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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 2, 2021
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GENEVIEVE COSTABILE, * UNPUBLISHED
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Petitioner, * No. 19-578V
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v. * Special Master Gowen
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SECRETARY OF HEALTH * Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
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Respondent. *
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Lynn C. Schlie, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On April 23, 2021, Genevieve Costabile (“petitioner”) filed a motion for final attorneys’
fees and costs (“Fees App.”) (ECF No. 37). For the reasons discussed below, I GRANT the
motion and award $21,742.41 in final attorneys’ fees and costs and $2.26 in petitioner’s costs.
I. Procedural History
On April 17, 2019, petitioner filed her claim in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that she suffered a left brachial plexopathy as a
result of an influenza (“flu”) vaccination received on September 18, 2017. Petition (ECF No. 1).
On March 16, 2020, respondent advised that he was amenable to exploring informal resolution.
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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 files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. 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”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
Status Report (ECF No. 19). On January 5, 2021, I issued a decision approving the parties’ joint
stipulation which awarded petitioner compensation in the form of a lump sum of $46,258.78.
Stipulation (ECF No. 30); Decision (ECF No. 32); see also Judgment (ECF No. 34).
On April 23, 2021, petitioner filed the present motion, in which she requests final
attorneys’ fees of $20,870.80 and attorneys’ costs of $871.61, for a total request of $21,742.41.
Fees App. at 1-2. Petitioner requests reimbursement for $2.26 in costs that she personally
incurred; she avers that she did not incur any additional costs or pay any retainer to counsel. Id.
at 2; see also General Order No. 9 Statement (ECF No. 38). On April 26, 2021, respondent filed
a response which provides that respondent is satisfied that the statutory requirements for
attorneys’ fees and costs are met in this case. Fees Response (ECF No. 39) at 2. Petitioner has
not filed a reply. Petitioner’s motion is now ripe for adjudication.
II. Legal Standard
The Vaccine Act provides that in the event that a petition results in compensation, the
special master “shall” also award reasonable attorneys’ fees and costs incurred in any proceeding
on such petition. 42 U.S.C. § 300aa-15(e)(1). Here, as petitioner was awarded compensation
pursuant to a stipulation, petitioner shall also receive an award of attorneys’ fees and costs.
The Federal Circuit has approved the use of 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, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first
determines the reasonable hourly rate, which is then applied to the number of hours reasonable
expended on the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).
The Office of Special Masters (“OSM”) has prepared ranges of reasonable hourly rates for
attorneys of varying experience and for paralegals, which are posted on the Court’s website.3
A petitioner “bears the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct.
482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the
motion is filed. Id. at 484 n.1. The special master has the discretion to reduce awards sua
sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human
Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99-537V, 2008 WL 2066611 (Fed. Cl. Spec.
Mstr. Apr. 22, 2008). Special masters may look to their experience and judgment to reduce the
number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the
billing records is not required. Wasson, 24 Cl. Ct., aff’d in relevant part, 988 F.2d 131 (Fed Cir.
1993) (per curiam).
3
Court of Federal Claims – Office of Special Masters, OSM Attorneys’ Forum Hourly Rate Fee Schedules, at
https://www.uscfc.uscourts.gov/node/2914.
2
III. Analysis
A. Attorneys’ Fees
Petitioner requests hourly rates for attorneys and paralegals at the Conway Homer firm
which are consistent with the fees awarded in many previous decisions by myself and other
special masters. Fees App at 20. I find that these hourly rates are also reasonable for the work
documented in the instant motion. Turning next to review of the submitted billing statement, I
find that the overall hours spent on this matter appear to be reasonable. The entries reasonably
and accurately describe the work performed and the length of time it took to perform each task.
Moreover, respondent has not identified any particular entries as being objectionable. Therefore,
they are compensated without adjustment.
B. Attorneys’ and Petitioner’s Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Here, petitioner requests
final attorneys’ costs totaling $871.61. Fees App. at 19-20. The costs are for filing the petition,
obtaining medical records, postage, and photocopies. Id. at 19-33. Petitioner herself requests
reimbursement in the amount of $2.26, for mailing one envelope to counsel. Id. at 35. These
costs are adequately documented, reasonable, and will be awarded without adjustment.
IV. Conclusion
Accordingly, petitioner’s motion is GRANTED and the following is awarded:
1) A lump sum in the amount of $21,742.41, representing reimbursement for final
attorneys’ fees and costs, in the form of a check payable to petitioner and her
attorney. 4
2) A lump sum in the amount of $2.26, representing reimbursement for costs that
petitioner personally incurred, in the form of a check payable to petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court shall enter judgment in accordance herewith.5
IT IS SO ORDERED. s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).
3