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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: March 26, 2021)
* * * * * * * * * * * * * *
HEATHER TUMOLO, * UNPUBLISHED
* No. 16-343V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 16, 2016, Heather Tumolo (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered a left shoulder
injury caused by her September 30, 2014 influenza vaccination. Petition at 1 (ECF No. 1). On
March 15, 2019, the undersigned issued a ruling on entitlement, finding that petitioner was
entitled to compensation. After the parties were unable to resolve damages, the undersigned
issued her damages decision on October 1, 2020. (ECF No. 99).
On December 10, 2020, petitioner filed an application for attorneys’ fees and costs.
Motion for Attorney Fees and Costs (ECF No. 103). Petitioner requests compensation in the
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.
amount of $47,935.22, representing $42,758.00 in attorneys’ fees and $5,177.22 in attorneys’
costs. Fees App. at 2. Pursuant to General Order No. 9, petitioner states she has not incurred any
costs related to the prosecution of their petition. Id. Respondent failed to file a response within
the allotted time, and petitioner did not file a reply. The matter is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $47,935.22.
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, because petitioner was awarded compensation, she 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
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
2
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, Mr.
Maximillian Muller: $255.00 per hour for work performed in 2015, $275.00 per hour for work
performed in 2016, $300.00 per hour for work performed in 2017, $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. These rates are consistent with what Mr. Muller has previously been awarded
for his Vaccine Program work, and the undersigned finds them to be reasonable herein.
ii. Reasonable Hours Expended
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that they adequately describe the work done on the case
and the amount of time spent on that work. None of the entries appear objectionable, nor has
respondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final
award of attorneys’ fees in the amount of $42,758.00.
b. Attorneys’ Costs
Petitioner requests a total of $5,177.22 in attorneys’ costs. This amount is comprised of
acquiring medical records, postage, the Court’s filing fee, and work performed by petitioner’s
medical expert, Dr. G. Russell Huffman. Fees App. at 17. The requested costs are typical of
Vaccine Program litigation and are reasonable in the undersigned's experience, and petitioner has
provided adequate documentation supporting them. Petitioner is therefore awarded the full
amount of costs requested.
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 $42,758.00
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $42,758.00
Attorneys’ Costs Requested $5,177.22
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $5,177.22
3
Total Attorneys’ Fees and Costs Awarded $47,935.22
Accordingly, the undersigned awards a lump sum in the amount of $47,935.22,
representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner
and her counsel, Mr. Maximillian Muller.
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