VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_11-vv-00106
Package ID: USCOURTS-cofc-1_11-vv-00106
Petitioner: Carl J. Verity
Filed: 2011-02-18
Decided: 2018-08-09
Vaccine: influenza
Vaccination date: 
Condition: Guillain-Barré syndrome
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Carl J. Verity filed a petition alleging Guillain-Barré syndrome and related complications as a result of receiving an influenza vaccine. The parties reached a stipulation, which was adopted by decision on March 26, 2014, and judgment entered on May 1, 2014. Nearly three years later, on February 20, 2017, Verity filed a motion for attorney's fees and costs, acknowledging it was over two years past the October 28, 2014 deadline. The Special Master denied this motion, finding the delay inexcusable and not within the scope of excusable neglect. Verity then filed a second motion for attorney's fees and costs on July 19, 2018, again requesting the same amount and explaining the delay by stating attorneys were not admitted to the Vaccine Court at the time and the handling attorney left the firm. The Special Master denied this second motion for the same reasons as the first, emphasizing that attorney ignorance of program rules does not constitute excusable neglect and that counsel bears the consequences of their inaction. Final judgment on the matter of fees and costs was entered on April 13, 2017, and the second motion was denied on August 9, 2018.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_11-vv-00106-0
Date issued/filed: 2017-05-03
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 03/13/2017) Regarding 56 DECISION of Special Master - Fees. Signed by Special Master Brian H. Corcoran. (ed) Copy to parties.
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Case 1:11-vv-00106-UNJ Document 58 Filed 05/03/17 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-106V
(To be Published)
* * * * * * * * * * * * * * * * * * * * * * * * * Special Master Corcoran
CARL J. VERITY, *
* Filed: March 13, 2017
Petitioner, *
v. * Attorney’s Fees and Costs;
* Timeliness of Fees motion.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Theodore F. Goralski, Jr., Sanders Law Firm, Mineola, NY, for Petitioner.
Jennifer L. Reynaud, U.S. Dep’t of Justice, Washington, DC for Respondent.
DECISION DENYING (i) MOTION FOR EXTENSION OF TIME, AND
(ii) REQUEST FOR ATTORNEY’S FEES AND COSTS1
On February 18, 2011, Petitioner Carl J. Verity filed a petition seeking compensation under
the National Vaccine Injury Compensation Program, (“the Vaccine Program”)2. Petitioner alleged
that he suffered from Guillain-Barré syndrome and related complications as a result of receiving
an influenza vaccine. After several years of settlement negotiations, on March 24, 2014, the parties
agreed to a stipulation, which I adopted by decision two days later. See Decision, filed on March
26, 2014 (ECF No. 52). Judgment subsequently entered on May 1, 2014.
1 This decision will be posted on the United States Court of Federal Claims website, in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the
parties may object to the decision’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 constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public in its present form. Id.
2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).

Case 1:11-vv-00106-UNJ Document 58 Filed 05/03/17 Page 2 of 3
Nearly three years from the date of the favorable entitlement decision, Petitioner has
requested an award of attorney’s fees. Motion for Extension of Time, dated February 20, 2017
(ECF No. 54) (“Fees App.”). In it, he requests $28,861.25 in attorney’s fees and costs.
Accompanying the fees request was also a motion for an extension of time to request attorney’s
fees. In so doing, Petitioner has acknowledged that the fees application should have been filed on
or before October 28, 2014 (180 days after judgment entered on May 1st) – but has only now been
interposed, over two years later. Fees App. at 1. Respondent reacted to the fees request in a filing
dated March 9, 2017 (ECF No. 55), noting that the request was in fact out of time, but otherwise
leaving the resolution of the motion and fees request to my discretion.
Vaccine Rule 13 provides that an application for attorney’s fees and costs must filed no
later than 180 days after judgment is entered. See Vaccine Rule 13(a). Thus, it is beyond dispute
that the present fees application is grossly out of time. However, it is not uncommon in the program
for special masters to overlook the untimeliness of fees requests filed not long after the deadline
to act. See e.g. Turner v. Sec’y of Health & Human Servs., No. 99-544, 2007 WL 4410030, *13
(Nov. 30, 2007) (awarding Petitioner attorney’s fees and costs despite the application being filed
one month after the expiration of the 180 day deadline), Carrington v. Sec’y of Health & Human
Servs., No. 99-495, 2008 WL 2683632, *13 (June. 18, 2008) (allowing an extension of time of
about three weeks outside of 180 day deadline).
This fees request, by contrast, is untimely not merely by days or weeks but years. Petitioner
has also not established a reasonable explanation for his failure to act in the period allowed for
under Rule 13, and has also provided no persuasive, let alone controlling, case law suggesting that
such a dilatory request should nevertheless be entertained. Accordingly, I do not find that under
the present circumstances excusing Petitioner’s failure to act in a timely manner is appropriate.
My decision also has the effect of denying Petitioner’s motion to extend the time to request
fees. Ordinarily, such requests are properly sought prior to expiration of the deadline to be
extended, but a post-deadline enlargement of time can also be obtained in limited circumstances
on a showing of "excusable neglect." See e.g. RCFC 6(b)(1)(A-B)(“ the court may for good cause,
extend the time: (A) with or without motion or notice if the court acts, or if a request is made,
before the original time or its extension expires; or (B) on motion made after the time has expired
if the party failed to act because of excusable neglect.”); Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (established four factors to determine excusable
neglect “(1) the danger of prejudice to the nonmoving party, (2) the length of delay and its potential
impact on judicial proceedings, (3) the reason for the delay, including whether it was within the
reasonable control of the movant, and (4) whether the movant acted in good faith”).
Here, the over two-year delay caused by acknowledged attorney ignorance of Program
rules for timely requesting an attorney's fees award cannot be attributed to excusable neglect. It is
reasonable to expect Program counsel to familiarize themselves with the Vaccine Act and rules -
2

Case 1:11-vv-00106-UNJ Document 58 Filed 05/03/17 Page 3 of 3
and they properly bear the brunt of their failure to do so under such circumstances. In addition,
allowing lenience in this case may open the door to future petitioners filing egregiously outside of
court or statute-prescribed deadlines, thereby subverting the entire purpose of a deadline (which at
six months is fairly generous to begin with). A failure to seek fees once so much time has passed
is not comparable to missing the deadline by a few days or weeks - and should therefore be treated
differently.
CONCLUSION
In accordance with the foregoing, I hereby DENY an award of attorney’s fees. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court SHALL
ENTER JUDGMENT in accordance with the terms of this decision.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_11-vv-00106-1
Date issued/filed: 2018-09-19
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 8/09/2018) Regarding 61 DECISION of Special Master - Fees (Signed by Special Master Brian H. Corcoran). (mml) Service on parties made.
--------------------------------------------------------------------------------
Case 1:11-vv-00106-UNJ Document 63 Filed 09/19/18 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-106V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * * Special Master Corcoran
CARL J. VERITY, *
* Filed: August 9, 2018
Petitioner, *
v. * Attorney’s Fees and Costs;
* Timeliness of Fees Motion.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Joseph Viener, Sanders Law Firm, Mineola, NY, for Petitioner.
Jennifer L. Reynaud, U.S. Dep’t of Justice, Washington, DC for Respondent.
DECISION DENYING ATTORNEY’S FEES AND COSTS1
On February 18, 2011, Carl J. Verity filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“the Vaccine Program”)2. Petitioner alleged that
he suffered from Guillain-Barré syndrome and related complications as a result of receiving an
influenza vaccine. After several years of settlement negotiations, on March 24, 2014, the parties
agreed to a stipulation, which I adopted by decision two days later. See Decision, filed on March
26, 2014 (ECF No. 52). Judgment subsequently entered on May 1, 2014.
1 This Decision will be posted on the United States Court of Federal Claims website, in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the
parties may object to the Decision’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 constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id.
2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).

Case 1:11-vv-00106-UNJ Document 63 Filed 09/19/18 Page 2 of 3
Nearly three years from the date of the favorable entitlement decision, Petitioner requested
an award of attorney’s fees. Motion for Extension of Time, dated February 20, 2017 (ECF No. 54)
(“1st Fees App.”). Accompanying the fees request was also a motion for an extension of time to
request those fees. In so doing, Petitioner acknowledged that the fees application should have been
filed on or before October 28, 2014 (180 days after judgment entered on May 1st, as per Vaccine
Rule 13(a), which provides that an application for attorney’s fees and costs must be filed no later
than 180 days after judgment is entered) – but was interposed over two years later. 1st Fees App.
at 1. Respondent reacted to the fees request in a filing dated March 9, 2017 (ECF No. 55), noting
that the request was in fact out of time, but otherwise leaving the resolution of the motion and fees
request to my discretion.
On March 13, 2017, I issued my Decision denying attorney’s fees and costs (ECF No. 56).
In it, I reasoned that although special masters have, in the past, overlooked issues of untimeliness
for fee requests, in those instances the motions were untimely by a matter of days or weeks. By
contrast, Petitioner’s fees application was untimely by over two years. Decision at 2. I also found
that Petitioner had not offered a reasonable explanation for his failure to act within the time
prescribed by Rule 13. Accordingly, I denied the motion. Petitioner did not appeal this ruling in
the time allotted by the Vaccine Rules or Act, and final judgment on the matter of fees and costs
was entered on April 13, 2017.
On July 19, 2018, Petitioner again filed a motion for attorney’s fees and costs (ECF No.
59). Shortly thereafter, Petitioner then filed an amended motion for attorney’s fees and costs on
August 1, 2018 (“2nd Fees App.”) (ECF No. 60). The second motion for attorney’s fees requests
the same amount as previously sought, and concedes that “the fees application should have been
filed on or before October 28, 2014,” but explains that the application was not filed by that date
“due to the fact that the attorneys in our law firm were not admitted at the time to the Vaccine
Court” and that “the attorney who was handling this matter for our firm left the firm, this is a
reasonable explanation for the delay as well as the fact that admission to your court is a requirement
in order to submit a motion such as the one before you.” 2nd Fees App. at 3.
For all of the reasons started in my Decision denying the first fees application, I shall again
deny Petitioner’s second fees application. As I stated previously:
Here, the . . . delay caused by acknowledged attorney ignorance of Program rules
for timely requesting an attorney's fees award cannot be attributed to excusable
neglect. It is reasonable to expect Program counsel to familiarize themselves with
the Vaccine Act and rules - and they properly bear the brunt of their failure to do
so under such circumstances. In addition, allowing lenience in this case may open
the door to future petitioners filing egregiously outside of court or statute-
prescribed deadlines, thereby subverting the entire purpose of a deadline (which at
2

Case 1:11-vv-00106-UNJ Document 63 Filed 09/19/18 Page 3 of 3
six months is fairly generous to begin with). A failure to seek fees once so much
time has passed is not comparable to missing the deadline by a few days or weeks
- and should therefore be treated differently.
Decision at 3. In the second fees application, Petitioner again asserts that their failure to comply
with the deadline prescribed by Rule 13 was due to an overall lack of knowledge of the rules and
requirements of this court. Once again, I note that attorney ignorance is not grounds to find
excusable neglect, and that counsel properly bears the consequences of their lack of knowledge
and general inaction.
Additionally, it is notable that following my first Decision denying fees and costs,
Petitioner did not challenge this ruling, either by appeal or a motion for reconsideration. It appears
that counsel has simply chosen to ignore the established precedent in this case and once again ask
for fees and costs without addressing the question of why, if the previous motion was denied as
untimely, would a subsequent, almost identical motion not also be denied? In any event, counsel’s
action of waiting another year before filing a second fees motion has not served to correct the
overarching deficiency of gross untimeliness.
CONCLUSION
In accordance with the foregoing, I hereby DENY an award of attorney’s fees. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court SHALL
ENTER JUDGMENT in accordance with the terms of this decision.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3