VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00160
Package ID: USCOURTS-cofc-1_22-vv-00160
Petitioner: MURIEL J. DUVAL
Filed: 2022-02-15
Decided: 2026-03-06
Vaccine: Tdap
Vaccination date: 2020-08-28
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 110559

AI-assisted case summary:
Muriel J. Duval filed a petition alleging a left shoulder injury related to vaccine administration (SIRVA) from a Tdap vaccination received on August 28, 2020. Initially, the case proceeded with allegations of SIRVA, but respondent contended that the condition was not limited to the shoulder and was explained by a neurologic condition. Petitioner's treating physician later opined that the injury was brachial neuritis, a Table injury. Respondent's experts disputed both SIRVA and brachial neuritis. The case involved significant uncertainty regarding the correct diagnosis, with petitioner exploring both musculoskeletal and neurologic injury theories. Ultimately, the court found that the petition, alleging SIRVA, maintained a reasonable basis, even if barely, throughout its pendency. This decision addresses motions for interim attorneys' fees and costs. Petitioner is awarded a total of $110,559.09 in interim attorneys' fees and costs, with $18,623.97 allocated to former counsel Kelly Burdette and $91,935.09 to current counsel Christopher Webb.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00160-0
Date issued/filed: 2026-04-17
Pages: 14
Docket text: PUBLIC DECISION (Originally filed: 3/6/2026) regarding 81 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made.
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Case 1:22-vv-00160-UNJ Document 84 Filed 04/17/26 Page 1 of 14
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-160V
Filed: March 6, 2026
MURIEL J. DUVAL,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Christopher J. Webb, Black, McLaren, Jones, Ryland & Griffee, Memphis, TN, for
petitioner.
Kelly Danielle Burdette, Burdette Law, North Bend, WA, former counsel for petitioner.
Rachelle Bishop, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On February 3, 2026, petitioner’s departing counsel, Mr. Webb, filed the instant
motion for an award of interim attorneys’ fees and costs in the amount of $91,935.09.
(ECF No. 73.) An additional motion for an award of interim attorneys’ fees and costs in
the amount of $22,287.93 had previously been filed by petitioner’s prior counsel, Ms.
Burdette. (ECF No. 41.) For the reasons discussed below and resolving both motions,
the undersigned awards petitioner interim attorneys’ fees and costs in a reduced
amount for petitioner’s prior counsel and in full for current counsel.
1 Because this document contains a reasoned explanation for the action taken in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic
Government Services). This means the document 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, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
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Case 1:22-vv-00160-UNJ Document 84 Filed 04/17/26 Page 2 of 14
I. Procedural History
On February 15, 2022, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10, et seq. (2012),2 alleging that she suffers a left
shoulder injury related to vaccine administration (“SIRVA”) as a result of a tetanus-
diphtheria-pertussis (“Tdap”) vaccination received on August 28, 2020. (ECF No. 1.)
The case was originally assigned to the Special Processing Unit (“SPU”). (ECF Nos.
17-18.)
At the outset of the case, petitioner was represented by Burdette Law, first by Mr.
Burdette and later by Ms. Burdette. They filed medical records on behalf of petitioner
between March of 2022 and April of 2023. (Exs. 1-15.) Thereafter, the parties
discussed settlement for several months before respondent filed a Rule 4(c) Report,
recommending against compensation, in December of 2023. (ECF No. 37.)
Respondent contended that petitioner’s condition was not limited to her affected
shoulder, as required of a Table SIRVA, and that her condition was explained by a
neurologic condition. (Id. at 8-12.)
Following the filing of respondent’s report, the case was reassigned out of the
SPU and to the undersigned. (ECF Nos. 38-39.) Petitioner was then directed to file a
status report indicating how she proposed to proceed and, specifically, whether she
intended to pursue a claim related to a musculoskeletal or neurologic injury. In
response, she advised that “petitioner and counsel for petitioner have been consulting
with attorneys to assume representation of petitioner and to assist petitioner with a
resolution of her claim.” (ECF No. 40.) In a follow up status report, it was reported that
petitioner had been unsuccessful in seeking new counsel. (ECF No. 41.) A status
conference was therefore held. During the status conference, petitioner’s counsel
confirmed she would continue to represent petitioner and that she intended to pursue
informal resolution based on a SIRVA. (ECF No. 42.) However, because respondent
intended to defend against that claim, petitioner was instead directed to file an expert
report. (Id.) It remained uncertain whether petitioner would pursue a musculoskeletal
or neurologic injury. (Id. at n. 1.)
On June 13, 2024, petitioner filed a letter by her treating physician, Dr. Liang,
opining that, although he initially diagnosed shoulder bursitis, what petitioner suffered
was a vaccine-caused brachial neuropathy. (Ex. 16.) In response, respondent filed an
expert report by orthopedist Paul Cagle, M.D., opining that petitioner’s condition is
neither SIRVA nor brachial neuropathy (Ex. A), as well as an expert report by
neurologist Peter Donofrio, M.D., opining that petitioner’s condition does not meet the
Table criteria for brachial neuritis (Ex. C). In a follow up order of December 2, 2024, the
undersigned noted that either SIRVA, as petitioner pleaded was present, or brachial
neuritis, which her treating physician opined was present, could under the right
circumstances represent a Table injury; however, they are mutually exclusive given that
SIRVA by definition excludes neurologic injuries. (ECF No. 52.) I directed the parties to
2 Within this decision, all citation to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10-34.
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Case 1:22-vv-00160-UNJ Document 84 Filed 04/17/26 Page 3 of 14
clarify whether the case would proceed as a brachial neuritis claim and, if so, to file
amended pleadings, but in either event, further expert reports would be necessary once
the claim was clarified. (Id.)
In response to being directed to file an expert report, petitioner’s counsel filed a
status report indicating she intended to withdraw as counsel and for petitioner to
continue pro se. (ECF No. 53.) A follow-up status conference was held with petitioner
and counsel for both parties on January 3, 2025. (ECF No. 54.) During the status
conference, “[p]etitioner’s counsel indicated that, in light of the feedback in the
December 2, 2024 order, she did not believe she had the ability to successfully
prosecute the claim given that securing Dr. Liang’s letter was the most she had
intended to do.” (Id. at 1.) Given this, the undersigned advised petitioner that, without
providing guidance as to whether a brachial neuritis claim would ultimately be viable,
“Dr. Liang’s letter is likely sufficient to confer a reasonable basis for ongoing exploration
of a potential brachial neuritis claim.” (Id. at 2.)
Ms. Burdette filed a motion seeking interim attorneys’ fees and costs on January
24, 2025. (ECF No. 55.) Shortly thereafter, Mr. Webb filed a consented motion to be
substituted as counsel. (ECF No. 56.) Respondent later filed a response to Ms.
Burdette’s motion, deferring to the undersigned with respect to both the appropriateness
and amount of any interim award of fees and costs. (ECF No. 57.) However, on July
11, 2025, an order deferring ruling on the motion for interim attorneys’ fees and costs
was issued. (ECF No. 61.) The undersigned concluded that there had not been any
demonstration of undue hardship to warrant an interim award, both given the amount at
issue, as well as the fact that Ms. Burdette had exited the case prematurely “due solely
to her own expressed shortcomings and unwillingness to personally continue
prosecuting the case.” (Id. at 2.) Accordingly, the motion was deferred “until such time
as the undersigned is called upon to address attorneys’ fees and costs for current
counsel, whether on an interim or final basis.” (Id.)
Current counsel was initially permitted a period of about 9 months, from March to
November of 2025, within which to file an expert report to support the claim. However,
no expert report was filed. After counsel filed updated medical records (Ex. 20) in
August of 2025, counsel advised within a motion for extension of time that petitioner
again intended to seek new counsel. (ECF No. 64.) Petitioner reportedly had “personal
reservations” with respect to whether her correct diagnosis was SIRVA, brachial
neuritis, or some other neurologic injury, and wanted to seek out an alternative expert
with new counsel. (Id.) Counsel was directed to continue assisting petitioner in filing
updated medical records and the undersigned advised that the reasonable basis for the
claim would be reassessed based on a review of those records. It was further advised
that, absent an indication petitioner intended to take the case in a direction supported by
a reasonable basis, an order to show cause would be issued. (Id. at 2.)
Petitioner then filed additional medical records. (Exs. 21-24.) Thereafter, in a
further scheduling order, the undersigned indicated that, though still “highly skeptical” of
a SIRVA allegation, petitioner would be permitted “some latitude to develop the record
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Case 1:22-vv-00160-UNJ Document 84 Filed 04/17/26 Page 4 of 14
of this case as she sees fit,” given her most recent orthopedic evaluation. (Id.)
Petitioner’s updated orthopedic records had shown that she was diagnosed with
shoulder impingement and that her MRI of September 8, 2025, confirmed the presence
of shoulder pathology. (Ex. 21, p. 15.) However, the undersigned noted that “[t]he fact
that petitioner had shoulder pathology visible on MRI years after the fact does not
necessarily mean that pathology is the most likely explanation for her earlier symptoms”
and if petitioner retains an expert in pursuit of a musculoskeletal injury “the expert must
credibly grapple with the evidence of a neurologic cause for petitioner’s symptoms.”
(ECF No. 67, p. 1.)
Thereafter, counsel filed the remainder of petitioner’s outstanding medical
records (Exs. 25-27, 29-30), along with a written statement by petitioner (Ex. 28), before
then filing a motion seeking an award of interim attorneys’ fees and costs, as well as a
motion to withdraw as counsel. (ECF Nos. 73-74.)
Initially, despite suggesting he intended to raise arguments both with respect to
whether the petitioner maintained a reasonable basis and challenging the amount of the
fees and costs incurred, respondent sought to defer providing a substantive response to
petitioner’s motion until the case was resolved, suggesting the reasonable basis would
be better assessed after entitlement was addressed. (ECF No. 77.) However, the
undersigned directed respondent to file a substantive responsive before petitioner’s
counsel was ultimately removed from the case (ECF No. 78), which he did (ECF No.
79). Petitioner then filed a reply. (ECF No. 80.)
Accordingly, both of the pending motions for awards of interim attorneys’ fees
and costs are now ripe for resolution.
II. Party Contentions
The first motion for an award of interim attorneys’ fees and costs, filed by Ms.
Burdette, seeks $19,555.30 for attorneys’ fees and $2,732.63 for costs, for a total award
of $22,287.93. (ECF No. 55, p. 3.) Counsel requests $400 per hour for work performed
by Mr. Burdette, $275 per hour for work performed by Ms. Burdette, and $132 per hour
for work performed by paralegals. (Id.) Apart from noting that the requested rates have
been previously awarded, this motion does not present any argument on any potential
issue. (ECF No. 55, pp. 1-4 (citing McDaniel v. Sec’y of Health and Human Servs., No.
17-1322, 2024 WL 4043683 (Fed. Cl. Spec. Mstr. May 24, 2024)).) The requested
costs include the petition filing fee, the cost of obtaining medical records, and a
$1,500.00 consulting fee to Dr. Liang. (ECF No. 55-2.) In connection with this motion,
petitioner advised that she had not personally incurred any costs. (ECF No. 55-3.) As
noted above, respondent’s response defers to the undersigned with respect to whether
the legal requirements for an interim award of fees and costs are met as well as the
reasonable amount of any such award. (ECF No. 57.)
The second motion for an award of interim attorneys’ fees and costs, filed by Mr.
Webb, seeks $72,799.40 in attorneys’ fees and $19,135.69 for costs, for a total award
4

Case 1:22-vv-00160-UNJ Document 84 Filed 04/17/26 Page 5 of 14
of $91,935.09. (ECF No. 73, p. 1.) In the motion, counsel explains that the requested
costs include costs associated with securing two different expert reports, one by
neurologist Joseph Jeret, M.D., who charged $500 per hour, and one by orthopedist
Uma Srikumaran, M.D., who charged $1,000.00 per hour. (Id. at 3.) However, no
expert report was filed because irreconcilable differences arose between petitioner and
her counsel with respect to how to present the case. (Id. at 4.) Petitioner asserts that
the remaining costs are all reasonable litigation costs, most notably including travel
costs for in person meeting with petitioner. (Id. at 4-5.) Petitioner asserts that the
requested hourly rates have been previously awarded (apart from 2026 rates). (Id. at 5-
9.) Specifically, petitioner requests rates as indicated in the chart depicted below:
(Id. at 9.) Petitioner again confirmed that she incurred no personal costs. (ECF No. 73-
3.)
In response to the second motion, respondent argues that the petition lacks a
reasonable basis and that counsel’s requested fees are “patently excessive and
unreasonable under the circumstances.” (ECF No. 79, p. 1.) On the latter point,
respondent stresses that current counsel participated in this case for only about 13-
months and in that time produced nothing more than updated medical records,
ultimately doing “virtually nothing to advance the case.” (Id. at 14.) Thus, respondent
argues that the requested fees are “grossly disproportionate.” (Id.) However,
respondent does not address any specific aspect of the fees and costs that would
warrant reduction.
Regarding the question of reasonable basis, respondent contends that the
objective evidence is “so contrary that a feasible claim is not possible.” (Id. at 10
(quoting Cottingham v. Sec’y of Health & Human Servs., 154 Fed. Cl. 790, 795 (2021)).)
First, respondent contends that any brachial neuritis claim lacks a reasonable basis
because petitioner consistently alleged an immediate onset, her symptoms were not
limited to her upper extremity nerve plexus, his own expert explained that petitioner’s
symptoms and NCS/EMG studies were not consistent with brachial neuritis, the
evidence overwhelmingly supports cervical compression as the cause of her symptoms,
and brachial neuritis was not diagnosed within the contemporaneous medical records.
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Case 1:22-vv-00160-UNJ Document 84 Filed 04/17/26 Page 6 of 14
(Id. at 10-11.) He also argues that Dr. Liang’s opinion is not credible.3 (Id. at 11.)
“Here, the objective record evidence has never risen to more than a mere scintilla of
evidence in support of brachial neuritis. The immediate onset allegation alone rendered
any brachial neuritis claim dead on arrival.” (Id. at 12.) Conversely, respondent
contends the case also never had a reasonable basis for a SIRVA allegation, because
only isolated references to bursitis by Dr. Liang ever potentially supported a shoulder-
specific diagnosis whereas Dr. Liang otherwise concluded her condition was neurologic.
(Id. at 13 (citing Ex. 4, pp. 30, 32; Ex. 16).) In respondent’s view, the later filed medical
records showing labral tears and tendinitis do not remedy these issues and, moreover,
simultaneous pursuit of brachial neuritis and SIRVA, which are mutually exclusive, is
unreasonable. (Id.)
In reply, petitioner’s counsel asserts that this case maintained a reasonable basis
throughout its pendency, noting in particular that petitioner had secured a treating
physician opinion indicating that she had experienced an injury, brachial neuritis, that is
recognized by the program. (ECF No. 80, p. 2.) However, counsel also contends it was
reasonable to also investigate the facts and circumstances originally alleged to be
SIRVA. (Id. at 2-3.) Regarding this uncertainty, petitioner’s counsel stresses that even
respondent’s expert was unwilling to offer a “more likely than not” diagnosis for
petitioner’s condition. (Id. at 3.) Thus, petitioner argues that “it was apparent that
reasonable minds may disagree on the correct diagnosis.” (Id.) Thus, petitioner had a
reasonable basis to explore alternative explanations for petitioner’s injury and it was
reasonable for petitioner to consult both Drs. Jeret and Srikumaran. (Id. at 3-4.)
Regardless of Dr. Liang’s diagnostic opinion, there were medical facts within the
medical records to support a SIRVA. (Id. at 4.) Moreover, counsel owed petitioner the
duty of a full investigation of all avenues of recovery. (Id. at n. 3.) To the extent
respondent challenges the requested fees as excessive, petitioner argues that the
billing records submitted document that the hours undertaken by counsel were
reasonable. (Id. at n. 1.)
III. Analysis
a. Appropriateness of an Award of Interim Attorneys’ Fees and Costs
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). Additionally,
the Federal Circuit has concluded that interim fee awards are permissible and
3 Although the undersigned had indicated during the January 3, 2025 status conference that Dr. Liang’s
letter opinion was likely sufficient to provide a reasonable basis with respect to a brachial neuritis claim,
respondent argues that the court’s unsupported preliminary finding cannot confer a reasonable basis and
that counsel had a duty to assess the claim for reasonable basis, which is informed by the objective
evidence of record. (ECF No. 79, p. 12.)
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appropriate under the Vaccine Act, although there is no presumption of entitlement to
such fees. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1374-75 (Fed. Cir.
2010); Avera, 515 F.3d at 1352; McKellar, 101 Fed. Cl. at 300. In Shaw, the Federal
Circuit clarified that, “[w]here 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 fact that
an attorney is withdrawing may be a circumstance that warrants an interim award, but it
is not necessarily so. Compare Wood v. Sec’y of Health & Human Servs., 105 Fed. Cl.
148, 154 (2012), with McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297,
302 (2011).
In this case, the undersigned initially deferred ruling on the first motion for interim
attorneys’ fees and costs due to prior counsel’s premature exit and the low amount at
issue. (ECF No. 61.) Additionally, by the time the motion was briefed, counsel had
already departed the case. Now, current counsel’s motion to withdraw remains pending
and the amount(s) at issue are cumulatively much higher. Accordingly, although the
case is not expected to remain pending for a prolonged period, the undersigned
exercises his discretion to address departing counsel’s fees and costs now.
b. Whether the Case Maintained a Reasonable Basis
Even having concluded that an interim award is appropriate, attorneys’ fees and
costs can only be awarded “if the special master or court determines that the petition
was brought in good faith and there was a reasonable basis for the claim for which the
petition was brought.” 42 U.S.C. § 300aa-15(e)(1); Cloer v. Sec’y of Health & Human
Servs., 675 F.3d 1358, 1360-61 (Fed. Cir. 2012), aff’d sub nom. Sebelius v. Cloer, 569
U.S. 369 (2013). “Good faith” and “reasonable basis” are two distinct requirements
under the Vaccine Act. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632,
635 (Fed. Cir. 2017). Good faith is a subjective inquiry, while reasonable basis is an
objective inquiry that does not factor subjective views into consideration. See James-
Cornelius ex rel. E.J. v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed.
Cir. 2021). In this case, good faith is not challenged. (ECF Nos. 57, 79.)
Determining whether there was a reasonable basis for the filing of a petition
involves examining the prima facie petition requirements of section 300aa-11(c)(1) of
the Vaccine Act. Cottingham ex rel. K.C. v. Sec’y of Health & Human Servs., 971 F.3d
1337, 1345-46 (Fed. Cir. 2020). Specifically, the petition must be accompanied by an
affidavit and supporting documentation showing that the vaccinee:
(1) received a vaccine listed on the Vaccine Injury Table;
(2) received the vaccination in the United States, or under certain stated
circumstances outside of the United States;
(3) sustained (or had significantly aggravated) an injury as set forth in the
Vaccine Injury Table (42 C.F.R. § 100.3(e)) or that was caused by the
vaccine;
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(4) experienced the residual effects of the injury for more than six months,
died, or required an in-patient hospitalization with surgical intervention;
and
(5) has not previously collected an award or settlement of a civil action for
damages for the same injury.
42 U.S.C. § 300aa-11(c)(1).
The evidentiary standard for establishing a reasonable basis as a prerequisite to
an award of attorneys’ fees and costs is lower than the evidentiary standard for being
awarded compensation under the Vaccine Act. Cottingham, 971 F.3d at 1346. To
establish a reasonable basis for attorneys’ fees, the petitioner need not prove a
likelihood of success. See Woods v. Sec’y of Health & Human Servs., No. 10-377V,
2012 WL 4010485, at *5, 6 (Fed. Cl. Spec. Mstr. Aug. 23, 2012). Instead, the special
master evaluates whether objective evidence, while amounting to less than a
preponderance of evidence, constitutes “more than a mere scintilla” of evidence of the
required showing. Cottingham, 971 F.3d at 1344, 1346.
Determining what constitutes “more than a mere scintilla” of evidence has been
acknowledged to be a “daunting task.” Cottingham v. Sec’y of Health & Human Servs.,
154 Fed. Cl. 790, 795 (2021). The required showing has been characterized as
“evidence beyond speculation that provides a sufficient basis for a reasonable inference
of causation.” Id. (quoting Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761
n.3 (4th Cir. 2021)). A special master may look at the totality of the circumstances;
however, no specific evidentiary framework is required. Sheller v. Sec’y of Health &
Human Servs., 121 F.4th 1301, 1306 (Fed. Cir. 2024); see also Cottingham, 971 F.3d at
1344, 1346; Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289
(2018). “More than a mere scintilla” of objective evidence supporting causation can
derive from medical records that provide “only circumstantial evidence of causation.”
James-Cornelius, 984 F.3d at 1379-80 (quoting Cottingham, 971 F.3d at 1346); see
also Cottingham, 971 F.3d at 1346 (finding that petitioner’s medical records showed, at
minimum, circumstantial evidence of causation where petitioner’s medical records
showed that petitioner received the Gardasil vaccine and subsequently experienced
symptoms that were identified in the Gardasil package insert as potential adverse
reactions of the vaccine).
When assessing the reasonable basis for a petition, special masters are
encouraged to keep in mind “the Vaccine Act’s remedial objective of maintaining
petitioners’ access to willing and qualified legal counsel.” Sheller, 121 F.4th at 1308-09.
Nonetheless, counsel has a duty to avoid frivolous litigation and should use “reasoned
judgment in determining whether to . . . pursue a claim.” Murphy v. Sec’y of Health &
Human Servs., 30 Fed. Cl. 60, 62 (1993), aff’d, 48 F.3d 1236 (Fed. Cir. 1995). “[T]he
[Vaccine] Program’s interest in promoting attorney representation in vaccine cases, as
contemplated by the attorneys’ fees provisions of the statute, must be balanced
carefully against the court’s examination of the reasonableness of the basis for bringing
the vaccine petition.” Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007
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WL 4410030, at *11 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Although counsel has an
“ethical obligation to be a zealous advocate,” that does not give counsel a “blank check
to incur expenses without regard to the merits of [the] claim.” Perreira v. Sec’y of Health
& Human Servs., 27 Fed. Cl. 29, 34-35 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
In this case, the parties’ briefing on the second motion, and especially
respondent’s response, suggests two different reasonable basis analyses, one relative
to the SIRVA alleged in the petition and one relative to the alternative brachial neuritis
claim subsequently suggested by petitioner’s treating physician. (ECF No. 79.)
However, the reasonable basis inquiry pertains to “the claim for which the petition was
brought.” 42 U.S.C. § 300aa-15(e)(1). Although the undersigned suggested that there
could be a reasonable basis for a brachial neuritis claim, this was in the context of
directing petitioner to amend her pleading if she wished to pursue such a claim and
permitting her to retain new counsel to explore whether such an amended claim would
be viable. (ECF No. 52-54.) However, although petitioner did retain new counsel, she
never amended her petition to pursue a brachial neuritis claim. Accordingly, the
dispositive question remains whether the actual petition, which alleged a
musculoskeletal shoulder injury, maintained a reasonable basis.
Specifically, when this case was initially filed, petitioner alleged that she suffered
a Table Injury of SIRVA. (ECF No. 1, p. 1.) In support of that allegation, she further
alleged that (1) she was vaccinated in her left arm on August 28, 2020; (2) that she
reported 12 days of left arm pain to her chiropractor on September 8, 2020; (3) that,
although Dr. Liang first diagnosed neuropathy and cervical radiculopathy, he later
changed his diagnosis to bursitis of the left shoulder; (4) that petitioner pursued physical
therapy for left shoulder pain reported to have occurred the day after vaccination; and
(5) that Dr. Liang later diagnosed an acute rotator cuff injury. (ECF No. 1, pp. 1-2.)
Although respondent raises confounding factors (ECF No. 79, pp. 2-3), all of these
points are substantiated by the medical records that have been filed. (Ex. 1; Ex. 2; Ex.
3, p. 5; Ex. 4, pp. 25-27, 32; Ex. 5, pp. 1-3.)
Of course, clinical evidence of neuropathy is incompatible with a Table SIRVA;
however, respondent’s argument that the evidence of neuropathy is so contrary to
petitioner’s claim as to undermine a reasonable basis for her claim understates the
degree of uncertainty involved in this case. Significantly, the instant question is not
whether the evidence preponderates in favor of a Table SIRVA, but whether there is at
least a mere scintilla of evidence to support the presence of a Table SIRVA. See, e.g.,
Bostic ex rel. K.T. v. Sec’y of Health & Human Servs., No. 22-1118V, 2023 WL
4486158, at *5 (Fed. Cl. Spec. Mstr. June 15, 2023) (finding a reasonable basis for a
SIRVA claim where “there is also significant medical record evidence reflecting reports
of symptoms potentially consistent with a neurologic injury extending beyond the
shoulder, which greatly complicates any Table SIRVA claim with regard to the third and
fourth criteria. Importantly, however, none of these symptoms have been confirmed by
objective testing and K.T.’s treating physicians have not provided any specific
neurologic diagnosis nor ruled out an orthopedic/musculoskeletal injury.”); see also
Durham v. Sec’y of Health & Human Servs., No. 17-1899V, 2023 WL 3196229, at *14
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(Fed. Cl. Spec. Mstr. May 2, 2023) (explaining a petitioner may prove a Table SIRVA
even if there is some clinical evidence of neuropathy, if she can nonetheless prove it is
not meaningful to her symptoms).
Although Dr. Liang presented a letter opining that petitioner suffered brachial
neuritis (Ex. 16), respondent’s experts purported to refute that contention (Exs. A, C)
and respondent himself argues that Dr. Liang’s brachial neuritis diagnosis was not
supported by the medical records (ECF No. 79, p. 11). Indeed, respondent argues that
the evidence supporting brachial neuritis does not even rise to the level of a mere
scintilla of evidence. (Id. at 12.) And, while respondent otherwise argues that evidence
of another neurologic condition nonetheless undermines any potential SIRVA claim, as
petitioner observed in reply (ECF No. 80, p. 3), respondent’s neurology expert did not
arrive at a more likely than not explanation for the entirety of petitioner’s symptoms
(Ex.C, p. 7 (opining that the identified conditions “could explain some of her
symptoms”)). And, although Dr. Cagle opined that no shoulder diagnosis was
supported by the medical records (Ex. A, p. 7), petitioner’s subsequently obtained MRI,
though years after the fact, did provide objective evidence of shoulder pathology (Ex.
21, p. 15) that potentially supports Dr. Liang’s more contemporaneous clinical
impression of a rotator cuff etiology. Respondent is not persuasive in suggesting that
the demonstrated pathology, which included tendinitis in addition to labral tears, is in
itself confounding of a SIRVA. 42 C.F.R. § 100.3(c)(10) (explaining that SIRVA
encompasses injury to the “tendons, ligaments, bursae, etc.”).
Accordingly, though obviously contested, involving an unclear diagnosis, and still
unlikely to succeed based on the record developed to date, this case has maintained a
reasonable basis throughout its pendency to date, even if just barely.
c. Reasonableness of the Requested Attorneys’ Fees
In determining the appropriate amount to be awarded, 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. First, a court determines an “initial
estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation
times a reasonable hourly rate.’” Id. at 1347-48 (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. 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 (Fed. Cir. 1993); see also Hines
ex rel. Sevier 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.”). 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., 86 Fed. Cl. 201, 209 (2009).
Applications for attorneys’ fees must include contemporaneous and specific
billing records that indicate the work performed and the number of hours spent on said
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work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008).
Such applications should not include hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983)). In reviewing fee applications, special masters need not engage in a line-by-line
analysis. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(2011). Instead, they may rely on their experience with the program to determine the
reasonable number of hours expended. Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. 482, 486 (1991), aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as
“[t]rial courts routinely use their prior experience to reduce hourly rates and the number
of hours claimed in attorney fee requests . . . [v]accine program special masters are
also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d
at 1521. Attorneys’ costs must also be reasonable and sufficiently documented. See
Perreira, 27 Fed. Cl. at 34 (“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.”).
i. Burdette Law
The undersigned agrees that the hourly rates requested by the Burdette firm are
reasonable as a general matter. Accord McDaniel, 2023 WL 4043683, at *2. However,
in this specific case, Ms. Burdette’s hourly rate should be reduced to $177 per hour, the
lowest available attorney forum rate for 2021, the year Ms. Burdette began billing in this
case.4 The reason for this is that neither counsel’s billing records (ECF No. 55-1), nor
her conduct at the January 3, 2025 status conference and related premature exit from
the case (ECF No. 54), reflect anything but the most rudimentary of legal experience. In
effect, Ms. Burdette’s role was limited to an attempt to collect medical records, file the
action, and assert a settlement demand. Once respondent indicated he would defend
the case, Ms. Burdette revealed herself to be either unable or unwilling to prosecute the
case further.5 (Id.) This results in a reduction of $1,898.26.6
4 See https://www.uscfc.uscourts.gov/sites/cfc/files/osm_hourly_rate_2021.pdf.
5 One could reasonably question whether the subsequent history in this case, and especially the
departure of a second petitioner’s counsel, suggests that the Burdette firm’s poor performance was due to
extenuating circumstances related to the specific attorney-client relationship at issue. Indeed, respondent
makes a point of arguing that petitioner’s second counsel of record likewise made no progress in the
case. (ECF No. 79, p. 14.) However, the experience of the two firms is distinguishable. The Burdette
firm was responsible for prosecuting this case for nearly four years and in that time never meaningfully
sought to substantiate the claim apart from the most basic task of filing medical records and presenting
the letter of a treating physician that, on its face, confounded the injury alleged in the petition. Indeed,
Ms. Burdette specifically confirmed to the undersigned her unwillingness to explore retention of any
expert at all. (ECF No. 54.) By contrast, Mr. Webb, in the span of 13 months, worked with petitioner to
work through two different approaches to the case and consulted two different experts in relevant fields.
Accordingly, while he likewise did not file any expert report, the experience of subsequent counsel is not
informative of the performance of the Burdette firm.
6 Counsel’s billing records do not include separate totals for each individual who billed on the case.
Based on the undersigned’s own tally, Ms. Burdette billed 19.37 hours in the case. (ECF No. 55-1.) At
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Additionally, most of the billing entries are impermissibly vague. In fact, a
majority of the entries are limited to noting that some form of e-mail, text exchange, or
interoffice communication had occurred. Moreover, given counsel’s apparent
unwillingness to grapple with the significant issues in the case over the nearly four-year
period reflected in the billing records, the lack of meaningful detail in the billing records
cannot be overlooked. Accordingly, a further 10% reduction is warranted, resulting in
attorneys’ fees of $15,891.34.7
ii. Black, McLaren, et al.
The undersigned agrees that the hourly rates requested by Black, McLaren, et al.
are consistent with prior awards and are reasonable.8 E.g., Dhital v. Sec’y of Health &
Human Servs., No. 22-101V, 2025 WL 2401317 (Fed. Cl. Spec. Mstr. July 15, 2025).
Additionally, based on a review of the billing records, the hours expended are
reasonable as well. In reaching this conclusion, the undersigned has considered
respondent’s contention that the attorneys’ fees generated were excessive and
disproportionate. (ECF No. 79, p. 14.) However, respondent did not include any
objection “with particularity.” Vaccine Rule 13(a)(3). Moreover, while respondent
suggests that the fees are unusually high, the lack of diagnostic clarity in this case
means that it is significantly more involved and challenging than a typical SIRVA case.
Indeed, petitioner’s counsel reasonably explained in his reply that, once prior counsel
introduced Dr. Liang’s brachial neuritis diagnosis, which respondent in turn disputes is
supported by the medical records, it became incumbent upon counsel to investigate
both the musculoskeletal and neurologic approaches to the case. (ECF No. 80.)
Additionally, the undersigned believes that respondent’s concern is answered at least in
part by the fact that the change in counsel necessitated by prior counsel’s premature
exit likely resulted in unavoidable inefficiencies and delayed necessary investigation into
the underlying scientific and medical merits of the claim, points addressed by the above-
discussed cuts to the Burdette firm’s billing.
$275 per hour, this would total $5,326.75. At $177 per hour, this would total $3,428.49, a difference of
$1,898.26.
7 After the initial reduction relative to Ms. Burdette’s hourly rate, total attorneys’ fees are $17,657.04.
Reduced by 10%, that total comes down to $15,891.34.
8 To the undersigned’s knowledge, no prior decision has addressed this firms 2026 hourly rates. Indeed,
the instant motion was filed prior to OSM’s publication of the 2026 form rate chart. For purposes of this
decision, the undersigned concludes that it was reasonable for counsel to do his own calculation using
the PPI-OL to estimate a reasonable 2026 rates; however, the specific PPI-OL index used by counsel
(September 2025) is not the same as the index that was ultimately used for the 2026 forum rate chart
(July 2025). See
https://www.uscfc.uscourts.gov/sites/cfc/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%2
02026.pdf. Accordingly, acceptance of the requested 2026 rates in this decision should not be taken as
any indication of how counsel’s rates will ultimately be adjudicated under the subsequently issued 2026
rate schedule.
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Accordingly, the undersigned finds that the attorneys’ fees requested, totaling
$73, 014.40, are reasonable and should be awarded in full.
d. Reasonableness of the Requested Attorneys’ Costs
Just as they are required to establish the reasonableness of requested fees,
petitioners must also demonstrate that requested litigation costs are reasonable.
Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Perreira, 27 Fed. Cl. at 34.
Reasonable costs include the costs of obtaining medical records and expert time
incurred while working on a case. Fester v. Sec’y of Health & Human Servs., No. 10-
243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).
Based on my review of the billing records for both firms, I conclude that all of the
requested costs were reasonably incurred. Respondent did not challenge any of the
costs incurred by the Burdette firm within the first motion, which total only $2,732.63.
And again, although respondent challenged the overall total for attorneys’ fees and
costs within the second motion, he did not include any objection “with particularity” and
did not include any argument with specific respect to the requested costs. Vaccine Rule
13(a)(3).
Respondent’s argument that it was unreasonable to explore both brachial neuritis
and SIRVA simultaneously is not persuasive in light of the procedural history and for the
reasons discussed in petitioner’s reply (ECF No. 80). But in any event, this concern is
not necessarily dispositive of the reasonableness of consulting both a neurologist and
an orthopedist to discuss the diagnostic issue. Afterall, respondent filed reports by both
a neurologist and orthopedist opining as to the presence of certain potentially
confounding neurologic conditions, as well as disputing that a shoulder injury was
present. Accordingly, both reports could reasonably warrant rebuttal regardless of
whether petitioner pursued a brachial neuritis or musculoskeletal injury claim. And,
importantly, the hourly rates requested by both experts are reasonable. E.g., Baker v.
Sec’y of Health & Human Servs., No. 21-1869V, 2025 WL 1513417, at *4 (Fed. Cl.
Spec. Mstr. Apr. 29, 2025) (collecting cases accepting Dr. Jeret’s rate of $500 per hour);
Aycock v. Sec’y of Health & Human Servs., No. 19-235V, 2023 WL 8869432 (Fed. Cl.
Spec. Mstr. Nov. 8, 2023) (finding $1,000 per hour is a reasonable rate for Dr.
Srikumaran). But see, e.g., Crawford v. Sec’y of Health & Human Servs., No. 19-544V,
2024 WL 5321766, at *3 (Fed. Cl. Spec. Mstr. Dec. 9, 2024) (distinguishing Aycock and
awarding a lesser rate due to inefficiency). Moreover, based on a review of the
invoices, the hours billed were reasonable.
IV. Conclusion
In light of the above, petitioner’s first motion for an award of interim attorneys’
fees and costs is GRANTED in part and DENIED in part. The motion is granted to the
extent that an interim award is made, but denied to the extent that attorneys’ fees are
awarded in a reduced amount. Petitioner’s second motion for an award of interim
attorneys’ fees and costs is GRANTED, and the requested attorneys’ fees and costs are
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awarded in full. Thus, petitioner is awarded interim attorneys’ fees and costs in the total
amount of $110,559.06 as follows:
• A lump sum of $18,623.97, representing reimbursement of attorneys’ fees
and costs, to be paid through an ACH deposit to petitioner’s former
counsel of record, Ms. Kelly Burdette’s IOLTA account for prompt
disbursement; and
• A lump sum of $91,935.09, representing reimbursement of attorneys’ fees
and costs, to be paid through an ACH deposit to petitioner’s former
counsel of record, Mr. Christopher Webb’s IOLTA account for prompt
disbursement.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment herewith.9
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
9 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
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