VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01868 Package ID: USCOURTS-cofc-1_23-vv-01868 Petitioner: Rebecca Diaz Filed: 2023-10-23 Decided: 2025-04-25 Vaccine: influenza Vaccination date: 2022-09-16 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 59873 AI-assisted case summary: Rebecca Diaz filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of her September 16, 2022 influenza vaccination. The petition stated that her injury was a Table injury and that she suffered residual effects for more than six months. Respondent filed a Rule 4(c) report conceding that Petitioner's alleged injury was consistent with SIRVA as defined by the Vaccine Injury Table, noting no prior history of shoulder issues, pain within 48 hours of vaccination, pain limited to the injection site, and no other identified condition to explain the pain. Respondent also agreed that Petitioner suffered residual effects for more than six months, satisfying all legal prerequisites for compensation. A ruling on entitlement was issued on November 13, 2024, finding Petitioner entitled to compensation. Subsequently, on March 25, 2025, Respondent filed a proffer on award of compensation, indicating Petitioner should be awarded $57,500.00 for pain and suffering and $2,373.99 for past unreimbursable expenses, totaling $59,873.99. Petitioner agreed with this proffered award. The Chief Special Master issued a decision awarding Petitioner the lump sum of $59,873.99. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_23-vv-01868-0 Date issued/filed: 2024-12-18 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 11/13/2024) regarding 21 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01868-UNJ Document 23 Filed 12/18/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1868V REBECCA DIAZ, Chief Special Master Corcoran Petitioner, Filed: November 13, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 23, 2023, Rebecca Diaz 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 Table injury - shoulder injury related to vaccine administration (“SIRVA”) as a result of the administration of her September 16, 2022 influenza (“flu”) vaccination. Petition at 1. Petitioner further alleges that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. See Petition at ¶¶ 10-11. The case was assigned to the Special Processing Unit of the Office of Special Masters. 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-01868-UNJ Document 23 Filed 12/18/24 Page 2 of 2 On November 8, 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 states that he has concluded that 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 her 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. 42 C.F.R. §§ 100.3(a), (c)(10). Additionally, based on the medical records outlined above, petitioner suffered the residual effects of her condition for more than six months. Therefore, based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act. See 42 U.S.C. § 300aa-13(a)(1)(B); 42 U.S.C. § 300aa-11(c)(1)(D)(i). 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_23-vv-01868-1 Date issued/filed: 2025-04-25 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 03/25/2025) regarding 28 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01868-UNJ Document 32 Filed 04/25/25 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1868V REBECCA DIAZ, Chief Special Master Corcoran Petitioner, Filed: March 25, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 23, 2023, Rebecca Diaz 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 that she suffered a Table injury - shoulder injury related to vaccine administration (“SIRVA”) as a result of the administration of her September 16, 2022 influenza (“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On November 13, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 25, 2025, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $57,500.00 for pain and suffering, and $2,373.99 for past unreimbursable expenses. Proffer at 1-2. In 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-01868-UNJ Document 32 Filed 04/25/25 Page 2 of 5 the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $59,873.99 to (representing $57,500.00 for pain and suffering and $2,373.99 for past unreimbursable 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-01868-UNJ Document 32 Filed 04/25/25 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) REBECCA DIAZ, ) ) Petitioner, ) ) No. 23-1868V v. ) Chief Special Master Corcoran (SPU) ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) PROFFER ON AWARD OF COMPENSATION I. Procedural History On October 23, 2023, Rebecca Diaz (“petitioner”) filed a petition for compensation (“petition”) 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 an influenza vaccine she received on September 16, 2022. Petition at 1. On November 8, 2024, respondent filed a Vaccine Rule 4(c) report, indicating that this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury, and on November 13, 2024, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 19, 21. II. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $57,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:23-vv-01868-UNJ Document 32 Filed 04/25/25 Page 4 of 5 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 $2,373.99. 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. III. Form of the Award Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment, as described below, and requests that the Chief Special Master’s decision and the Court’s judgment award the following: A lump sum of $59,873.99 to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner.1 Petitioner agrees. Respectfully submitted, YAAKOV M. ROTH Acting Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 1 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 2 Case 1:23-vv-01868-UNJ Document 32 Filed 04/25/25 Page 5 of 5 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division s/ Kimberly S. Davey KIMBERLY S. DAVEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 307-1815 DATED: March 20, 2025 Email: Kimberly.Davey@usdoj.gov 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_23-vv-01868-cl-extra-11131236 Date issued/filed: 2025-09-02 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10664649 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1868V REBECCA DIAZ, Chief Special Master Corcoran Petitioner, v. Filed: July 31, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On October 23, 2023, Rebecca Diaz filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration as a result of the administration of her September 16, 2022 influenza vaccination. Petition at 1. On March 25, 2025, I issued a decision awarding compensation to Petitioner based on 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 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 $18,456.10 (representing $17,813.30 in fees plus $642.80 in costs). Motion for Attorney’s Fees, filed on May 16, 2025. ECF No. 33. Petitioner filed a signed statement stating that she incurred personal expenses in the amount of $20.76 for postage fees. Id. at 2. Respondent reacted to the motion on May 16, 2025, reporting that he is satisfied 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, 4, ECF No. 34. Petitioner filed a reply requesting an award of fees and costs as indicated in the Motion. ECF No. 35. I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reasons set forth 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 The hourly rates requested by attorneys Leah Durant, Christopher Williams, and Mateo Forero their supporting paralegals through the end of 2024, are reasonable and consistent with our prior determinations and will therefore be adopted. For work performed by Mr. Forero in 2025, Petitioner is requesting the hourly rate of $412.00, representing an increase of $27.00 from the previous year. ECF No. 33-1 at 5-6. I find this 2025 rate is reasonable and within the OSM fee schedule for attorneys with Mr. Forero’s experience. Thus, I will award the requested 2025 rate. However, the rate of $550.00 for 2025 time billed by Ms. Durant require further evaluation and adjustment. Attorney Durant was previously awarded the lesser rates of $530.00 for work performed in 2025. See Jackman v. Sec’y of Health & Hum. Servs., No. 23-1749, Slip Op. 36 (Fed. Cl. Spec. Mstr. June 24, 2025). I find no reason to deviate from such reasoned determination and it otherwise is not the practice of OSM to adjust prior rate determinations upward in later cases. See Jefferson v. Sec’y of Health & Hum. Servs., No. 19-1882V, 2023 WL 387051 (Fed. Cl. Spec. Mstr. Jan. 9, 2023). Accordingly, I hereby reduce Ms. Durant’s rate for work performed in 2025 to be consistent with the aforementioned decision. Application of the foregoing reduces the amount of fees to be awarded by $118.00.3 ATTORNEY’S COSTS Petitioner has otherwise provided supporting documentation for all claimed costs. ECF No. 33-2. 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. I award a total of $18,358.86 (representing $17,695.30 in attorneys’ fees, $642.80 in attorneys’ costs, and $20.76 in Petitioner’s 3 This amount consists of a reduction to Leah Durant’s 2025 hourly rate and is calculated as follows: ($550.00 - $530.00 = $20.00 x 5.90 hours billed) = $118.00 in fees to be reduced. 3 personal 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.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 filing a joint notice renouncing their right to seek review. 4