Barlow v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: June 7, 2021)
* * * * * * * * * * * * * *
MARLIE BARLOW, * UNPUBLISHED
* No. 17-513V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Joseph A. Vuckovich, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Camille M. Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On April 12, 2017, Marlie Barlow (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (“Vaccine
Act”). Petitioner alleged that as a result of an influenza vaccine administered on October 2, 2015,
significantly aggravated his left arm peripheral neuropathy and carpal tunnel syndrome. On
August 18, 2020, the undersigned issued her decision dismissing the petition for insufficient
proof. (ECF No. 52).
1
This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.
§§ 300aa.
On February 12, 2021, petitioner filed an application for attorneys’ fees and costs.
Motion for Attorney Fees and Costs (ECF No. 55). Petitioner requests compensation in the
amount of $69,416.21, representing $64,559.70 in attorneys’ fees and $4,856.51 in costs. Fees
App. at 1-2. Counsel states that to the best of his knowledge, petitioner did not incur any costs
related to this case and was unable to sign a General Order No. 9 statement prior to his death. Id.
at 2. Respondent filed his response on February 27, 2021, indicating that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response
at 2 (ECF No. 56). Petitioner filed a reply on March 1, 2021, reiterating his belief that the
requested attorneys’ fees and costs are reasonable.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $69,416.21.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
When compensation is not awarded, the special master “may” award reasonable 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.” Id. at
§15(e)(1). In this case, although petitioner’s claim was eventually dismissed, the undersigned
finds the claim was filed in good faith and had reasonable basis through the case. Accordingly,
petitioner is entitled to a final award of reasonable attorneys’ fees and costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It
is “well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
2
A special master need not engage in a line-by-line analysis of a petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.
i. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the work of his attorney, Mr. Joseph
Vuckovich: $290.00 per hour for work performed in 2017, $300.00 per hour for work performed
in 2018, $315.00 per hour for work performed in 2019, $345.00 per hour for work performed in
2020, and $370.00 per hour for work performed in 2021. Fees App. Ex. 1 at 34. These rates are
consistent with what Mr. Vuckovich has previously been awarded for his Vaccine Program
work, and the undersigned finds them to be reasonable herein for work performed in the instant
case.
ii. Reasonable Hours Expended
In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
master may take into account their overall sense of a case and may use estimates when reducing
an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at
*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well
established that an application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file, whether the
amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760
(1989); Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and
costs claimed. Id. at *8.
The undersigned has reviewed the submitted billing entries and finds the total number of
hours billed to be reasonable. The billing entries accurately reflect the nature of the work
performed and the undersigned does not find any of the entries to be objectionable. Respondent
also has not indicated that he finds any of the entries to be objectionable either. Accordingly,
petitioner is awarded final attorneys’ fees of $64,559.70.
b. Attorneys’ Costs
Petitioner requests a total of $4,856.51 in attorneys’ costs. This amount is comprised of
acquiring medical records, the Court’s filing fee, postage, work performed by petitioner’s
medical expert, Dr. Brad Klein. Fees App. Ex. 2 at 1. The undersigned has reviewed the
3
requested costs and finds them to be reasonable and supported with appropriate documentation.
Accordingly, the full amount of costs shall be awarded.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and his counsel as follows:
Attorneys’ Fees Requested $64,559.70
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $64,559.70
Attorneys’ Costs Requested $4,856.51
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $4,856.51
Total Attorneys’ Fees and Costs Awarded $69,416.21
Accordingly, the undersigned awards $69,416.21 in attorneys’ fees and costs, in the form of
a check payable to petitioner’s counsel, Mr. Joseph Vuckovich and forwarded to Maglio
Christopher & Toale PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.3
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
Pursuant to the undersigned’s Order issued on June 3, 2021, due to petitioner’s death and counsel’s inability to
contact any living family or legal representation of petitioner’s estate, payment of attorneys’ fees and costs is being
made solely to counsel. Order, dated June 3, 2021 (ECF No. 58).
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.
4