VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01852 Package ID: USCOURTS-cofc-1_21-vv-01852 Petitioner: Derek Kell Filed: 2021-09-14 Decided: 2023-12-05 Vaccine: influenza Vaccination date: 2020-10-01 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 80998 AI-assisted case summary: Derek Kell filed a petition for compensation under the National Vaccine Injury Compensation Program alleging he suffered a shoulder injury related to vaccine administration (SIRVA) following receipt of an influenza vaccine on October 1, 2020. The respondent conceded that the injury was consistent with SIRVA as defined on the Vaccine Injury Table and that Mr. Kell satisfied all legal requirements for compensation. A ruling on entitlement was issued on July 21, 2023, finding Mr. Kell entitled to compensation. Subsequently, on November 3, 2023, the respondent filed a proffer on award of compensation, which Mr. Kell agreed to. The decision on damages was issued on December 5, 2023. Mr. Kell was awarded a lump sum payment of $80,998.23, which included $80,000.00 for pain and suffering and $998.23 for past unreimbursable expenses. This amount represents compensation for all damages available under the Vaccine Act. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01852-0 Date issued/filed: 2023-09-13 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/21/2023) regarding 27 Ruling on Entitlement, Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01852-UNJ Document 29 Filed 09/13/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1852V DEREK KELL, Chief Special Master Corcoran Petitioner, v. Filed: July 21, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On September 14, 2021, Derek Kell 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 related to vaccine administration (“SIRVA”) following receipt of an influenza (“flu”) vaccine on October 1, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 21, 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 agrees that Petitioner’s alleged injury is consistent with SIRVA as defined on the Vaccine Injury Table. Id. at 7 (citing 42 C.F.R. §§ 100.3(a), 1 Because this unpublished 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-01852-UNJ Document 29 Filed 09/13/23 Page 2 of 2 100.3(c)(10)). Respondent further agrees that Petitioner has satisfied all legal requisites for compensation under the Vaccine Act. Id. 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-01852-1 Date issued/filed: 2023-12-05 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 11/03/2023) regarding 32 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01852-UNJ Document 36 Filed 12/05/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1852V DEREK KELL, Chief Special Master Corcoran Petitioner, v. Filed: November 3, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On September 14, 2021, Derek Kell 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 related to vaccine administration (“SIRVA”) following receipt of an influenza (“flu”) vaccine on October 1, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 21, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On November 3, 2023, Respondent filed a proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the proffered award. Id. at 2. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. 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-01852-UNJ Document 36 Filed 12/05/23 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award a lump sum payment of $80,998.23 (representing $80,000.00 for pain and suffering, and $998.23 for past unreimbursable expenses) 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-01852-UNJ Document 36 Filed 12/05/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) DEREK KELL, ) ) ) Petitioner, ) ) No. 21-1852V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On September 14, 2021, Derek Kell (“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 October 1, 2020. See Petition at 1. On July 21, 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 the same day the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 26, 27. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $80,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:21-vv-01852-UNJ Document 36 Filed 12/05/23 Page 4 of 5 B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $998.23. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. These amounts represent all elements of compensation to which petitioner is 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 should be made through one lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $80,998.23, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Derek Kell: $80,998.23 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 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 pain and suffering. 2 Case 1:21-vv-01852-UNJ Document 36 Filed 12/05/23 Page 5 of 5 COLLEEN C. HARTLEY Assistant Director Torts Branch, Civil Division s/ Ronalda E. Kosh RONALDA E. KOSH Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 616-4476 Email: ronalda.kosh@usdoj.gov DATED: November 3, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01852-cl-extra-10736836 Date issued/filed: 2023-12-05 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270246 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1852V DEREK KELL, Chief Special Master Corcoran Petitioner, v. Filed: November 3, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On September 14, 2021, Derek Kell 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 related to vaccine administration (“SIRVA”) following receipt of an influenza (“flu”) vaccine on October 1, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 21, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On November 3, 2023, Respondent filed a proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the proffered award. Id. at 2. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. 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). Pursuant to the terms stated in the attached Proffer, I award a lump sum payment of $80,998.23 (representing $80,000.00 for pain and suffering, and $998.23 for past unreimbursable expenses) 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) DEREK KELL, ) ) ) Petitioner, ) ) No. 21-1852V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On September 14, 2021, Derek Kell (“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 October 1, 2020. See Petition at 1. On July 21, 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 the same day the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 26, 27. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $80,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $998.23. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. These amounts represent all elements of compensation to which petitioner is 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 should be made through one lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following 1: a lump sum payment of $80,998.23, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Derek Kell: $80,998.23 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 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 pain and suffering. 2 COLLEEN C. HARTLEY Assistant Director Torts Branch, Civil Division s/ Ronalda E. Kosh RONALDA E. KOSH Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 616-4476 Email: ronalda.kosh@usdoj.gov DATED: November 3, 2023 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_21-vv-01852-cl-extra-10735719 Date issued/filed: 2024-04-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269129 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1852V DEREK KELL, Chief Special Master Corcoran Petitioner, v. Filed: March 7, 2024 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On September 14, 2021, Derek Kell 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 related to vaccine administration (“SIRVA”) following receipt of an influenza (“flu”) vaccine on October 1, 2020. Petition at 1. On November 3, 2023, I issued a decision awarding compensation to Petitioner based the Respondent’s proffer. ECF No. 32. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $14,041.96 (representing $13,441.50 in fees plus $600.46 in costs). Petitioner’s Final 1Because 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). Motion for Attorney Fees and Cost (“Motion”) filed Dec. 20, 2023, ECF No. 37. In accordance with General Order No. 9, counsel for Petitioner states that Petitioner did not personally incur any out-of-pocket expenses in pursuit of this claim. Motion at 2. Respondent reacted to the motion on January 3, 2024, 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 4, ECF No. 38. Petitioner filed no reply. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion, at 17 - 22. 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 $14,041.96 (representing $13,441.50 in fees plus $600.46 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Laura Levenberg. 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 filing a joint notice renouncing their right to seek review. 2