VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01792 Package ID: USCOURTS-cofc-1_21-vv-01792 Petitioner: Merlyn Bonham Filed: 2021-09-02 Decided: 2023-10-04 Vaccine: influenza Vaccination date: 2018-09-12 Condition: chronic inflammatory demyelinating polyneuropathy (CIDP) Outcome: compensated Award amount USD: 45000 AI-assisted case summary: Merlyn Bonham filed a petition on September 2, 2021, seeking compensation under the National Vaccine Injury Compensation Program for chronic inflammatory demyelinating polyneuropathy (CIDP) allegedly caused by an influenza vaccination received on September 12, 2018. The respondent, the Secretary of Health and Human Services, denied that the influenza vaccine caused the petitioner to suffer from CIDP or any other injury. Despite these denials, both parties entered into a joint stipulation to settle the case, agreeing that a decision should be entered awarding the petitioner compensation. Special Master Katherine E. Oler reviewed the file and concluded that the stipulation was reasonable, adopting it as her decision. Under the terms of the stipulation, Merlyn Bonham was awarded a lump sum of $45,000.00, payable by check, as compensation for all damages available under 42 U.S.C. § 300aa-15(a). The decision was issued on October 4, 2023. Glen Sturtevant, Jr. represented the petitioner, and Michael Lang represented the respondent. The public decision does not describe the onset, specific symptoms, diagnostic tests, treatments, or any medical experts consulted. Theory of causation field: Petitioner Merlyn Bonham alleged that an influenza vaccination received on September 12, 2018, caused him to suffer from chronic inflammatory demyelinating polyneuropathy (CIDP). The respondent denied that the vaccination caused a Table injury or any other injury. The parties entered into a joint stipulation to settle the case, with the respondent denying causation but agreeing to a settlement. The Special Master adopted the stipulation as the decision. The award was $45,000.00 as a lump sum. The theory of causation was "Off-Table." The public decision does not name medical experts or describe the specific mechanism of injury. The decision was issued by Special Master Katherine E. Oler on October 4, 2023. Petitioner's counsel was Glen Sturtevant, Jr., and respondent's counsel was Michael Lang. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01792-0 Date issued/filed: 2023-10-04 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 9/14/2023) regarding 40 DECISION of Special Master - Stipulation. Signed by Special Master Katherine E. Oler. (emh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1792V (not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * * * MERLYN BONHAM, * * Filed: September 14, 2023 Petitioner, * * * v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * Glen Sturtevant, Jr., Rawls Law Group, Richmond, VA, for Petitioner Michael Lang, U.S. Department of Justice, Washington, DC, for Respondent DECISION ON JOINT STIPULATION1 On September 2, 2021, Merlyn Bonham (“Petitioner”) filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges he suffered from chronic inflammatory demyelinating polyneuropathy (“CIDP”) as a result of the influenza (“flu”) vaccination he received on September 12, 2018. See Stipulation ¶ 2, 4, dated September 13, 2023 (ECF No. 39); see also Petition. Respondent denies “that petitioner sustained a Table injury; denies that the influenza 1 Because this Decision contains a reasoned explanation for the action 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 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 2 of 7 vaccine caused petitioner to suffer from CIDP; and further denies that the influenza vaccine caused petitioner to suffer from any other injury or his current condition.” See Stipulation ¶ 6. Nonetheless, both parties, while maintaining their above-stated positions, agreed in a stipulation filed September 13, 2023, that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: a lump sum of $45,000.00 in the form of a check payable to petitioner. Stipulation ¶ 8. This award represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 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/ Katherine E. Oler Katherine E. Oler Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their right to seek review. Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 3 of 7 Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 4 of 7 Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 5 of 7 Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 6 of 7 Case 1:21-vv-01792-UNJ Document 44 Filed 10/04/23 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01792-cl-extra-10736022 Date issued/filed: 2024-03-05 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269432 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 10, 2024 * * * * * * * * * * * * * * UNPUBLISHED MERLYN BONHAM, * * Petitioner, * No. 21-1792V * Special Master Oler v. * * Attorneys’ Fees and Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Glen H. Sturtevant, Jr., Rawls Law Group, Richmond, VA, for Petitioner. Michael J. Lang, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 2, 2021, Merlyn Bonham (“Petitioner”) filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges he suffered from chronic inflammatory demyelinating polyneuropathy (“CIDP”) as a result of the influenza (“flu”) vaccination he received on September 12, 2018. On September 13, 2023, the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on September 14, 2023. (ECF No. 40). On October 18, 2023, Petitioner filed an application for final attorneys’ fees and costs. 1 The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is 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). 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa. (ECF No. 45). (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $23,978.93, representing $23,379.00 in attorneys’ fees and $599.93 in attorneys’ costs. Fees App. at 3. Pursuant to General Order No. 9, Petitioner has indicated that he has not personally incurred any costs related to his petition. Fees App. Ex. 3. Respondent responded to the motion on October 19, 2023, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2. (ECF No. 46). On October 23, 2023, Petitioner filed a reply affirming the fees are reasonable and requesting the Court award them in full. (ECF No. 47). This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs. 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 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.”). 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). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. a. Reasonable Hourly Rates Petitioner requests the following rates of compensation for his attorney, Mr. Glen Sturtevant; $372.00 per hour for work performed in 2021, $392.00 per hour for work performed in 2022, and $413.00 per hour for work performed in 2023. These rates are consistent with what counsel has previously been awarded for his Vaccine Program work and the undersigned finds them to be reasonable herein. b. Reasonable Hours Expended 2 Attorneys' fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018). The overall hours spent on this matter appear to be reasonable. The undersigned has reviewed the billing entries and finds that they adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable, nor has Respondent identified any entries as objectionable. Accordingly, Petitioner is awarded final attorneys’ fees in the amount of $23,379.00. c. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $599.63 in attorneys’ costs. Fees App. at 2. This amount is comprised of acquiring medical records, postage, and the Court’s filing fee. Petitioner has provided adequate documentation supporting all of his requested costs and Respondent also has not identified any particular costs as objectionable. Petitioner is therefore awarded the full amount of costs sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. The undersigned finds that it is reasonable to compensate Petitioner and his counsel as follows: Attorneys’ Fees Requested $23,379.00 (Reduction to Fees) - Total Attorneys’ Fees Awarded $23,379.00 Attorneys’ Costs Requested $599.93 (Reduction to Costs) - Total Attorneys’ Costs Awarded $599.93 Total Amount Awarded $23,978.93 Accordingly, the undersigned awards a lump sum in the amount of $23,978.93, representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Glen Sturtevant. 3 In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.3 IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master 3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 4