# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS (Filed: February 9 , 2022 )

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

JOHN SILVA

, * UNPUBLISHED

* No. 1 8

- 1357 V

Petitioner

, *

* Special Master Dorsey

v. * * Attorney s’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Ronald C. Homer

, Conway, Homer, P.C., Boston, MA

, for petitioner

. Christine M. Becer , U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On September 5, 2018

, John Silva (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq.

, 2 (“ Vaccine

Act ”)

. Petitioner alleged that as a result of a n influenza vaccine administered on September 15,

2015

, he developed chronic inflammatory demyelinating polyneuropathy

. On September 14

, 2021 , the parties filed a stipulation , which the undersigned adopted as her decision awarding compensation on the same day. (ECF No. 82 ).

1 This D ecision will be posted on the website of the United States Court of Federal Claims' website, in accordance

with the E

- Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to anyone with access to the internet. As provided by 44 U.S.C. § 300aa

- 12(d)(4)B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b), each party has 14 days within which to request redaction “ of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical filed or similar files, the disclosure of which would constitute a clearly unwarr anted invasion of privacy.” Vaccine Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id

.

2 The N ational Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755 , codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2012) (“Vaccine Act” or “the Act)

. All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.
§§ 300aa.2

On November 16 , 2021

, p etitioner filed a n application for attorneys’ fees and costs

. Motion for Attorney Fees and Costs (ECF No. 8 7 )

. Petitioner request s compensa tion in the amount of $ 54,578.69 , representing $ 3 8,283.52 i n attorneys’ fees and $ 16,295.17 in costs. Fees App. at 1

- 2

. Pursuant to General Order No. 9, petitioner warran ts that he has personally incurred

costs of $7.60 in pursuit of h is claim for compensation. Id. at 2. Respondent filed his response on

November 30 , 202 1

, indicating that he “ is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case .” Response at 2 (ECF No. 89 )

. Petitioner did not file a reply thereafter. The matter is now ripe for disposition.

For the reasons discussed below, the undersigned GRANTS petitione r ’ s motion and

awards a total of $ 54,097.89

.

I. Discussion

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(e)(1).

When compensation is not awarded, the special master “may” award reasonable attorneys’ fees

and costs “if the special master or court determines that the petition was brought in good faith

and there was a reasonable basis for the claim for which the petition was brought.” Id. at §15(e)(1). In this case, because petitioner was awarded compensation pursuant to a stipulation

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

a. Reasonable Attorney s’ Fees

The Federal Circuit has approved use of the lodestar approach to determine reasonable attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs

. , 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably expended on the litigation 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 calculation of the fee award based on other specific findings. Id

. at

1348.

Counsel must submit fee requests th at include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health and Human Servs

. , 85 Fed. Cl. 313, 316

- 1 8 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs

. , 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1 983)). 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.” Id

. at 1522. Furthermore, the special master may reduce a fee request sua sponte , apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of

Health & Human Servs

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

A special master need not engage in a line

- by

- line analysis of a petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs

. , 102 Fed. Cl. 719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its attorneys to det ermine the reasonable number of hours expended. Wasson v. Sec’y of Health

and Human Servs ., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests ... [v]accine program special masters are also entitled to use their prior experience in reviewing fee application.” Saxton , 3 F. 3d at 1521.

i. Reasonable Hourly Rat es

The undersigned has reviewed the hourly rates requested by petitioner for the work of h is counsel at Conway, Homer, P.C. (the billing records indicate that the majority of attorney work was performed by Mr. Joseph Pepper , with supp orting work from Mr. Ronald Homer, Ms.

Meredith Daniels , Mr. Patrick Kelly

, Ms. Lauren Faga, Ms. Christina Ciampolillo, and Mr.

Nathaniel Enos ), and finds that the hourly rates are consistent with what counsel have previously

been awarded for their Vaccine Program work. The undersigned shall therefore award them herein for work performed in the instant case.

ii. Reasonable Hours Expended

In reducing an award of fees, the goal is to achieve rough justice, and therefore a special master may take into account th eir overall sense of a case and may use estimates when reducing

an award. See Florence v. Sec’y of Health & Human Servs. , No. 15

- 255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice , 563 U.S. 826, 838 (2011). It is well established that an application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec'y of Health & Human Servs.

, 18 Cl. Ct. 751, 760 (1989) ; Rodriguez

, 2009 WL 2568468 . Petitioner bears the burden of documenting the fees and

costs claimed. Id. at *8.

Upon review, the undersigned finds the overall hours billed to be largely reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed. However, a small reduction must be made for excessive review of filings by counsel. While it is reasonable to have a second set of attorney eyes review substantive filings, such as the petition or a settlement demand, it is not reasonable to have another attorney review routine filings given that Mr. Pepper (lead counsel in this case) is an ex perienced Vaccine Program practitioner. Accordingly, a reduction of $ 488.40 is being made to account for this issue. Petitioner is therefore awarded final attorneys’ fees of $ 37,795.12

.

b. Attorneys’ Costs

Petition er requests a total of $ 16,295.17 in attorneys’ costs. This amount is comprised of acquiring medical records

, the Court’s filing fee

, postage , work performed by petitioner’s4

medical expert, Dr. Kazim Sheikh, and work performed by petitioner’s life care planner, Ms. Maureen Clancy

. Fees App

. at 2 5

- 26

. T he undersigned has reviewed the requested costs and finds them to be reasonable and supported with appropriate documentation. Accordingly, the full

amount of costs shall be awarded.

c. Petitioner’s Costs

Pursuant to General Order No. 9, petitio ner has indicated that he has personally incurred costs totaling $7.60 in pursuit of his claim. This cost is for postage, which the undersigned finds

to be reasonable, and it shall be fully reimbursed.

II. Conclusion

Based on all of the above, the undersigned finds that it is reasonable compensate petitioner and h is counsel as follows:

Attorneys’ Fees Requested $ 38,283.52 (Total Reduction from Billing Hours)

- ($ 488.40 ) Total Attorneys’ Fees Awarded $ 37,795.12

Attorneys’ Costs Requested $ 16,295.17 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 16,295.17

Total Attorneys’ Fees and Costs Awarded $ 54,090.29

Petitioner’s Costs $7.60

Total Amount Awarded $54,097.89

Accordingly, the undersigned awards the following:

1) a lump sum of $ 54,090.29, representing reimbursement for attorneys’ fees and costs

, in the form of a check payable jointly to petitioner and petitioner’s counsel, Mr.

Ronald Homer ; and

2) a lump sum of $7.6 0, representing reimbursement for petitioner’s costs, in the form of a check payable to petitioner.

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

Court SHALL ENTER JUDGMENT in accordance with this decision

. 3

3 Pursuant to Vacc ine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.5

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master