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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: June 26, 2020)
* * * * * * * * * * * * * *
NORMA SOLTYS, * UNPUBLISHED
* No. 17-401V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Joseph A. Vuckovich, Maglio Christopher and Toale, PA, Washington, DC for petitioner.
Robert P. Coleman, III, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 21, 2017, Norma Soltys (“petitioner”) filed a petition seeking compensation
under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner
alleged that she suffered Guillain-Barré syndrome as a result of receiving a
measles/mumps/rubella vaccination on February 15, 2016. Petition at 1. (ECF No. 1). On May
6, 2019, petitioner’s counsel filed a status report indicating that petition had died on January 20,
2019, of causes unrelated to her vaccine injury. (ECF No. 42). On June 19, 2019, counsel filed
a status report indicating that petitioner’s husband did not intend to pursue his wife’s claim any
further. (ECF No. 46). On September 16, 2019, the previously assigned special master issued
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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.
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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. §§ 300aa.
his Decision dismissing the petition due to the lack of a proper petitioner to maintain the action.3
(ECF No. 49).
On March 13, 2020, petitioner filed an application for attorneys’ fees. Motion for Attorney
Fees and Costs (ECF No. 57). Petitioner requests compensation in the amount of $82,083.11,
representing $58,910.30 in attorneys’ fees and $23,172.81 in costs. Fees App. at 1 – 2. Pursuant
to General Order No. 9, petitioner warrants that she has not personally incurred costs in pursuit
of this litigation. Fees App. at 2. Respondent filed his response on March 19, 2020 indicating
that he “defers to the Court to determine whether the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Response, ECF No. 36, at 2. Petitioner filed a
reply on March 24, 2020, reiterating her belief that the requested attorneys’ fees and costs are
reasonable.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $82,083.11.
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, although the petition was eventually dismissed, the undersigned finds
that both good faith and reasonable basis exist. Accordingly, a final award of reasonable
attorneys’ fees and costs is proper.
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
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This case was reassigned to the undersigned for resolution of attorneys’ fees and costs on October 10, 2019.
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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 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
The undersigned has reviewed the hourly rates requested for the work of her counsel at
Maglio Christopher and Toale, PA (the billing records indicate that the majority of the attorney
work was performed by Mr. Joseph Vuckovich, with supporting work done by Mr. Isaiah
Kalinowski, Mr. Altom Maglio, and Ms. Alison Haskins) and finds the rates to be reasonable
and consistent with what these attorneys have previously been awarded for their Vaccine
Program work. Accordingly, no adjustment to the rates is necessary.
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 awarded final attorneys’ fees of $58,910.30.
b. Attorneys’ Costs
Petitioner requests a total of $23,172.81 in attorneys’ costs. This amount is comprised of
acquiring medical records, acquiring medical literature, postage, and work performed by
petitioner’s expert, Dr. M. Eric Gershwin. All of these costs are typical of Vaccine Program
litigation and petitioner has provided adequate documentation supporting them. Accordingly,
the requested attorneys’ costs are reasonable, and all costs requested 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:
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Attorneys’ Fees Requested $58,910.30
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $58,910.30
Attorneys’ Costs Requested $23,172.81
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $23,172.81
Total Attorneys’ Fees and Costs Awarded $82,083.11
Accordingly, the undersigned awards a lump sum in the amount of $82,083.11,
representing reimbursement of petitioner’s attorneys’ fees and costs, in the form of a
check payable to petitioner’s counsel of record at Maglio Christopher and Toale, PA.
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
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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.
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