# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: October 15, 2019

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

KIM MAILANGKAY, * UNPUBLISHED

*

Petitioner, * No. 18

- 036V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ Fees and Costs;

* Voluntary Dismissal.
Respondent. *

*

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

Michael A. Firestone ̧ Marvin Firestone, MD, JD and Associates, San Mateo, CA for petitioner.

Alexis B. Babcock , Department of Justice, Washington, D.C., for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On January 5, 2018, Kim Mailangkay (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program. 2 Petitioner alleged as a result of an influenza (“flu”) vaccine she received on October 5, 2015, she developed neurological in juries, including

left

- sided Bell’s palsy, migraine with aura, disequilibrium and depression. Petition at Preamble.
On May 10, 2019, petitioner filed a motion for a decision dismissing the petition. ECF No. 29. The undersigned granted petitioner’s moti on and petitioner’s claim was thereafter dismissed for
insufficient proof. Decision (ECF No. 30).

On September 10, 2019, petitioner filed an application for attorneys’ fees and costs. Petitioner’s Fees Application (“Fees App.”) (ECF No. 35). Petitioner requests a total attorneys’

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting 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 files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion

. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.

2 The Progra m comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et

seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa

of the Act.2

fees and costs in the amount of $18,581.37 (representing $11,681.37 in attorneys’ fees and costs

, $3,400 of costs incurred by petitioner ). Fees App. at ¶¶ 2

- 3. Respondent responded to the

motion on September 13, 2019 stating, “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case,” and requests that the undersigned “exercise his discretion and determine a reasonable award for attorneys’ fees and costs.” Respondent’s Response (“Resp. Response”) at 2

- 3 (ECF No. 36 ). Petitioner did not file a reply to respondent’s response.

This matter is now ripe for adjudication.

I. L EGAL STANDARD

Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable

attor neys’ fees and costs “if the special master determines that the petition was brought in good faith and there was a reasonable basis for which the petition was brought” even when a petition
does not result in compensation for petitioner. 42 U.S.C. § 300aa

- 1 5(e)(1).

The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. §

300aa

- 15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine reasonable attorneys’ 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 the reasonable hourly rate, which is then applied to the number of hours reasonably
expended on the litigation. Id . at 1347

- 58 (citing Blum v. Stenson , 465 U.S. 886, 888 (1984)).

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs. , 24 Cl. Ct.

482, 484 (1 993). Adequate proof of the claimed fees and costs should be presented when the

motion is filed

. Id

. a t 484 n.1. The special master has the discretion to reduce awards sua

sponte , independent of enumerated objections from the respondent. Sabella v. Sec’y of Health &

Human Servs. , 86 Fed. Cl. 201, 208

- 09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human

Servs. , 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99

- 537V, 2008 WL 2066611 (Fed. Cl. Spec.
Mstr. Apr. 22, 2008). Special masters may look to their e xperience and judgment to reduce the
number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of

Health & Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line

- by

- line evaluation of the
billing records is not requ ired. Wasson , 24 Cl. Ct., aff’d in relevant part , 988 F.2d 131 (Fed Cir.
1993) (per curiam).

II. ANALYSIS

I find no reason to doubt the good faith and reasonable basis for which the claim was
brought. Petitioner asserted that she suffered neurological inju ries as a result of receiving the flu vaccine. Petition at Preamble. Petitioner’s initial injury of left

- sided facial droop or Bell’s palsy

were documented in the medical records. See Rule 5 Order (ECF No. 28). However, the

medical records also indicat ed that petitioner’s Bell’s palsy symptoms resolved before meeting

the six

- month severity requirement of the Vaccine Program. Id. at 2. Additionally, after3

reviewing the expert reports, it appeared that the petitioner would be unable to attri b u te her
migraines or her initial symptoms of Bell’s palsy to the flu vaccine

. Id. at 2

- 3.

Therefore, I encouraged counsel to speak with petitioner and recommended she file a
motion to dismiss the petition. Petitioner filed the mot ion to dismiss the petition within a reasonable time after the status conference, thus not utilizing more of the Court or respondent’s
time in litigating this case.

Although it appeared unlikely that petitioner would be entitled to recovery after a ca reful
review of the case, including the medical records, expert reports and medical literature filed, I
find that petitioner initially had evidence of a medical condition that could be caused by
vaccination. Additionally, by dismissing the claim after a re view of the facts at the status
conference, the amount of fees and costs were limited. Accordingly, I find that petitioner should be awarded reasonable attorneys’ fees and costs.

III. REASONABLE ATTORNEYS’ FEES and COSTS

A. Hourly Rate

Petitioner requests compensation for her attorney, Mr. Michael Firestone. Petitioner
requests that Mr. Firestone be reimbursed at a rate of $269.62 per hour for work performed in 2016; $279.60 per hour for work performed in 2017; $ 289.39 per hour for wor k performed in 2018; and $300.10 per hour for work performed in 2019. Petitioner also requests compensation
for a nurse paralegal, Ms. Pat ricia Barrick, for work performed in the same time period ranging

from $171.11

- $190.45 per hour.

Mr. Firestone has been awarded these attorney and paralegal rates before by other special
masters in the Vaccine Program. See Suh et al., v. Sec’y of Health & Human Servs., No. 16

- 944V; 2017 WL 1021840 (Fed. Cl. Spec. Mstr. Feb. 14, 2017) ; and Geidemann et al., v. Sec’y o f

Health & Human Servs., No.16

- 443V , 2017 WL 1210078 (Fed. Cl. Spec. Mstr. Mar. 7, 2017).
Additionally, the rates requested are consistent with the Attorneys’ Forum Hourly Rate Fee

Schedule 3 for the years that correspond with the years Mr. Firestone worke d on the matter for
petitioner.

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). As the Secretary did specifically object to
the number of hours petitioner requests, I have reviewed the fee application for its

reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018) . A

line

- by

- line evaluation of the invoiced hours is not required; instead I may rely on my experience
to evaluate the reasonableness of the hours expended. Wasson , 24 Cl. Ct. at 484. Petitioner

requests compensation for a total of 4 0.8 hours expended by Mr. Firestone and Ms. Barrick.
Based on my experience and the outcome of the case, these hours are not excessive or redundant

3 Office of Special Masters Attorneys Forum Hourly Rate Fee Schedule

, https://www.uscfc.uscourts.gov/node/29144

and I find that they are reasonable. Given the length of the case, the need for medical experts to

ultimat ely resolve the case and that counsel took immediate steps to reduce any further time
expended by the Court and the respondent on this case, I find that the hours billed are reasonable
and no reductions are necessary. Accordingly, petitioner is awarded attorney’s fees in the amount of $11,520.59.

C. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement for 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 $12,746.01 in costs. This request includes the cost of postage, copying medical records and
obtaining medical records. Petitioner requests counsel be reimbursed at amount of $160.78 for
these costs. These costs are typical of the expenses in the Vaccine Program. Additionally,
counsel has provided receipts and invoices related to these costs.

Additionally, counsel requested a total amount of costs for retaining an expert , Dr. Lawerence Steinman of $6,500.00. Fees. App at 1. Petitioner submitted an invoice to
substantiate these costs. Additionally, Dr. Steinman has provided expert reports and testimony in
many cases before the Vaccine Program. The amount Dr. Steinman c harged for reviewing the
medical records and providing an expert report in this case is reasonable. In the application for attorneys’ fees, petitioner stated that Dr. Steinman was paid $3,000 as a retainer by petitioner
personally

, as noted below

, and ha s an outstanding balance of $3,500.00. Fees App. at 1. Additionally, petitioner request that a $3,500.00 check be made payable directly to Dr. Steinman.
Typically

, in this program petitioner’s counsel is provided the amount necessary to pay the costs

fo r an expert as part of the reimbursed costs and the attorney is responsible for transmitting payment to the expert. Therefore, the $3,500.00 balance will be incorporated into petitioner’s

counsel’s costs. Accordingly, petitioner is awarded attorneys’ cos ts in the total amount of
$3 ,660.78.

D. Petitioner’s Costs

The petitioner’s attorneys’ fees and costs application includes a signed General Order #9 from petitioner, indicating that she has expended $3,400.00 in costs. More specifically, petitioner paid the filing fee of $400.00 and the $3,000.00 retainer for Dr. Steinman.
Accordingly, petitioner is awarded costs in the tot al amount of $3,400.00.

IV. CONCLUSION

In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is

GRANTED. Accordingly, I will award the following:

1) A lump sum in the amount of $ 15 ,181.37, representing reimbursement for
petitioner’s attorneys’ fees and costs (including $3, 500 .000 for expert c o sts) , in the
form of a check payable jointly to petitioner and her counsel, Mr. Michael
Firestone;5

2) A lump sum in the amount of $3,400.00, representing reimbursement for

petitioner’s costs, in the form of a check payable to petitioner. 4

In absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court
shall enter judgment in accordance herewith. 5

IT IS SO ORDERED.

s/Thomas L . Gowen

Thomas L. Gowen
Special Master

4 Th ese amounts are intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore,
Section 15(e)(3) prevents an attorney from charging o r collecting fees (including costs) that would be in addition to

the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs. , 924 F.2d 1029 (Fed. Cir. 1991).

5 Entry of judgment is expedited by each party’s filing notice renouncing th e right to seek review. Vaccine Rule

11(a).