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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 30, 2021
* * * * * * * * * * * * * * UNPUBLISHED
GERALDINE PETROCELLI, * No. 17-1019V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Michael A. London, Douglas & London, P.C., New York, NY, for Petitioner.
Sarah C. Duncan, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On July 28, 2017, Geraldine Petrocelli (“petitioner”) filed a claim under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that she suffered
cellulitis as a result of her receipt of the influenza vaccination on September 18, 2014. (ECF No.
1.) On May 26, 2020, the parties filed a stipulation, which I adopted as my decision awarding
compensation on the same day. (ECF No. 50.)
On December 14, 2020, petitioner filed an application for attorneys’ fees and costs. (ECF
No. 55) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$47,518.67 (representing $39,029.00 in fees, $8,409.56 in attorneys’ costs, and $80.11 personally
incurred by petitioner). Fees App. Ex. 1. Respondent responded to the motion on December 21,
2020, indicating that “Respondent is satisfied the statutory requirements for an award of attorneys’
1
I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling
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. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am required to post it on the United States
Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501note (2012) (Federal Management and Promotion of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
fees and costs are met in this case.” Resp. at 2 (ECF No. 56). Petitioner did not file a reply
thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008). 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.
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.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
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)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.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
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (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 claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
2
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3
Petitioner requests the following hourly rates for the work of her attorneys: for Mr. Michael
London, $375.00 per hour for work performed in 2015-2017, $400.00 per hour for work performed
in 2018, and $425.00 per hour for work performed in 2019 and 2020; and for Ms. Virginia Anello,
$350.00 per hour for work performed in 2015-2017, $375.00 per hour for work performed in 2018,
$380.00 per hour for work performed in 2019, and $385.00 per hour for work performed in 2020.
These rates are consistent with what counsel has previously been awarded for their work in the
Vaccine Program and the undersigned finds them to be reasonable for the work performed in the
instant case. See Guzman v. Sec’y of Health & Human Servs., No. 15-736V, 2020 WL 3619889(Fed. Cl. Spec. Mstr. Jun. 19, 2020).
b. Hours Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review, the overall number of hours billed appears to be largely reasonable. I have
reviewed the billing entries and find that they adequately describe the work done on the case and
the amount of time spent on that work. However, it appears that Ms. Anello has billed a small
amount of time performing tasks which are traditionally handled by paralegals, such as acquiring
and preparing medical records, filing documents, docketing deadlines, and mailing documents.
“Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s
rate.” Riggins v. Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed.
Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who
ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v.
Sec’y of Health & Human Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr.
Jan. 29, 2010). Most paralegal tasks were properly billed as paralegal work. Therefore, only a
small reduction is necessary to address this issue. Upon review, I shall reduce the final award of
fees by $400.00. Petitioner is therefore awarded final attorneys’ fees of $38,629.00.
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
3
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $8,409.56 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, and work performed by petitioner’s medical expert, Dr. Marc Serota. Fees App.
at 12. Petitioner has provided adequate documentation of the requested costs and they appear to
be reasonable in my experience. Petitioner is therefore awarded the full amount of costs sought.
d. Petitioner’s Costs
Pursuant to General Order No. 9, petitioner states that she has personally incurred $80.11
in costs related to the prosecution of her claim. Fees App. Ex. 5. This amount represents postage
and has been supported with adequate documentation. Petitioner shall therefore be fully
reimbursed for these expenses.
II. Conclusion
Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:
Attorneys’ Fees Requested $39,029.00
(Reduction to Fees) - ($400.00)
Total Attorneys’ Fees Awarded $38,629.00
Attorneys’ Costs Requested $8,409.56
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $8,409.56
Total Attorneys’ Fees and Costs $47,038.56
Petitioner’s Costs $80.11
Total Amount Awarded $47,118.67
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs is
reasonable. I find it reasonable to compensate petitioner and her counsel as follows:
1) a lump sum in the amount of $47,038.56, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney,
Mr. Michael London; and
2) a lump sum in the amount of $80.11, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
4
In the absence of a motion for review filed pursuant to RCFC Appendix B, 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
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
5