TILLEY v. SECRETARY OF HEALTH AND HUMAN SERVICES ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 30, 2023
* * * * * * * * * * * * * *
OLIVIA TILLEY, * No. 14-818V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for Petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On September 5, 2014, Olivia Tilley (“Petitioner”), then represented by her parents, filed
a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42
U.S.C. §300aa-10 et seq. (2012). Petitioner alleged that the human papillomavirus vaccinations
she received on June 26, 2009, August 26, 2009, and August 10, 2011, caused her to suffer from
premature ovarian failure. See Petition (ECF No. 1). Following briefing from the parties, on
November 9, 2022, the undersigned issued her decision dismissing the petition for insufficient
proof. (ECF No. 107).
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
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).
On May 10, 2023, Petitioner filed a motion for attorneys’ fees and costs. (“Fees App.”)
(ECF No. 112). Petitioner requests total attorneys’ fees and costs in the amount of $40,977.69,
representing $22,400.69 in attorneys’ fees and $18,577.00 in attorneys’ costs Fees App. at 20.
Pursuant to General Order No. 9, Petitioner has indicated that she has not personally incurred any
costs in pursuit of her petition. Respondent responded to the motion on June 8, 2023, stating that
Respondent “is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Resp’t’s Resp. at 2 (ECF No. 114).
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
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, although the petition was eventually dismissed, the
undersigned is satisfied that good faith and reasonable basis have been met in the instant case.
Respondent has also indicated he is satisfied that good faith and reasonable basis have been met.
Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs.
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 895. 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.
a. Hourly Rate
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 can be accessed online.3
The undersigned has reviewed the hourly rates requested for petitioners’ counsel
throughout the pendency of their case (starting with Mr. Mark L. Kruger, Mr. Andrew Krueger,
and finally current counsel, Mr. Mark Sadaka). The rates requested are consistent with what
counsel have previously been awarded for their Vaccine Program work and shall be awarded
herein.
b. Reasonable Number of Hours
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 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and upon review, the
undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $22,400.69.
c. Attorney 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 $18,577.00 in attorneys’ costs, comprised of work performed by petitioner’s medical
expert, Dr. Felice Gersh, postage, and work done by petitioner’s former attorneys at Krueger &
Hernandez. Petitioner has provided adequate documentation of all these expenses, and they appear
reasonable in the undersigned’s experience.4 Accordingly, Petitioner is awarded the full amount
of costs sought.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $22,400.69
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $22,400.69
3
The Fee Schedules are available at http://www.uscfc.uscourts.gov/node/2914.
4
In awarding the full amount of costs sought, the undersigned is not specifically endorsing any particular
hourly rate for the work of Dr. Gersh. Rather, in light of the work product submitted into the record by
these individuals, the undersigned finds the total amounts for her work to be reasonable.
Attorneys’ Costs Requested $18,577.00
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $18,577.00
Total Attorneys’ Fees and Costs $40,977.69
Accordingly, the undersigned awards a lump sum in the amount of $40,977.69,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and her attorney, Mr. Mark Sadaka.
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.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.