# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

MARY NEWCOMB as executrix *

of the ESTATE OF ANDREW *
TIDD, *

* No. 1 8

- 1393 V Petitioner, * Special Master Christian J. Moran

*

v. * Filed: June 1 1 , 2021

*

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

* Respondent. *

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

Jessica E. Choper

, Britcher Leone, L.L.C., Glen Rock, NJ

, for Petitioner;

Julia M. Collison , United States Dep’t of Justice, Washington, DC, for Respondent.

UN PUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS 1

Pending before the Court is peti tioner Mary Newcomb’s motion for final attorneys’ fees and costs. Sh e is awarded $19,803.00

.

* * *

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 redact medical or other informat ion, 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.2

On September 13 , 2018

, petitioner , as executrix of the estate of Andrew Tidd, filed for compensation under the Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10 through 34

. Petitioner alleged that influenza

vaccine Mr. Tidd received on September 17, 2016 , which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused h im to suffer myocarditis and

death

. On February 11 , 2020 , the parties filed a stipulation, which the undersigned adopted as his decision awarding compensation on the same day

. 2020 Fed. Cl.

1491780 (Fed. Cl. Spec. Mstr. Feb. 11 , 2020).

On December 2 , 2020 , petitioner filed a motion for final attorneys ’ fees and costs (“Fees App.”) . Petitioner requests attorneys’ fees o f $ 15,921.00 and attorneys’ costs of $ 6,382.00 f or a total request of $ 22,303.00

. Fees App. at 4

. Pursuant to General Order No. 9, petitioner warrants that s he has not personally incurred any co sts related to the prosecution of her case. Id. O n December 21

, 2020

, r espondent filed a response to petitioner’s motion. Respondent argues 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 satisf ied the statutory requirements for an award of attorneys’ fees and costs are met in this

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

at 3. Pe titioner did not file a reply thereafter.

* * *

Because petitioner received compensation, s he is entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa

– 15(e). Thus, the question at bar is whether the requested amount is reasonabl e.

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. Se c’y of Health & Human Servs.

, 515 F.3d 1343, 1348 (Fed. 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 court 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 a dditional adjustments are required. Instead, the analysis focuses on the elements of the lodestar formula, a reasonable hourly rate and a reasonable number of hours.3

In light of the Secretary’s lack of objection, the undersigned has reviewed the fee appl ication 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 exception (the so

- called Davis County exception) to this general rule when th e 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

was done outside of the District of Columbia.

Petitioner requests that her attorney, Ms. Jessica Choper, be compensated at $400.00 per hour for all work performed in this case, from 2018

- 2020

. These rat es have previously been found reasonable by the Court for Ms. Choper’s Vaccine Program work and the undersigned finds them to be reasonable herein for work performed in the instant case. See, e.g., Levine v. Sec’y of Health & Human

Servs. , No. 19

- 351V, 202 1 WL 688570 (Fed. Cl. Spec. Mstr. Jan. 6, 2021) (awarding Ms. Choper $400.00 per hour for her work performed in that case).

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.

The undersigned has reviewed th e submitted billing entries and finds the request to be largely reasonable

. Upon review, only small reductions are necessary. First, Ms. Choper filed an ineffective motion to redact, which probably should not have been filed at all. Consequently, one hour ($400.00) is removed. In addition, Ms. Choper’s paralegal billed for administrative ta sks such as filing documents. Upon review, a reasonable reduction for this issue is $300.00. Petitioner is therefore awarded final attorneys’ fees of $15, 2 21.00.

C. Costs Incurred4

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

reasonab le. 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 requests a total of $ 6,382.00 in attorneys’ costs

. Most of this amount is attributable to work performed by petitioner’s m edical expert, Dr. Stephen Factor, a cardiovascular pathologist. Dr. Factor billed a total of 12 hours at an hourly rate of $500.00 per

hour.

In an Order filed on December 8, 2020, the undersigned directed petitioner to review what was required to support a request for reimbursement of expert costs, specifically noting that petitioner should include “support as to the reasonableness of an expert’s proposed hourly rate.” Order at 1. Despite this request, petitioner has not provided any evidence supporting $ 500.00 per hour as a

reasonable rate for Dr. Factor . Thus, the undersigned will draw on his experience to determine a reasonable hourly rate for Dr. Factor’s work in this case. Previously, the undersigned has found that $380.00 per hour was a reasonable ho urly rate for a neuropathologist. Nichols v. Sec’y of Health & Human Servs. , No. 08

- 654V, 2018 WL 4391064 (Fed. Cl. Spec. Mstr. Aug. 21, 2018); see also Porter v. Sec’y of

Health & Human Servs. , No. 18

- 132V, 2020 WL 6705553, at *3 (Fed. Cl. Spec.

Mstr. Oct . 22, 2020) (awarding the same neuropathologist $400.00 per hour for more recent work).

While this provides a reasonable baseline for the hourly rate of a pathologist, other factors play a role in determining a reasonable rate. For example, the neuropathol ogist retained in Nichols and Porter has filed reports in several Vaccine Program cases and has demonstrated Vaccine Program experience. This is relevant in determining an hourly rate because a more experienced medical expert will likely be able to prepare a report in less time than an inexperienced expert while knowing how to make their argument responsive to the unique requirements of litigation in this court, such as the Althen factors. In this case, petitioner has offered no evidence as to any prior Vaccine Program experience of Dr. Factor and an independent search performed by the undersigned did not uncover any prior experience.

A doctor’s overall experience and credentials m ay also play a role in determining a reasonable hourly rate. However, in the instant case, a full picture of Dr. Factor’s credentials is not available. Although Dr. Factor’s report contains a brief summary of his background, a full CV was never filed into the record by petitioner. An independent search performed by the undersigned did not yield any relevant additional information beyond what was already contained in Dr. Factor’s

report.5

Overall, based upon Dr. Factor’s submitted report and the information (or lack thereof) available to the undersigned, a reasonable hourly rate for Dr. Factor’s work in this case is $350.00 per hour. Therefore, a reasonable amount for Dr. Factor’s work in this case is $4,200.00.

The remainder of the requested costs are for ac quisition of medical records and shall be fully reimbursed. Petitioner is therefore awarded final attorneys’ costs of $ 4,582.00

.

E

. 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 total of $ 19,803 .00 (representing $ 15,221.00 in attorneys’ fees and $ 4,582.00 in attorneys’ costs) as a lump sum in

the form of a chec k jointly payable to petitioner and petitioner’s counsel, Ms. Jessica Choper

.

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

.