Franco v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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MATI FRANCO, *
* No. 16-99V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: July 31, 2018
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SECRETARY OF HEALTH * Attorneys’ fees and costs
AND HUMAN SERVICES, *
*
Respondent. *
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Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner;
Ryan D. Pyles, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Mati Franco prevailed in her claim brought in the National Childhood Vaccine
Compensation Program. She is now seeking an award for attorneys’ fees and costs. She is
awarded $60,419.28. The basis for the award and reasons are listed below.
* * *
On January 19, 2016, Mati Franco, filed for compensation under the Nation Vaccine
Injury Compensation Program, 42 U.S.C. §300aa-10 et seq., for injuries sustained from a
pneumococcal conjugate vaccine (Prevnar 13) administered on February 20, 2015. Petitioner
alleges that the vaccination caused her to suffer Guillain-Barré Syndrome. Petitioner further
alleges that she suffered the residual effects of this injury for more than six months. Petitioner
represents that there has been no prior award or settlement of a civil action for damages on her
behalf as a result of her condition. The parties submitted a joint stipulation that was incorporated
by a decision awarding petitioner compensation in the amount of $150,000.00. Decision, 2018
WL 945851 (Jan. 26, 2018).
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
On March 23, 2018, petitioner filed a motion for an award of attorneys’ fees and costs.
ECF No. 72. The motion seeks a total of $60,419.28, comprised of $41,664.50 in attorneys’
fees, $4,329.78 in attorneys’ costs, $12,625.00 in expert fees for services retained by Lawrence
Steinman, MD, and $1,800.00 for the mental health evaluation provided by Dr. David Wellisch.
Id. at 4. In compliance with General Order No. 9, petitioner filed a signed statement indicating
that she did not incur any costs personally. Id. at 4.
On March 27, 2018, Respondent filed a response to petitioner’s motion. ECF No. 73.
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.” Id 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. Additionally, he recommends
“that the special master exercise his discretion” when determining a reasonable award for
attorneys’ fees and costs. Id. at 3. Petitioner did not file a reply to respondent’s response.
* * *
Because Ms. Franco received compensation, she is entitled to an award of reasonable
attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e).
I. Attorneys’ Fees
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.
A. Reasonable Hourly Rate
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. 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)). In this case, all the attorneys’ work was
done outside of the District of Columbia.
Petitioner requests compensation for attorneys Jeffrey S. Pop, Kristina E. Grigorian,
Alexandra B. Pop, and the law clerks who assisted with this case. For Mr. Pop, petitioner
requests the rates of $400 per hour for work performed in 2015 and $420 per hour for work
performed from 2016 - 2018. For Ms. Grigorian petitioner requests the rate of $250 per hour for
all work performed. For Ms. Pop, petitioner requests the rate of $225 per hour for all work
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performed. As these rates are in accordance with those previously awarded to Mr. Pop, Ms.
Grigorian, and Ms. Pop, I find them reasonable and will award them in full. In regards to the law
clerks, petitioner requests the rate of $125 per hour for all work performed for work performed in
2017 and 2018. I find these rates reasonable and award them in full.
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.
In light of the Secretary’s lack of objection, the undersigned has reviewed the fee
application for its reasonableness. See Shea v. Sec’y of Health & Human Servs., No. 13-737V,
2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10, 2015) (“special masters are not
obligated to evaluate an attorney’s billing records on a line-by-line basis in making the
reasonableness determination … and certainly need not do so when Respondent has not
attempted to highlight any specific alleged inefficiencies”). The number of hours is reasonable.
II. Costs
Petitioner requests a total of $18,754.78 in attorney’s costs, consisting of costs expended
for medical records, filing fees, mailings and expert witnesses. Pet. App. at 4. The majority of
the request for costs is for the work performed by the experts, Dr. Lawrence Steinman
($12,625.00) and Dr. Davis Wellisch, Ph.D. ($1,800.00). Each of their invoices presents a
reasonable hourly rate and number of hours. The other filing costs, etc., are also reasonable.
III. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §15(e). The
undersigned finds $60,419.28 ($41,664.50 in fees and $18,754.78 in costs) to be a reasonable
amount for all attorney’s fees and costs incurred. The undersigned GRANTS the petitioner’s
motion and awards $60,419.28 in attorneys’ fees and costs. This shall be paid as follows:
A lump sum of $60,419.28 in the form of a check made payable to petitioner and
petitioner’s attorney, Jeffrey S. Pop, for attorney’s fees and costs available under 42 U.S.C.
§ 300aa-15(e).
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
2
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.
3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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