# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * *

CAROLYN WALL and STEPHEN *

WALL on behalf of their minor * child, G.W.

, *

* No. 1 7

- 583 V

Petitioner s
, * Special Master Christian J. Moran

*

v. * Filed: December 1 7 , 2020

*

SECRETARY OF HEALTH * Attorneys’ Fees and C osts AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * * * * * * * * * *

An drew D. Downing

, Van Cott & Talamante, PLLC, Phoenix, AZ

, for Petitioner s ; Mallori B. Openchowski , United States Dep’t of Justice, Washington, DC, for Respondent.

UN PUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS 1

On August 21 , 2020

, peti tioner s Carolyn and Stephen Wall m oved for final attorneys’ fees and costs. T h e y are awarded $ 17, 7 29.51

.

* * *

1 Because this published 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 posting means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 14 days to identify and move to r edact 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 fr om public access.2

The background for this case has been set forth previously in the undersigned’s prior decision awarding interim fees. See Interim Fees Decision,

2019 WL 7667636 (Fed. Cl. Spec. Mstr. Dec. 17, 2019 ). The instant fees motion requests reimbursement for work performed from August 29, 2019 until the present. During that t ime, petitioner obtained and filed additional medical records and an additional expert report

. On July 29, 2020, petitioners filed an unopposed motion for a decision dismissing their petition, stating that, in light of litigation currently being initiated against Merck involving injuries to Gardasil vaccine recipients, petitioners “wish to pursue a third party action in district court against Merck directly.” Pet’rs’ Mot., filed July 29, 2020, ¶3. On August 19, 2020, the undersigned issued his decision dism issing the petition for insufficient proof.

On August 21 , 2020 , petitioner s filed a motion for final attorneys ’ fees and costs (“Fees App.”) . Petitioner s request attorneys’ fees o f $ 14,791.00 and attorneys’ costs of $ 3,538.51 f or a total request of $ 18,329.51

. Fees App. a t 4

. Pursuant to General Order No. 9, petitioner states that s he did not personally incur any costs related to the litigation of this matter. Id. O n September 1 , 2020

,

r espondent filed a response to petitioner’s motion. Respondent arg ues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’

fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the

statut ory requirements for an award of attorneys’ fees and costs are met in this

case.” Id at 2. Additionally, he recommends “that the special master exercise his discretion” when determining a reasonable award for attorneys’ fees and costs. Id.

at 3. Petition er did not file a reply thereafter

.

* * *

Although compensation was denied, petitioners who bring their petitions in good faith and who have a reasonable basis for their petitions may be awarded attorneys’ fees and costs. 42 U.S.C. § 300aa

- 15(e)(1). In thi s case, the undersigned has no reason to doubt the good faith of the claim, and although the claim was ultimately unsuccessful, the undersigned finds that petitioners’ claim has a reasonable basis throughout the entire case. Respondent also has not challen ged the reasonable basis of the claim. A final award of attorneys’ fees and costs is therefore proper in this case.

The Vaccine Act permits an award of reasonable attorney’s fees and costs. §15(e). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. This is a two

- step

process. Avera v. Sec’y of Health & Human Servs.

, 515 F.3d 1343, 1348 (Fed.3

Cir. 2008). First, a court determines an “initial estimate ... by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly

rate.’” Id. at 1347

- 48 (quoting Blum v. Stenson , 465 U.S. 886, 888 (1984)). Second, the cour t may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. Here, because the lodestar process yields a reasonable result, no additional adjustments are required. Instead, the analysi s focuses on the elements of the lodestar formula, a reasonable hourly rate and a reasonable number of hours.

In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See McIntosh v. Secʼy of Health &

Human Servs. , 139 Fed. Cl. 238 (2018)

A. Reasonable Hourly Rates

Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera , 515 F.3d at 1349. There is, however, an excep tion (the so

- called Davis County exception) to this general rule when the bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency , 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work during this period was done outside of the District of Columbia.

Petitioner s request the following hourly rates for the work of thei r counsel

at Van Cott & Talamante, PLLC: for Mr. Andrew Downing, $385.00 per hour for all work performed from 201 9

- 2020, for Ms. Courtney Van Cott, $205.00 per hour for work performed 2019 and $275.00 per hour for work performed in 2020

. The undersigned has previously found these rates to be reasonable for the work of Mr. Downing and Ms. Van Cott, and they are reasonable for work in the instant case as

well. Bourche v. Sec’y of Health & Human Servs. , No. 15

- 232V, 2020 WL 6582180 (Fed. Cl. Spec. Mstr. Oct. 16, 2020).

B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y of Health & Human Servs.

, 3 F.3d 1517, 1521 (Fed. Cir. 1993). The Secretary also did not directly challenge any of the requested hours as

unreasonable.4

Upon review of the submitted billing records, the undersigned finds the majority of the time billed to be reasonable. The times heet entries are sufficiently detailed such that the undersigned can assess their reasonableness. However, a small reduction is necessary due to excessive paralegal time billed and a high hourly rate

. Paralegals billed time on administrative tasks such as filing documents and reviewing and paying invoices. These issues have previously been noted concerning Van Cott & Talamante paralegals. Second Fees Decision, 2018 WL

704 6894, at *3; Sheridan v. Sec’y of Health & Human Servs.

, No. 17

- 669V, 2019

WL 948371, a t *2

- 3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019) ; Moran v. Sec’y of Health

& Human Servs.

, No. 16

- 538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr.

Jan. 23, 2019)

. A reasonable reduction for these issues is $ 6 00.00.

Accordingly, petitioner s are awarded final attorneys’ fees of $ 14, 1 91.00

.

C. Costs Incurred

Like attorneys’ fees, a request for reimbursement of costs must be

reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992), aff’d , 33 F.3d 1375 (Fed. Cir. 19 94). Petitioner s request a total of $ 3,538.51 in costs

. This amount is comprised of acquiring medical records,

postage , and work performed by petitioner’s medical expert, Dr. Mitchell Miglis

. Fees App. Ex. 1 at 1 5

- 16

. Petitioners have provided adequate documentation supporting these costs and they appear reasonable in the undersigned’s experience

. Petitioners are therefore awarded the full amount of costs sought.

D

. Conclusion

The Vaccine Act permits an award of reasonable attorney’s fees and co sts. 42 U.S.C. § 300aa

- 15(e). Accordingly, I award a total of $ 17, 7 29.51 (representing $ 14, 1 91.00 in attorneys’ fees and $ 3,538.51 in attorneys’ costs) as a lump sum in the form of a check jointly payable to petitioner s and their attorney

, Mr. Andrew

Downi ng

.

I n the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED

.

2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review

.5 s/Christian J. Moran

Christian J. Moran Special Master