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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-2012V
(not to be published)
MICHAEL DORE,
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.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On December 21, 2017, Michael Dore 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 he suffered a Shoulder Injury Related to Vaccine
Administration as a result of his November 8, 2016 influneza vaccination. (Petition at ¶¶
1, 9, 10). On December 9, 2019, a decision was issued awarding compensation to
Petitioner based on the parties’ stipulation. (ECF No. 43).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 9,
2020 (ECF No. 49), requesting a total award of $33,378.21 (representing $32,088.20 in
fees and $1,290.01 in costs). In accordance with General Order #9 Petitioner filed a
signed statement indicating that he incurred no out-of-pocket expenses. (ECF No. 49-3).
Respondent reacted to the motion on January 22, 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.
50). On January 22, 2020, Petitioner filed a reply requesting the entry of a decision
awarding the requested amount in full. (ECF No. 51).
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
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.
2
ATTORNEY FEES
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of his
attorneys: for Mr. Altom Maglio, $362.00 per hour for work performed in 2017; for Ms.
Anne Toale, $378.00 per hour for work performed in 2017, and $402.00 per hour for work
performed in 2018; and for Mr. Isaiah Kalinowski, $358 for work performed in 2017, $368
for work billed in 2018, and $383 for work billed in 2019. (ECF No. 49-1 at 20). Petitioner
also requests rates ranging from $105.00 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 $1,290.01 in overall costs. (ECF No. 49-2 at 1). 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 $33,378.21 (representing $32,088.20 in fees and $1,290.01 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
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
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.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4