Destin v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 3, 2020 * * * * * * * * * * * * * * FRANLINE LUCINDA DESTIN, * No. 18-1206V * Special Master Sanders Petitioner, * * UNPUBLISHED v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Carol L. Gallagher, Carol C. Gallagher, Somers Point, NJ, for Petitioner; Sarah C. Duncan, United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On August 13, 2018, Franline Lucinda Destin (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa- et seq. (2012). Petitioner alleged that the influenza (“flu”) vaccine she received on October 30, 2017, caused her to suffer left shoulder injuries, including bone marrow edema/contusion in the greater tuberosity/humeral neck and mild subacromial/subdeltoid bursitis. See Stip. At 1, ECF No. 30. On September 6, 2019, the parties filed a stipulation which the undersigned adopted as her Decision awarding damages that same day. Decision, ECF No. 31.

The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the Ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).

National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

On October 3, 2019, Petitioner filed a motion for attorney fees and costs. ECF No. 35 (“Fees App.”). Petitioner requests total attorney fee and costs in the amount of $8,707.48, representing $8,220.00 in attorney fees and $25.68 in attorney costs. Fees App. at 3. Pursuant to General Order No. 9, Petitioner has indicated that she incurred out of pocket costs in the amount of $461.80. Fees App. Ex. 3. Respondent responded to the motion on October 22, 2019, stating that “Respondent does not object to the overall amount sought” and that his “lack of objection to the amount sought in this case should not be construed as an admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs.”

Resp’t’s Resp. ECF No. 37. Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348.

It is “well within the special master’s discretion” to determine the reasonableness of fees.

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Hourly Rate The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3 Petitioner requests that her counsel, Ms. Carol Gallagher, be compensated at $400 per hour for all time billed throughout this case. Fees App. at 3. The requested rate is consistent with what Ms. Gallagher has been previously been awarded for her work in the Vaccine Program.

Accordingly, no adjustment to the rates is necessary.

b. Reasonable Number of Hours Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Upon review, the undersigned finds the overall hours billed (20.55) to be reasonable.

Counsel has provided sufficiently detailed descriptions for the tasks performed, and, upon review, the undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $8,220.00.

c. Attorney Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $25.68 in attorney costs and $461.80 in costs incurred personally by Petitioner. Fees App. at 3. Petitioner has provided adequate documentation of all these expenses, and all are reasonable in the undersigned’s experience. Accordingly, the requested costs shall be awarded in full.

II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows: Attorneys’ Fees Requested $8,220.00 (Reduction to Fees) - Total Attorneys’ Fees Awarded $8,220.00 The 2015–2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum- Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202018.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.

Attorneys’ Costs Requested $25.68 (Reduction of Costs) - Total Attorneys’ Costs Awarded $25.68 Total Attorneys’ Fees and Costs $8,245.68 Petitioner’s Costs $461.80 Total Amount Awarded $8,707.48

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. Accordingly, the undersigned awards the following: 1) A lump sum in the amount of $8,245.68, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and her attorney, Ms. Carol Gallagher; and 2) A lump sum in the amount of $461.80, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

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.4 IT IS SO ORDERED.

s/Herbrina D. Sanders Herbrina D. Sanders Special Master

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.