Krupp v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: December 22, 2023 * * * * * * * * * * * * * * UNPUBLISHED ANNA KRUPP, * No. 19-1501V * Special Master Horner Petitioner, * * v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Robert J. Krakow, Law Office of Robert J. Krakow, PC, New York, NY, for Petitioner.

Emilie Williams, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 27, 2019, Anna Krupp (‘petitioner”) filed a claim under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012)2, alleging that she suffered postural orthostatic tachycardia syndrome (“POTS”) as a result of the human papillomavirus (“HPV”) vaccine she received on September 30, 2016. (ECF No. 1.) On January 20, 2023, petitioner filed a Motion for a Decision Dismissing her Petition. (ECF No. 65.) I entered a decision granting petitioner’s motion and dismissing the petition on January 23, 2023. (ECF No. 66).

On August 22, 2023, petitioner filed an application for attorneys’ fees and costs. (ECF No. 73) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $59,877.07, representing $54,992.15 in attorneys’ fees and $4,964.92 in costs. (ECF No. 74 at Ex. 5). Pursuant to General Order No. 9, petitioner has indicated that she has not personally incurred any costs in 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims’ website in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).

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). pursuit of this litigation. Fees App. Ex. 4. Respondent did not file a response to petitioner’s motion.

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, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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 894-95. 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. Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.

a. Hourly Rates

Petitioner requests the following rates of compensation for her attorney, Mr. Robert Krakow; the rate of $464.00 per hour for work performed in 2019, $484.00 per hour for work performed in 2020, $509.00 per hour for work performed in 2021, $525.00 per hour for work performed in 2022; and $553.00 per hour for work performed in 2023 These rates are consistent with what counsel have previously been awarded for his Vaccine Program work and the undersigned finds them to be reasonable herein.

b. Hours Expended 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. While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

Upon review, the overall number of hours billed appears largely reasonable with the exception of the time expended on preparing the instant motion for attorneys’ fees and costs. Mr. Krakow’s billing records indicate he expended 21.6 hours preparing the motion, which contains pages briefing the background of the case as well as why the case was filed in good faith and reasonable basis. While I appreciate that counsel addressed the potential reasonable basis issue proactively, the amount of time billed is excessive given the issues presented in the motion. Counsel is an experienced Vaccine Program attorney and therefore had the knowledge and skill to address the issue more efficiently.

I will therefore credit counsel for six hours for preparing the motion for attorneys’ fees and costs, which in my experience would be a reasonable amount of time to collect all the information needed to provide a complete motion while still being able to briefly address any potential reasonable basis concerns. This results in a reduction of $8,626.80. Petitioner is therefore awarded final attorneys’ fees of $46,365.35.

c. Attorneys’ 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 $4,954.92 in attorneys’ costs. This amount is comprised of acquisition of medical records, the Court’s filing fee, and postage costs. ECF No. 74 Ex. 3. These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought.

II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the billing records and costs in tse and finds that petitioner’s request for fees and costs is reasonable.

I find it reasonable to compensate petitioner and her counsel as follows: a lump sum in the

amount of $51,320.27, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Mr. Robert J. Krakow.

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/Daniel T. Horner Daniel T. Horner 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).