VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02003 Package ID: USCOURTS-cofc-1_21-vv-02003 Petitioner: Martin Smith Filed: 2021-10-12 Decided: 2023-10-31 Vaccine: influenza Vaccination date: 2020-09-29 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 62500 AI-assisted case summary: Martin Smith, an adult, received an influenza vaccine on September 29, 2020. Within 48 hours, he developed shoulder pain and a reduced range of motion, diagnosed as Shoulder Injury Related to Vaccine Administration (SIRVA). The respondent conceded that Mr. Smith's injury was consistent with SIRVA as defined on the Vaccine Injury Table, noting he had no prior shoulder issues, his symptoms were localized to the injection site, and no other condition explained his symptoms. The respondent also agreed that his injury lasted for at least six months, satisfying the statutory requirement for compensation. The Chief Special Master issued a ruling on entitlement on June 21, 2023, finding Mr. Smith entitled to compensation. Subsequently, on October 31, 2023, a decision awarding damages was issued, granting Mr. Smith a lump sum payment of $62,500.00 for pain and suffering, which he agreed was acceptable. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02003-0 Date issued/filed: 2023-07-24 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/21/2003) regarding 27 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02003-UNJ Document 30 Filed 07/24/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2003V MARTIN SMITH, Chief Special Master Corcoran Petitioner, Filed: June 21, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 12, 2021, Martin Smith 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”) as a result of an influenza (“flu”) vaccine administered to him on September 29, 2020. Petition at 1. Petitioner further alleges that his injuries have persisted for more than six months. Petition at 12. The case was assigned to the Special Processing Unit of the Office of Special Masters. 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. 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-02003-UNJ Document 30 Filed 07/24/23 Page 2 of 2 Specifically, Respondent states “DICP has concluded that petitioner’s alleged injury is consistent with SIRVA, as defined on the Vaccine Injury Table. Specifically, petitioner had no history of pain, inflammation or dysfunction in his right shoulder; his pain and reduced range of motion occurred within 48 hours of receipt of an intramuscular vaccination; his symptoms were limited to the shoulder in which the vaccine was administered; and no other condition or abnormality was identified to explain his symptoms.” Id. at 5. Respondent further agrees that “petitioner has satisfied the statutory requirement that petitioner’s injury lasted for at least six months as required by 42 U.S.C. § 300aa- 11(c)(1)(D)(i). Therefore, based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act.” Id. at 5-6. 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-02003-1 Date issued/filed: 2023-10-31 Pages: 4 Docket text: PUBLIC DECISION (Originally filed: 09/25/2003) regarding 35 DECISION Stipulation/Proffer, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02003-UNJ Document 39 Filed 10/31/23 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2003V MARTIN SMITH, Chief Special Master Corcoran Petitioner, v. Filed: September 25, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 12, 2021, Martin Smith 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”) as a result of an influenza (“flu”) vaccine administered to him on September 29, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 21, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On September 25, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $62,500.00. Proffer at 1. 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. 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-02003-UNJ Document 39 Filed 10/31/23 Page 2 of 4 Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $62,500.00 (for 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-02003-UNJ Document 39 Filed 10/31/23 Page 3 of 4 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MARTIN SMITH, Petitioner, No. 21-2003V Chief Special Master Corcoran v. SPU SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Procedural History and Items of Compensation On June 20, 2023, respondent filed his Vaccine Rule 4(c) report, and conceded that entitlement to compensation was appropriate under the terms of the Vaccine Act. Thereafter, on June 21, 2023, the Chief Special Master issued a Ruling on Entitlement finding that petitioner was entitled to vaccine compensation for his right Shoulder Injury Related to Vaccine Administration (“SIRVA”). ECF Nos. 26, 27. Based on the evidence of record, respondent proffers that petitioner should be awarded $62,500.00, which is comprised of damages for pain and suffering. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees. 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. Case 1:21-vv-02003-UNJ Document 39 Filed 10/31/23 Page 4 of 4 II. Form of the Award The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $62,500.00, in the form of a check payable to petitioner. Petitioner agrees. Petitioner is a competent adult. Evidence of guardianship is not required in this case. 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 s/ Mallori B. Openchowski MALLORI B. OPENCHOWSKI Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel.: (202) 305-0660 mallori.b.openchowski@usdoj.gov DATED: September 22, 2023 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02003-cl-extra-10736065 Date issued/filed: 2024-02-29 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269475 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2003V MARTIN SMITH, Chief Special Master Corcoran Petitioner, v. Filed: January 29, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On October 12, 2021, Martin Smith 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 he suffered a Shoulder Injury Related to Vaccine Administration as a result of an influenza vaccine administered to him on September 29, 2020. Petition, ECF No. 1. On September 25, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 35. 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 $35,578.22 (representing $32,711.50 in fees plus $2,866.72 costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Nov. 6, 2023, ECF No. 40. In accordance with General Order No. 9, Petitioner filed a signed statement representing that Petitioner incurred no out-of-pocket expenses. Id. at 40. Respondent reacted to the motion on Nov. 14, 2023, reporting 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. 41. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion at 26-56. Respondent offered no specific objection to the rates or amounts sought. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $35,578.22 (representing $32,711.50 in fees plus $2,866.72 in 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. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 2