Johnson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-447V Filed: July 31, 2017 Not for Publication

************************************* LILLIAN R. JOHNSON, *

*

Petitioner, *

* Attorneys’ fees and costs decision; v. * reasonable attorneys’ fees and costs;

* reasonable hourly rate for expert SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

************************************* Carol L. Gallagher, Linwood, NJ, for petitioner.

Jennifer L. Reynaud, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On May 5, 2015, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that her receipt of influenza vaccine on September 17, 2012 caused her to develop transverse myelitis. On July 24, 2017, the undersigned issued a decision awarding damages to petitioner based on the parties’ stipulation.

On July 28, 2017, petitioner filed a motion for attorneys’ fees and costs. Petitioner requests attorneys’ fees in the amount of $87,661.00, attorneys’ costs in the amount of $2,844.00, and personal costs in the amount of $4,100.93, for a total request of $94,605.93.

On July 31, 2017, respondent filed a response to petitioner’s motion explaining he is satisfied that this case meets the statutory requirements for an award of attorneys’ fees and costs under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent “respectfully recommends that the [undersigned] exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in order to receive a fee award as long as petitioner brought the claim in “good faith and there was a reasonable basis for the claim.” Id. The special master has “wide discretion in determining the reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.”).

Based on her experience and review of the billing records submitted by petitioner, the undersigned finds the majority of petitioner’s attorneys’ fees and costs request reasonable. However, the undersigned does not find an hourly rate of $690.00 for Dr. Sami Khella reasonable. Instead, she will award an hourly rate of $500.00. Therefore, the undersigned will award $1,050.00 for Dr. Khella’s work on this case, a reduction of $1,729.00.

The undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs. Accordingly, the court awards:

a. $88,776.00, representing attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioner and Carol L. Gallagher, Esquire, LLC in the amount of $88,776.00; and

b. $4,100.93, representing petitioner’s costs. The award shall be in the form of a check made payable to petitioner for $4,100.93.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2 IT IS SO ORDERED.

Dated: July 31, 2017 s/ Laura D. Millman

Laura D. Millman Special Master