Swicki v. Secretary of Health and Human Services ( 2022 )


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  •     In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    (Filed: December 10, 2021)
    * * * * * * * * * * * * * *
    MARIA SWICKI,              *                                     UNPUBLISHED
    *                                     No. 17-1377V
    Petitioner,       *
    *                                     Special Master Dorsey
    v.                         *
    *                                     Attorneys’ Fees and Costs
    *
    SECRETARY OF HEALTH        *
    AND HUMAN SERVICES,        *
    *
    Respondent.       *
    * * * * * * * * * * * * * *
    Sylvia Chin-Caplan, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA., for petitioner.
    Traci R. Patton, U.S. Department of Justice, Washington, D.C., for respondent.
    DECISION ON ATTORNEYS’ FEES AND COSTS1
    On September 28, 2017, Maria Swicki (“petitioner”) filed a petition for compensation
    under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2
    (“Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine
    administration as a result of an influenza vaccine administered to her on October 3, 2014. On
    January 7, 2021, the undersigned issued a fact ruling on onset after conducting a fact hearing.
    (ECF No. 75). Thereafter, on February 24, 2021, petitioner filed a motion for a decision
    dismissing her petition. On February 25, 2021, the undersigned issued her decision dismissing
    the petition for insufficient proof. (ECF No. 82).
    1
    This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
    with the E-Government Act of 2002. 
    44 U.S.C. § 3501
     note (2012). This means the Decision will be available to
    anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
    to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
    18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
    is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
    filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
    Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id.
    2
    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.
    §§ 300aa.
    On September 27, 2021, petitioner filed an application for attorneys’ fees and costs.
    Motion for Attorney Fees and Costs (ECF No. 86). Petitioner requests compensation in the
    amount of $49,332.54, representing $46,362.40 in attorneys’ fees and $2,970.14 in costs. Fees
    App. at 1. Pursuant to General Order No. 9, petitioner warrants that she has not personally
    incurred any costs in pursuit of her claim. Id. Respondent filed his response on September 29,
    2021, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees
    and costs are met in this case.” Response at 2 (ECF No. 87). Petitioner did not file a reply
    thereafter. The matter is now ripe for disposition.
    For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
    awards a total of $49,332.54.
    I.      Discussion
    Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
    costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
    When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
    and costs “if the special master or court determines that the petition was brought in good faith
    and there was a reasonable basis for the claim for which the petition was brought.” Id. at
    §15(e)(1). In this case, although the petitioner was eventually dismissed, the undersigned does
    not doubt that the petition was filed in a good faith belief that petitioner’s vaccination caused
    her shoulder injury, and the matter had a reasonable basis to proceed as it did, eventually
    necessitating a fact hearing. Accordingly, petitioner is entitled to a final award of reasonable
    attorneys’ fees and costs.
    a. Reasonable Attorneys’ Fees
    The Federal Circuit has approved use of the lodestar approach to determine reasonable
    attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 
    515 F.3d 1343
    , 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
    initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
    expended on the litigation times a reasonable hourly rate.’” 
    Id. at 1347-58
     (quoting Blum v.
    Stenson, 
    465 U.S. 886
    , 888 (1984)). Then, the court may make an upward or downward
    departure from the initial calculation of the fee award based on other specific findings. Id. at
    1348.
    Counsel must submit fee requests that include contemporaneous and specific billing
    records indicating the service performed, the number of hours expended on the service, and the
    name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 
    85 Fed. Cl. 313
    , 316-18 (2008). Counsel should not include in their fee requests hours that are
    “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
    
    3 F.3d 1517
    , 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 
    461 U.S. 424
    , 434 (1983)). It
    is “well within the special master’s discretion to reduce the hours to a number that, in [her]
    experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
    special master may reduce a fee request sua sponte, apart from objections raised by respondent
    2
    and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
    Health & Human Servs., 
    86 Fed. Cl. 201
    , 209 (2009).
    A special master need not engage in a line-by-line analysis of a petitioner’s fee
    application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 
    102 Fed. Cl. 719
    , 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
    attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
    and Human Servs., 
    24 Cl. Ct. 482
    , 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests …
    [v]accine program special masters are also entitled to use their prior experience in reviewing fee
    application.” Saxton, 
    3 F. 3d at 1521
    .
    i. Reasonable Hourly Rates
    Petitioner requests the following hourly rates for the work of her counsel: for Ms. Sylvia
    Chin-Caplan, $414.00 per hour for work performed from 2017, $429.00 per hour for work
    performed in 2018, $445.00 per hour for work performed in 2019 and 2020, and $458.00 per
    hour for work performed in 2021; and for Mr. Timothy Mason, $225.00 per hour for work
    performed in 2017, $238.00 per hour for work performed in 2018, $247.00 per hour for work
    performed in 2019, $253.00 per hour for work performed in 2020, and $261.00 per hour for work
    performed in 2021. These rates are consistent with what counsel have previously been awarded
    for their Vaccine Program work and the undersigned finds them to be reasonable herein for work
    performed in the instant case.
    ii.     Reasonable Hours Expended
    In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
    master may take into account their overall sense of a case and may use estimates when reducing
    an award. 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). It is well
    established that an application for fees and costs must sufficiently detail and explain the time
    billed so that a special master may determine, from the application and the case file, whether the
    amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 
    18 Cl. Ct. 751
    , 760
    (1989); Rodriguez, 
    2009 WL 2568468
    . Petitioner bears the burden of documenting the fees and
    costs claimed. 
    Id. at *8
    .
    The undersigned has reviewed the submitted billing entries and finds the total number of
    hours billed to be reasonable. The billing entries accurately reflect the nature of the work
    performed and the undersigned does not find any of the entries to be objectionable. Respondent
    also has not indicated that he finds any of the entries to be objectionable either. Accordingly,
    petitioner is awarded final attorneys’ fees of $46,362.40.
    b. Attorneys’ Costs
    3
    Petitioner requests a total of $2,970.14 in attorneys’ costs. This amount is comprised of
    acquiring medical records, the Court’s filing fee, postage, and a retainer paid for review of
    medical records and a draft opinion from a medical expert, Dr. Ruben Oganesov. Fees App. at
    43-44. The undersigned has reviewed the requested costs and finds them to be reasonable and
    supported with appropriate documentation. Accordingly, the full amount of costs shall be
    awarded.
    II.      Conclusion
    Based on all of the above, the undersigned finds that it is reasonable compensate
    petitioner and her counsel as follows:
    Attorneys’ Fees Requested                                                    $46,362.40
    (Total Reduction from Billing Hours)                                              -
    Total Attorneys’ Fees Awarded                                                $46,362.40
    Attorneys’ Costs Requested                                                    $2,970.14
    (Reduction of Costs)                                                              -
    Total Attorneys’ Costs Awarded                                                $2,970.14
    Total Attorneys’ Fees and Costs Awarded                                      $49,332.54
    Accordingly, the undersigned awards a lump sum of $49,332.54 in attorneys’ fees
    and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Ms.
    Sylvia Chin-Caplan.
    In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
    Court SHALL ENTER JUDGMENT in accordance with this decision.3
    IT IS SO ORDERED.
    s/Nora Beth Dorsey
    Nora Beth Dorsey
    Special Master
    3
    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.
    4