In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-1008V

Filed: August 27, 2020

UNPUBLISHED

DANESSA SMITH,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Master Horner

Attorneys’ Fees and Costs Decision

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On June 1, 2020, petitioner moved for an award of final attorneys’ fees and costs 

in the amount of $13,070.34. (ECF No. 42.) In response, respondent deferred to the 

discretion of the special master to award fees and costs if the special master is satisfied 

that this case was filed and proceeded with a reasonable basis. (ECF No. 43.) For the 

reasons discussed below, I award petitioner final attorneys’ fees and costs in reduced 

amount of $12,856.54. 

I. Procedural History

On July 13, 2018, petitioner filed a petition under the National Childhood Vaccine 

Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that she suffered Lichen Planus as 

a result of her receipt of the Hepatitis B vaccination on June 18, 2016. (ECF No. 1.) 

This case was originally assigned to Special Master Sanders. (ECF No. 4.) On April 

23, 2019, respondent filed a Rule 4(c) Report recommending that compensation be 

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will 

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government 

Act of 2002. See 44 U.S.C. § 3501 note (2012) (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 the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.
2

denied. (ECF No. 21.) Specifically, respondent indicated that petitioner had a 

dermatological condition prior to vaccination. (Id. at 5.) 

Subsequently, petitioner intended to file additional evidence to address the 

concerns raised in respondent’s report including a letter from petitioner’s treating 

physician, Dr. Jamie Khemraj, describing the nature of petitioner’s dermatological 

condition pre and post vaccination. (ECF No. 31.) On August 29, 2020, this case was 

reassigned to my docket. (ECF No. 33.) 

On September 23, 2019, petitioner filed a status report indicating that petitioner

was unable to file an expert report and proposing to “inform the court how she wishes to 

proceed (i.e. finding an alternative to address the issues outline in respondent’s Rule 

4(c) report or voluntarily exiting the program).” (ECF No. 34.) On November 6, 2019, 

petitioner filed a further status report, proposing to file a letter from a different treating 

physician, Dr. Hugo Cocucci, to support her claim. (ECF No. 35.) However, on 

December 6, 2019, petitioner filed a Motion for a Decision Dismissing her Petition, 

stating that “[a]n investigation of the facts and science supporting her case has 

demonstrated to petitioner that she will be unable to prove that she is entitled to 

compensation in the Vaccine Program.” (ECF No. 36.) Petitioner’s motion was 

granted, and her petition was dismissed on December 6, 2019. (ECF No. 37.) 

Petitioner filed this instant motion for final attorneys’ fees and costs on June 1, 

2020 and respondent file his response on June 8, 2020. (ECF Nos. 42, 43.) No reply 

was filed. Accordingly, petitioner’s motion for final attorneys’ fees and costs is now ripe 

for resolution. 

II. Discussion

Section 15(e)(1) of the Vaccine Act allows for the special master to award 

“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are 

entitled to an award of reasonable attorneys' fees and costs if they are entitled to 

compensation under the Vaccine Act, or, even if they are unsuccessful, if the special 

master finds that the petition was filed in good faith and with a reasonable basis. Avera 

v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Upon review 

of the records, there is no evidence that this petition was not brought in good faith and 

petitioner had reasonable basis to pursue her claim.

Petitioner’s medical records show that she experienced onset of a rash (later 

diagnosed as lichen planus) with rapid progression temporally proximate to her 

vaccination (within one month) and that petitioner associated onset of that condition to 

her Hepatitis B vaccination at the time of first treatment. (Ex. 5, p. 3; Ex. 3, p. 5.) 

Although respondent raised the presence of a prior dermatological condition that was 

similar by description, the contemporaneous medical records reflect that she reportedly 

“has never had a rash like this before.” (Ex. 5, p. 3.) Moreover, in raising this issue 

respondent did not address whether petitioner could have alternatively pursued a claim 

based on a significant aggravation if, in fact, her prior dermatological condition was also 
3

lichen planus. (ECF No. 21, p. 5.) There are no significant prior decisions addressing 

vaccine-causation of lichen planus; however, prior cases alleging lichen planus 

following vaccination have been compensated in the form of settlements, including a 

prior case involving vaccination for Hepatitis B. See Harrison v. Sec’y of Health & 

Human Servs., No. 14-339V, 2016 WL 6583721 (Fed. Cl. Spec. Mstr. Oct. 13, 2016);

Gilerman v. Sec’y of Health & Human Servs., No. 15-624V, 2016 WL 5107094 (Fed. Cl. 

Spec. Mstr. Aug. 23, 2016). 

Turning to the amount of petitioner’s request, it is “well within the special master’s 

discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & 

Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health 

& Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant the 

special master wide latitude in determining the reasonableness of both attorneys’ fees 

and costs.”). The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1347. 

This is a two-step process. Id. at 1347-48. First, a court determines an “initial 

estimate...by ‘multiplying the number of hours reasonably expended on the litigation 

times a reasonable hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 

(1984)). Second the court may make an upward or downward departure from the initial 

calculation of the fee award based on specific findings. Id. at 1348. 

Special masters have previously reduced the fees paid to petitioners due to 

excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 

10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee 

award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health 

& Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) 

(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 

(2016). Special masters can reduce a fee request sua sponte, without providing 

petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human 

Servs., 102 Fed. Cl. 719, 729 (2011). 

In this case, petitioner is seeking $12,234.60 in attorneys’ fees for work 

performed in 2016-2020. I have reviewed the billing records submitted with petitioner’s 

request, and in my experience, the hourly rates billed for 2016 through 2020 for attorney 

time and paralegal time, are all reasonable and in accord with prior awards made by 

other special masters as well as the above-discussed Attorneys’ Forum Hourly Rate 

Fee Schedules.

2

 However, I find that counsel included entries that are duplicative and 

excessive due to attorneys and paralegals billing for attending the same meetings. For 

duplicative entries, only hours billed by Ms. McCullough, the lead attorney in this case, 

2 Each of the Fee Schedules for 2015 through 2020 can be accessed at 

http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived 

from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, and 2020 are 

adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”). 
4

will be awarded. These duplicative billing entries result in a reduction of $213.80 of the 

fee award.3

Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health & 

Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both 

‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. 

Not only must any request for reimbursement of attorneys’ fees be reasonable, so also 

must any request for reimbursement of costs.”). In this case, petitioner seeks $835.74 

in attorneys’ costs, including expenses incurred in obtaining medical records and filing 

the petition. I have reviewed the expense records and supporting documentation 

submitted with petitioner’s request, and I find that the requested attorneys’ costs are all 

reasonable. 

III. Conclusion

Based on the reasonableness of petitioner’s request and the lack of opposition 

from respondent, petitioner’s motion for an award of final attorneys’ fees and costs is 

hereby GRANTED and petitioner is awarded $12,856.54 in final attorneys’ fees and 

costs, representing $12,020.80 in attorneys’ fees and $835.74 in attorneys’ costs. 

Accordingly, I award the total of $12,856.54 as a lump sum in the form of a 

check jointly payable to petitioner and petitioner’s counsel Bridget Candace 

McCullough.

The clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

3 There were duplicative entries, where the same meeting was billed by both participants, on January 25, 

2018, February 7, 2018, May 15, 2018, June 28, 2018, March 29, 2019, April 8, 2019, and May 23, 2019. 

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice 

renouncing the right to seek review.