Kastl v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 23, 2022
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DONNA KASTL, * UNPUBLISHED
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Petitioner, * No. 17-43V
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v. * Special Master Dorsey
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SECRETARY OF HEALTH * Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
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Respondent. *
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Jason P. Osteen, Dempsey & Kingsland, P.C., Kansas City, MO, for Petitioner.
Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On January 11, 2017, Donna Kastl (“Petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.2 Petitioner alleged that as a result of tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccination she received on August 31, 2015, she developed transverse
myelitis (“TM”). Petition at 1 (ECF No. 1). On June 15, 2021, the parties filed a stipulation,
which the undersigned adopted as her decision awarding compensation on the same day.
Decision dated June 15, 2021 (ECF No. 59).
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Because this Decision 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). This means the Decision 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.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
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On October 12, 2021, Petitioner filed an application for attorneys’ fees and costs.
Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Mot.”), filed Oct. 12, 2021 (ECF No.
64). Petitioner requested compensation in the amount of $87,466.37, representing $52,215.00 in
attorneys’ fees and $35,251.37 in costs. Id. at 1. Respondent filed his response on October 14,
2021, stating he “is satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case.” Respondent’s Response to Pet. Mot. (“Resp. Response”), filed Oct. 14,
2021, at 2 (ECF No. 65).
Thereafter, the undersigned filed an order requesting Petitioner address deficiencies in
Petitioner’s motion and Petitioner filed Amended Documentation on November 11, 2021. Order
dated Nov. 2, 2021 (ECF No. 66); Amended (“Am.”) Documentation, filed Nov. 11. 2021 (ECF
No. 67). The amended documentation recalculates Petitioner’s costs at $34,548.28 of
documented costs, and $516.85 of undocumented postage and printing costs. Am.
Documentation at 1. The undersigned requested additional information on April 22, 2022.
Order dated Apr. 22, 2022 (ECF No. 68). Petitioner filed three affidavits from attorneys Osteen,
Adkins, and McRae. Affidavit, filed May 9, 2022 (ECF No. 69); Affidavit, filed May 9, 2022
(ECF No. 70); Affidavit, filed May 9, 2022 (ECF No. 71).
The matter is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS IN PART Petitioner’s
motion and awards a total of $83,840.40.
I. DISCUSSION
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. § 15(e)(1). When compensation
is not awarded, the special master “may” award reasonable attorneys’ fees and costs “if the
special master or court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought.” Id. In this case, because
Petitioner was awarded compensation pursuant to a stipulation, she is entitled to a final award of
reasonable attorneys’ fees and costs.
A. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Hum. Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
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name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed.
Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is
“well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by Respondent
and without providing a Petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009).
A special master need not engage in a line-by-line analysis of a Petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Hum. Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991), rev’d on other grounds & aff’d in
relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours clamed in attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F.3d at 1521.
i. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the work of their counsel: for Mr. Jason
Osteen, $400.00 per hour for work performed in 2018 through 2021; for Mr. Brad Akins,
$325.00 per hour for work performed in 2016 through 2018; and for Mr. Kyle McCrae, $300.00
per hour for work performed in 2018. Pet. Mot. at 3; Am. Documentation, Tab 1 at 1-67.
Petitioner also requests the rate $75.00 per hour for work performed by their counsel’s paralegals
in 2015 through 2021. Pet. Mot. at 3.
The undersigned finds the rates requested by Mr. Osteen consistent with rates per the
Office of Special Masters attorney’s fee schedule for 2022 for attorneys with 11 – 19 years of
experience in practice. Similarly, the rates requested by Mr. Adkins is consistent for attorneys
with 4 – 7 years of experience in practice. However, Mr. McCrae was barred in 2015 and has
less than four years of experience at the time of his work on this case. Affidavit, filed May 9,
2022 (ECF No. 71). Therefore, a reduction of Mr. McCrae’s rate from $300.00 to $200.00 is
appropriate. This results in a reduction of $1,200.00. The undersigned also finds the rates
requested for Mr. Osteen’s paralegals reasonable and will award the rates requested.
ii. Reasonable Hours Expended
In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
master may take into account their overall sense of a case and may use estimates when reducing
an award. See Florence v. Sec’y of Health & Hum. Servs., No. 15-255V, 2016 WL 6459592, at
*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011)). It is well
established that an application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file, whether the
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amount requested is reasonable. Bell v. Sec’y of Health & Hum. Servs., 18 Cl. Ct. 751, 760
(1989); Rodriguez v. Sec’y of Health & Hum. Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl.
Spec. Mstr. July 27, 2009). Petitioner bears the burden of documenting the fees and costs
claimed. Rodriguez, 2009 WL 2568468 at *8.
Upon review of the submitted billing records, the undersigned finds the majority of the
time billed to be reasonable. The timesheet entries are sufficiently detailed for an assessment to
be made of the entries’ reasonableness. However, a reduction is necessary due to excessive
paralegal and administrative time billed. Paralegals billed time on administrative tasks such as
filing documents and handling payments for medical records. Paralegal time was also excessive
for review of filings (e.g., 0.5 hours to open file, scan documentation; 0.4 hours organize and
scan records; and 0.1 hours for payment of records). It is well established that billing for clerical
and other secretarial work is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989) (denying an award of fees for time billed by a secretary and finding
that “[these] services . . . should be considered as normal overhead office costs included within
the attorneys’ fee rates”); Mostovoy v. Sec’y of Health & Hum. Servs., No. 02-10V, 2016 WL
720969, *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). Accordingly, the undersigned reduces
petitioner’s fee award by five percent, or $2,550.75. Petitioner is therefore awarded final
attorneys’ fees of $48,464.25.
B. Attorneys’ Costs
Petitioner requests a total of $35,376.15 in attorneys’ costs. This amount is comprised of
acquiring medical records, the Court’s filing fee, the mediation fee, the life care plan fee, and for
work performed by Petitioner’s expert, Dr. Marcel Kinsbourne. Am. Documentation, Tab 2 at 1-
129. The undersigned has reviewed the requested costs and finds them to be reasonable and
supported with appropriate documentation. Accordingly, the full amount of costs shall be
awarded.
II. CONCLUSION
Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsel as follows:
Dempsey & Kingsland, P.C. Fees and Costs
Attorneys’ Fees Requested $52,215.00
(Total Reduction from Billing Hours) -$3,750.75
Total Attorneys’ Fees Awarded $48,464.25
Attorneys’ Costs Requested $35,376.15
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $35,376.15
Total Attorneys’ Fees and Costs Awarded $83,840.40
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Accordingly, the undersigned awards $83,840.40 in attorneys’ fees and costs, in the
form of a check payable jointly to Petitioner and Petitioner’s counsel, Mr. Jason Osteen.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
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.
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