Fisher v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 22-0195V

KARI LYNN FISHER,

Chief Special Master Corcoran Petitioner, Filed: July 13, 2026 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jonathan Joseph Svitak, Shannon Law Group. PC, Woodridge, IL, for Petitioner. Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On February 22, 2022, Kari Lynn Fisher 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 Table injury – shoulder injury related to vaccine administration as the result of an influenza vaccine received on December 23, 2020. Petition at 1, ¶¶ 3, 23. 3. On February 3, 2026, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 38.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $46,639.59 (representing $45,649.70 in fees plus $989.89 in costs). Motion for Attorneys’ Fees and Costs (“Motion”) filed February 19, 2026, ECF No. 42. Furthermore, counsel for Petitioner represents that Petitioner incurred no personal out-of-pocket expenses. Id. at 3.

Respondent reacted to the motion on February 20, 2026, stating that he is satisfied the statutory requirements for an award of fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Response at 2-4, ECF No. 43. Petitioner filed no reply thereafter.

I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees to be awarded appropriate, as explained below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. 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 & Human 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 & Human 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 & Human 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 & Human 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 & Human 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

I have reviewed the billing records submitted with Petitioner’s request. The rates requested for work performed through 2026 are reasonable and consistent with prior determinations and will therefore be adopted.

Most of the time billed to the matter was also reasonably-incurred. However, attorney Kimberly McCarter billed 7.0 hours in this matter at her regular rate of $475.00 for work more properly categorized as paralegal tasks. 4 Although the work performed was reasonable, it must be billed at non-attorney rates due to the nature of the task performed. It is well established in the Program that “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).

Accordingly, I hereby reduce attorney McCarter’s hourly rate to that of a paralegal’s rate for the 7.0 hours she billed on such tasks more properly categorized as paralegal work. Application of the foregoing reduces the amount of fees to be awarded by $2,086.00. 5 4 Entries consideredparalegal in nature include updating exhibits, drafting cover sheets, statement of completion, PAR Questionnaire, finalize and service of Petitioner and affidavits. See billing entries dated: 02/02/2022; 02/05/2022; 02/19/2022; 02/22/2022; 02/24/2022; and 02/26/2022. ECF No. 42-2 at 10-11. 5 This amount is calculated as follows: $475.00 - $177 = $298 x 7 = $2,086.00.

ATTORNEY COSTS

Petitioner has otherwise provided supporting documentation for all other claimed costs. ECF No. 42-4. 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. Petitioner is awarded attorneys’ fees and costs in the total amount of $44,553.29 (representing $43,563.70 in fees plus $989.59 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. 6 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master