Acon v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 21, 2022
* * * * * * * * * * * * * *
SUSAN B. ACON as executrix of
*
THE ESTATE OF AGNES BIAGINI,
* UNPUBLISHED
*
Petitioner, * No. 19-0064V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Rudolph L. Massa, Massa Law Group, PC, Pittsburgh, PA, for Petitioner.
James V. Lopez, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On December 15, 2021, Susan Acon (“Petitioner”) filed a motion for attorneys’ fees and
costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 50). For the reasons discussed
below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $37,867.14.
I. Procedural History
On January 15, 2019, Petitioner, as executrix of the estate of Agnes Biagini, filed a petition
in the National Vaccine Injury Compensation Program.2 The petition sought compensation for
injuries and death allegedly related to Ms. Biagini’s receipt of an influenza vaccine on December
7, 2016. See Petition (ECF No. 1). On May 18, 2021, the parties filed a stipulation, which I adopted
1
I intend 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, I agree that the identified material fits within this definition, I will redact such
material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, I am 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).
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.A. § 300aa.
as my Decision awarding compensation on the same day. (ECF No. 46).
On December 15, 2021, Petitioner filed a motion for final attorneys’ fees and costs.
Petitioner requests compensation for her attorneys in the total amount of $38,910.14, representing
$29,242.50 in attorneys’ fees, $8,264.33 in attorneys’ costs, and $1,403.31 in costs personally
incurred by Petitioner. Fees App. at 1. Respondent reacted to the fees motion on December 15,
2021, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case.” Response at 2 (ECF No. 51). Petitioner did not file a reply
thereafter.
The matter is now ripe for adjudication.
II. Analysis
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant
to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs.
Petitioners “bea[r] 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).
a. Attorneys’ Fees
Petitioner requests the following rates for her counsel, Mr. Rudolph Massa: $360.00 per
hour for work performed in 2018, $365.00 per hour for work performed in 2019, $420.00 per hour
for work performed in 2020, and $450.00 per hour for work performed in 2021. Mr. Massa’s
requested 2019 rate is consistent with what he has previously been awarded, but the other hourly
rates require reduction. Mr. Massa has previously been awarded $340.00 per hour for work in 2018
and $395.00 per hour for work performed in 2020, so the requested rates exceed what he has
previously been awarded and shall be reduced. See, e.g., Stover v Sec’y of Health & Human Servs.,
No. 17-952V, 2020 WL 5814269 (Fed. Cl. Spec. Mstr. Aug. 27, 2020). I also find that the proposed
rate for Mr. Massa’s 2021 work is excessive. Mr. Massa has been practicing law since 1998,
although he has limited Vaccine Program experience, with the instant case being the seventh filed
by Mr. Massa. Based on these factors, the undersigned finds that $420.00 per hour is a reasonable
hourly rate for Mr. Massa’s work in 2021. Application of these rates results in a reduction of
$1,043.00.3
3
2018: ($360.00 per hour requested - $340.00 per hour awarded) * 1.4 hours billed = $28.00
2
Turning next to the hours billed, 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. Respondent also has not identified any particular
billing entries as being objectionable or unreasonable. Therefore, the hours requested are
compensated without adjustment. Petitioner is awarded final attorneys’ fees of $28,199.50.
b. Attorneys’ 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). Petitioner requests total
attorneys’ costs in the amount of $8,264.33. This amount is comprised of acquiring medical
records, postage, the Court’s filing fee, and work performed by Petitioner’s medical expert, Dr.
Justin Willer. Fees App. Ex. 2. Petitioner has provided adequate documentation supporting all of
the requested costs, and all appear reasonable in my experience. Petitioner is therefore entitled to
the full amount of costs sought.
c. Petitioner’s Costs
Pursuant to General Order No. 9, Petitioner has indicated that she has personally incurred
costs totaling $1,403.31, comprised of acquiring medical records and costs associated with
establishing the estate of Ms. Biagini. Fees App. Ex. 3. These costs are reasonable and supported
with adequate documentation and shall be awarded in full.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $29,242.50
(Reduction of Fees) - ($1,043.00)
Total Attorneys’ Fees Awarded $28,199.50
Attorneys’ Costs Requested $8,264.33
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $8,264.33
Total Attorneys’ Fees and Costs $36,463.83
Petitioner’s Costs $1,403.31
2020: ($420.00 per hour requested - $395.00 per hour awarded) * 34.6 hours billed = $865.00
2021: ($450.00 per hour requested - $420.00 per hour awarded) * 5.0 hours billed = $150.00.
3
Total Amount Awarded $37,867.14
Accordingly, I award the following:
1) a lump sum in the amount of $36,463.83, representing reimbursement for Petitioner’s
attorneys’ fees and costs, in the form of a check payable to Petitioner and her
attorney, Mr. Rudolph Massa4; and
2) a lump sum in the amount of $1,403.31, representing reimbursement for Petitioner’s
costs, 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 the
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).
4