Cronin v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1176V
Filed: June 13, 2018
UNPUBLISHED
MARIE CRONIN,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On September 21, 2016, Marie Cronin (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., 2 (the “Vaccine Act” or “Program”). Petitioner alleges that she
suffered left shoulder injuries resulting from an influenza vaccine administered on
October 24, 2013. Petition at ¶¶ 1-3. On March 14, 2018, the undersigned issued a
decision denying compensation to petitioner. (ECF No. 33).
On May 18, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 35). Petitioner requests attorneys’ fees in the amount of $23,026.00 and attorneys’
costs in the amount of $1,340.89. Id. at 2. In accordance with General Order #9,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
petitioner's counsel represents that petitioner incurred no out-of-pocket expenses. Id. at
2. Thus, the total amount requested is $24,366.89.
On May 21, 2018, respondent filed a response to petitioner’s motion. (ECF No.
36). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
Petitioner has filed no reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates with the following
exceptions. Due to attorney C. Clark Hodgson, III‘s inexperience in the Vaccine
Program, the undersigned does find cause to reduce his hourly rate from the requested
$225 an hour to $200 an hour. Therefore, attorneys’ fees are reduced by $765.00. 3
With regard to attorney Paul Brazil’s requested hourly rate of $350 for work
performed in 2018, the undersigned finds the proposed rate excessive based on his
overall legal experience, the quality of work performed, his experience in the Vaccine
Program, and his reputation in the legal community and the community at large. See
McCulloch v. Health and Human Services, No. 09–293V, 2015 WL 5634323, at *17
(Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in
deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall
legal experience, the quality of work performed, and the reputation in the legal
community and community at large). The determination of the amount of reasonable
attorneys' fees is within the special master's discretion. See, e.g., Saxton v. Health and
Human Services, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters have “wide
latitude in determining the reasonableness of both attorneys’ fees and costs.” Hines v.
Health and Human Services, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover, special
masters are entitled to rely on their own experience and understanding of the issues
raised. Wasson v. Health and Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991), aff’d
in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). Under the Court’s Fee
Schedule, an attorney in the range of 4-7 years of experience are entitled to hourly rates
between $238 -$317 for work performed in 2018. 4 A rate of $317 per hour is a more
appropriate rate given the undersigned’s experience and analysis of the McCulloch
3
This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed.
($225 - $200 = $25 * 30.6 = $765).
4 The Attorneys’ Fee Schedule for 2018 is available at http://www.cofc.uscourts.gov/node/2914
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factors as applied to Mr. Brazil. Therefore, the undersigned reduces the fee request
by $19.80. 5
In regards to attorney Amy Senerth, a rate of $225 per hour was awarded for
work performed in 2017. Ms. Senerth’s requested rate of $250 per hour for work in 2018
is outside the experience range for an attorney with 2 years’ experience. Under the
Court’s Fee Schedule, an attorney in the range of 1-4 years’ experience is entitled to
hourly rates between $159 - $238 for work performed in 2018. Her increase for 2018,
based on the Producer Price Index for the “Office of Lawyers” (PPI-OL), provided by the
Department of Labor Bureau of Labor Statistics, would result in a rate $233 per hour,
which is a more appropriate rate given the undersigned’s experience and analysis of the
McCulloch factors as applied to Ms. Senerth. Therefore the undersigned reduces the
fee request by $15.30. 6
The full amount of costs sought, $1,340.89, is awarded.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $23,566.79 7 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Amy A. Senerth.
The clerk of the court shall enter judgment in accordance herewith. 8
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5 This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed.
($350 - $317 = $33 * 0.6 = $19.80).
6 This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed.
($250 - $233 = $17 * 0.9 = $15.30).
7 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” as well as fees for legal services rendered.
Furthermore, § 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).
8 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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