Lee v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-584V MARYA NEMEH, Chief Special Master Corcoran Petitioner, v. Filed: May 6, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica E. Choper, Britcher Leone and Sergio, LLC, Glen Rock, NJ, for Petitioner. Madylan Yarc, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On April 26, 2023, Marya Nemeh 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 Table injury – a shoulder injury related to vaccine administration as a result of her July 7, 2020, meningococcal conjugate, meningococcal B, and hepatitis A vaccinations. Petition, ECF No. 1. On December 30, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 39. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other inf ormation, the disclosure of which would constitute an unwarranted invasion of privacy. If , upon review, I agree that the identified material fits within this definition, I will redact such material f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).  Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $40,519.25 (representing $39,827.50 in fees plus $691.75 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed January 22, 2025, ECF No. 44. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred no personal out- of-pocket expenses. ECF No. 44 at 29-30. Respondent reacted to the motion on January 31, 2025, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-4, ECF No. 45. Petitioner filed no reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 44 at 3-17. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full. 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. Petitioner is awarded attorneys’ fees and costs in the total amount of $40,519.25 (representing $39,827.50 in fees plus $691.75 in costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall 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), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-0323V MICHELLE MONTGOMERY, Chief Special Master Corcoran Petitioner, v. Filed: May 7, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daniel Alholm, Alholm Law PC, Chicago, IL, for Petitioner. Christopher Pinto, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On March 1, 2024, Michelle Montgomery 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 (“SIRVA”) as the result of an influenza (“flu”) vaccination received on October 13, 2022. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On April 10, 2025, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On May 7, 2025, Respondent filed a Proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the 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). proffered award. Id. at 2. 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, Petitioner is awarded a lump sum of $60,514.75 (representing $55,000.00 for pain and suffering, and $5,514.75 for lost earnings) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. Proffer at 1 – 2. This amount represents compensation for all damages that would be available under Section 15(a). Id. The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2  IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MICHELLE MONTGOMERY, Petitioner, v. No. 24-0323 Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On March 1, 2024, Michelle Montgomery (“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 an influenza vaccine she received on October 13, 2022. Petition at 1. On April 8, 2025, the Secretary of Health and Human Services (“respondent”) filed a 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 April 10, 2025, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 28; ECF No. 30. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $55,000.00 in pain

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-0170V FRANK LOPES, Chief Special Master Corcoran Petitioner, Filed: May 8, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Nicole Anne Caplan-Mason, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for Petitioner. Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On February 2, 2024, Frank Lopes 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, or in the alternative a caused-in-fact or significant aggravation injury, after receiving an influenza (“flu”) vaccine on March 1, 2021. Petition at 1 ¶¶ 4, 23, 27. The case was assigned to the Special Processing Unit of the Office of Special Masters. On October 22, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On May 5, 2025, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $57,517.62, 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). representing $57,500.00 for pain and suffering and $17.62 for past unreimbursable expenses.3 Proffer at 1-2. In 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 $57,517.62, representing $57,500.00 for pain and suffering and $17.62 for actual 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 As dictated by the Vaccine Act, this amount does not include compensation “for any item or service to the extent that payment has been made, or can reasonably be expected to be made, with respect to such item or service . . . under an insurance policy.” Section 15(g). The Vaccine Act always and by its own terms functions as a secondary payer to a petitioner’s health care insurance. Any entitlement award paid to a petitioner cannot include amounts paid or expected to be paid under his or her existing health care insurance policy. The Act also prohibits any health insurance policy from “mak[ing] payment of benefits under the policy secondary to the payment of compensation under the Program.” Section 15(h). Because Petitioner’s medical insurance carrier has asserted a right of subrogation on several occasions, despite being provided with a copy of the General Order Regarding Subrogation, explaining the Vaccine Act’s role as a secondary payer, which can be found at the Court’s website, I am including this additional language to clarify that the compensation being awarded in this Damages Decision is for Petitioner’s out- of-pocket expenses only, and not for any amounts that are covered by her medical insurance policy. See https://www.uscfc.uscourts.gov/guidelines-practice-under-national-vaccine-injury-compensation-program (last visited o

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-1169V JAMES MCMAHON, Chief Special Master Corcoran Petitioner, Filed: May 8, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On July 31, 2024, James McMahon 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after receiving an influenza (“flu”) vaccine on November 6, 2023 Petition at 1, ¶¶ 1, 14. On February 4, 2025, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On May 7, 2025, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $100,100.00, representing $100,000.00 for actual and projected pain and suffering3 and $100.00 for past unreimbursed expenses. Proffer at 1, 1 n.2. In the Proffer, Respondent represented 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). 3 Respondent states that amount awarded for projected pain and suffering has been reduced to its net present value as required by Section 15(f)(4)(A). Proffer at 1 n.2. that Petitioner agrees with the proffered award. Id. at 2. 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 $100,100.00, representing $100,000.00 for actual and projected pain and suffering and $100.00 for actual 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.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2  IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS JAMES MCMAHON, Petitioner, v. No. 24-1169V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On July 31, 2024, James McMahon (petitioner) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, alleging that he received an influenza vaccination on November 6, 2023, and thereafter suffered from a left- side shoulder injury related to vaccine administration (SIRVA). See Petition. On February 3, 2025, the Secretary of Health and Human Services (respondent) filed his Rule 4(c) Report recommending that compensation be awarded.1 ECF No. 15. On February 4, 2025, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to comp

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-034V MIGUEL PEREZ, Chief Special Master Corcoran Petitioner, Filed: May 6, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner. Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 10, 2023, Miguel Perez 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 he suffered a shoulder injury related to vaccine administration following an influenza vaccine he received on October 20, 2021. Petition, ECF No. 1. On December 19, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 25. 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 $12,324.07 (representing $11,027.20 in fees plus $1,296.87 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed February 14, 2025, ECF No. 30. Furthermore, counsel for Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. ECF No. 30 at 2. Respondent reacted to the motion on February 25, 2025, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-4, ECF No. 31. Petitioner filed no reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 30 at 12-24. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full. 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. Petitioner is awarded attorneys’ fees and costs in the total amount of $12,324.07 (representing $11,027.20 in fees plus $1,296.87 in costs) to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall 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), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2