VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01921 Package ID: USCOURTS-cofc-1_21-vv-01921 Petitioner: Janis Rockey Filed: 2021-09-28 Decided: 2023-09-08 Vaccine: influenza Vaccination date: 2020-09-21 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 55000 AI-assisted case summary: Janis Rockey filed a petition for compensation under the National Vaccine Injury Compensation Program alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of receiving an influenza vaccine on September 21, 2020. She further alleged that she suffered residual effects of her injury for more than six months. The respondent conceded that Petitioner met the criteria for a SIRVA Table injury and that there was no evidence that anything other than the flu vaccine caused her injury. A Ruling on Entitlement was issued on June 6, 2023, finding Petitioner entitled to compensation. Subsequently, on August 8, 2023, the respondent filed a Proffer on award of compensation, recommending an award of $55,000.00 for pain and suffering, which Petitioner agreed to. The Chief Special Master awarded Janis Rockey a lump sum payment of $55,000.00 in pain and suffering. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01921-0 Date issued/filed: 2023-07-10 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/06/2023) regarding 20 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01921-UNJ Document 22 Filed 07/10/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1921V UNPUBLISHED JANIS ROCKEY, Chief Special Master Corcoran Petitioner, Filed: June 6, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement;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) David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On September 28, 2021, Janis Rockey (“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 from a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccination on September 21, 2020. Pet. at 1, ECF No. 1. Petitioner further alleges that she suffered the residual effects of her injury for more than six months. Id. at 6–7. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 1, 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, 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-01921-UNJ Document 22 Filed 07/10/23 Page 2 of 2 ECF No. 18. Specifically, Respondent indicated that Petitioner has “satisfied the criteria set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation for a SIRVA.” Id. at 3. Respondent further agrees that “there is not preponderant evidence that something other than the flu vaccine was the cause” of Petitioner’s left-sided SIRVA. 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-01921-1 Date issued/filed: 2023-09-08 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 08/09/2023) regarding 26 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01921-UNJ Document 32 Filed 09/08/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1921V JANIS ROCKEY, Chief Special Master Corcoran Petitioner, Filed: August 9, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On September 28, 2021, Janis Rockey 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 from a shoulder injury related to vaccine administration (“SIRVA”) resulting from adverse effects of an influenza (“flu”) vaccine she received on September 21, 2020. Pet. at 1, ECF No. 1. Petitioner further alleges that the vaccine was received in the United States, she suffered sequela of her injury for more than six months, and neither Petitioner nor any other party has ever received compensation in the form of an award or settlement for her vaccine-related injury. Id. at 1, 5-6. The case was assigned to the Special Processing Unit of the Office of Special Masters. 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-01921-UNJ Document 32 Filed 09/08/23 Page 2 of 5 On June 6, 2023, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. ECF No. 20. On August 8, 2023, Respondent filed a Proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $55,000.00. Proffer at 1, ECF No. 25. In the Proffer, 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 Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $55,000.00 in pain and suffering, 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-01921-UNJ Document 32 Filed 09/08/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) JANIS ROCKEY, ) ) Petitioner, ) ) No. 21-1921V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On September 28, 2021, Janis Rockey (“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 she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza (“flu”) vaccination on September 21, 2020. Petition at 1. On June 1, 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 June 6, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 18; ECF No. 20. I. Items of Compensation Respondent proffers that petitioner should be awarded $55,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. Case 1:21-vv-01921-UNJ Document 32 Filed 09/08/23 Page 4 of 5 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 a 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 $55,000.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Janis Rockey: $55,000.00. 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 ALEXIS B. BABCOCK Assistant 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 lost earnings and future pain and suffering. 2 Case 1:21-vv-01921-UNJ Document 32 Filed 09/08/23 Page 5 of 5 /s/Mary E. Holmes MARY E. HOLMES Trial Attorney Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-5022 Mary.E.Holmes@usdoj.gov DATED: August 8, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01921-cl-extra-10736851 Date issued/filed: 2023-12-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270261 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1921V JANIS ROCKEY, Chief Special Master Corcoran Petitioner, v. Filed: October 24, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On September 28, 2021, Janis Rockey 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 from a shoulder injury related to vaccine administration resulting from adverse effects of an influenza vaccine she received on September 21, 2020. Petition, ECF No. 1. On August 9, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 26. 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $29,490.95 (representing $28,157.50 in attorney’s fees and $1,333.45 in attorney’s costs). Petitioner’s Application for Attorney’s Fees and Costs, filed Aug. 17, 2023, ECF No. 30. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that Petitioner incurred no out-of-pocket expenses. Id. at 44. Respondent reacted to the motion on August 25, 2023, 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, ECF No. 31. Petitioner did not file a reply thereafter. Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees to be awarded appropriate, for the reasons set forth 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 2 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 Petitioner requests hourly rates for attorneys and paralegals performing work in this matter as follows: 2019 2020 2021 2022 2023 David J. Carney, Esq. X X $375 $400 $425 Paralegals $145 $145 $145 $145 $175 Evan R. Baker, Law X X $175 X $195 Clerk The hourly rates requested for Mr. Carney, Mr. Green, and paralegals all time billed in the 2019-2023 period are reasonable and consistent with prior determinations and shall therefore be awarded herein. The hourly rates requested for Ms. Baker, however, require adjustment. Categorized as a law clerk, Evan Baker was a law student who began working at the firm during the summer of 2021. ECF No. 30 at 9. She has remained at the firm and plans to take the bar exam in July 2023. Id. However, the hourly rate for her 2021 and 2023 work exceeds the student hourly rate established in other cases - $150 for 2021 and $165 for 2023. E.g., Wnuk v. Sec’y of Health & Hum. Servs., No. 21-0679V, 2023 WL 4195520, at *2 (Fed. Cl. Spec. Mstr. May 26, 2023). Accordingly, I shall instead compensate Evan Baker’s 2021 work at the rate of $150 per hour and 2023 work at the rate of $165. This reduces the amount of fees to be awarded by $830.00. 3 Additionally, a few of the tasks performed by Mr. Carney are more properly billed using a paralegal rate. 4 “Tasks 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 & Hum. 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 3 This amount consists of ($175 - $150) x 21.2 hrs + ($195 - $165) x 10.0 hours = $830.00. 4 These entries describing the preparation of a notice of f iling, the bates stamping medical records, and f iling both documents are dated as f ollows: 9/29/21 and 5/23/23. ECF No. 30 at 17, 21. 3 instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $284.00. 5 ATTORNEY COSTS Petitioner also requests $1,333.45 in overall costs. ECF No. 30 at 25-42. This amount is comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have reviewed the requested costs and find them to be reasonable and shall award it 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 $28,376.95 (representing $27,043.50 in attorney’s fees and $1,333.45 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, David J. Carney. 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. 6 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 This amount consists of ($375 - $145) x 0.8 hrs + ($425 - $175) x 0.4 hrs = $284.00. 6 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. 4