VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01509 Package ID: USCOURTS-cofc-1_22-vv-01509 Petitioner: Jeremy Nagelberg Filed: 2022-10-13 Decided: 2024-04-22 Vaccine: influenza Vaccination date: 2021-12-24 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 88524 AI-assisted case summary: Jeremy Nagelberg filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine he received on December 24, 2021. The respondent conceded that Petitioner's alleged injury was consistent with SIRVA as defined by the Vaccine Injury Table and that Petitioner had satisfied all legal prerequisites for compensation. A ruling on entitlement was issued on January 22, 2024, finding Petitioner entitled to compensation. Subsequently, on March 19, 2024, the respondent filed a proffer on award of compensation, which Petitioner agreed to. The decision on damages, issued on April 22, 2024, awarded Jeremy Nagelberg a lump sum payment of $88,524.97. This amount included $80,000.00 for pain and suffering and $8,524.97 for past unreimbursable expenses, representing all elements of compensation available under the Vaccine Act. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01509-0 Date issued/filed: 2024-02-22 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 01/22/2024) regarding 28 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01509-UNJ Document 31 Filed 02/22/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1509V JEREMY NAGELBERG, Chief Special Master Corcoran Petitioner, v. Filed: January 22, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 13, 2022, Jeremy Nagelberg 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on December 24, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 22, 2024, 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’s alleged injury is consistent with SIRVA as defined by the Vaccine Injury Table. Id. at 4 (citing 42 C.F.R. §§ 100.3(a), 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 1:22-vv-01509-UNJ Document 31 Filed 02/22/24 Page 2 of 2 (c)(10)). Respondent further agrees that Petitioner has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. at 4. 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-01509-cl-extra-10736131 Date issued/filed: 2024-02-22 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269541 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1509V JEREMY NAGELBERG, Chief Special Master Corcoran Petitioner, v. Filed: January 22, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 13, 2022, Jeremy Nagelberg 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on December 24, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 22, 2024, 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’s alleged injury is consistent with SIRVA as defined by the Vaccine Injury Table. Id. at 4 (citing 42 C.F.R. §§ 100.3(a), 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). (c)(10)). Respondent further agrees that Petitioner has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. at 4. 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 3: USCOURTS-cofc-1_22-vv-01509-1 Date issued/filed: 2024-04-22 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 03/20/2024) regarding 34 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01509-UNJ Document 40 Filed 04/22/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1509V JEREMY NAGELBERG, Chief Special Master Corcoran Petitioner, v. Filed: March 20, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ , for Petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On October 13, 2022, Jeremy Nagelberg 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on December 24, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 22, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 19, 2024, Respondent filed a proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the proffered award. Id. at 2. 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-01509-UNJ Document 40 Filed 04/22/24 Page 2 of 5 Pursuant to the terms stated in the attached Proffer, I award a lump sum payment of $88,524.97 (representing $80,000.00 for pain and suffering, and $8,524.97 for past unreimbursable expenses) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:22-vv-01509-UNJ Document 40 Filed 04/22/24 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JEREMY NAGELBERG, Petitioner, v. No. 22-1509V (ECF) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 13, 2022, Patrick Simmons (“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, alleging that he suffered a right-sided shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza (“flu”) vaccination that he received on December 24, 2021. ECF No. 1 at 1. On January 22, 2024, respondent filed a Rule 4(c) Report, recommending that compensation be awarded. ECF No. 27. That same day, Chief Special Master Corcoran issued a Ruling on Entitlement, agreeing with respondent that petitioner’s claim meets the Table criteria for SIRVA. ECF No. 28. I. Items of Compensation a. Pain and Suffering Respondent proffers that petitioner should be awarded $80,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:22-vv-01509-UNJ Document 40 Filed 04/22/24 Page 4 of 5 b. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses pertaining to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the total amount of $8,524.97. See 42 U.S.C. §300aa- 15(a)(1)(B). Petitioner agrees. These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. §300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through one lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following:1 One lump sum payment of $88,524.97, in the form of a check payable to petitioner. 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-01509-UNJ Document 40 Filed 04/22/24 Page 5 of 5 /s/ Joseph Leavitt JOSEPH D. LEAVITT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515 Email: joseph.leavitt@usdoj.gov Dated: March 19, 2024 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_22-vv-01509-cl-extra-10735565 Date issued/filed: 2024-04-22 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268975 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1509V JEREMY NAGELBERG, Chief Special Master Corcoran Petitioner, v. Filed: March 20, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ , for Petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On October 13, 2022, Jeremy Nagelberg 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on December 24, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 22, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 19, 2024, Respondent filed a proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the proffered award. Id. at 2. 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). Pursuant to the terms stated in the attached Proffer, I award a lump sum payment of $88,524.97 (representing $80,000.00 for pain and suffering, and $8,524.97 for past unreimbursable expenses) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JEREMY NAGELBERG, Petitioner, v. No. 22-1509V (ECF) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 13, 2022, Patrick Simmons (“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, alleging that he suffered a right-sided shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza (“flu”) vaccination that he received on December 24, 2021. ECF No. 1 at 1. On January 22, 2024, respondent filed a Rule 4(c) Report, recommending that compensation be awarded. ECF No. 27. That same day, Chief Special Master Corcoran issued a Ruling on Entitlement, agreeing with respondent that petitioner’s claim meets the Table criteria for SIRVA. ECF No. 28. I. Items of Compensation a. Pain and Suffering Respondent proffers that petitioner should be awarded $80,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. b. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses pertaining to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the total amount of $8,524.97. See 42 U.S.C. §300aa- 15(a)(1)(B). Petitioner agrees. These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. §300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through one lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following:1 One lump sum payment of $88,524.97, in the form of a check payable to petitioner. 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 /s/ Joseph Leavitt JOSEPH D. LEAVITT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515 Email: joseph.leavitt@usdoj.gov Dated: March 19, 2024 3 ================================================================================ DOCUMENT 5: USCOURTS-cofc-1_22-vv-01509-cl-extra-10735056 Date issued/filed: 2024-06-11 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268466 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1509V JEREMY NAGELBERG, Chief Special Master Corcoran Petitioner, v. Filed: May 9, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner. Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On October 13, 2022, Jeremy Nagelberg 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 he suffered a shoulder injury related to vaccine administration as the result of an influenza vaccine received on December 24, 2021. Petition, ECF No. 1. On March 20, 2024, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 34. 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 $23,937.63 (representing $23,110.50 in fees plus $827.13 in costs). Application for Fees and Costs (“Motion”) filed Mar. 21, 2024, ECF No. 37. Furthermore, counsel for Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. Id. at 10. Respondent reacted to the motion on Mar. 29, 2024, reporting that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, ECF No. 39. Petitioner did not file a reply thereafter. The rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations and will therefore be adopted. Petitioner has also requested the hourly rate of $485 for 2024 work performed by attorney Andrew Downing, representing a rate increase of $40; the hourly rate of $435 for 2024 work performed by attorney Ann Allison, representing a rate increase of $20; the hourly rate of $375 for 2024 work performed by attorney Courtney Jorgenson, representing a rate increase of $30; and the hourly rate of $175 for paralegal work performed in 2024. Id. at 10. I find these rates to be reasonable and will award the attorney’s fees requested. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 37-1 at 14-40. 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 $23,937.63 (representing $23,110.50 in fees plus $827.13 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Andrew D. Downing. 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