Zdroik v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-468V

Filed: February 3, 2017

UNPUBLISHED

********************************* ELIZABETH ZDROIK, *

*

Petitioner, *

v. *

* Attorneys’ Fees and Costs; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

*

Respondent. *

* **************************** Ramon Rodriguez, III, Rawls, McNelis and Mitchell, PC, for petitioner. Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

On May 8, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury as a result of her October 16, 2012 influenza (“flu”) vaccination. On January 15, 2016, the undersigned issued a decision awarding compensation to petitioner based on the parties’ Stipulation. (ECF No. 30).

On September 19, 2016, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 37). Petitioner requests attorneys’ fees in the amount of $25,526.90, attorneys’ costs in the amount of $917.95, and petitioner’s out-of-pocket costs in the amount of $4.48 for a total amount of $26,449.33. Id. at ¶¶ 3, 8. In compliance with General Order #9, petitioner has filed a signed statement indicating petitioner incurred $4.48 in out-of-pocket expenses.

Petitioner’s request for her attorney’s fees and costs award is based upon the following hourly rates and hours of work performed by petitioner’s attorney, Ramon Rodriguez, MD, and paralegal, Lisa Robertson, between 2014 and 2016.

Number Name Work Hourly of Subtotal

Year Rate Hours Ramon Rodriguez III, MD, JD 2014 $361.00 0.9 $324.90 Lisa Robertson 2014 $131.00 12.4 $1,624.40 Ramon Rodriguez III, MD, JD 2015 $375.00 35.1 $13,162.50 Lisa Robertson 2015 $135.00 35.6 $4,806.00 Ramon Rodriguez III, MD, JD 2016 $389.00 11.9 $4,629.10 Lisa Robertson 2016 $140.00 7.0 $980.00 TOTAL $25,526.90 Id. at ¶ 3.

On September 22, 2016, respondent filed a response to petitioner’s motion. (ECF No. 38). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that she “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” (Id. at 2). Additionally, she “asserts that a reasonable amount for fees and costs in the present case would fall between $15,500.00 to $18,500.00” citing two SIRVA cases where the stipulated award of attorneys’ fees and costs fell within the given range. (Id. at 3).

On September 30, 2016, petitioner filed a reply. (ECF No. 39). Petitioner argues that “the recommended range suggested by respondent bears no relationship to the specific details involved, nor the total amount of time required in the instant matter and therefore should not be considered.” (Id. at ¶4).

The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the time billed by petitioner’s counsel appears reasonable, and the undersigned finds no cause to reduce the requested hours. However, the undersigned finds that a reduction in the rates billed by petitioner’s counsel, Dr. Rodriguez, is necessary. The undersigned finds that Dr. Rodriguez’s requested rates, in particular his request of $381 an hour for work performed in 2016, exceeds the hourly rate of an attorney with his experience and qualifications.

Petitioner has requested Dr. Rodriguez be awarded forum rates consistent with the analysis and findings in McCulloch.3 Respondent does not dispute petitioner’s counsel’s entitlement to forum rates. McCulloch sets ranges of forum hourly rates for attorneys of varying experience in the Vaccine Program. Based upon McCulloch the Office of Special Masters has published on its website an “Office of Special Masters Attorneys Forum Hourly Rate Schedule: 2015 – 2016” (“OSM Forum Fee Schedule”).4 Under the OSM Forum Fee Schedule a Vaccine Program attorney entitled to forum rates with between 11-18 years of experience may reasonably request between $300- $375 an hour for work performed in the calendar years of 2015 and 2016.

In 2016, Dr. Rodriguez had 14 years of legal experience, having practiced law since 2002. (ECF No. 37 at ¶ 6). Additionally, he is a board certified primary care physician, serves as lead counsel for his firm’s Vaccine Injury Practice, and is a guest lecturer on vaccine injuries. (Id.) Based upon his experience and other credentials the undersigned finds that for 2016 Dr. Rodriguez is reasonably entitled to $375 an hour representing the upper end of the OSM Forum Fee Schedule for an attorney with between 11-18 years of experience. The undersigned finds that $361 an hour is a reasonable award for Dr. Rodriguez in 2015, and $348 a reasonable rate for Dr. Rodriguez in 2014.5 Accordingly, the undersigned awards petitioner’s counsel fees as follows:

Number Name Work Hourly of Subtotal

Year Rate Hours Ramon Rodriguez III, MD, JD 2014 $348.00 0.9 $313.20 Lisa Robertson 2014 $131.00 12.4 $1,624.40 Ramon Rodriguez III, MD, JD 2015 $361.00 35.1 $12,671.10 Lisa Robertson 2015 $135.00 35.6 $4,806.00 Ramon Rodriguez III, MD, JD 2016 $375.00 11.9 $4,462.50 Lisa Robertson 2016 $140.00 7.0 $980.00 TOTAL $24,857.20 The undersigned reduces petitioner’s counsel’s fees by $669.70. Thus, the total amount awarded for attorneys’ fees is $24,857.20.

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e).

Accordingly, the undersigned awards the total of $25,779.636 as follows:

 A lump sum of $25,775.15, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Raymond Rodriguez; and

 A lump sum of $4.48, representing reimbursement for petitioner’s costs, in the form of a check payable to petitioner. The clerk of the court shall enter judgment in accordance herewith.7

IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master