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

0In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 11, 2019
* * * * * * * * * * * * * *
THE ESTATE OF CLETUS J. *
MUENSTERMAN, by its Personal
*
Representative GERALD L. *
MUENSTERMAN, * No. 18-714V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Daniel H. Pfeifer, Pfeifer, Morgan & Stesiak, South Bend, IN, for Petitioner.
Mollie D. Gorney, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On May 21, 2018, Gerald L. Muensterman (“petitioner”), as personal representative of the
estate of Cletus J. Muensterman, filed a petition for compensation pursuant to the National Vaccine
Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). The petition alleged that
Cletus J. Muensterman developed a shoulder injury related to vaccine administration (“SIRVA”)
as a result of the pneumococcal vaccine he received on June 16, 2015. Pet. at 1, ECF No. 1. On
June 26, 2019, petitioner filed a motion for a decision dismissing his petition and the undersigned
1
The undersigned intends 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is 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. § 3501 note (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).
issued her Decision dismissing the petition on June 28, 2018. Decision, ECF No. 29.
On July 1, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No. 31
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $15,299.90
(representing $14,519.50 in fees and $780.40 in costs). Fees App. at 1. Pursuant to General Order
No. 9, petitioner warrants that he has not personally incurred any costs related to this litigation. Id.
Respondent responded to the motion on March 22, 2019, indicating that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting
that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Resp’t’s Resp. at 2–3 (ECF No. 69). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable 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, they are eligible so long as 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). Here, the undersigned does not doubt that the petition was filed
in good faith, and although the petition was eventually dismissed, the undersigned finds that there
was reasonable basis to file the petition. Respondent has also not challenged the reasonable basis
of the petition. Accordingly, a final award of fees is appropriate.
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 895. 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.
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,
2
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, and 2019 can be accessed online.3
Petitioner requests the following rates of compensation for the work of his attorneys: for
Mr. Daniel Pfeifer, $400.00 per hour for all work performed in this case (2015, 2018-2019), and
for Mr. Jerome McKeever, $250.00 per hour for all work performed (in years 2015-2019). These
rates are consistent with what Mr. Pfeifer and Mr. McKeever have previously been awarded for
their Vaccine Program work. See, e.g., Knura v. Sec’y of Health & Human Servs., No. 17-737V,
2018 WL 6167087, at *5 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). Accordingly, the requested rates
are reasonable.
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.
Upon review, the undersigned finds the billed hours to be reasonable. Counsel has provided
sufficiently detailed descriptions for the tasks performed, and upon review the undersigned does
not find any of the billing entries to be unreasonable. Respondent has also not indicated that he
finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final
attorneys’ fees in the amount of $14,519.50.
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 $780.40 for acquisition of medical records and the Court’s filing fee. Petitioner has
provided adequate documentation in support of the requested costs and all are reasonable in the
undersigned’s experience. Accordingly, petitioner is entitled to the full amount of costs sought.
II. Conclusion
Based on all the above, the undersigned finds that petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
3
Attorneys’ Fees Requested $14,519.50
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $14,519.50
Attorneys’ Costs Requested $780.40
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $780.40
Total Attorneys’ Fees and Costs $15,299.90
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that petitioner’s request for fees and
costs is reasonable. Accordingly, the undersigned awards a lump sum in the amount of
$15,299.90, representing reimbursement for petitioner’s attorneys’ fees and costs, in the
form of a check payable to petitioner and his attorney, Mr. Daniel Pfeifer.
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/Herbrina D. Sanders
Herbrina D. Sanders
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).
4