Trevisan v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: March 25, 2021)
* * * * * * * * * * * * * *
VICTORIA TREVISAN, * UNPUBLISHED
*
Petitioner, * No. 19-880V
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Alexis B. Babcock, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 17, 2019, Victoria Trevisan (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that as
a result of the human papillomavirus (“HPV”) vaccinations administered on July 12, 2016, she
suffered from “Mononucleosis, Postural Orthostatic Tachycardia Syndrome, Fibromyalgia,
Chronic Fatigue Syndrome/Myalgic Encephalomyelitis, Anxiety and Panic Disorder,
Gastroparesis, Vitamin D Deficiency Hashimoto’s Disease, Lyme Disease, Ulcerative Colitis
and Mast Cell Activation Syndrome.” Petition at 1 (ECF No. 1). On September 9, 2020,
petitioner filed an amended petition, maintaining that petitioner’s “injuries of Postural
1
This decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 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
filed 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 current form. 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.
§§ 300aa.
Orthostatic Tachycardia Syndrome, Fibromyalgia, CFS/ME, Hashimoto’s, Ulcerative Colitis,
Anxiety and Panic Disorder, Gastroparesis, and MCAS were caused-in-fact by the third [HPV]
vaccination received on July 12, 2016.” Amended (“Am.”) Petition at 5 (ECF No. 44). On
November 18, 2020, petitioner moved for a decision dismissing her case. On November 25,
2020, the undersigned issued her decision dismissing petitioner’s case. (ECF No. 57).
On December 2, 2020, petitioner filed an application for attorneys’ fees and costs.
Motion for Attorney Fees and Costs (ECF No. 61). Petitioner requests compensation in the
amount of $24,313.75, representing $19,305.50 in attorneys’ fees and $5,008.25 in attorneys’
costs. Fees App. at 3. Pursuant to General Order No. 9, petitioner states she has not incurred any
costs related to the prosecution of her petition. Fees App. at 5. Respondent filed his response on
December 14, 2020, stating that “[s]hould the Special Master be satisfied that the reasonable
basis and fee award standards are met in this case, respondent respectfully recommends that the
Special Master exercise her discretion and determine a reasonable award for attorneys’ fees and
costs.” Response at 4 (ECF No. 62). Petitioner did not file a reply thereafter. The matter is now
ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $23,913.75.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
and costs “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.” Id. at
§15(e)(1). In this case, although the petition was eventually dismissed, the undersigned finds
that it was filed in good faith, and reasonable basis existed throughout the matter. Respondent
also has not challenged the reasonable basis of this case. Accordingly, petitioner is entitled to a
final award of reasonable attorneys’ fees and costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85
2
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It
is “well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
A special master need not engage in a line-by-line analysis of a petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and 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 clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.
i. Reasonable Hourly Rates
Petitioner requests the following rates of compensation for her attorney, Mr. Andrew
Downing at the rate of $385 per hour for work performed in 2020. This rate is consistent with
what Mr. Downing has previously been awarded for his Vaccine Program work, and the
undersigned finds it to be reasonable herein.
ii. Reasonable Hours Expended
In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
master may take into account their overall sense of a case and may use estimates when reducing
an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at
*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well
established that an application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file, whether the
amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760
(1989); Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and
costs claimed. Id. at *8.
Upon review of the submitted billing records, the undersigned finds the majority of the
time billed to be reasonable. The timesheet entries are sufficiently detailed for an assessment to
be made of the entries’ reasonableness. However, a small reduction is necessary due to excessive
paralegal time billed. Paralegals billed time on administrative tasks such as preparing and filing
documents. Paralegal time was also excessive for preparation of routine filings, such as notices
of filing documents . These issues have previously been raised with the Van Cott & Talamante
firm. Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3
3
(Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-538V,
2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Therefore, a reasonable reduction
of $400.00 is being made for excessive billing for paralegal time.
b. Attorneys’ Costs
Petitioner requests a total of $5,008.25 in attorneys’ costs. This amount is comprised of
postage and work performed by petitioner’s expert, Dr. Mitchell Miglis. Petitioner has provided
adequate documentation supported these costs, and all appear reasonable in the undersigned’s
experience. Petitioner is therefore awarded the full amount of costs sought.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and her counsel as follows:
Attorneys’ Fees Requested $19,305.50
(Total Reduction from Billing Hours) - ($400.00)
Total Attorneys’ Fees Awarded $18,905.50
Attorneys’ Costs Requested $5,008.25
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $5,008.25
Total Attorneys’ Fees and Costs Awarded $23,913.75
Accordingly, the undersigned awards a lump sum in the amount of $23,913.75,
representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner
and her counsel, Mr. Andrew D. Downing.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
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.
4