Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
WILLIAM SMITH, *
* No. 15-1194V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: June 28, 2019
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Diana L. Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for
Petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On March 25, 2019, petitioner William Smith moved for final attorneys’
fees and costs. He is awarded $47,204.60.
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 Because this unpublished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).
* * *
On October 14, 2015, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza (“flu”) vaccine Mr. Smith received on March
15, 2014, which is contained in the Vaccine Injury Table, 42 C.F.R. § 100.3(a),
caused him to suffer Guillain-Barré syndrome. Based upon an evaluation of the
medical records, expert reports, and statements from treating physicians, the
undersigned ruled that preponderant evidence supported the conclusion that Mr.
Smith did not suffer from GBS following his vaccination. Ruling, issued Oct. 31,
2018, ECF No. 59. Thereafter, petitioner moved for a decision dismissing his
petitioner which the undersigned granted, dismissing the petition on February 28,
2019. Decision, ECF No. 70.
On March 25, 2019, petitioners filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $35,303.10 and
attorneys’ costs of $12,271.30 for a total request of $47,574.40. Fees App. at 1-2.
On April 2, 2019, 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. Additionally, he recommends “that the special master
exercise his discretion” when determining a reasonable award for attorneys’ fees
and costs. Id. at 3. Petitioner filed a reply on April 3, 2019, reiterating his belief
that the requested amount of fees and costs is reasonable. Reply at 4-5.
* * *
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, the undersigned
has no reason to doubt the good faith of the claim, and although the claim was
ultimately unsuccessful, petitioner’s complex medical history and inconsistent
references to GBS in his medical records give his claim a reasonable basis.
Respondent also has not challenged the reasonable basis of the claim. A final
award of attorneys’ fees and costs is therefore proper in this case.
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
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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. 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 the following rates for the work of his counsel, Ms.
Stadelnikas: $300.00 per hour for work performed in 2014 and 2015, $359.00 per
hour for work performed in 2016, $372.00 per hour for work performed in 2017,
$396.00 per hour for work performed in 2018, and $415.00 per hour for work
performed in 2019. Fees App. ex. 1 at 19. Petitioner also requests paralegal
compensation at $105.00 - $154.00 per hour depending on the paralegal and the
year the work was performed in. Id. These rates are consistent with what the
undersigned and other special masters have previously awarded for Ms.
Stadelnikas’ work. See Sturdivant v. Sec’y of Health & Human Servs., No. 16-
1672V, 2019 WL 410600, at *2 (Fed. Cl. Spec. Mstr. Jan. 8, 2019). Accordingly,
the rates sought herein are reasonable.
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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 billing records and finds the number of
hours billed (125.0) to be largely reasonable, with only minor reductions to
paralegal time necessary. The main issue is that paralegals billed for review of
filed documents which were also reviewed (and billed) by petitioner’s counsel, Ms.
Stadelnikas. This leads to instances where even routine scheduling orders are
having twelve minutes billed for their review, which is excessive in the
undersigned’s experience. Fees App. Ex. 1 at 9 (entries on 1/26/17 and 1/27/19). A
small amount of time was also billed on administrative tasks, such as preparing
copies and creating CD’s of records, or on unnecessary tasks, such as reviewing
the filed copy of the petition or “Review additional Notice of Appearance and
update file notes” after billing for reviewing the Notice of Appearance three days
prior. Fees App. Ex. 1 at 5. Accordingly, the undersigned shall reduce the final
award of fees by $369.80 to account for these entries. Petitioner is thus entitled to
attorneys’ fees of $34,933.30.
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
$12,271.30 in costs, comprising of acquiring medical records, postage, and the
expert work of Dr. Thomas Morgan in reviewing medical records and preparing an
expert report. In this case, Dr. Morgan performed 24 hours of work and billed at
$400.00 per hour. Dr. Morgan’s rate has previously been found reasonable by other
special masters and the undersigned also finds it to be reasonable. See Shinskey v.
Sec’y of Health & Human Servs., No. 15-713V, 2019 WL 2064558, at *5 (Fed. Cl.
Spec. Mstr. May 9, 2019); DiFazio v. Sec’y of Health & Human Servs., No. 09-
530V, 2017 WL 2417322, at *5 (Fed. Cl. Spec. Mstr. May 10, 2017). The hours
billed are also reasonable in light of the amount of work performed by Dr. Morgan.
Accordingly, the costs associated with his work shall be fully reimbursed.
The remainder of the costs are typical of Vaccine Program litigation and
petitioner has provided adequate documentation to support them. Respondent has
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not identified any of the costs as objectionable, and the undersigned finds them to
be reasonable. Accordingly, petitioner is entitled to a final award of costs in the
amount of $12,271.30.
E. 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 $47,204.60 (representing
$34,933.30 in attorneys’ fees and $12,271.30 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and Maglio Christopher & Toale,
PA.
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