# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1879 V (not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * *
ANDREW SANCHEZ

- ALDANA and *
KARINA SANCHEZ

- ALDANA, * on behalf of V.S.A., a minor, *

* Special Master Corcoran

*
Petitioner s , * Filed: Ju ly 31 , 201 9

*

v. *

* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HU MAN SERVICES, *

*

* Respondent. *

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

John R. Howie, Jr.

, Howie Law, PC, Dallas, TX

, for Petitioner.

Althea W. Davis

, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING FINAL AW A RD OF ATTORNEY ’S FEES AND COSTS 1

On December 5 , 2017

, Andrew and Karina Sanchez

- Aldana filed a petition on behalf of

their minor child , V.S.A., seeking compensation under the National Vaccin e Injury Compensation Program (“Vaccine Program”). 2 Petitioner s alleged that V.S.A. suffered from intussusception as a result of receiving the rotavirus vaccine on December 5, 2014

. The parties filed a stipulation for

award on April 5, 2019 , which I adopted as my Decisi on awarding damag es on the same day

. (ECF

No. 23 ).

1 Although I have not designated this Decision for publication, it will be made available 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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medica l or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will
redact such material from the public Decision

.

2 The Vaccine P rogram comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (20 12) (“Vaccine Act” or “the Act”)

.2

Petitioner s ha ve now filed a m otion requesting final attorney ’s fees and co sts, dated April

25

, 2019 (ECF No. 27 ) (“Fees App.”), requesting a total award of $ 19,672.51 (representing $ 19,175.70 in fees, plus $ 496.81 in costs). Fees App. at 1

. P ursuant to General Order No. 9,

Petitioner s warrant that t he y ha ve not personally incurred any costs in pursuit of this litigation

. Fees App. Ex. 4 at 1. Respondent re ac t ed to the motion on May 9 , 20 19

, indicating that he is

sa tisfied that the statutory requir ements for an award of attorney ’s fees and costs are met in this case, and deferring to my discretion to determine the amount to be awarded. Response, ECF No.

29 , at 2

- 3. Petitioner s filed a reply on May 9, 2019, stating th at “a review of Respondent’s Response reflects that Respondent has made no specific objection to Petitioners’ Application; therefore, Petitioners do not intend to file a substantive reply to Respondent’s response.” Reply,
ECF No. 30, at 1.

For the reasons set forth below, I hereby GRANT Petitioner ’ s motion in part , awarding final attorney ’s fees and costs in the amount of $ 19,471.71

.

ANALYSIS

Vaccine Program attorneys are entitled to a fees award in successful cases like this one.

Determin ing the appropriate amount of that award is a two

- part process. The first part involves application of the lodestar method

– “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs. , 515 F.3d
1343, 1347

- 48 (Fed. Cir. 2008) (quoting Blum v. Stenson , 465 U.S. 886, 888 (1984)). 3 The second part involves adjusting the lodestar calculation up or down to take relevant factors into

consideration. Avera , 515 F.3d at 1348 . This standard for calculating a fee award is considered

3 An attorney's reasonable hourly rate is more p recisely understood to be the “prevailing market rate” in the relevant
forum. Avera , 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs. , No. 06

- 559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied , 91 Fed. Cl. 453 (2010), aff'd

, 632 F.3d 1381 (Fed. Cir. 2011) . That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program ca ses). Avera

, 515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella , 86 Fed. Cl. at 205

- 06. This reasonableness inquiry involves consideration of the work performed on the matter, t he skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley , 461 U.S. at 434, 437.

In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether ther e is a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera , 515 F.3d at 1349, (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA , 169 F.3d 755, 758 (D.C. Cir. 1999) ).3

applicable in most c ases where a fee award is authorized by federal statute. Hensley v. Eckerhart

, 461 U.S. 424, 429

- 37 (1983).

Petitioner s request the following rates of compensation for their attorney, Mr. John Howie: $363.00 per hour for work performed in 2017, $383. 00 per hour for work performed in 2018, and $395.00 per hour for work performed in 2019. Fees App. at 1. Petitioners also request rates ranging from $50 per hour to $148.00 per hour for paralegal work, depending on the individual paralegal and the year the work was performed. Id. at 1

- 2. I find the rates requested to be consistent with what Mr. Howie has previously been awarded for his Vaccine Program work, and also consistent with the Office of Special Masters’ fee schedules. 4

I have reviewed the billing entrie s and find them to be largely reasonable. The only reduction necessary is for time billed by Debbie Lupo, one of Mr. Howie’s paralegals. Ms Lupo consistently billed 0.3 hours for review of mundane court filings, such as scheduling orders, the

notice of ass ignment, and notice of appearance by Respondent’s counsel. Fees App. Ex. 2 at 8. In my experience, this is an excessive amount of for review of these such filings. By comparison, one of Mr. Howie’s other paralegals only billed 0.1 hours for review of a sch eduling order, a more

reasonable amount of time for this task. Id. at 9. I will therefore reduce Ms. Lupo’s 20 17 hours billed by 0.8 and her 2018 hours billed by 0.6, resulting in a reduction of $200.80

. 5 Petitioners are thus awarded final attorney ’s fees of $18,974.90

.

I will next turn to costs. Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.

Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992) ; Presault v. Unite d

States , 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health &

Human Servs. , No. 10

- 243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to carry their burden, such as by not providing appropriate documentation to substantiate a requested cost, special masters have refrained from awarding compensation. See,

4 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%20Schedule%202018.p
df. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.p df. 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).

5 (0.8 hours * $140.00) + (0.6 hours * $148.00) = $200.80.4

e.g. , Gardner

- Cook v. Sec’y of Health & Human Servs. , No. 99

- 480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioner s request $ 496.81 in overall costs . Fees. App. at 1

. This amount is comprised of obtaining medical records, postage charges, and the Court’s filing fee

. I have reviewed all of the requested costs and find them to be reasonable, and Petitioner s ha ve provided adequate documentation supporting them. Accordingly , Petitioner s are entitled to the full amount of costs requested.

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 $ 19,471.71 as a lump sum in the form of a check joint ly payable to Petitioner s and their counsel, M r. John Howie, Jr. , Es q. In the absence of a timely

- filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision. 6

IT IS SO OR DERED.

/s/ Brian H. Corcoran
Brian H. Corcoran Special Master

6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.