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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-897V
Filed: July 23, 2020
UNPUBLISHED
Special Master Horner
TIMOTHY WOODS,
Petitioner, Interim Attorneys’ Fees and
v. Costs Decision
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Mark Theodore Sadaka, Mark T. Sadaka LLC, Englewood, NJ, for petitioner.
Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On April 14, 2020, petitioner moved for an award of interim attorneys’ fees and
costs in the amount of $41,463.38. (ECF No. 47.) In response, respondent deferred to
the special master regarding both the amount and appropriateness of an award of
interim attorneys’ fees and costs. (ECF No. 48.) However, respondent did note that
“respondent is satisfied the statutory requirements and other legal requirements for an
award of attorneys’ fees and costs are met.” (Id. at 2.) For the reasons discussed
below, I award petitioner interim attorneys’ fees and costs in full.
I. Procedural History
On June 30, 2017, petitioner filed this claim, under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that as a result of his
October 11, 2014 flu vaccination he suffered optic neuritis. (ECF No. 1.) This case was
originally assigned to Special Master Millman. (ECF No. 4.) On March 16, 2018,
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
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respondent filed his Rule 4(c) report, recommending against compensation. (ECF No.
14.)
Subsequently, petitioner filed an expert report from Dr. Lawrence Steinman to
support his claim and, in response, respondent filed an expert report from Dr. Marc A.
Bouffard. (ECF Nos. 18, 21.) After a round of supplemental expert reports, respondent
additionally retained Dr. J. Lindsay Whitton to provide an expert report. (ECF No. 35.)
This case was then reassigned to my docket on June 6, 2019. (ECF No. 37.)
On October 8, 2019, I held a Rule 5 conference and issued a Rule 5 order,
encouraging the parties to pursue settlement discussions in this case. (ECF No. 39.)
Respondent remained uninterested in informally resolving this case and petitioner was
ordered to file an expert report from a neuro-ophthalmologist to support his claim. (ECF
No. 41.) Petitioner’s expert report remains outstanding.
Petitioner filed the instant motion for interim attorneys’ fees and costs on April 14,
2020, respondent filed his response on April 17, 2020, and petitioner filed his reply on
April 17, 2020. (ECF Nos. 47-49.) Accordingly, petitioner’s motion for interim attorneys’
fees and costs is now ripe for resolution.
II. An Award of Interim Attorneys’ Fees and Costs is Appropriate
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, if 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). In his
response, respondent indicated that the statutory requirements were met in this case.
(ECF No. 48, p. 2.) I agree.
Additionally, the Federal Circuit has concluded that interim fee awards are
permissible and appropriate under the Vaccine Act. Shaw v. Sec’y of Health & Human
Servs., 609 F.3d 1372 (Fed. Cir. 2010); Avera, 515 F.3d at 1352. In Avera, the Federal
Circuit stated, “[i]nterim fees are particularly appropriate in cases where proceedings
are protracted and costly experts must be retained.” Id. In denying an interim fee
award, the Avera court reasoned, “The amount of fees here was not substantial;
appellants had not employed any experts; and there was only a short delay in the award
pending the appeal.” Id. In Shaw, the Federal Circuit clarified that “where the claimant
establishes that the cost of litigation has imposed an undue hardship and there exists a
good faith basis for the claim, it is proper for the special master to award interim
attorneys’ fees.” 609 F.3d at 1375.
Here, petitioner’s request for interim attorneys’ fees and costs is made after more
than three years of litigation within the entitlement phase of this case and after petitioner
incurred costs for providing multiple expert reports to support his claim. Additionally,
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petitioner is currently pursuing further expert opinion, and thus, the timing of the ultimate
resolution of this case remains unknown. Accordingly, I find that petitioner’s request for
an award for interim attorneys’ fees and costs is reasonable at this juncture.
III. Reasonableness of the Requested Award
a. Attorneys’ Fees
It is “well within the special master’s discretion” to determine the reasonableness
of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir.
1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991)
(“[T]he reviewing court must grant the special master wide latitude in determining the
reasonableness of both attorneys’ fees and costs.”). The Federal Circuit has approved
the lodestar approach to determine reasonable attorneys’ fees and costs under the
Vaccine Act. Avera, 515 F.3d at 1347. This is a two-step process. Id. at 1347-48.
First, a court determines an “initial estimate…by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting
Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second the court may make an upward or
downward departure from the initial calculation of the fee award based on specific
findings. Id. at 1348.
A reasonable hourly rate is “the prevailing market rate defined as the rate
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Avera, 515 F.3d at 1348 (citation and quotation
omitted). The decision in McCulloch provides a further framework for consideration of
appropriate ranges for attorneys’ fees based upon the experience of the practicing
attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motions for recons. denied, 2015
WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office of Special Masters has
subsequently updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015-2016, 2017, 2018, 2019 and 2020 can be accessed online.2
Special masters may rely on their experience within the Vaccine Program to
determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part¸ 988 F.2d 131 (Fed. Cir. 1993). Special masters have previously reduced the fees
paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec’y of
Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15,
2016) (reduced overall fee award by 10 percent due to excessive and duplicative
billing); Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2016 WL 7212323
2 Each of the Fee Schedules for 2015 through 2020 can be accessed at
http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived
from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, and 2020 are
adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”).
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(Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for
rev. denied, 129 Fed. Cl. 691 (2016).
In this case, petitioner is seeking $31,675.33 in interim attorneys’ fees for work
performed in 2016 through 2020. I have reviewed the billing records submitted with
petitioner’s request, and in my experience, the hourly rates billed for 2016 through 2020
for attorney time and paralegal time, are all reasonable and in accord with prior awards
made by other special masters as well as the above-discussed Attorneys’ Forum Hourly
Rate Fee Schedules. Further, after reviewing the billing records, I find that the hours
billed are all reasonable as well. Accordingly, I award petitioner the requested
attorneys’ interim fees in full.
b. Interim Attorneys’ Costs
Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both
‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both.
Not only must any request for reimbursement of attorneys’ fees be reasonable, so also
must any request for reimbursement of costs.”). In this case, petitioner seeks $9,788.05
in interim attorneys’ costs, including expenses incurred in obtaining medical records and
retaining Dr. Steinman. I have reviewed the expense records and supporting
documentation submitted with petitioner’s request, and I find that the requested interim
attorneys’ costs are all reasonable.
IV. Conclusion
In light of the above, petitioner’s motion for an award of interim attorneys’ fees
and costs is hereby GRANTED and petitioner is awarded $41,463.38, representing
$31,675.33 in interim attorneys’ fees and $9,788.05 in interim attorneys’ costs.
Accordingly, I award the total of $41,463.38 as a lump sum in the form of a
check jointly payable to petitioner and petitioner’s counsel Mark T. Sadaka, Esq.
The clerk of the court shall enter judgment in accordance herewith. 3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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