Moore v. Secretary of Health and Human Services

CORRECTED

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: May 17, 2024 * * * * * * * * * * * * * * CHERISH MOORE, * * Petitioner, * No. 20-1589V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Jessica Anne Olins, Maglio Christopher & Toale, Seattle, WA, for Petitioner.

Madelyn Weeks, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 20, 2023, Cherish Moore, (“petitioner”) filed a motion for attorneys’ fees and costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 56). For the reasons discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $38,758.26.

I. Procedural History On November 13, 2020, Cherish Moore (“petitioner”) filed a petition for compensation in the National Vaccine Injury Compensation Program.2 (Petition) (ECF No. 1). Petitioner alleged that the tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine she received on October 2, 2019 caused her to develop a right Shoulder Injury Related to Vaccine Administration (“SIRVA”). Id. I issued my decision on August 16, 2023, finding that Petitioner suffered a Table SIRVA and awarding compensation in the amount of $135,311.26. (ECF No. 52).

Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision 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.

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018) (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 September 20, 2023, Petitioner filed a motion for attorneys’ fees and costs. Petitioner requests compensation in the total amount of $38,758.26, representing $37,993.70 in attorneys’ fees and $764.56 in costs. Fees App. at 1. 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 June 23, 2023, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 58). Petitioner filed her reply on May 4, 2023, requesting the requested fees and costs be awarded in full. (ECF No. 59).

The matter is now ripe for adjudication.

II. Analysis Under the Vaccine Act, the special master may award reasonable attorneys’ fees and costs for a petition that does not result in an award of compensation but was filed in good faith and supported by a reasonable basis. § 300aa–15(e)(1). Here, because Petitioner was awarded compensation, she is entitled to an 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 rates of compensation for their attorneys at mctlaw: for Ms. Jessica Olins: $225.00 per hour for work performed in 2020, $266.00 per hour for work performed in 2021, $290.00 per hour for work performed in 2022, and $320.00 per hour for work performed in 2023; and for Mr. Altom Maglio: $420.00 per hour for work performed in 2020. Ex. at 29. These rates are consistent with what counsel have previously been awarded for their Vaccine Program work and I find them to be reasonable herein. I shall also award the requested paralegal time at the provided rates.3 Turning next to review of the submitted billing statement, I find that the overall hours spent on this matter appear 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 $37,993.70.

The rates for the 9 paralegals who worked on this matter are also consistent with what has been previously awarded and in accordance with the Office of Special Masters’ fee schedule. Amy Semanie charged $145.00 in 2020, and $155.00 in 2021. Chelsea Harris charged $170.00 in 2022, and $180.00 in 2023. Dashea King charged $145.00 in 2020. Elena Siamas charged $165.00 in 2021, and $170.00 in 2022. Jennifer Gutierrez charged $160.00 in 2020.

Kimberly Dutra charged $160.00 in 2020, $165.00 in 2021, and $170.00 in 2022. Lindsay Wilkinson and Mackenzie Riordan both charged $160.00 in 2022. Maria Rodriguez-Castro charged $160.00 in 2020, and $165.00 in 2021. Ex. at 29. 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 $764.56. This amount is comprised of a DocuSign retainer agreement, acquiring medical records, postage, and the Court’s filing fee. Ex. 22 at 1. These administrative costs are typical in Vaccine Program cases and were reasonably incurred in this matter. Petitioner has provided adequate documentation supporting all of her requested costs and Respondent also has not identified any particular costs as objectionable. Petitioner is therefore awarded the full amount of costs sought.

III. Conclusion In accordance with the foregoing, I hereby GRANT petitioner’s motion for attorneys’ fees and costs and find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as follows: Attorneys’ Fees Requested $37,993.70 (Reduction of Fees) - Total Attorneys’ Fees Awarded $37,993.70 Attorneys’ Costs Requested $764.56 (Reduction of Costs) - Total Attorneys’ Costs Awarded $764.56 Total Attorneys’ Fees and Costs $38,758.26 Accordingly, I award the following: a lump sum in the amount of $38,758.26, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and her attorneys, mctlaw,4 and requests the check be forwarded to mctlaw, 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.5 IT IS SO ORDERED.

/s/Thomas L. Gowen Thomas L. Gowen Special Master This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).

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