# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 4

- 77 V

Filed: May 28, 2019

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

JOSEPH PAULOWSKY

, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Mark Sadaka , Esq.

, Englewood, NJ , for P etitioner

. Lara Englund

, Esq. , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

Roth , Special Master:

On January 27, 2014

, Joseph Paulowsky (“Mr. Paulowsky ” or “Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner initially alleged that the influenza (“flu”) vaccine he received on November 1, 2011, caused him to develop a syst emic inflammatory response leading to a heart attack and decreased cardiac strength and function. Stipulation, filed August 16, 2018, at ¶¶ 1

- 4. On February 24, 2017,

P etitioner filed an amended petition alleging that the flu vaccine also caused a shoulder injury.

Id. at ¶ 4. On August 16 , 2018, the parties filed a stipulation , which the undersigned adopted as

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 anyone 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, u pon 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, the unde rsigned is required to post it on the United States Court of Federal Claims'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).

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

- 660, 100 Stat. 3755.2

her Decision awarding damages on the same day . ECF No. 81

.

On February 20 , 2019

, P etitioner filed an application for attorn eys’ fees and costs. ECF

No. 85 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $ 81,0 01.85 (representing $ 45,038.00 in attorneys’ fees and $ 35,963.85 in costs). Fees App at 1

. Pursuant to General Order N o. 9, Petitioner warrants that he has not incurred any costs in pursuit of this litigation

. ECF No. 86. Respondent respon ded to the motion on March 1 , 201 9 , stating “Respondent 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.” Resp’t’s Resp. at 2

- 3. ECF No. 87 . Petitioner filed a reply on March 4, 2019, reiterating his belief that the requested amount of fees and costs is

reasonable. ECF No. 88.

This matter is now ripe for consideration.

I. Legal Framework

The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is

automatic. Id. ; see Sebelius v. Cloer , 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because Petitioner was awarded compensation, he is entitled to a reasonable award of attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of

Health & Human Servs. , 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial estimate of a reasonable attorneys' fees” is calculated by “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id. a t 1347

– 48 (quoting

Blum v. Stenson , 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based on other specific findings. Id.

Special masters have substantial discretion in awarding fees and may adjust a fee request

sua sponte , apa rt from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs. , 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line

- by

- line analysis of peti tioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs. , 102 Fed. Cl. 719, 729 (2011).

II. Discussion

a. Reasonable Hourly Rate

A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera , 515 F.3d at 1348 (quoting Blum , 465 U.S. at 896 n.11). In general, this rate i s based on “the forum rate for3

the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs. , 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera , 515 F. 3d at 1 349). There is a “limited exception” that provides for attorney's fees to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly r ate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human

Servs. , 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA , 169 F.3d 755, 758 (D. C. Cir. 1999)).

For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Human Servs. , No. 09

– 293V , 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years. 3

Petitione r requests that his attorney, M r. Mark Sadaka , be compensated at the following

rates: $337.05 per hour for work performed in 2012 and 2013, $350.00 per hour for work performed in 2014 and 2015, $3 62.95 per hour for work performed in 2016, $3 76.38 per hour f or work performed in 2017, $3 96 per hour for work performed in 2018

. Fees App. Ex. 1 at 28

. These

rates are consistent with what M r. Sadaka has been awarded for h is work in the Vaccine Program

. See, e.g.

, Taylor v. Sec’y of Health & Human Servs. , No. 13

- 700V, 2018 WL 6291355, at *3 (Fed. Cl. Spec. Mstr . Oct. 30, 2018). Accordingly, the requested rates are reasonable.

b. Hours Reasonably 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 ex rel. Saxton v. Sec'y of Health &

Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart

, 461 U.S. 424, 434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs. , 129 Fed. Cl. 691,

3 The 2015

- 2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.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%20S chedule%202018.pdf.

The 2019 Fee Schedul e can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S chedule%202019.pdf

. The hourly rates contained within the schedules are updated from the

decision in McCulloch v. Sec’y of Health & Human Servs. , No . 09

- 293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).4

703 (2016). While attorneys may be compensated for non

- attorney

- level work, the rate must be comparable to wh at would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health &

Human Servs. , No. 08

– 243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr . Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.

, McCulloch , 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one

half of the normal hourly attorney rate. S ee Scott v. Sec'y of Health & Human Servs. , No. 08

– 756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec'y of Health & Human Servs. , No 14

– 1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, it is “well within the Special Master's discretion to reduce the hours to a number that, in [her] experience and judgment, [is ] reasonable for the work

done.” Saxton , 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen , 102 Fed. Cl. at 728

– 29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of

Health & Human Servs ., 38 Fed. Cl. 403, 406 (1997) (same).

T he overall h ours spent on this matter (1 59.1 ) appear to be reasonable. The undersigned has reviewed the billing entries and finds tha t the billing entries adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable and Respondent has not identified any entries as objectionable either. Accordingly, P etitioner is entitled to a final award of attorneys’ fees in the amount of $ 45,038.00

.

c. Reasonable 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). Petitioner requests

a total of $ 35,963.85 in costs. Fees App. Ex. B

. The majority of this amount is for work done by Petitioner’s three experts, Dr. M. Eric Gershwin ( $15,750.00), Dr. Jeff Bomze ($7,100.00), and Dr.

Michael Eldar ($11,500.00). The undersigned finds the work performed by these experts reasonable and

shall reimburse them in full.

The remainder of the costs are for acquiring medical records, postage, and the Court’s filing fee. Petitioner has provided adequate documentation fo r these costs and they shall be fully reimbursed. Petitioner is therefore awarded final attorneys’ costs in the amount of $3 5,963.85

.

III. Conclusion

In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

1) A lump sum in the amount of $ 81,001 .85 , representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and M r

. Mark

Sad aka , Esq.5

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth 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).