Walker v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 24, 2020
* * * * * * * * * * * * * *
ELMIA WALKER, * UNPUBLISHED
*
Petitioner, * No. 18-366V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Carol L. Gallagher, Somers Point, NJ, for Petitioner.
Mary E. Holmes, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 20, 2020, Elmia Walker (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 62). For the reasons
discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and awards a total of
$125,561.60.
I. Procedural History
On March 8, 2018, Petitioner filed a petition in the National Vaccine Injury Compensation
Program.2 Petitioner received Hepatitis B vaccinations on September 9, 2016, October 31, 2016,
and March 20, 2017. Petition at ¶ 6-8. Petitioner alleged that as a result of receiving the Hepatitis
B vaccines, she suffered lichen planus. On August 7, 2020, the parties filed a stipulation, which I
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 Because this unpublished ruling contains a reasoned explanation for the action in this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.
adopted as my Decision awarding compensation on August 10, 2020. (ECF No. 56).
On August 20, 2020, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for her attorney, Ms. Carol Gallagher, in the total amount of $125,561.60,
representing $47,079.30 in attorneys’ fees and $78,482.30 in costs. Fees App. at 3. Pursuant to
General Order No. 9, Petitioner warrants she has not personally incurred any costs in pursuit of
her claim. Fees App. Ex. 4. Respondent reacted to the fees motion on September 3, 2020, stating
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. 64). Petitioner did not file a reply thereafter.
The matter is now ripe for adjudication.
II. Analysis
Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). Here, because Petitioner was awarded
compensation, she is entitled to an 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 F.
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 the following rates for the work of her counsel, Ms. Carol Gallagher:
$363.00 per hour for work performed in 2017, $400.00 per hour for work performed in 2018 and
2019; and $424.00 per hour for work performed in 2020. These rates are consistent with what Ms.
Gallagher has previously been awarded for her Vaccine Program work, and I find them to be
reasonable for the work performed in the instant case. See De Souza v. Sec'y of Health & Human
Servs., 141 Fed. Cl. 338, 345 (Fed. Cl. 2018).
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 $47,079.30.
b. Attorneys’ Costs
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
2
attorneys’ costs in the amount of $78,482.30. This amount is comprised of acquiring medical
records, transcripts, and work performed by Petitioner’s expert, Dr. Steven Rostad. Concerning
the work of Dr. Rostad, the undersigned notes that while a large number of hours were billed, Dr.
Rostad’s efforts in thoroughly analyzing the records and including relevant medical literature, as
well as rebutting the reports prepared by both of Respondent’s experts no doubt played a major
role in Petitioner eventually being awarded compensation. I therefore find that his work was
reasonable in this case and should be fully compensated. Concerning the remaining costs,
Petitioner has provided adequate supporting documentation for all the costs, and they appear to be
reasonable upon review. Accordingly, Petitioner is awarded the full amount of attorneys’ costs
sought.
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 $47,079.30
(Reduction of Fees) -
Total Attorneys’ Fees Awarded $47,079.30
Attorneys’ Costs Requested $78,482.30
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $78,482.30
Total Attorneys’ Fees and Costs $125,561.60
Accordingly, I award a lump sum in the amount of $125,561.60, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and her attorney, Ms. Carol Gallagher.3
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/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
This 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,” and fees for legal services rendered. Furthermore, Section 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
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