Montgomery v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-1854V DANAH MOORE, Chief Special Master Corcoran Petitioner, Filed: May 29, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner. Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 12, 2024, Danah Moore filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on September 18, 2023. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, her left shoulder symptoms have persisted for more than six months, and neither Petitioner, nor any other party, has ever filed any action or accepted compensation in the form of an award or settlement, for Petitioner’s vaccine-related injury. Petition at ¶¶ 4, 28-30. 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).  On May 28, 2025, 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 agrees that Petitioner’s alleged injury is consistent with SIRVA as defined by the Vaccine Injury Table in that “petitioner had no history of pain, inflammation, or dysfunction of her left shoulder prior to vaccination; pain occurred within forty-eight hours after receipt of an intramuscular vaccination; pain and reduced range of motion [were] 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.” Id. at 5. Respondent further agrees that the records demonstrate that Petitioner suffered the residual effects of her condition for more than six months, and has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: April 18, 2025 * * * * * * * * * * * * * LESA MYERS, * * Petitioner, * No. 18-324V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for petitioner. Meghan Murphy, U.S. Department of Justice, Washington, D.C., for respondent. DECISION ON STIPULATION1 On March 1, 2018, Lesa Myers (“petitioner”) filed her claim for compensation in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving the influenza (“flu”) vaccine on October 27, 2016, she suffered chronic inflammatory demyelinating polyneuropathy (“CIDP”). Id. at Preamble. On April 17, 2025, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 77). Respondent denies that the flu vaccine petitioner caused her to suffer CIDP, any other injury or her current condition. Id. at ¶ 6. Nevertheless, maintaining their respective positions, the parties now agree that the issues between them settled and that a decision should be entered awarding petitioner compensation in accordance with the stipulation attached hereto as Appendix A. Id. at ¶ 7. 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 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-1 to -34 (2012) (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.  The stipulation provides: 1) A lump sum of $83,828.19, which amount represents compensation for the first year life care expenses ($8,828.19) and combined pain and suffering and past unreimbursable expenses ($75,000.00), to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner; 2) An amount sufficient to purchase the annuity contract described in paragraph 10 of the stipulation, paid to the life insurance company from which the annuity will be purchased. These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 13, 2025 * * * * * * * * * * * * * ANDREW MCRAE, * * Petitioner, * No. 21-196V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Leah v. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner. Austin J. Egan, Department of Justice, Washington, D.C., for respondent. DECISION ON STIPULATION1 On January 7, 2021, Andrew McRae (“petitioner”) filed a petition for compensation in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleges that as a result of the measles, mumps and rubella (“MMR”) vaccine on October 19, 2019, he suffered a left shoulder injury. Id. On March 13, 2025, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 54). Respondent denies that petitioner suffered from a left shoulder injury as a result of the MMR vaccine and that the MMR vaccine caused his injury or current condition. Id. at ¶ 6. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 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-1 to -34 (2012) (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. that a decision should be entered awarding the compensation according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶ 7. The stipulation provides: 1) A lump sum payment of $45,000.00 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. § 15(a). I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). 2

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