Edwards v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal
Claims
OFFICE OF SPECIAL MASTERS
**********************
CLARETTA EDWARDS, *
* No. 19-338V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 29, 2021
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner;
Camille M. Collett, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Claretta Edwards’ motion for final
attorneys’ fees and costs. She is awarded $21,049.42.
* * *
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
On March 5, 2019, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccine she received on October 3, 2017,
which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her to
suffer a shoulder injury related to vaccine administration. Petitioner further alleged
that she suffered the residual effects of this injury for more than six months. On
August 19, 2020, the parties filed a stipulation, which the undersigned adopted as
his decision awarding compensation on August 21, 2020. 2020 WL 5543738 (Fed.
Cl. Spec. Mstr. Aug. 21, 2020).
On September 9, 2020, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $15,120.10 and
attorneys’ costs of $6,754.32 for a total request of $21,874.42. Fees App. at 2.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of her case. Id. On September 22,
2020, respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id at 2. Additionally, he recommends “that the Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Because petitioner received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
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required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates of compensation for the work of her
counsel: for Ms. Amy Senerth: $250.00 per hour for work performed in 2019, and
$275.00 per hour for work performed in 2020; and for Mr. Max Muller, $317.00
per hour for work performed in 2018, $325.00 per hour for work performed in
2019, and $350.00 per hour for work performed in 2020. The undersigned has
reviewed the requested rates and finds them to be reasonable and consistent with
what special masters have previously awarded to petitioner’s counsel at Muller
Brazil, LLP for their Vaccine Program work. See, e.g. Christopher v. Sec’y of
Health & Human Servs., No. 18-1210V, 2020 WL 8459681 (Fed. Cl. Spec. Mstr.
Nov. 30, 2020); Rael v. Sec’y of Health & Human Servs., No. 16-1462V, 2020
WL 3495953 (Fed. Cl. Spec. Mstr. May 29, 2020). Accordingly, the requested
hourly rates are reasonable.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and on the
whole, the request is reasonable. However, a minor amount of time was billed for
administrative tasks such as filing documents by paralegals and attorneys billing
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time to direct the filing of those records. See Guerrero v Secʼy of Health & Human
Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 22,
2015) (citing cases), mot. for rev. den’d in relevant part and granted in non-
relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-1753 (Fed.
Cir. Apr. 22, 2016).
Based upon the undersigned’s overall perception of the time billed after
review, a reduction of $250.00 is appropriate in order to achieve “rough justice.”
See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL
6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S.
826, 838 (2011). In sum, petitioner is awarded final attorneys’ fees of $14,870.10.
C. Costs Incurred
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), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$6,754.32 in attorneys’ costs. This amount is comprised of acquiring medical
records, the Court’s filing fee, postage, and work performed by petitioner’s
medical expert, Dr. Naveed Natanzi. Petitioner has provided adequate
documentation supporting all of the requested costs. However, the undersigned
notes that in the instant case, Dr. Natanzi billed at an hourly rate of $475.00 per
hour. This exceeds what he has previously been awarded by other special masters
in the Vaccine Program. See Deberry v. Sec'y of Health & Human Servs., No. 17-
415V, 2020 WL 1893528 (Fed. Cl. Spec. Mstr. Mar. 9, 2020) (compensating Dr.
Natanzi’s work at $425.00 per hour); Massucci v. Sec'y of Health & Human Servs.,
No. 17-1345V, 2020 WL 5407840 (Fed. Cl. Spec. Mstr. Aug. 19, 2020) (same).
Petitioner also has not submitted any information addressing why an increase to
Dr. Natanzi’s rate would be appropriate in the instant case.
Based on all of the above, an hourly rate of $425.00 is more appropriate for
Dr. Natanzi’s work in this case. Application of this rate results in a reduction of
$575.00. Petitioner is therefore awarded final costs of $6,179.32
E. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $21,049.42 (representing
$14,870.10 in attorneys’ fees and $6,179.32in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Ms. Amy
Senerth.
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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.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
5