VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01852 Package ID: USCOURTS-cofc-1_22-vv-01852 Petitioner: Vivian Oliver Filed: 2022-12-16 Decided: 2024-07-26 Vaccine: influenza Vaccination date: 2021-10-08 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 30000 AI-assisted case summary: Vivian Oliver filed a petition for compensation under the National Vaccine Injury Compensation Program on December 16, 2022. Ms. Oliver alleged that she suffered a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 8, 2021. She claimed this was a defined Table injury and also a cause-in-fact injury, with residual effects lasting more than six months. The petition stated that the vaccine was administered within the United States, that she suffered residual effects for more than six months, and that no civil action had been filed or compensation received for the alleged injury. The respondent, the Secretary of Health and Human Services, denied that Ms. Oliver sustained a SIRVA Table injury, denied that the vaccine caused her alleged shoulder injury or any other injury, and denied that her current condition was a sequela of a vaccine-related injury. Despite these differing positions, the parties filed a joint stipulation on June 25, 2024, agreeing that a decision should be entered awarding compensation. Chief Special Master Brian H. Corcoran adopted the stipulation as his decision. Pursuant to the stipulation, Ms. Oliver was awarded a lump sum of $30,000.00, payable to her, representing compensation for all items of damages. This award represents a settlement of liability and damages claimed under the National Childhood Vaccine Injury Act. Petitioner was represented by Jeffrey S. Pop of Jeffrey S. Pop & Associates, and respondent was represented by Ryan Pohlman Miller of the U.S. Department of Justice. The decision was issued on July 26, 2024. Theory of causation field: Petitioner Vivian Oliver alleged a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 8, 2021. She claimed this was a defined Table injury and also a cause-in-fact injury with residual effects lasting more than six months. Respondent denied the Table injury and causation. The parties filed a joint stipulation agreeing to a settlement. Chief Special Master Brian H. Corcoran adopted the stipulation. Petitioner was awarded $30,000.00 as a lump sum for all damages. The stipulation was dated June 25, 2024, and the decision was issued on July 26, 2024. Petitioner's counsel was Jeffrey S. Pop, and respondent's counsel was Ryan Pohlman Miller. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01852-0 Date issued/filed: 2024-07-26 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 06/26/2024) regarding 24 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01852-UNJ Document 28 Filed 07/26/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1852V VIVIAN OLIVER, Chief Special Master Corcoran Petitioner, Filed: June 26, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner. Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 16, 2022, Vivian Oliver 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 left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury and also caused-in-fact injury, after receiving the influenza (“flu”) vaccine on October 8, 2021. Petition at 1, ¶¶ 5, 22; Stipulation, filed May 30, 2024, ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccines within the United States, that she suffered the residual effects of his SIRVA for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 5, 19, 21; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6. 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-01852-UNJ Document 28 Filed 07/26/24 Page 2 of 7 Nevertheless, on June 25, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $30,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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-01852-UNJ Document 28 Filed 07/26/24 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS VIVIAN OLIVER, Petitioner, V. No. 22-l 852V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Vivian Oliver, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received the vaccine on or about October 8, 2021. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She fwther alleges that she experienced the residual effects of this condition for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine injury. -1- Case 1:22-vv-01852-UNJ Document 28 Filed 07/26/24 Page 4 of 7 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner's alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury. 7. Maintaining their above-stated positions, the patties neve1iheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $30,000.00, in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21 (a)(]), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in any proceeding upon this petition. I 0. Petitioner and petitioner's attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs ( other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis, -2- Case 1:22-vv-01852-UNJ Document 28 Filed 07/26/24 Page 5 of 7 and represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l 5(g). 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The patties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-l 5(a) and ( d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner's individual capacity, and on behalf of petitioner's heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the United States Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the vaccination as alleged by petitioner in a petition for vaccine compensation filed on or about December 16, 2022, in the United States Court of Federal Claims as petition No. 22-l 852V. -3- Case 1:22-vv-01852-UNJ Document 28 Filed 07/26/24 Page 6 of 7 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the paities. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Comt of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the patties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties futther agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. I 7. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the vaccine caused petitioner's alleged injury or any other injury or petitioner's current condition. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION -4- Case 1:22-vv-01852-UNJ Document 28 Filed 07/26/24 Page 7 of 7 Respectfully submitted, PETtTIONER: IVIAN OLIVER ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVF, PETITIONER: OF THE ATTORNEY GENERAL! ~~\LP~ IIEA THER L. PEARLMAN Jeffrey S. Pop & Associates 9150 Deputy Director Wilshire Blvd., Suite 241 Beverly Tort8 Branch, Civil Division Hills~ CA 90212 U.S. Department of Justice (310) 273-5462 P.O. Box 146 jpop@poplawycr.com Benjamin Franklin Station Washington. DC 20044~0146 AUTHORIZED REPRESENTATIVE AI TORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Digitally signed by George R. S1 4 Grlmu-S14 i:J /2. ar Date: 2024.06,17 11:57:38 --04'00' ,O - l/4,1!1 CDR GEORGE REED GRIMES, MD, MPII RYAN~uik Director, Division oflnjury Trial Attorney Compensation Programs To1ts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W ~25A (202) 305-3027 Rockville, MD 20857 ryun.miller2@usdoj.gov &/ 'L'1 / Dated: __ 1.. 'I -5- ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_22-vv-01852-cl-extra-10734665 Date issued/filed: 2024-07-26 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268075 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1852V VIVIAN OLIVER, Chief Special Master Corcoran Petitioner, Filed: June 26, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner. Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION1 On December 16, 2022, Vivian Oliver 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 left shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury and also caused-in-fact injury, after receiving the influenza (“flu”) vaccine on October 8, 2021. Petition at 1, ¶¶ 5, 22; Stipulation, filed May 30, 2024, ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccines within the United States, that she suffered the residual effects of his SIRVA for more than six months, and that neither she nor any other party has filed a civil action or received compensation for her SIRVA. Petition at ¶¶ 5, 19, 21; Stipulation at ¶¶ 3-5. “Respondent denies that [P]etitioner sustained a SIRVA Table injury; denies that vaccine caused [P]etitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury.” Stipulation at ¶ 6. 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). Nevertheless, on June 25, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $30,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, 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 VIVIAN OLIVER, Petitioner, V. No. 22- l 852V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner, Vivian Oliver, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l Oto 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received the vaccine on or about October 8, 2021. 3. The vaccine was administered within the United States. 4. Petitioner alleges that she sustained a shoulder injury related to vaccine administration ("SIRVA") within the time period set forth in the Table, or in the alternative, that her alleged shoulder injury was caused by the vaccine. She fwther alleges that she experienced the residual effects of this condition for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages arising out of the alleged vaccine injury. - 1- 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner' s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury. 7. Maintaining their above-stated positions, the patties neve1iheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $30,000.00, in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21 (a)(]), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys ' fees and costs incurred in any proceeding upon this petition. I 0. Petitioner and petitioner' s attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis, -2- and represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l 5(g). 11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject to the availability of sufficient statutory funds. 12. The patties and their attorneys further agree and stipulate that, except for any award for attorneys ' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in petitioner' s individual capacity, and on behalf of petitioner' s heirs, executors, administrators, successors or assi gns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the United States Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq ., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from , or alleged to have resulted from , the vaccination as alleged by petitioner in a petition for vaccine compensation filed on or about December 16, 2022, in the United States Court of Federal Claims as petition No. 22-l 852V. -3- 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the paities. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Comt of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the patties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties futther agree and understand that the award described in this Stipulation may reflect a compromise of the parties ' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. I 7. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the vaccine caused petitioner' s alleged injury or any other injury or petitioner's current condition. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION -4- Respectfully submitted, PETtTIONER: IVIAN OLIVER ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVF, PETITIONER: OF THE ATTORNEY GENERAL! ~ ~\LP~ IIEA THER L. PEARLMAN Jeffrey S. Pop & Associates 9150 Deputy Director Wilshire Blvd., Suite 241 Beverly Tort8 Branch, Civil Division Hills~ CA 90212 U.S. Department of Justice (310) 273-5462 P.O. Box 146 jpop@poplawycr.com Benjamin Franklin Station Washington. DC 20044~0146 AUTHORIZED REPRESENTATIVE AITORNEY OF RECORD FOR OF THE SECRETARY OF HEALTH RESPONDENT: AND HUMAN SERVICES: George R. Grimes - Digitally signed by George R. Grlmu-S14 S14 Date: 2024.06,17 11:57:38 --04'00' i:J ,O - /2. ar l/4,1!1 CDR GEORGE REED GRIMES, MD, MPII RYAN~uik Director, Division oflnjury Trial Attorney Compensation Programs To1ts Branch Health Systems Bureau Civil Division Health Resources and Services U.S. Department of Justice Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, DC 20044-0146 5600 Fishers Lane, 08W ~25A (202) 305-3027 Rockville, MD 20857 ryun.miller2@usdoj.gov Dated: _ _ &/ 'L'1 / 1.. 'I -5- ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_22-vv-01852-cl-extra-10804647 Date issued/filed: 2025-02-21 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10338059 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1852V VIVIAN OLIVER, Chief Special Master Corcoran Petitioner, v. Filed: January 21, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner. Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 16, 2022, Vivian Oliver filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioners alleged that she suffered a left shoulder injury related to vaccine administration a defined Table injury and also caused-in-fact injury, after receiving the influenza vaccine on October 8, 2021. Petition, ECF No. 1. On June 26, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 24. 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 $21,497.53 (representing $19,927.00 in fees plus $1,570.53 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed August 23, 2024, ECF No. 29. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred no personal out- of-pocket expenses. ECF No. 29-4. Respondent reacted to the motion on August 26, 2024, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-4, ECF No. 30. Petitioner filed no reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations and will therefore be adopted. However, I find a minor 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 2 that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES After reviewing the billing records submitted with Petitioner’s request, I find that several of the tasks performed by Attorney Kristina E. Grigorian are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Although these billing entries are reasonable, they must be charged at a reduced rate comparable to that of a paralegal. Application of the foregoing results in a reduction in the amount of fees to be awarded herein by $419.40. 4 Petitioner has otherwise provided supporting documentation for all claimed costs. ECF No. 29-3. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby 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. Petitioner is awarded attorneys’ fees and costs in the total amount of $21,078.13 (representing $19,507.60 in fees plus $1,570.53 in costs) to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see 3 Some examples of such entries include the drafting of basic documents such as a notice of filing exhibit list, PAR Questionnaire, cover sheet, joint notices not to seek review; election to accept judgment; and statement of completion. Entries reduced include: 11/17/22; 12/19/22 (three entries); 6/26/24; 7/8/24. ECF No. 29-2 at 9-12. 4 This amount consists of ($385 - $177 = $208 x 1.40hrs.) + ($460 - $197 = $263 x 0.20 hrs.) + ($575 - $197 = $378 x 0.20 hrs.) = $419.40 3 Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 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