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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 19, 2020
* * * * * * * * * * * * * *
GLORIA MANETTA, * UNPUBLISHED
*
Petitioner, * No. 18-172V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioners.
Adriana R. Teitel, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 12, 2020, Gloria Manetta (“Petitioner”) filed a motion for attorneys’ fees and
costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 56). For the reasons discussed
below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $37,600.10.
I. Procedural History
On February 2, 2018, Petitioner filed a petition in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that as a result of receiving a pneumococcal conjugate
vaccine on June 23, 2015, she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”). See Petition (ECF No. 1). On May 9, 2020, the parties filed a stipulation, which I
adopted as my Decision awarding compensation on the same day. (ECF No. 51).
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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 Because this unpublished ruling contains a reasoned explanation for the action in this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 August 12, 2020, Petitioner filed a motion for final attorneys’ fees and costs. Petitioner
requests compensation for her attorneys at Conway, Homer, P.C. in the total amount of $37,406.71,
representing $32,720.30 in attorneys’ fees and $4,686.41 in costs. Fees App. at 1-2. Pursuant to
General Order No. 9, Petitioner warrants she has personally incurred costs of $403.29 in pursuit
of her claim. Id. at 2. Respondent reacted to the fees motion on August 19, 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. 58). Petitioner did not file a reply thereafter.
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, she 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
I have reviewed the rates requested by Petitioner for the work of her counsel at Conway,
Homer, P.C. (the billing records reflect that the majority of attorney work was performed by Ms.
Christina Ciampolillo, with supporting work done by Mr. Ronald Homer, Ms. Meredith Daniels,
Mr. Joseph Pepper, Ms. Lauren Faga, and Mr. Patrick Kelly) and I find the rates requested herein
to be consistent with what these attorneys have previously been awarded for their Vaccine Program
work and reasonable in light for the work performed in this case.
Turning next to the billed hours, I have reviewed the submitted billing entries and find
that the hours billed are largely reasonable. However, a small amount must be reduced for
attorney time billed for review of status reports and other routine filings prepared by other
attorneys. It is common practice for Conway, Homer, P.C. to have several attorneys assist over
the course of a case. In some instances, such as when preparing substantive documents like the
petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that
document. However, it is not reasonable to have an attorney bill for time to review routine
filings, such as status reports and motions for enlargement of time, when those filings were
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prepared (and billed for) by another attorney. To offset these issues, the undersigned finds a
reduction of $209.90 to be appropriate in this case. Accordingly, petitioner is awarded final
attorneys’ fees of $32,510.40.
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
attorneys’ costs in the amount of $4,686.41. This amount is comprised of acquiring medical
records, postage, photocopies, and travel costs associated with counsel visiting Petitioner.
Petitioner has provided adequate documentation supporting all of the requested costs, and all
appear reasonable in my experience. Petitioner is therefore entitled to the full amount of costs
sought.
c. Petitioner’s Costs
Pursuant to General Order No. 9, Petitioner states that she has personally incurred costs of
$403.29 related to her case. ECF No. 57. This amount is comprised of postage and the Court’s
filing fee. Petitioner has provided adequate documentation to support the costs and all appear to
be reasonable. Therefore, Petitioner shall be fully reimbursed.
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 $32,720.30
(Reduction of Fees) - (209.90)
Total Attorneys’ Fees Awarded $32,510.40
Attorneys’ Costs Requested $4,686.41
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $4,686.41
Total Attorneys’ Fees and Costs $37,196.81
Petitioner’s Costs $403.29
Total Amount Awarded $37,600.10
Accordingly, I award the following:
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1) a lump sum in the amount of $37,196.81, representing reimbursement for Petitioner’s
attorneys’ fees and costs, in the form of a check payable to Petitioner and her
attorney, Mr. Ronald Homer;3 and
2) a lump sum in the amount of $403.29, 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.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).
4