# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS
(Filed: March 2 6 , 2021 )

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

HEATHER TUMOLO

, * UNPUBLISHED

* No. 1 6

- 343 V

Petitioner

, *

* Special Master Dorsey

v. * * Attorney s’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Maximillian J. Muller

, Muller Brazil, LLP, Dresher, PA

, for petitioner

. Jennifer L. Reynaud , U.S. Department of Justice, Washington, D C , for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On March 16, 2016

, Heather Tumolo (“petitioner”) filed a petition in the National Vaccine Injury Compensation Program. 2 Petitioner alleged that she suffered a left shoulder injury caused by her September 30, 2014 influenza vaccination

. Petition at 1 (ECF No. 1). On March 15, 2019, the un dersigned issued a ruling on entitlement, finding that petitioner was entitled to compensation. After the parties were unable to resolve damages, the undersigned issued her damages decision on October 1, 2020. (ECF No. 99).

On December 10 , 2020

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

. Motion for Attorney Fees and Costs (ECF No. 103 )

. Petitioner request s compensa tion in the

1 This decision 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 interne t. 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 redac tion “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 unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id

.

2 The National 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

amount of $ 47,935.22 , representing $ 42,758.00 i n attorneys’ fees and $ 5,177.22 in attorneys’

costs

. Fe es App. at 2

. Pursuant to General Order No. 9, petitioner state s she ha s not incurred any costs related to the prosecution of their petition. Id. Respondent failed to file a response within the allotted time, and petitioner did not file a reply. The matter is now ripe for disposition.

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

awards a total of $ 47,935.22

.

I. Discussion

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

cost s 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 w as awarded compensation, she 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 fir st 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 co urt 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 that include contemporaneous and specific billing records indicating the service pe rformed, 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

- 18 (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. Eckerha rt , 461 U.S. 424, 434 (1983)). 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 r equest 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).

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 P rogram and its attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health3

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). Jus t 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.” Sax ton , 3 F. 3d at 1521.

i. Reasonable Hourly Rat es

Petitioner requests the following hourly rates for the work of her counsel, Mr.

Maximillian Muller : $255.00 per hour for work performed in 2015, $275.00 per hour for work performed in 2016, $300.00 per hour for work performed in 2017, $3 17 .00 per hour for work performed in 2018, $ 325 .00 per hour for work performed in 2019, and $350 .00 per hour for work performed in 2020. These rates are consistent with what Mr. Muller has previously been awarded

for h is Vaccine Program work, and the undersigned finds them to be reasonable herein.

ii. Reasonable Hours Expende d

T he overall h ours spent on this matter appear to be reasonable. The undersigned has reviewed the billing entries and finds that they adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable

, nor h as

r espondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final award of attorneys’ fees in the amount of $ 42,758.00

.

b. Attorneys’ Costs

Petition er request s a total of $ 5,177.22 in attorneys’ costs. This amount is comprised of acquiring medical records, postage, the Court’s filing fee

, and work performed by petitioner’s medical expert, Dr. G. Russell Huffman

. Fees App. at 1 7

. T he requested costs are typical of Vaccine Program litigation and are reasonable in the undersigned's experience , and p etitioner has provided adequate documentation supporting them

. Petitioner is therefore awarded the full amount of costs requested.

II. Conclusion

Base d on all of the above, the undersigned finds that it is reasonable compensate petitioner and he r counsel as follows:

Attorneys’ Fees Requested $ 42,758.00 (Total Reduction from Billing Hours)

- Total Attorneys’ Fees Awarded $ 42,758.00

Attorneys’ Costs Requested $ 5,177.22
(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 5,177.224

Total Attorneys’ Fees and Costs Awarded $ 47,935.22

Accordingly, the undersigned awards a lump sum in the amount of $ 47,935.22

, representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner

and her counsel, M r. Maximillian Muller

.

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

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master

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