Santoroski v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Case No. 15-1294V)
LISA SANTOROSKI,
Special Master Dorsey
Petitioner,
v. Filed: June 8, 2020
SECRETARY OF HEALTH AND Attorney’s Fees and Costs
HUMAN SERVICES,
Respondent.
Robert Joel Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 30, 2015, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”).
Petitioner alleged that as a result of an influenza (“flu”) vaccine administered to her on
November 4, 2012, petitioner suffered from postural orthostatic tachycardia syndrome
(“POTS”), inappropriate sinus tachycardia (“IST”), myopathy, and other vaccine-caused and
related conditions. Amended Petition at 1. On October 25, 2019, the parties filed a stipulation for
1
This decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available
to anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may
object to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under
Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2)
that includes medical filed or similar files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise the whole decision will be available to the public in its
current form. Id.
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.
award, which I adapted as my Decision awarding compensation on the same day. Decision, ECF
No. 138.
On February 16, 2020, petitioner filed an application for attorneys’ fees and costs.
Motion for Attorney Fees and Costs (ECF No. 143). Petitioner requests compensation in the
amount of $111,983.80, representing $97,113.20 in attorneys’ fees and $14,470.60 in costs
incurred by counsel and $400.00 in costs incurred by petitioner. Fees App. Ex. 2 at 50-51.
Respondent filed his response on March 2, 2020 indicating that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Response, ECF
No. 144, at 2. Petitioner filed a reply on the same day, March 2, 2020, stating that petitioner
“relies on facts, and argument presented in her submission”. ECF No. 145. The matter is now
ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $111,983.80.
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. 42 U.S.C. § 300aa-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. at
§15(e)(1). In this case, because petitioner was awarded compensation pursuant to a stipulation,
she is entitled to a reasonable award of final attorneys’ fees and costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s 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
name of the person performing the service. See Savin v. Sec’y of Health and Human 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 and Human 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 & Human 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 & Human 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 and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds
and 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 her counsel, Mr. Robert J.
Krakow: $413 per hour for work performed in 2015, $425 per hour for work performed in
2016, $435 per hour for work performed in 2017, $450 per hour for work performed in 2018,
and $464 per hour for work performed in 2019 and 2020. Fees App. at 12. Petitioner also
requests rates for work Mr. Krakow performed that is considered more paralegal in nature at
the rates of $125 - $156 from 2015 – 2020. Id. These rates are consistent with what Mr.
Krakow has previously been awarded for his work in the Vaccine Program, and the
undersigned finds the rates to be reasonable in this case as well.
ii. Reasonable Hours Expended
The undersigned has reviewed the submitted billing entries and finds the total number
of hours billed to be reasonable. The billing entries accurately reflect the nature of the work
performed and the undersigned does not find any of the entries to be objectionable.
Respondent also has not indicated that he finds any of the entries to be objectionable either.
Accordingly, petitioner is entitled to the full amount of attorneys’ fees sought, $97,113.20.
b. Attorneys’ Costs
Petitioner requests a total of $14,870.60 in attorneys’ costs. This amount is comprised
of petitioner’s counsel incurring $7,751.39 for acquiring medical records, postage; $6,125.00
in fees incurred for the expert M. Eric Gershwin, M.D., and $400.00 for costs personally
incurred by petitioner. Fees App. Ex. 3 at 1. All of these costs are typical of Vaccine Program
litigation and petitioner has provided adequate documentation supporting them. Accordingly,
the requested attorneys’ costs are reasonable, and all costs requested shall be fully reimbursed.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and her counsel as follows:
Attorneys’ Fees Requested $97,113.20
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $97,113.20
Attorneys’ Costs Requested $14,470.60
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $14,470.60
Total Attorneys’ Fees and Costs Awarded $111,583.80
Petitioner’s Costs $400.00
Total Amount Awarded $111,983.80
Accordingly, the undersigned awards the following:
1) A lump sum of $111,583.80, representing reimbursement for attorneys’
fees and costs, in the form of a check payable jointly to petitioner and
petitioner’s counsel, Robert J. Krakow; and
2) A lump sum of $400.00, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
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of Court SHALL ENTER JUDGMENT in accordance with this decision.
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 enouncing
the right to seek review.