Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-569V

Sonya F. Smith, as Administrator of the Estate of KATHY FRYE, Chief Special Master Corcoran

Petitioner, Filed: April 13, 2026 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Chellis Garcia, Maglio Christopher & Toale, PA, Washington, for Petitioner.

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

DECISION ON ATTORNEY’S FEES AND COSTS 1 On May 24, 2022, Kathy Frye 2 filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 3 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccination she received on October 2, 2019. Petition at 1. On October 9, 2025, I issued a ruling on entitlement finding Petitioner 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.

Ms. Frye died of an unrelated cause on April 2, 2025, and Sonya F. Smith, Administrator of the Estate of Kathy Frye, was substituted as Petitioner in this claim. ECF No. 36.

3 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). entitled to compensation, following briefing and expediting Motions Day arguments by the parties. ECF No. 39. On November 7, 2025, I issued a decision awarding damages to Petitioner based on the Respondent’s proffer. ECF No. 43.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $54,696.70 (representing $54,104.00 in fees plus $592.70 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed December 16, 2025, ECF No. 49.

Furthermore, Petitioner filed a signed statement representing that no personal out of pocket expenses were incurred. ECF No. 49-4.

Respondent reacted to the motion on December 18, 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. 50. On December 22, 2025, Petitioner filed a reply requesting that the amount of fees and costs listed in Petitioner’s motion be awarded. ECF No. 51.

Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason 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 by attorneys Altom Maglio, Catherine Costigan, Danielle Strait, Diana Stadelnikas, and Elizabeth Abramson through 2025 are reasonable and consistent with our prior determinations and will therefore be awarded herein. Petitioner requests the rate of $565.00 for work performed in 2025 by attorney Chellis Garcia. This rate is reasonable, and it is hereby awarded herein.

Regarding the number of hours billed, I deem the total amount of time devoted to briefing on entitlement to be excessive – although not egregiously so. See Petitioner’s Motion for Findings of Fact, filed Nov. 2, 2023, ECF No. 24; Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for Findings of Fact, filed Jan. 2, 2024, ECF No. 28. Petitioner’s counsel expended approximately 18.5 hours drafting the damages brief, 8.4 hours drafting the responsive brief, totaling 26.9 4 hours. ECF No. 49- at 15-17.

It is unreasonable for counsel to spend so much time briefing the issue of entitlement in this case. I have identified numerous cases (which may reasonably be compared to time spent in this matter), 5 in which attorneys have accomplished this task in about half the time. 6 See, e.g., Fletcher v. Sec’y of Health & Hum. Servs., No. 20-0127V

4 This total is calculated as follows: 25.3 hours billed on 9/8/2023, 9/10/2023 (2 entries), 10/25/2023, 10/26/2023 (2 entries), 10/27/2023 (2 entries), 10/30/2023 (2 entries), 10/31/2023, 11/2/2023 (4 entries), 12/18/2023, 12/20/2023 (2 entries), 12/21/2023, 12/29/2023 at a rate of $370.00 by attorney Catherine Costigan, and 1.6 hours billed on 1/2/2024 at a rate of $395.00 by attorney Catherine Costigan. ECF No. 49-2 at 15-17.

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).

These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (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).

Of course, having prevailed in this case, a fees award is generally appropriate (ECF No. 43). 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 briefing (a total of 26.9 hours, or $9,993.00) by ten percent. 7 Such an across-the-board reduction (which I am empowered to adopt) 8 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shade 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 $999.30. 9

7 Because the amount of excessive hours was not as egregious as in other cases, I will reduce the hours billed by a lower amount than I otherwise would apply. See, e.g., Havis v. Sec’y of Health & Hum. Servs., No. 21-0583V, 2025 WL 2538903 (Fed. Cl. Spec. Mstr. July 31, 2025) (applying a 30 percent reduction).

8 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).

9 This amount is calculated as follows: $9,993.00 x .10 = $999.30.

ATTORNEY COSTS Petitioner has otherwise provided supporting documentation for all claimed costs.

ECF No. 49-3 at 1-30. 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, in part, Petitioner’s Motion for attorney’s fees and costs. I award a total of $53,697.40 (representing $53,104.70 in fees plus $592.70 in 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 motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 10 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

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