Berry v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-511V
(not to be published)
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KATHERINE BERRY, *
* Special Master Corcoran
*
Petitioner, * Filed: March 22, 2019
*
v. *
* Final Attorney’s Fees and Costs Award;
SECRETARY OF HEALTH * Flumist Influenza Vaccine;
AND HUMAN SERVICES, * Parsonage-Turner Syndrome.
*
Respondent. *
*
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Anne C. Toale, Maglio, Christopher, & Toale, Sarasota, FL, for Petitioner.
Sarah C. Duncan, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEY’S FEES AND COSTS1
On April 12, 2017, Katherine Berry filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that she
suffered from Parsonage-Turner Syndrome as a result of her receipt of the Flumist influenza
vaccine on November 24, 2015. The parties were able to settle the matter, filing a stipulation in
January of this year that I so-ordered via Decision dated January 23, 2019. ECF No. 36.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request 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). Otherwise, the whole Decision in its present form will be
available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Petitioner has now filed a motion seeking a final award of attorney’s fees and costs. Motion,
dated Jan. 30, 2019 (ECF No. 40) (“Fees Mot.”). In it, she requests a total award of $34,205.98,
reflecting attorney’s and legal assistant fees in the total amount of $32,207.40, plus $1,998.58 in
litigation costs. Fees Mot. at 1-2; Ex. 16 (ECF No. 40-1) at 29; Ex. 17 (ECF No. 40-2) at 1-2.
Petitioner also filed a statement in compliance with General Order No. 9 representing that she did
not incur any individual costs associated with the claim’s prosecution. Ex. 18 (ECF No. 40-3) at
1. Respondent reacted to the final fees motion on February 8, 2019, noting that a fees award was
statutorily appropriate and otherwise deferring the calculation of a reasonable award to my
discretion. Response, dated Feb. 8, 2019 (ECF No. 41) at 2-3.
Prevailing petitioners are entitled to a reasonable award of attorney’s fees and costs.
Section 15(e). The law governing the calculation of such an award is well-established. Avera v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008).
Here, I find that Petitioner should receive the full sum requested. First, the rates requested
for the Maglio Firm attorneys representing her (which are deemed “in forum”) are consistent both
with the Office of Special Masters’s Forum Rate Schedule as well as what the same lawyers have
received in other cases. See Office of Special Masters Hourly Rate Fee Schedules,
https://www.uscfc.uscourts.gov/node/2914 (last accessed on March 18, 2019); see, e.g., Galinato
v. Sec'y of Health & Human Servs., No. 15-928V, 2017 WL 2461373, at *1 (Fed. Cl. Spec. Mstr.
Apr. 17, 2017) (citing Foster v. Sec'y of Health & Human Servs., No. 14-309V, 2016 WL 7233943
(Fed. Cl. Spec. Mstr. Nov. 15, 2016)); Dearing v. Sec'y of Health & Human Servs., No. 14-289V,
2016 WL 7451349 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)). And the total time billed to the matter
was reasonably incurred. Second, the costs requested (which includes the filing fee, copying
expenses, and other litigation support costs) are also reasonable.
I therefore approve a final award of fees and costs, in the total amount of $34,205.98, in
the form of a check payable jointly to Petitioner and Petitioner’s counsel, Anne C. Toale, Esq. In
the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is
directed to enter judgment herewith.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2