VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01905 Package ID: USCOURTS-cofc-1_23-vv-01905 Petitioner: Kermit Nelson Filed: 2023-10-27 Decided: 2025-02-10 Vaccine: Tdap Vaccination date: 2022-08-02 Condition: bilateral optic neuritis Outcome: compensated Award amount USD: 60000 AI-assisted case summary: Kermit Nelson filed a petition on October 27, 2023, alleging that a Tdap vaccine administered on August 2, 2022, significantly aggravated his bilateral optic neuritis. The respondent, the Secretary of Health and Human Services, denied that the vaccine caused Petitioner's injury or aggravated his condition, and denied that Petitioner's current condition is a sequela of a vaccine-related injury. Despite these denials, the parties reached a stipulation recommending an award of compensation. Special Master Nora Beth Dorsey adopted the stipulation as the decision of the Court. The stipulation provided that Petitioner would receive a lump sum of $60,000.00, 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 available under the National Vaccine Injury Compensation Program. The parties jointly filed notice renouncing the right to seek review, expediting the entry of judgment. The public decision does not describe the onset of symptoms, specific clinical details of the condition, any diagnostic tests performed, or treatments received. The public decision also does not name any medical experts or describe the specific mechanism of causation. Theory of causation field: Petitioner Kermit Nelson alleged that a Tdap vaccine administered on August 2, 2022, significantly aggravated his bilateral optic neuritis. The respondent denied causation. The parties stipulated to an "Off-Table" theory of causation, resulting in an award of $60,000.00. The public decision does not name any experts, describe the mechanism of injury, or provide specific clinical details. Special Master Nora Beth Dorsey issued the decision based on the stipulation on February 10, 2025. Wendy Cox represented the Petitioner, and Ryan Pohlman Miller represented the Respondent. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_23-vv-01905-0 Date issued/filed: 2025-03-07 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 2/10/2025) regarding 33 DECISION Stipulation. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 10, 2025 * * * * * * * * * * * * * * * * * * * KERMIT NELSON, * UNPUBLISHED * Petitioner, * No. 23-1905V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Decision Based on Stipulation; Tetanus- AND HUMAN SERVICES, * Diphtheria-Acellular Pertussis (“Tdap”) * Vaccine; Bilateral Optic Neuritis. Respondent. * * * * * * * * * * * * * * * * * * * * * Wendy Cox, Siri & Glimstad LLP, Austin, TX, for Petitioner. Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent. DECISION BASED ON STIPULATION1 On October 27, 2023, Kermit Nelson (“Petitioner”) filed a petition in the National Vaccine Injury Program2 alleging that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine administered on August 2, 2022 significantly aggravated his bilateral optic neuritis. Amended Petition at Preamble (ECF No. 1). On February 10, 2025, the parties filed a stipulation recommending an award of compensation to Petitioner. Stipulation (ECF No. 31). Respondent denies that Petitioner 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) (“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 Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 2 of 7 suffered a significant aggravation of optic neuritis; denies that any vaccine caused Petitioner’s alleged injury, or any other injury; and denies that Petitioner’s current condition is a sequela of a vaccine-related injury. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. The parties stipulate that Petitioner shall receive the following compensation: (1) A lump sum of $60,000.00, 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 42 U.S.C. § 300aa-15(a). Stipulation at ¶ 8. The undersigned approves the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Nora B. Dorsey Nora B. 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. 2 Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 3 of 7 Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 4 of 7 Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 5 of 7 Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 6 of 7 Case 1:23-vv-01905-UNJ Document 37 Filed 03/07/25 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_23-vv-01905-cl-extra-10818757 Date issued/filed: 2025-03-07 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10352169 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 10, 2025 * * * * * * * * * * * * * * * * * * * KERMIT NELSON, * UNPUBLISHED * Petitioner, * No. 23-1905V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Decision Based on Stipulation; Tetanus- AND HUMAN SERVICES, * Diphtheria-Acellular Pertussis (“Tdap”) * Vaccine; Bilateral Optic Neuritis. Respondent. * * * * * * * * * * * * * * * * * * * * * Wendy Cox, Siri & Glimstad LLP, Austin, TX, for Petitioner. Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent. DECISION BASED ON STIPULATION 1 On October 27, 2023, Kermit Nelson (“Petitioner”) filed a petition in the National Vaccine Injury Program 2 alleging that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine administered on August 2, 2022 significantly aggravated his bilateral optic neuritis. Amended Petition at Preamble (ECF No. 1). On February 10, 2025, the parties filed a stipulation recommending an award of compensation to Petitioner. Stipulation (ECF No. 31). Respondent denies that Petitioner 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) (“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 suffered a significant aggravation of optic neuritis; denies that any vaccine caused Petitioner’s alleged injury, or any other injury; and denies that Petitioner’s current condition is a sequela of a vaccine-related injury. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. The parties stipulate that Petitioner shall receive the following compensation: (1) A lump sum of $60,000.00, 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 42 U.S.C. § 300aa-15(a). Stipulation at ¶ 8. The undersigned approves the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 3 IT IS SO ORDERED. s/Nora B. Dorsey Nora B. 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. 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_23-vv-01905-cl-extra-11099212 Date issued/filed: 2025-07-14 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10632625 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: June 17, 2025 * * * * * * * * * * * * * KERMIT NELSON, * UNPUBLISHED * Petitioner, * No. 23-1905V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Attorneys’ Fees and Costs. AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Wendy Cox, Siri & Glimstad LLP, Austin, TX, for Petitioner. Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On October 27, 2023, Kermit Nelson (“Petitioner”) filed a petition in the National Vaccine Injury Program 2 alleging that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine administered on August 2, 2022 significantly aggravated his bilateral optic neuritis. Amended Petition at Preamble (ECF No. 6-1). The undersigned issued a decision based on stipulation on February 10, 2025. Decision dated Feb. 10, 2025 (ECF No. 33). 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 On March 13, 2025, Petitioner filed an application for attorneys’ fees and costs. Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Mot.”), filed Mar. 13, 2025 (ECF No. 38). Petitioner requests compensation in the amount of $39,447.19, representing $37,148.40 in attorneys’ fees and $2,298.79 in costs. Id. at 1. Petitioner warrants that he has not personally incurred any costs in pursuit of his claim for compensation. Id. at 2; Pet. Exhibit (“Ex.”) 24. Respondent filed his response on March 17, 2025, 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., filed Mar. 17, 2025, at 2 (ECF No. 39). Petitioner did not file a reply thereafter. The matter is now ripe for disposition. Petitioner requests the following hourly rates for the work of his counsel: for Ms. Wendy Cox, $390.00 per hour for work performed in 2023, $430.00 per hour for work performed in 2024, and $450.00 per hour for work performed in 2025; for Ms. Jessica Wallace, $285.00 per hour for work performed in 2023 and $320.00 per hour for work performed in 2024, and for Ms. Alison Haskins, $510.00 per hour for work performed in 2024 and 2025. Petitioner also requests rates between $174.00 and $195.00 for work of their counsel’s paralegals performed from 2022 to 2025. The undersigned finds the rates from 2022 to 2024 consistent with what counsel have previously been awarded for their Vaccine Program work, and finds them to be reasonable herein. The undersigned also finds the 2025 rate for Ms. Cox reasonable and appropriate and will grant the request rate. Additionally, 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 largely 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: Petitioner is awarded attorneys’ fees and costs in the total amount of $39,447.19, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. 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 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. 2 IT IS SO ORDERED. /s/ Nora Beth Dorsey Nora Beth Dorsey Special Master 3