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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 31, 2023
* * * * * * * * * * * * * *
CARA SPECKS, * No. 15-491V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Edward Kraus, Kraus Law Group, LLC, Chicago, IL, for Petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On May 13, 2015, Cara Specks (“Petitioner”) 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 influenza vaccination she received on October 8, 2013, was the cause-
in-fact of her “hyperadrenergic postural orthostatic tachycardia syndrome with hypovolemia. See
Petition (ECF No. 1). An entitlement hearing was held on May 19, 2021, and was followed by
post-hearing briefing from the parties. On February 17, 2023, the undersigned issued her decision
denying entitlement and dismissing the petition.
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 April 14, 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 $229,034.06,
representing $176,832.60 in attorneys’ fees and $52,201.46 in attorneys’ costs Fees App. at 1.
Pursuant to General Order No. 9, Petitioner has indicated that she has not personally incurred any
costs in pursuit of her petition. Id. Respondent responded to the motion on May 31, 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. 97). Petitioner did not file a reply thereafter.
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
Petitioner requests the following hourly rates for the work of her counsel: for Mr. Edward
Kraus, $361.00 per hour for work performed in 2014, $375.00 per hour for work performed in
2015, $389.00 per hour for work performed in 2016, $398.00 per hour for work performed in 2017,
$409.00 per hour for work performed in 2018, $418.00 per hour for work performed in 2019,
$435.00 per hour for work performed in 2020, $458.00 per hour for work performed in 2021, and
$497.00 per hour for work performed in 2023; for Ms. Amy Kraus, $289.00 per hour for work
performed in 2014, $300.00 per hour for work performed in 2015, $311.00 per hour for work
performed in 2016, $318.00 per hour for work performed in 2017, $334.00 per hour for work
performed in 2019, $365.00 per hour for work performed in 2020, $384.00 per hour for work
performed in 2021, and $436.00 per hour for work performed in 2023; and for Ms. Brynna Gang,
$300.00 per hour for work performed in 2020, $325.00 per hour for work performed in 2021, and
$390.00 per hour for work performed in 2023. These rates are consistent with what counsel have
previously been awarded for their Vaccine Program work and the undersigned finds them to be
reasonable 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 $176,832.60.
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 $52,201.46 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, and work performed by Petitioner’s medical expert, Dr. Marcel Kinsbourne (as
well as retainer fees for several other medical experts who were approached but ultimately not
retained). Fees App. at 46-47. The undersigned has reviewed the requested costs and finds them
to be supported with proper documentation and reasonable in light of the work necessary in this
case. Accordingly, Petitioner is awarded the full amount of costs requested.
II. Conclusion
3
The Fee Schedules are available at http://www.uscfc.uscourts.gov/node/2914.
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 $176,832.60
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $176,832.60
Attorneys’ Costs Requested $52,201.46
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $52,201.46
Total Attorneys’ Fees and Costs $229,034.06
Accordingly, the undersigned awards a lump sum in the amount of $229,034.06,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and her attorney, Mr. Edward Kraus.
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.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
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.