Patrick v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
RONALD PATRICK, *
* No. 17-922V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 13, 2018
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Diana L. Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for
Petitioner;
Daniel A. Principato, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
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The undersigned intends to post this Decision 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 Because this unpublished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, 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).
Ronald Patrick brought a successful petition for compensation under the
National Childhood Vaccine Compensation Program. He now sees an award for
attorneys’ fees and costs. He is awarded $27,008.88.
* * *
Represented by Ms. Diana Stadelnikas, Mr. Patrick filed his petition for
compensation on July 10, 2017. Mr. Patrick alleged that the influenza vaccine that
he received on September 1, 2015, which is contained in the Vaccine Injury Table,
42 C.F.R. § 100.3(a), caused him to suffer Guillain-Barré syndrome. The parties
were able to informally resolve the case, agreeing to a joint stipulation on award of
compensation that was then adopted. Decision, issued July 27, 2018.
On September 17, 2018, petitioner moved unopposed for reimbursement of
attorneys’ fees and costs, requesting a total of $27,066.38 (representing $25,572.80
in attorneys’ fees and $1,493.58 in attorneys’ costs). Petitioner’s Application for
Attorneys’ Fees and Costs (“Fees App.”) at 1-2. Pursuant to General Order No. 9,
petitioner warrants that he has not personally incurred any costs in pursuit of this
litigation. Id. at 1.
This matter is now ripe for adjudication.
* * *
Because Mr. Patrick received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Thus, the question
at bar is whether Mr. Patrick’s requested amount is reasonable.
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.
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A. Reasonable Hourly Rates
Mr. Patrick requests the following rates for his attorney, Ms. Stadelnikas:
$359.00 per hour for work performed in 2016, $372.00 per hour for work
performed in 2017, and $396.00 per hour for work performed in 2018. Fees App.
at 18. Additionally, Petitioner requests compensation for another attorney, Mr.
Altom Maglio, at $362.00 per hour for work performed in 2017, and several
paralegals at rates ranging from $95-$148 per hour for work performed from 2016-
2018. Id.
The rates requested for Maglio firm attorneys are in line with what the
undersigned and other special masters have consistently awarded them for their
work in the Vaccine Program. See Lavayen v. Sec’y of Health & Human Servs.,
No. 15-1247V, 2017 WL 4638659 (Fed. Cl. Spec. Mstr. Sept. 20, 2017); Williams
v. Sec’y of Health & Human Servs., No. 17-791V, 2018 WL 5520260 (Fed. Cl.
Spec. Mstr. Sept. 25, 2018); Dighero v. Sec’y of Health & Human Servs., No. 15-
22V, 2018 WL 2224880 (Fed. Cl. Spec. Mstr. Apr. 6, 2018).
The paralegal rates requested have previously been found reasonable and are
in line with forum rates for paralegals in each respective year. Accordingly, no
adjustment to the requested rates is necessary.
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 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 McIntosh v. Sec’y of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
To facilitate the process of evaluating the reasonableness of an attorney's
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner's
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responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys' fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).
Upon review of the submitted billing statement, the undersigned finds the
hours billed (103.3) to be reasonable with two exceptions for what appear to be
duplicate entries. The first duplicate entry occurs on June 8, 2016, when paralegal
Amanda Ramos billed two entries for “Prepare Authorization and draft letter
requesting records from Stuart Eye Institute and forward same. Update file
accordingly[,]” each for 0.3 hours. Fees App. Ex. 19 at 2. The second instance
occurs on October 11, 2017, when Ms. Ramos had one entry for “Review Order of
Court authorizing issuance of subpoena to Select Specialty Hospital – Palm Beach”
for 0.4 hours and one entry for “Review and analyze Court Order granting
Petitioner’s Motion to Issue Subpoenas, update case deadlines” for 0.2 hours. Id. at
10. Given that the Court only issued one order in that time frame, on October 5,
2017, the second entry appears to be a duplicate. The Court will therefore deduct
the duplicate entries from the award of attorneys’ fees, a reduction of $57.50.
Accordingly, petitioner is entitled to attorneys’ fees in the amount of $25,515.30.
C. Costs Incurred by Maglio Christopher & Toale
The fees application also asks for reimbursement in the amount of $1,493.58
in for costs incurred by Maglio Christopher & Toale. Fees App. at 1. 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).
The undersigned has reviewed the requested costs and notes they are all for
routine expenses commonly incurred in Vaccine Program litigation, such as the
cost of medical records, postage, and the filing fee. Fees App. Ex. 21 at 1-2.
Petitioner has provided adequate documentation of all these costs, and they shall be
reimbursed in full.
Accordingly, Petitioner is awarded $1,493.58 in attorneys’ costs.
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D. 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 $27,008.88 (representing
$25,515.30 in attorneys’ fees and $1,493.58 in costs) as a lump sum in the form of
a check jointly payable to petitioner and his counsel, Ms. Diana Stadelnikas, Esq.
In the absence of a timely-filed motion for review (see Appendix B to the
Rules of the Court), the Clerk shall enter judgment in accordance with this
decision.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.
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