Dalrymple v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 22-1684V

*************************

* BRENDA DALRYMPLE * as executor of * ESTATE OF JAMES DALRYMPLE, * Chief Special Master Corcoran

* Petitioner, * Filed: June 24, 2026

* v. *

* SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* ************************* Joseph A. Vuckovich, mctlaw, Washington, DC, for Petitioner.

James V. Lopez, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING IN PART AWARD OF ATTORNEY’S FEES AND COSTS 1

On November 15, 2022, James Dalrymple filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petition, dated Nov. 15, 2022 (ECF No. 1). Mr. Dalrymple alleged that he suffered from transverse myelitis as a result of his October 21, 2021, receipt of the influenza vaccine. Id. at 1, 7. After his death in February 2025, his widow, Brenda Dalrymple, appeared as the Petitioner. Mot. to Amend Caption, dated April 23, 2025 (ECF No. 36); Order Granting Mot. to Amend, dated Apr. 28, 2025 (ECF No. 38). The parties later resolved the claim, and a stipulation decision awarding compensation was filed thereafter. Decision Awarding Damages, filed on Sep. 3, 2026 (ECF No. 48).

Petitioner has now filed a motion for attorney’s fees and costs accrued while litigating this claim. Motion for Attorneys’ Fees and Costs, dated May 15, 2026 (ECF No. 52) (“Mot.”). Petitioner requests a total of $179,548.55 (comprised of $166,997.90 in fees, and $12,550.65 in costs) for the work performed on the matter. Id. at 1. This is Petitioner’s sole fee request.

Respondent reacted to Petitioner’s fee request, deferring to my discretion whether Petitioner has met the legal and statutory requirements for a fees and costs award, as well as the calculation of the amount to be awarded. See Response, dated May 18, 2026 (ECF No. 53). Petitioner filed her Reply reiterating her position. See Reply, dated May 19, 2026 (ECF No. 54).

For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion, awarding fees and costs in the total amount of $179,382.08.

ANALYSIS

I. Calculation of Fees

Because the claim was resolved in Petitioner’s favor, she is entitled to a fees and costs award—although only “reasonable” fees or costs may be awarded in the Program. Only “reasonable” fees or costs may be awarded in the Program. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method— “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensely, 461 U.S. at 429–37.

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis” exception). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

The Fees Invoice requests the following rates for her various attorneys, based on the years work was performed:

2022 2023 2024 2025 2026 Joseph Vuckovich n/a $415.00 $445.00 $490.00 $535.00 Alison Haskins $460.00 $492.00 n/a n/a n/a Danielle Strait n/a n/a $480.00 n/a n/a Altom Maglio $460.00 n/a n/a n/a n/a Paralegals $170.00 $180.00 $190.00 $205.00 $225.00 Lindsay $160.00 $170.00 n/a n/a n/a Wilkinson (Medical Records Paralegal)

Fees Invoice, filed May 15, 2026 (ECF No. 52-2) at 67.

Mr. Vuckovich practices in Washington, DC—a jurisdiction that has been deemed “in forum,” and thus entitling him and his associated attorneys to commensurate rates established in McCulloch. See Zacharski v. Sec'y of Health & Hum. Servs., No. 21-317V, 2026 WL 963561, at *3 (Fed. Cl. Spec. Mstr. Mar. 10, 2026). The hourly rates requested for the attorneys and their paralegals for time billed are also consistent with what has previously been awarded for the work of these attorneys, in accordance with the Office of Special Masters’ fee schedule. 3 See Gornowicz v. Sec'y of Health & Hum. Servs., No. 17-2053V, 2026 WL 988604, at *2 (Fed. Cl. Mar. 16, 2026); Tani v. Sec'y of Health & Hum. Servs., No. 22-1305V, 2026 WL 312389, at *1 (Fed. Cl. Spec. Mstr. Jan. 5, 2026); Steward v. Sec’y of Health & Hum. Servs., No. 22-289V, slip op. at 2 (Fed. Cl. Spec. Mstr. Feb. 1, 2024). There is thus no basis for reducing them in this instance. And I find the time devoted to the work reasonable as well.

II. Calculation of Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as by not providing appropriate documentation to explain the basis for a particular cost, special masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioner seeks $12,550.65 in outstanding costs, including the filing fee, medical record retrieval costs, mailing costs, and life care planning services. Cost Invoice, filed May 15, 2026, (ECF No. 52-3) (“Cost Invoice”). Documentation was provided for the Court’s filing fee, most medical records requests, most mailing expenses, and life care planning services. I discuss all costs reductions below.

A. Petitioner’s General Litigation Costs Documentation was provided for the Court’s filing fee, medical records requests, copying expenses, and some mailing expenses. I find the documented costs reasonable and shall award them in full. There are, however, some missing receipts for claimed costs, including DocuSign Correspondence, one payment to Novant Health for medical records, the execution of SSDI and BCBS authorization forms, postage regarding disbursement for life care planning services, and a UPS charge. Cost Invoice at 1, 2. I deny reimbursement of these undocumented costs, which results in a reduction of $85.02. 4

Petitioner’s counsel also requested reimbursement for medical journals, a law firm overhead expense. Cost Invoice at 56, 58. Costs associated with purchasing journals are not compensable in the Program. Rodriguez v. Sec’y of Health & Hum. Servs., No. 06-559V, 2009 WL 2568468, at *23 (Fed. Cl. July 27, 2009) (finding that a National Law Journal Subscription was an overhead expense and not compensable). I deny the costs of the medical journals, which results in a reduction of $81.45. 5

CONCLUSION

Based on the foregoing, and in the exercise of the discretion afforded to me in determining the propriety of a final fees award, I GRANT IN PART Petitioner’s Motion for Attorney’s Fees and Costs, and award a total of $179,382.08 (comprised of $166,997.90 in fees and $12,348.18 in costs) to be paid through an ACH deposit to Petitioners’ counsel’s IOLTA account for prompt disbursement.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision. 6

IT IS SO ORDERED.

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