewed the petition and accompanying documents filed in this case, as well as the relevant medical records, and 1 As provided by 42 U.S.C. § 300aa-12(d)(4)(B), the parties may object to the Ruling’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Ruling will be available to the public in its present form. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Case 1:21-vv-01771-UNJ Document 37 Filed 07/10/23 Page 2 of 2 Respondent has concluded that Petitioner has met her burden of proof in connecting the vaccination that she received to her condition as required for entitlement under the Vaccine Act. Id. at 8. Respondent concedes that the evidence shows that Petitioner suffered cellulitis and subsequent scarring in her right deltoid as a result of the MMR vaccine, and that onset occurred within the appropriate timeframe. Id. Respondent therefore concludes that Petitioner is entitled to an award of damages. Id. at 8–9. In view of Respondent’s concession, and based on my own review of the record (see Section 13(a)(1); 42 C.F.R. § 100.3 (a)(I)), I find that Petitioner is entitled to compensation for an injury that was caused-in-fact by a covered vaccine. 42 C.F.R. §§ 100.3(a)(III), 100.3(b)(2). A separate damages order will be issued shortly. Any questions may be directed to my law clerk, Madison Atkinson, at madison_atkinson@cfc.uscourts.gov. IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01771-1 Date issued/filed: 2023-10-10 Pages: 6 Docket text: PUBLIC DECISION (Originally filed: 09/15/2023) regarding 42 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01771-UNJ Document 46 Filed 10/10/23 Page 1 of 6 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1771V * * * * * * * * * * * * * * * * * * * * * * * * * * AMARAH ELZABAD, * Chief Special Master Corcoran * Petitioner, * Filed: September 15, 2023 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Nathaniel Enos, Conway, Homer, P.C., Boston, MA, for Petitioner. Jamica M. Littles, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 27, 2021, Amarah Elzabad filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petition (ECF No. 1) (“Pet.”) at 1. Petitioner alleged that she suffered from cellulitis and subsequent scarring in her right deltoid after she received the measles, mumps, and rubella (“MMR”) vaccination on September 9, 2020. Id. Thereafter, on June 9, 2023, Respondent filed his Rule 4(c) Report and acknowledged that Petitioner’s claim is compensable under the Act. See Respondent’s Report, dated June 9, 2023 (ECF No. 34). Respondent specifically indicated that medical personnel at the Division of Injury Compensation Programs (“DICP”), Department of Health and Human Services, have reviewed the 1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Case 1:21-vv-01771-UNJ Document 46 Filed 10/10/23 Page 2 of 6 petition and accompanying documents filed in this case, as well as the relevant medical records, and Respondent has concluded that Petitioner has met her burden of proof in connecting the vaccination that she received to her condition as required for entitlement under the Vaccine Act. Id. Respondent conceded that the evidence shows that Petitioner suffered cellulitis and subsequent scarring in her right deltoid as a result of the MMR vaccine, and that the onset occurred within the appropriate timeframe. Id. Accordingly, Respondent concluded that Petitioner is entitled to an award of damages. Id. at 8–9. I subsequently issued an entitlement decision on June 15, 2023. See Ruling, dated June 15, 2023 (ECF No. 35). On September 15, 2023, Respondent filed a proffer proposing an award of compensation. ECF No. 41. I have reviewed the file, and based upon that review I conclude that the Respondent’s proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The proffer awards: • A lump sum payment of $100,072.08, representing compensation for pain and suffering ($100,000.00), and past unreimbursable expenses ($72.08), in the form of a check payable to Petitioner; and • A lump sum payment of $1,719.51, representing compensation for satisfaction of the State of Michigan Medicaid lien, in the form of a check payable jointly to Petitioner and: Optum P.O. Box 182643 Columbus, OH 43218-2643 Tax ID: 41-1858498 Re: Amarah Elzabad – #73735010 Attention: Amanda Bates Proffer at II. These amounts represent compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which Petitioner is entitled. 2 Case 1:21-vv-01771-UNJ Document 46 Filed 10/10/23 Page 3 of 6 I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.3 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 3 Case 1:21-vv-01771-UNJ Document 46 Filed 10/10/23 Page 4 of 6 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) AMARAH ELZABAD, ) ) Petitioner, ) ) No. 21-1771V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) PROFFER ON AWARD OF COMPENSATION On June 9, 2023, respondent filed a Vaccine Rule 4(c) report concluding that petitioner suffered an injury that is compensable under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34, that is, a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. See ECF No. 34. Accordingly, on June 15, 2023, the Chief Special Master issued a Ruling on Entitlement. ECF No. 35. I. Compensation for Vaccine Injury-Related Items A. Pain and Suffering Based upon the evidence of record, respondent proffers that petitioner should be awarded a lump sum of $100,000.00 for pain and suffering. Petitioner agrees. 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 $72.08. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees. Case 1:21-vv-01771-UNJ Document 46 Filed 10/10/23 Page 5 of 6 C. Medicaid Lien Respondent proffers that petitioner should be awarded funds to satisfy the State of Michigan Medicaid lien in the amount of $1,719.51, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Michigan may have against any individual as a result of any Medicaid payments the State of Michigan has made to or on behalf of petitioner from the date of her eligibility for benefits through the date of judgment in this case as a result of her alleged vaccine-related injury suffered on or about September 9, 2020 under Title XIX of the Social Security Act. The above amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award The parties recommend that compensation provided to petitioner should be made through two lump sum payments described below, and request that the Chief Special Master’s decision and the Court’s judgment award the following: 1 A. A lump sum payment of $100,072.08 in the form of a check payable to petitioner; and B. A lump sum payment of $1,719.51, representing compensation for satisfaction of the State of Michigan Medicaid lien, in the form of a check payable jointly to petitioner and: Optum P.O. Box 182643 Columbus, OH 43218-2643 Tax ID: 41-1858498 Re: Amarah Elzabad – #73735010 Attention: Amanda Bates 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 medical expenses, future pain and suffering, and future lost wages. 2 Case 1:21-vv-01771-UNJ Document 46 Filed 10/10/23 Page 6 of 6 Petitioner agrees to endorse the check to Optum for satisfaction of the Medicaid lien. Petitioner is a competent adult. Evidence of guardianship is not required in this case. 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 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division s/ Jamica M. Littles JAMICA M. LITTLES Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-4014 Fax: (202) 616-4310 Email: jamica.m.littles@usdoj.gov Date: September 15, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01771-cl-extra-10735501 Date issued/filed: 2024-04-29 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268911 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1771V ************************* * AMARAH ELZABAD, * Chief Special Master Corcoran * Petitioner, * Filed: April 4, 2024 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************* Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Jamica M. Littles, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION GRANTING AWARD FOR ATTORNEYS’ FEES AND COSTS 1 On August 27, 2021, Amarah Elzabad filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petition (ECF No. 1) at 1. Petitioner alleged that she suffered from cellulitis and subsequent scarring in her right deltoid after she received the measles, mumps, and rubella vaccine on September 9, 2020. Id. Respondent conceded entitlement, and I later entered a decision awarding damages. See Decision, dated Sept. 15, 2023 (ECF No. 42). Petitioner has now filed a motion for a final award of attorney’ fees and costs. Motion, dated Mar. 15, 2024 (ECF No. 47) (“Mot.). This is Petitioner’s sole fees and costs request. Petitioner requests a total of $24,465.07 (representing $23,156.60 in attorneys’ fees, plus 1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). $1,308.47 in costs) for the work of attorneys at Conway, Homer, P.C. Mot. at 2. The requested costs also include Petitioner’s unreimbursed litigation costs incurred in this matter. Id. Respondent reacted to the fees request on March 26, 2024. See Response, dated Mar. 26, 2024 (ECF No. 49) (“Resp.”). Respondent is satisfied that the statutory requirements for an attorney’s fees and costs award are met in this case, but defers the calculation of the amount to be awarded to my discretion. Id. at 2–3. Petitioner did not file a reply. For the reasons set forth below, I hereby GRANT Petitioner’s motion. I. Calculation of Fees Because Petitioner’s claim was successful, she is entitled to a fees and costs award— although only “reasonable” fees or costs may be awarded in the Program. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—“multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429–37 (1983). An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the properly hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Petitioner requests the following rates for her attorneys, based on the years work was performed: 2021 2022 2023 2024 Christina Ciampolillo (Attorney) $380.00 -- -- -- Meredith Daniels (Attorney) -- $410.00 -- -- Nathaniel Enos (Attorney) $230.00 $280.00 $320.00 $320.00 2 Lauren Faga (Attorney) $330.00 -- -- -- Ronald Homer (Attorney) $447.00 $475.00 $500.00 $500.00 Patrick Kelly (Attorney) -- $250.00 $305.00 -- Joseph Pepper (Attorney) $355.00 -- $455.00 $455.00 Paralegals $155.00 $170.00 $185.00 $185.00 Mot. at 4–19, 20. The attorneys at Conway, Homer, P.C., practice in Boston, MA—a jurisdiction that has been deemed “in forum.” Accordingly, they should be paid forum rates as established in McCulloch. See Lozano v. Sec’y of Health & Hum. Servs., No. 15-369V, 2020 WL 7869439, at *3 (Fed. Cl. Spec. Mstr. Nov. 30, 2020). The rates requested for time billed in 2021-23 have been allowed in other cases, and the rates requested for time billed in 2024 are also consistent with what has previously been awarded, based on the attorneys’ work and experience in the Program, and are otherwise in accordance with the Office of Special Masters’ fee schedule. 3 See Japaridze v. Sec’y of Health & Hum. Servs., No. 20-1545V, 2023 WL 4104134, at *1 (Fed. Cl. Spec. Mstr. May 17, 2023); M.R. v. Sec’y of Health & Hum. Servs., No. 16-1024V, 2024 WL 370041, at *3 (Fed. Cl. Spec. Msrt. Jan. 5, 2024). I thus find no cause to reduce them in this instance. And I deem the time devoted to the matter reasonable. I will therefore award all fees requested without adjustment. II. Calculation of Attorney’s Costs Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as by not providing appropriate documentation to explain the basis for a particular cost, special masters have refrained from paying the cost at issue. 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). Petitioner seeks $1,298.17 in outstanding litigation costs, including the filing fee, medical record retrieval costs, and mailing/photocopying costs. Petitioner also requests $10.30 in unreimbursed litigation mailing costs. Such costs are typical in Program cases, were reasonably incurred in this matter, and are thus eligible for reimbursement. 3 OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Apr. 4, 2024). 3 Accordingly, the total costs to be awarded to Petitioner’s counsel is $1,298.17. Petitioner shall receive personal costs in the amount of $10.30. CONCLUSION Based on the foregoing, and in the exercise of the discretion afforded to me in determining the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs, and award $24,454.77 in attorney’s fees and costs, in the form of a check made jointly payable to Petitioner and her attorney, Mr. Ronald Homer. In addition, Petitioner shall receive $10.30 in unreimbursed personal costs, in a form of a check made payable to her individually. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of 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 if (jointly or separately) they file notices renouncing their right to seek review. 4