VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01956 Package ID: USCOURTS-cofc-1_21-vv-01956 Petitioner: Mikayla Elam Filed: 2021-10-04 Decided: 2024-10-31 Vaccine: influenza Vaccination date: 2019-09-20 Condition: Guillain-Barre syndrome (GBS) Outcome: dismissed Award amount USD: AI-assisted case summary: On October 4, 2021, Mikayla Elam filed a petition alleging that an influenza vaccination administered on September 20, 2019 caused Guillain-Barre syndrome. The public dismissal decision is brief. It states that the information in the record did not show entitlement to compensation. Ms. Elam moved for a dismissal decision on October 31, 2024, and the Special Master explained that a petitioner must prove either a Table injury or an injury actually caused by a covered vaccine. Special Master Mindy Michaels Roth dismissed the case for insufficient proof on October 31, 2024. The public decision does not describe Ms. Elam's onset, neurologic symptoms, diagnostic testing, treatment, expert reports, or why she chose dismissal. A later October 30, 2025 decision awarded attorneys' fees and costs, finding good faith and reasonable basis for the case during its pendency. Theory of causation field: Adult petitioner; influenza vaccine September 20, 2019; alleged GBS. DISMISSED for insufficient proof after petitioner requested dismissal. Public merits decision states the record did not show entitlement but does not describe clinical evidence or expert opinions. SM Roth October 31, 2024. Petition filed October 4, 2021. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01956-0 Date issued/filed: 2024-11-25 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 10/31/2024) regarding 48 DECISION of Special Master. Signed by Special Master Mindy Michaels Roth. (msg) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01956-UNJ Document 49 Filed 11/25/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1956V Filed: October 31, 2024 * * * * * * * * * * * * * * MIKAYLA ELAM, * * Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Jonathan Svitak, Esq., Shannon Law Group, P.C., Woodridge, IL, for petitioner. Camille Webster, Esq., U.S. Dept. of Justice, Washington, DC for respondent. DECISION1 Roth, Special Master: On October 4, 2021, Mikayla Elam (“petitioner”) filed a petition for Vaccine Compensation in the National Vaccine Injury Compensation Program (“the Program”),2 alleging that the influenza (“flu”) vaccine she received on September 20, 2019 caused her to develop Guillain-Barré Syndrome (“GBS”). The information in the record, however, does not show entitlement to an award under the Program. On October 31, 2024, petitioner filed a Motion for Dismissal Decision requesting that her case be dismissed. ECF No. 47. To receive compensation under the Program, petitioner must prove either 1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding 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, the undersigned finds that the identified material fits within this definition, such material will be redacted 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:21-vv-01956-UNJ Document 49 Filed 11/25/24 Page 2 of 2 to her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence indicating that petitioner’s alleged injury was vaccine-caused or in any way vaccine-related. Under the Act, a petitioner may not be given a Program award based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient medical records supporting petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion that supports a finding of entitlement. Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate either that she suffered a “Table Injury” or that her injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01956-cl-extra-10749651 Date issued/filed: 2024-11-25 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10283063 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1956V Filed: October 31, 2024 * * * * * * * * * * * * * * MIKAYLA ELAM, * * Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Jonathan Svitak, Esq., Shannon Law Group, P.C., Woodridge, IL, for petitioner. Camille Webster, Esq., U.S. Dept. of Justice, Washington, DC for respondent. DECISION1 Roth, Special Master: On October 4, 2021, Mikayla Elam (“petitioner”) filed a petition for Vaccine Compensation in the National Vaccine Injury Compensation Program (“the Program”),2 alleging that the influenza (“flu”) vaccine she received on September 20, 2019 caused her to develop Guillain-Barré Syndrome (“GBS”). The information in the record, however, does not show entitlement to an award under the Program. On October 31, 2024, petitioner filed a Motion for Dismissal Decision requesting that her case be dismissed. ECF No. 47. To receive compensation under the Program, petitioner must prove either 1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding 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, the undersigned finds that the identified material fits within this definition, such material will be redacted 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). to her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence indicating that petitioner’s alleged injury was vaccine-caused or in any way vaccine-related. Under the Act, a petitioner may not be given a Program award based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient medical records supporting petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion that supports a finding of entitlement. Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate either that she suffered a “Table Injury” or that her injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special Master 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01956-cl-extra-11228485 Date issued/filed: 2025-12-19 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10761900 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1956 Filed: October 30, 2025 * * * * * * * * * * * * * * * MIKAYLA ELAM, * * Petitioner, * * v. * Decision on Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Jonathan Joseph Svitak, Shannon Law Group, P.C., New Bedford, MA, for petitioner. Camille Jordan Webster, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On October 4, 2021, Mikayla Elam filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleged that that the influenza (“flu”) vaccine she received on September 20, 2019 caused her to develop Guillain-Barré Syndrome (“GBS”). Petition, ECF No. 1. On October 31, 2024, petitioner filed a motion to dismiss her petition, which the undersigned granted on the same day. ECF Nos. 47, 48. On June 9, 2025, petitioner filed an application for final attorneys’ fees and costs. (“Fees App.”) (ECF No. 51). Petitioner requests total attorneys’ fees and costs in the amount of $26,913.07, representing $24,539.50 in attorneys’ fees and $2,373.57 in attorneys’ costs. Fees App. 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, the undersigned finds that the identified material fits within this definition, such material will be redacted 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). at 3. Pursuant to General Order No. 9, petitioner warrants that she did not personally incur any costs pursuing this claim. Id. Respondent responded to the motion on June 25, 2025, stating, “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise [her] discretion and determine a reasonable award for attorneys’ fees and costs.” Response at 2, 4 (ECF No. 53). Petitioner did not file a reply. This matter is now ripe for consideration. I. Legal Framework The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although the petition was eventually dismissed, I am satisfied that the case possessed both good faith and reasonable basis throughout its pendency. Respondent also has not advanced any argument that the claim lacked good faith or reasonable basis. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs. The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial estimate of a reasonable attorneys' fees” is calculated by “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based on other specific findings. Id. Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). II. Discussion A. Reasonable Hourly Rate A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly rate and forum 2 hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v. Sec’y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.3 Petitioner requests the following hourly rates for the work of her counsel: for Mr. Jonathan Svitak, $280.00 per hour for work performed in 2020, $310.00 per hour for work performed in 2021, $350.00 per hour for work performed in 2022, $380.00 per hour for work performed in 2023, and $410.00 per hour for work performed in 2024 Petitioner also requests rates between $163.00 and $197.00 per hour for paralegal work performed by her counsel or her counsel’s paralegals from 2020 to 2024. The undersigned finds the rates are consistent with what counsel and staff have previously been awarded for their Vaccine Program work and finds them to be reasonable herein. B. Hours Reasonably Expended Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one-half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec'y of Health & Human Servs., No 14– 1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See 3 The OSM Attorneys’ Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claims website at http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). 3 Broekelschen, 102 Fed. Cl. at 728–29 (affirming the Special Master’s reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). The undersigned has reviewed the submitted billing entries and finds that a reduction is necessary due to the excessive billing of non-compensable administrative tasks (e.g., filing, preparing, and organizing exhibits) by counsel and paralegals.4 This is not a new issue to counsel. See, e.g., Aman v. Sec’y of Health & Human Servs., No. 20-0366V, 2023 WL 2663037, at *2-3 (Fed. Cl. Spec. Mstr. Mar. 28, 2023); Olson v. Sec’y of Health & Human. Servs., No. 21-0054V, 2023 WL 2638716, at *2-3 (Fed. Cl. Spec. Mstr. Mar. 27, 2023); O’Donoghue v. Sec’y of Health & Human Servs., No. 20-0391V, 2023 WL 2207409, at *2-3 (Fed. Cl. Spec. Mstr. Feb. 24, 2023). The undersigned finds a 5% reduction reasonable and appropriate, resulting in a reduction of $1,226.98. Accordingly, petitioner is entitled to a final award of attorneys’ fees in the amount of $23,312.52. C. Reasonable Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $2,373.57 in costs for acquiring medical records and the Court’s filing fee. Fees App. Ex. B. Petitioner has provided adequate documentation supporting the requested costs and all appear reasonable in the undersigned’s experience. Accordingly, petitioner is entitled to final attorneys’ costs of $2,373.57. III. Conclusion In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is GRANTED IN PART. The undersigned hereby awards the following: a lump sum of $25,686.09, representing reimbursement for Petitioner’s attorneys’ fees and costs, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.5 IT IS SO ORDERED. s/Mindy Michaels Roth Mindy Michaels Roth Special Master 4 For example, see entries dated September 16, 2024, May 28, 2024, August 2, 2023, July 24, 2023, July 21, 2023, July 20, 2023, July 19, 2023, July 13, 2023, April 26, 2023, April 25, 2023, April 24, 2023, January 3, 2023, December 29, 2022, December 15, 2022, and December 14, 2022. This is not an exhaustive list. 5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a). 4