VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01785 Package ID: USCOURTS-cofc-1_21-vv-01785 Petitioner: Timothy Rodrigues Filed: 2021-09-01 Decided: 2024-04-02 Vaccine: Tdap Vaccination date: 2019-08-29 Condition: bullous pemphigoid and/or small fiber neuropathy and/or other neurologic and physical impairments and other injuries Outcome: compensated Award amount USD: 150000 AI-assisted case summary: On September 1, 2021, Timothy Rodrigues filed a petition for compensation under the National Vaccine Injury Compensation Program. He alleged that he suffered bullous pemphigoid and/or small fiber neuropathy and/or other neurologic and physical impairments and other injuries as a result of his August 29, 2019 tetanus-diphtheria-acellular pertussis (Tdap) vaccination and/or his September 29, 2020 influenza (flu) vaccination. Mr. Rodrigues further alleged that he experienced residual effects of his condition for more than six months, that there had been no prior award or settlement of a civil action for damages, and that his vaccine was administered in the United States. The respondent, the Secretary of Health and Human Services, denied that the Tdap and/or flu vaccines caused or significantly aggravated Mr. Rodrigues's alleged conditions or any other injury. The parties subsequently filed a joint stipulation on March 5, 2024, agreeing that a decision should be entered awarding compensation. Special Master Daniel T. Horner found the stipulation reasonable and adopted it as the decision of the Court. Pursuant to the stipulation, Mr. Rodrigues was awarded a lump sum of $150,000.00, payable by check to the petitioner, as compensation for all items of damages. The public decision does not describe the specific onset of symptoms, medical examinations, diagnostic tests, treatments, or expert witnesses. Petitioner's counsel was Michael G. McLaren of Black McLaren, et al., P.C., and respondent's counsel was Voris Edward Johnson of the U.S. Department of Justice. Theory of causation field: Petitioner Timothy Rodrigues alleged that his August 29, 2019 Tdap vaccination and/or his September 29, 2020 influenza vaccination caused or aggravated bullous pemphigoid and/or small fiber neuropathy and/or other neurologic and physical impairments. Respondent denied causation. The parties filed a joint stipulation agreeing to an award of compensation. Special Master Daniel T. Horner adopted the stipulation. The award was $150,000.00 as a lump sum. The public decision does not specify the theory of causation, the mechanism of injury, or name any experts. The public decision does not describe the specific onset, symptoms, diagnostic tests, or treatments. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01785-0 Date issued/filed: 2024-04-02 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 3/5/2024) regarding 41 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01785-UNJ Document 45 Filed 04/02/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1785V Filed: March 5, 2024 TIMOTHY RODRIGUES, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Michael G. McLaren, Black McLaren, et al., P.C., Memphis, TN, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On September 1, 2021, petitioner 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 “bullous pemphigoid and/or small fiber neuropathy and/or other neurologic and physical impairments and other injuries” as a result of his August 29, 2019 tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination and/or his September 29, 2020 influenza (“flu”) vaccination. Petition at 1, 4- 5; Stipulation, filed March 5, 2024, at ¶¶ 1-2, 4. Petitioner further alleges that he has experienced the residual effects of his condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of his condition, and that his vaccine was administered in the United States. Petition at 1, 5; Stipulation at ¶¶ 3-5. “Respondent denies that the Tdap and/or flu vaccines caused or significantly aggravated petitioner’s bullous pemphigoid and/or small fiber neuropathy and residual effects, or any other injury. ” Stipulation at ¶ 6. 1 Because this document 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 document 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:21-vv-01785-UNJ Document 45 Filed 04/02/24 Page 2 of 7 Nevertheless, on March 5, 2024, 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 the decision of the Court in 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 $150,000.00 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 § 300aa-15(a). Id. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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-01785-UNJ Document 45 Filed 04/02/24 Page 3 of 7 Case 1:21-vv-01785-UNJ Document 45 Filed 04/02/24 Page 4 of 7 Case 1:21-vv-01785-UNJ Document 45 Filed 04/02/24 Page 5 of 7 Case 1:21-vv-01785-UNJ Document 45 Filed 04/02/24 Page 6 of 7 Case 1:21-vv-01785-UNJ Document 45 Filed 04/02/24 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01785-cl-extra-10770544 Date issued/filed: 2024-12-23 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10303956 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1785V Filed: November 26, 2024 Special Master Horner TIMOTHY RODRIGUES, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Michael G. McLaren, Black McLaren Jones Ryland & Griffee, Memphis, TN, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 1, 2021, petitioner filed a petition under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. (2012) (“Vaccine Act”).2 (ECF No. 1.) Petitioner alleged that he suffered bullous pemphigoid and/or small fiber neuropathy as a result of an August 29, 2019 tetanus diphtheria and acellular pertussis (“TDaP”) vaccination. (Id.) A decision was issued on March 5, 2024, awarding damages based on the parties’ stipulation. (ECF No. 41.) On April 25, 2024, petitioner filed a final motion for attorneys’ fees and costs. (ECF No. 46.) Petitioner requests a total of $169,814.10, including $117,383.00 for attorneys’ fees and $52,431.10 for costs. (Id. at 7.) On April 26, 2024, respondent filed a response to petitioner’s motion. (ECF No. 47.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires 1 Because this document 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 document 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 Within this decision, all citations to § 300aa will be to the relevant sections of the Vaccine Act at 42 U.S.C. § 300aa-10, et seq. 1 respondent to file a response to a request by a petitioner for an award of attorneys’ fees and costs.” (Id. at 1.) Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” (Id. at 2.) Respondent requests “that the [c]ourt exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” (Id. at 3.) It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines ex rel. Sevier v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs, 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Such applications should not include hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. Not only must any request for reimbursement of attorneys’ fees be reasonable, so also must any request for reimbursement of costs.”), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). I have reviewed the billing records submitted with petitioner’s request. (ECF No. 46-2.) Based on my experience and considering that respondent has not raised any objection with particularity (see Vaccine Rule 13(a)(3)), the request appears reasonable and the undersigned finds no cause to reduce the requested hours or rates.3 I have 3 Petitioner’s counsel did bill some partial travel time to this case for a trip that had the dual purpose of attending the court’s judicial conference and also meeting with an expert local to D.C. Although counsel does sometimes split travel costs between different cases, those are instances where the involved travel is clearly chargeable to the program and simply divvied up among different cases Here, attendance at the court’s judicial conference raises a question of whether billing for any portion of the travel to D.C. is chargeable to the program, given that the travel likely would have occurred regardless of the meeting with the expert. Because this appears to be a novel issue, and because respondent has not objected, I will not make a reduction sua sponte. Counsel is cautioned, however, that if this type of billing arrangement 2 also reviewed the cost records submitted with petitioner’s request. (ECF No. 46-2.) The undersigned finds the costs to be reasonable. Accordingly, the undersigned awards a lump sum of $169,814.10 in the form of a check jointly payable to petitioner and petitioner’s counsel, Michael G. McLaren, Esq. The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master is included in future requests, it will need to be substantiated with an appropriate argument favoring the practice. 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. 3