VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01877 Package ID: USCOURTS-cofc-1_21-vv-01877 Petitioner: Michael Maxwell Filed: 2021-09-21 Decided: 2024-03-29 Vaccine: influenza Vaccination date: 2018-10-26 Condition: Guillain-Barré syndrome Outcome: compensated Award amount USD: 144674 AI-assisted case summary: On September 21, 2021, Michael Maxwell, then 17 years old, filed a petition for compensation under the National Vaccine Injury Compensation Program. He alleged that he suffered Guillain-Barré syndrome (GBS) as a Table injury, or alternatively a caused-in-fact injury, after receiving an influenza vaccine on October 26, 2018. Petitioner claimed his vaccine-related injuries lasted more than six months, satisfying the Vaccine Act's severity requirement. The respondent, the Secretary of Health and Human Services, conceded entitlement for a Table GBS injury, but the parties could not agree on damages. Chief Special Master Brian H. Corcoran presided over the case. In a ruling on entitlement dated August 15, 2023, Special Master Corcoran found that Petitioner likely suffered residual effects of GBS for more than six months, satisfying the severity requirement. The public decision on damages was issued on March 29, 2024. Petitioner initially sought $175,000.00 for pain and suffering, later reducing it to $160,000.00, and $4,674.11 for unreimbursed expenses. Respondent argued for an award not exceeding $100,000.00 for pain and suffering, citing Petitioner's limited treatment and quick recovery. Special Master Corcoran noted that Petitioner, a healthy and athletic 17-year-old, experienced a mild to moderate GBS illness that substantially improved within three months, with residual symptoms primarily being fatigue. The Special Master considered Petitioner's prior aspirations of playing college lacrosse and joining the Navy Seals, as well as the timing of his illness during his junior year of high school. After reviewing the medical records, declarations, and comparable cases, Special Master Corcoran awarded Petitioner $140,000.00 for actual pain and suffering and $4,674.11 for unreimbursed expenses, totaling $144,674.11. The award was to be paid as a lump sum. Petitioner was represented by Alison H. Haskins and Siri Glimstad, LLP, and Respondent was represented by Tyler King and Eleanor Hanson. Theory of causation field: Petitioner Michael Maxwell, age 17, received an influenza vaccine on October 26, 2018. He filed a petition alleging Guillain-Barré syndrome (GBS) as a Table injury. The respondent conceded entitlement for a Table GBS injury. The primary dispute was whether Petitioner suffered residual effects of GBS for more than six months, as required by the Vaccine Act. Petitioner presented evidence, including medical records and declarations, indicating continued fatigue and diminished stamina through at least July 2019, satisfying the severity requirement. Special Master Brian H. Corcoran found that Petitioner suffered residual effects of GBS, primarily fatigue, for more than six months post-vaccination, thus meeting the severity requirement for a Table GBS injury. The case proceeded to damages. Petitioner sought $175,000.00 for pain and suffering, later reduced to $160,000.00, and $4,674.11 for unreimbursed expenses. Respondent proposed an award not exceeding $100,000.00 for pain and suffering. Special Master Corcoran awarded $140,000.00 for pain and suffering and $4,674.11 for unreimbursed expenses, totaling $144,674.11, in a decision dated March 29, 2024. Petitioner was represented by Alison H. Haskins and Siri Glimstad, LLP, and Respondent by Tyler King and Eleanor Hanson. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01877-0 Date issued/filed: 2023-09-22 Pages: 10 Docket text: PUBLIC ORDER/RULING (Originally filed: 08/15/2023) regarding 36 Ruling on Entitlement, Order on Motion for Miscellaneous Relief. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 1 of 10 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1877V MICHAEL MAXWELL, Chief Special Master Corcoran Petitioner, Filed: August 15, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner. Tyler King, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On September 21, 2021, Michael Maxwell 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 Guillain-Barré syndrome (“GBS”) as defined by the Vaccine Injury Table, or, in the alternative a caused-in-fact injury, after receiving an influenza (“flu”) vaccine on October 26, 2018. Petition at ¶¶ 1, 21-22. He further alleges that his “vaccine related injuries have lasted more than six months.” Id. at ¶ 20; see Section 11(c)(1)(D) (the Vaccine Act’s severity requirement). 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 (2018). Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 2 of 10 The parties dispute Petitioner’s ability to establish severity. For the reasons set forth below, I find Petitioner likely suffered the residual effects of his GBS for more than six months, and he has satisfied the other requirements of a compensable Table GBS injury. Petitioner is thus entitled to compensation under the Vaccine Act. I. Relevant Procedural History Approximately two months after filing the Petition, Mr. Maxwell file a declaration3 and the medical records required under the Vaccine Act. Exhibits 1-11, ECF Nos. 10-11; see Section 11(c). On April 7, 2022, the case was activated and assigned to the “Special Processing Unit” (OSM’s adjudicatory system for resolution of cases deemed likely to settle). ECF No. 17. After Respondent expressed a concern regarding the lack of evidence he deemed had been established in support of the Vaccine Act’s severity requirement, the parties discussed how to move forward. See Order, issued July 22, 2022, ECF No. 26 (regarding the parties’ call on July 12, 2022). Emphasizing entries in the medical records related to ongoing fatigue, Petitioner insisted there was sufficient evidence to show the required six months sequelae, and the parties proposed I resolve the issue after briefing. Id. at 1. To that end, on November 7, 2022, Petitioner filed a motion with accompanying memorandum requesting that I find Petitioner entitled to compensation and seeking an award of $179,674.11, representing $175,000.00 for his pain and suffering and $4,674.11 for his past unreimbursed expenses. Petitioner’s Memorandum of Law in Support of Petitioner’s Motion for Findings of Fact and Conclusions of Law Regarding Entitlement to Compensation and Damages at 35, ECF No. 31-1; see also ECF No. 31 (the cursory, one-page motion). Petitioner also provided additional evidence to support his claims of entitlement and damages: declarations from Petitioner, his mother, and his lacrosse coach;4 updated medical records; high school records; medical literature; documentation showing his expenses; photographs; and documentation showing the medical standards for military service. Exhibits 15-29, ECF No. 32. In response, Respondent filed a Rule 4(c) Report requesting dismissal in light of Petitioner’s alleged inability to show six months of severity. Respondent’s Rule 4(c) 3 Petitioner’s declaration was signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Exhibit 8. 4 These declarations were signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Exhibits 15- 16, 19. 2 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 3 of 10 Report and Response (“Opp.”), filed Dec. 22, 2022, at 2, 9, ECF Nos. 34-35.5 Although he acknowledges that Petitioner’s injury meets the requirements of a Table GBS injury, he did not address the amount of compensation Petitioner seeks. Id. at 6; see 42 C.F.R. § 100.3(a)(XIV)(D); 42 C.F.R. § 100.3(c)(15) (requirements for a Table GBS injury). The matter is now ripe for adjudication. II. Finding of Fact Regarding Duration At issue is whether Petitioner continued to suffer the residual effects of GBS for more than six months. Section 11(c)(1)(D)(i) (statutory six-month severity requirement). A. Authority Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). “The medical records made at the time treatment was sought or provided are far more reliable than the witnesses' testimony, five years later, to the contrary.” Id. at *20. However, this rule does not always apply. The United States Court of Federal Claims has recognized that “medical records may be incomplete or inaccurate.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998). “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec'y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991) (quoting with approval the standard used by the special master below), aff'd per curiam, 5 This document was filed twice using two different CM/ECF events: as a response at ECF No. 34 and as a Rule 4(c) Report at ECF No. 35. 3 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 4 of 10 968 F.2d 1226 (Fed. Cir. 1992). And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The Claims Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90- 2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. The special master is obligated to fully consider and compare the medical records, testimony, and all other relevant and reliable evidence contained in the record. La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). B. Analysis My determination is based on a complete review of the record, including all medical records, declarations, arguments, and additional evidence. Specifically, I highlight the following: • Prior to his GBS illness, Petitioner was a healthy 17 year-old who played lacrosse, participated in ROTC, and wanted to be a Navy Seal. Exhibit 6 at 5-16, 37-57. • On October 26, 2018, Petitioner received the flu vaccine during a vaccination clinic held at his high school. Exhibit 1. • On November 16, 2018 (21-days post-vaccination), Petitioner visited an urgent care clinic, complaining of a headache and sinus congestion for four 4 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 5 of 10 days. Exhibit 4 at 2. He was diagnosed with sinusitis and prescribed a Medrol Pak. Id. • Three days later, on November 18, 2018, during a beach vacation with his family, Petitioner visited the emergency room (“ER”), complaining of leg weakness and cramping and a headache which “comes and goes.” Exhibit 5 at 9. Indicating that he had been prescribed amoxicillin and prednisone for his headache (thought to be caused by sinusitis), Petitioner characterized his lack of strength and achiness as moderate. Id. Due to the absence of evidence of a sinus infection, Petitioner was instructed to cease taking the medication previously prescribed. Id. at 14-15. Diagnosed with possible “rhabdomyolysis[6] from aggressive exertional activities like lacrosse and volleyball,” Petitioner was instructed to aggressively hydrate and cease all strenuous activities. Id. at 15. • On November 21, 2018, Petitioner visited the ER near his home, complaining of weakness in his upper and lower extremities, a headache, and hand and facial numbness progressively worsening since November 17, 2018. Exhibit 2 at 37, 382, 400. Unable to walk due to an extremely unsteady gait, he reported having a recent viral illness. Id. at 37, 395, 400. Based upon the results of a lumbar puncture and MRI, Petitioner was diagnosed with GBS and administered a 5-day course of IVIG therapy. Id. at 382, 396, 400. He began speech and occupational therapy on November 23, 2018. Id. at 422-23. • On November 30, 2018, Petitioner was transferred to an inpatient rehabilitation facility. Exhibit 2 at 740-42. Believed to be suffering from GBS, hypertension, and headaches controlled by medication, Petitioner was expected to require skilled nursing care and at least three hours of daily therapy for ten to fourteen days. Id. at 741-42. During these sessions, Petitioner was described as motivated (e.g., id. at 754), but often requiring breaks to manage his fatigue (e.g., id. at 762). By December 4, 2018, he reported feeling normal again. Id. at 771. After showing remarkable progress and achieving all physical and occupational goals, Petitioner was discharged on December 5, 2018, without any needed medical equipment. Id. at 833. The medications needed to control his high blood pressure and headaches were discussed, but it was noted that he had not needed them for the previous five days. Id. 6 Rhabdomyolysis exertional involves severe muscle soreness and recumbency “due to intense, prolonged physical exertion.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1637 (32th ed. 2012). 5 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 6 of 10 • Seen by his pediatrician the next day, on December 6, 2018, Petitioner was observed to be upbeat, but having an unsteady gait, reduced strength (with greater weakness on the right side), and abnormal reflexes. Exhibit 6 at 33- 34. Instructing Petitioner to visit a neurologist for his follow-up care, the pediatrician warned his mother that Petitioner may require a gradual return to school. Id. at 35. • On December 19, 2018, Petitioner was placed on a school IAP (Individual Accommodation Plan), also known as a 504 plan, allowing him additional transition time, breaks, a flexible schedule, and preferential seating. Exhibit 17. The next review date for the plan was listed as June 1, 2022. Id. • On December 31, 2018, Petitioner began outpatient physical therapy (“PT”). Exhibit 2 at 872. • At his next PT session on January 3, 2019, Petitioner exhibited no signs of instability or fatigue but several instances of a jump in his heart rate. Exhibit 2 at 884. He was told he could perform agility drills and plyometrics but should monitor his heart rate and perceived exertion. Id. • After his third and last PT session on January 4, 2019, Petitioner was cleared for “a gradual return to his sport” (lacrosse) but cautioned “to monitor his heart rate and perceived exertion as well as to look for signs of fatigue.” Exhibit 2 at 886. He was prescribed a home exercise program. Id. • On February 4, 2019, Petitioner presented for a neuropsychological evaluation. Exhibit 6 at 61. Although Petitioner and his parents reported “significant improvement overall since early January,” his mother thought “he seems to tire a little more easily.” Id. Petitioner indicated that the “mild difficulty with his attention, processing, and memory” that he had experienced at the time of his discharge (December 5th) had resolved. Id. After the examination, the neuropsychologist described Petitioner as “gradually returning to his pre-illness level of activity,” adding that “[h]is stamina remains somewhat diminished.” Id. at 66. She stressed the importance of taking breaks during physical or mental activity. Id. • The next day (February 5, 2019), Petitioner was evaluated by a pediatric neurologist. Exhibit 6 at 59. After examining Petitioner, the pediatric neurologist concluded that “clinically [Petitioner] had made a complete resolution of episode and [had] no obvious neurologic deficits.” Id. 6 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 7 of 10 • On February 12, 2019, Petitioner was seen by his pediatrician who, based upon the recommendation of the pediatric neurologist, stated Petitioner could resume playing lacrosse. Exhibit at 29, 31. Indicating he was working out and training, Petitioner reported “no residual deficits or weakness.” Id. at 29. The results of the examination were normal. Id. at 30-31. • Later in February 2019, Petitioner passed a clinical assessment by a certified driver rehabilitation specialist. Exhibit 2 at 946-49. He was deemed able to use his current learner’s permit to undergo Behind-The-Wheel training. Id. at 949. • After demonstrating “no problems that would interfere with his driving ability” during training, Petitioner was authorized to undergo testing to acquire his driver’s license. Id. at 945. • On July 30, 2019, Petitioner returned to his pediatrician for an annual physical. Exhibit 6 at 23. At that visit, he was characterized as slowly getting back to normal after his GBS. Id. Indicating that he played a full year of lacrosse, he reported an ability to keep up despite “some fatigue.” Id. Although the pediatrician cleared Petitioner to continue playing lacrosse, he “discussed the importance of not getting over scheduled for his senior year.” Id. at 26. • In his second declaration, signed in early October 2022, Petitioner contrasted his condition prior to and after his GBS illness. Exhibit 15. Although he was able to return to school in January 2019, he required a modified schedule to avoid fatigue, experienced issues with his mental and physical stamina, and was given additional time when taking tests. Id. at ¶ 12. Although able to play lacrosse during the Spring of 2019, Petitioner indicated that he encountered difficulties due to fatigue and a loss of muscle mass. Id. at ¶ 13. He described his motivation to return to lacrosse, his disappointment when learning that his dream of joining the military (possibly as a Navy Seal) was no longer possible, and his continued struggles with stamina and endurance. Id. at ¶¶ 2, 8-9, 16. • In her declaration, Petitioner’s mother similarly described her son’s excellence condition prior to his illness, his motivation to improve thereafter, and the difficulties he endured. Exhibit 16. Providing additional details about the disappointment her son experienced after being informed he could not join the military or play lacrosse at the college level, she also mentioned 7 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 8 of 10 anxiety her son experienced during his illness and recovery. Id. at ¶¶ 11, 14, 16. • In his declaration, signed in November 2022, Petitioner’s lacrosse coach provided further details regarding differences in Petitioner’s playing abilities and condition prior to and after his GBS illness. Exhibit 19. He contrasted Petitioner’s former capacity to play most of the game with his struggles after his illness. Id. at ¶¶ 2, 7. Describing Petitioner as “much smaller, weaker, and considerably slower,” he stated that he was forced to place Petitioner on the junior varsity team, rather than the varsity team as previously expected. Id. at ¶ 5. Although Petitioner experienced the swift resolution of his more-concerning GBS sequelae (the weakness and numbness in his upper and lower extremities), the above medical entries and declarations show he likely continued to suffer symptoms (specifically fatigue) for more than six months post-vaccination. As late as July 30, 2019, during an appointment with his pediatrician, Petitioner reported that he was still experiencing “some fatigue.” Exhibit 6 at 23. And his lacrosse coach described Petitioner as “much smaller, weaker, and considerably slower” throughout the Spring 2019 season. Exhibit 19 at ¶ 5. To satisfy the Vaccine Act’s severity requirement in this case, Petitioner must show that he suffered the residual effects of his GBS illness for more than six-months. Section 11(c)(1)(D)(i) (severity requirement for cases not involving death or inpatient hospitalization and surgical intervention). Thus, he must establish that his GBS sequelae continued beyond at least May 18, 2019 (assuming an onset date from November 12-18, 2018 – which the record preponderantly supports).7 When arguing that Petitioner has failed to meet this requirement, Respondent emphasizes his discharge from therapy in late March 2019, approximately five months post-vaccination, and the citation by his pediatrician8 in late July 2019 of the pediatric neurologist’s earlier opinion that “[P]etitioner had been back to normal in February of 7 Although some special masters have interpreted the language of Section 11(c)(1)(D)(i) as requiring sequelae beyond six months of the vaccination date, “I believe a more reasonable interpretation is that, since the six-month period measures severity of injury, it cannot begin before the time of injury, and hence is properly measured from the date of onset.” Castellanos v. Sec’y of Health & Hum. Servs., No. 19-1710V, 2022 WL 1482497, at *2 n.5 (Fed. Cl. Spec. Mstr. Mar. 30, 2022); But see Herren v. Sec’y of Health & Hum. Servs., No. 13-1000V, 2014 WL 3889070, at *2 (Fed. Cl. Spec. Mstr. Feb. 18, 2014) (stating the contrary view – that the six-month period should be calculated from date of vaccination). 8 Respondent mistakenly attributes the citation to a neurologist. Compare Opp. at 7 with Exhibit 6 at 23-26 (showing the visit was with Petitioner’s pediatrician). 8 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 9 of 10 2019.” Opp. at 7 (citing Exhibit 2 at 9109 and Exhibit 6 at 23). However, Respondent ignores entries from that same time indicating that Petitioner continued to suffer fatigue, lacked stamina, and to require breaks to avoid mental and physical fatigue. See Exhibit 6 at 61, 66 (comments made by Petitioner’s neuropsychologist and mother on February 4, 2019). And in the same cited July 30, 2019 record, Petitioner indicated that he continued to experience “some fatigue.” Id. at 23. Although the pediatric neurologist’s conclusion, expressed in early February 2019, that Petitioner had clinically recovered and had “no obvious neurologic deficits” (Exhibit 6 at 59), certainly undercuts the conclusion that Petitioner’s health issues lingered for a substantial period of time post-onset, this treater’s opinion was clearly focused upon the more significant symptoms of GBS and need (or not) for further treatment. Thus, the neurologist’s limited statements should not be interpreted as endorsing a complete recovery of all symptoms. Moreover, there is sufficient evidence to counter these statements. As long as it cannot be attributed to a condition other than the GBS, the fatigue Petitioner continued to experience is sufficient to satisfy the severity required by the Act. It need not be severe, or even constant. As illustrated in the medical literature provide by Petitioner fatigue is a common symptom of GBS. Exhibits 20-25. As there is no evidence linking his fatigue to any other condition, it constitutes six-months of sequelae in this case. I thus find that the record supports a finding of GBS sequelae at least through late July 2019. Accordingly, there is preponderant evidence to establish Petitioner suffered the residual effects of GBS for more than six months. (This record, however, does support the conclusion that Petitioner was mostly recovered thereafter – a factor relevant to pain and suffering to be awarded). III. Requirements for Entitlement Respondent has expressed his belief that, other than the foregoing severity issue, petitioner’s claim meets the Table criteria for GBS (Opp. at 6), and I agree with that assessment. See 42 C.F.R. § 100.3(a)(XIV)(D); 42 C.F.R. § 100.3(c)(15) (the Table entry and Qualifications and Aids to Interpretation criteria). Thus, Petitioner need not prove causation. Section 11(c)(1)(C). However, Petitioner must satisfy the other requirements of Section 11(c) regarding the vaccination received, the duration and severity of 9 Although Respondent cites to this document as Exhibit 2.3 at 230 - using the CM/ECF page number for this third part of Exhibit 2, as I have done throughout this Ruling, I am utilizing the exhibit and consecutive page number appearing in the Bates stamped pagination added by Petitioner. 9 Case 1:21-vv-01877-UNJ Document 41 Filed 09/22/23 Page 10 of 10 petitioner’s injury, and the lack of other award or settlement. Section 11(c)(A), (B), and (D). As I have determined in this ruling, the record supports a finding that Petitioner suffered the residual effects of his GBS for more than six months. See supra Section II.B.; Section 11(c)(1)(D)(i) (the Vaccine Act’s six-month severity requirement). Additionally, the vaccine record shows Petitioner received the flu vaccine at his school in Oviedo, Florida. Exhibit 1; see Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration within the United States or its territories). Additionally, there is no evidence that Petitioner has collected a civil award for his injury. See Section 11(c)(1)(E) (lack of prior civil award). Thus, Petitioner has satisfied all requirements for entitlement under the Vaccine Act. IV. Appropriate Amount of Compensation Although I have determined there is sufficient evidence to show Petitioner suffered the residual effects of his GBS until at least May 2017, I am not ruling on the appropriate amount of compensation at this time. I do note that the amount Petitioner seeks for his pain and suffering ($175,000.00) appears to be slightly higher than I would normally award for GBS with a moderate course, limited treatment, and few to no longer-standing sequelae. Thus, I encourage Petitioner to consider revising his existing demand. I do also, however, recognize the difficulties associated with any GBS illness, which affects (even temporarily) a petitioner’s ability to perform basic tasks such as walking, talking, and eating. In this case, Petitioner undoubtedly experienced additional sadness, given his previous abilities and timing of his illness during his junior year of high school. These are factors that will be weighed against the overall-moderate course of Petitioner’s illness. V. Conclusion Based on the entire record in this case, I find that Petitioner has provided preponderant evidence satisfying all requirements for a Table GBS and the Vaccine Act’s severity requirement needed for both Table and non-Table claims. Petitioner is entitled to compensation in this case. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 10 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01877-1 Date issued/filed: 2024-03-29 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 02/27/2024) regarding 46 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1877V MICHAEL MAXWELL, Chief Special Master Corcoran Petitioner, Filed: February 27, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Alison H. Haskins, Siri Glimstad, LLP, Aventura, FL, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On September 21, 2021, Michael Maxwell 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 Guillain-Barré syndrome (“GBS”) as defined by the Vaccine Injury Table, or, in the alternative a caused-in-fact injury, after receiving an influenza (“flu”) vaccine on October 26, 2018. Petition at ¶¶ 1, 21-22. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters. After Respondent conceded entitlement, the parties were unable to resolve damages on their own,3 so I ordered briefing on the matter. 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). 3 Approximately one month after I determined Petitioner was entitled to compensation, the parties informed me that they had reached an impasse in their damages discussions and requested that I set a briefing schedule. Status Report, filed Sept. 21, 2023, ECF No. 38; see also Maxwell v. Sec’y of Health & Hum. Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 2 of 8 For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount $140,000.00, reflecting actual pain and suffering. The parties have agreed Petitioner also is entitled to $4,674.11 for unreimbursed expenses. I. Legal Standard Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment award such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no mathematic formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional distress are inherently subjective and cannot be determined by using a mathematical formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is inherently a subjective evaluation”). Factors to be considered when determining an award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). I may also consider prior pain and suffering awards to aid my resolution of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”). And, of course, I may rely on my own experience (along with my Servs., No. 21-1877V, 2023 WL 6208754 (Fed. Cl. Spec. Mstr. Aug. 15, 2023) (finding Petitioner suffered the residual effects of his GBS illness for more than six months and was entitled to compensation). . 2 Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 3 of 8 predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters would use their accumulated expertise in the field of vaccine injuries to judge the merits of individual claims). II. The Parties’ Arguments The parties agree that Petitioner is entitled to $4,674.11 for past unreimbursed medical expenses. Petitioner’s Memorandum of Law in Support of Petitioner’s Motion for Findings of Fact and Conclusions of Law Regrading Entitlement to Compensation and Damages (“Motion”), filed Nov. 7, 2022, at 35, ECF No. 31-1; Respondent’s Brief on Damages (“Response”), Oct. 23, 2023, at 1, 18, ECF No. 42; Petitioner’s Reply to Response (“Reply”), filed Oct. 30, 2023, at 11, ECF No. 43. Thus, the only area of dispute is regarding the appropriate pain and suffering award. Emphasizing his prior condition as a healthy and athletic 17-year-old who dreamed of playing lacrosse in college and becoming a Navy Seal, additional symptoms of headaches and speech difficulties, and continued fatigue and lack of endurance, Petitioner initially sought an actual pain and suffering award of $175,000.00. Motion at 31-32. But after I cautioned (at the time I ruled on entitlement) that the proposed amount of $175,000.00 appeared to be slightly higher than I would normally award for GBS with a moderate course, limited treatment, and few to no longer-standing sequelae,5 Petitioner reduced his demand to $160,000.00. Reply at 2. In his initial motion, Petitioner favorably compares his circumstances to those experienced by the petitioners in W.B, Dillenbeck, Johnson, Presley, and Cegielski.6 – cases involving past pain and suffering awards ranging from $155,000.00 to $180,000.00. Motion at 32-35. Respondent counters that “[t]he facts of this case and recent analogous decisions 4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For the next four years, until September 30, 2019, all SPU cases, including the majority of GBS claims, were assigned to former Chief Special Master Dorsey. In early October 2019, the majority of SPU cases were reassigned to me as the current Chief Special Master. 5 Maxwell, 2023 WL 6208754, at *7. 6 W.B. v. Sec’y of Health & Hum. Servs., No. 18-1634V, 2020 WL 5509686 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding $155,000.00 for actual pain and suffering); Dillenbeck v. Sec’y of Health & Hum. Servs., No. 17-0428V, 2019 WL 4072069 (Fed. Cl. Spec. Mstr. July 29, 2019) (a decision I issued awarding $170,000.00 for past pain and suffering and $10,857.15, the net present value of payments of $5,000.00 per year for 22 years); Johnson v. Sec’y of Health & Hum. Servs., No. 16-1356V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00 for actual pain and suffering); Presley v. Sec’y of Health & Hum. Servs., No. 17-1888V, 2020 WL 1898856 (Fed. Cl. Spec. Mstr. Mar. 23, 2020) (awarding $180,000.00 for actual pain and suffering); Cegielski v. Sec’y of Health & Hum. Servs., No. 17-0570V, 2021 WL 1440205 (Fed. Cl. Spec. Mstr. Mar. 16, 2021) (awarding $180,000.00 for actual pain and suffering). 3 Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 4 of 8 . . . warrant an award of not more than $100,000.00.” Response at 10. Emphasizing Petitioner’s limited treatment and quick recovery, he maintains that Petitioner’s pain and suffering was not as great as those of the petitioners in the cited cases. Id. at 11-13, 16- 17. Instead, he proposes Granville, Castellanos, Shankar and Weil,7 involving awards ranging from $92.500.00 to $140,000.00, as better comparable cases. Response at 13- 16. On reply, Petitioner criticizes Respondent’s reliance on past proffered awards, arguing that “if the Court ‘always’ awards more than Respondent proffers, the most reasonable conclusion is that Respondent’s proffers do not in fact represent full value and should be adjusted in light of the Court’s guidance.” Reply at 3 (emphasis in the original). He also accuses Respondent of ignoring important aspects of his suffering, such as accompanying symptoms of headaches, facial weakness, and blood pressure issues; his disappointment at learning he was disqualified from military service; and the timing of his GBS illness during his junior year of high school. Id. at 5-7. Discussing the cases proposed by Respondent, Petitioner maintains his facts and circumstances warrant a greater pain and suffering award. III. Appropriate Compensation for Petitioner’s Pain and Suffering In this case, awareness of the injury is not disputed. Although not yet an adult, the record reflects that at all times Petitioner was a competent teenager with no impairments that would impact his awareness of his injury. Therefore, I analyze principally the severity and duration of Petitioner’s injury. In performing this analysis, I have reviewed the record as a whole, including the medical records, affidavits, and all assertions made by the parties in written documents. I considered prior awards for pain and suffering in both SPU and non-SPU GBS cases and rely upon my experience adjudicating these cases.8 However, I ultimately base my 7 Granville v. Sec’y, of Health & Hum. Servs., No-21-2098V, 2023 WL 6441388 (Fed. Cl. Spec. Mstr. Aug. 30, 2023) (awarding $92, 500.00 for actual pain and suffering); Castellanos v. Sec’y of Health & Hum. Servs., No. 19-1710V, 2022 WL 1482497 (Fed. Cl. Spec. Mstr. Mar. 30, 2022) (awarding $125,000.00 for actual pain and suffering); Shankar v. Sec’y of Health & Hum. Servs., No. 18-1382V, 2022 WL 2196407 (Fed. Cl. Spec. Mstr. May 5, 2022) (awarding $135,000.00 for actual pain and suffering); Weil v. Sec’y of Health & Hum. Servs., No. 21-0831V, 2023 WL 1778281 (Fed. Cl. Spec. Mstr. Feb. 6, 2023) (awarding $140,000.00 for actual pain and suffering). 8 Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through January 1, 2024 reveals the median amount awarded to be $171,133.72. The awards in these cases - totaling 364, have typically ranged from $128,645.56 to $256,835.75, representing cases between the first and third quartiles and awards comprised of all categories of compensation – including lost wages. 47 cases include the creation of an annuity to provide for future expenses. Past pain and suffering amounts awarded in substantive decisions issued in 34 SPU GBS cases range from $92,500.00 to $192,500.00, with an additional case involving annuity payments. The median amount 4 Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 5 of 8 determination on the circumstances of this case. The evidence shows that Petitioner – age 17 when vaccinated - suffered a mild to moderate GBS illness which substantially improved within three months. Thereafter, Petitioner’s symptoms were mild, primarily fatigue, necessitating a ruling that he suffered the residual effects of his GBS illness for at least six months. Maxwell, 2023 WL 6208754, at *1; see Section 11(c)(1)(D) (the Vaccine Act's severity requirement). Although initially misdiagnosed with a sinus infection at an urgent care appointment ten days post-vaccination (Exhibit 4 at 2), or with rhabdomyolysis9 during his first visit to the emergency room (“ER”) three days later (Exhibit 5 at 9-15), Petitioner eventually obtained an accurate GBS diagnosis during a second trip to the ER on November 21, 2018, less than a month post-vaccination, and only five days after the onset of his symptoms (Exhibit 2 at 382-84). However, the suffering Petitioner experienced during the acute phase of his GBS illness was no doubt heightened by the severity of his upper and lower extremity weakness, as well as the more unusual symptoms he experienced - severe headaches, facial weakness which caused difficulties speaking, and hypertension resulting in episodes of tachycardia.10 See, e.g., Exhibit 2 at 383 (noting facial weakness and difficulty opening his jaw), 382 (noting severe headache), 394 (noting the hypertension and tachycardia were GBS sequelae). Hospitalized for nine days, initially in the intensive care unit, Petitioner received a five-day course of IVIG therapy. Exhibit 2 at 383, 400. In his affidavit, Petitioner described difficulties chewing and sleeping due to his headaches and facial numbness. Exhibit 15 at ¶ 6. Noted to require a rolling walker when first evaluated, Petitioner required speech, occupation, and physical therapy. Exhibit 2 at 398, 422-23. Discharged from the hospital on November 29, 2018, Petitioner was transferred to an inpatient rehabilitation facility with the expectation that he would require ten to fourteen days of skilled nursing care and at least three hours of daily therapy. Exhibit 2 at 740-42. During his therapy sessions, Petitioner was described as motivated (e.g., id. at 754), but often requiring breaks to manage his fatigue (e.g., id. at 762). By December 4, 2018, he reported feeling normal again. Id. at 771. After showing remarkable progress and achieving all physical and occupational goals, Petitioner was discharged to his home on past pain and suffering award in these 35 cases was $165,000.00, with awards falling within the first and third quartiles ranging from $155,000.00 to $180,000.00. 9 Rhabdomyolysis exertional involves severe muscle soreness and recumbency “due to intense, prolonged physical exertion.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1637 (32th ed. 2012). 10 Tachycardia is an “excessive rapidity in the action of the heart.” DORLAND’S at 1867. 5 Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 6 of 8 December 5, 2018, after only seven days of inpatient care, without any needed medical equipment. Id. at 833. The medications needed to control his high blood pressure and headaches were discussed, but it was noted that he had not needed them for the previous five days. Id. Thereafter, Petitioner continued to experience only mild residual symptoms. In late December 2018 and early January 2019, he attended three outpatient PT sessions. Exhibit 2 at 872-87. After his third and last PT session on January 4, 2019, Petitioner was cleared for “a gradual return to his sport” (lacrosse) but cautioned “to monitor his heart rate and perceived exertion as well as to look for signs of fatigue.” Exhibit 2 at 886. And he was able to attend school being on January 7, 2019 (Exhibit 15 at ¶ 12), albeit pursuant to an IAP (Individual Accommodation Plan), also known as a 504 plan, that allowed additional transition time, breaks, a flexible schedule, and preferential seating (id.; see Exhibit 17 (the IAP)). By early February 2019, Petitioner’s treating physicians opined that he had “no obvious neurologic deficits” (Exhibit 6 at 59 (pediatric neurologist’s opinion)), but “[h]is stamina remains somewhat diminished” (id. at 66 (neuropsychologist)). In late March 2019, he was cleared to participate in driver training. Exhibit 2 at 944. Petitioner asks that I consider circumstances particular to his case, such as the negative effect of his GBS illness on his goals of playing lacrosse during college, joining the military, and becoming a Navy Seal. And the record shows that prior to his illness Petitioner was an excellent student and lacrosse player. See, e.g., Exhibit 19 (affidavit from Petitioner’s lacrosse coach indicating he was a top athlete and dedicated player expected to join the Varsity team during his junior year). But the likelihood Petitioner would realize these worthy goals depended on many factors having nothing to do with his experiencing GBS. For example, becoming a Navy Seal is extremely difficult, and never assured even for completely healthy and fit individuals. Similarly, some of the negative outcomes Petitioner portrays as unavoidable may be circumvented. Although GBS is listed as an exclusionary condition for military service, for example, Petitioner has not yet made any attempt to obtain an exception to this rule. Still, I recognize that any heightened difficulty or complete loss of an opportunity is disappointing. Furthermore, the timing of Petitioner’s GBS illness, during his crucial junior year of high school, no doubt caused him additional anguish and frustration. While recognizing that they were proposed in his initial motion, when Petitioner sought a higher pain and suffering award, Petitioner’s comparable cases are not ultimately all that helpful. Presley, for example, involved a diabetic petitioner with an amputated leg, who lived alone in a remote area, had a fall resulting in his inability to get help until discovered by a neighbor, suffered pain during nine attempts to perform a lumbar puncture, was unable to drive for months, and suffered residual symptoms for more than three years. Presley, 2020 WL 1898856, at *10-11. Instead, I find the 6 Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 7 of 8 circumstances suffered by the petitioners in Shankar and Weil to be the closest to those Petitioner faced. Both experienced similarly severe acute phases - requiring lumbar punctures for diagnosis, IVIG therapy, and inpatient and outpatient therapy thereafter. Shankar, 2022 WL 2196407, at *5-6; Weil, 2023 WL 1778281, at 5-6. I previously have rejected Respondent’s argument that the amounts awarded in proffered cases are a more accurate gauge of the appropriate amount to be awarded than reasoned decisions from the court and special masters. Sakovits, 2020 WL 3729420, at *4. While “settled cases and proffers provide some evidence of the kinds of awards received overall in comparable cases,” they are not as persuasive as reasoned decisions from a judicial neutral. Id. (emphasis in original). And, as I have explained previously at expedited “Motions Day” hearings, GBS pain and suffering awards generally should be higher than what is awarded to petitioners who have suffered a less frightening and physically-alarming injury, such as SIRVA. Thus, Petitioner’s pain and suffering award should be greater than the $100,000.00 proposed by Respondent. Weighing all of the above, I deem an award of $140,000.00 to be fair and reasonable. Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $140,000.00 represents a fair and appropriate amount of compensation for Petitioner’s past/actual pain and suffering.11 And, as agreed upon by the parties, Petitioner is entitled to $4,674.11 for his past unreimbursed expenses. I therefore award Petitioner a lump sum payment of $144,674.11, representing compensation in the amounts of $140,000.00 for actual pain and suffering and $4,674.11 for actual 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 the Court is directed to enter judgment in accordance with this Decision.12 11 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)). 12 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. 7 Case 1:21-vv-01877-UNJ Document 50 Filed 03/29/24 Page 8 of 8 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01877-cl-extra-10791755 Date issued/filed: 2025-01-31 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10325167 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1877V MICHAEL MAXWELL, Chief Special Master Corcoran Petitioner, v. Filed: December 30, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Alison Haskins, Siri & Glimstad, LLP, Aventura, FL, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On September 21, 2021, Michael Maxwell 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 Guillain-Barré syndrome (“GBS”) as defined by the Vaccine Injury Table, or, in the alternative a caused-in-fact injury, after receiving an influenza vaccine on October 26, 2018. Petition at ¶¶ 1, 21-22. On February 27, 2024, I issued a decision awarding damages following briefing by the parties. ECF No. 41. 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $100,751.08 (representing $99,342.80 for fees $1,408.28 for costs). Petitioner’s Motion for Attorney’s Fees and Costs, filed May 15, 2024, ECF No. 51. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. ECF No. 51-7. Because Petitioner’s counsel changed law firms while still attorney of record in this case, it is important to note that $96,508.90 in fees and $1,396.79 in costs were incurred while Ms. Haskins was at her prior law firm: Maglio, Christopher, & Toale (“MCT”), PA ECF No. 51 at 1-2. Ms. Haskins’s current law firm, Siri & Glimstad, LLC, will reimburse MCT for the fees and has already reimbursed the costs. Id. Respondent reacted to the motion on May 16, 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 2-3, 3 n.2, ECF No. 52. I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees and costs 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). 2 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. ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. Regarding the number of hours billed, I deem the total amount of time devoted to briefing severity and damages to be excessive. See Petitioner’s Motion for Findings of Fact and Conclusions of Law Regarding Entitlement to Compensation and Damages, filed Nov. 7, 2022, ECF No. 31; Petitioner’s Motion for Findings of Fact and Conclusions of Law Regarding Damages, filed Sept. 21, 2023, ECF No. 39; Petitioner’s Reply to Respondent’s Brief on Damages, filed Oct. 30, 2023, ECF No. 43. Petitioner’s counsel expended approximately 53.6 hours drafting the motion regarding entitlement and damages, 18.9 hours drafting a second motions regarding damages, and 9.8 hours drafting the reply damages brief, totaling 82.33 hours. ECF No. 51-3 at 18-24. My above calculation does not include time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is being awarded in full. See, e.g., ECF No. 51-3 at 20-21 (entries dated 9/14/22 and 11/7/22). It is unreasonable for counsel to spend so much time briefing the issues of entitlement and damages in this case, even considering the three instances of briefing were needed. I have identified numerous cases (which may reasonably be compared to 3 These totals are calculated as follows: 54.2 hours billed on 8/11/22, 8/12/22, 8/22/22, 8/23/22, 8/24/22, 8/25/22, 8/30/22, 8/31/22, 9/8/22, 11/1/22, 11/3/22, 11/4/22, 11/5/22, 11/6/22, 11/7/22, and 12/27/22, at a rate of $460 by Alison Haskins; and 28.1 hours billed on 8/15/23, 8/16/23, 9/12/23, 9/13/23 (two entries), 9/14/23, 9/21/23, 10/23/23, 10/25/23, 10/26/23, and 10/30/23, at a rate of $492 by Alison Haskins. ECF No. 51-3 at 18-24. 3 time spent in this matter), 4 in which attorneys have accomplished this task in less than half the time. 5 Accordingly, I will reduce the sum to be awarded for damages briefing (a total of 82.3 hours, or $38,757.20) by thirty percent. Such an across-the-board reduction (which I am empowered to adopt) 6 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a reduction of $11,627.16.7 ATTORNEY AND COSTS Petitioner has provided supporting documentation for all claimed costs, except for the cost of some postage which I nevertheless will reimburse. ECF No. 51-5. I have reviewed these costs and find them to be reasonable. And Respondent offered no specific 4 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 5 See, e.g., O’Donnell v. Sec’y of Health & Hum. Servs., No. 21-1508V (Nov. 22, 2024) (15.9 and 6.4 hours billed for drafting a damages brief and responsive damages brief, respectively); Feitel v. Sec’y of Health & Hum. Servs., No. 21-1370V May 6, 2024) (14.7 and 6.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Hobbs v. Sec’y of Health & Hum. Servs., No. 21-1442V (Apr. 9, 2024) (18.0 and 4.8 hours billed for drafting a damages brief and responsive damages brief, respectively); Poteet v. Sec’y of Health & Hum. Servs., No. 20-1295V (Apr. 1, 2024) (19.4 and 12.2 hours billed for drafting a damages brief and responsive damages brief, respectively); Schwalm v. Sec’y of Health & Hum. Servs., No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Stanton v. Sec’y of Health & Hum. Servs., No. 21- 0360V (Nov. 25, 2024) (15.9 and 4.5 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Hirsch v. Sec’y of Health & Hum. Servs., No. 20- 1110V (Nov. 25, 2024) (16.0 and 4.1 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Templin v. Sec’y of Health & Hum. Servs., No. 21-1446V (Nov. 25, 2024) (12.0 and 0.4 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively) Kleinschmidt v. Sec’y of Health & Hum. Servs., No. 20-0680V (Apr. 9, 2024) (13.9 and 4.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Amor v. Sec’y of Health & Hum. Servs., No. 20- 0978V (Apr. 10, 2024) (11.9 and 2.7 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); McGraw v. Sec’y of Health & Hum. Servs., No. 21-0072V (Apr. 1, 2024) (17.4 and 9.6 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively). These decisions can (or will) be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Dec. 6, 2024). 6 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 7 This amount is calculated as follows: 54.2 hrs. x $460 x .30 + 28.1 hrs. x $492 x .30 = $11,627.16. 4 objection to the amounts sought. ECF No. 50. 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 $89,123.92 (representing $87,715.64 for fees and $1,408.28 in costs). Per Petitioner’s request, the award is to be made in a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s attorneys - Siri Glimstad, LLP, and mailed to 745 Fifth Avenue, Suite 500, New York, NY 10151. 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.8 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 5