VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02290 Package ID: USCOURTS-cofc-1_21-vv-02290 Petitioner: Dennis W. Blake Filed: 2021-12-14 Decided: 2024-01-05 Vaccine: influenza Vaccination date: 2020-09-11 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 60000 AI-assisted case summary: Dennis W. Blake filed a petition for compensation under the National Vaccine Injury Compensation Program after receiving an influenza vaccine on September 11, 2020. He alleged that he sustained a left shoulder injury related to vaccine administration (SIRVA) within the timeframe specified by the Vaccine Injury Table and suffered residual effects for more than six months. The respondent, the Secretary of Health and Human Services, denied that Mr. Blake sustained a SIRVA Table injury or that the vaccine caused his alleged shoulder injury. Despite these differing positions, the parties filed a joint stipulation to settle the case and award compensation. The court adopted the stipulation, awarding Mr. Blake a lump sum of $60,000.00 for all damages available under the program. This award represents a compromise of the parties' respective positions on liability and damages. The stipulation also outlines the process for awarding attorneys' fees and costs. Mr. Blake also received a shingles vaccine on the same date, but this was not part of the claim. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02290-0 Date issued/filed: 2024-01-05 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 12/05/2023 ) regarding 35 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02290-UNJ Document 39 Filed 01/05/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2290V DENNIS W. BLAKE, Chief Special Master Corcoran Petitioner, v. Filed: December 5, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica E. Choper, Britcher Leone and Sergio, LLC, Glen Rock, NJ, for Petitioner. Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 14, 2021, Dennis W. Blake filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Act”). On September 11, 2020, Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that he sustained a left shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table. Petitioner further alleges that he experienced the residual effects of his alleged injuries for more than six months. Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that Petitioner’s current condition is a sequela of a vaccine-related injury. 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 (2012). Case 1:21-vv-02290-UNJ Document 39 Filed 01/05/24 Page 2 of 7 Nevertheless, on December 5, 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 $60,000.00 in the form of a check payable to Petitioner. This amount represents compensation for all items of damages that would be available under Section 15(a). Stipulation at ¶ 8. 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-02290-UNJ Document 39 Filed 01/05/24 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS • OFFICE OF SPECIAL MASTERS DENNIS W. BLAKE, Petitioner, . No. 21-2290V Chief Special Master Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: I. Dennis W. Blake ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program 42 U.S.C. § J00aa-10 to 34 (the "Vaccine 1 Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza (. . flu") vaccine, which is a vaccine that is contained in the Vaccine Injury Tabre (the "Table"), 42 C.F.R. § 100.J(a) 2. Petitioner received a flu vaccine on September 11, 2020.1 3. The vaccine was administered within the United States. 4. Petitioner alleges that he sustained a left shoulder Injury refated to vaccine administration ("SIRVA") within lhe time period set forth in the Table. Petitioner further alleges that he suffered the residual effects of the alleged injury for more than six months. , Petitioner also received a shingles vaccine on that same date. The shingles vaccine is not contained in the Vaccine Injury Table. This document was created by an application that Isn't licensed to use noyaPQF. Purchase a license to generate PDF flies Yfilhout this noUce- Case 1:21-vv-02290-UNJ Document 39 Filed 01/05/24 Page 4 of 7 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of the alleged injury. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that petitioner's current condition is a sequela of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevenheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 or this Stipulation. 8. As soon as practicable after an entry ofj udgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa•21 (a}(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment for all damages that would be available under 42 U.S.C. § 300aa-15(a): A lump sum ofSIO,D0O.OO in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry ofj udgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U .S.C. § 300aa-21 (a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. I 0. Petitioner and petitioner's attorney represent that compensation to be provided pursuant to this Stipulation ls not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can 2 This document was created by an application that Isn't licensed to use noyaPDF. Purchase a license to generate PDF files without this notice. Case 1:21-vv-02290-UNJ Document 39 Filed 01/05/24 Page 5 of 7 reasonably be expected to b·e made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, and past unreimbursable e)(penses, the money provided pursuant to this Stipulation ~ilJ be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-1 S(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-1 S(g) and (h). 13. In return for the-payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and.Human Services from any and all actions or causes of action (including agreements.judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the vaccinations administered on September 11, 2020, as alleged in a petition for vaccine compensation filed on or about December 14, 2021, in the United States Court of Fede_ral Claims as petition No. 21-2290V. 3 This document was created by an application that isn't licensed to use noyaPDF. Purchase a license to generate PDF flies without this notice. Case 1:21-vv-02290-UNJ Document 39 Filed 01/05/24 Page 6 of 7 14. If petitioner should die prior to entry ofj udgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 15. lf the special master falls to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is ln complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the _National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nawre of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged injury or any other injury or his current disabitities, or that petitioner suffered an i!1jury contained in the Vaccine hyur:y Table. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs. executors, administrators, successors, and/or assigns. END OF STIPULATION 4 This document was created by an appllcallon that isn't licensed to use noyaPDF. Purchase a license to generate PDF files without this notice. Case 1:21-vv-02290-UNJ Document 39 Filed 01/05/24 Page 7 of 7 Respectfully submitted, PETIT[ONER: Ld,,:/{la_ DENNIS W. BLAKE ATTORNEY OF RECORD FOR AU1llORIZED REPRESENrA TIVE PEfflIONER: OF 1lffi ATTORNEY GENERAL: c£.v~?.~ ~c&u ,l\\l fLJM;t ~ JESSICA E. CHOPER HEATHER L. PEARLMAN -v '\ Attorney for Petitioner Deputy Director Britcher. Leone & SCfXio, LLC Torts Branch, CiviJ Division 175 Rock Road U.S. Department ofJ ustice Glen Rock. NJ 0745:Z P.O. Box 1% (201) 444-1644 Benjamin Franklin Station Jessica@blsattorneys.com Washington, DC 20044-0146 AUTiiORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF 11iE SECRETARY OF HEALT H RESPONDENT. AND HUMAN SERVICES: He nry P. °"Dtall'•llnedllrl4elliyP. Moi6n-ss by Mcmillan -SS ::,.:iou.,,;a ""1: 1 • CDR GEORGE REED GRJMES, MD, MPH ICA M. LITTLES Director, Division of Injury Tri Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justi~ Health Resources and Services Administration P.O. Box 1% U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-01.:16 5600 Fishers Lane, 08W-25A (202) 305-4014 Rockville, MD 20857 jamica.m.Httles@usdoj.gov I~ }5/ /J-3 Dated: -'---41~ ,"---------- 5 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-02290-cl-extra-10736543 Date issued/filed: 2024-01-05 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269953 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2290V DENNIS W. BLAKE, Chief Special Master Corcoran Petitioner, v. Filed: December 5, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica E. Choper, Britcher Leone and Sergio, LLC, Glen Rock, NJ, for Petitioner. Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 14, 2021, Dennis W. Blake filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Act”). On September 11, 2020, Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that he sustained a left shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table. Petitioner further alleges that he experienced the residual effects of his alleged injuries for more than six months. Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that Petitioner’s current condition is a sequela of a vaccine-related injury. 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 (2012). Nevertheless, on December 5, 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 $60,000.00 in the form of a check payable to Petitioner. This amount represents compensation for all items of damages that would be available under Section 15(a). Stipulation at ¶ 8. 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS • OFFICE OF SPECIAL MASTERS DENNIS W. BLAKE, Petitioner, . No. 21-2290V Chief Special Master Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: I. Dennis W. Blake ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program 1 42 U.S.C. § J00aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza (..flu") vaccine, which is a vaccine that is contained in the Vaccine Injury Tabre (the "Table"), 42 C.F.R. § 100.J(a) 2. Petitioner received a flu vaccine on September 11, 2020. 1 3. The vaccine was administered within the United States. 4. Petitioner alleges that he sustained a left shoulder Injury refated to vaccine administration ("SIRVA") within lhe time period set forth in the Table. Petitioner further alleges that he suffered the residual effects of the alleged injury for more than six months. , Petitioner also received a shingles vaccine on that same date. The shingles vaccine is not contained in the Vaccine Injury Table. This document was created by an application that Isn't licensed to use noyaPQF. Purchase a license to generate PDF flies Yfilhout this noUce- 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of the alleged injury. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that petitioner's current condition is a sequela of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevenheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 or this Stipulation. 8. As soon as practicable after an entry ofjudgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa•21 (a}(1), the Secretary of Health and Human Services will issue the following vaccine compensation payment for all damages that would be available under 42 U.S.C. § 300aa-15(a): A lump sum ofSIO,D0O.OO in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry ofjudgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U .S.C. § 300aa-21 (a)(1), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. I 0. Petitioner and petitioner's attorney represent that compensation to be provided pursuant to this Stipulation ls not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can 2 This document was created by an application that Isn't licensed to use noyaPDF. Purchase a license to generate PDF files without this notice. reasonably be expected to b·e made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, and past unreimbursable e)(penses, the money provided pursuant to this Stipulation ~ilJ be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-1 S(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-1 S(g) and (h). 13. In return for the-payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity, and on behalf of his heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and.Human Services from any and all actions or causes of action (including agreements.judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the vaccinations administered on September 11, 2020, as alleged in a petition for vaccine compensation filed on or about December 14, 2021, in the United States Court of Fede_ral Claims as petition No. 21-2290V. 3 This document was created by an application that isn't licensed to use noyaPDF. Purchase a license to generate PDF flies without this notice. 14. If petitioner should die prior to entry ofjudgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 15. lf the special master falls to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is ln complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the _National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nawre of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged injury or any other injury or his current disabitities, or that petitioner suffered an i!1jury contained in the Vaccine hyur:y Table. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs. executors, administrators, successors, and/or assigns. END OF STIPULATION 4 This document was created by an appllcallon that isn't licensed to use noyaPDF. Purchase a license to generate PDF files without this notice. Respectfully submitted, PETIT[ONER: Ld,,:/{la_ DENNIS W. BLAKE ATTORNEY OF RECORD FOR AU1llORIZED REPRESENrATIVE PEfflIONER: OF 1lffi ATTORNEY GENERAL: c£.v~?.~ JESSICA E. CHOPER ~c&u ,l\\l fLJM;t ~ HEATHER L. PEARLMAN -v '\ Attorney for Petitioner Deputy Director Britcher. Leone & SCfXio, LLC Torts Branch, CiviJ Division 175 Rock Road U.S. Department of Justice Glen Rock. NJ 0745:Z P.O. Box 1% (201) 444-1644 Benjamin Franklin Station Jessica@blsattorneys.com Washington, DC 20044-0146 AUTiiORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF 11iE SECRETARY OF HEALTH RESPONDENT. AND HUMAN SERVICES: °"Dtall'•llnedllrl4elliyP. Henry P. Moi6n-ss by Mcmillan -SS ::,.:iou.,,;a ""1:1• CDR GEORGE REED GRJMES, MD, MPH ICA M. LITTLES Director, Division of Injury Tri Attorney Compensation Programs Torts Branch, Civil Division Health Systems Bureau U.S. Department of Justi~ Health Resources and Services Administration P.O. Box 1% U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-01.:16 5600 Fishers Lane, 08W-25A (202) 305-4014 Rockville, MD 20857 jamica.m.Httles@usdoj.gov I~}5/ /J-3 Dated: - '---41~ ,"-------- - - 5 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02290-cl-extra-10734836 Date issued/filed: 2024-07-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268246 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2290V DENNIS W. BLAKE, Chief Special Master Corcoran Petitioner, v. Filed: June 5, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica E. Choper, Britcher Leone and Sergio, LLC, Glen Rock, NJ, for Petitioner. Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 14, 2021, Dennis W. Blake 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 received an influenza vaccine on September 11, 2020, and alleged that he sustained a left shoulder injury related to vaccine administration within the time period set forth in the Table. Petition, ECF No. 1. On December 5, 2023, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. 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 $29,838.00 (representing $28,887.50 in fees plus $950.50 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed Feb. 14, 2024, ECF No. 40. Furthermore, counsel for Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on May 1, 2024, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-3, ECF No. 41. 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 reasons listed below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs to 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 & Human 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 & Human 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 & Human 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 & Human 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 & Human 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 The rates requested for work performed by Attorney Jessica Choper, through the end of 2023 are reasonable and consistent with prior determinations, and will therefore be adopted. Petitioner also requests the rate of $400 for 2024 work performed by Ms. Choper. ECF No. 40-2 at 5. I find this request reasonable and hereby award it herein. For paralegal work, Petitioner requests $175 per hour for the 2021-23 timeframe. Id. However, this rate exceeds the Vaccine Program’s published range for paralegals for the 2021 timeframe, and therefore requires adjustment. 3 I shall instead compensate all paralegal work performed in the 2021 period at the reduced rate of $172 per hour, to be consistent with the Vaccine Program’s published range for paralegals that year. This reduces the amount of fees to be awarded by $24.90. 4 But the requested $175 rate for later years is within the appropriate experience range for paralegals, and I therefore award it herein. Lastly, Petitioner has provided supporting documentation for all claimed costs. ECF No. 40-1. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and shall be awarded in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT in part, Petitioner’s Motion for attorney’s fees and costs. I award a total of $29,813.10 (representing $28,862.60 in fees plus $950.50 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Jessica E. Choper. 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. 5 3 The OSM Attorneys’ Forum Hourly Rate Schedules are available on the U.S. Court of Federal Claims website at http://www.cof c.uscourts.gov/node/2914 4 This amount is calculated as f ollows: ($175 - $172 = $3 x 8.30 hrs = $24.90). 5 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. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4