VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01059 Package ID: USCOURTS-cofc-1_22-vv-01059 Petitioner: Terralee Patko Filed: 2022-08-23 Decided: 2023-10-10 Vaccine: influenza Vaccination date: 2021-12-10 Condition: vasovagal syncope Outcome: compensated Award amount USD: 15360 AI-assisted case summary: Terralee Patko filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered vasovagal syncope as a result of an influenza vaccination she received on December 10, 2021. The respondent conceded that her condition was a Table injury, meeting the criteria for a presumption of causation as the onset of vasovagal syncope occurred within one hour after the vaccination and there was no apparent alternative cause. The respondent also agreed that Petitioner experienced more than six months of residual effects due to facial scars. Based on the respondent's concession and the evidence of record, the Chief Special Master issued a ruling on entitlement, finding Petitioner entitled to compensation. Subsequently, the parties submitted a proffer on award of compensation, agreeing to an award of $15,360.45, which included $15,000.00 for pain and suffering and $360.45 for past unreimbursed expenses. The court issued a decision awarding this amount as a lump sum payment to Petitioner. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01059-0 Date issued/filed: 2023-05-08 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 04/05/2023) regarding 18 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01059-UNJ Document 23 Filed 05/08/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1059V UNPUBLISHED TERRALEE PATKO, Chief Special Master Corcoran Petitioner, Filed: April 5, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Vasovagal Syncope Respondent. Daisy Mazoff, Siri & Glimstad LLP, Phoenix, AZ, for Petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 23, 2022, Terralee Patko 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 vasovagal syncope as a result of an influenza vaccination she received on December 10, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On April 5, 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 it is his “position that Petitioner has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”), which afford a petitioner a presumption of causation if the onset of 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 1:22-vv-01059-UNJ Document 23 Filed 05/08/23 Page 2 of 2 vasovagal syncope occurs within one hour after a seasonal flu vaccination and there is no apparent alternative cause.” Id. at 4. Respondent further agrees that “due to Petitioner’s residual facial scars, Petitioner experienced more than six months of residual effects.” 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_22-vv-01059-1 Date issued/filed: 2023-10-10 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 09/06/2023) regarding 28 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01059-UNJ Document 33 Filed 10/10/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1059V TERRALEE PATKO, Chief Special Master Corcoran Petitioner, Filed: September 6, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daisy Mazoff, Siri & Glimstad, LLP, Phoenix, AZ, for Petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On August 23, 2022, Terralee Patko 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 vasovagal syncope as a result of an influenza vaccination she received on December 10, 2021. Petition at ¶1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On April 5, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for Petitioner’s syncope. On September 5, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $15,360.45, comprised of $15,000.00 in pain and suffering and $360.45 in past unreimbursed 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 1:22-vv-01059-UNJ Document 33 Filed 10/10/23 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $15,360.45, representing $15,000.00 in pain and suffering and $360.45 in past unreimbursed 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 1:22-vv-01059-UNJ Document 33 Filed 10/10/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) TERRALEE PATKO, ) ) Petitioner, ) ) No. 22-1059V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 23, 2022, Terralee Patko (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”), 42 U.S.C. §§ 300aa-1 to -34. Petitioner alleges that she suffered vasovagal syncope, a Table injury, as a result of an influenza vaccine administered to her on December 10, 2021. Petition at 1. On April 5, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report recommending that compensation be awarded, and the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 17-18. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $15,000.00 in actual pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. B. Past Unreimbursable Expenses Evidence supplied by petitioner documents her expenditure for past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be Case 1:22-vv-01059-UNJ Document 33 Filed 10/10/23 Page 4 of 5 awarded past unreimbursable expenses in the amount of $360.45, as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). 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 $15,360.45, representing compensation for all elements of economic and noneconomic damages, in the form of a check payable to petitioner, Terralee Patko. III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Terralee Patko: $15,360.45 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 LARA A. ENGLUND 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 1:22-vv-01059-UNJ Document 33 Filed 10/10/23 Page 5 of 5 /s/ Kimberly S. Davey KIMBERLY S. DAVEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 307-1815 Kimberly.Davey@usdoj.gov DATED: August 28, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_22-vv-01059-cl-extra-10735844 Date issued/filed: 2024-03-25 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269254 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1059V TERRALEE PATKO, Chief Special Master Corcoran Petitioner, v. Filed: February 23, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daisy Mazoff, Siri & Glimstad, LLP, Phoenix, AZ, for Petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 23, 2022, Terralee Patko 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 vasovagal syncope as a result of an influenza vaccine she received on December 10, 2021. Petition, ECF No. 1. On September 6, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 28. 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 $63,432.22 (representing $61,808.10 in fees, and $ 1,624.12 in costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Oct. 6, 2023, ECF No. 32. In accordance with General Order No. 9, Petitioner filed a signed statement representing that she incurred no out-of-pocket expenses. ECF No. 54. Respondent reacted to the motion on Oct. 10, 2023, noting 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. 34. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees to be awarded appropriate, for the reasons stated below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & 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 A. Attorney Hourly Rates Petitioner requests hourly rates for attorneys performing work in this matter as follows: 2020 2021 2022 2023 Jessica A. Wallace, Esq. X X $275 $300 Daisy Mazoff, Esq. X X $375 $389 Paralegals X X $174 X Gretchen Elgersma, Physician’s X X $220 X assistant The requested paralegal rate is reasonable and consistent with prior determinations and will therefore be awarded herein. The 2023 rates requested for Attorneys Wallace and Mazoff, plus PA Elgersma, require adjustment. Attorney Wallace was previously awarded the rate of $285 per hour, and Attorney Mazoff the rate of $375 per hour, for all time billed in 2023, less than what is being requested herein. See W.R., v. Sec’y of Health & Hum. Servs., No. 20-1401, Slip Op, 60 (Fed. Cl. Spec. Mstr. Oct. 23, 2023). Retroactive rate increases are not permitted in the Vaccine Program. See, e.g. Ramirez v. Sec'y of Health & Hum. Servs., No. 16-1180V, 2019 WL 948385, at *2 (Fed. Cl. Spec. Mstr. Jan. 30, 2019) (noting that counsel “should only submit billing logs that reflect the hourly rate previously awarded to him.”). I find no reason to deviate from these previously established rates, and therefore reduce the 2023 rates to be consistent with W.R. Additionally, the hourly rate requested for PA Elgersma is considered excessive for a non-barred individual, who is also otherwise not acting in this matter as a retained expert. I instead award Ms. Elgersma’s the lesser rate of $174 to be consistent with what a paralegal would receive in the Vaccine Program. In future, if time should be billed at this rate for an assistant, it shall be reduced to the appropriate rate of a paralegal. Application of the foregoing reduces the amount of fees to be awarded herein by $1,496.50. 3 3 This amount consists of: ($300 - $285 = $15 x 11.70 hrs) + ($389 - $375 = $14 x 73.00 hrs) + ($220 - $174 = $46 x 6.50) = $1,496.50. 3 CONCLUSION 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 $61,935.72 (representing $60,311.60 in fees, and $ 1,624.12 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Daisy Mazoff. 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 f iling a joint notice renouncing their right to seek review. 4