VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01972 Package ID: USCOURTS-cofc-1_21-vv-01972 Petitioner: Phil Soussan Filed: 2021-10-06 Decided: 2023-10-03 Vaccine: influenza Vaccination date: 2020-12-24 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 62416 AI-assisted case summary: Phil Soussan filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on December 24, 2020. He stated the vaccine was administered in the United States, he suffered residual effects for more than six months, and had not received prior compensation. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Mr. Soussan's claim met the Table criteria for SIRVA. The respondent agreed that Mr. Soussan had no prior shoulder issues, that his pain and reduced range of motion were limited to the injection site, and that his symptoms began within 48 hours of vaccination. The respondent also confirmed the case was timely filed, the vaccine was given in the U.S., and Mr. Soussan met the statutory severity requirement. Based on the respondent's concession and the evidence, the Chief Special Master issued a ruling on entitlement, finding Mr. Soussan entitled to compensation. Subsequently, the respondent filed a proffer on award of compensation, recommending a total award of $62,416.17, which included $60,000.00 for pain and suffering and $2,416.17 for past unreimbursed expenses. Mr. Soussan agreed with this proffered award. The Chief Special Master issued a decision awarding Mr. Soussan the lump sum of $62,416.17. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01972-0 Date issued/filed: 2023-07-24 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/22/2023) regarding 36 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01972-UNJ Document 38 Filed 07/24/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1972V PHIL SOUSSAN, Chief Special Master Corcoran Petitioner, Filed: June 22, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Neil Bhargava, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 6, 2021, Phil Soussan filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on December 24, 2020. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, he suffered from residual effects of his injury for more than six months, and he has never received compensation in the form of an award or settlement for his vaccine-related injuries. Petition at ¶¶ 3, 18, 19. The case was assigned to the Special Processing Unit of the Office of Special Masters. 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-01972-UNJ Document 38 Filed 07/24/23 Page 2 of 2 On June 20, 2023, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent agrees that Petitioner’s claim meets the Table criteria for SIRVA, in that “petitioner had no history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; he more likely than not suffered the onset of pain within forty-eight hours of vaccine administration; his pain and reduced range of motion were limited to the shoulder in which the intramuscular vaccine was administered; and there is no other condition or abnormality present that would explain petitioner’s symptoms.” Id. at 5. Respondent further agrees that “the records show that the case was timely filed, that the vaccine was received in the United States, and that petitioner satisfies the statutory severity requirement by suffering the residual effects or complications of his injury for more than six months after vaccine administration.” Id. Respondent also notes that Petitioner has averred that he has not previously collected an award or settlement from a civil action and there are no civil actions pending. Id. Therefore, Respondent concedes that entitlement to compensation is appropriate. 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-01972-1 Date issued/filed: 2023-10-03 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 09/01/2023) regarding 43 DECISION Stipulation/Proffer, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01972-UNJ Document 50 Filed 10/03/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1972V PHIL SOUSSAN, Chief Special Master Corcoran Petitioner, Filed: September 1, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Neil Bhargava, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 6, 2021, Phil Soussan filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on December 24, 2020. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, he suffered from residual effects of his injury for more than six months, and he has never received compensation in the form of an award or settlement for his vaccine-related injuries. Petition at ¶¶ 3, 18, 19. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 22, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On September 1, 2023, Respondent filed a proffer on award of 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-01972-UNJ Document 50 Filed 10/03/23 Page 2 of 5 compensation (“Proffer”) indicating Petitioner should be awarded $62,416.17. Proffer at 2. 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 $62,416.17 (comprised of $60,000.00 in pain and suffering and $2,416.17 for past unreimbursed expenses) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:21-vv-01972-UNJ Document 50 Filed 10/03/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS PHIL SOUSSAN, Petitioner, No. 21-1972V v. Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 6, 2021, Phil Soussan (“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 vaccine he received on December 24, 2020. Petition at 1. On June 20, 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 22, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 34; ECF No. 36. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $60,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:21-vv-01972-UNJ Document 50 Filed 10/03/23 Page 4 of 5 B. Unreimbursed Expenses Respondent proffers that petitioner should be awarded $2,416.17 for past unreimbursed expenses. Petitioner agrees. These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through 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 $62,416.17, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Phil Soussan: $62,416.17 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 1 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future lost earnings and future pain and suffering. 2 Case 1:21-vv-01972-UNJ Document 50 Filed 10/03/23 Page 5 of 5 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Neil Bhargava NEIL BHARGAVA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel.: (202) 306-3989 neil.bhargava@usdoj.gov Date: September 1, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-01972-cl-extra-10736905 Date issued/filed: 2023-11-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270315 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1972V PHIL SOUSSAN, Chief Special Master Corcoran Petitioner, v. Filed: October 25, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Neil Bhargava, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On October 6, 2021, Phil Soussan filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on December 24, 2020. Petition at 1. On September 1, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 43. 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 $33,199.38 (representing $31,671.00 in attorney’s fees and $1,528.38 in attorney’s costs). Petitioner’s Application for Attorney’s Fees and Costs, filed Sept. 13, 2023, ECF No. 48. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that Petitioner incurred no out-of-pocket expenses. Id. at 62. Respondent reacted to the motion on September 27, 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. 49. 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 for 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. 48 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 $752.50. 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 7.9 hrs + ($195 - $165) x 18.5 hours = $752.50. 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: 10/7/21, 10/20/21, 7/25/22, 8/1/22, 12/7/22, and 8/7/23. ECF No. 48 at 17-19, 22. 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 $583.00. 5 ATTORNEY COSTS Petitioner also requests $1,528.38 in overall costs. ECF No. 48 at 26-60. 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 $31,863.88 (representing $30,335.50 in attorney’s fees and $1,528.38 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 1.1 hrs + ($400 - $145) x 1.0 hrs + ($425 - $175) x 0.3 hrs = $583.00. 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