Berg v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 19, 2022
* * * * * * * * * * * * * * UNPUBLISHED
JACQUELINE BERG Daughter *
and Executrix of the Estate of
*
MARILYN MOSS, *
*
Petitioner, * No. 16-650V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Howard S. Gold, Sudbury, MA, for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 1, 2016, Jacqueline Berg (“Petitioner”), on behalf of her deceased mother, Marilyn
Moss, filed a petition for compensation pursuant to the National Vaccine Injury Compensation
Program2 alleging Ms. Moss suffered a significant aggravation of her chronic inflammatory
demyelinating polyneuropathy (“CIDP”) after receiving an influenza vaccination on September
25, 2013. Pet. at 1. On December 14, 2021, the undersigned issued a Ruling on Entitlement finding
that Petitioner had not shown by preponderant evidence that Ms. Moss suffered from CIDP prior
to her vaccination and dismissing the petition.
On February 5, 2022, Petitioner filed an application for final attorneys’ fees and costs.
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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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
(ECF No. 70). (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$65,188.51, representing $40,386.00 in attorneys’ fees and $24,802.51 in attorneys’ costs. Fees
App. at 2. Pursuant to General Order No. 9, Petitioner states that she has not incurred any costs
related to this litigation. Id. Respondent responded to the motion on February 6, 2022, 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. (ECF No. 71). Petitioner did
not file a reply thereafter.
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, although the petition was ultimately dismissed, the
undersigned does not doubt the claim was filed in good faith, and reasonable basis existed
throughout the pendency of petitioner’s claim. Respondent also has not challenged the good faith
or reasonable basis of the claim. Accordingly, Petitioner is entitled to a final award of reasonable
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 of compensation for her attorney, Mr. Howard Gold:
$350.00 per hour for work performed in 2014, $360.00 per hour for work performed in 2015,
$370.00 per hour for work performed in 2016, $380.00 per hour for work performed in 2017,
$390.00 per hour for work performed in 2018, $400.00 per hour for work performed in 2019,
$410.00 per hour for work performed in 2020, and $422.00 per hour for work performed in 2021.
These rates are consistent with what Mr. Gold has previously been awarded for his Vaccine
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Program work, and the undersigned finds them to be reasonable herein for work performed in the
instant case.
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).
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that they adequately describe the work done on the case and
the amount of time spent on that work. None of the entries appear objectionable, nor has
Respondent identified any entries as objectionable. Accordingly, Petitioner is awarded final
attorneys’ fees in the amount of $40,386.00.
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 $24,802.51 in attorneys’ costs. This amount is comprised of acquiring medical records,
postage, the Court’s filing fee, and work performed by Petitioner’s medical expert, Dr. Marcel
Kinsbourne. Fees App. at 12. All of these costs are typical of Vaccine Program litigation and are
reasonable in the undersigned’s experience and Petitioner has provided adequate documentation
supporting the request. Petitioner is therefore awarded the full amount of costs requested.
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. The undersigned finds that it is reasonable to compensate Petitioner and her
counsel as follows:
Attorneys’ Fees Requested $40,386.00
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $40,386.00
Attorneys’ Costs Requested $24,802.51
(Reduction to Costs) -
Total Attorneys’ Costs Awarded $24,802.51
Total Amount Awarded $65,188.51
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Accordingly, the undersigned awards a lump sum in the amount of $65,188.51,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Howard Gold.
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