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

REISSUED FOR PUBLICATION
JUL 20 2020
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Case No. 15-1207V)
R.S.,
Special Master Dorsey
Petitioner,
v. Filed: May 19, 2020
SECRETARY OF HEALTH AND Interim Attorney’s Fees and Costs
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION ON SUPPLEMENTAL MOTION FOR INTERIM
ATTORNEYS’ FEES AND COSTS1
On October 15, 2015, R.S. (“petitioner”) filed a petition under the National Vaccine Injury
Compensation Program (“Vaccine Act” or “the Program”),2 42 U.S.C. § 300aa-10 et seq. (2012),
alleging that as a result of receiving an influenza (“flu”) vaccine on October 1, 2013, she suffered
from Guillain-Barré syndrome (“GBS”) and polyneuropathy, organomegaly, endocrinopathy,
monoclonal gammopathy, and skin changes (“POEMS”) syndrome. Petition at 1. On December 19,
2019, the undersigned ruled that petitioner had not established by a preponderance of evidence that
her vaccination caused her injuries. Compensation was denied and the case was dismissed. Decision,
ECF No. 136.
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This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise the whole Decision will be available to the public in its current form. Id.
On January 10, 2020, petitioner filed an application for attorneys’ fees and costs.
Supplemental Motion for Interim Attorneys’ Fees and Costs, ECF No. 140.2 Petitioner requests
compensation in the amount of $17,958.27, representing $17,881.00 in attorneys’ fees and
$77.27 in costs. Fees App. at 1 – 2. Respondent filed his response on January 23, 2020 indicating
that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met
in this case.” Response, ECF No. 150, at 2. Petitioner did not file a reply thereafter. The matter
is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $17,958.27.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
and costs “if the special master or court determines that the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.” Id. at
§15(e)(1). In this case, the undersigned previously found that reasonable basis existed when she
awarded interim attorneys’ fees on July 22, 2019. (ECF No. 130). Because the instant motion
concerns work performed by counsel in wrapping up the case, the undersigned finds that it is
reasonable as well. Respondent also has not challenged the good faith or reasonable basis of
petitioner’s claim.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
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 and 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 and 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
2
Counsel notes that although the motion is captioned as a supplemental application for interim attorneys’ fees and
costs, the instant motion represents the final application for all fees and costs incurred by Conway, Homer, P.C.
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 a petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d
in relevant part, 988 F. 2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.
i. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the work of her counsel, Mr. Ronald
Homer at the following: $421 per hour for work performed in 2018 and $430.00 per hour for
work performed in 2019. Fees App. 81. Petitioner also requests rates for associate attorneys
between $205 - $325, depending on associate and the year billed. Petitioner also requests rates
for paralegals and law clerks at the rates of $142 - $152. Id. These rates are consistent with what
Mr. Homer and his associates have previously been awarded for work in the Vaccine Program,
and the undersigned finds the rates to be reasonable in this case as well.
ii. Reasonable Hours Expended
The undersigned has reviewed the submitted billing entries and finds the total number of
hours billed to be reasonable. The billing entries accurately reflect the nature of the work
performed and the undersigned does not find any of the entries to be objectionable. Respondent
also has not indicated that he finds any of the entries to be objectionable either. Accordingly,
petitioner is entitled to the full amount of attorneys’ fees sought, $17,881.00.
b. Attorneys’ Costs
Petitioner requests a total of $77.27 in attorneys’ costs. This amount is comprised of
shipping costs. Fees App. Ex. 2 at 1. The undersigned has reviewed the requested costs and finds
the amount to be reasonable. Accordingly, petitioner shall be fully reimbursed.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and her counsel as follows:
Attorneys’ Fees Requested $17,881.00
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $17,881.00
Attorneys’ Costs Requested $77.27
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $77.27
Total Attorneys’ Fees and Costs Awarded $17,958.27
Accordingly, the undersigned awards $17,958.27 in attorneys’ fees and costs, in the form
of a check payable jointly to petitioner and petitioner’s counsel, Mr. Ronald Homer.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
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of Court SHALL ENTER JUDGMENT in accordance with this decision.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice enouncing
the right to seek review.