# Ferry v. Secretary of Health and Human Services

> United States Court of Federal Claims · March 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10735948

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 12, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

CORRECTED

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0407V

DEBORAH FERRY,
Chief Special Master Corcoran
Petitioner,
v. Filed: February 8, 2024

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.

Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On April 9, 2020, Deborah Ferry 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 (“SIRVA”) resulting from the adverse effects of an influenza vaccine she
received on October 5, 2015. Petition at 1. On February 24, 2023, I issued a decision
awarding compensation to Petitioner, following briefing and expedited Motions Day

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).
argument by the parties. ECF No. 39.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $54,364.55 (representing $51,772.10 in fees and $2,592.45 in costs). Petitioner’s
Application for Attorneys’ Fees and Costs, filed Sept. 6, 2023, ECF No. 46. In accordance
with General Order No. 9, Petitioner filed a signed statement indicating that she incurred
no out-of-pocket expenses. Id. at 2.

Respondent reacted to the motion on September 8, 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, 3 n.2, ECF No. 47.

On September 11, 2023, Petitioner filed a reply, criticizing Respondent’s lack of a
specific response to his motion and reiterating that she is entitled to an award of attorney’s
fees and costs. Petitioner’s Reply to Respondent’s Response to Petitioner’s Application
for Fee and Costs. ECF No. 48. Petitioner insists that “Petitioner’s counsel has accurately
recorded the time spent on this case and has filed receipts for documenting the litigation
expenses incurred.” Id. at 1.

Having considered the motion along with the invoices and other proof filed in
connection, I find several reductions in the amount of fees 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
2
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

A. Hourly Rates

The rates requested for work performed through the end of 2022 are reasonable
and consistent with our prior determinations, and will therefore be adopted. ECF No. 53-
1. Petitioner has also requested 2023 attorney hourly rates as follows: $463 for work
performed by Leah Durant - representing a rate increase of $22 and $358 for work
performed by Christopher Williams – representing a rate increase of $17. Id. at 11. I find
these hourly rates to be reasonable.

However, a few of the tasks performed by Ms. Durant are more properly billed
using a paralegal rate.3 “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 $224.70.4

3
These entries describing the preparation and filing of medical records as exhibits in this case, dated as
follows: 8/18/2020, 4/7/2022, and 8/22/2022. ECF No. 46-1 at 4, 9, 11.
4
This amount consists of ($395 - $160) x .5 hrs. + ($441 - $173) x .4 hrs. = $224.70.

3
B. Billed Hours

Regarding the number of hours billed, I deem the total amount of time devoted to
briefing damages to be excessive. See Status Report, filed May 13, 2022, ECF No. 28
(reporting an impasse in damages discussions); Petitioner’s Brief on Damages, filed Aug.
22, 2022, ECF No. 33; Petitioner’s Reply to Respondent’s Brief on Damages, filed Nov.
21, 2022, ECF No. 36; Hearing Minute Entry, dated June 1, 2023 (regarding the May 26,
2023 hearing). Petitioner’s counsel expended approximately 22.10 hours drafting the brief
and 19.0 hours drafting the reply brief, totaling 41.1.5 hours. ECF No. 46-1 at 10-12. In
addition, drafting of the damages briefs involved the work of two attorneys, billing between
$341 to $441 per hour, and thus suggesting some degree of unnecessary
overlap/inefficiency compounding the excessive cost associated with this task.

My above calculation does not include time spent communicating with Petitioner,
analyzing and preparing additional supporting damages documentation such as medical
records, diary entries, and affidavits or signed declarations, or preparing for or
participating in the Expedited Motions Day hearing, which is also being awarded in full.
See, e.g., ECF No. 46-1 at 7 (first entry dated 7/30/21).

It is unreasonable for counsel to spend so much time briefing the issue of damages
in this case, once the sum in question is calculated, and where the issues presented are
not complex. I have identified numerous cases (which may reasonably be compared to
time spent in this matter),6 in which attorneys have accomplished this task in about half
the time.7 See, e.g., Mulloy v. Sec’y of Health & Hum. Servs., No. 19-1396V (Nov. 6,
2023) (19.7 and 9.5 hours billed for drafting a damages brief and responsive damages
brief, respectively); Gao v. Sec’y of Health & Hum. Servs., No. 21-1884V (Oct. 25, 2023)
(16.5 and 9.4 hours billed for drafting a damages brief and responsive damages brief,
respectively); Knasel v. Sec’y of Health & Hum. Servs., No. 20-1366V (Oct. 25, 2023)
(11.5 and 13.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Langdon v. Sec’y of Health & Hum. Servs., No. 20-1311V (Oct. 25, 2023)
(12.5 and 12.8 hours billed for drafting a damages brief and responsive damages brief,

5
These totals are calculated as follows: 30.6 hours billed on 8/12/22, 8/15/22, 8/18/22, 8/19/22, 8/22/22,
10/18/22, 11/14/22, and 11/16/22 by Christopher Williams at a rate of $341 and 10.5 hours billed on 8/22/22,
10/14/22, and 11/21/22 by Leah Durant at a rate of $441.
6
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).
7
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 (last visited Feb. 7, 2024).

4
respectively); Mantagas v. Sec’y of Health & Hum. Servs., No. 20-1720V (Oct. 17, 2023)
(6.7 and 4.2 hours billed for drafting a damages brief and responsive damages brief,
respectively); Majerus v. Sec’y of Health & Hum. Servs., No. 20-1346V (Oct. 17, 2023)
(11.0 and 4.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Cosden v. Sec’y of Health & Hum. Servs., No. 20-1783 (Aug. 8, 2023) (6.3
hours billed for drafting a damages brief); Balch v. Sec’y of Health & Hum. Servs., No.
20-0872V (June 30, 2023) (18.7 hours billed for drafting a damages brief); Kestner v.
Sec’y of Health & Hum. Servs., No. 20-0025V (June 22, 2023) (6.00 and 4.10 hours billed
for drafting a damages brief and responsive damages brief, respectively); Juno v. Sec’y
of Health & Hum. Servs., No. 18-0643V (June 14, 2023) (5.8 hours billed for drafting a
damages brief); Deutsch v. Sec’y of Health & Hum. Servs., No. 18-0527V (June 12, 2023)
(7.4 and 4.4 hours billed for drafting a damages brief and responsive damages brief,
respectively); Edminister v. Sec’y of Health & Hum. Servs., No. 19-0184V (May 30, 2023)
(15.3 and 3.5 hours billed for drafting a damages brief and responsive damages brief,
respectively); Aponte v. Sec’y of Health & Hum. Servs., No. 20-1031V (May 18, 2023)
(6.9 hours billed for drafting a damages brief); Gray v. Sec’y of Health & Hum. Servs., No.
20-1708V (May 18, 2023) (5 hours billed for drafting a damages brief); Horky v. Sec’y of
Health & Hum. Servs., No. 20-0239V (May 18, 2023) (5.8 hours billed for drafting a
damages brief); Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V (May 18, 2023)
(9.5 and 2.5 hours billed for drafting a damages brief and responsive damages brief,
respectively); Rice-Hansen v. Sec’y of Health & Hum. Servs., No. 20-1338V (May 17,
2023) (12.9 and 6.1 hours billed for drafting a damages brief and responsive damages
brief, respectively).

The circumstances of this case did not warrant devoting so much time to damages
briefing. The parties agreed upon the amount of past expenses, and the only area of
dispute was the appropriate amount of compensation for Petitioner’s past pain and
suffering. See Ferry v. Sec’y of Health & Hum. Servs., No. 20-0407V, 2023 WL 2641498
(Fed. Cl. Spec. Mstr. Mar. 27, 2023). Furthermore, I was able to issue a basic damages
decision after hearing the parties’ arguments. Id.

However, the parties’ views differed by $60,000.00 - Petitioner sought
$145,000.00, and Respondent countered with $85,000.00, and the amount I ultimately
awarded was close to that proposed by Petitioner – supporting the need for damages
briefing. Id. Thus, although I still find the amount of time expended to be excessive, I will
reduce the hours billed by a lower amount than I otherwise would apply. See, e.g.,
Moreland v. Sec’y of Health & Hum. Servs., No. 18-1319V, 2023 WL 7104781 (Fed. Cl.
Spec. Mstr. Aug. 31, 2023).

5
Of course, having prevailed in this case, a fees award is generally appropriate.
See Ferry, 2023 WL 2641498, at *2. 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 damages
briefing (a total of 41.1 hours, or $15,065.10) by twenty percent. 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-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 $3,013.02.9

ATTORNEY COSTS

Petitioner requests $2,592.45 for attorney’s costs, and has provided supporting
documentation for all claimed attorney costs. ECF No. 46-2. Additionally, Respondent
offered no specific objection to the rates or amounts sought. Thus, I will award the amount
of attorney’s costs sought 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 $51,126.83 (representing $48,534.38 in fees
and $2,592.45 in costs) as a lump sum in the form of a check jointly payable to
Petitioner and Petitioner’s counsel, Leah VaSahnja Durant.

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

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: (30.6 x $341 x .20) + (10.5 x $441 x .20) = $3,013.02.
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.
6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10735948. Public record. Not legal advice.