# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: February 18 , 2020

* * * * * * * * * * * * * * UNPUBLISHED

FREDRIC KERNS

, *

* Petitioner, * No. 1 6

- 1498 V

* Special Master Oler

v. *

* Attorneys ’ Fees and Costs

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Ronald C. Homer

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

, for P etitioner.

Althea W. Davis , United States Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY S ’ FEES AND COSTS 1

On November 14, 2016

, Fredric Kerns (“ P etitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S .C. §§ 300aa

- 10 to

- 34 (2012). Petitioner alleged that he developed Bell’s palsy as a result of receiving an influenza

vaccination on March 16, 2015

. See Petition , ECF No. 1

. O n June 12 , 2019, the parties filed a stipulation , which the undersigned adopted as her Decision awarding compensation on June 17,

2019 . Decision, ECF No. 58

.

On October 8 , 201 9

, P etitioner filed an application for final attor neys ’ fees and costs. ECF

No. 61 (“Fees App.”). Petitioner requests total atto rneys ’ fees and c osts in the amount of $ 22,122.64

, represen ting $ 21,205.40 in attorneys ’ fees and $ 510.59 in attorney s ’ costs

. Fees App.

at 1

. Pursuant to General Order No. 9, Petitioner states that he has personally incurred $406.65 in

1 The undersigned intend s 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, the undersigned agrees that the iden tified 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 required to post it on the United Sta tes 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, 10 0 Stat. 3755.2

costs related to this litigation. ECF No. 62. Respondent responded to the motion on October 16

, 2019

, stating that “Respondent is satisfied the statutory requirem ents 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.” Resp’t’s Resp. at 2

- 3

, ECF No.

6 3 . Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys ’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable

attorneys ' fees , and other costs.” § 300aa

– 15(e)(1)(A)

– (B) . Petitioners are entitled to an award of

reasonable attorneys ' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful , they are eligible so long as the Special Master finds that the petition

was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation, he is entitled to a final award of reasonable attorneys’ fees and costs.

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 attorneys ' fees and costs.”). Applications for attorneys ' fees must include contemporaneous and specific billing records that indicate the work perfo rmed 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).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson , 465 U.S. 886, 895 (1984) . The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers o f reasonably comparable skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

The undersigned has reviewed the rates requested by Petitioner for the work of his counsel in this case (the billing records indicate that the majority of attorney work was done by Ms. Lauren Faga, with supplemental work done by Mr. Ronald Homer, Mr. Josep h Pepper, Mr. Patrick Kelly, and Ms. Christina Ciampolillo ) . The rates sought herein are consistent with what these individuals have previously been awarded for their Vaccine Program work, and the undersigned finds them to

be reasonable for this case as we ll.

b. Reasonable 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 (quoting Hensley v.3

Eckerhart , 461 U.S. 424, 434 (1983)). Additionally, it is well

- established that billing for

admin istrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States

, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs. , No. 02

- 1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

Upon review, th e undersigned finds the overall hours billed to be reasonable. Counsel has provided sufficiently detailed descriptions of the tasks performed, and, upon review, the undersigned does not find any of the billing entries to be unreasonable. Respondent also d id not indicate that he finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $ 21, 205.40

.

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 $ 510.59 in attorneys ’ cost s

. Fees App. at 2

. This amount is comprised of acquiring

medical records and postage . All of these costs are typical of Vaccine Program litigation and are reasonable in the undersigned’s experience

. Petitioner has provided adequate documentation supporting the request. Accordingly, the requested attorneys’ costs are reasonable and shall be

reimbursed in full.

d. Petitioner’s Costs

Pursuant to General Order No. 9, Petitioner stat e s that he has personally incurred costs of $406.65 related to this litigation for the Court’s filing fee and postage. These costs are reasonable

and have been supported with adequate documentation and will therefore be fully reimbursed.

II. Conclusion

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 etitione r’s request for fees and

costs is reasonable. Based on the above analysis, the undersigned f inds that it is reasonable to
compensate P etitioner and h is counsel as follows:

Attorneys ’ Fees Requested $ 21,205.40 (Reduction to Fees )

- Total Attorneys ’ Fees Awarded $ 21,205.40

Attorneys ’ Costs Requested $ 510.59 (Reduction to Costs)

- Total Attorneys’ Costs Awarded $ 510.59

Total Attorneys’ Fees and Costs $ 21,715.99

Petitioner’s Costs $406.654

Total Amount Awarded $22,122.64

Accordingly, the undersigned awards the following:

1) a lump sum in the amount of $ 21,715.99

, representing reimbursement for reasonable
attorneys ’ fees and costs, in the form of a check payable jointly to P etitioner and

P etitioner’s counsel of record, M r. Ronald Homer; and

2) a lump sum in the amount of $406.65, representing reimbursement for reasonable 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 herewi th. 3

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler Special Master

3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).