# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 8, 2019

* * * * * * * * * * * * * * * * UNPUBLISHED

MARY MALLORY

, *

* No. 1 7

- 68 V

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 COSTS 1

On J anuary 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 T DaP 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 Dec ember 11

, 2018, respondent fi led a response to petitioner’s m otion

. Respondent’s

Respo nse 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 o n 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 in cludes 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 s et forth in Avera v. HHS , 515 F.3d

1343 (Fed. Cir. 2008).” Id. at 2. Respondent further “respectfully re quests that the Special M aster

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 burdenso me 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 & Hu m an

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 135 2. 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 201 5, and petitioner has since

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

. See Petitioner’s Exhibit ( “ Pet. Ex. ” ) 12 (ECF No. 22); Pet. Ex. 3 6 (ECF No. 35 ); Pet. Ex. 45 (ECF

No. 39 ). Petitioner’s counsel explained that t he retention of the two experts as well as the

continued pendency of this c laim 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. P etitioner’s claim was brought in good faith and there exists a

r easonabl e 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

a ppear reasonable. I f

ind 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 che ck payable to petitioner and h er

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.