United States Court of Federal Claims, 2025

Defosses v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided October 1, 2025 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0265V

DEBORAH DEFOSSES, Chief Special Master Corcoran Petitioner, Filed: August 29, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1 On March 9, 2022, Deborah Defosses 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 left shoulder injury related to vaccine administration (“SIRVA”) following her receipt of a tetanus-diphtheria-acellular pertussis vaccine on March 12, 2019. Petition. ECF No. 1; see also Amended Petition filed June 9, 2022, ECF No. 6 (adding citations to the evidence). On April 16, 2025, I issued a decision awarding damages based upon Respondent’s proffer. ECF No. 46.

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 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).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $53,115.12 (representing $51,914.25 for fees and $1,200.87 for costs). Petitioner’s Application for Fees and Costs filed Apr. 16, 2025, ECF No. 50. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. Id. at 47.

Respondent reacted to the motion on April 17, 2025, representing 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. 51. Petitioner has filed no reply.

Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees and costs to be awarded appropriate, for the reasons set forth below.

ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.

Servs., 102 Fed. Cl. 719, 729 (2011).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.

Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.

ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. Petitioner has requested an hourly rate of $475.00 for the work attorney David Carney performed in 2025, representing an increase of $25.00. ECF No. 50 at 27-29. Based on Mr. Carney’s experience, I find his proposed rate to be reasonable and within the appropriate range based on the OSM Attorney’s Fee Schedule.3 However, a few of the tasks performed by Mr. Carney are more properly billed using a paralegal rate.4 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum.

Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $513.33.5 Regarding the number of hours billed, I deem the total amount of time devoted to briefing damages to be excessive – although not egregiously so. See Petitioner’s Motion for Ruling on the Record and Brief in Support of Damages (“Brief”), filed Jan. 16, 2024, ECF No. 31; Petitioner’s Reply in Support of Motion, filed Mar. 14, 2024, ECF No. 34.

Petitioner’s counsel expended approximately 21.2 hours drafting the entitlement brief and 16.6 hour drafting the reply brief, for a total of 37.8 hours.6 The 2025 Attorney’s Forum Hourly Rate Fee Schedule is available on the U.S. Court of Federal Claim’s website: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules.

4 Entries considered paralegal in nature include drafting requests for medical records, following up on medical records requests, bate stamping documents, drafting basic documents such as an exhibit list, PAR Questionnaire, notice of filing exhibit list, statements of completion, cover sheet, joint notices not to seek review. See billing entries dated: 6/8/2022, 6/9/2022, 1/16/2024, 3/14/2024, 10/28/2024 (two entries), 4/9/2025. ECF No. 50 at 14-30. 5 This amount is calculated as follows: ($400 - $177) x .70 hrs. + ($450.00 - $197.00) x 1.1 hrs. + ($475.00 - $212.00) x .3 hr. = $513.33. 6 This total is calculated as follows: 26.9 hours billed on 1/3/24 (two entries), 1/5/24, 1/6/24, 1/8/24, 1/9/24, 1/10/24, 1/14/24, 1/15/24, 1/16/24, 2/29/24, 3/1/24, 3/13/24, and 3/14/24, by David J. Carney, at a rate of My above calculation does not include time spent performing research and preparing the initial demand which would have informed this later work, and I am therefore awarding fees associated with that task in full. ECF No. 50 at 19-20. Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., id. at 24 (entries dated 3/7/24 and 3/8/24).

It is unreasonable for counsel to spend so much time briefing entitlement – specifically situs, where the issue presented is not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter), 7 in which attorneys have accomplished this task in about half the time.8 $450; and 10.9 hours billed on 3/6/24, 3/8/24, 3/9/24, and 3/12/24 (two entries), by Evan R. Baker, as a law clerk, at a rate of $157.50. ECF No. 50 at 22-25.

7 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 8 See, e.g., Proctor v. Sec’y of Health & Hum. Servs., No. 20-1236V (June 20, 2025) (14.0 and 7.9 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); White v. Sec’y of Health & Hum. Servs., No. 19-1886V (June 20, 2025) (11.0 and 7.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Ritter v. Sec’y of Health & Hum. Servs., No. 20-2013V (Jan. 31, 2025) (11.1 and 3.3 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Portock v. Sec’y of Health & Hum. Servs., No. 21-1653V (Jan. 17, 2025) (15.7 and 6.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Mullur v. Sec’y of Health & Hum. Servs., No. 21-0842V (Jan. 10, 2025) (10.9 and 9.1 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Fletcher v. Sec’y of Health & Hum. Servs., No. 20- 0127V (Apr. 25, 2024) (12.7 and 9.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Lamine v. Sec’y of Health & Hum. Servs., No. 20-1560V (Mar. 27, 2024) (8.9 and 7.2 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Davenport v. Sec’y of Health & Hum. Servs., No. 20-0206V (Mar. 25, 2024) (16.5 and 2.6 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Graczyk v. Sec’y of Health & Hum.

Servs., No. 21-0376V (Feb. 9, 2024) (5.8 and 8.3 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Sisneros v. Sec’y of Health & Hum. Servs., No. 20-2070V (Feb.

8, 2024) (0.8 and 10.5 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Strand v. Sec’y of Health & Hum. Servs., No. 20-0365V (Feb. 5, 2024) (7.9 and 7.2 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Griswold v. Sec’y of Health & Hum. Servs., No. 19-1674V (May 30, 2024) (5.0 and 2.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); McCallum v. Sec’y of Health & Hum. Servs., No. 19- 1991V (May 19, 2023) (8 hours billed for drafting an entitlement brief); Weso v. Sec’y of Health & Hum.

Servs., No. 19-0596V (May 16, 2024) (6.0 and 1.1 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively). These decisions can (or will) be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Aug. 28, 2025).

Of course, having prevailed in this case, a fees award is generally appropriate.

Defosses v. Sec’y of Health & Hum. Servs., No. 22-0265V, 2025 WL 747636 (Fed. Cl. Spec. Mstr.) But the Act permits only an award of a reasonable amount of attorney’s fees.

And the only issue being contested was situs. Id. at *5-6. Thus, the circumstances of this case did not warrant devoting so much time to briefing.

Of course, having prevailed in this case, a fees award is generally appropriate.

ECF No. 39. But the Act permits only an award of a reasonable amount of attorney’s fees.

Accordingly, I will reduce the sum to be awarded for entitlement damages briefing (a total of 37.8 hours, or $13,821.75) but only by twenty percent.9 Such an across-the-board reduction (which I am empowered to adopt)10 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a reduction of $2,764.35.11 ATTORNEY COSTS Petitioner has otherwise provided supporting documentation for all claimed costs.

ECF No. 50 at 32-47. And Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full.

CONCLUSION 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 $49,837.44 (representing $48,636.57 for fees and $1,200.87 for costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed

9 Because the amount of excessive hours was not as egregious as in previous cases, I will reduce the hours billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs., No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023). 10 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). 11 This amount is calculated as follows: (26.9 hrs. x $450.00 + 10.9 hrs. x $157.50) x .20) = $2,764.35.

motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.12 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

12 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.