The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1844V
FAYTH BRENNAN,
Chief Special Master Corcoran
Petitioner,
v. Filed: January 29, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Rhonda Lorenz-Pignato, Shannon Law Group, P.C., Woodbridge, IL, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On December 14, 2020, Fayth Brennan 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 that she suffered a shoulder injury related to
vaccine administration (“SIRVA”) resulting from a tetanus diphtheria vaccine received on
November 7, 2019. Petition at 1. I issued a ruling finding Petitioner entitled to
compensation on September 13, 2023 (ECF No. 36), and 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
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).
compensation to Petitioner on October 28, 2024 (ECF No. 50), following briefing by the
parties.
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $95,018.60 (representing $94,314.00 for fees and $704.60 for costs). Petitioner’s
Motion for Fees and Costs filed Dec. 19, 2024, ECF No. 58. In accordance with General
Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-
pocket expenses. ECF No. 57.
Respondent reacted to the motion on January 2, 2025, 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. 59. The same day, Petitioner
filed a reply noting that “Respondent made no specific objection to Petitioner’s motion.”
ECF No. 60.
Having considered the motion along with the invoices and other proof filed in
connection, I find 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
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.
Servs., 102 Fed. Cl. 719, 729 (2011).
2
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 through the end of 2024 are reasonable
and consistent with our prior determinations, and will therefore be adopted. However, a
few of the tasks performed by Ms. Lorenz-Pignato 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 $794.70.4
Regarding the number of hours billed, Ms. Lorenz-Pignato has billed 0.3 hours
spent researching vaccine laws in the State of Minnesota. ECF No. 58-2 at 36 (two entries
dated 8/12/20). Under the Vaccine Program, reasonable attorneys’ fees and costs are
limited to those “incurred in any proceeding on [a] petition.” Section 15(e)(1); see also
Krause v. Sec’y of Health & Hum. Servs., No. 01-93V, 2012 WL 4477431, at *6 (Fed. Cl.
Spec. Mstr. June 20, 2012). “[R]esearch conducted to explore petitioner's civil remedies
. . . are not tasks related to the proceedings on this vaccine claim,” and thus, should not
be compensated. Krause, 2012 WL 4477431, at *6. This reduces the amount of fees
to be awarded by $124.50.5
3 These entries, drafting basic documents such as an exhibit list, notice of filings, statement of completion,
joint notice not to seek review, and election to accept judgment are dated as follows: 7/7/20, 7/8/20 (three
entries), 8/31/209/2/20, 9/14/20 (two entries), 9/15/20 (three entries),9/14/20 (two entries), 8/16/21, 3/7/24
(three entries), and 10/31/24. ECF No. 58-2 at 3-4, 25, 30-35, 37.
4 This amount consists of ($415 - $168) x 2.5 hrs. + ($440 - $172) x 0.2 hrs.+ ($506 - $197) x 0.4 hrs. =
$794.70.
5 This amount consists of $415 x 0.3 hrs. = $124.50.
3
Moreover, I deem the total amount of time devoted to briefing entitlement and
damages, even though separately addressed, to be excessive. See Petitioner’s Motion
for Ruling on the Record Regarding Entitlement and Damages, filed June 21, 2023, ECF
No. 42; Petitioner’s Reply to Response to Petitioner’s Motion for Ruling on the Record,
filed Aug. 1, 2022, ECF No. 33; Petitioner’s Reply in Support of the Motion for Ruling on
the Record, filed Sept. 14, 2022, ECF No. 35; Petitioner’s Brief Regarding Damages, filed
Jan. 17, 2024, ECF No. 45; Petitioner’s Reply to Respondent’s Damages Brief, filed Mar.
7, 2024, ECF No. 49. Petitioner’s counsel expended approximately 29.0 hours drafting
the motion related to entitlement, 12.9 hours drafting the reply related to entitlement, 17.3
hours drafting the damages brief, and 3.7 hours drafting the reply damages brief, for a
combined total of 62.96 hours (41.9 hours related to entitlement and 21 hours related to
damages). ECF No. 58-2 at 3-7, 13-15, 17-18. My above calculation does not include
time spent communicating with Petitioner and preparing additional supporting
documentation such as affidavits or signed declarations, which is also being awarded in
full. See, e.g., ECF No. 58-2 at 5 (entry dated 3/4/24).
It is unreasonable for counsel to spend so much time briefing, even the matter of
both entitlement and damages addressed separately in this case. I have identified
numerous cases (which may reasonably be compared to time spent in this matter), 7 in
which attorneys have accomplished this task in about half the time. 8
6 This total is calculated as follows: 41.9 hours billed on 4/20/22, 4/26/22, 7/25/22 (two entries), 7/26/22,
7/27/22, 7/29/22, 8/1/22, 9/8/22 (three entries), 9/13/22, 9/14/22 ( two entries) , by Rhonda Lorenz-Pignato
at a rate of $454; 3.5 hours billed on 12/28/23 (two entries), by Rhonda Lorenz-Pignato at a rate of $477;
and 17.5 hours billed on 1/15/14 (four entries), 1/16/24 (four entries), 1/17/24, 3/4/24, 3/5/24, and 3/7/24,
by Rhonda Lorenz-Pignato at a rate of $506.
7 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).
8 See, e.g., Schwalm v. Sec’y of Health & Hum. Servs., No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Stanton v. Sec’y of Health & Hum. Servs., No. 21-0360V (Nov. 25, 2024) (15.9 and 4.5 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Hirsch v. Sec’y of Health & Hum. Servs., No. 20-1110V (Nov. 25, 2024) (16.0 and 4.1 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Templin v. Sec’y of Health & Hum. Servs., No. 21-1446V (Nov. 25, 2024) (12.0 and 0.4 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively) Kleinschmidt v. Sec’y of Health & Hum. Servs., No. 20-0680V (Apr. 9, 2024) (13.9 and 4.8
hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Amor v. Sec’y of Health & Hum. Servs., No. 20-0978V (Apr. 10, 2024) (11.9 and 2.7 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); McGraw v. Sec’y of Health & Hum. Servs., No. 21-0072V (Apr. 1, 2024) (17.4 and 9.6 hours
4
Of course, having prevailed in this case, a fees award is generally appropriate. But
the Act permits only an award of a reasonable amount of attorney’s fees. Damages
Decision, issued Oct. 28, 2024, ECF No. 50. The primary areas of dispute involved pain
onset and the appropriate amount of compensation for Petitioner’s past pain and suffering
and expenses. Id. at 9-10; see 42 C.F.R. § 100.3(a)(XIV)(B) & (c)(10)(ii) (required pain
onset timing). Regarding the pain and suffering award, the parties’ views differed by
approximately $40,000.00 - Petitioner sought $80,000.00, and Respondent countered by
citing another case involving a $40,000.00 award, noting that he generally proffers
$37,500.00 for milder SIRVA cases. Damages Decision at 9-10. I ultimately awarded the
same amount awarded in the comparable case cited by Respondent – further
underscoring the extent to which Petitioner’s efforts in this behalf had a futile quality (since
I ultimately found the higher figure was not adequately defended). Id. at 12-13.
Accordingly, I will reduce the sum to be awarded for entitlement damages briefing
(a total of 62.9 hours, or $29,547.10) by thirty percent. Such an across-the-board
reduction (which I am empowered to adopt) 9 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 $8,864.13.10
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Wilson-Blount v. Sec’y of Health & Hum. Servs., No. 21-1400V (Oct. 25, 2023) (14.2 and 7.4
hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Bidlack v. Sec’y of Health & Hum. Servs., No. 20-0093V (Oct. 25, 2023) (9.4 and 6.8 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Johnson v. Sec’y of Health & Hum. Servs., No. 19-1543V (Aug. 17, 2023) (17.8 and 9.7 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Piccolotti v. Sec’y of Health & Hum. Servs., No. 20-0135V (June 8, 2023) (11.6 and 3.8 hours
billed for drafting an entitlement and damages brief and responsive entitlement and damages brief,
respectively); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023) (9.8 hours billed for
drafting an entitlement and damages brief – although some time was doubtlessly saved by my March 9,
2020 factual ruling finding an appropriate pain onset); C.H. v. Sec’y of Health & Hum. Servs., No. 20-0249V
(May 16, 2023) (12.9 and 6.1 hours billed for drafting an entitlement and damages brief and responsive
entitlement and damages brief, respectively). These decisions can (or will) 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 Dec. 6, 2024).
9 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).
10 This amount is calculated as follows: (41.9 hrs. x $454 x .30) + (3.5 hrs. x $477 x .30) + (17.5 hrs. x $506
x .30) = $8,864.13.
5
ATTORNEY COSTS
Petitioner requests $704.60 in overall costs and has provided receipts for all
expenses. ECF No. 58-3. I have reviewed the requested costs and find them to be
reasonable. And Respondent offered no specific objection to the rates or amounts sought.
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 $85,235.27 (representing $84,530.67 for
fees and $704.60 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.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11 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