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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 30, 2021
* * * * * * * * * * * * * *
DANIEL REED, * UNPUBLISHED
*
Petitioner, * No. 19-1319V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 10, 2021, Daniel Reed (“Petitioner”) filed a motion for attorneys’ fees and
costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 42). For the reasons discussed
below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $43,340.01.
I. Procedural History
On August 29, 2019, Petitioner filed a petition in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that she suffered transverse myelitis and partial
Brown-Sequard syndrome as a result of receiving an influenza vaccine on October 10, 2017. See
Petition (ECF No. 1). On September 7, 2021, the parties filed a stipulation, which I adopted as my
decision awarding compensation on September 8, 2021. (ECF No. 38).
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 Because this unpublished ruling contains a reasoned explanation for the action in this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. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services).
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.
On September 10, 2021, Petitioner filed a motion for final attorneys’ fees and costs.
Petitioner requests compensation for her attorney, Mr. Mark Sadaka, in the total amount of
$43,340.01, representing $40,514.77 in attorneys’ fees and $2,825.24 in costs. Fees App. at 2.
Pursuant to General Order No. 9, Petitioner warrants he has personally incurred costs of $24.04 in
pursuit of his claim. Id. at 1. Respondent reacted to the fees motion on September 13, 2021, stating
that “Respondent is satisfied that the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Response at 2 (ECF No. 43). Petitioner filed a reply on September 14,
2021, reiterating his belief that the requested amount for fees and costs is reasonable.
The matter is now ripe for adjudication.
II. Analysis
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, because Petitioner was awarded compensation pursuant
to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
Petitioner requests that her attorney, Mr. Mark Sadaka, be compensated at the following
hourly rates: $396.00 per hour for work performed in 2018, $405.00 per hour for work performed
in 2019, $422.00 per hour for work performed in 2020, and $444.00 per hour for work performed
in 2021. These rates are consistent with what Mr. Sadaka has previously been awarded for his
Vaccine Program work, and I find them to be reasonable for his work in the instant case as well.
Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter to be reasonable. The entries are reasonable and accurately describe the work being
performed and the length of time it took to perform each task. Respondent also has not identified
any particular entries as being objectionable. Therefore, Petitioner is entitled to final attorneys’
fees of $40,514.77.
b. Attorneys’ Costs
2
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $2,825.24. This amount is comprised of acquiring medical
records, postage, the Court’s filing fee, and work performed by Petitioner’s economic expert. Fees
App. Ex. 2. Petitioner has provided adequate documentation supporting these costs and all appear
reasonable in my experience. Petitioner is therefore awarded the full amount of costs sought.
However, counsel has indicated that due to a misunderstanding, both he and Petitioner expended
$24.04 for the same medical records. Fees App. at 1. I will reimburse the amount paid by Petitioner
and disallow the duplicative amount paid by counsel.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $40,514.77
(Reduction of Fees) -
Total Attorneys’ Fees Awarded $40,514.77
Attorneys’ Costs Requested $2,825.24
(Reduction of Costs) - ($24.04)
Total Attorneys’ Costs Awarded $2,801.20
Total Attorneys’ Fees and Costs $43,315.97
Petitioner’s Costs $24.04
Total Amount Awarded $43,340.01
Accordingly, I award the following:
1) a lump sum in the amount of $43,315.97, representing reimbursement for Petitioner’s
attorneys’ fees and costs, in the form of a check payable to Petitioner and his attorney,
Mr. Mark Sadaka; and
2) a lump sum in the amount of $24.04, representing reimbursement for Petitioner’s
costs, in the form of a check payable to petitioner.
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/Thomas L. Gowen
Thomas L. Gowen
Special Master
4