Vazquez-Gonzalez 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* * * * * * * * * * * * * * UNPUBLISHED
DAVID VAZQUEZ-GONZALEZ, * No. 21-1649V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Anne C. Toale, Maglio Christopher and Toale, Sarasota, FL, for Petitioner.
Felicia Langel, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 2, 2021, David Vazquez-Gonzalez (“petitioner”), filed a claim under the
National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that his receipt
of an influenza vaccination on February 14, 2019, caused him to suffer injuries including cranial
neuropathies and that the vaccine significantly aggravated his depression, anxiety, and alcohol
abuse disorder. (ECF No. 1.) After petitioner was unable to secure a medical expert to support his
claim, he filed a motion on January 25, 2023, to voluntarily dismiss his petition. On January 26,
2023, I issued my decision dismissing the petition for insufficient proof. (ECF No. 24).
On May 9, 2023, petitioner filed an application for attorneys’ fees and costs. (ECF No. 30)
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $71,767.63
(representing $60,388.20 in fees and $11,379.43 in costs). Fees App. at 1. Pursuant to General
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 Because this unpublished ruling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).
Order No. 9, petitioner states that he has not personally incurred any costs related to this litigation.
Id. at 2. Respondent responded to the motion on May 10, 2023, indicating that “Respondent is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Resp. at 2 (ECF No. 31). Petitioner filed his reply on May 10, 2022. (ECF No. 32). 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.
a. Hourly Rates
2
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 his counsel; for Ms. Anne
Toale: $475.00 per hour for work performed in 2021, $500.00 per hour for work performed in
2022, and $535.00 per hour for work performed in 2023; and for Ms. Danielle Strait, $340.00 per
hour for work performed in 2019 and $370.00 per hour for work performed in 2020. These rates
are consistent with what counsel have previously been awarded for their Vaccine Program work.
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 $60,388.20.
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 $11,379.43 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, translation of medical records from Spanish to English, and work performed by
a medical expert, Dr. Joseph Rizzo, who reviewed petitioner’s medical records and discussed the
matter with Ms. Toale but ultimately was unable to produce an expert report. Fees App. Ex. 3.
Petitioner has provided adequate documentation of the requested costs which I have reviewed, and
I find the total amount of costs to be reasonable. Petitioner is therefore awarded the full amount of
costs sought.4
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
4
In finding the requested costs reasonable, I am not endorsing any specific hourly rate requested for
expert work as reasonable (or unreasonable). Rather, I am holding that, given the work performed in this
specific case, the total amount requested for expert work is reasonable.
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 $60,388.20
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $60,388.20
Attorneys’ Costs Requested $11,379.43
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $11,379.43
Total Attorneys’ Fees and Costs $71,767.63
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 his counsel as follows: a lump sum
in the amount of $71,767.63, representing reimbursement for petitioner’s attorneys’ fees and
costs, in the form of a check payable to petitioner and his attorney, Ms. Anne Toale.
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).
4