Sanchez-Aldana v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1879V (not to be published)

************************* ANDREW SANCHEZ-ALDANA and * KARINA SANCHEZ-ALDANA, * on behalf of V.S.A., a minor, *

* Special Master Corcoran *

Petitioners, * Filed: July 31, 2019

* v. *

* Attorney’s Fees and Costs. SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* *

Respondent. *

* ************************* John R. Howie, Jr., Howie Law, PC, Dallas, TX, for Petitioner.

Althea W. Davis, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1

On December 5, 2017, Andrew and Karina Sanchez-Aldana filed a petition on behalf of their minor child, V.S.A., seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioners alleged that V.S.A. suffered from intussusception as a result of receiving the rotavirus vaccine on December 5, 2014. The parties filed a stipulation for award on April 5, 2019, which I adopted as my Decision awarding damages on the same day. (ECF No. 23).

Petitioners have now filed a motion requesting final attorney’s fees and costs, dated April 25, 2019 (ECF No. 27) (“Fees App.”), requesting a total award of $19,672.51 (representing $19,175.70 in fees, plus $496.81 in costs). Fees App. at 1. Pursuant to General Order No. 9, Petitioners warrant that they have not personally incurred any costs in pursuit of this litigation. Fees App. Ex. 4 at 1. Respondent reacted to the motion on May 9, 2019, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring to my discretion to determine the amount to be awarded. Response, ECF No. 29, at 2-3. Petitioners filed a reply on May 9, 2019, stating that “a review of Respondent’s Response reflects that Respondent has made no specific objection to Petitioners’ Application; therefore, Petitioners do not intend to file a substantive reply to Respondent’s response.” Reply, ECF No. 30, at 1.

For the reasons set forth below, I hereby GRANT Petitioner’s motion in part, awarding final attorney’s fees and costs in the amount of $19,471.71.

ANALYSIS

Vaccine Program attorneys are entitled to a fees award in successful cases like this one. Determining the appropriate amount of that award is a two-part process. The first part involves application of the lodestar method – “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).

Petitioners request the following rates of compensation for their attorney, Mr. John Howie: $363.00 per hour for work performed in2017, $383.00 per hour for work performed in 2018, and $395.00 per hour for work performed in 2019. Fees App. at 1. Petitioners also request rates ranging from $50 per hour to $148.00 per hour for paralegal work, depending on the individual paralegal and the year the work was performed. Id. at 1-2. I find the rates requested to be consistent with what Mr. Howie has previously been awarded for his Vaccine Program work, and also consistent with the Office of Special Masters’ fee schedules.4

I have reviewed the billing entries and find them to be largely reasonable. The only reduction necessary is for time billed by Debbie Lupo, one of Mr. Howie’s paralegals. Ms Lupo consistently billed 0.3 hours for review of mundane court filings, such as scheduling orders, the notice of assignment, and notice of appearance by Respondent’s counsel. Fees App. Ex. 2 at 8. In my experience, this is an excessive amount of for review of these such filings. By comparison, one of Mr. Howie’s other paralegals only billed 0.1 hours for review of a scheduling order, a more reasonable amount of time for this task. Id. at 9. I will therefore reduce Ms. Lupo’s 2017 hours billed by 0.8 and her 2018 hours billed by 0.6, resulting in a reduction of $200.80.5 Petitioners are thus awarded final attorney’s fees of $18,974.90.

I will next turn to costs. Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to carry their burden, such as by not providing appropriate documentation to substantiate a requested cost, special masters have refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioners request $496.81 in overall costs. Fees. App. at 1. This amount is comprised of obtaining medical records, postage charges, and the Court’s filing fee. I have reviewed all of the requested costs and find them to be reasonable, and Petitioners have provided adequate documentation supporting them. Accordingly, Petitioners are entitled to the full amount of costs requested.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $19,471.71 as a lump sum in the form of a check jointly payable to Petitioners and their counsel, Mr. John Howie, Jr., Esq. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision.6

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran Special Master