# Barry v. Secretary of Health and Human Services

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

URL: https://www.frixlaw.com/law-library/cases/10735955

## 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- **Precedential status:** Unpublished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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1874V

BRIA BARRY,
Chief Special Master Corcoran
Petitioner,
v. Filed: February 9, 2024

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On December 16, 2020, Bria Barry filed a petition2 for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) resulting from the administration of an influenza (flu) vaccine on
October 26, 2018. Amended Petition at 1. On June 23, 2023, I issued a decision awarding

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
Petitioner filed an amended petition on February 23, 2021. ECF No. 12.

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).
damages to Petitioner, following briefing by the parties and expedited Motions Day
argument by the parties. ECF No. 39.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $39,327.35 (representing $37,496.30 for fees and $1,831.05 for costs). Petitioner’s
Application for Attorneys’ Fees and Costs, filed Nov. 15, 2023, ECF No. 46. In accordance
with General Order No. 9, Petitioner filed a signed statement indicating that he incurred
no out-of-pocket expenses. ECF No. 47.

Respondent reacted to the motion on December 4, 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. 48. Petitioner has filed no reply
but provided a missing receipt on February 8, 2024. ECF No. 49.

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.
2
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 2023 are reasonable
and consistent with our prior determinations, and will therefore be adopted. ECF No. 46
at 4-24. Regarding the number of hours billed, however, I deem the total amount of time
devoted to briefing damages to be excessive. See Status Report, filed Sept. 14, 2022,
ECF No. 30 (reporting an impasse in damages discussions); Petitioner’s Memorandum
in Support of Damages, filed Oct. 14, 2022, ECF No. 31; Petitioner’s Reply to
Respondent’s November 17, 2022 Brief on Damages, filed Jan. 12, 2023, ECF No. 34;
Hearing Minute Entry, dated May 30, 2023 (regarding the May 26, 2023 hearing).
Petitioner’s counsel expended approximately 27.3 hours drafting the brief in support of
damages; and 6.0 hours drafting the reply brief, totaling 33.34 hours. ECF No. 46 at 9. 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 preparing the initial demand
which would have informed this later work – 6.3 hours – and I am therefore awarding fees
associated with that task in full.5 Nor am I counting time spent communicating with
Petitioner and preparing additional supporting documentation such as 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 at 19 (12/2/22 entry).

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

4
This total is calculated as follows: 25.2 hours billed on 9/29/22, 9/20/22, 10/6/22, 10/11/22 (two entries),
10/12/22, 10/13/22, and 10/14/22 by Nathaniel Enos at a rate of $280; 5.5 hours billed on 1/11/23 and
1/12/23 by Nathaniel Enos at a rate of $320; 2.1 hours billed on 10/14/22 by Joseph Pepper at a rate of
$415; and 0.5 hours billed on 1/12/23 by Christina Ciampolillo at a rate of $470.
5
This time was billed by Nathaniel Enos, using an hourly rate of $280 and Patrick Kelly, using an hourly
rate of $250, and results in $1,752.00 in attorney’s fees. ECF No. 46 at 17-18.

3
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,
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).

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
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 Barry v. Sec’y of Health & Hum. Servs., No. 20-1874V, 2023 WL 4742421
(Fed. Cl. Spec. Mstr. June 23, 2023). And the parties’ views differed by only $37,500.00
- Petitioner sought $125,000.00, and Respondent countered with $87,500.00. Id. at *4.
However, the amount I ultimately awarded was closer to that proposed by Petitioner –
supporting the need for damages briefing, and the hours billed were not as excessive as
in other cases. Id. at *6; see, e.g., Moreland v. Sec’y of Health & Hum. Servs., No. 18-
1319V, 2023 WL 7104781 (Fed. Cl. Spec. Mstr. Aug. 31, 2023). Thus, I will reduce the
hours billed by a lower amount than I otherwise would apply.

Of course, having prevailed in this case, a fees award is generally appropriate.
See Barry, 2023 WL 4742421, at *6. 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 33.3 hours, or $9,922.50) 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 $1,984.50.9

ATTORNEY COSTS

Petitioner has provided supporting documentation for all claimed attorney costs,
except for $18.56 paid for postage and $0.10 for 1 page of in-house copying costs which
I nevertheless will allow. ECF No. 46 at 23-51; ECF No. 49 at 4-5. And Respondent
offered no specific objection to the rates or amounts sought. Therefore, I will award the
amount of attorney’s costs sought in full.

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: (25.2 hrs. x $280 x .20) + (5.5 hrs. x $320 x .20) + (2.1 hrs. x $415
x .20) + (0.5 hrs. x $470 x .20) = $1,984.50.

5
CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). I award a total of $37,342.85 (representing
$35,511.80 for fees and $1,831.05 for costs) as a lump sum in the form of a check
jointly payable to Petitioner and Petitioner’s counsel, Ronald Craig Homer. 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.
6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10735955. Public record. Not legal advice.