VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01879 Package ID: USCOURTS-cofc-1_23-vv-01879 Petitioner: S.R.C. Filed: 2023-10-25 Decided: 2024-01-22 Vaccine: varicella Vaccination date: 2022-01-06 Condition: disseminated varicella vaccine-strain viral disease causing death Outcome: entitlement_granted_pending_damages Award amount USD: AI-assisted case summary: On October 25, 2023, Jennifer Wagner, on behalf of the estate of S.R.C., filed a petition under the National Vaccine Injury Compensation Program. The petition alleged that S.R.C. received a varicella vaccination on January 6, 2022, subsequently developed disseminated varicella vaccine-strain viral disease, and died on April 14, 2022. The respondent, the Secretary of Health and Human Services, filed a report on January 22, 2024, conceding that the petitioner was entitled to compensation. The respondent stated that S.R.C. was entitled to a presumption of causation because the disseminated varicella vaccine-strain viral disease met the criteria of the Vaccine Injury Table. Specifically, the respondent noted that S.R.C. had identified vaccine-strain varicella zoster virus (VZV), received the varicella vaccine in his right arm, later developed VZV-positive lesions on his left knee, and had VZV detected in his blood. This was found to meet the Table injury definition for disseminated varicella vaccine-strain viral disease, defined as a varicella illness involving the skin beyond the vaccination dermatome and/or disease caused by vaccine-strain varicella in another organ. The respondent also concluded that there was no preponderant evidence that S.R.C.'s condition was due to an unrelated factor and that the disseminated vaccine-strain viral disease resulted in his death. Special Master Nora Beth Dorsey reviewed the respondent's concession and the record, finding that the petitioner was entitled to compensation. The case was ordered to proceed to the damages phase. The public record does not include details regarding S.R.C.'s age, the relationship of Jennifer Wagner to S.R.C., pre-vaccination medical history, the day-by-day clinical course, treating physicians, hospitalization records, postmortem findings, or a damages decision and award amount. Petitioner was represented by Elizabeth Kyla Abramson of Maglio Christopher & Toale, P.A., and respondent was represented by Dorian Hurley of the U.S. Department of Justice. Theory of causation field: Varicella vaccine administered Jan. 6, 2022, to S.R.C., who subsequently developed disseminated varicella vaccine-strain viral disease and died Apr. 14, 2022. Entitlement granted based on respondent's concession under Rule 4(c). Respondent found S.R.C. met the Vaccine Injury Table criteria for disseminated varicella vaccine-strain viral disease, citing identified vaccine-strain VZV, vaccination in the right arm, VZV-positive lesions on the left knee, and VZV detected in the blood, meeting the definition of illness involving skin beyond the vaccination dermatome and/or disease in another organ. Respondent also found no preponderant unrelated factor and that the condition caused death. Public ruling does not detail S.R.C.'s age, petitioner's relationship, clinical course, treating physicians, hospitalization, postmortem findings, or specific experts. Special Master Nora Beth Dorsey granted entitlement on Jan. 22, 2024, ordering the case to proceed to damages; no award amount is stated in the public record. Petitioner's counsel: Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A. Respondent's counsel: Dorian Hurley, U.S. Department of Justice. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_23-vv-01879-0 Date issued/filed: 2024-02-16 Pages: 2 Docket text: PUBLIC RULING (Originally filed: 1/22/2024) regarding 19 Ruling on Entitlement. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01879-UNJ Document 24 Filed 02/16/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 22, 2024 * * * * * * * * * * * * * * * JENNIFER WAGNER, on behalf of the * estate of the deceased, S.R.C., * UNPUBLISHED * Petitioner, * No. 23-1879V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Ruling on Entitlement; Concession; Table AND HUMAN SERVICES, * Injury; Varicella Vaccine; Disseminated * Varicella Vaccine-Strain Viral Disease; Respondent. * Death. * * * * * * * * * * * * * * * * Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 25, 2023, Jennifer Wagner (“Petitioner”), on behalf of the estate of S.R.C., filed a petition for compensation under the National Vaccine Injury Compensation Program (“the Program”)2 alleging that after receipt of a varicella vaccination on January 6, 2022, S.R.C. developed disseminated varicella vaccine-strain viral disease, which resulted in his death on April 14, 2022. Petition at Preamble (ECF No. 1). 1 Because this Ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Ruling to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. Case 1:23-vv-01879-UNJ Document 24 Filed 02/16/24 Page 2 of 2 On January 22, 2024, Respondent filed a report pursuant to Vaccine Rule 4(c) in which he conceded that Petitioner is entitled to compensation in this case. Respondent’s Report (“Resp. Rept.”) at 1, 12 (ECF No. 18). Based on a review of the medical records, Respondent stated that “[P]etitioner is entitled to a presumption of causation because S.R.C. had disseminated varicella vaccine-strain viral disease that meets the criteria of the Vaccine Injury Table.” Id. at 11. Specifically, Respondent noted “S.R.C. had identified vaccine-strain [varicella zoster virus (“VZV”)] and he received the varicella vaccine in his right arm with VZV positive lesions later occurring on his left knee as well as VZV appearing in his blood.” Id. at 11-12. Respondent found this to meet “the [Vaccine] Table injury definition provided in the qualifications and aids to interpretation for disseminated varicella vaccine-strain viral disease as ‘a varicella illness that involves the skin beyond the dermatome in which the vaccination was given and/or disease caused by vaccine-strain varicella in another organ.’” Id. at 12 (quoting 42 C.F.R. § 100.3(a)(X), (c)(11)). Respondent also found “there is not preponderant evidence that his condition was due to a factor unrelated to the vaccine.” Id. Additionally, Respondent found “S.R.C.’s disseminated varicella vaccine-strain viral disease resulted in his death.” Id. “Therefore, based on the record as it now stands, “[P]etitioner has satisfied all legal prerequisites for compensation under the [Vaccine] Act.” Id. A special master may determine whether a petitioner is entitled to compensation based upon the record as a hearing is not required. § 13; Vaccine Rule 8(d). In light of Respondent’s concession and a review of the record, the undersigned finds that Petitioner is entitled to compensation. This matter shall now proceed to the damages phase. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_23-vv-01879-cl-extra-10736172 Date issued/filed: 2024-02-16 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269582 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 22, 2024 * * * * * * * * * * * * * * * JENNIFER WAGNER, on behalf of the * estate of the deceased, S.R.C., * UNPUBLISHED * Petitioner, * No. 23-1879V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Ruling on Entitlement; Concession; Table AND HUMAN SERVICES, * Injury; Varicella Vaccine; Disseminated * Varicella Vaccine-Strain Viral Disease; Respondent. * Death. * * * * * * * * * * * * * * * * Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT 1 On October 25, 2023, Jennifer Wagner (“Petitioner”), on behalf of the estate of S.R.C., filed a petition for compensation under the National Vaccine Injury Compensation Program (“the Program”) 2 alleging that after receipt of a varicella vaccination on January 6, 2022, S.R.C. developed disseminated varicella vaccine-strain viral disease, which resulted in his death on April 14, 2022. Petition at Preamble (ECF No. 1). 1 Because this Ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Ruling to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. On January 22, 2024, Respondent filed a report pursuant to Vaccine Rule 4(c) in which he conceded that Petitioner is entitled to compensation in this case. Respondent’s Report (“Resp. Rept.”) at 1, 12 (ECF No. 18). Based on a review of the medical records, Respondent stated that “[P]etitioner is entitled to a presumption of causation because S.R.C. had disseminated varicella vaccine-strain viral disease that meets the criteria of the Vaccine Injury Table.” Id. at 11. Specifically, Respondent noted “S.R.C. had identified vaccine-strain [varicella zoster virus (“VZV”)] and he received the varicella vaccine in his right arm with VZV positive lesions later occurring on his left knee as well as VZV appearing in his blood.” Id. at 11-12. Respondent found this to meet “the [Vaccine] Table injury definition provided in the qualifications and aids to interpretation for disseminated varicella vaccine-strain viral disease as ‘a varicella illness that involves the skin beyond the dermatome in which the vaccination was given and/or disease caused by vaccine-strain varicella in another organ.’” Id. at 12 (quoting 42 C.F.R. § 100.3(a)(X), (c)(11)). Respondent also found “there is not preponderant evidence that his condition was due to a factor unrelated to the vaccine.” Id. Additionally, Respondent found “S.R.C.’s disseminated varicella vaccine-strain viral disease resulted in his death.” Id. “Therefore, based on the record as it now stands, “[P]etitioner has satisfied all legal prerequisites for compensation under the [Vaccine] Act.” Id. A special master may determine whether a petitioner is entitled to compensation based upon the record as a hearing is not required. § 13; Vaccine Rule 8(d). In light of Respondent’s concession and a review of the record, the undersigned finds that Petitioner is entitled to compensation. This matter shall now proceed to the damages phase. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_23-vv-01879-1 Date issued/filed: 2024-08-06 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 7/9/2024) regarding 39 DECISION Proffer. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01879-UNJ Document 43 Filed 08/06/24 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 9, 2024 * * * * * * * * * * * * * * * * * * * * * * * * * JENNIFER WAGNER, on behalf of the * estate of the deceased, S.R.C., * PUBLISHED * Petitioner, * No. 23-1879V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Damages Award; Varicella Vaccination; AND HUMAN SERVICES, * Disseminated Varicella Vaccine-Strain Viral * Disease; Death. Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES BASED ON PROFFER1 On October 25, 2023, Jennifer Wagner (“Petitioner”), on behalf of the estate of the deceased S.R.C., filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2018).2 Petitioner alleged that as a result of a varicella vaccine administered on January 6, 2022, S.R.C. developed disseminated varicella vaccine-strain viral disease and subsequently died on April 14, 2022. Petition at Preamble (ECF No. 1). On January 22, 2024, the undersigned issued a ruling finding Petitioner entitled to compensation. Ruling on Entitlement dated Jan. 22, 2024 (ECF No. 19). 1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. Case 1:23-vv-01879-UNJ Document 43 Filed 08/06/24 Page 2 of 5 On July 9, 2024, Respondent filed a Proffer on Award of Compensation (“Proffer”), attached hereto as Appendix A. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Proffer at 2. Based on the record as a whole, the undersigned finds that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the undersigned awards Petitioner: (1) A lump sum payment of $250,000.00, which represents compensation for the statutory benefit for a vaccine-related death, and (2) A lump sum payment of $250,000.00, which represents compensation for past pain and suffering. Proffer at 2. This amount represents all elements of compensation to which Petitioner is entitled under § 15(a). Id. Therefore, Petitioner shall be awarded a lump sum payment of $500,000.00 in the form of a check payable to Petitioner, Jennifer Wagner, as personal representative of the Estate of S.R.C.3 In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith.4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 3 The Proffer states, “If for some reason [P]etitioner is not authorized by a court of competent jurisdiction to serve as the personal representative of the Estate of S.R.C. at the time a payment pursuant to this Proffer is to be made, then any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as personal representative of the Estate of S.R.C. upon submission of written documentation of such appointment to the Secretary.” Proffer at 2 n.3. 4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:23-vv-01879-UNJ Document 43 Filed 08/06/24 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) JENNIFER WAGNER, on behalf of the estate ) of the deceased, S.R.C., ) ) Petitioner, ) No. 23-1879V ) Special Master Dorsey v. ) ECF ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 25, 2023, Jennifer Wagner filed a petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 et seq. (“Vaccine Act”), on behalf of the estate of her deceased son, S.R.C.1 Petitioner alleged that S.R.C.’s receipt of a varicella vaccination on January 6, 2022, caused him to suffer disseminated varicella vaccine-strain viral disease, resulting in his death on April 14, 2022. See Petition at Preamble. On January 22, 2024, respondent filed a Rule 4(c) Report, conceding that petitioner’s claim meets the Table criteria for a disseminated varicella vaccine-strain viral disease injury, and that S.R.C.’s death was vaccine related. Also on January 22, 2024, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation under the Vaccine Act. 1 Ms. Wagner filed documentation on June 12, 2024, establishing that on March 5, 2024, she was appointed personal representative of S.R.C.’s Estate under the laws of the State of Colorado. See Exhibit 13. All references to petitioner herein refer solely to Jennifer Wagner in her representative capacity as the personal representative of the Estate of S.R.C. Case 1:23-vv-01879-UNJ Document 43 Filed 08/06/24 Page 4 of 5 I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded the following, and requests that the Special Master’s decision and the Court’s judgment award: a. a lump sum payment of $250,000.00, which represents compensation for the statutory benefit for a vaccine-related death, and b. a lump sum payment of $250,000.00, which represents compensation for past pain and suffering. These amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a)(2) and (a)(4).2 Petitioner agrees. II. Form of the Award Respondent recommends that petitioner be awarded a lump sum payment of $500,000.00, in the form of a check payable to petitioner, Jennifer Wagner, as personal representative of the Estate of S.R.C.3 Petitioner agrees. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 2 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after a Damages Decision is issued. 3 If for some reason petitioner is not authorized by a court of competent jurisdiction to serve as the personal representative of the Estate of S.R.C. at the time a payment pursuant to this Proffer is to be made, then any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as personal representative of the Estate of S.R.C. upon submission of written documentation of such appointment to the Secretary. 2 Case 1:23-vv-01879-UNJ Document 43 Filed 08/06/24 Page 5 of 5 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division /s/ Dorian Hurley DORIAN HURLEY 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) 353-7751 Email: Dorian.hurley@usdoj.gov DATED: July 9, 2024 3 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_23-vv-01879-cl-extra-10734586 Date issued/filed: 2024-08-06 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267996 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 9, 2024 ************************* JENNIFER WAGNER, on behalf of the * estate of the deceased, S.R.C., * PUBLISHED * Petitioner, * No. 23-1879V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Damages Award; Varicella Vaccination; AND HUMAN SERVICES, * Disseminated Varicella Vaccine-Strain Viral * Disease; Death. Respondent. * ************************* Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES BASED ON PROFFER 1 On October 25, 2023, Jennifer Wagner (“Petitioner”), on behalf of the estate of the deceased S.R.C., filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2018). 2 Petitioner alleged that as a result of a varicella vaccine administered on January 6, 2022, S.R.C. developed disseminated varicella vaccine-strain viral disease and subsequently died on April 14, 2022. Petition at Preamble (ECF No. 1). On January 22, 2024, the undersigned issued a ruling finding Petitioner entitled to compensation. Ruling on Entitlement dated Jan. 22, 2024 (ECF No. 19). 1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. On July 9, 2024, Respondent filed a Proffer on Award of Compensation (“Proffer”), attached hereto as Appendix A. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Proffer at 2. Based on the record as a whole, the undersigned finds that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, the undersigned awards Petitioner: (1) A lump sum payment of $250,000.00, which represents compensation for the statutory benefit for a vaccine-related death, and (2) A lump sum payment of $250,000.00, which represents compensation for past pain and suffering. Proffer at 2. This amount represents all elements of compensation to which Petitioner is entitled under § 15(a). Id. Therefore, Petitioner shall be awarded a lump sum payment of $500,000.00 in the form of a check payable to Petitioner, Jennifer Wagner, as personal representative of the Estate of S.R.C. 3 In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith. 4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 3 The Proffer states, “If for some reason [P]etitioner is not authorized by a court of competent jurisdiction to serve as the personal representative of the Estate of S.R.C. at the time a payment pursuant to this Proffer is to be made, then any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as personal representative of the Estate of S.R.C. upon submission of written documentation of such appointment to the Secretary.” Proffer at 2 n.3. 4 Pursuant to Vaccine Rule 11(a), entry of judgment is 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 ) JENNIFER WAGNER, on behalf of the estate ) of the deceased, S.R.C., ) ) Petitioner, ) No. 23-1879V ) Special Master Dorsey v. ) ECF ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 25, 2023, Jennifer Wagner filed a petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 et seq. (“Vaccine Act”), on behalf of the estate of her deceased son, S.R.C. 1 Petitioner alleged that S.R.C.’s receipt of a varicella vaccination on January 6, 2022, caused him to suffer disseminated varicella vaccine-strain viral disease, resulting in his death on April 14, 2022. See Petition at Preamble. On January 22, 2024, respondent filed a Rule 4(c) Report, conceding that petitioner’s claim meets the Table criteria for a disseminated varicella vaccine-strain viral disease injury, and that S.R.C.’s death was vaccine related. Also on January 22, 2024, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation under the Vaccine Act. 1 Ms. Wagner filed documentation on June 12, 2024, establishing that on March 5, 2024, she was appointed personal representative of S.R.C.’s Estate under the laws of the State of Colorado. See Exhibit 13. All references to petitioner herein refer solely to Jennifer Wagner in her representative capacity as the personal representative of the Estate of S.R.C. I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded the following, and requests that the Special Master’s decision and the Court’s judgment award: a. a lump sum payment of $250,000.00, which represents compensation for the statutory benefit for a vaccine-related death, and b. a lump sum payment of $250,000.00, which represents compensation for past pain and suffering. These amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a)(2) and (a)(4). 2 Petitioner agrees. II. Form of the Award Respondent recommends that petitioner be awarded a lump sum payment of $500,000.00, in the form of a check payable to petitioner, Jennifer Wagner, as personal representative of the Estate of S.R.C. 3 Petitioner agrees. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 2 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after a Damages Decision is issued. 3 If for some reason petitioner is not authorized by a court of competent jurisdiction to serve as the personal representative of the Estate of S.R.C. at the time a payment pursuant to this Proffer is to be made, then any such payment shall be paid to the party or parties appointed by a court of competent jurisdiction to serve as personal representative of the Estate of S.R.C. upon submission of written documentation of such appointment to the Secretary. 2 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division /s/ Dorian Hurley DORIAN HURLEY 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) 353-7751 Email: Dorian.hurley@usdoj.gov DATED: July 9, 2024 3 ================================================================================ DOCUMENT 5: USCOURTS-cofc-1_23-vv-01879-cl-extra-10752814 Date issued/filed: 2024-12-02 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10286226 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: November 6, 2024 * * * * * * * * * * * * * JENNIFER WAGNER, on behalf of the * estate of the deceased, S.R.C., * UNPUBLISHED * Petitioner, * No. 23-1879V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Attorneys’ Fees and Costs. AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On October 25, 2023, Jennifer Wagner (“Petitioner”), on behalf of the estate of the deceased S.R.C., filed a petition in the National Vaccine Injury Program 2 alleged that as a result of a varicella vaccine administered on January 6, 2022, S.R.C. developed disseminated varicella vaccine-strain viral disease and subsequently died on April 14, 2022. Petition at Preamble (ECF No. 1). On January 22, 2024, the undersigned issued a ruling finding Petitioner entitled to compensation. Ruling on Entitlement dated Jan. 22, 2024 (ECF No. 19). On July 9, 2024, the 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018) (“Vaccine Act” or “the Act”). All citations in this Decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. 1 undersigned issued a decision awarding damages based on a proffer. Decision Awarding Damages Based on Proffer dated July 9, 2024 (ECF No. 39). On August 19, 2024, Petitioner filed an application for attorneys’ fees and costs. Petitioner’s Motion for Payment of Petitioner’s Attorneys’ Fees and Reimbursement of Case Costs (“Pet. Mot.”), filed Aug. 19, 2024 (ECF No. 44). Petitioner requests compensation in the amount of $24,365.77, representing $23,694.50 in attorneys’ fees, $269.27 in attorneys’ costs, and $402.00 in Petitioner’s costs. Id. at 1-2. Respondent filed his response on August 21, 2024, stating he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Respondent’s Response to Pet. Mot. (“Resp. Response”), filed Aug. 21, 2024, at 2 (ECF No. 45). Petitioner filed a reply on August 22, 2024, maintaining her request for fees and costs. Pet. Reply to Resp. Response, filed Aug. 22, 2024 (ECF No. 46). The matter is now ripe for disposition. Petitioner requests the following hourly rates for the work of her counsel: for Ms. Elizabeth Abramson, $295.00 per hour for work performed in 2023 and $320.00 per hour for work performed in 2024. Petitioner also requests rates between $180.00 and $190.00 per hour for work of her counsel’s paralegals from 2023 to 2024. The undersigned finds the rates are consistent with what counsel have previously been awarded for their Vaccine Program work, and finds them to be reasonable herein. The undersigned has reviewed the submitted billing entries and finds the total number of hours billed to be reasonable and will award them in full. Lastly, the undersigned has reviewed the requested costs and finds them to be reasonable and supported with appropriate documentation. Accordingly, the full amount of costs shall be awarded. Therefore, the undersigned finds no cause to reduce the requested hours or rates, or the requested costs. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). Based on the reasonableness of Petitioner’s request, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs. Accordingly, the undersigned awards: (1) A lump sum in the amount of $23,963.77, representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, mctlaw. Petitioner requests payment be forwarded to mctlaw, 1515 Ringling Blvd., Suite 700, Sarasota, FL 34236. (2) A lump sum in the amount of $402.00 in the form of a check payable to Petitioner. Petitioner requests payment be forwarded to mctlaw, 1515 Ringling Blvd., Suite 700, Sarasota, FL 34236. 2 In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this Decision. 3 IT IS SO ORDERED. /s/ Nora Beth Dorsey Nora Beth Dorsey Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 3