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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
CHRISTINE HARRISON, *
* No. 15-1064V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 6, 2018
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs
*
*
Respondent. *
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Mark Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner;
Ryan D. Pyles, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Christine Harrison prevailed in her claim brought in the National Childhood
Vaccine Compensation Program. She is now seeking an award for attorneys’ fees
and costs. She is awarded the amount requested, $40,839.53.
* * *
Represented by attorney Mark Sadaka, Ms. Harrison filed her petition on
September 22, 2015, alleging that the influenza vaccine caused her to suffer
various problems, including a demyelinating event. After discussions, the parties
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
resolved this case. The parties submitted a stipulation that a decision incorporated.
Decision, 2017 WL 6945685 (Dec. 10, 2017).
On July 2, 2018, Ms. Harrison filed a motion for an award of attorneys’ fees
and costs. The motion seeks a total of $40,839.53, comprised of $26,093.22 in
attorneys’ fees and $14,746.31 in attorneys’ costs. Ms. Harrison did not incur any
costs personally. Gen. Order No. 9 Stat.
The Secretary filed a response to Ms. Harrison’s motion. The Secretary
represented that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed July 13, 2018,
at 2. With respect to amount, the Secretary recommended that “the special master
exercise his discretion” when determining a reasonable award for attorneys’ fees
and costs. Id. at 3. Ms. Harrision filed a reply reiterating her request for
attorneys’ fees and costs. Pet’r’s Reply, filed July 20, 2018.
This matter is now ripe for adjudication.
* * *
Because Ms. Harrison received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the
unresolved question is what is a reasonable amount of attorneys’ fees and costs?
I. Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
2
A. Reasonable Hourly Rate
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Ms. Harrison requests compensation for Attorney Sadaka, as well as
paralegals who assisted him. The proposed rates are reasonable. Rolshoven v.
Sec'y of Health & Human Servs., No. 14-439V, 2018 WL 3986831, at *2 (Fed. Cl.
Spec. Mstr. June 26, 2018).2
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Sec’y of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
Nearly all of the activities are reasonable. Although some entries relating
to the filing of documents might be questionable, these potentially excessive items
2
Although Ms. Harrison’s motion references an inflation rate of 3.7 percent,
that figure was for a different time and based upon a different index. Special
masters have not increased hourly rates at that rate. See Keenan v. Secʼy of Health
& Human Servs., No. 17-189V, 2018 WL 2772307, at *2 n.4 (Fed. Cl. Spec. Mstr.
May 2, 2018), judgment modified on non-relevant grounds, 2018 WL 5573432
(Fed. Cl. Spec. Mstr. Sept. 12, 2018).
3
are relatively trivial. Thus, in light of the Secretary’s failure to object, the
undersigned finds all of the time billed reasonable.
II. Costs
In addition to seeking an award for attorneys’ fees, Ms. Harrison seeks
compensation for costs expended, totaling $14,746.31. The costs for routine items,
such as medical records and the filing fee, are reasonable and adequately
documented. Ms. Harrison is awarded them ($1,621.31) in full. The bulk of the
costs ($13,125.00) derive from Dr. Steinman’s work. This cost is reasonable as
well.
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $40,839.53 ($26,093.22 in attorneys’ fees and
$14,746.31 in attorneys’ costs) to be a reasonable amount for all attorneys’ fees
and costs incurred. The undersigned GRANTS the petitioner’s motion and awards
$40,839.53 in attorneys’ fees and costs. This shall be paid as follows:
A lump sum of $40,839.53 in the form of a check made payable to
petitioner and petitioner’s attorney, Mark Sadaka, for attorneys’ fees and
costs available under 42 U.S.C. § 300aa-15(e).
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.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
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