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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-908V
PATRICIA MERRILL,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 27, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On February 10, 2021, Patricia Merrill 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 as a result of an influenza vaccine she received on December 2, 2020.
Petition, ECF No. 1. On May 26, 2023, I issued a decision awarding compensation to
Petitioner based on the Respondent’s proffer. ECF No. 36.
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 $9,212.75 (representing $8,784.20 in attorney’s fees and $428.55 in attorney’s costs).
Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Aug. 23, 2023, ECF
No. 41. 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 Aug. 24, 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, ECF No. 42. By electronic correspondence on Aug. 28, 2023,
counsel for Petitioner indicated that she does not intend to file a reply. See Informal
Remark, dated Aug. 28, 2023.
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. Motion at 11-12. 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. I award a total of $9,212.75 (representing $8,784.20 in
attorney’s fees and $428.55 in attorney’s costs) as a lump sum in the form of a
check jointly payable to Petitioner and Petitioner’s counsel, Leigh A. Finfer. 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 f iling a joint notice
renouncing their right to seek review.
2