F. v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 31, 2023
* * * * * * * * * * * * * * UNPUBLISHED
J.F., * No. 13-799V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington, D.C.,
for Petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 15, 2013, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that she suffered anaphylaxis caused by an
adverse reaction to her June 18, 2011, Tetanus diphtheria acellular pertussis (“Tdap”) vaccination.
(ECF No. 1.) Petitioner amended her petition on February 21, 2014, changing the alleged injury
from anaphylaxis to “autoimmune/inflammatory syndrome induced by adjuvants (‘ASIA’) with
associated symptoms.” (ECF No. 12.) I found that petitioner had failed to present preponderant
evidence showing that she suffered any injury caused-in-fact by her June 18, 2011, Tdap
vaccination and is not entitled to compensation. On September 9, 2022, Petitioner filed a motion
for final attorneys’ fees and costs. (ECF. No. 203.) Despite the dismissal, respondent agrees that
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 Because this unpublished ruling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).
the statutory requirements for an award of attorneys’ fees and costs have been met. (ECF No. 212
at 2.)
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e).
Petitioners who are denied compensation for their claims brought under the Vaccine Act may be
awarded attorneys’ fees and costs “if the Special Master or Court determines that the petition was
brought in good faith and there was a reasonable basis for the claim for which the petition was
brought.” 42 U.S.C. § 300aa-15(e)(1); Cloer v. Sec'y of Health & Human Servs., 675 F.3d 1358,
1360–61 (Fed. Cir. 2012). Such an award is within the discretion of the Special Master. 42 U.S.C.
§ 300aa-15(e)(1). I find an award of attorneys’ fees and costs is reasonable in this case and
respondent does not object.3
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. Special Masters have “wide latitude in determining the
reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 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. Sec’y of Health & Human Servs., 24
Cl. Ct. 482, 483 (Fed. Cl. 1991) aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).
In this case, I have reviewed the billing records and additional documentation submitted
with petitioner’s motion. Upon my review, the overall amount sought in attorneys’ fees and costs
is reasonable given the history of this case and the hourly rates and hours billed are reasonable and
appropriate, consistent with what has been awarded in prior cases. The requested costs are
reasonable and sufficiently documented. I award petitioner attorneys’ fees and costs in the
requested amount of $133,512.57. This amount includes $105,987.80 in attorney fees (inclusive
of both supervisory attorney and student attorney hours) and $27,524.77 in litigation costs, the
bulk of which are expert costs.4
Accordingly, I award a total of $133,512.57 as a lump sum in the form of a check
payable to petitioner and her counsel, Renee Gentry, Esq.
3
I note that respondent has challenged the credibility of a report prepared by Dr. Mikovits and Dr.
Ruscetti in the context of determining a final fee award. Response at 3 n.3. However, the instant motion
does not seek reimbursement for any work performed by Dr. Mikovits or Dr. Ruscetti and so respondent’s
objection is moot.
4
The fees motion requests $55,626.86 in attorneys ‘costs. However, the provided itemized list along with
the invoices submitted only document $27,524.77 in costs. I will therefore construe $27,524.77 as the
properly requested amount of attorneys’ costs.
2
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
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).
3