In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 8, 2019

* * * * * * * * * * * * * * * * UNPUBLISHED

MARY MALLORY, *

 * No. 17-68V

Petitioner, *

 * Special Master Gowen

v. *

 * Attorneys’ Fees and Costs;

SECRETARY OF HEALTH * Interim; Special Master’s

AND HUMAN SERVICES, * Discretion.

 *

Respondent. * 

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

Amber Diane Wilson, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.

Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON INTERIM COSTS1

On January 17, 2017, Mary Mallory (“petitioner”) filed a petition for compensation

pursuant to the National Vaccine Injury Compensation Program.

2 Petition (ECF No. 1). 

Petitioner alleged that she developed chronic inflammatory polyneuropathy (“CIDP”) as a result 

of a TDaP vaccination administered to her on August 5, 2015. Id.

On November 27, 2018, petitioner filed a motion for interim attorneys’ fees and costs. 

Motion for Interim Attorney’s Fees and Costs (“Pet. Motion”) (ECF No. 44). Petitioner requested

reimbursement for costs in the amount of $20,750.00. Id. at ¶ 1. 

On December 11, 2018, respondent filed a response to petitioner’s motion. Respondent’s 

Response to Petitioner’s Motion for Interim Attorneys’ Fees and Costs (ECF No. 46). Respondent 

stated that, in this case, he “defers to the Special Master to determine whether or not petitioner has 

 

1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a 

reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of 

Federal Claims. The court’s website can be accessed at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before 

the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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 constitute a clearly 

unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed 

redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision

will be posted on the court’s website without any changes. Id.

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine 

Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) 

(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. 

§ 300aa. 
met the legal standard for an interim fees and costs award as set forth in Avera v. HHS, 515 F.3d 

1343 (Fed. Cir. 2008).” Id. at 2. Respondent further “respectfully requests that the Special Master 

exercise his discretion regarding petitioner’s request for an interim award of attorneys’ fees and 

costs.” Id. at 3. 

On December 14, 2018, petitioner filed a reply to respondent’s response. Reply to 

Respondent’s Response (ECF No. 47). Petitioner argued that “[r]esponent has had and does have 

an important role in responding to motions for attorneys’ fees and costs” and that respondent’s 

position is overly burdensome on the Court and prejudices petitioner. Id. at 2. Petitioner also 

argued that she has met her burden of establishing reasonable costs and, as such, her interim costs 

should be awarded. Id. at 4. 

This matter is now ripe for adjudication.

The special master may, in the exercise of his or her discretion, grant an interim award of 

reasonable attorneys’ fees and costs if the special master finds that the petitioner brought the claim 

in good faith and with a reasonable basis. § 300aa-15(e)(1); Avera v. Sec’y of Health & Human

Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of Health & Human Servs., 609 F.3d 

1372 (Fed. Cir. 2010). Special masters have “wide discretion in determining the reasonableness” 

of attorneys’ fees and costs, and may increase or reduce the initial fee award calculation based on 

specific findings. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d,

33 F.3d 1375 (Fed. Cir. 1994); see Avera, 515 F.3d at 1348. 

In Avera, the Federal Circuit stated, “Interim fees are particularly appropriate in cases 

where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. In 

Shaw, the Federal Circuit held that “where the claimant establishes that the cost of litigation has 

imposed an undue hardship and there exists a good faith basis for the claim, it is proper for the 

special master to award interim attorneys' fees.” 609 F.3d at 1375. 

The present case has been pending before the Program since 2015, and petitioner has since 

submitted three experts reports from two experts in support of her claim, Dr. Allen and Dr. Akbari. 

See Petitioner’s Exhibit (“Pet. Ex.”) 12 (ECF No. 22); Pet. Ex. 36 (ECF No. 35); Pet. Ex. 45 (ECF 

No. 39). Petitioner’s counsel explained that the retention of the two experts as well as the 

continued pendency of this claim are causing her firm undue hardship. Pet. Motion ¶¶ 6-8. As a 

general practice, I do not encourage motions for interim costs, but I recognize the issues raised by 

petitioner’s counsel in this case. Petitioner’s claim was brought in good faith and there exists a 

reasonable basis for this claim. Petitioner is therefore entitled to a reasonable award of interim 

and costs. 

Petitioner requested $20,750.00 as reimbursement for the expert costs incurred thus far in 

this matter. Pet. Motion at ¶ 1. I have reviewed the invoices submitted with petitioner’s motion. 

See Pet. Ex. 75. The expenses incurred are well-documented and based on my experience they 

appear reasonable. I find no cause for adjustment and thus the requested attorneys’ costs are 

awarded in full.
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is 

GRANTED. 

Accordingly, I award the following:

1) A lump sum in the amount of $20,750.00, representing reimbursement for 

petitioner’s interim costs, in the form of a check payable to petitioner and her

attorney, Amber D. Wilson, of Maglio Christopher & Toale, PA. 

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of 

the Court SHALL ENTER JUDGMENT herewith.3

IT IS SO ORDERED.

s/Thomas L. Gowen 

 Thomas L. Gowen

 Special Master

 

3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the 

right to seek review.