Dineen v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 29, 2019
* * * * * * * * * * * * *
EVE DINEEN and DANIEL *
DINEEN, as legal representatives of a * UNPUBLISHED
minor child, E.D.D., *
* No. 15-700V
Petitioners, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Interim Award;
AND HUMAN SERVICES, * Adjustment of Attorney’s Rate.
*
Respondent. *
* * * * * * * * * * * * *
Mark T. Sadaka, Mark T. Sadaka LLC, Englewood, NJ, for petitioners.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On September 30, 2019, Eve Dineen and Daniel Dineen (“petitioners”) filed a motion for
interim attorneys’ fees and costs. I hereby GRANT the motion and award $44,385.94 in
interim attorneys’ fees and costs.
I. Procedural History
On July 6, 2015, petitioners filed this claim in the National Vaccine Injury Compensation
Program. Petition (ECF No. 1).2 Petitioners allege that their minor child E.D.D. developed a
seizure disorder as a result of receiving measles, mumps, and rubella (“MMR”), diphtheria-
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion is
posted on the court’s website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed
redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the court’s website without any changes. 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.A. §
300aa.
tetanus-acellular pertussis (“DTaP”), and Hepatitis B vaccines on July 24, 2012. Id. Petitioners
were assisted by their former counsel, Mr. Martin Martinez, in filing the petition. I then granted
Mr. Martinez’s motion to withdraw from the claim and awarded him interim attorneys’ fees and
costs in the amount of $15,216.00. See Dineen v. Sec’y of Health & Human Servs., No. 15-
700V, 2016 WL 1627199 (Fed. Cl. Spec. Mstr. April 4, 2016).
Since March 2016, petitioners have been represented by their current attorney of record,
Mr. Sadaka. In April 2016, respondent filed a Rule 4(c) report in which respondent
recommended against compensation. Resp. Rep’t (ECF No. 29). In July 2016, petitioners filed
updated medical records. Pet. Exs. 10-12 (ECF No. 35). After receiving several extensions of
time, in December 2016, petitioners filed the first expert reports from Dr. Vera Byers and Dr.
Marcel Kinsbourne. Pet. Ex. 13 (ECF No. 43); Pet. Ex. 14 (ECF No. 44). Respondent received
several extensions of time before filing initial expert reports from Dr. Stephen J. McGeady and
Dr. Shlomo Shinnar in March 2017. Resp. Exs. A, B (ECF No. 51). On April 27, 2017, I held a
Rule 5 status conference during which I posed numerous questions for supplemental expert
reports. Scheduling Order filed May 1, 2017 (ECF No. 53).
In June 2017, petitioners filed Dr. Byers’s second report, Pet. Ex. 27 (ECF No. 57), and
Dr. Kinsbourne’s second report, Pet. Ex. 51 (ECF No. 57). In August 2017, respondent filed Dr.
McGeady’s second report. Resp. Ex. E (ECF No. 61). After several extensions of time,
respondent filed Dr. Shinnar’s responsive report. Resp. Ex. F (ECF No. 67). On January 9,
2018, I held a status conference to discuss those supplemental expert reports. I stated that both
parties carried litigative risk and should pursue informal resolution. An entitlement hearing
could not be scheduled for over two years. Scheduling Order filed January 10, 2018 (ECF No.
69).
Petitioners conveyed a demand to respondent. Pet. Status Report filed February 5, 2018
(ECF No. 70). Respondent requested that petitioners provide updated information about
E.D.D.’s condition, most particularly neurology records and/or primary care records
documenting any symptomatology from epilepsy. Resp. Status Report filed March 7, 2018 (ECF
No. 71). Petitioners filed updated medical and school records. Pet. Exs. 42-44. Ultimately,
respondent declined to support settlement negotiations in the case. Joint Status Report filed
August 20, 2018 (ECF No. 80). I placed the case on a list of future entitlement hearings to be
scheduled. Scheduling Order filed August 27, 2018 (ECF No. 81).
Approximately one year later, I scheduled a status conference to revisit the case.
Petitioners then filed a motion for interim attorneys’ fees and costs. This is the second such
motion in the case, but the first for Mr. Sadaka, their attorney of record since March 2016.
Second Motion for Interim Attorneys’ Fees and Costs (“Second Int. Fee App.”) filed September
30, 2019 (ECF No. 82). Mr. Sadaka requests $27,666.82 in attorneys’ fees and $16,720.72 in
attorneys’ costs, for a total interim request of $44,387.53. Second Int. Fee App., Tab 1 at 15-17.
On October 7, 2019, I held the previously-scheduled status conference in this case. It
was confirmed that E.D.D.’s health is stable and that respondent has declined to support
settlement discussions. I reserved January 2021 for a two-day entitlement hearing in the case. I
ordered the parties to identify a mutually agreeable location and dates by November 7, 2019.
2
Scheduling Order filed October 8, 2019 (ECF No. 83).
On October 10, 2019, respondent filed a response (ECF No. 84). Respondent “defer[red]
“to the Special Master as to whether petitioners have made a special showing to justify an award
of interim attorneys’ fees and costs under the particular circumstances of this case.” Id. at 2.
“Should the Special Master find that petitioners are eligible for an award of interim attorneys’
fees and costs, respondent respectfully recommends that the Special Master exercise his
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. On October
15, 2019, petitioners filed a reply (ECF No. 77). This matter is now ripe for adjudication.
II. Entitlement to Attorneys’ Fees and Costs
A. Legal Standard
The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012). In light of the lack of specific objections from respondent and my
full review of the evidence, I find that this claim was filed with and has maintained good faith
and reasonable basis to date.
B. Interim Awards
The Vaccine Act permits interim attorneys’ fees and costs. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of Health & Human Servs.,
609 F.3d 1372 (Fed. Cir. 2010). In Shaw, the Federal Circuit held that it was proper to grant an
interim award when “the claimant establishes that the cost of litigation has imposed an undue
hardship.” 609 F.3d at 1375. In Avera, the Federal Circuit stated that “[i]nterim fees are
particularly appropriate in cases where proceedings are protracted and costly experts must be
retained.” 515 F.3d at 1352. I do not routinely grant interim fee applications. I generally defer
ruling on an interim fee application if: the case has been pending for less than 1.5 years
(measured from the date of filing); the amount of fees requested is less than $30,000; and/ or the
aggregate amount of expert costs is less than $15,000. If any one of these conditions exists, I
generally defer ruling until these thresholds are met or until an entitlement hearing has occurred.
These are, however, only informal requirements, and there are ultimately many factors bearing
on the merit of an interim fee application. I evaluate each one on its own merits.
In this case, the first interim award was to prior counsel. Mr. Sadaka has been the
attorney of record for over three years. In that time, he has obtained additional medical records,
retained two experts, and made a concerted but unsuccessful effort to settle the case. He has
incurred fees and costs surpassing the thresholds identified above. He will likely incur
3
additional fees and costs related to the entitlement hearing expected to take place in January
2021. Accordingly, I find that an interim fee award is appropriate at this time.
III. Reasonable Attorneys’ Fees and Costs
A. Legal Standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar approach, a
court first determines “an initial estimate of a reasonable attorneys’ 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. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
B. Hourly Rates
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon an individual’s experience. McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (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. The Attorneys Forum Hourly Rate Fee Schedules
for 2015-2016, 2017, 2018, and 2019 can be accessed online.3 Here, Mr. Sadaka has billed
$362.95 per hour for work performed in 2016; $376.38 in 2017; $396.00 in 2018; and $406.00 in
2019. Pet. Int. App. at 2. These rates are generally reasonable and consistent with the rates
3
United States Court of Federal Claims – OSM Attorneys’ Forum Hourly Rate Fee Schedules, available at
http://www.cofc.uscourts.gov/node/2914 (last accessed on October 29, 2019).
4
awarded to him in other cases. However, he has generally been held to $405.00 per hour for
work performed in 2019, consistent with the OSM Fee Schedule for attorneys within his
category of experience for that year. See, e.g., Edwards v. Sec’y of Health & Human Servs., No.
15-668V, 2019 WL 4911060 at *2, n. 4 (Fed. Cl. Spec. Mstr. Sept. 27, 2019). I will similarly
award him $405.00 per hour, resulting in a reduction of $1.60. Pet. Int. App., Tab 1 at 23-24.
No further adjustments are necessary to the rates requested for Mr. Sadaka (or the paralegals who
entered time on this case).
C. Hours Expended
As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness of hours expended. Id. 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.
The present interim fee application is adequately detailed. The tasks described and the
number of hours are generally reasonable. I do not find cause for adjustment. Accordingly,
petitioners are awarded $27,665.22 in interim attorneys’ fees.
D. Costs
Like attorneys’ fees, costs incurred - by counsel or petitioners themselves - must be
reasonable to be reimbursed by the Program. Perreira, 27 Fed. Cl. 29, 34. Here, petitioners
request $16,720.72 in interim attorneys’ costs. These include the costs of obtaining medical
records and postage and a $2,000.00 retainer paid to Dr. Marcel Kinsbourne. Most significant is
Dr. Vera Byers’s invoice for $14,400.00 (representing 36 hours of work to date, at $400.00 per
hour). The costs are adequately documented and reasonable based on my knowledge of the case.
Therefore, petitioners are awarded $16,720.72 in interim attorneys’ costs.
IV. Conclusion
In accordance with the foregoing, petitioners’ motion for interim attorneys’ fees and costs
is GRANTED. I award the following reasonable interim attorneys’ fees and costs at this time:
Interim Attorneys’ Fees Requested: $ 27,666.82
Reduction to Mr. Sadaka’s 2019 Rate: -$ 1.60
Interim Attorneys’ Fees Awarded: $ 27,665.22
Interim Attorneys’ Costs Awarded: $16,720.72
Interim Attorneys’ Fees and Costs Awarded: $44,385.94
5
Accordingly, I award the following:
1) A lump sum in the amount of $44,385.94, representing reimbursement for
interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioners and their counsel, Mark T. Sadaka.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court is directed to enter judgment forthwith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
6