Schik v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 19, 2019
* * * * * * * * * * * * * *
BRUCHY SCHIK, *
*
Petitioner, * No. 17-1591V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Alison H. Haskins, Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner.
Camille M. Collett, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 24, 2017, Bruchy Schik (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that she suffered a shoulder injury related to vaccine administration
(“SIRVA”) as a result of receiving a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination
on August 11, 2016. See Petition, ECF No. 1. On May 28, 2019, the parties filed a Stipulation,
which was adopted by the undersigned as her Decision awarding compensation on the same day.
Decision, ECF No. 32.
On August 16, 2019, Petitioner filed an application for final attorneys’ fees and costs. ECF
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 Because this unpublished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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
No. 37 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$31,652.35, representing $30,739.95 in attorneys’ fees and $912.40 in attorneys’ costs. Fees App.
at 1. Pursuant to General Order No. 9, Petitioner states that she has not incurred any costs related
to this litigation. Id. at 2. Respondent responded to the motion on August 30, 2019, stating that
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case” and requesting that the undersigned “exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 38. Petitioner filed
a reply on September 3, 2019, reiterating her belief that the requested amount of fees and costs
was reasonable. ECF No. 39.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation, she is
entitled to an award of attorneys’ fees and costs.
It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.a. Reasonable Hourly Rates
Petitioner requests the following rates for the work of her counsel at Maglio Christopher
and Toale, PA: for Ms. Alison Haskins, $369.00 per hour for work performed in 2018 and $387.00
per hour for work performed in 2019; for Mr. Altom Maglio, $362.00 per hour for work performed
in 2017 and $381.00 per hour for work performed in 2018; for Ms. Ann Golski, $360.00 per hour
for work performed in 2017 and $371.00 per hour for work performed in 2018; and for Ms. Diana
Stadelnikas, $372.00 per hour for work performed in 2017. Fees App. at 23. Petitioner also requests
paralegal rates from $105.00 per hour to $154.00 per hour, depending on the individual paralegal
and the year the work was done. Id. The rates requested are consistent with what the undersigned
2
and other special masters have consistently awarded Maglio firm attorneys and paralegals for their
vaccine program work. Accordingly, the requested hourly rates are reasonable.
b. Reasonable Hours Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and, upon review, the
undersigned does not find any of the billing entries to be unreasonable. Respondent also did not
indicate that he finds any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $30,739.95.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $912.40 in attorneys’ costs. This amount is comprised of acquiring medical records, the
Court’s filing fee, and postage. Fees App. Ex. 2 at 1-2. These costs are all typical of Vaccine
Program litigation and Petitioner has provided adequate documentation supporting the requested
costs. Accordingly, Petitioner is entitled to the full amount of costs sought.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $30,739.95
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $30,739.95
Attorneys’ Costs Requested $912.40
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $912.40
Total Amount Awarded $31,652.35
3
Accordingly, the undersigned awards a lump sum in the amount of $31,652.35,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner and Petitioner’s counsel of record, Ms. Alison Haskins.
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.3
IT IS SO ORDERED.
s/Katherine E. Oler
Katherine E. Oler
Special Master
3
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
4