Mullis v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-390V
(not to be published)
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THERESA MULLIS, *
* Chief Special Master Corcoran
*
Petitioner, * Filed: October 3, 2019
*
v. *
* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
*
Respondent. *
*
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Heather L. Pearlman, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On March 20, 2017, Theresa Mullis filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged she
suffered from transverse myelitis as a result of the influenza vaccine she received on September
22, 2015. Petition (ECF No. 1). The parties filed a stipulation for award on March 8, 2019, which
I adopted as my Decision awarding compensation on March 12, 2019. Decision (ECF No. 35).
1
Although I have not designated this Decision for publication, it will be made available 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). 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, I agree that the identified material fits within this definition, I will
redact such material from the public Decision.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated June 27,
2019 (ECF No. 40) (“Fees App.”). Petitioner requests a total award of $30,739.92 (representing
$29,403.45 in fees, plus $1,336.47 in costs). Fees App. at 1-2. Pursuant to General Order No. 9,
Petitioner warrants that she has not personally incurred any costs in pursuit of this litigation. ECF
No. 41. Respondent reacted to the Fees Motion on July 2, 2019, indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case, and
deferring to my discretion to determine the amount to be awarded. Response, ECF No. 43, at 2-3.
Petitioner did not file a reply thereafter.
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding final
attorney’s fees and costs in the amount of $30,739.92.
ANALYSIS
Vaccine Program attorneys are entitled to a fees award in successful cases like this one.
Determining the appropriate amount of that award is a two-part process. The first part involves
application of the lodestar method – “multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d
1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second
part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered
applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,
461 U.S. 424, 429-37 (1983).
I have reviewed the rates requested by Petitioner for the work of her counsel at Conway,
Homer, P.C. (the billing records indicate that the majority of attorney work was handled by Mr.
3
An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999) ).
2
Joseph Pepper, while supporting work was done by Mr. Ronald Homer, Ms. Christina Ciampollilo,
Ms. Lauren Faga, and Ms. Meredith Daniels) and find that the rates requested are reasonable and
consistent with what counsel has previously been awarded for their Vaccine Program work in the
each respective year. In addition, I have reviewed the billing entries and otherwise find them to be
reasonable. The billing entries describe with sufficient detail the task being performed and the time
spent on each task. Respondent has not identified any particular entries as objectionable and upon
review, I did not find any entries to be objectionable either. Accordingly, Petitioner is entitled to a
final award of attorney’s fees of $29,403.45.
I will next turn to costs. Just as they are required to establish the reasonableness of
requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining
medical records and expert time incurred while working on a case. Fester v. Sec’y of Health &
Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).
When petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding compensation. See,
e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4
(Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioner requests $1,336.47 in overall costs. Fees. App. Ex. 1 at 24. This amount is
comprised of obtaining medical records, the Court’s filing fee, postage, and travel for counsel to
meet with Petitioner at her home. I have reviewed all of the requested costs and find them to be
reasonable, and Petitioner has provided adequate documentation supporting them. Accordingly,
Petitioner is entitled to the full amount of costs requested.
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 $30,739.92 as a lump sum in the form of a check
jointly payable to Petitioner and her counsel, Mr. Ronald Homer, 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.4
IT IS SO ORDERED.
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
3
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4