Terry v. Secretary of Health and Human Services ( 2024 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1998V
KATHY TERRY,
Chief Special Master Corcoran
Petitioner,
v. Filed: September 30, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On December 28, 2020, Kathy Terry 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”) following an influenza vaccine she received on October 12,
2020. Petition at 1. On April 8, 2024, I issued a decision awarding damages to Petitioner,
based on Respondent’s proffer. ECF No. 39.
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $25,937.07 (representing $24,963.50 for fees and $973.57 for costs). Petitioner’s
1Because 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).
Application for Attorneys’ Fees, filed June 12, 2024, ECF No. 44. 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 July 16, 2024, 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 to my discretion. Respondent’s
Response to Motion at 2-3, 3 n.2, ECF No. 45. Petitioner has not filed a reply.
The rates requested for work performed through the end of 2024 are reasonable
and consistent with our prior determinations, and will therefore be adopted. I also note
this case required additional briefing regarding the issue of entitlement, specifically situs,
pain onset, and severity. See Petitioner’s Response to Respondent’s Motion to Dismiss,
filed Feb. 13, 2023, ECF No. 31. Petitioner’s counsel expended approximately 16.7 hours
drafting the motion. ECF No. 44 at 1. Recognizing that Petitioner was required to address
three separate factual issues, I find this time to have been reasonably incurred. (And all
time billed to the matter was also reasonably incurred.)
Furthermore, Petitioner has provided supporting documentation for all claimed
costs, ECF No. 44 at 16-27. And Respondent offered no specific objection to the rates or
amounts sought. I have reviewed the requested costs and find them to be reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). I award a total of $25,937.07 (representing
$24,963.50 for fees and $973.57 for costs) as a lump sum in the form of a check
jointly payable to Petitioner and Petitioner’s counsel, Paul R. Brazil. 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