# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: April 26, 2019

* * * * * * * * * * * * * *
LAUREN JANKOWSKI, on behalf of * No. 17

- 718 V
L.J., a minor

, *

* Special Master Sanders
Petitioner, *

*

v. *

*

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

* Respondent. *

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

Mark T. Sadaka

, Mark T. Sadaka, LLC, Englewood, NJ

, for Petitioner. Douglas Ross , United States Department of Justice, Washington, D

. C

. , for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On May 31, 2017, Lauren Jankowski (“ Petitioner ”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program on behalf of L.J., her minor child

. 2

42 U.S.C. §§ 300aa

- 10 to 34 (2012). The petition al leged that L.J. suffered from idiopathic thrombocytopenic purpura ( “ ITP ” ) as a result of an influenza ( “ flu ” ) vaccine he rec eived on November 18, 2014. Pet. at 1, ECF No. 1. On June 29, 2018, Petitioner filed an unopposed motion for a decision dismissing her petition. ECF No. 29. On the same day the undersigned issued her Decision dismissing the petition for insufficient pr oof. Decision, ECF No. 30.

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims ’ website. This means the ruling will be available to anyo ne with access to the Internet

. In accordance with Vaccine Rule 18(b), petitioner has 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 undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is requ ired to post it on the United States Court of Federal Claims ’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).

2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

On January 23 , 2019 , Petitioner filed an application for attorneys’ fees and costs. ECF No.

35 (“Fees App.”). Petitioner requests total attorneys’ fees and c ost s in the amount of $16,288.02 (representi ng $13,112.43 in fees and $ 3,175.59 in costs) . Fees App

. at 4

. P ursuant to General Order
No. 9, Petitioner warrants that she has not incurred any fees or costs related to the prosecution of her petition

. ECF No. 34. Respondent responded to the motion on February 4 , 2019 , indicating

that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” R esp’t’s Resp. at 2

– 3 (ECF No. 36 ). Petitioner filed a reply on February 8, 2019, reiterating her belief that the amount requested for attorneys ’ fees and costs

is reasonable. Pet ’ r ’ s R eply, ECF No. 37.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable

attorneys ' fees , and other costs.” § 300aa

– 15( e)(1)(A)

– (B). Petitioners are entitled to an award of

reasonable attorneys ' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful , they are eligible so long as the Special Master finds that the petitio n was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, the undersigned does not doubt that the petition was filed in good faith, and although the petition was eventually d ismissed, the undersigned finds that there was reasonable basis to file the petition. Respondent has also not challenged the reasonable basis of the petition. Accordingly, a final award of fees is appropriate.

It is “well within the special master ’ s discretion” to determine the reasonableness of fees.

Saxton v. Sec ’

y of Health & Human Servs. , 3 F.3d 1517, 1521

– 22 (Fed. Cir. 1993); see also Hines

v. Sec ’ y of Health & Human Servs. , 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the spec ial master wide latitude in determining the reasonableness of both attorneys ’ fees and costs.”). Applications for attorneys ’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on sa id work. See Savin

v. Sec ’ y of Health & Human Servs. , 85 Fed. Cl. 313, 316

– 18 (2008). Such applications , however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart

, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum , 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. P etitioner s bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte , without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs. , 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in

a line

- by

- line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human

Servs. , 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the3

Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’ y of Dep’t of Health & Human Servs. , 24 Cl. Ct. 482, 484 (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 c laimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton

, 3 F.3d at 1521.

a. Hourly Rates

The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of

Health & Human Servs. , No. 09

- 293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied , 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

– 2016, 2017, 2018, and 2019 can be accessed online. 3

Petitioner requests the following rates of compensation for the work of he r attorney, Mr.

Mark Sadaka : $350.00 per hour for work performed in 2015, $ 362.95 per hour for work performed in 2016, $ 376.38 per hour for work performed in 2017, and $ 396.00 per hour for work performed

in 2018

. Fees App. a t 4. Petitioner also requests that paralegals be compensated at rates bet ween $135.00 per hour to $150.55 per hour depending on the year of the work. Id. These rates are consistent with what Mr. Sadaka and his staff have consistently been awarded by the und ersigned and other Special Masters. Accordingly, no adjustment to the requested rates is necessary.

b. Hours E xpended

Attorneys ’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera , 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton , 3 F.3d at 1521.

Upon review, the undersigned finds the hours billed in this matter to be reasonable. The entries accurately reflect the nature of the ta sk, and the time billed on these entries appears to be reasonable in the undersigned’s experience. Respondent also has not identified any particular entries as objectionable. Petitioner is therefore entitled to the full amount of attorneys’ fees sought, $ 1 3,112.43

.

3 The 2015

– 2016 Fee Schedule can be accessed at: http://www.cofc.us courts.gov/sites/default/files/Attorneys

- Forum

- Rate

- Fee

- Schedule2015

- 2016.pdf. The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

Rate

- Fee

- Schedule

- 2017.pdf. The 2018 Fee Schedule can be accessed at : http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202018.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in

McCulloch , 2015 WL 5634323.4

c. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitione r requests
a total of $3,175.59 in attorneys’ costs. This amount comprise s the cost of obtaining medical records, mailing costs, the Court’s filing fee , and a retainer paid to Dr. M. Eric Gershwin which

covered review of medical records

. All the costs appear reasonable in the undersigned’s experience and Petitioner has provided adequate documentation for them. Petitioner is thus entitled to the full amount of costs sought.

II. Conclusion

Based on all the above, the undersigned finds that Petitioner is entitled to the following

award of reasonable attorneys’ fees and costs:

Attorneys’ Fees Requested $ 13,112.43 (Reduction to Fees )

- Total Attorneys’ Fees Awarded $13,112.43

Attorneys’ Costs Requested $ 3,175.59 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 3,175.59

Total Attorneys’ Fees and Costs $16,288.02

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request f or fees and

costs is reasonable. Accordingly, the undersigned awards the following:

1) A lump sum in the amount of $ 16,288.02 , representing reimbursement for P etitioner’s attorneys’ fees and costs, in the form of a check payable to P etitioner and her attorney, Mr. Mark Sadaka.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the C lerk of the

C ourt shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

s/ Herbrina D. Sanders

Herbrina D. Sanders Special Master

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek

review. Vaccine Rule 11(a).