St. Pierre v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1315V
Filed: January 11, 2019
Not for Publication
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ROBERT ST. PIERRE, *
*
Petitioner, *
* Reasonable attorneys’ fees and costs;
v. * Guillain-Barré syndrome (“GBS”);
* Pneumococcal conjugate (“Prevnar-13”)
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Amber D. Wilson, Washington, DC, for petitioner.
Mallori B. Openchowski, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On October 11, 2016, Robert St. Pierre (“petitioner”) filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012), alleging that he suffered
Guillain-Barré syndrome (“GBS”) as a result of his August 21, 2015 receipt of the pneumococcal
conjugate (“Prevnar-13”) vaccine. Pet. at 1.
On July 3, 2018, the parties filed a stipulation in which they agreed to settle this case and
described the settlement terms. Respondent denies that the Prevnar-13 vaccine caused or
significantly aggravated petitioner’s alleged injury or any other injury. Nonetheless, the parties
agreed to resolve this matter informally. On the same day, the undersigned issued a decision
awarding compensation in the amount and on the terms set forth in the stipulation. Judgment
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 Because this unpublished ruling contains a reasoned explanation for the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).
entered on July 6, 2018.
On October 16, 2018, petitioner filed a motion for attorneys’ fees and costs (“Fees
App.”), requesting attorneys’ fees of $32,760.00 and attorneys’ costs of $24,415.00, for a total
request of $57,175.00. Fees App. at 1-2. Pursuant to General Order No. 9, petitioner has
indicated that he has personally incurred costs in the amount of $11.50 in pursuit of this
litigation. Fees App. Ex. 66. Respondent responded to the motion on October 22, 2018,
indicating that he was “satisfied that the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and asking the undersigned to “exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Response at 2-3. Petitioner filed a
reply on October 24, 2018, reiterating his belief that the requested amount of fees and costs is
reasonable. Reply at 4. The matter is now ripe for disposition.
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3
F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”).
Special masters have previously reduced the fees paid to petitioners due to excessive and
duplicative billing. See Ericzon v. Sec’y of HHS, No. 10-103V, 2016 WL 447770 (Fed. Cl.
Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and
duplicative billing); Raymo v. Sec’y of HHS, No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec.
Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl.
691 (2016). Special masters have previously noted the inefficiency that results when cases are
staffed by multiple individuals and have reduced fees accordingly. See Sabella v. Sec’y of
HHS, 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). Additionally, it is firmly established that billing for
clerical and other secretarial work is not permitted in the Vaccine Program. Rochester v. United
States, 18 Cl.Ct. 379, 387 (1989) (denied an award of fees for time billed by a secretary and
found that “[these] services ... should be considered as normal overhead office costs included
within the attorneys’ fees rates”); Mostovoy v. Sec’y of HHS, 2016 WL 720969, at *5 (Fed. Cl.
Spec. Mstr. Feb. 4, 2016).
Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds petitioner’s attorneys’ fees rates to be acceptable and in conformance with
what other special masters have awarded Maglio Firm attorneys and paralegals. Additionally,
the hours billed in this matter (135.7) appear to be largely reasonable. The only reduction the
undersigned will make is for time billed reviewing minute entries. As the undersigned has
noted in the past, these entries are essentially boilerplate language generated by CMECF to
memorialize a conference or hearing involving the Court and the parties, and billing even 0.1
hours for review of these entries is, in the undersigned’s experience, likely excessive. See Krieg
v. Sec’y of HHS, No. 16-1226V, 2018 WL 6427133, at *2 (Fed. Cl. Spec. Mstr. Nov. 2, 2018).
The undersigned has noted five instances of such entries, including on 12/14/17, when two
2
paralegals billed for review of the minute entry (which would qualify as double billing as well).
Fees App. Ex. 64 at 8-16. Also, on 12/14/17, it appears that two paralegals each billed for
review of the Court’s Order, which was a straightforward order concerning future filing dates. Id.
at 14-15. Accordingly, the undersigned will reduce the amount awarded by $87.30.
Turning next to costs, petitioner requests a total of $24,415.00, the overwhelming
majority of which ($22,250.00) is attributed to the work of Dr. Kazim Sheikh in preparing two
expert reports. Dr. Sheikh’s requested rate of $500.00 per hour has been awarded previously by
special masters. See Robinson v. Sec’y of HHS, No. 15-967V, slip op. at 5 (Fed. Cl. Spec.
Mstr. Sept. 12, 2018); Johnson v. Sec’y of HHS, No. 14-642V, slip op. at 3 (Fed. Cl. Spec. Mstr.
Sept. 21, 2017). Additionally, the number of hours billed by Dr. Sheikh (26.5) is reasonable in
light of the amount of work performed in this matter, and Dr. Sheikh’s billing entries clearly
reflect the work being performed. Accordingly, this cost shall be awarded in full. The
undersigned also finds all of petitioner’s remaining costs to be reasonable. These costs consist of
payment for medical records, postage, and the filing fee of this case. All of these costs are
typical of Vaccine Program cases, and petitioner has provided adequate documentation for all
costs. Accordingly, petitioner’s requested costs shall be awarded in full.
Finally, pursuant to General Order No. 9, petitioner warrants that he has expended $11.50
for scanning and fax services. Fees App. Ex. 66 at 1-2. Petitioner has adequately documented
this cost, and it shall also be awarded.
Accordingly, the undersigned GRANTS petitioner’s application for attorneys’ fees and
costs. The court awards the following:
1. $57,087.70 (representing attorneys’ fees in the amount of $32,672.70 and costs
of $24,415.00) in the form of a check made payable jointly to petitioner and
Maglio Christopher and Toale, PA; and
2. $11.50 (representing petitioner’s costs) in the form of a check made payable to
petitioner.
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.2
IT IS SO ORDERED.
Dated: January 11, 2019 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3