# 0 In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: May 13, 2020

* * * * * * * * * * * * * * UNPUBLISHED
PRISCILLA GONZALEZ, Parent, * on behalf of A.W., a minor, * No. 1 7

- 192 V

* Special Master Horner Petitioner, *

*

v. *

*

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

* Respondent. *

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

Timothy M. Kotfila

, Kotfila & Jordan, Springfield, MA

, for Petitioner. Jennifer L. Reynaud , United States Department of Justice, Washington, D

. C

. , for Respondent.

DECISION ON ATTORNEY S ’ FEES AND COSTS 1

On February 9, 2017

, Priscilla Gonzalez filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program on behalf of her minor child, A.W

. 2 42 U.S.C. §§

300aa

- 10 to 34 (2012). The petition alleged that A.W. suffered acute disseminated encephalomyelitis (“ADEM”) or viral encephalitis as a result of her receipt of an influenza (“flu”)
vaccination on November 24, 2014. ECF No. 1. Following an or der to show cause, I issued my decision dismissing the petition for insufficient proof on January 9, 2020.

On January 6, 2020

, p etitioner filed an application for attorneys’ fees and costs. ECF No.

4 1 (“Fees App.”). Petitioner request s total attorneys’ fees and c ost s in the amount of $ 21,118.98

1 I intend to post this Ruling on the United States Court of Federal Claims ’ website. This means the R uling will be available to anyone with access to the Internet

. In accordance with Vaccine Rule 18(b), petitioner

ha s 14 days to identify and move to redact medical 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 public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States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 Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

(representi ng $ 16,350.00 in fees and $ 4,768.98 in costs) . Fees App

. at 2

. Counsel warrants that he has attempted to secure a signed statement pursuant to Genera l Order No. 9 but that petitioner has not responded to his mail and has been unreachable via telephone

. Counsel states, however, he has advanced all costs and that petitioner was not charged any fees or costs. Respondent responded to
the motion on January 21, 2020 , indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and reques ts that I exercise my discretion and determine a reasonable award for attorneys’ fees and costs. Resp. at 2

– 3 (ECF No. 4 3 ).

Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys ’ fees and costs. § 15(e). The Federal Circuit has appro ved the lodestar approach to determine reasonable attorneys ’ fees and

costs under the Vaccine Act. Avera v. Sec ’ y of Health & Human Servs. , 515 F.3d 1343, 134 7 (Fed. Cir. 2008). This is a two

- step process. Id. at 1347

- 48. First, a court determines an “initial estimate

. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting Blum v. Stenson , 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward depa rture from the initial calculation of the fee award based on specific findings. Id. at 1348

.

It is “well within the special master ’ s discretion” to determine the reasonableness of fees.

Saxton v. Sec ’

y of Health & Human Servs. , 3 F.3d 1517, 1521

– 22 (Fed. Cir. 1993); see also Hines

v. Sec ’ y of Health & Human Servs. , 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attor neys ’ fees and costs.”). Applications for attorneys ’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin

v. Sec ’ y of Health & Human Servs. , 85 Fed. Cl. 313, 3 16

– 18 (2008). Such applications , however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton , 3 F.3d at 1521 (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum , 465 U.S. at 89 4

- 95

. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. P etitioner s bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte , without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs. , 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in

a line

- by

- line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human

Servs. , 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs. , 24 Cl. Ct. 482, 484 (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 to3

reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton

, 3 F.3d at 1521.

a. Hourly Rates

The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of

Health & Human Servs. , No. 09

- 293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied , 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 20 15). The Court has since updated the McCulloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

– 2016, 2017, 2018, 2019 , and 2020 can be accessed online. 3

Petitioner requests compensation for her counsel, Mr. Timothy Kotfila, at a rate of $300.00 per hour for all work performed in this case

. Mr. Kotfila has been practicing law since 1995, giving him approximately 21 years of experience when he began work on this case. Upon review, I find that $300.00 per hour is a reasonable hourly rate for Mr. Kotfila’s work and shall award it herein. 4

b. Hours 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 , 3 F.3d at 1521. While attorneys may be compensated for non

- attorney

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

Upon review, I find the over all hours billed to be largely reasonable. However, I note that Mr. Kotfila has billed an excessive amount of time for several minor tasks, such as review of routine court orders (0.2 hours to review the notice of assignment/reassignment, appearance of

res pondent’s counsel, scheduling orders, etc.) and other filings (e.g., 0.3 hours on 9/1/17 to review

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

- Sche dule

- 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.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/ Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in

McCulloch , 2015 WL 5634323.

4 In finding Mr. Kotfila’s requested rate reasonable, I am not making a determination that he is or is not entitled to forum rates, or that any other attorney in the Springfield, Massachusetts area is or is not

entitled to forum rates.4

r espondent’s status report , 0.4 hours to review respondent’s motion for enlargement of time). 5 To account for these issues, I shall reduce the final award of attorneys’ fees by $600.00. Petitioner is therefore awarded final attorneys’ fees of $15,750.00.

c. Attorneys’ 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 request s a total of $ 4,768.98 in attorneys’ costs. This amount comprises the cost of obtaining medical records, the Court’s filing fee , and work performed by petitioner’s experts, Drs. Craig Schacher

and Edward Lewin . Petitioner ha s provided adequate documentation supporting the requested costs and all appear reasonable in my experience. Petitioner is thus entitled to the full amount of attorneys’ costs sought.

II. Conclusion

Based on all the above, I find that p etitioner is entitled to the following award of reasonable attorneys’ fees and costs:

Attorneys’ Fees Requested $ 16,350.00 (Reduction to Fees )

- ($600.00) Total Attorneys’ Fees Awarded $ 15,750.00

Attorneys’ Costs Requested $ 4,768.98 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 4,768.98

Total Attorneys’ Fees and Costs $ 20,518.98

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), I have rev iewed the billing records and costs in this case and finds that p etitioner ’s request f or fees and costs , other than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the amount of $ 20,518.98 , representing reimbursement for p etitioner ’ s attorneys’ fees and costs, in the form of a check payable to p etitioner and h er attorney, Mr. Timothy Kotfila.

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

C ourt shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.

5 These are merely examples and are not intend ed to represent an exhaustive list of all such occurrences of overbilling.

6 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek

review. Vaccine Rule 11(a).5 s/ Daniel T. Horner

Daniel T. Horner Special Master