VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02222 Package ID: USCOURTS-cofc-1_21-vv-02222 Petitioner: Kelly Wyble Filed: 2021-11-29 Decided: 2023-08-18 Vaccine: influenza Vaccination date: 2020-10-03 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 109745 AI-assisted case summary: Kelly Wyble filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving a seasonal influenza vaccine in her left shoulder on October 3, 2020. She further alleged that her injuries lasted for more than six months. The respondent conceded that the evidence satisfied the requirements for a Table claim for SIRVA following the flu vaccination. The respondent did not identify any other causes for her injury and agreed that she suffered the sequelae of this injury for more than the required six months. The Chief Special Master issued a ruling on entitlement finding Petitioner entitled to compensation. Subsequently, the respondent filed a proffer on award of compensation, indicating that Petitioner should be awarded a total of $109,745.94, consisting of $107,500.00 in pain and suffering and $2,245.94 in past unreimbursable expenses. Petitioner agreed with the proffered award. The Chief Special Master awarded Petitioner the lump sum of $109,745.94. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02222-0 Date issued/filed: 2023-08-04 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/21/2023) regarding 27 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02222-UNJ Document 36 Filed 08/04/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2222V KELLY WYBLE, Chief Special Master Corcoran Petitioner, Filed: June 21, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner. Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 29, 2021, Kelly Wyble 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, as a result of receiving a seasonal influenza (“flu”) vaccine in her left shoulder on October 3, 2020, she suffered a shoulder injury related to vaccine administration (“SIRVA”). Petition at 5. Petitioner further alleges that her injuries lasted for more than six months. Petition at 5. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 21, 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 “[s]pecifically, DICP has concluded that the evidence 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-02222-UNJ Document 36 Filed 08/04/23 Page 2 of 2 filed satisfies the requirements for a Vaccine Injury Table (‘Table’) claim for SIRVA following a flu vaccination on October 3, 2020. 42 C.F.R. § 100.3(a)(XIV)(D), (c)(15). DICP did not identify any other causes for petitioner’s injury. Furthermore, the records show that petitioner suffered the sequela of this injury for more than the required six months, with a full twelve-month period in between her vaccination date and her final post-operative checkup.” Id. at 4. Respondent further agrees that “[P]etitioner has satisfied all legal prerequisites for compensation under the Act.” 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-02222-1 Date issued/filed: 2023-08-18 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 06/27/2023) regarding 32 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02222-UNJ Document 37 Filed 08/18/23 Page 1 of 5 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2222V KELLY WYBLE, Chief Special Master Corcoran Petitioner, Filed: June 27, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner. Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On November 29, 2021, Kelly Wyble 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 as a result of receiving a seasonal influenza (“flu”) vaccine in her left shoulder on October 3, 2020, she suffered a shoulder injury related to vaccine administration (“SIRVA”). Petition at 1-5. 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. On June 27, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $109,745.94 consisting of $107,500.00 in pain and suffering and $2,245.94 in past unreimbursable expenses. Proffer at 1-2. 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-02222-UNJ Document 37 Filed 08/18/23 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $109,745.94 (consisting of $107,500.00 in pain and suffering and $2,245.94 in past unreimbursable 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-02222-UNJ Document 37 Filed 08/18/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) KELLY WYBLE, ) ) Petitioner, ) ) No. 21-2222V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On November 29, 2021, Kelly Wyble (“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 a seasonal influenza (“flu”) vaccine she received on October 3, 2020. Petition at 1-2. On June 21, 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 21, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 26, 27. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $107,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:21-vv-02222-UNJ Document 37 Filed 08/18/23 Page 4 of 5 B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $2,245.94. See 42 U.S.C. § 300aa- 15(a)(1)(B). 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 $109,745.94, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Kelly Wyble: $109,745.94 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-02222-UNJ Document 37 Filed 08/18/23 Page 5 of 5 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Matthew L. Murphy MATTHEW L. MURPHY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 598-3895 DATED: June 26, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02222-cl-extra-10735859 Date issued/filed: 2024-03-21 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269269 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2222V KELLY WYBLE, Chief Special Master Corcoran Petitioner, v. Filed: February 20, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner. Lara A. Englund, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On November 29, 2021, Kelly Wyble 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 as a result of receiving a seasonal influenza vaccine in her left shoulder on October 3, 2020, she suffered a shoulder injury related to vaccine administration. Petition, ECF No. 1. On June 27, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. 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 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 $41,832.27 (representing $40,739.70 in fees plus $1,092.57 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Nov. 17, 2023, ECF No. 41. In accordance with General Order No. 9, Petitioner filed a signed statement representing that Petitioner incurred no out-of-pocket expenses. ECF No. 38-4. Respondent reacted to the motion on Nov. 28, 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. 39. Petitioner filed a reply reiterating her request for fees and costs as indicated in the Motion. ECF No. 41. 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. ECF No. 38-3. 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 $41,832.27 (representing $40,739.70 in fees plus $1,092.57 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. Per Petitioner’s request, the check is to be forwarded to Maglio Christopher and Toale Law: 1605 Main Street, Suite 710, Sarasota Florida 34236. 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