# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: May 21, 2019

* * * * * * * * * * * * * *
ANN FLY, * No. 17

- 1200 V

* Special Master Sanders

* Petitioner, *

*

v. *

*

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

* Respondent. *

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

Danielle A. Strait

, Maglio Christopher and Toale, PA, Seattle, WA

, for Petitioner. Robert P. Coleman, III , United States Department of Justice, Washington, D

. C

. , for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On September 6 , 2017

, Ann Fly (“ petitioner ”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa

- 10 to 34 (2012). The petition al leged that the influenza and pneumococcal conjugate vaccine s that petitioner received

on September 15 , 201 4

, and September 25, 2015, caused her to suffer from systemic inflammatory response syndrome (“SIRS”)

. See Stip. a t 1 , ECF No. 29

. On November 30 , 2018, the parties

filed a stipulation for award of compensation, which the undersigned adopted as her decision awarding damages on December 3, 2018

. Decision, ECF No. 3 0

.

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, upon review, t he 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is r equired to post it on the United States Court of Federal Claims ’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 Inju ry 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

On February 4 , 2019

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

3 6 (“Fees App.”). Petitioner requests total attorneys’ fees and c ost s in the amount of $2 2,695.07 (representi ng $ 19,736.20 in fees and $ 2,958.87 in costs)

. Fees App

. at 2 . P ursuant to General Order No. 9, p etitioner has indicated that s he has no t personal ly i ncurred any costs in pursuit of this litigation

. Id. Respondent responded to the motion on February 1 5, 2019 , indicating that he “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.” R esp’t’s Resp. at 2

– 3 (E CF No. 37 ). Petitioner filed a reply

on February 15 , 2019, reiterating her belief that the amount requested for attorneys’ fees and costs

is reasonable. Pet’r’s Reply, ECF No. 38

.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees a nd Costs

The Vaccine Act permits an award of reasonable attorneys ’ fees and costs. § 15(e). The Federal Circuit has approved 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, 1348 (Fed. Cir. 2008). This is a two

- step process. Id. First, a court determines an “initial estimate .

. . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly

rate.’” Id. at 1347

– 48 (quoting Blum v. Stenson , 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure 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 review ing court must grant the special master wide latitude in determining the reasonableness of both attorneys ’ 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, 316

– 18 (2008). Such applications , however,

should not in clude 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 co mmunity. See Blum , 465 U.S. at 895. 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 providin g 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. C l. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of3

Dep’t of Health & Human Servs. , 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in

relevan t 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 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, 2015). The Court has since updated the McCulloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

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

Petitioner requests the following rates of compensation for the work of he r attorney , Ms.

Danielle Strait: $307 .00 per hour f or work performed in 2017, $322.00 per hour for work performed in 2018 , and $340.00 per hour for work performed in 2019

. Fees App. Ex. 1 at 17.

These rates are consistent with what Ms. Strait has been awarded for her work in the Vaccine Program. See Kratzer v. Sec’y of Health & Human Servs. , No. 17

- 1209V, 2019 WL 1806626, at *2 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). Accordingly, no adjustment to the requested rates is necessary. However, the billing records indicate that Ms. Strait billed 0.5 hours in 2017 at $320.00 per hour as well. Fees App. Ex. 1 at 17. The undersigned will compensate Ms. Strait for these hours at $307.00 per hour as previously established, resulting in a reduction of $6.50

.

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.

Upon review , the undersigned finds th e overall hours billed (82.1) to be reasonable. Counsel has provided sufficient ly detail ed descriptions for the tasks performed, and upon review the undersigned does not find any of the billing entries to be unreasonable. Respondent has also not indicated that he finds any of the billing entries to be unreasonable. Accordingly, p etitioner is

entitled to final attorneys’ fees in the amount of $19,729.70

.

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

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). Petitione r requests
a total of $2, 958.87 in attorneys’ costs. This amount comprise s the cost of obtaining medical records, mailing costs, and the Court’s filing fee

. All the costs appear reasonable in the undersigned’s experience and p etitioner has provided adequate documentation for them. Petitioner

is thus entitled to the full amount of costs sought.

II. Conclusion

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

Attorneys’ Fees Requested $ 19,736

. 2 0 (Reduction to Rates)

- ($ 6 .50)

Total Attorneys’ Fees Awarded $19,729.70

Attorneys’ Costs Requested $ 2, 958.87 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 2, 958.87

Total Attorneys’ Fees and Costs $2 2,688.57

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

- 15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that p etitioner’s request for fees and
costs, other than those reductions delineated above, is reasonable. Accordingly, the undersigned awards the following:

1) A lump sum in the amount of $ 2 2,688.57 , representing reimbursement for p etitioner’s attorneys’ fees and costs, in the form of a check payable to p etitioner and her attorney,

M s. Danielle Strait.

In t he 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. 4

IT IS SO ORDERED.

s/ Herbrina D. Sanders

Herbrina D. Sanders 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).