Tijerina v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1783V Filed: May 14, 2019 UNPUBLISHED

MAGALIS TIJERINA,

Petitioner, v. Special Processing Unit (SPU);

Attorneys’ Fees and Costs SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On November 14, 2017, 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 alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a consequence of receiving a hepatitis B (“Hep B”) vaccination on November 17, 2016. Petition at 1. On March 18, 2019, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. ECF No. 32.

On April 4, 2019, petitioner filed an unopposed motion for attorneys’ fees and costs. ECF No. 36. 3 Petitioner requests attorneys’ fees in the amount of $33,882.20 and attorneys’ costs in the amount of $1,249.39. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of- pocket expenses. Id. at 1. Thus, the total amount requested is $35,131.59.

The undersigned has reviewed the billing records submitted with petitioner’s request and finds a reduction in the amount of fees to be awarded appropriate for the reasons listed below.

I. Legal Standard The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). Counsel must submit fee requests that 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 & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.

II. Attorney Fees

A. Excessive and Duplicative Billing The undersigned has previously reduced the fees paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 3 The motion was filed as an unopposed motion and specifically states that respondent has no objection to petitioner’s request. ECF No. 36.

10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). The undersigned and other special masters have previously noted the inefficiency that results when cases are staffed by multiple individuals and have reduced fees accordingly. See Sabella, 86 Fed. Cl. at 209.

Billing records show that three attorneys and six paralegals billed time in this matter, with some billing less than one hour. This resulted in multiple reviews of the same records, orders and updating the same entries on files. For example, the attorney’s and the paralegals list 36 separate entries to review court notifications and updating file entries, for a total of 4.8 hours of time. The undersigned reduces the request for attorney’s fees by $414.10 4, the total of the duplicated entries at the paralegal rates.

III. Attorney Costs Petitioner requests reimbursement for attorney costs in the amount of $1,249.39. After reviewing petitioner’s invoices, the undersigned finds no cause to reduce petitioner’s’ request and awards the full amount of attorney costs sought

IV. Conclusion Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs.

Accordingly, the undersigned awards the total of $34,717.49 5 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Alison H. Haskins. Petitioner requests check be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.

The clerk of the court shall enter judgment in accordance herewith. 6 IT IS SO ORDERED.

4This amount consists of (0.5 hrs x $145 = $72.50) + (2.1 hrs x $148 = $310.80) + (.2 hrs x $154 = $30.8) = $414.10.