Grammer v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 16, 2021 * * * * * * * * * * * * * * MARY GRAMMER, * UNPUBLISHED * Petitioner, * No. 17-593V * Special Master Gowen v. * * Attorneys’ Fees and Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Isaiah R. Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for Petitioner.

Darryl R. Wishard, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1 On October 21, 2020, Mary Grammer (“Petitioner”) filed a motion for attorneys’ fees and costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 86). For the reasons discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $76,331.60.

I. Procedural History On May 2, 2017, Petitioner filed a petition in the National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving an influenza vaccine on October 28, 2014, she suffered a shoulder injury related to vaccine administration. See Petition (ECF No. 1). On September 9, 2020, the parties filed a stipulation, which I adopted as my decision awarding compensation on the same day. (ECF No. 81).

I intend 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, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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).

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

On October 21, 2020, Petitioner filed a motion for final attorneys’ fees and costs. Petitioner requests compensation for her attorneys in the total amount of $76,331.60, representing $69,645.30 in attorneys’ fees and $6,686.30 in costs. Fees App. at 3. Pursuant to General Order No. 9, Petitioner warrants she has not personally incurred any costs in pursuit of her claim. Id. Respondent reacted to the fees motion on October 22, 2020, stating that “Respondent is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at (ECF No. 73). Petitioner filed a reply on October 23, 2020, reiterating her belief that the requested attorneys’ fees and costs were reasonable.

The matter is now ripe for adjudication.

II. Analysis Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees Petitioner requests the following hourly rates for the work of her counsel, Mr. Isaiah Kalinowski: $341.00 per hour for work performed in 2015, $349.00 per hour for work performed in 2016, $358.00 per hour for work performed in 2017, $368.00 per hour for work performed in2018, $383.00 per hour for work performed in 2019, and $405.00 per hour for work performed in 2020. Fees App. at 43-44. These rates are consistent with what Mr. Kalinowksi has previously been awarded for his Vaccine Program work, and I find them to be reasonable for work performed in the instant case as well.

Turning next to review of the submitted billing statement, I find that the overall hours spent on this matter to be reasonable. The entries are reasonable and accurately describe the work being performed and the length of time it took to perform each task. Respondent also has not identified any particular entries as being objectionable. Therefore, Petitioner is entitled to final attorneys’ fees of $69,645.30.

b. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total attorneys’ costs in the amount of $6,686.30. This amount is comprised of acquiring medical records, travel costs to meet with Petitioner, postage, the Court’s filing fee, and work performed by Petitioner’s medical expert, Dr. Jeffrey Boyd. Petitioner has provided adequate documentation supporting these costs and all appear reasonable in my experience. Petitioner is therefore awarded the full amount of costs sought.

III. Conclusion In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as follows: Attorneys’ Fees Requested $69,645.30 (Reduction of Fees) - Total Attorneys’ Fees Awarded $69,645.30 Attorneys’ Costs Requested $6,686.30 (Reduction of Costs) - Total Attorneys’ Costs Awarded $6,686.30 Total Attorneys’ Fees and Costs $76,331.60 Accordingly, I award a lump sum in the amount of $76,331.60, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and Maglio Christopher and Toale, PA, and be forwarded to Maglio Christopher and Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.3 IT IS SO ORDERED.

/s/Thomas L. Gowen Thomas L. Gowen Special Master

Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).