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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 30, 2022
* * * * * * * * * * * * * * UNPUBLISHED
JODY LARSEN, * No. 17-1165V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Danielle A. Strait, Maglio Christopher and Toale, Seattle, WA, for Petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 29, 2017, Jody Larsen (“petitioner”), filed a claim under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that she suffered a shoulder injury
related to vaccine administration and/or brachial neuritis as a result of her receipt of an influenza
vaccination on October 28, 2015. (ECF No. 1.) December 29, 2020, the parties filed a stipulation,
which I adopted as my decision awarding compensation on January 8, 2021. (ECF No. 80).
On October 26, 2021, petitioner filed an application for attorneys’ fees and costs. (ECF No.
88) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $82,516.98
(representing $57,989.10 in fees and $24,527.88 in costs). Fees App. at 2. Pursuant to General
Order No. 9, petitioner states that she has not personally incurred any costs related to this litigation.
Id. Respondent responded to the motion on October 27, 2021, indicating that “Respondent is
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 Because this unpublished ruling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. § 3501note (2012) (Federal Management and Promotion of Electronic Government Services).
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).
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Resp. at 2 (ECF No. 89). Petitioner filed a reply on November 2, 2021, reiterating her belief that
the requested attorneys’ fees and costs were reasonable. (ECF No. 90).
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved 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, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
2
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be accessed online.3
Petitioner requests the following hourly rates for the work of her counsel, Ms. Danielle
Strait: $300.00 per hour for work performed in 2016, $307.00 per hour for work performed in
2017, $322.00 per hour for work performed in 2018, $340.00 per hour for work performed in 2019,
$370.00 per hour for work performed in 2020, and $395.00 per hour for work performed in 2021.
Fees App. Ex. 1 at 35. These rates are consistent with what counsel has previously been awarded
for her work in the Vaccine Program and I find them to be reasonable for work performed in the
instant case as well.
b. Hours Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review, the overall number of hours billed appears to be reasonable. I have reviewed
the billing entries and find that they adequately describe the work done on the case and the amount
of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent
identified any as such. Petitioner is therefore awarded final attorneys’ fees of $57,989.10.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $24,527.88 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, and work performed by petitioner’s medical expert, Dr. D.R. Ayyar. Fees App.
at Ex. 2 at 1-2. Petitioner has provided adequate documentation of the requested costs which I have
reviewed, and I find the total amount of costs to be reasonable.4 Petitioner is therefore awarded the
full amount of costs sought.
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
4
Dr. Ayyar billed a total of 37 hours for review of medical records and preparation of two expert reports, which I
find to be reasonable. Additionally, Dr. Ayyar’s hourly rate is consistent with what he has previously billed. See
3
II. Conclusion
Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:
Attorneys’ Fees Requested $57,989.10
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $57,989.10
Attorneys’ Costs Requested $24,527.88
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $24,527.88
Total Attorneys’ Fees and Costs $82,516.98
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs is
reasonable. I find it reasonable to compensate petitioner and her counsel as follows: a lump sum
in the amount of $82,516.98, representing reimbursement for petitioner’s attorneys’ fees and
costs, in the form of a check payable to petitioner and her attorney, Ms. Danielle Strait, to
be forwarded to Maglio Christopher & Toale, 1605 Main Street, Suite 710, Sarasota Florida
34236.
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/Daniel T. Horner
Daniel T. Horner
Special Master
Montague v. Sec’y of Health & Human Servs., No. 16-298V, 2018 WL 5284594, at *3 (Fed. Cl. Spec. Mstr. Sept.
19, 2018).
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