VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01840 Package ID: USCOURTS-cofc-1_21-vv-01840 Petitioner: Ilene Busey Filed: 2021-09-10 Decided: 2023-07-07 Vaccine: influenza Vaccination date: 2019-09-10 Condition: right shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 93781 AI-assisted case summary: Ilene Busey filed a petition for compensation under the National Vaccine Injury Compensation Program on September 10, 2021, alleging she suffered a right shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 10, 2019. The case was assigned to the Special Processing Unit. Respondent, the Secretary of Health and Human Services, filed a combined Rule 4(c) Report and Proffer, conceding that Petitioner is entitled to compensation. Respondent agreed that Petitioner satisfied the criteria for SIRVA as a Table injury. On June 2, 2023, Chief Special Master Brian H. Corcoran issued a ruling on entitlement, finding Petitioner entitled to compensation. Subsequently, on July 7, 2023, a decision was issued awarding Petitioner a lump sum payment of $93,781.14. This award represents compensation for all damages available under Section 15(a) of the Vaccine Act. The public decision does not describe the specific onset, symptoms, medical tests, treatments, or expert witnesses involved in this case. Petitioner was represented by Trisha S. Widowfield of Haliczer, Pettis, & Schwamm, FL, and Respondent was represented by Julia Marter Collison of the U.S. Department of Justice. Theory of causation field: Petitioner Ilene Busey filed a petition alleging a right shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 10, 2019. Respondent conceded that Petitioner satisfied the criteria for SIRVA as a Table injury. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on June 2, 2023, finding Petitioner entitled to compensation. A decision on July 7, 2023, awarded Petitioner $93,781.14. The public text does not detail the specific mechanism of injury, medical experts, or the breakdown of damages within the award. Petitioner was represented by Trisha S. Widowfield, and Respondent by Julia Marter Collison. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01840-0 Date issued/filed: 2023-07-07 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 06/02/2023) regarding 32 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01840-UNJ Document 35 Filed 07/07/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1840V UNPUBLISHED ILENE BUSEY, Chief Special Master Corcoran Petitioner, Filed: June 2, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Trisha S. Widowfield, Haliczer, Pettis, & Schwamm FL, Fort Lauderdale, FL, for Petitioner. Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On September 10, 2021 Ilene Busey (“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 alleged that she suffered a right shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury or, in the alternative caused-in- fact injury, after receiving an influenza (“flu”) vaccine on September 10, 2019. Petition at 1, ¶¶ 2, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 2, 2023, I issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. In this case, Respondent filed a combined Rule 4(c) Report and Proffer on award of compensation (“Rule 4(c) Report and Proffer”) indicating 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-01840-UNJ Document 35 Filed 07/07/23 Page 2 of 2 Petitioner should be awarded $93, 781.14.3 Rule 4(c) Report and Proffer at 6. Respondent represented that Petitioner 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 Rule 4(c) Report and Proffer. Pursuant to the terms stated in combined Rule 4(c) Report and Proffer,4 I award Petitioner a lump sum payment of $93,781.14 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.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 The combined Rule 4(c) Report and Proffer did not specify the damages categories for any subtotals comprising this amount. 4 Because the Rule 4(c) Report and Proffer contains detailed medical information, it will not be filed as an attachment to this Decision. 5 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 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01840-1 Date issued/filed: 2023-07-10 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/02/2023) regarding 31 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01840-UNJ Document 36 Filed 07/10/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1840V UNPUBLISHED ILENE BUSEY, Chief Special Master Corcoran Petitioner, Filed: June 2, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Trisha S. Widowfield, Haliczer, Pettis, & Schwamm FL, Fort Lauderdale, FL, for Petitioner. Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On September 10, 2021 Ilene Busey (“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 she suffered a right shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury or, in the alternative caused-in- fact injury, after receiving an influenza (“flu”) vaccine on September 10, 2019. Petition at 1, ¶¶ 2, 16. Petitioner further alleges that she received the flu vaccine in the United States, that she suffered the residual effects of her SIRVA for more than six months, and that 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 (2012). Case 1:21-vv-01840-UNJ Document 36 Filed 07/10/23 Page 2 of 2 neither she nor any other party has filed a civil case or received compensation for her SIRVA injury. Id. at ¶¶ 2, 16-19. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 2, 2023, Respondent filed a combined Rule 4(c) Report and Proffer in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report and Proffer at 1. Specifically, Respondent believes “that [P]etitioner’s has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”) for a SIRVA.” Id. at 8. 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 3: USCOURTS-cofc-1_21-vv-01840-cl-extra-10736748 Date issued/filed: 2023-12-14 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270158 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1840V ILENE BUSEY, Petitioner, Chief Special Master Corcoran v. Filed: November 13, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Trisha S. Widowfield, Haliczer, Pettis, & Schwamm FL, Fort Lauderdale, FL, for Petitioner. Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On September 10, 2021, Ilene Busey 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 suffered a right shoulder injury related to vaccine administration after receiving an influenza vaccine on September 10, 2019. Petition, ECF No. 1. On June 2, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 32. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $65,849.16 (representing $64,685.50 in fees plus $1,163.66 in costs). Petitioner’s 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). Application for Fees and Costs (“Motion”) filed Aug 29, 2023, ECF No. 39. In accordance with General Order No. 9, Petitioner filed a signed statement representing that she incurred no out-of-pocket expenses. Id. at 3. Respondent reacted to the motion on Aug. 31, 2023, reporting 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. 40. Petitioner filed a reply on Sept. 13, 2023, reiterating her request for fees and costs. ECF No. 41. I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees to be awarded appropriate, for the reason stated below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. 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 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. 2 ATTORNEY FEES A. Attorney Hourly Rates Petitioner requests the rate of $475 per hour for attorney Trisha Widowfield for all time billed in the 2019-23 timeframe. This hourly rate requires adjustment. Ms. Widowfield has been a licensed attorney since 2007 (ECF No. 39 at 13), placing her in the rage of attorneys with 11-19 years’ experience based on the OSM Attorneys’ Forum Hourly Rate Fee Schedules. 3 But the requested rate exceeds the Vaccine Program’s published ranges for comparably-experienced attorneys. Additionally , Ms. Widowfield does not have significant demonstrated Vaccine Act experience (something that is considered when evaluating where on the range a particular attorney should fall). It is therefore improper for Ms. Widowfield to receive rates established for comparably-experienced counsel who also have lengthy experience in the Program. See McCulloch v. Sec’y of Health and Hum. Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). Rather, I find it reasonable to compensate Attorney Widowfield at the lesser rate of $335 per hour for all time billed in the 2019-23 timeframe. This reduces the amount of fees to be awarded herein by $18,914.00. 4 B. Paralegal Tasks Billed at Attorney Rates Besides the hourly rate reduction, there are several instances evident from the submitted invoices in which tasks that are considered paralegal in nature were billed at the attorney’s hourly rate. Attorneys may be compensated for paralegal-level work, but only at a rate that is comparable to that of a paralegal. See, e.g. Doe/11 v. Sec’y of Health & Human. Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human. Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, 3 The Attorneys’ Fee Schedule are available at http://www.cof c.uscourts.gov/node/2914. 4 This amount consists of : ($475 - $335 = $140 x 135.10 hrs = $18,914.00). 3 at *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human. Servs., No. 99-535, 2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). From review of the billing records, it appears approximately 10.90 hours were billed to tasks considered paralegal in nature. 5 Counsel is admonished that “[t]asks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Human. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Human. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Accordingly, I reduce Attorney Widowfield’s hourly rate for all tasks considered paralegal in nature to a rate of $150 per hour. This further reduces the fees to be awarded herein by $2,016.50. 6 ATTORNEY COSTS Petitioner requests $1,163.66 in overall costs. ECF No. 39 at 18-30. Such costs are associated with obtaining medical records, postage fees 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 $44,918.66 (representing $43,755.00 in attorney’s fees and $1,163.66 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Trisha S. Widowfield. 5 Examples of such billing entries are as f ollows: 11.00 hrs billed on: 11/13/19: “Preparation of letter to Dr. Fletcher to request medical records,” 11/13/19: “Preparation of letter to Dr. Bartolone to request medical records,” 11/22/19: “letter to Dr. Favilli with prepayment,” 11/28/19: “letter to Akumin to request medical records,” 2/6/20; 2/14/20; 7/21/20 (f our entries): “letter to CVS, Dr. Favilli, Dr. Batolone, Dr. Fletcher re medical records,” 7/30/20; 11/10/20; 11/12/20; 11/18/20 (three entries); 11/19/20 (two entries); 12/1/20; 12/2/20; 12/14/20; 1/11/21; 4/15/21; 5/11/21; 9/10/21; 10/18/21; 10/21/21; 11/15/21; 11/18/21 (three entries); 11/23/21 (two entries); 7/5/22; 10/5/22 (two entries); 1/6/23; 4/21/23 by Attorney T. Widowfield at the hourly rate of $475. See ECF No. 39 at 4-11 6 This amount is calculated using Attorney Widowfield’s reduced hourly rate as f ollows: ($335 - $150 = $185 x 10.90 hrs = $2,016.55). 4 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. 7 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 7 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. 5