VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02039 Package ID: USCOURTS-cofc-1_21-vv-02039 Petitioner: Michael Cohen Filed: 2021-10-19 Decided: 2023-10-04 Vaccine: Tdap Vaccination date: 2020-11-21 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 65000 AI-assisted case summary: Michael Cohen filed a petition for compensation under the National Vaccine Injury Compensation Program on October 19, 2021, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) after receiving a Tdap vaccine on November 21, 2020. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Mr. Cohen's alleged injury was consistent with SIRVA as defined by the Vaccine Injury Table and that he met all legal prerequisites for compensation. Based on the respondent's concession and the evidence of record, Chief Special Master Brian H. Corcoran issued a ruling on entitlement on August 29, 2023, finding Mr. Cohen entitled to compensation. Subsequently, on September 1, 2023, the respondent filed a proffer on the award of compensation, which Mr. Cohen agreed to. The decision, issued by Chief Special Master Corcoran on September 1, 2023, awarded Mr. Cohen a lump sum payment of $65,000.00, representing past pain and suffering and all other damages available under the program. The case was resolved through a stipulation between the parties. Petitioner was represented by Laura Levenberg of Muller Brazil, LLP, and respondent was represented by Joseph Adam Lewis of the U.S. Department of Justice. The public decision does not describe the specific onset of symptoms, medical examinations, diagnostic tests, or treatments. The specific mechanism of injury is not detailed in the public decision. Theory of causation field: Petitioner Michael Cohen alleged a shoulder injury related to vaccine administration (SIRVA) following a Tdap vaccination received on November 20, 2020. The respondent conceded that the alleged injury was consistent with SIRVA as defined by the Vaccine Injury Table and that Petitioner met all legal prerequisites for compensation. The case was resolved via stipulation. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on August 29, 2023, finding Petitioner entitled to compensation. A subsequent decision on damages, issued by Chief Special Master Corcoran on September 1, 2023, awarded Petitioner a lump sum of $65,000.00 for past pain and suffering, representing all damages available under 42 U.S.C. § 300aa-15(a). Petitioner was represented by Laura Levenberg (Muller Brazil, LLP), and Respondent was represented by Joseph Adam Lewis (U.S. Department of Justice). The public decision does not detail specific medical evidence, expert testimony, or the precise mechanism of injury beyond its classification as a Table injury. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02039-0 Date issued/filed: 2023-10-03 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 08/29/2023 ) regarding 26 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02039-UNJ Document 33 Filed 10/03/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2039V MICHAEL COHEN, Chief Special Master Corcoran Petitioner, v. Filed: August 29, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 19, 2021, Michael Cohen 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”) following receipt of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine received on November 21, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 28, 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 alleged injury is consistent with SIRVA as defined by the Vaccine Injury Table. Id. at 4 (citing 42 C.F.R. §§ 100.3(a), 1 Because this unpublished 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-02039-UNJ Document 33 Filed 10/03/23 Page 2 of 2 100.3(c)(10)). Respondent further agrees that Petitioner has satisfied all legal prerequisites for compensation under the Vaccine Act. 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-02039-1 Date issued/filed: 2023-10-04 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 09/01/2023) regarding 28 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02039-UNJ Document 34 Filed 10/04/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2039V MICHAEL COHEN, Chief Special Master Corcoran Petitioner, v. Filed: September 1, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On October 19, 2021, Michael Cohen 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”) following receipt of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine received on November 21, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 29, 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 compensation (“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-02039-UNJ Document 34 Filed 10/04/23 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $65,000.00 (representative of 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-02039-UNJ Document 34 Filed 10/04/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) MICHAEL COHEN, ) ) Petitioner, ) No. 21-2039V ECF ) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________ ) PROFFER ON AWARD OF COMPENSATION1 I. Procedural History On October 19, 2021, Michael Cohen (“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 he suffered a Table shoulder injury related to vaccine administration (“SIRVA”), as the result of a Tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccination received on November 21, 2020. Petition at 1. On August 28, 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 August 29, 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-02039-UNJ Document 34 Filed 10/04/23 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 $65,000.00, 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 $65,000.00 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 LARA A. ENGLUND 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-02039-UNJ Document 34 Filed 10/04/23 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-02039-cl-extra-10735727 Date issued/filed: 2024-04-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269137 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2039V MICHAEL COHEN, Chief Special Master Corcoran Petitioner, v. Filed: February 28, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, 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 19, 2021, Michael Cohen 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 following receipt of a tetanus-diphtheria-acellular pertussis vaccine received on November 21, 2020. Petition, ECF No. 1. On September 1, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 28. 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 $10,697.70 (representing $10,256.50 in fees plus $441.20 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Nov. 30, 2023, ECF No. 35. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on Dec. 1, 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.36. 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 13-16. 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 $10,697.70 (representing $10,256.50 in fees plus $441.20 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Laura Levenberg. 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