Gamardo v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-797V
Filed: November 25, 2015
************************* PUBLISHED
LUIS GAMARDO, *
* Special Master Hamilton-Fieldman
Petitioner, *
*
v. * Attorneys’ Fees and Costs;
* Contested; McCulloch Hourly
SECRETARY OF HEALTH * Rates; Hours Expended.
AND HUMAN SERVICES, *
*
Respondent. *
*************************
Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner.
Glenn MacLeod, United States Department of Justice, Washington, DC, for Respondent.
DECISION 1
On October 15, 2013, Luis Gamardo (“Petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that the administration of a Measles, Mumps, and Rubella (“MMR”) vaccine
on November 15, 2010 caused him to suffer from immune (or “idiopathic”) thrombocytopenic
purpura (“ITP”). On May 1, 2015, the undersigned issued a decision awarding compensation to
Petitioner. Judgment entered on the decision on May 29, 2015.
On October 16, 2015, Petitioner’s counsel filed a motion seeking reimbursement for
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with Vaccine Rule 18(b), a
party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in
§ 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a
proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits
within the requirements of that provision, such material will be deleted from public access.
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 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
$16,567.50 in attorneys’ fees 3 and $214.71 in attorneys’ costs. Petitioner’s counsel also sought
reimbursement for $369.99 in costs that had been personally incurred by Petitioner. See General
Order #9 Statement, filed October 26, 2015. The total amount requested was $17,152.20.
On October 20, 2015, the undersigned convened a status conference at which she
suspended Respondent’s deadline for a response to Petitioner’s motion. See Order, filed October
21, 2015. At a subsequent status conference, Respondent’s counsel raised objections to the
hourly rates billed by Petitioner’s counsel’s firm and to the reasonableness of billing for multiple
attorneys. See Order, filed November 4, 2015. The undersigned ultimately informed the parties
that she intended to compensate Mr. Homer and his firm’s staff at the rates that were awarded in
McCulloch, but that she would reduce Ms. Daniels’ compensable hours by .4. Id. The
undersigned directed Petitioner’s counsel to draft a decision that incorporated the McCulloch
rates and the noted reduction in hours. Petitioner’s counsel filed his draft on November 5, 2015.
To date, Respondent has not filed any objection to counsel’s draft. This matter is now ripe for
ruling.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. §
300 aa-15(e). The undersigned acknowledges Respondent’s continued objections to the
McCulloch rates but remains in agreement with McCulloch’s outcome with respect to hourly
rates. The undersigned also finds that a portion of the editing performed by multiple attorneys
was duplicative and hereby reduces Ms. Daniels’ compensable time by .4 hours. 4 The remaining
portions of Petitioner’s amended request are reasonable, and the undersigned therefore GRANTS
the remainder of her request for payment of attorneys’ fees and costs and Petitioner’s costs.
In addition, the undersigned awards an additional 1.5 hours of attorney time, expended by
Joseph Pepper at an hourly rate of $290.00, for counsel’s preparation for the substantive status
conference held on November 3, 2015, and for submission of a draft decision on attorneys’ fees
and costs. This amounts to an additional $435.00.
Accordingly, the undersigned awards:
1. A lump sum of $17,105.21, representing reimbursement for attorneys’
fees and costs, in the form of a check payable jointly to Petitioner, Luis
Gamardo, and Petitioner’s counsel, Mr. Ronald Homer of the law firm
of Conway, Homer & Chin-Caplan, P.C.; and
3
Petitioner’s counsel requested compensation at hourly rates that had recently been approved in
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr.
Sept. 1, 2015), mot. for reconsid. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21 2015)
(identifying compensable hourly rates for Homer firm attorneys and staff).
4
A reduction of .4 hours, at $280 per hour, is a total reduction of $112.00.
2
2. A lump sum of $369.99, representing reimbursement for Petitioner’s
costs, in the form of a check payable solely to Petitioner, Luis
Gamardo.
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/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
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).
3