VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02321 Package ID: USCOURTS-cofc-1_21-vv-02321 Petitioner: Debra Metcalf Filed: 2021-12-22 Decided: 2023-08-18 Vaccine: influenza Vaccination date: 2020-09-28 Condition: Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 92500 AI-assisted case summary: Debra Metcalf filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 28, 2020. She stated that her symptoms persisted for more than six months. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Ms. Metcalf was entitled to compensation. The respondent agreed that she had no prior shoulder issues, her pain occurred within 48 hours of the vaccination, was limited to the injection site, and no other condition could explain her pain. The respondent also confirmed her symptoms lasted over six months and she met all legal prerequisites for compensation. Based on the respondent's concession and the evidence, the Chief Special Master issued a ruling on entitlement finding Ms. Metcalf entitled to compensation. Subsequently, the respondent filed a proffer on award of compensation, recommending an award of $92,500.00 for pain and suffering, which Ms. Metcalf agreed to. The Chief Special Master issued a decision awarding Ms. Metcalf a lump sum payment of $92,500.00 for pain and suffering. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02321-0 Date issued/filed: 2023-07-14 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/12/2023) regarding 25 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02321-UNJ Document 30 Filed 07/14/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2321V UNPUBLISHED DEBRA METCALF, Chief Special Master Corcoran Petitioner, Filed: June 12, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 22, 2021, Debra Metcalf 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 a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on September 28, 2020. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, her symptoms persisted for more than six months, and neither Petitioner nor any other party has ever filed an action, or received compensation in the form of an award or settlement, for her vaccine-related injury. Petition at ¶¶ 1, 12-14; Ex. 1. 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 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-02321-UNJ Document 30 Filed 07/14/23 Page 2 of 2 On June 9, 2023, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent agrees that “petitioner had no history of pain, inflammation, or dysfunction of her left shoulder; pain occurred within 48 hours after receipt of an intramuscular vaccination; pain was limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain petitioner’s shoulder pain.” Id. at 4. Respondent further agrees that the records show that Petitioner suffered the residual effects of her condition for more than six months and has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-02321-1 Date issued/filed: 2023-08-18 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 07/13/2023) regarding 29 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02321-UNJ Document 34 Filed 08/18/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2321V DEBRA METCALF, Chief Special Master Corcoran Petitioner, Filed: July 13, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 22, 2021, Debra Metcalf 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 a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on September 28, 2020. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, her symptoms persisted for more than six months, and neither Petitioner nor any other party has ever filed an action, or received compensation in the form of an award or settlement, for her vaccine-related injury. Petition at ¶¶ 1, 12-14; Ex. 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 12, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On July 13, 2023, Respondent filed a proffer on award of 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-02321-UNJ Document 34 Filed 08/18/23 Page 2 of 5 compensation (“Proffer”) indicating Petitioner should be awarded $92,500.00. 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. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $92,500.00 (all of which is for pain and suffering) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:21-vv-02321-UNJ Document 34 Filed 08/18/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS DEBRA METCALF, Petitioner, No. 21-2321V v. Chief Special Master Corcoran ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 22, 2021, Debra Metcalf (“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 an influenza vaccine she received on September 28, 2020. Petition at 1. On June 9, 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 12, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 24; ECF No. 25. I. Item of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $92,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:21-vv-02321-UNJ Document 34 Filed 08/18/23 Page 4 of 5 This amount represents 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 $92,500.00, in the form of a check payable to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Debra Metcalf: $92,500.00 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 DARRYL R. WISHARD Assistant 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-02321-UNJ Document 34 Filed 08/18/23 Page 5 of 5 /s/ Zoë R. Wade ZOË R. WADE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel.: (202) 616-4118 zoe.wade@usdoj.gov Date: July 13, 2023. 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02321-cl-extra-10736504 Date issued/filed: 2024-01-11 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269914 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2321V DEBRA METCALF, Chief Special Master Corcoran Petitioner, v. Filed: December 11, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 December 22, 2021, Debra Metcalf 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 a shoulder injury related to vaccine administration resulting from an influenza vaccine received on September 28, 2020. Petition, ECF No. 1. On July 13, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 29. 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 $13,524.75 (representing $12,141.40 in fees plus $1,383.35 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Sept. 26, 2023, ECF No. 35. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on Sept. 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. 36. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion at 12-20. 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 $13,524.75 (representing $12,141.40 in fees plus $1,383.35 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Laura Levenberg. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 2