VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02310 Package ID: USCOURTS-cofc-1_21-vv-02310 Petitioner: Joey Dylla Filed: 2021-12-20 Decided: 2024-04-03 Vaccine: influenza Vaccination date: 2019-09-19 Condition: Guillain-Barré Syndrome (GBS) Outcome: compensated Award amount USD: 200395 AI-assisted case summary: Joey Dylla, a 64-year-old adult, filed a petition on December 20, 2021, alleging Guillain-Barré Syndrome (GBS) after receiving an influenza vaccine on September 19, 2019. The petition stated that the GBS was a condition listed on the Vaccine Injury Table, that the vaccine was administered in the United States, that the residual effects of the GBS lasted for more than six months, and that no civil action had been filed or compensation received for the condition. The case was assigned to the Special Processing Unit. On November 18, 2022, the Respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Petitioner was entitled to compensation, agreeing that her condition met the criteria set forth in the revised Vaccine Injury Table and the Qualifications and Aids to Interpretation. Chief Special Master Brian H. Corcoran issued a Ruling on Entitlement on November 18, 2022, finding Petitioner entitled to compensation. Following the concession of entitlement, the parties were unable to resolve damages, leading to a briefing schedule. On April 3, 2024, Chief Special Master Corcoran issued a Decision Awarding Damages. The decision noted that compensation would include actual and projected pain and suffering and emotional distress, not to exceed $250,000, and actual unreimbursable expenses determined to be reasonably necessary. The parties agreed on $7,506.81 for past unreimbursed medical expenses and $1,408.50 for future medication costs. Petitioner sought $21,480.00 for home renovations, including a walk-in shower, and $180,000.00 for past and future pain and suffering, accounting for her forced early retirement due to GBS. Petitioner based her pain and suffering claim on three emergency room visits for diagnosis, hospitalization, inpatient and outpatient therapy, ongoing need for pain medication (Gabapentin and Tramadol), and continued sequelae including facial diplegia and lower extremity sensory loss. Respondent countered that Petitioner should receive $120,000.00 for pain and suffering, arguing her circumstances were less severe than cited cases, and proposed a more modest amount of $5,174.78 for renovations, deeming Petitioner's proposed renovations extensive and not all reasonably necessary. The Special Master reviewed the medical records, affidavits, and arguments, considering prior pain and suffering awards in similar GBS cases. The Special Master found Petitioner's GBS illness to be moderate, involving weakness, tingling, neurologic pain, facial weakness, migraine pain, and urinary incontinence. She required hospitalization, inpatient rehabilitation, and continued medication. The Special Master noted that Petitioner, age 64 at vaccination, was forced to quit her job in early 2020 and continued to experience various symptoms through 2023, requiring daily Gabapentin. The Special Master found Respondent's proposed pain and suffering amount of $120,000.00 to be reasonable but low, and determined that Petitioner should be awarded $170,000.00 for pain and suffering, citing similarities to the Enstrom and Merchant cases. Regarding renovations, the Special Master found the full costs sought by Petitioner, $21,480.00, to be necessary, including the addition of a walk-in shower and associated modifications. The final award totaled $200,395.31, comprising $170,000.00 for pain and suffering, $7,506.81 for past unreimbursed expenses, and $22,888.50 for projected unreimbursable expenses (future medication and renovations). The award was to be paid as a lump sum. Petitioner's counsel was Ronald Craig Homer, and Respondent's counsel was Mallori Browne Openchowski. The decision was issued by Chief Special Master Brian H. Corcoran. Theory of causation field: Petitioner Joey Dylla, age 64, received an influenza vaccine on September 19, 2019, and subsequently developed Guillain-Barré Syndrome (GBS). GBS is a condition listed on the Vaccine Injury Table, and the Respondent conceded that Petitioner met the criteria for a Table injury, entitling her to compensation. The public decision does not detail the specific mechanism of causation or name any medical experts. The case proceeded to a damages determination, where Chief Special Master Brian H. Corcoran awarded Petitioner $170,000.00 for pain and suffering, $21,480.00 for home renovations, $7,506.81 for past unreimbursed medical expenses, and $1,408.50 for future medication costs, totaling $200,395.31. The award was based on the severity and duration of Petitioner's moderate GBS illness, including weakness, tingling, neurologic pain, facial weakness, migraine pain, and urinary incontinence, and was informed by prior GBS awards. Petitioner was represented by Ronald Craig Homer, and Respondent was represented by Mallori Browne Openchowski. The decision was issued on April 3, 2024. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02310-0 Date issued/filed: 2022-12-20 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 11/18/2022) regarding 37 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02310-UNJ Document 40 Filed 12/20/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2310V UNPUBLISHED JOEY DYLLA, Chief Special Master Corcoran Petitioner, Filed: November 18, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 20, 2021, Joey Dylla 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-Barré Syndrome (“GBS”), a defined Table injury, after receiving an influenza (“flu”) vaccine on September 19, 2019. Petition at 1 n.2, ¶¶ 2, 26. Petitioner also alleges that she received the flu vaccine within the United States, that she suffered the residual effects of her GBS for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her GBS. Id. at ¶¶ 26-28. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished Ruling 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 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 (2012). Case 1:21-vv-02310-UNJ Document 40 Filed 12/20/22 Page 2 of 2 On November 18, 2022, 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 believes “that [P]etitioner has satisfied the criteria set forth in the revised Vaccine Injury Table (“Table”) and the Qualifications and Aids to interpretation (“QAI”).” Id. at 6. 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-02310-1 Date issued/filed: 2024-04-03 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 02/27/2024) regarding 65 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2310V JOEY DYLLA, Chief Special Master Corcoran Petitioner, Filed: February 27, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 20, 2021, Joey Dylla 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-Barré syndrome (“GBS”), a defined Table injury, after receiving an influenza (“flu”) vaccine on September 19, 2019. Petition at 1 n.2, ¶¶ 2, 26. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters. After Respondent conceded entitlement, the parties were unable to resolve damages on their own,3 so I ordered briefing on the matter. 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). 3 Almost ten months after Petitioner was determined to be entitled to compensation, the parties informed me that they had reached an impasse in their damages discussions and requested that I set a briefing schedule. Status Report, filed Sept. 11, 2023, ECF No. 55. Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 2 of 7 For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount $170,000.00 for pain and suffering, plus $21,480.00 for the costs of renovations to her home. The parties have agreed Petitioner is also entitled to $7,506.81 for past unreimbursed expenses, and $1,408.50 for the cost of her future medication. I. Legal Standard Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment award such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no mathematic formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional distress are inherently subjective and cannot be determined by using a mathematical formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is inherently a subjective evaluation”). Factors to be considered when determining an award for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). I may also consider prior pain and suffering awards to aid my resolution of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case.”). And, of course, I may rely on my own experience (along with my 2 Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 3 of 7 predecessor Chief Special Masters) adjudicating similar claims.4 Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters would use their accumulated expertise in the field of vaccine injuries to judge the merits of individual claims). II. The Parties’ Arguments The parties agree that Petitioner is entitled to $7,506.81 for past unreimbursed medical expenses, and $1,408.50 as a lump sum to cover the out-of-pocket cost of future medication (Gabapentin). Petitioner’s Memorandum in Support of Damages (“Pet. Brief”), filed Oct. 26, 2023, at 20-22, ECF No. 58. Petitioner also seeks $21,480.00 to cover the cost of renovating a half-bath to include a walk-in shower, as recommended by her neurologists, and $180,000.00 for past and future pain and suffering. Id. at 22-24, 40; see Exhibit 43, filed Oct. 26, 2023, ECF No. 56-3 (estimates for and pictures of these renovations). Although she maintains that she retired earlier than expected from her job - as a financial advisor and outside salesman for a credit union - due to her GBS illness, Petitioner does not seek any lost wages award. Pet. Brief at 24-25. Instead, she accounts for her forced early retirement in the pain and suffering award she seeks. Id. at 29-31. In addition to her inability to continue working in a job she loved, Petitioner bases the pain and suffering award she proposes upon the three trips to the emergency room (“ER”) it took for her to obtain a final/accurate GBS diagnosis, her hospitalization followed by inpatient and outpatient therapy, her continued need for Gabapentin and Tramadol to control her pain, and her ongoing sequelae which included facial diplegia5 and lower extremity sensory loss. Pet. Brief at 27-29, 32-35. As comparable cases, she cites Gruba, Enstrom, Merchant, Devlin, and Fedewa6 – cases involving past pain and suffering awards ranging from $165,000.00 to $180,000.00. Brief at 36-40. 4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For the next four years, until September 30, 2019, all SPU cases, including the majority of GBS claims, were assigned to former Chief Special Master Dorsey. In early October 2019, the majority of SPU cases were reassigned to me as the current Chief Special Master. 5 Facial diplegia is “paralysis affecting both sides of the face.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S “) at 524 (32nd ed. 2012). 6 Gruba v. Sec’y of Health & Hum. Servs., No. 19-1157V, 2021 WL 1925630 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding $165,000.00 for actual pain and suffering); Enstrom v. Sec'y of Health & Hum. Servs., No. 20-2020V, 2023 WL 345657 (Fed. Cl. Spec. Mstr. Dec. 16, 2022) (awarding $170,000.00 for actual pain and suffering); Merchant v. Sec'y of Health & Hum. Servs., No. 20-0450V, 2022 WL 17819548 (Fed. Cl. Spec. Mstr. Nov. 7, 2022) (awarding $170,000.00 for actual pain and suffering); Devlin v. Sec’y of Health & Hum. Servs., 19-0191V, 2020 WL 5512505 (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding $180,000.00 for actual pain and suffering); Fedewa v. Sec'y of Health & Hum. Servs., No. 17-1808V, 202 WL1915138 (Fed. Cl. Spec. Mstr. March 26, 2020) (awarding $180,000.00 for actual pain and suffering). 3 Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 4 of 7 Emphasizing the shorter durations of Petitioner’s hospitalizations and inpatient rehabilitation, her single course of IVIG therapy (albeit involving seven treatments), the fact that most treatment occurred within the initial two months, and the limited treatment required thereafter (only twice-yearly neurologic appointments), Respondent counters that Petitioner should receive $120,000.00 for pain and suffering. He maintains that Petitioner’s circumstances were less severe than the cases she cites. Id. at 9-10. And Respondent argues I should rely on past proffered pain and suffering amounts when assessing the appropriate amount in this case. Regarding the disputed portion of the future expenses, Respondent insists Petitioner should receive a more modest amount ($5,174.78), to cover the costs of installing a walk-in shower, three grab bars, a raised toilet seat, a shower chair, and a non-slip bathmat. Id. at 11-12; see ECF No. 62-1 (report from a life care planner employed by Respondent). Characterizing Petitioner’s proposed renovations as “extensive” (Res. Brief at 11), Respondent argues that all are not reasonably necessary for the purposes listed in Section 15(a)(1)(A)(iii). Res. Brief at 10-12. On reply, Petitioner criticizes Respondent’s failure to cite any past substantive damages decisions to support the pain and suffering amount he proposes, arguing that it “leaves his proposal unsupported and unpersuasive.” Petitioner’s Reply to Res. Brief (“Pet. Reply”), filed Jan. 24, 2024, at 3, ECF No. 64. In addition to reiterating her previous arguments and cited caselaw, Petitioner cites another, more recent comparable case, Longo7 – involving an award of $160,000.00 - contending that her award should be greater. Pet. Reply at 4-5. III. Appropriate Compensation for Petitioner’s Pain and Suffering In this case, awareness of the injury is not disputed. The record reflects that at all times Petitioner was a competent adult with no impairments that would impact her awareness of her injury. Therefore, I analyze principally the severity and duration of Petitioner’s injury. In performing this analysis, I have reviewed the record as a whole, including the medical records, affidavits, and all assertions made by the parties in written documents. I considered prior awards for pain and suffering in both SPU and non-SPU GBS cases and rely upon my experience adjudicating these cases.8 However, I ultimately base my 7 Longo v. Sec'y of Health & Hum. Servs., No. 21-844V, 2023 WL 9326039 (Fed. Cl. Chief Spec. Mstr. Dec. 20, 2023) (awarding $160,000.00 for actual pain and suffering). 8 Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through January 1, 2024 reveals the median amount awarded to be $171,133.72. The awards in these cases - totaling 364, have typically ranged from $128,645.56 to $256,835.75, representing cases between the first and third 4 Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 5 of 7 determination on the circumstances of this case. The evidence shows that Petitioner – age 64 when vaccinated - suffered a moderate GBS illness, involving common symptoms such as weakness, tingling, and neurologic pain in her extremities, but also facial weakness, migraine pain, and urinary incontinence. E.g., Exhibit 9 at 709, 1024-1026, 1534, 1537-1538 (describing placement of Foley catheter). Initially prescribed a five-day course of IVIG therapy, Petitioner required two additional days of treatment. Id. at 1568. Although she obtained some improvement, Petitioner continued to require medication, including Gabapentin, to control her pain. See, e.g., Exhibit 7 at 16-17. Following two hospitalizations in October 2019, for four and eight days, respectively, Petitioner spent seven days in an inpatient rehabilitation facility. Exhibit 9 at 2096, 2508-2513. She continued to use a walker but was able to have her Foley catheter removed. Id. at 2096. From late October through December 2019, Petitioner attended 19 PT sessions. Exhibit 6. Additionally, at the beginning of 2020, Petitioner was forced to quit her job. Exhibit 30 at ¶¶ 1, 6 (Petitioner’s affidavit); Exhibit 41 at 29 (letter resignation letter with January 3, 2020 termination date). Thereafter through 2022, Petitioner continued to report eye problems, facial weakness, neuropathic pain in her feet, back pain, migraines, general weakness, and fatigue. Exhibit 7 at 9, 12-13; Exhibit 10 at 13-14; Exhibit 15 at 26-30; Exhibit 36 at 18-19, 22-23; Exhibit 37 at 19-24; Exhibit 38 at 9; Exhibit 40 at 14-15; Exhibit 42 at 6-7. She required Gabapentin throughout the day to control her neurologic pain. E.g., Exhibit 40 at 15. On October 18, 2021, her neurologist noted that Petitioner “has probably reached maximum medical improvement.” Exhibit 6 at 22. In 2022 and 2023, two different neurologists opined that Petitioner would require a walk-in shower, handrails and non-slip bathmat. Exhibit 36 at 18-19; Exhibit 42 at 6-7. Considering Petitioner’s ongoing sequelae, the amount proposed by Respondent ($120,000.00) is generally reasonable but low. As I have explained previously during expedited “Motions Day” hearings, GBS pain and suffering awards should be higher than in matters involving a less frightening and physically-alarming injury, such as SIRVA. And as noted by Petitioner, I have routinely rejected Respondent’s contention that proffered amounts offer better guidance than reasoned decisions by a judicial neutral. Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. quartiles and awards comprised of all categories of compensation – including lost wages. 47 cases include the creation of an annuity to provide for future expenses. Past pain and suffering amounts awarded in substantive decisions issued in 34 SPU GBS cases range from $92,500.00 to $192,500.00, with an additional case involving annuity payments. The median amount past pain and suffering award in these 35 cases was $165,000.00, with awards falling within the first and third quartiles ranging from $155,000.00 to $180,000.00. 5 Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 6 of 7 Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by the parties and cases in which damages are determined by a special master). Although all cases cited by Petitioner offer good comparisons to the circumstances she experienced, I find Enstrom and Merchant are most similar to Petitioner’s facts and circumstances. Both involved relatively short hospitalizations, IVIG therapy, similar inpatient and/or outpatient therapy, and symptoms which continued for years. Enstrom, 2023 WL 345657, at *2-6; Merchant, 2022 WL 17819548, at *2-3. The Enstrom petitioner was also forced to retire early and continued to require medication to control his pain. Enstrom, 2023 WL 345657, at *4-5. And the Merchant petitioner continued to suffer from urinary incontinence. Merchant, 2022 WL 17819548, at *3. Although not as obvious as Petitioner’s continued facial weakness, this ongoing condition no doubt caused the Merchant petitioner continued suffering. Given these similarities, I find that Petitioner should be awarded the same amount as these two petitioners - $170,000.00 for her pain and suffering. IV. Appropriate Compensation for Petitioner’s Unreimbursed Expenses Petitioner is also entitled to the renovation costs she seeks. Although the costs Respondent disputes, such as a customized closet, would usually not be compensated, they are necessary in this case. The photographs submitted by Petitioner clearly shows that the easier, and therefore cheapest, means of providing her with the needed walk-in shower is to add it to the bathroom which currently does not contain a shower or tub. See Exhibit 43. Due to the position of her current traditional tub and shower, the addition of a walk-in shower would undoubtedly require the repositioning of the toilet, adding further expense (see id. at 6), and the custom closet is required only because the addition of the walk-in shower will encompass most of the current closet space (see id. at 1). Although Respondent provides reasonable estimates for the additional equipment Petitioner requires, he neglects to consider some installation costs. For example, the space required for the walk-in shower and resulting mandated changes to the current closet. See Exhibit 43 at 1. Thus, I find Petitioner is entitled to the full costs of the needed renovations, as stated in the lower of the two estimates she obtained. Compare id. at 1 with id. at 2. 6 Case 1:21-vv-02310-UNJ Document 69 Filed 04/03/24 Page 7 of 7 Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $170,000.00 represents a fair and appropriate amount of compensation for Petitioner’s past/actual pain and suffering.9 Additionally, Petitioner is entitle to the full renovations costs she seeks, $21,480.00, as well as the past and future expenses agreed upon by the parties. I therefore award Petitioner a lump sum payment of $200,395.31, representing compensation in the amounts of $170,000.00 for pain and suffering, $7,506.81 for actual unreimbursable expenses, and $22,888.50 for projected 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 the Court is directed to enter judgment in accordance with this Decision.10 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 9 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)). 10 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. 7 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02310-cl-extra-10787696 Date issued/filed: 2025-01-27 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10321108 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2310V JOEY DYLLA, Chief Special Master Corcoran Petitioner, v. Filed: December 27, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On December 20, 2021, Joey Dylla 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-Barré syndrome (“GBS”), a defined Table injury, after receiving an influenza (“flu”) vaccine on September 19, 2019. On February 27, 2024, I issued a ruling finding Petitioner entitled to compensation and decision awarding damages following briefing by the parties. ECF No. 65. 1Because 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $50,890.71 (representing $49,096.70 for fees and $1,794.01 for costs). Petitioner Application for Attorneys’ Fees, filed Sept. 5, 2024, ECF No. 70. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of- pocket expenses. ECF No. 71. Respondent reacted to the motion on September 11, 2024, representing 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. 72. Petitioner filed no reply. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason 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 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 through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. Regarding the time billed, I note this case required additional briefing regarding damages. See Petitioner’s Memorandum in Support of Damages, filed Oct. 26, 2023, ECF No. 58; Petitioner’s Reply to Respondent’s Brief on Damages, filed Jan. 24, 2024, ECF No. 64. Petitioner’s counsel expended approximately 13.8 hours drafting the brief and 6.3 hours drafting the reply, for a combined total of 20.1 hours. ECF No. 70 at 30, 32. I find this amount of time to be reasonable and will award the attorney’s fees requested. However, a small amount must be reduced for attorney time billed for the review of status reports and other cursory documents prepared by another attorney. ECF No. 70 at 22, 25-26, 28-30, 32-33.3 I note that it is common practice for Conway, Homer, P.C. to have several attorneys assist over the course of a case. In some instances, such as when preparing substantive documents like the petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that document. See, e.g., ECF No. 70 at 30 (entry dated 10/26/23). However, it is not reasonable to have an attorney bill for time to review routine filings, such as status reports and motions for enlargement of time, when those filings were prepared (and billed for) by another attorney. This is not the first time I or other special masters have noted this particular issue concerning Conway, Homer, P.C. billing practices. See, e.g., Manetta v. Sec’y of Health & Hum. Servs., No. 18-172V, 2020 WL 7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Hum. Servs., No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr. Oct. 2, 2020). I will not award attorney’s fees for this redundant work. This results in a reduction of $509.00. ATTORNEY COSTS Petitioner has provided supporting documentation for all claimed costs for all but expenses of $15.00 for copying and $36.89 for postage. ECF No. 70 at 33-66. I will nevertheless allow reimbursement of these unsubstantiated costs. And Respondent offered no specific objection to the rates or amounts sought. ECF No. 62. 3 The entries are as follows: 8/30/22, 11/4/22, 12/19/22, 1/18/23, 4/28/23, 6/28/23, 8/2/23, 8/31/23, 9/11/23, 1/2/24, 2/28/24, 3/19/24. 3 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 $50,381.71 (representing $48,587.70 for fees and $1,794.01 for costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Ronald Craig Homer. 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 4