# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 7

- 511 V

(not to be published)

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

KATHERINE BERRY

, *

* Special Master Corcoran

*

Petitioner

, * Filed: March 22 , 2019

*

v. *

* Final Attorney’s Fees and Costs Award ;

SECRETARY OF HEALTH * Flumist I nfluenza Vaccine;

AND HU MAN SERVICES, * Parsonage

- Turner Syndrome

.

*

Respondent. *

*

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

Anne C. Toale

, Maglio, Christopher, & Toale

, Sarasota

, FL

, for Petitioner.

Sarah C. Duncan

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

DECISION AWARDING ATTORNEY’S FEES AND COSTS 1

On April 12 , 2017

, Katherine Berry filed a petition seeking compensation under the

National Vaccin e Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleged that s he

suffered from Parsonage

- Turner Syndrome as a result of h er receipt of the Flumist i nfluenza

vaccine on November 24, 2015

. The parties were able to settle the matter, filing a stipulation in

January of this year that I so

- ordered via Decision dated January 23, 2019. ECF No. 36

.

1 Although t his Decision has been formally designated “not to be published,” it w ill nevertheless be posted on the

Cou rt of Federal Claims’s website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012). This

means the Decision will be available to anyone with a ccess to the internet

. As provided by 42 U.S.C. § 300aa

12(d)(4)(B), however, the parties may object to the D ecision’s inclusion of certain kinds of confidential information.

Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any

information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged

or confidential; or (2) that includes medical files or similar files, the disclosure of which would cons titute a clearly

unwarranted invasion of privacy.” Vaccine Rule 18(b). Oth erwise, the whole D ecision in its present form will be

available. Id

.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (20 12) (“Vaccine Act” or “the Act”)

.2

Petitioner has now filed a motion seeking a final award of attorney’s fees a nd costs. Motion,

dated Jan. 30 , 2019 (ECF No. 40) (“Fees Mot.”). In it, she requests a total award of $ 34,205.98

, reflecting attorney’s and legal assistant fees in the total am ount of $ 32,207.40 , plus $1, 998.58 in

litigation costs. Fees Mot. at 1

- 2; Ex. 16 (ECF No. 40

- 1) at 29; Ex. 17 (ECF No. 40

- 2) at 1

- 2

. Petitioner also filed a statement in compliance with General Order No. 9 representing that she did

not incur any individual costs ass ociate d with the claim’s prosecution. Ex. 18 (ECF No. 40

- 3) at

1 . Respondent reacted to the final fees motion on February 8 , 2019, noting that a fees award was

statutorily appropriate and otherwise deferring the calculation of a reasonable award to my

di scretion. Response , dated Feb. 8, 2019 (ECF No. 41 ) at 2

- 3.

Prevailing petitioners are entitled to a reasonable award of attorney’s fees and costs.

Section 15(e). The law governing the calculation of such an award is well

- established. Avera v.

Sec’y of Health & Human Servs. , 515 F.3d 1343, 1347

- 48 (Fed. Cir. 2008).

Here, I find that Petitioner should receive the full sum requested. First, the rates requested

for the Maglio Firm attorneys representing her (which are deemed “in forum”) are consistent both

with the Office of S pecial Masters’s Forum Rate Schedule as well as what the same lawyers have

received in other cases. See Office of Special Masters Hourly Rate Fee Schedules,

https://www.uscfc.uscourts.gov/node/2914 (last accessed on March 18, 2019); see, e.g

., Galinato

v. Sec'y of Health & Human Servs. , No. 15

- 928V, 2017 WL 2461373, at *1 (Fed. Cl. Spec. Mstr.

Apr. 17, 2017) (citing Foster v. Sec'y of Health & Human Servs.

, No. 14

- 309V, 2016 WL 7233943

(Fed. Cl. Spec. Mstr. Nov. 15, 2016) ) ; Dearing v. Sec'y of Health & Human Servs.

, No. 14

- 289V,

2016 WL 7451349 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)). And the total time billed to the matter

was reasonably incurred. Second, the costs requested (which includes the filing fee , copying

expenses, and other litigation support costs) are also reason able.

I therefore approve a final award of fees and costs, in the total amount of $34,205.98 , in

the form of a check payable jointly to Petitioner and Petitioner’s counsel, Anne C. Toale, Esq. In

the absence of a motion for review filed pursuant to RCF C Appendix B, the clerk of the C ourt is

directed to enter judgment herewith. 3

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

3 Pursuant to Vaccine Rule 11(a), t he parties may expedite entry of judgment by each filing (either jointly or separately)

a notice renouncing their right to seek review.