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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0399V
(not to be published)
NANCY BROCK,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 10, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On March 15, 2018, Nancy Brock filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a SIRVA after she received influenza
and pneumococcal vaccines on October 8, 2015. (Petition at 1-2). On December 4, 2019,
a decision was issued awarding compensation to Petitioner based on the Respondent’s
proffer. (ECF No. 54).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated January 14,
2020, requesting an award of $35,209.40 in fees and $2,065.50 in costs. (ECF No. 60 at
1-2). In accordance with General Order #9 Petitioner filed a signed statement indicating
that she incurred no out-of-pocket expenses. (ECF No. 60-3). Petitioner also requests
$1,762.54 in attorney fees and $82.54 in costs while represented by prior counsel, Joseph
J. Hoffman, Jr., of Hoffman Dimuzio. (ECF No. at 2). Petitioner requests a total award of
attorney fees and costs in the amount of $39,119.98. Respondent reacted to the motion
on January 28, 2020 indicating that he is satisfied that the statutory requirements for an
award of attorney’s fees and costs are met in this case and defers to the Court’s discretion
to determine the amount to be awarded. (ECF No. 61). That same day, Petitioner filed a
reply requesting the entry of a decision awarding the requested amount in full. (ECF No.
62).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
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. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
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fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
ATTORNEY FEES
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of his
attorneys: for Altom Maglio, $362.00 per hour for work performed in 2017; for Diana
Stadelnikas, $372.00 per hour for work performed in 2017; for Franklin J. Caldwell, $367
per hour for work performed in 2017, $385 for work performed in 2018, $400 for work
performed in 2019; and for Mr. Isaiah Kalinowski, $383 for work billed in 2019. (ECF No.
60-1 at 20). Petitioner also requests rates ranging from $145.00 per hour to $154.00 per
hour for paralegal work, depending on the individual paralegal and the year of the work.
(Id). The rates requested are consistent with what Maglio Christopher and Toale, PA
attorneys and paralegals have been awarded for their work in the Vaccine Program.
Accordingly, no adjustment to the requested rates is necessary.
For time billed in 2020, Mr. Kalinowski is requesting the increased rate of $405.00
per hour for his time billed and the rate of $160 for time billed by his paralegals. Based
on my experience I find the requested increase for time billed in 2020 to be reasonable
and award it herein.
ATTORNEY COSTS
Petitioner requests $2,065.50 in overall costs. (ECF No. 60-2 at 1-2). This amount
is comprised of obtaining medical records, travel costs and the Court’s filing fee. I have
reviewed all of the requested costs and find the overall amount to be reasonable and shall
award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $39,119.98 as follows:
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• A lump sum of $37,274.90, representing reimbursement for
attorney’s fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel; and
• A lump sum of $1,845.08, representing reimbursement for attorney’s
fees and costs in the form of a check payable jointly to petitioner
and petitioner’s prior counsel, Joseph J. Hoffman, Jr., Esq of
Hoffman Dimuzio.
• Petitioner requests checks be forwarded to Maglio Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.
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. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
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