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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-433V
(not to be published)
HEATHER JARUSEWSKI as
parent and legal representative of Chief Special Master Corcoran
her minor son, L.S.J.,
Filed: November 29, 2021
Petitioner,
v. Attorney’s Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Harrison W. Long, Rawls Law Group, Richmond, VA, for Petitioner.
Kimberly S. Davey, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On April 14, 2020, Heather Jarusewski filed a petition for compensation on behalf
of her minor child, L.S.J., under the National Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that L.S.J. suffered
vaccine-induced alopecia universalis resulting in baldness as a result of the
meningococcal and human papillomavirus vaccines he received on June 12, 2018. On
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision 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.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
August 20, 2021, petitioner filed a motion to voluntarily dismiss her petition and on August
23, 2021, I issued my decision dismissing the petition for insufficient proof. (ECF No. 31).
Petitioner has now filed a motion for final attorney’s fees and costs, dated
September 10, 2021 (ECF No. 35) (“Fees App.”), requesting a total award of $36,594.01
(representing $21,269.20 in fees and $15,324.81 in costs). In accordance with General
Order No. 9, Petitioner has indicated that she has not incurred any out-of-pocket costs in
pursuit of this litigation. Respondent filed his response to the fees request on September
13, 2021, stating that “Respondent is satisfied the statutory requirements for an award of
attorney’s fees and costs are met in this case” and asking me to exercise my discretion
and determine a reasonable award for attorney’s fees and costs. Response at 2-3 (ECF
No. 58). Petitioner did not file a reply thereafter.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). 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
& Human Servs., 85 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 & 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
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fees request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
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practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S., at 434.
ATTORNEY FEES
A. Hourly Rates
I have reviewed the hourly rates requested by Petitioner for the work of her
attorneys at Rawls Law Group (the billing records indicate that the majority of attorney
work was performed by Mr. Harrison Long, with supporting work from Mr. Glen Sturtevant
and Mr. David Tierney). The hourly rates requested for these individuals are consistent
with what they have previously been awarded for their Vaccine Program work and I find
them to be reasonable for work performed in the instant case.
B. Hours Billed
Upon review, I find the billed hours to be reasonable. The billing entries describe
with sufficient detail the task being performed and the time spent on each task.
Respondent has not identified any particular entries as objectionable and upon review, I
did not find any entries to be objectionable either. Accordingly, Petitioner is entitled to a
final award of attorney’s fees of $21,269.20.
COSTS
Just as they are required to establish the reasonableness of requested fees,
petitioners must also demonstrate that requested litigation costs are reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). 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). When petitioners fail to carry their burden, such as by not providing
appropriate documentation to substantiate a requested cost, special masters have
refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec’y of Health &
Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30,
2005).
Petitioner requests $15,324.81 in attorneys’ costs. The majority of this amount is
for work performed by Petitioner’s medical expert, Dr. M. Eric Gershwin, with the
remainder comprised of acquiring medical records, postage, and the Court’s filing fee. I
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have reviewed the requested costs and I find them to be reasonable and supported by
adequate documentation. The requested attorneys’ costs shall therefore be awarded in
full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Petitioner is awarded a lump sum of $36,594.01, representing reimbursement
for attorney’s fees and costs, in the form of a check payable jointly to Petitioner
and Petitioner’s counsel, Mr. Harrison Long.3
In the absence of a timely-filed motion for review (see Appendix B to the Rules of
the Court), the Clerk shall enter judgment in accordance with this decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924
F.2d 1029 (Fed. Cir.1991).
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
4