# In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * ASHLEY DALTON , * * No. 1 5

- 1465 V Petitioner s , * Special Master Christian J. Moran

*
v. * Filed: April 1 6 , 2021 * SECRETARY OF HEALTH * Attorneys’ Fees and C osts AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * *
An drew D. Downing , Van Cott & Talamante, PLLC, Phoenix, AZ , for Petitioner; Debra A. Filteau Begley , United States Dep’t of Justice, Washington, DC, for Respondent.
UN PUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS 1
On September 1 , 2020 , peti tioner Ashley Dalton m oved for final attorneys’ fees and costs. She is awarded $ 46,458.27

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

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

- Governme nt 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 h ave 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 und ersigned will redact such material from public access.2 * * * 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 this 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 petitioner ’ s claim has a reasonable basis throughout the entire case. Respondent also has not challenge d the reasonable basis of the claim. A final award of reasonable 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 o f Health & Human Servs. , 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, a court determines an “initial estimate ... by ‘multiplying the 2019 W L 965174 (Fed

. Cl

. Sp ec. Ms t r. Jan

. 30 , 2019 ). The instant fe es m o tion requests rei mbursement f o r work performed fro m October 15 , 2018 until t he present

. During that t i me, petitioner obtained a nd f iled a dditional me dical re cords, literature, an additional e xpert r eport , and briefs

. On Feb ruary 20 , 2020 , petitioner filed a n u nopposed m otion f

or a decision d ismissing he r petition , stating t hat , in light of litigation c urrently be ing initiated a gainst M erck i nvolving injuries to Gardasil va ccine recipients , petitioner “wish es to pursue a third party a ction i n district c ourt a gainst Merck directly .” Pet’rs’ Mot., fi led Aug

. 3 , 2020 , ¶3

. On A ugust 25 , 2020 , th e undersigned i ssued h is de cision d ismissing th e petition fo r insufficient pr oof. 2020 W L 5800716 (Fed

. Cl

. Spec. Mst r. A ug. 31 , 2020).
On Septemb er 1 , 20 20 , petitioner filed a motion f or final a ttorneys’ fees a

nd costs (“Fee s App.”)

. Petitioner request a ttorneys’ fees of $39,328.00 and at torneys’ costs of $7,830.27 for a total req uest o f $47,158.27 Fees App

. a t 3. Pursuant t o General Or der No

. 9 , petitioner states t hat she did n ot personally incur any co sts related t o t

he litigation of this mat t er. Id. O n Sep tember 10 , 2020 , respondent f iled a response to p etitioner’s m otion. Respondent argues t hat “ [n]either th e Vaccine Act n or Vaccine Rule 13 c ontemplates a n y role for r espondent in th e resolution of a request by a petitioner for an aw ard of attorneys’ fees an d c osts .” Response at 1. Respondent a dds , however that h e “is sa tisfied th e statutory re quirements f or an award o f attorneys’ fees a nd c osts are met in this cas e.” Id at 2. Additionally , he
reco mmends “t

hat t he special ma ster exercise his discretion ” when de termining a reasonable award f

o r attorneys’ fees and c osts

. Id. at 3. Petitioner did n ot file a reply thereafter.3

A. Reasonable Hourly Rates Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. A vera , 515 F.3d at 1349. There is, however, an exception (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 Davi s 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 requ est s the following hourly rates for the work of her counsel at Van Cott & Talamante, PLLC: for Mr. Andrew Downing, $385.00 per hour for all work performed from 201 8

- 2020, for Ms. Courtney Van Cott, $205.00 per hour for work performed 201 8

- 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 & Hum an 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 unnecessar y. 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. Upon review of the submitted billing records, the undersigned finds the major ity of the time billed to be reasonable. The timesheet entries are sufficiently number of hours rea sonably e xpended on the litigation times a reasonabl e hourly rat e.’” Id. at 1347-48 (quo tin g Blum v. Stenson , 465 U.S. 8 86 , 888 ( 1984)). Secon d , the court ma

y ma ke an u p ward o r downward departu re fro m th e initial calculation of the fee award b ased on specific findings

. Id. at 1348

. H ere, because th e lodestar process y ields a reasonable result , no a dditional a dj ustments ar e required

. Instead , the ana lysis f ocuses o n t

he elements of the lodestar formul a, a reasonabl e hourly r ate and a reasonable numb er of hours.
In l ight of the Secretary’s lac k of objection , th e undersigned ha s reviewed the fee application f

or its reasonableness

. See McIntosh v

. Secʼy of Health & Human Serv s. , 139 F ed

. Cl

. 23 8 ( 2018)4

detailed such that the undersigned can assess their reasonableness. However, the entries regarding the drafting of the brief (starting January 9, 2020 ) would benefit from some elaboration about the part of the brief on which the time was focused. In addition, a small reduction is necessary due to excessive paralegal time billed and for duplicative tasks billed

. Paralegals billed time on administrative tasks such as filing documents and reviewing and paying invoices. Additionally, review of routine orders and filings was billed by both counsel and paralegals. 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, at *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 $7 00 .00. Given the prior reductions, counsel is advised that the failure to exercise appropriate billing judgment in future fee applications may result in further reductions. See Valdes v. Sec'y of Health & Human S ervs. , No. 99

– 310V, 2009 WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (warning attorney that penalties may be necessary to motivate him to submit requests for fees that do not contain “erroneous, duplicative, or unreasonable entries”), mot. for r ev. granted in
non - relevant part and denied in non

- relevant part , 89 Fed. Cl. 415 (2009). Accordingly, petitioner is awarded final attorneys’ fees of $ 38,628.00

. 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. 1994). Petitioner request s a total of $ 7,830.27 in costs

. This am ount is comprised of acquiring medical records, postage and work performed by petitioner’s medical expert s , Dr. Mitchell Miglis and Dr. Yehuda Shoenfeld . Fees App. Ex. 1 at 1 1

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

. Petitioner is therefore awarded the full amount of costs sought.
D

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

- 15(e). Accordingly, I award a tota l of $ 46,458.27 (representing $ 38,628.00 in attorneys’ fees and $ 7,830.27 in attorneys’ costs) as a lump sum in5

the form of a check jointly payable to petitioner and her attorney , Mr. Andrew Downing

. 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

.

s/Christian J. Moran Christian J. Moran Special Master

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

.