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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
ERICA LIVINGSTON, *
* No. 17-1619V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 25, 2023
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Edgewood, NJ, for
Petitioner;
Julia M. Collison, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Erica Livingston’s motion for final
attorneys’ fees and costs. She is awarded $41,707.05.
* * *
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
On October 27, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccine she received on November 5, 2014,
caused her to suffer shortly thereafter vaccine-induced wide-spread pain syndrome
classified as fibromyalgia that was either "caused-in-fact" by the above-stated
vaccination or, in the alternative, significantly aggravated by the above-stated
vaccination. Am. Pet., filed February 14, 2022, at 1. After respondent indicated his
opposition the petition, the parties retained medical experts, with petitioner
retaining Dr. Luge B. Rushing and Dr. Yehuda Shoenfeld, and respondent
retaining Dr. J. Lindsay Whitton and Dr. Brendan Antiochs.
Petitioner sought an award of her attorneys’ fees and costs on an interim
motion via a motion filed on March 16, 2021. Respondent opposed this request, at
least in part, arguing that reasonable basis ceased supporting the claim as of April
21, 2020. Petitioner was awarded interim attorneys’ fees and costs totaling
$50,973.01. Interim Fees Decision, 2021 WL 4805534 (Sep. 14, 2021).
Following the submission of reports from these experts, petitioner filed a
motion to dismiss on December 5, 2022. On December 20, 2022, the undersigned
issued his decision dismissing the petition with prejudice. 2023 WL 356726.
On December 20, 2022, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $31,750.80 and
attorneys’ costs of $17,381.25 for a total request of $49,132.05. Fees App. at 1.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of his case.
On January 5, 2023, respondent filed a response to petitioner’s motion.
Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner
for an award of attorneys’ fees and costs.” Response at 1. Respondent adds,
however that he “is satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case.” Id at 2. Respondent’s current position---that
reasonable basis supports the claim throughout its pendency---is unlike its previous
position---that reasonable basis ceased on April 21, 2020. Regardless, respondent
recommends “that the Court exercise its discretion” when determining a reasonable
award for attorneys’ fees and costs. Id. at 3. Petitioner advocated for the amount
requested. Reply, filed Jan. 5, 2023.
* * *
2
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful the undersigned finds that good
faith and reasonable basis existed throughout the matter. Respondent has also
indicated that he is satisfied that the claim has good faith and reasonable basis.
Respondent’s position greatly contributes to the finding of reasonable basis. See
Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of
matters the parties present.”). A final award of reasonable attorneys’ fees and costs
is therefore proper in this case and the remaining question is whether the requested
fees and costs are reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. at 1349 (citing Davis Cty.
Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
3
Ms. Livingston argues reasonable rates for Mr. Sadaka in the amount of
$422.00 per hour in 2020, $444.00 per hour in 2021 and $458.00 per hour in 2022.
The undersigned has reviewed the requested rates and finds them to be reasonable
and consistent with what special masters have previously awarded to petitioner’s
counsel for his Vaccine Program work. See, e.g. Rose v. Sec’y of Health & Human
Servs., No. 17-1770V, 2021 WL 3053035 (Fed. Cl. Spec. Mstr. Jun. 28, 2021).
Accordingly, the requested hourly rates are reasonable.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and finds the
request to be reasonable. The billing entries contain sufficient detail to permit the
undersigned to assess their reasonableness, and upon review none appear to be
objectionable. Respondent also has not indicated that he finds any of the billing
entries to be objectionable. Therefore, petitioner is awarded final attorneys’ fees in
the amount of $31,750.80.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$17,381.25 in attorneys’ costs. This amount is for acquisition of medical records,
postage, and work performed by petitioner’s medical experts, Dr. Shoenfeld and
Dr. Rushing. The undersigned shall discuss these expert costs in turn.
For the work of Dr. Shoenfeld, petitioner requests a total of $9,000.00,
representing 18 hours billed at $500.00 per hour. Fee App’n at pdf 34. The
undersigned has previously reduced rates for Dr. Shoenfeld in several cases, due to
poor quality of work. See Valeen v. Sec’y of Health & Human Servs., No. 16-
390V, 2023 WL 33530 (Fed. Cl. Spec. Mstr. Jan. 4, 2023) (Reducing Dr.
Shoenfeld’s rate to $125.00); Livingston v. Sec’y of Health & Human Servs., No.
17-1719V, 2021 WL 4805534 (Fed. Cl. Spec. Mstr. Sept. 14, 2021) (interim
decision reducing Dr. Shoenfeld’s rate to $200.00/hour). In this case, the
undersigned previously noted that Dr. Shoenfeld’s work product did not warrant
4
$500.00 per hour, and that has not changed in his subsequent report. Therefore, as
was done before, the undersigned will reimburse Dr. Shoenfeld’s time at $200.00
per hour. Therefore, a reasonable amount for his work is $3,600.00.
Dr. Rushing billed 27 hours at $300.00/hour for preparation of his expert
report. Fee App’n at pdf 26-28. Dr. Rushing has been previously awarded his
requested rate. See Volpe v. Sec’y of Health & Human Servs., No. 16-1422V,
2022 WL 2814845 (Fed. Cl. Spec. Mstr. Jun. 22, 2022). However, the amount of
detail contained in Dr. Rushing’s invoice is not adequate to assess the
reasonableness of his activities. Experts are expected to list the amount of time
they spent on particular activities. See Caves v. Sec’y of Health & Human Servs.,
111 Fed. Cl. 774, 781-83 (2013); Morse v. Sec’y of Health & Human Servs., 89
Fed. Cl. 683 (2009). To account for the vagueness in invoicing, the number of
hours is reduced by 25 percent. A reasonable amount of compensation for Dr.
Rushing’s work is $6,075.00.
The remainder of the costs have been supported by the necessary
documentation and are reasonable in the undersigned’s experience. Petitioner is
therefore awarded final costs of $9,956.25.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $41,707.05 (representing
$31,750.80 in attorneys’ fees and $9,956.25 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and his 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.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
5