Mulloy v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1396V
MICHELE MULLOY,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 6, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On September 12, 2019, Michele Mulloy 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 resulting from adverse effects of an influenza vaccine she received on
October 31, 2018. Petition at 1. On February 21, 2023, I issued a decision awarding
damages to Petitioner, following briefing by the parties. ECF No. 54.
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 $61,866.66 (representing $60,125.90 for fees and $1,740.76 for costs). Petitioner’s
Application for Attorneys’ Fees and Costs filed Aug. 25, 2023, ECF No. 61. In accordance
with General Order No. 9, Petitioner represents that she incurred $412.28 in out-of-pocket
expenses. Id. at 2.
Respondent reacted to the motion on Aug. 29, 2023, 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. 62. On Aug. 30, 2023, Petitioner filed a reply
requesting attorney’s fees and costs be awarded in full. ECF No. 63.
I note this case required additional briefing regarding the issue of damages. See
Status Report, filed Mar. 28, 2022, ECF No. 41 (reporting an impasse in damages
discussions); Petitioner’s Brief on Damages, filed Jul. 1, 2022, ECF No. 46; Petitioner’s
Reply Brief, filed Aug. 19, 2022, ECF No. 50. Petitioner’s counsel expended
approximately 19.70 hours drafting the brief in support of damages; and 9.50 hours
drafting the reply brief, totaling 29.20 hours. ECF No. 61-1 at 11-13. I find this amount of
time to be reasonable and I will award the attorney’s fees requested. (And all time billed
to the matter was also reasonably incurred). Lastly, Petitioner has provided supporting
documentation for all claimed costs. ECF No. 61-2. And Respondent offered no specific
objection to the rates or amounts sought.
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 the total amount of $62,278.94 3 as
follows:
• A lump sum of $61,866.66, representing reimbursement for fees and
costs, in the form of a check payable jointly to Petitioner and
Petitioner’s counsel Leah V. Durant and;
• A lump sum of $412.28, representing reimbursement for Petitioner’s
costs, in the form of a check payable to Petitioner.
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as f ees f or legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
2
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. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
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.
3