1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: May 24, 2022

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

KATHLEEN ALMODOVA

, as parent

, *

a nd natural guardian of A.A

, a minor, * UNPUBLISHED

*

Petition er

, * N o

. 19

- 1873 V

*

v. * Special Master Dorsey

*

SECRETARY OF HEALTH * At torneys ’ Fees and Costs.

AND HUMAN SERVI CES, *

* Respondent. *

*

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

Amy A. Senerth

, Mull er Brazil, LL P

, Dresher, P A

, f or P etit io ne r

. Austin J

. Ega n

, U

. S

. De partment of Justice, Washington, DC , for R espondent.

D ECISION ON ATTORNEYS ’ FEES AND COSTS 1

On December 11, 2019, Kathleen Almodova ( “ P etitioner”), as parent and natural guardian of A.A., a minor, filed a petition for compensation under the National Vaccine Injury Compensation Program (“ Vaccine Program”) 2 alleging that as a result of human papillomavirus (“ HPV ” or “ Gardasil ”) , tetanus

- d iphtheria

- acellular pertussis (“Tdap”), and Menactra (meningococcal) vaccines on March 23, 2018

, A.A. developed immune thrombocytopenic purpura (“ITP”)

. Petition at Preamble

. On Dece mber 23 , 2021, Petitioner filed a motion to

dismiss , which the undersign ed granted the same day. Decision dated Dec

. 23 , 2021 (ECF No.

47 )

.

1 Because th is Decision contai ns a reas o ned expl anat ion for the action in this case, the

unders igned is requir ed to pos t it on the Un ited States Court of Fed er al Cla ims’ website in

acc or dance with the E

- Government Act of 20 02. 44 U.S

. C. § 35 01 no te (2012) ( Federal

Ma nagement and Promo tion of E l ectronic Gov ernment Services). This m eans the Decision will

be availa ble to an yone with ac ce ss to the I nternet. In ac cordan ce wi th Vaccine Rul e 18(b),

P et itioner has 14 da ys to iden tify and mo v e to re dact medical or other info rmation, the discl osure of w hich wou ld c onstitute an unwarranted i nvasion of privac y. If, upon re view, the undersigned

a grees that the iden tifie d materi al fi ts within this d efinition, the undersigned will redac t such

mate r ial fro m pub lic access.

2 The Program 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

On March 15 , 2022, P etitioner filed an application for attorneys’ fees and costs.

Petitioner ’ s Motion for Attorney Fees and Costs ( “ Pet. Mot. ” ), filed Mar

. 4 , 2022 (ECF No. 42 ).

Petiti oner requests compe n sation in the amount of $ 32

, 795

. 03 , represen ting $ 15,450.50 in attorneys’ fees and $ 17,344.53 in costs. Id. at 2

. Pursuant to Gene ral Order No. 9

, P etitioner

warrants that s he has not personally incurred any costs in pursuit of her cl aim for compensation.

Id. Respondent filed his response on March 24 , 2022, stating he “ is satisfied the statutory requirements for an award of attorne ys ’ fees and costs are met in this case

. ” Respondent ’ s Response to Pet. Mot. , filed Mar. 24 , 2022, at 2 (ECF No. 5 3 ). Petitioner did not file a reply

t hereafter. T he mat ter is now ripe for disposition.

For the reasons discussed below, the undersigned G RANTS P etitioner’s motion and

awards a total of $ 32

, 795

. 03

.

I. DISCUSSION

Under the Vaccine Act, the spec ial master shall award reasonable attorneys’ fees and

costs for any petition that results in an award of compensation. § 15(e)(1). When compensati on
i s not awarded, the special master “may” award reasonable attorneys’ fees and costs “if the special maste r or court determines that the petition was broug ht in good fait h an d there was a reasonable basis for the claim for which the petition was brought. ” I d. In this case, because the undersigned finds P etitioner brought the petition in goo d f a ith and ther e was a reasonable basis

,

s he is entitled to a final award of reasonable attorneys’ fees and costs.

A. Rea s onable Attorneys ’ Fee s

The Federal Circuit ha s approved use of the lodestar approach to determine reasonable

attorney s ’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Hum

. Servs

. , 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodesta r approach, a court first d etermines “an

initi al estimate of a reasonable attorney’s fee by ‘multiplying the nu mber of hours reasonably expended on the l itigation times a reasonable hourly rate.’” Id

. at 1347

- 58 (quoting Blum v.

Stenson , 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial cal culation of the fee award based on other specific findings. Id

. at

1348.

Counsel must submit fee requests that include contemporaneous and specific billing

records in dicating the service perfor med, the number of hours expended on the service, and the

nam e of the person performing the service. See Savin v. Sec’y of He alth & Hum

. Servs

. , 85 Fed.
Cl. 313, 316

- 18 (2008). Counsel should not include in their fee requests h ours that are “excessive, r edundant, or otherw ise unnecessary.” Saxton v. Sec’y of Heal th & Hum

. Servs

. , 3

F.3 d 1517, 1521 (Fed. Cir. 1993) (quoting Hen sley v. Eckerhart , 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to re duce the hours to a number that, in [her]

expe rience and judgment, [is] reasonable for t he work done.” Id

. at 15 22. Furthermore, the special master may reduce a fee request sua sponte , apart from objections raised by respondent and without providing a P e titioner notice and opportu nity to respond. S ee Sabella v. Sec’y of

Health & Hum

. Servs

. , 86 Fed. Cl. 201, 209 (2009).3

A special master need not engage in a line

- by

- line analysis of a P etitioner’s fee application when reducing fees. Broekelschen v. Sec’ y of Health & Hum

. Servs

. , 102 Fed. Cl.
719, 7 29 (2011). Special masters may rely on th eir experience with the Vaccine Program and its attorneys to dete rmine the reasonable number of ho urs expended. Wasson v. Sec’y of Health &

Hum

. Servs

. , 24 Cl. Ct. 482 , 484 (Fed. Cl. Nov. 19, 19 91)

, rev’d on other grounds & aff’d in relevant part , 988 F. 2 d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use th eir prior experience to reduc e hourly rates and the number of hours clamed in attorney fee requests

. . . [v]accine program specia l masters are also entitled to use their prior experience in reviewing fee application.” Saxton , 3 F. 3d at 1521.

i. Reasonable Hourly Rates

Petitioner request s the following hourly rates for the work of her counsel: for M s

. Amy

A. Senerth

, $2 50.00 per hour fo r w ork performed in 20 19

, $ 275 .00 per hour for work performed

in 20 20

, $3 00 .00 per hour for work per formed in 2021 , $325.0 0 per hour for work perf ormed in

20 22 ; and for M r. Max Mulle r

, $ 317 .00 per hour for work performed in 20 18

. Pet. Mot., Exhibit
( “ Ex. ” ) A

. Petitione r also request s the following rates for work of her counsel ’ s various paralegals: $125.00 per hour for work performed in 201 8 through 202 2

, $1 4 0 .00 per hour for work performed in 20 19 , $1 5 0.00 per hour for work performed in 2020

, $1 6 0 .00 per hou r for work performed in 202 0 and 202 1 ; $1 8 5 .00 per hour for work performed in 2019

. T h e undersigned finds the rates a re consistent with what counsel have previous ly been awarded for their Vaccine Progr am work , and finds them to be reasonable herein.

ii. Reasonable Hours Expended

In reducing an award of fees, the goal is to ach ieve rough justice, and therefore a special

mas ter may take into account their overall sense of a ca se and may use estimates when r educing

an award. See Florence v. Sec’y of Health & Hum

. Servs. , No. 15

- 255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec. Mstr. O ct. 6, 2016) (citing Fox v. Vice , 563 U.S. 826, 838 (2011 ) ). It is well

established that an applicati on for fees an d costs must su fficiently detail and explain the time

billed so t hat a special master may dete rmine, from the application and the case file, whether the amount requested is reasonable. B ell v. Sec ’ y of Health & Hum

. Servs. , 18 Cl. Ct. 751, 7 60
(1989); Rod riguez v. Sec ’ y of Health & Hum

. Servs.

, No. 06

- 5 59V, 2009 WL 256 8468 (Fed. Cl. Spec. Mstr. Ju ly 27, 2009)

. Petitioner bears the burden of documenting the fees and costs

claimed. Rodrig uez , 2009 WL 2568468 at *8.

The undersigned has reviewed the submitted billing entries and finds the total number of

hours billed to be reasonable. The billing entries accurately reflect the nature of the work performed and the undersigned does not find any of the entries to be ob jectionable. Respondent also has not indicated that he finds any of the entries to be objectionable either. Petitioner is

therefore aw ard ed final attorneys’ fees of $ 15,450.50

.

B. At torneys ’ Costs4

Petitioner requests a total of $ 17,344.53 in attorneys’ costs. Pet. Mot. , Ex. B. This

amount i s comprised of acquirin g medical recor ds, the Court’s filing fee, and for work performed

b y P etitioner ’ s expert s , Dr. Frederick Nahm and Dr. Rus sell D. Keenan

. The unde rsigned has

reviewed t he requested costs and finds them to be reasonable and supported with appropriate

documentation. Accordingly, t he full amount of costs shall be awarded.

II. CO NCLU SION

B ased on all of the above , the under signed finds that it is reasonable to compensate

P eti tioner and her counsel as follows:

Att orneys’ Fees Requested $ 15,450.50
(Total Reduction from Bill ing Hours)

- Total Attorneys’ Fees Awarded $15,450.50

At torne ys’ Costs Requested $ 17, 344.53
(Reduc tion of C osts)

- Total Attorneys’ Costs Awarded $ 17 ,344.53

Total Attorneys’ Fees and Costs Awarde d $32,795.03

Accordingly, the undersigned awards $32,795.03 in attorneys’ fees and costs, in the

form of a chec k payable join tly to P etitioner and P etiti oner’s counsel, Ms. Amy A. Senerth

.

In the absence of a motion for review filed pursuant to RCFC Appendix B, th e Clerk of

Court SHALL ENTER JUDGMENT in accordance w ith this decision. 3

I T IS S O ORDERED.

s /Nora Beth Dor sey
Nora Be th Dorsey Special Maste r

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joi nt filing of notice renouncing the right to seek revi ew.