VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01749 Package ID: USCOURTS-cofc-1_23-vv-01749 Petitioner: Elizabeth Jackman Filed: 2024-12-30 Decided: 2025-03-11 Vaccine: influenza Vaccination date: 2022-09-30 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 106426 AI-assisted case summary: Elizabeth Jackman filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination on September 30, 2022. The respondent conceded that Ms. Jackman is entitled to compensation, agreeing that her injury satisfied the criteria for SIRVA on the Vaccine Injury Table. Specifically, the respondent noted that she had no prior shoulder issues, the pain began within 48 hours of the vaccination in the injection shoulder, and no other condition explained the pain. An entitlement ruling was issued on December 30, 2024, finding her eligible for compensation. Subsequently, on March 11, 2025, a decision awarding damages was issued. The parties stipulated to an award of $106,426.52, which includes $95,000.00 for pain and suffering and $11,426.52 for past unreimbursable expenses. This award was to be paid as a lump sum through Ms. Jackman's counsel's IOLTA account. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_23-vv-01749-0 Date issued/filed: 2024-11-19 Pages: 6 Docket text: PUBLIC ORDER/RULING (Originally filed: 10/10/2024) regarding 18 Findings of Fact & Conclusions of Law, Scheduling Order ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01749-UNJ Document 19 Filed 11/19/24 Page 1 of 6 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1749 ELIZABETH JACKMAN, Chief Special Master Corcoran Petitioner, Filed: October 10, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. FINDINGS OF FACT1 On October 5, 2023, Elizabeth Jackman filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccine she received on September 30, 2022. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this Fact 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 Fact 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 1:23-vv-01749-UNJ Document 19 Filed 11/19/24 Page 2 of 6 For the reasons discussed below, I find that there is preponderant evidence that Petitioner’s flu vaccine was likely administered to her right arm. I. Relevant Procedural History On July 17, 2023, Respondent requested in a status report that I make a fact finding on the question of whether Petitioner received her flu vaccine in her left or right arm. ECF No. 17. II. Authority Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The United States Court of Federal Claims has outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did 2 Case 1:23-vv-01749-UNJ Document 19 Filed 11/19/24 Page 3 of 6 not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such fact testimony must also be determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). The special master is obligated to fully consider and compare not only the medical records, testimony, but also all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). And although later oral testimony that conflicts with medical records is less reliable as a general matter, it is appropriate for a special master to credit a petitioner’s lay testimony where is does not conflict with the contemporaneous records. Kirby, 997 F.3d at 1382- 84. III. Finding of Fact I make the following findings after a complete review of the record to include all medical records, declarations, and additional evidence and arguments filed: • Petitioner received a flu vaccine on September 30, 2022. Ex. 1 at 1. The vaccine administration record indicates that the vaccine was administered to Petitioner’s left deltoid. Id. • Petitioner, however, recalled receiving her flu vaccine in her right arm. Ex. 11 at ¶1. She recalled being seated during the vaccination with the administrator standing. Id. She recalled immediate “internal pain and loss of range of motion in [her] arm” and difficulty driving home from the appointment. Id. at ¶1-2. Petitioner recalled that she was “so concerned about the unusually high injection site of the flu vaccine and the unexpected pain level” that she took a photograph of the bandage and the injection site. Ex. 11 at ¶2. Petitioner provided the photograph at Exhibit 8. The photograph depicts Petitioner looking at the camera over her right shoulder, 3 Case 1:23-vv-01749-UNJ Document 19 Filed 11/19/24 Page 4 of 6 which has a bandaid pulled back on one side to reveal the injection site. Ex. 8 at 1. The metadata included with the photograph indicates that it was taken on October 1, 2022. Id. • Petitioner saw an orthopedist on October 11, 2022 (12 days after vaccination). Ex. 2 at 26. She reported that she had received a flu vaccine “really high up” on her right shoulder, after which she felt “immediate pain” that was fairly severe, and difficulty raising her arm. Id. Her symptoms had continued since that time, with night pain that impacted her sleep. Id. She was diagnosed with rotator cuff tendinitis and possible bursitis. Id. The orthopedist noted that it was “possible that [the] flu vaccine was injected either into the rotator cuff tendon or possibly into the subacromial/subdeltoid bursa.” Id. She was prescribed diclofenac and referred to physical therapy. Id. • Two days later, on October 13, 2022, Petitioner began physical therapy. Ex. 3 at 27. She reported “right shoulder pain and stiffness which began after she received a flu vaccination.” Id. at 29. On exam, Petitioner had reduced range of motion in her right shoulder, decreased strength, and mild to moderate tenderness to palpation. Id. She continued physical therapy for eight sessions. Id. at 6-18. • Petitioner returned to her orthopedist on November 8, 2022. Ex. 2 at 24. She reported improvement in her symptoms, but continued right shoulder pain, particularly at night while sleeping. Id. An examination of Petitioner’s right shoulder revealed mild tenderness, positive impingement testing, a positive cross arm test. Id. The orthopedist administered a cortisone injection to the right shoulder. Id. At a follow-up visit on December 6, 2022, Petitioner reported “complete relief of pain at night for a couple of nights,” but then worsening again. Id. at 20. Petitioner was encouraged to return to physical therapy. Id. • Petitioner attended seven physical therapy treatments for her right shoulder between December 8, 2022, and January 5, 2023. Ex. 3 at 39-64. During her initial evaluation, Petitioner reported right shoulder pain after receiving a flu vaccine in September. Id. at 63. At discharge, Petitioner had “reached maximum benefit from therapy” and reported “performing at [her] prior level of function.” Id. at 39. • During a follow-up with her orthopedist on January 3, 2023, Petitioner reported “no change, no improvement,” or “maybe a little worse with 4 Case 1:23-vv-01749-UNJ Document 19 Filed 11/19/24 Page 5 of 6 particular motions such as washing her hair.” Ex. 4 at 181. The doctor noted that “she has had continued pain despite formal physical therapy, HEP, 2 different oral anti-inflammatories and subacromial CSI.” Id. He ordered an MRI. Id. • An MRI of Petitioner’s right shoulder performed on January 4, 2023, showed moderate rotator cuff tendinitis with overlying bursitis. Ex. 2 at 17. Petitioner at this time stated that she was “still waking up at night with throbbing pain in her shoulder.” Id. • On January 10, 2023, Petitioner returned to her orthopedist to review the results of her MRI. Ex. 4 at 179. She also now received an ultrasound guided steroid injection to her right shoulder. Id. During a February 21, 2023 follow-up visit, she reported continuing pain, particularly at night. Ex. 2 at 5. She stated she had not returned to physical therapy due to increasing pain. Id. On March 31, 2023, Petitioner returned to her orthopedist with complaints of persistent symptoms. Id. at 7. She was scheduled for right shoulder surgery. Id. at 8. • On March 31, 2023, Petitioner underwent right shoulder surgery, which included an arthroscopic rotator cuff tear repair, arthroscopic subacromial decompression, and an open biceps tenodesis. Ex. 2 at 14-15. Petitioner received post-surgical care for her right shoulder from her orthopedist and physical therapist. See Ex. 4 at 13; Ex. 3 at 77-107; Ex. 9 at 5-37. Respondent has noted that Petitioner’s vaccination record states that she received the flu vaccine in her left arm, while Petitioner alleges that she received it in her right arm. See ECF No. 17. Although the administration record is problematic, Petitioner has provided sufficient evidence that she received the vaccine in her right arm to make that fact finding. First, Petitioner has recalled details about the vaccination that are consistent with her situs contentions. She states that she was sitting in a chair, with the administrator standing over her to give the vaccine in her dominant right arm. Ex. 11 at ¶1. The following day, Petitioner (now concerned about her symptoms) took a picture of her vaccination site, which depicted her right arm with the band-aid (showing blood on it) from the vaccination. See Ex. 8 at 1. Further, the totality of Petitioner’s medical records consistently show that she reported right shoulder pain after vaccination, and that she attributed this pain to a flu shot administered into her right shoulder. The degree to which Petitioner was consistent in reporting her shoulder pain as related to her flu vaccine when seeking treatment is 5 Case 1:23-vv-01749-UNJ Document 19 Filed 11/19/24 Page 6 of 6 especially convincing evidence supporting her situs argument. See e.g., Ex. 2 at 26 (during her first appointment for treatment, Petitioner reported that she had received a flu vaccine “really high up” on her right shoulder after which she had “immediate pain” that was fairly severe, and difficulty raising her arm.); Ex. 3 at 29 (during her first physical therapy evaluation, Petitioner reported “right shoulder pain and stiffness which began after she received a flu vaccination.”); Ex. 3 at 63 (during her second physical therapy evaluation, Petitioner reported right shoulder pain after receiving a flu injection in September.). In addition, Petitioner received treatment only to her right shoulder, including physical examinations, an MRI, two steroid injections, substantial physical therapy, and surgery. There is no indication in the record of any other possible cause of Petitioner’s right shoulder pain. And the only evidence of vaccination in Petitioner’s left arm is the administration record. Overall, Petitioner’s assertions are sufficiently corroborated by the medical records to accept her contention of vaccine situs. Accordingly, I find it more likely than not that the flu vaccination in this case was administered to Petitioner in the right shoulder on September 30, 2022. IV. Scheduling Order The following is ORDERED: Respondent shall file, by no later than Wednesday, November 20, 2024, a status report indicating how he intends to proceed in this case in light of the record and this fact ruling. The status report shall indicate whether he is willing to engage in discussions regarding settlement or damages or is opposed to negotiating at this time. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 6 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_23-vv-01749-1 Date issued/filed: 2025-02-03 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 12/30/2024) regarding 24 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01749-UNJ Document 29 Filed 02/03/25 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1749V ELIZABETH JACKMAN, Chief Special Master Corcoran Petitioner, Filed: December 30, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 5, 2023, Elizabeth Jackman filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccination she received on September 30, 2022. Petition at 1. Petitioner further alleges that she has suffered the residual effects of her vaccine-related injury for more than six months. Petition at ¶ 11. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 20, 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) 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 1:23-vv-01749-UNJ Document 29 Filed 02/03/25 Page 2 of 2 Report at 1. Respondent states that “in light of the Chief Special Master’s fact ruling and medical record evidence submitted in this case, DICP has concluded that Petitioner has otherwise satisfied the criteria set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for SIRVA. Specifically, Petitioner had no recent history of pain, inflammation, or dysfunction of her right shoulder that explains her post-vaccination presentation; the onset of pain occurred within forty-eight hours after receipt of an intramuscular vaccination; the 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 right shoulder pain.” Id. at 5. Respondent further agrees that “based on the record as it now stands, Respondent does not dispute 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 3: USCOURTS-cofc-1_23-vv-01749-2 Date issued/filed: 2025-03-11 Pages: 6 Docket text: PUBLIC DECISION (Originally filed: 01/31/2025) regarding 27 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01749-UNJ Document 32 Filed 03/11/25 Page 1 of 6 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1749V ELIZABETH JACKMAN, Chief Special Master Corcoran Petitioner, Filed: January 31, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 5, 2023, Elizabeth Jackman filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccination she received on September 30, 2022. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 30, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On January 30, 2025, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $106,426.52, comprised of $95,000.00 for pain and suffering and $11,426.52 for past unreimbursed expenses. Proffer at 2. In the Proffer, Respondent represented that 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 1:23-vv-01749-UNJ Document 32 Filed 03/11/25 Page 2 of 6 Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $106,426.52, comprised of $95,000.00 for pain and suffering and $11,426.52 for past unreimbursed expenses to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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 1:23-vv-01749-UNJ Document 32 Filed 03/11/25 Page 3 of 6 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ELIZABETH JACKMAN, Petitioner, v. No. 23-1749V Chief Special Master Corcoran (SPU) SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 5, 2023, Elizabeth Jackman (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of a influenza (“flu”) vaccine she received on September 30, 2022. Petition at 1. On October 10, 2024, the Court issued Findings of Fact, “find[ing] it more likely than not that the flu vaccination in this case was administered to Petitioner in the right shoulder on September 30, 2022.” ECF No. 18, at 6. On December 20, 2024, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report recognizing that the Chief Special Master’s factual findings are the law of the case and advising that he would not defend the case on other grounds during further proceedings before the Office of Special Masters. ECF No. 22. On December 30, 2024, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to Case 1:23-vv-01749-UNJ Document 32 Filed 03/11/25 Page 4 of 6 compensation for her SIRVA.1 ECF No. 24. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $95,000.00 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 she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $11,426.52. 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 a lump sum payment as described below and requests that the Chief Special Master’s decision and 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s December 30, 2024, entitlement decision. 2 Case 1:23-vv-01749-UNJ Document 32 Filed 03/11/25 Page 5 of 6 the Court’s judgment award the following2: a lump sum payment of $106,426.52, to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner. Summary of Recommended Payments Following Judgment Lump sum to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner, Elizabeth Jackman: $106,426.52 Respectfully submitted, BRETT A. SHUMATE Acting Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division 2 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, unreimbursed expenses, future lost earnings and future pain and suffering. 3 Case 1:23-vv-01749-UNJ Document 32 Filed 03/11/25 Page 6 of 6 /s/ Eleanor A. Hanson ELEANOR A. HANSON Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 305-1110 Eleanor.Hanson@usdoj.gov DATED: January 30, 2025 4 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_23-vv-01749-cl-extra-11111188 Date issued/filed: 2025-07-30 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10644601 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1749V ELIZABETH JACKMAN, Chief Special Master Corcoran Petitioner, v. Filed: June 24, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On October 5, 2023, Elizabeth Jackman filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccination she received on September 30, 2022. Petition at 1. On December 30, 2024, I issued a decision awarding damages to Petitioner based upon Respondent’s proffer. ECF No. 25. 1Because 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). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $24,072.71 (representing $21,867.60 for fees and $2,205.11 for costs). Petitioner’s Application for Attorneys’ Fees, filed Apr. 25, 2025, ECF No. 33. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. Id. at 2. Respondent reacted to the motion on April 28, 2025, indicating 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, 3 n.2, ECF No. 34. On May 2, 2025, Petitioner filed a reply, criticizing Respondent’s hourly rate discussion and reiterating her previous fees request. ECF No. 35. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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. 2 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 practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. ATTORNEY FEES 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, Petitioner has requested an hourly rate of $550.00, for work performed by Ms. Durant in 2025, representing an increase of $64.00, which is greater than what I usually would award. Furthermore, given her 2007 bar date, Ms. Durant is considered to have 18 years of experience in 2025. This places her in the Fee Schedules range of attorneys with 11 to 19 years of experience.3 For work performed in 2025, attorneys with this experience level may be awarded $438 to $547. Thus, Ms. Durant’s requested rate is $3.00 greater than the maximum amount allowed for her experience level. Instead, I find that the hourly rate of $530.00 is more appropriate for work performed by Ms. Durant in 2025. Although she has extensive vaccine experience, Ms. Durant’s level of general legal experience is one year less than the maximum for this range. And the rate of $530.00 still represents a substantial increase of $46.00 from her 2024 rate. Application of the foregoing reduces the amount of fees to be awarded by $202.00.4 Regarding the time spent working on this case, I find it to be reasonably expended. Thus, I will make no reductions to the hours billed. ATTORNEY COSTS Petitioner requests $2,205.11 in overall attorney costs and has provided receipts for all expenses. ECF No. 33-2. And Respondent offered no specific objection to the 3 The Vaccine Program’s Attorney’s Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claim’s website: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules. 4 This amount consists of ($550.00 - $530.00) x 10.1 hrs. = $202.00. ECF No. 33-1 at 7-9 (entries dated 1/7/25, 1/17/25, 1/30/25 (two entries), 1/31/25, 2/3/25 (two entries), 2/6/25, 2/11/25, 4/4/25, and 4/21/25). 3 amounts sought. ECF No. 34. I have reviewed all requested costs and find them to be reasonable. 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 $23,870.71 (representing $21,665.60 for fees and $2,205.11 in attorney’s 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 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 filing a joint notice renouncing their right to seek review. 4