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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 22, 2021
* * * * * * * * * * * * * * UNPUBLISHED
ELIZABETH ESHELMAN on behalf
*
of her minor child, A.E., *
*
Petitioner, * No. 20-1576V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Jeremy Fugate, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On November 12, 2020, Elizabeth Eshelman (“Petitioner”) filed a petition for
compensation pursuant to the National Vaccine Injury Compensation Program on behalf of her
minor child, A.E.2 Petitioner alleged that A.E. suffered an adverse reaction to a Gardasil
vaccination she received on November 7, 2018. On August 5, 2021, Petitioner filed a notice of
intent to withdraw her petition and on the same day the undersigned issued her order concluding
proceedings pursuant to Vaccine Rule 10(d). (ECF No. 21).
On September 3, 2021, Petitioner filed an application for final attorneys’ fees and costs.
(ECF No. 23) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$13,198.74, representing $12,744.50 in attorneys’ fees and $454.24 in attorneys’ costs. Fees App.
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
at 11. Pursuant to General Order No. 9, Petitioner states that she has not incurred any costs related
to this litigation. Id. Respondent filed a response on September 17, 2021, indicating that
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Response at 2. (ECF No. 24). 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 is satisfied that the requirements of good
faith and reasonable basis are met in this case. Therefore, Petitioner is entitled to a final award of
reasonable attorneys’ fees and costs.
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).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). 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. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.a. Reasonable Hourly Rates
Petitioner requests compensation for her counsel at the following rates: for Mr. Andrew
Downing, $385.00 per hour for work performed in 2020 and 2021, and for Ms. Courtney Van Cott,
$275.00 per hour for work performed in 2020 and 2021. These rates are consistent with what Mr.
Downing and Ms. Van Cott have previously been awarded for their Vaccine Program work, and I
find them to be reasonable for the instant case.
b. Reasonable 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 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
2
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that they adequately describe the work done on the case and
the amount of time spent on that work. None of the entries appear objectionable, nor has
Respondent identified any entries as objectionable. Accordingly, Petitioner is awarded final
attorneys’ fees in the amount of $12,744.50.
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 $454.24 in attorneys’ costs for postage, acquisition of medical records, and the Court’s
filing fee. Fees App. Ex. 1 at 13-14. These costs are reasonable and shall be fully reimbursed.
II. Conclusion
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. The undersigned finds that it is reasonable to compensate Petitioner and her
counsel as follows:
Attorneys’ Fees Requested $12,744.50
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $12,744.50
Attorneys’ Costs Requested $454.24
(Reduction to Costs) -
Total Attorneys’ Costs Awarded $454.24
Total Amount Awarded $13,198.74
Accordingly, the undersigned awards a lump sum in the amount of $13,198.74,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Andrew Downing.
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.3
IT IS SO ORDERED.
3
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
3
s/ Katherine E. Oler
Katherine E. Oler
Special Master
4