VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02192 Package ID: USCOURTS-cofc-1_21-vv-02192 Petitioner: Alice Raye Carpenter Filed: 2021-11-19 Decided: 2023-03-20 Vaccine: influenza Vaccination date: 2019-11-15 Condition: Guillain-Barre Syndrome (GBS) Outcome: compensated Award amount USD: 100000 AI-assisted case summary: Alice Raye Carpenter filed a petition on November 19, 2021, seeking compensation under the National Vaccine Injury Compensation Program. She alleged that an influenza vaccine administered on November 15, 2019, caused her to develop Guillain-Barre Syndrome (GBS). Ms. Carpenter stated that the vaccine was given in the United States, that she experienced residual effects of her condition for over six months, and that she had not received a prior award or settlement for damages. The respondent, the Secretary of Health and Human Services, denied that the flu vaccine caused Petitioner's GBS or any other injury, and denied that the alleged injury was a sequela of a vaccine-related injury. Despite the respondent's denial, on February 6, 2023, the parties filed a joint stipulation agreeing that compensation should be awarded. Chief Special Master Brian H. Corcoran reviewed the stipulation, found it reasonable, and adopted it as the decision. Petitioner was awarded a lump sum of $100,000.00, payable to her, representing compensation for all items of damages available under Section 15(a) of the Vaccine Act. The decision was issued on March 20, 2023. Petitioner was represented by Eric J. Neiman of Lewis Brisbois Bisgaard & Smith LLP, and Respondent was represented by Felicia Langel of the U.S. Department of Justice. Theory of causation field: Petitioner Alice Raye Carpenter alleged that an influenza vaccine administered on November 15, 2019, caused her to develop Guillain-Barre Syndrome (GBS). Respondent denied this allegation. The parties filed a joint stipulation on February 6, 2023, agreeing to an award of compensation. Chief Special Master Brian H. Corcoran adopted the stipulation as his decision, awarding Petitioner a lump sum of $100,000.00 for all damages under Section 15(a). The public decision does not describe the specific medical or scientific theory of causation, nor does it name any medical experts or detail the clinical presentation, onset, symptoms, diagnostic tests, or treatments for Ms. Carpenter's alleged GBS. The decision was issued on March 20, 2023. Petitioner's counsel was Eric J. Neiman, and Respondent's counsel was Felicia Langel. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02192-0 Date issued/filed: 2023-03-20 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 02/13/2023) regarding 32 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02192-UNJ Document 36 Filed 03/20/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2192V UNPUBLISHED ALICE RAYE CARPENTER, Chief Special Master Corcoran Petitioner, Filed: February 13, 2023 v. Special Processing Unit (SPU); Joint SECRETARY OF HEALTH AND Stipulation on Damages; Influenza HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent. Eric J. Neiman, Lewis Brisbois Bisgaard & Smith LLP (OR), Portland, OR, for Petitioner. Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On November 19, 2021, Alice Carpenter 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 Guillain-Barre Syndrome (“GBS”) caused by an influenza (“flu”) vaccine administered on November 15, 2019. Petition at 1; Stipulation, filed at February 6, 2023, ¶¶ 1, 2, 4. Petitioner further alleges that the vaccine was administered within the United States, that she experienced the residual effects of her condition for more than six months, and that there has been no prior award or settlement of a civil action for damages as a result of her condition. Petition at 1-3; Stipulation at ¶¶ 3-5. Respondent denies that the flu vaccine caused Petitioner’s alleged GBS or any other injury or condition, and denies that Petitioner’s alleged injury or condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6. 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012). Case 1:21-vv-02192-UNJ Document 36 Filed 03/20/23 Page 2 of 7 Nevertheless, on February 6, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $100,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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-02192-UNJ Document 36 Filed 03/20/23 Page 3 of 7 Case 1:21-vv-02192-UNJ Document 36 Filed 03/20/23 Page 4 of 7 Case 1:21-vv-02192-UNJ Document 36 Filed 03/20/23 Page 5 of 7 Case 1:21-vv-02192-UNJ Document 36 Filed 03/20/23 Page 6 of 7 Case 1:21-vv-02192-UNJ Document 36 Filed 03/20/23 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-02192-cl-extra-10736534 Date issued/filed: 2024-01-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269944 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2192V ALICE RAYE CARPENTER, Chief Special Master Corcoran Petitioner, v. Filed: December 5, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jennifer K. Oetter, Lewis Brisbois Bisgaard & Smith LLP (OR), Portland, OR, for Petitioner. Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On November 19, 2021, Alice Carpenter 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 Guillain-Barré syndrome caused by an influenza vaccine administered to her on November 15, 2019. Petition, ECF No. 1. On February 13, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 32. 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 identif ied material f its within this def inition, 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 $56,642.37 (representing $55,795.03 in fees and $847.34 in costs). Petitioner’s Application for Attorney’s Fees (“Motion”) filed June 30, 2023, ECF No. 37. In accordance with General Order No. 9, Petitioner filed a signed statement representing that Petitioner incurred no out-of-pocket expenses. ECF No. 44. Respondent reacted to the motion on Jul. 5, 2023, stating 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, 3 n.2, ECF No. 40. Petitioner did not file a reply. I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reason listed below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. 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 that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 2 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES A. Attorney Hourly Rates Petitioner requests compensation for attorneys 3 performing work in this matter as follows: 2020 2021 2022 2023 Eric J. Neiman, Esq. $500 $500 $500 $500 Sarah Desautels, Esq. X $350 X X Alexandra McLain, Esq. X X $350 $350 Paralegals $225 $225 $225 $225 These rates require adjustment. Mr. Neiman has been a practicing attorney since 1982, (ECF No. 37 at 5), placing him in the range of attorneys with 31+ years’ experience based on the OSM Attorney’s Fee schedules. 4 Mr. Neiman also has nearly 10 years’ experience representing Petitioners in the Vaccine Program. Id. at 5. However, Mr. Neiman’s requested rate of $500 for his time billed in 2020 exceeds the Fee schedule’s published range for comparably-experienced attorneys. Mr. Neiman’s hourly rate was last established based upon a case decided in 2017, at which time he was awarded $375 per hour for that year. See Hale v. Sec’y of Health & Hum. Servs., Slip Op at *55, (Fed. Cl. Spec. Mstr. Apr. 26, 2017). Thus, even allowing for increases each year since, the flat rate requested herein is excessively high. And hourly rates on the highest end of the experience ranges are usually awarded only to those attorneys with significant experience in the Vaccine Program. See McCulloch v. Sec’y of Health and Human. Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Accordingly, based on my experience applying the factors relevant to determining proper hourly rates for Program attorneys, I find it reasonable to compensate Mr. Neiman at the lesser rate of $425 3 It does not appear from the billing records submitted in this case that the attorney currently representing Petitioner with respect to this fees motion, Ms. Jennifer Oetter, seeks reimbursement for any time spent on this matter. 4 The Attorneys’ Fee Schedule are available at http://www.cof c.uscourts.gov/node/2914. 3 per hour for his time billed in the 2020-23 timeframe. This reduces the amount of fees to be awarded herein by $2,017.50. 5 Sarah Desautels has been a practicing attorney since 2020 (ECF No. 37 at 6), placing her in the range of attorneys with less than four years’ experience based on the OSM Fee Schedules. Such attorneys are entitled to hourly rates between $177 - $275 for work performed in 2021-22. Ms. Desautels requested rate of $350 therefore exceeds the Vaccine Program’s published ranges for comparably experienced attorneys. Thus, based on my experience applying the factors relevant to determining proper hourly rates for Program attorneys, I find it reasonable to compensate Ms. Desautels at the lesser rate of $250 per hour for all time billed in the 2021-22 timeframe. This reduces the amount of fees to be awarded herein by $420.00. 6 Alexandra McLain has been a practicing attorney for over four years (ECF No. 38 at 3), placing her in the range of attorneys with 4-7 years’ experience based on the OSM Fee Schedules. Although Ms. McLain’s requested rate falls within the appropriate experience ranges, she does not have demonstrated Vaccine Act experience, and it is therefore improper for her to receive rates established for comparably experienced counsel who also have lengthy experience in the Program. McCulloch, 2015 WL 5634323, at *17 (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). I instead find it reasonable to compensate Ms. McLain at the lesser rate of $275 for all time billed in the 2022-23 period. This further reduces the amount of fees to be awarded herein by $1,845.00. 7 B. Paralegal Hourly Rates For paralegal work, Petitioner requests $225 per hour for all time billed in the 2021- 23 timeframe. ECF No. 37 at 3. This rate exceeds the Vaccine Program’s published ranges for paralegals for the given timeframe, and therefore requires adjustment. I shall instead compensate all paralegal work performed in the 2021-23 period at the reduced 5 This amount is calculated as: ($500 - $425 = $75 x 26.90 = $2,017.50). 6 This amount is calculated as: ($350 - $250 = $100 x 4.20 hrs = $420.00). 7 This amount is calculated as: ($350 - $275 = $75 x 24.60 hrs = $1,845.00). 4 rate of $160 per hour. This rate is more comparable to what a paralegal would receive for said years. This further reduces the amount of fees to be awarded by $9,308.00. 8 Finally, Petitioner requests $847.34 in overall costs (Motion at 15), and has provided supporting documentation for all claimed costs. ECF No. 45. Respondent offered no specific objection to the rates or amounts sought. I have reviewed the requested costs and find them to be reasonable. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). I award a total of $43,051.87 (representing $42,204.53 in fees plus $847.34 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Jennifer K. Oetter. 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. 9 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8 This amount is calculated as f ollows: ($225 - $160 = $65 x 143.20 hrs = $9,308.00). 9 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. 5