Ferrini v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: October 30, 2020)
* * * * * * * * * * * * * *
ALLISON FERRINI, parent and *
natural guardian of minor, W.F., * UNPUBLISHED
* No. 18-1628V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA for petitioner.
Ronalda E. Kosh, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 23, 2018, Allison Ferrini (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program,2 on behalf of her minor child, W.F.,
alleging that W.F. suffered Guillain-Barré syndrome as a result of an influenza vaccine
administered on November 13, 2015. Petition at 1. On June 23, 2020, Respondent filed his
proffer which the undersigned adopted into her decision that same day. (ECF No. 44).
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.
On July 15, 2020, petitioner filed an application for attorneys’ fees and costs. Motion for
Attorney Fees and Costs (ECF No. 48). Petitioner requests compensation in the amount of
$12,848.42, representing $11,975.10 in attorneys’ fees and $873.32 in costs. Fees App. at 2.
Pursuant to General Order No. 9, petitioner warrants that he has not personally incurred any
costs in pursuit of his claim for compensation. Id. Respondent filed his response on July 27,
2020, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case.” Response at 2 (ECF No. 50). Petitioner did not file a reply
thereafter. The matter is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $12,848.42.
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). Here, because petitioner was awarded compensation pursuant to a proffer, she is
entitled to an award of reasonable 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).
2
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 rates for counsel, Ms. Bridget C. McCullough and the attorneys of
Muller Brazil, LLP, between $225 - $317 per hour for work performed between 2017 – 2020 and
for paralegals between $125 - $165. Fees App. At 6-12. The requested rates are consistent with
what Ms. McCullough and her fellow attorneys and staff have previously been awarded for
Vaccine Program work, and the undersigned finds them to be reasonable for the work in this
case.
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, $11,975.10.
b. Attorneys’ Costs
Petitioner requests a total of $873.32 in attorneys’ costs. This amount is comprised of
acquiring medical records, the Court’s filing fee and postage. Fees App. at 14. Petitioner has
provided adequate documentation supporting these costs and they are reasonable in the
undersigned’s experience.
II. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. Accordingly, the undersigned awards a lump sum of $12,848.42, representing
reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Bridget Candace McCullough.
3
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
s/Nora Beth Dorsey
Nora Beth Dorsey
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