# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: April 16, 2020

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

DAVID FENSTER

, * UNPUBLISHED

*

Petitioner, * No. 1 6

- 965 V

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

Carol L. Gallagher

, Somers Point, NJ , for Petitioner.

Lynn C. Schlie , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On December 1 7 , 2019

, David Fenster (“Petitioner”) filed a motion for attorneys’ fees and

costs. Petitioner’s Motion for Attorne y Fees (“Fees App.”) (ECF No. 85 ). For the reasons

discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and awards a total of

$ 9 7,635.87

.

I. Procedural History

On August 9 , 2016

, Petitioner filed a petition in the National Vaccine Injury Compensation

Program

. 2 Petitioner received an influenza (“flu”) vaccination and a Pneumovax vaccine on

August 19, 2015. Stipulation filed October 15, 2019 (ECF No. 78) (“Stipulation”) at ¶ 2. Petitioner

alleged that as a result of that flu vaccination, he suffered from Guillai n

- Barré syndrome (“GBS”)

1 I intend to post this r uling 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, 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 Because this unpublished ruling contains a reasoned explanation for the action in this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 acc ordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services).

2 The National V accine 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 d ecision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2

with residual effects lasting for more than six months. Id. at ¶ 4. On October 15 , 2019 , the parties

filed a stipulation, which I adopted as my Decision awarding compensation on the same day . ECF

No. 7 9

.

On December 1 7 , 2019 , Petitioner filed a motion for attorneys’ fees and costs. Petition er

requests compensation for h is atto rne y, M s. Carol Gallagher

, i n the total amount of $ 97,947.36

, representing $ 77,049.80 i n attorneys’ fees and $ 20,497.56 in costs. Fees App. at 3

. Pursuant to

General Order No. 9, Petitioner warrants he has personally incurred costs of $2,400.00 in pursuit

of h is claim. Id. Respondent reacted to the fees motion on December 19 , 2019

, stating that

“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are

met in this case .” R esponse at 2 (ECF No. 8 6 ). Petitioner did not file a reply thereafter.

The matter is now ripe for adjudication.

II. Analysis

Under the Vaccine Act, the special master may award reasonable attorneys ' fees and costs

for a petition that does not result in an award of compensation but was filed in good faith and

supported by a reasonable basis. § 300aa

– 15(e)(1). Here, because P etiti oner was awarded

compensation, he is entitled to an award of reasonable attorneys’ fees and costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and

the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs. , 24 Cl. Ct. 482,

484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is

filed. Id. at 484 n. 1 . The special master has the discretion to reduce awards sua sponte , in dependent

of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs. , 86 Fed.

Cl. 201, 208

– 09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs

. , 85 Fed. Cl. 313 (Fed.

Cl. 2008), aff'd No. 99

– 537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees

Petitioner requests the following rates for the work of her counsel, M s. Carol Gallagher : $350.00 per hour for work performed in 2015 and 2016 , $3 6 3 .00 per hour for work performed in

2017, and $ 400 .00 per hour for work performed in 2018 and 2019. These rates are consistent with

what M s. Gallagher has previously been awarded for h er Vaccine Program work, and I find them

to be reasonable for the work perfo rmed in the instant case

. See De Souza v. Sec'y of Health &

Human Servs.

, 141 Fed. Cl. 338, 345 (Fed. Cl. 2018)

.

Turning next to review of the submitted billing statement, I find that the overall h ours spent

on this matter to be largely reasonable

. The only reduction the undersigned finds necessary is for

time spent performing paralegal tasks, specifically drafting correspondence to medical providers

for records and responding to inquiries from those providers . This issue is not new to Ms.

Gallagher's billing records. See Rocha v. Sec'y of Health & Human Servs.

, No. 16

- 241V, 2019 WL

2406954, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2019) ; Cetlin

- Salter v. Sec’y of Health & Human

Servs. , No. 16

- 792V, 2019 WL 4880164, at *2 (Fed. Cl. Spec. Mstr. Sept. 16, 2019); De Souza

, 141 Fed. Cl. 338

. I also note an exces sive amount of time was billed for review of certain CFECF3

notifications, such as minute entries and informal communications. Based on the hours billed for

these tasks, the undersigned finds that a three percent overall reduction to the award of attorney's

fees is appropriate to of

fset the requested amount with what a reasonable amount would be had

Ms. Gallagher billed these tasks at a reasonable paralegal rate . This results in a reduction of

$ 2,311.49 . Petitioner is therefore awarded final attorneys’ fees of $7 4,738.31

.

b. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.

Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total

attorneys’ costs in the amount of $ 20,497.56

. This amoun t is comprised of acquiring medical

records

, transcripts

, and work performed by Petitioner’s expert, Dr. Lawrence Steinman . Petitioner

has provided adequate supporting documentation for all the costs, and they appear to be reasonable

upon review. Accordingly, P etitioner is awarded the full amount of attorneys’ costs sought.

c. Petitioner’s Costs

Pursuant to General Order No. 9, Petitioner warrants that he has personally incurred costs

of $2,400.00 related to his claim, comprised of the Court’s filing fee and a re tainer paid to Dr.

Steinman. Petitioner has provided adequate documentation of these costs and they are reasonable

in my experience. Petitioner shall therefore be fully reimbursed.

III. Conclusion

In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

Attorneys’ Fees Requested $ 77,049.80

(Reduction of Fees )

- ($ 2,311.49 )

Total Attorneys’ Fees Awarded $ 7 4,738.31

Attorneys’ Costs Requested $ 20,497.56

(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 20,497.56

Total Attorneys’ F e es and Costs $ 9 5,235.87

Petitioner’s Costs $2,400.00

Total Amount Awarded $9 7,635.87

Accordingly, I award the following:4

1) a lump sum in the amount of $ 9 5,235.87

, representing reimbursement for P etitioner’s

attorneys’ fees and costs, in the form of a che ck payable to P etitioner and h is attorney,

M s. Carol Gallagher 3 ; and

2) a lump sum in the amount of $2,400.00, 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 the

court shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

/ s/ Thomas L. Gowen

Thomas L. Gowen

Special Master

3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by

the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)

prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded

herein. See generally Beck v. Sec’y of Health & Human Servs. , 924 F.2d 1029 (Fed . Cir. 1991).

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).