VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01780 Package ID: USCOURTS-cofc-1_22-vv-01780 Petitioner: Philip Weseman Filed: 2024-01-04 Decided: 2024-02-08 Vaccine: influenza Vaccination date: 2021-12-13 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 50734 AI-assisted case summary: Philip Weseman filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination on December 13, 2021. He further alleged that his SIRVA injury persisted for longer than six months. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) Report and Proffer of Damages, conceding that Mr. Weseman is entitled to compensation. The respondent stated that Mr. Weseman's injury was consistent with SIRVA as defined by the Vaccine Injury Table, noting he had no prior shoulder issues, experienced pain within 48 hours of the vaccination, the pain was limited to the injection shoulder, and no other condition explained the pain. The respondent also agreed that Mr. Weseman met all legal prerequisites for compensation. Based on the respondent's concession and the evidence, the Chief Special Master found Mr. Weseman entitled to compensation. Subsequently, a decision awarding damages was issued. The respondent's proffer indicated an award of $50,734.76, comprising $50,000.00 for pain and suffering and $734.76 for past unreimbursable expenses, which Mr. Weseman agreed to. The court awarded this lump sum payment to Mr. Weseman. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01780-0 Date issued/filed: 2024-02-05 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 01/04/2024) regarding 27 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01780-UNJ Document 33 Filed 02/05/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1780V PHILIP WESEMAN, Chief Special Master Corcoran Petitioner, Filed: January 4, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daisy Mazoff, Siri & Glimstad LLP, Phoenix, AZ, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 5, 2022, Philip Weseman 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”) following an influenza vaccination he received on December 13, 2021. Petition at 1. Petitioner further alleges he suffered his SIRVA injury for longer than six months. Petition at ¶27. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 3, 2024, Respondent filed his Rule 4(c) Report and Proffer of Damages (“Rule 4/Proffer”) in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4/Proffer at 1. Respondent states that 1 Because this 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-01780-UNJ Document 33 Filed 02/05/24 Page 2 of 2 “Petitioner’s alleged injury is consistent with SIRVA as defined by the Vaccine Injury Table. Specifically, Petitioner had no history of pain, inflammation, or dysfunction of his left shoulder prior to vaccination; 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 “Petitioner has satisfied all legal prerequisites for compensation under the 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_22-vv-01780-1 Date issued/filed: 2024-02-08 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 01/04/2024) regarding 28 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01780-UNJ Document 34 Filed 02/08/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1780V PHILIP WESEMAN, Chief Special Master Corcoran Petitioner, Filed: January 4, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daisy Mazoff, Siri & Glimstad LLP, Phoenix, AZ, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 5, 2022, Philip Weseman 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”) following an influenza vaccination he received on December 13, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 3, 2024, Respondent filed a Rule 4(c) Report and Proffer on Damages (“Rule 4/Proffer”). ECF No. 26. On January 4, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. Respondent’s Rule 4/Proffer indicates that Petitioner should be awarded $50,734.76, representing $50,000.00 in pain and suffering and $734.76 in past unreimbursable expenses. Rule 4/Proffer at 5. In the Rule 4/Proffer, Respondent represented that Petitioner agrees with the proffered award. 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-01780-UNJ Document 34 Filed 02/08/24 Page 2 of 2 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 Rule 4/Proffer, I award Petitioner a lump sum payment of $50,734.76, representing $50,000.00 in pain and suffering and $734.76 in 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 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_22-vv-01780-cl-extra-10736231 Date issued/filed: 2024-02-08 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269641 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1780V PHILIP WESEMAN, Chief Special Master Corcoran Petitioner, Filed: January 4, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daisy Mazoff, Siri & Glimstad LLP, Phoenix, AZ, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES 1 On December 5, 2022, Philip Weseman 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”) following an influenza vaccination he received on December 13, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 3, 2024, Respondent filed a Rule 4(c) Report and Proffer on Damages (“Rule 4/Proffer”). ECF No. 26. On January 4, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. Respondent’s Rule 4/Proffer indicates that Petitioner should be awarded $50,734.76, representing $50,000.00 in pain and suffering and $734.76 in past unreimbursable expenses. Rule 4/Proffer at 5. In the Rule 4/Proffer, Respondent represented that Petitioner agrees with the proffered award. 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). 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 Rule 4/Proffer, I award Petitioner a lump sum payment of $50,734.76, representing $50,000.00 in pain and suffering and $734.76 in 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 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_22-vv-01780-cl-extra-10734800 Date issued/filed: 2024-07-09 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268210 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1780V PHILIP WESEMAN, Chief Special Master Corcoran Petitioner, v. Filed: June 5, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica A. Wallace, Siri & Glimstad, LLP, Aventura, FL, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 5, 2022, Philip Weseman 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 following an influenza vaccine received on December 13, 2021. Petition, ECF No. 1. On January 4, 2024, 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 $38,947.91 (representing $38,013.20 in fees, plus $934.71 in costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed February 14, 2024. ECF No. 36. Furthermore, Petitioner filed a signed statement representing that he incurred no out-of- pocket expenses. ECF No. 32. Respondent reacted to the motion on February 15, 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. 37. 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 Petitioner requests hourly rates for attorneys performing work in this matter as follows: 2022 2023 2024 Jessica A. Wallace, Esq. $275 $285 X Daisy Mazoff, Esq. $375 $389 $403 Dana Stone, Esq. $360 X X Paralegals $174 $180 $187 The hourly rates requested for Attorney Wallace and her paralegals are reasonable and consistent with prior determinations and will therefore be awarded herein. The requested rates for Attorneys Mazoff and Stone, however, require further evaluation. Ms. Mazoff was previously awarded the rate lesser 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). And 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 such reasoned determination, and therefore reduce Ms. Mazoff’s 2023 rate to be consistent with W.R. For time billed in 2024, however, I hereby award Ms. Mazoff her requested rate of $403, representing an increase of $28 from the previous year. Application of the foregoing results in a reduction in the amount of fees to be awarded herein of $483.00. 3 Additionally, Petitioner is requesting the hourly rate of $360 for 2022 work performed by attorney Dana Stone. However, Petitioner did not file an affidavit or any other supporting information to supplement the requested hourly rate. Accordingly, I do not endorse the approval of Ms. Stone’s hourly rate at this time. It is incumbent upon Petitioner’s counsel to submit an affidavit in the future to support such requests. (But since Ms. Stone did not incur any fees in this matter at the requested rate, no further reduction in the amount of fees is warranted in the context of this fees decision (although counsel should adhere to its findings in future fees request motions)). 3 This amount consists of : ($389 - $375 = $14 x 34.50 hrs. = $483.00). 3 Petitioner has otherwise provided supporting documentation for all claimed costs. ECF No. 36-1 at 34-39. Respondent offered no specific objection to any cost items. I find the requested costs to be reasonable and shall award them in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and costs. I award a total of $38,464.91 (representing $37,530.20 in fees plus $934.71 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Jessica A. Wallace. 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