Hertzog v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1339V
(not to be published)
PATRICIA HERTZOG,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 15, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Lara A. Englund, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 7, 2020, Patricia Hertzog 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 left shoulder injuries related to vaccine
administration as a result of an influenza vaccine received on September 24, 2018.
(Petition at 1). On February 7, 2022, a decision was issued awarding compensation to
Petitioner based on the Respondent’s proffer. (ECF No. 29).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated June 20,
2022 (ECF No. 35), requesting a total award of $14,008.07 (representing $12,993.50 in
fees and $1,014.57 in costs). In accordance with General Order No. 9, counsel for
Petitioner represents that Petitioner incurred no out-of-pocket expenses. (Id. at 2).
Respondent reacted to the motion on June 20, 2022, indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case,
but deferring resolution of the amount to be awarded at the Court’s discretion. (ECF No.
36). By email correspondence on June 21, 2022, counsel for Petitioner informed the staff
attorney’s office that Petitioner did not intent to file a reply. See Informal Remark, June
21, 2022.
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.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $14,008.07 (representing $12,993.50 in fees and $1,014.57 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk 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