VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02007 Package ID: USCOURTS-cofc-1_21-vv-02007 Petitioner: Cindy Gaughan Filed: 2021-10-21 Decided: 2023-10-06 Vaccine: influenza Vaccination date: 2020-09-30 Condition: left Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 62500 AI-assisted case summary: Cindy Gaughan filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a left shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccination she received on September 30, 2020. The petition was filed on October 21, 2021. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Ms. Gaughan is entitled to compensation. The respondent confirmed that her injury met the criteria set forth in the Vaccine Injury Table for SIRVA, noting that she had no prior history of shoulder issues, her pain occurred within 48 hours of vaccination, was limited to the injection site, and no other condition explained the pain. The respondent also agreed that the case was timely filed, the vaccine was administered in the United States, and the injury lasted for more than six months, satisfying the statutory severity requirement. Based on the respondent's concession and the evidence, the Chief Special Master issued a ruling on entitlement, finding Ms. Gaughan entitled to compensation. Subsequently, the parties filed a proffer on award of compensation. The respondent recommended, and Ms. Gaughan agreed, that she should be awarded a total of $62,500.00 for past pain and suffering. The Chief Special Master issued a decision awarding this lump sum payment to Ms. Gaughan. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02007-0 Date issued/filed: 2023-08-11 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 07/11/2023) regarding 26 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02007-UNJ Document 29 Filed 08/11/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2007V CINDY GAUGHAN, Chief Special Master Corcoran Petitioner, Filed: July 11, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 21, 2021, Cindy Gaughan 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 left Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on September 30, 2020. Petition at 1. Petitioner further alleges that her vaccine-related injuries lasted for more than six months. Petition at 6. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 6, 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 states that: 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-02007-UNJ Document 29 Filed 08/11/23 Page 2 of 2 Medical personnel at the Division of Injury Compensation Programs, Department of Health and Human Services (“DICP”), have reviewed the petition and medical records filed in the case. It is respondent’s position that petitioner has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”) for SIRVA. 42 C.F.R. §§ 100.3(a)(XIV)(B), 100.3(c)(10). Specifically, petitioner had no history of pain, inflammation, or dysfunction of her left shoulder; her pain occurred within 48 hours after receipt of an intramuscular vaccination; her pain was limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain petitioner’s shoulder pain. Id. at 4-5. Respondent further agrees that Petitioner timely filed her case, that she received the flu vaccine in the United States, and that she satisfies the statutory severity requirement by suffering the residual effects or complications of her injury for more than six months after vaccine administration. Id. at 5. 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-02007-1 Date issued/filed: 2023-10-06 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 09/05/2023) regarding 31 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02007-UNJ Document 37 Filed 10/06/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2007V CINDY GAUGHAN, Chief Special Master Corcoran Petitioner, v. Filed: September 5, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 21, 2021, Cindy Gaughan 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 left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on September 30, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 11, 2023, a ruling on entitlement was issued finding Petitioner entitled to compensation. On September 1, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $62,500.00, representing past pain and suffering. 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. 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-02007-UNJ Document 37 Filed 10/06/23 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $62,500.00 (for past 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-02007-UNJ Document 37 Filed 10/06/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) CINDY GAUGHAN, ) ) Petitioner, ) No. 21-2007V ECF ) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________ ) PROFFER ON AWARD OF COMPENSATION1 I. Procedural History On October 12, 2021, Cindy Gaughan (“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”), as amended. Petitioner alleged that she suffered from a left Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on September 30, 2020. Petition at 1. On July 6, 2023, respondent filed his Vaccine Rule 4(c) Report, concluding that petitioner suffered from SIRVA as defined by the Vaccine Injury Table, within the Table timeframe. ECF No. 25. On July 11, 2023, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for a SIRVA Table injury. ECF No. 26. 1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued. Case 1:21-vv-02007-UNJ Document 37 Filed 10/06/23 Page 4 of 5 II. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded a lump sum of $62,500.00, representative of past pain and suffering. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. III. Form of the Award 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 following: A lump sum payment of $62,500.00 in the form of a check payable to petitioner.2 Petitioner agrees. 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 TRACI R. PATTON Assistant Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 2 Case 1:21-vv-02007-UNJ Document 37 Filed 10/06/23 Page 5 of 5 s/ Joseph A. Lewis JOSEPH A. LEWIS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 T: (202) 451-7495 E: joseph.a.lewis@usdoj.gov DATED: September 1, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02007-cl-extra-10736918 Date issued/filed: 2023-11-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270328 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2007V CINDY GAUGHAN, 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. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On October 12, 2021, Cindy Gaughan 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 left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on September 30, 2020. Petition at 1. On September 5, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 31. 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 $30,648.97 (representing $29,218.00 in attorney’s fees and $1,430.97 in attorney’s costs). Petitioner’s Application for Attorney’s Fees and Costs, filed Sept. 19, 2023, ECF No. 35. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that Petitioner incurred no out-of-pocket expenses. Id. at 43. Respondent reacted to the motion on September 19, 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. 36. 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 and costs 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 $350 $375 $400 $425 Paralegals $145 $145 $145 $145 X Evan R. Baker, Law X X X 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. 35 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 2023 work exceeds the student hourly rate established in other cases - $165. 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 2023 work at the rate of $165. This reduces the amount of fees to be awarded by $510.00. 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 instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. 3 This amount consists of ($195 - $165) x 17.0 hours = $510.00. 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: 10/20/21 and 6/26/23. ECF No. 35 at 17, 20. 3 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 requests $1,430.97 in overall costs. ECF No. 35 at 24-41. I find the majority of these costs reasonable with the exception of $114.40 in costs incurred for “[s]canning charges throughout case for intake documents, envelopes, medical records, invoices, letters, and client documents.” Id. at 34-35. Such overhead expenses are inherent in operating a law firm and are thus not compensable. Accordingly, the attorney’s costs are reduced by $114.40. 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 $29,740.57 (representing $28,424.00 in attorney’s fees and $1,316.57 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