# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS (Filed: December 3 , 2021 )

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

DANIEL PAYNE

, * UNPUBLISHED

* No. 1 9

- 413 V

Petitioner

, *

* Special Master Dorsey

v. * * Attorney s’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Danielle A. Strait

, Maglio Christopher and Toale, PA, Seattle, WA

, for petitioner

. Darryl R. Wishard , U.S. Department of Justice, Washington, D C , for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On March 19, 2019

, Daniel Payne (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq.

, 2 (“ Vaccine

Act ”)

. Petitioner alleged that as a result of a n influenza vaccine administered on September 16,

2016

, he developed rheumatoid arthritis

. On April 6, 2021 , the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on April 7, 2021. (ECF No. 47).

On September 20 , 2021

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

. Motion for Attorney Fees and Costs (ECF No. 5 2 )

. Petitioner request s compensa tion in the

1 This D ecision 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 internet. 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 redaction “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 N ational Vaccine Injury Compensation Program is s et 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 $ 68,917.28 , representing $ 46,632.50 i n attorneys’ fees and $ 22,284.78 in costs. Fees App. at 1

- 2

. Pursuant to General Ordre No. 9, petitioner has indicated that h e has not personally incurred any costs related to his case

. Id. at 2. Respondent filed his response on September 20

, 202 1

, indicating that he “ is satisfied the statutory requirements for an award of attorneys’ fees

and costs are met in this case .” Response at 2 (ECF No. 5 3 )

. Petitioner filed a reply on September 20 , 2021, reiterating his belief that the requested attorneys’ fees and costs are

reasonable. (ECF No. 54).

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

awards a total of $ 68,917.28

.

I. Discussion

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs 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 was awarded compensation pursuant to a stipulation, he 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 first 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 court 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 th at include contemporaneous and specific billing records indicating the service performed, 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

- 1 8 (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. Eckerhart , 461 U.S. 424, 434 (1 983)). 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 request 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).3

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 Program and its attorneys to det ermine the reasonable number of hours expended. Wasson v. Sec’y of Health

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). Just 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.” Saxton , 3 F. 3d at 1521.

i. Reasonable Hourly Rat es

Petitioner requests the following hourly rates for the work of his attorney, M s. Danielle

Strait : $ 320 .00 per hour for work performed in 2017, $3 22 .00 per hour for work performed in 2018, $3 40 .00 per hour for work performed in 2019 , $3 70 .00 per hour for work performed in 2020, and $3 95 .00 per hour for work performed in 2021. Fees App. Ex. 1 at 28 . These rates are

consistent with what Ms. Strait has previously been awarded for h er Vaccine Program work, and the undersigned finds them to be reasonable herein for work performed in the instant case.

ii. Reasonable Hours Expended

In reducing an award of fees, the goal is to achieve rough justice, and therefore a special master may take into account their overall sense of a case and may use e stimates when reducing

an award. See Florence v. Sec’y of Health & Human Servs. , No. 15

- 255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice , 563 U.S. 826, 838 (2011). It is well established that an application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec'y of Health & Human Servs.

, 18 Cl. Ct. 751, 760 (1989) ; Rodriguez

, 2009 WL 2568468 . Petitioner bears the burden of documenting the fees and

costs claimed. Id. at *8.

The undersigned has reviewed the submitted billing entries and finds the total number of hours billed to be reasonable. The billing entries accurately reflect the nature of the work performed and the undersigned does not find any of the entries to be objectionable. R espondent also has not indicated that he finds any of the entries to be object ionable either. Accordingly, petitioner is awarded final attorneys’ fees of $ 46,632.50

.

b. Attorneys’ Costs

Petition er requests a total of $ 22,284.78 in attorneys’ costs. This amount is comprised of acquiring medical records

, the Court’s filing fee

, postage , work performed by petitioner’s medical expert s , Dr. M. Eric Gershwin and Dr. S. Sohail Ahmed

. Fees App. Ex. 2 at 1

- 2

. T he undersigned has reviewed the requested costs and finds them to be reasonable and supported with appropriate documentation. Ac cordingly, the full amount of costs shall be awarded.4 II. Conclusion

Based on all of the above, the undersigned finds that it is reasonable compensate petitioner and h is counsel as follows:

Attorneys’ Fees Requested $ 46,632.50 (Total Reduction from Billing Hours)

- Total Attorneys’ Fees Awarded $ 46,632.50

Attorneys’ Costs Requested $ 22,284.78 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 22,284.78

Total Attorneys’ Fees and Costs Awarded $ 68,917.28

Accordingly, the undersigned awards $ 68,917.28 in attorneys’ fees and costs, in the form of a check payable to petitioner’s counsel, M s. Danielle Strait and forwarded to Maglio Christopher & Toale PA, 1605 Main Street, Suite 710, Sarasota Florida 34236

. 3

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

. 4

I T IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master

3 Pursuant to the undersigned’s Order issued on June 3, 2021, due to petitioner’s death and counsel’s inability to contact any living family or legal representation of petitioner’s estate, payment of attorneys’ fees and costs is being made solely to counsel . Order, dated June 3, 2021 (ECF No. 58).

4 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.