Sweeney v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 16, 2020
* * * * * * * * * * * * * *
LORI L. SWEENEY personal *
representative of the estate of
*
LUELLA A. GARLANGER, * No. 13-392V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Theodore J. Hong, Maglio Christopher & Toale, Seattle, WA, for Petitioner;
Lara A. Englund, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On June 12, 2013, Lori L. Sweeney (“Petitioner”), in her capacity as the personal
representative of the estate of Luella A. Garlanger (“Ms. Garlanger”), filed a petition for
compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-
10 et seq. (2012). Petitioner alleged that the influenza vaccine Ms. Garlanger received on October
15, 2011, caused her to develop Guillain-Barré syndrome. An entitlement hearing was held on
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is 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).
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).
January 16, 2019, and on February 28, 2020, the undersigned issued her decision dismissing the
petition. ECF No. 92.
On May 22, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 97 (“Fees
App.”). Petitioner requests total attorneys’ fees and costs in the amount of $232,243.91,
representing $217,821.60 in attorneys’ fees and $14,422.31 in attorneys’ costs. Fees App. at 2.
Pursuant to General Order No. 9, Petitioner has indicated that she has not incurred any out of
pocket costs. Id. Respondent responded to the motion on May 22, 2020, stating that Respondent
“defers to the Court regarding whether the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and asking the Court to “exercise its discretion and determine a
reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 98. Petitioner filed
a reply on May 22, reiterating her belief that the requested attorneys’ fees and costs were
reasonable. ECF No. 99.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347–48 (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.
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.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). Here, although the petition was eventually
dismissed, the undersigned does not doubt that the claim was brought in a good faith belief that
the vaccination caused Ms. Garlanger’s injury, and the undersigned find that the claim had a
reasonable basis to proceed for as long as it did, as it necessitated an entitlement hearing with post-
hearing briefing. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees
and costs.
a. Hourly Rate
The decision in McCulloch provides a 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), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3
The undersigned has reviewed the requested hourly rates for petitioner’s counsel at Maglio
Christopher and Toale (the billing records indicate that the majority of attorney work was
performed by Mr. FJ Caldwell and Mr. Theodore Hong, with supporting work by Ms. Danielle
Strait). The rates requested are consistent with what these individuals have previously been
awarded for their Vaccine Program work, and the undersigned finds them to be reasonable herein.
b. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
The undersigned has reviewed the submitted billing entries and finds that the hours billed
are reasonable. Although the total number of hours billed in this matter is large, counsel began
work on this case in 2012, and the matter necessitated an entitlement hearing and post-hearing
briefing. Respondent also has not identified any particular entries as objectionable. Petitioner is
therefore awarded the full amount of attorneys’ fees sought.
c. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $14,422.31 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, travel costs for counsel to attend the entitlement hearing, and work performed
by Petitioner’s medical experts. Fees App. at 34-36. Petitioner has provided adequate
documentation of all these expenses and they appear reasonable for the work performed in this
case. Petitioner is therefore awarded the full amount of costs sought.
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Based on the above analysis, the
undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $217,821.60
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $217,821.60
Attorneys’ Costs Requested $14,422.31
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $14,422.31
Total Attorneys’ Fees and Costs $232,243.91
Accordingly, the undersigned awards a lump sum in the amount of $232,243.91,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and Maglio Christopher & Toale, P.A., to be forwarded to Maglio
Christopher & Toale, P.A., 1605 Main Street, Suite 710, Sarasota, Florida 34236.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
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.