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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: January 26, 2021)
* * * * * * * * * * * * * *
WILMA PERRY, * UNPUBLISHED
* No. 18-588V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Diana L. Stadelnikas, Maglio, Christopher & Toale, PA, Sarasota, FL, for petitioner.
Tracy R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On April 25, 2018, Wilma Perry (“petitioner”) filed a petition in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that as a result of an influenza (“flu”) vaccine
administered to her on October 7, 2015, petitioner suffered from Guillain-Barré syndrome and
transverse myelitis. Petition at 1, 3 (ECF No. 1). On September 30, 2020, the parties filed a
stipulation, which the undersigned adopted as her decision awarding compensation on the same
day. (ECF No. 45).
On October 9, 2020, petitioner filed an application for attorneys’ fees and costs. Motion
for Attorney Fees and Costs (ECF No. 49). Petitioner requests compensation in the amount of
1
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.
2
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.
$62,026.64, representing $47,526.80 in attorneys’ fees and $14,499.84 in attorneys’ costs. Fees
App. at 1-2. Pursuant to General Order No. 9, petitioner states she has not incurred any costs
related to the prosecution of their petition. (ECF No. 49-3). Respondent filed his response on
October 16, 2020 indicating that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 50). ON October 19,
2020, Petitioner filed her reply requesting the fees and costs be awarded in full. (ECF No. 51).
The matter is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $60,232.89.
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, because petitioner was awarded compensation pursuant to a stipulation,
she is entitled to a final award of reasonable attorneys’ fees and costs.
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
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).
2
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 rates of compensation for her attorney, Ms. Diana
Stadelnikas at the rate of $396 per hour for work performed in 2018, $415 per hour for work
performed in 2019 and $440 per hour for work performed in 2020. Petitioner is also requesting
rates for paralegals at rates between $145 - $160 per hour for paralegals, based on paralegal and
year billed. These rates are consistent with what Ms. Stadelnikas, her fellow attorneys and
paralegals have previously been awarded for their Vaccine Program work, and the undersigned
finds them to be reasonable herein.
ii. Reasonable Hours Expended
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that they adequately describe the work done on the case
and the amount of time spent on that work. None of the entries appear objectionable, nor has
respondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final
award of attorneys’ fees in the amount of $47,526.80.
b. Attorneys’ Costs
Petitioner requests a total of $14,499.84 in attorneys’ costs. This amount is comprised of
acquiring medical records, postage, the Court’s filing fee, and work performed by petitioner’s
life care planner, Ms. Lynn Trautwein. Upon review, petitioner has provided adequate
documentation supporting these costs, and they appear reasonable in the undersigned’s
experience, with one exception regarding travel for Ms. Trautwein. Records show Ms. Trautwein
billed full rate for her travel to and from the visit with the client. (ECF No. 49-2 at 41). In the
Vaccine Program, special masters traditionally have compensated time spent traveling when no
other work was being performed at one-half an attorney’s hourly rate. See Hocraffer v. Sec’y of
Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25,
2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *21
(Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs., No. 01-61V,
2006 WL 3419805, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). Ms. Trautwein billed a total of
20.5 hours for travel time including travel to & from airport and flight time. As Ms. Trautwein
held to the same reasonableness as attorneys in the program, the undersigned will reduce the
hours billed for travel by 50% reducing the request for costs by $1,793.75.
3
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 $47,526.80
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $47,526.80
Attorneys’ Costs Requested $14,499.84
(Reduction of Costs) ($1,793.75)
Total Attorneys’ Costs Awarded $12,706.09
Total Attorneys’ Fees and Costs Awarded $60,232.89
Accordingly, the undersigned awards a lump sum in the amount of $60,232.89,
representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner
and her counsel, Ms. Diana L. Stadelnikas. Petitioner request the check be forwarded to
Maglio Christopher & Toale, PA, 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
Court SHALL ENTER JUDGMENT in accordance with this decision.3
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 renouncing
the right to seek review.
4