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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-370V
(not to be published)
LORRAINE FLEAGLE,
Chief Special Master Corcoran
Petitioner,
v. Filed: May 21, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Lawrence R. Cohan, Saltz, Morgeluzzi & Bendesky, Philadelphia, PA, for Petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On March 11, 2019, Lorraine Fleagle filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration as a result of an influenza vaccination administered on September 17,
2014. (Petition at 1). On August 31, 2020, a decision was issued awarding compensation
to Petitioner based on the Respondent’s proffer. (ECF No. 35).
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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). 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.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated April 20, 2021
(ECF No. 39), requesting a total award of $20,909.08 (representing $19,289.30 in fees
and $1,619.78 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (Id. at 33). Respondent
reacted to the motion on May 4, 2021, indicating that he is satisfied that the statutory
requirements for an award of attorney’s fees and costs are met in this case, and deferring
resolution of the amount to be awarded to my discretion. (ECF No. 40). Petitioner did not
file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate, for the reason listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). 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
& 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 & 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
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
2
ATTORNEY FEES
Petitioner requests compensation for attorney Lawrence Cohan at the following
rates: $440 per hour for time billed in 2018; $450 per hour for time billed in 2019; and
$484 per hour for time billed in 2020; and $509 per hour for time billed in 2021. (ECF No.
39 at 1). Some of these rates require adjustment.
In particular, Mr. Cohan has previously been awarded the rates of $470 per hour
for time billed in 2020, and $484 per hour for time billed in 2021 – in each case, less than
he requests herein. See Stout v. Sec’y of Health & Human Servs., No. 17-1077V, 2020
WL 522937 (Fed. Cl. Spec. Mstr. Aug. 11, 2020); Shelly v. Sec’y of Health & Human
Servs., No. 18-0519V, 2020 WL 5637796 (Fed. Cl. Spec. Mstr. Aug. 21, 2020); Randolph
v. Sec’y of Health & Human Servs., No. 18-1231V, 2020 WL 5909092, (Fed. Cl. Spec.
Mstr. Sept. 8, 2020); Green v. Sec’y of Health & Human Servs., No. 16-08V, Slip Op. 62,
(Fed. Cl. Spec. Mstr. February 23, 2021); Lesher v. Sec’y of Health & Human Servs., No.
17-1076V, Slip Op 58 (Fed. Cl. Spec. Mstr. Mar. 17, 2021). I agree with the reasoning
from these prior cases, and therefore reduce Mr. Cohan’s rates to $470 per hour for time
billed in 2020 and $484 per hour for time billed in 2021. This results in a reduction of
$235.50. 3
The requested rates from 2018 and 2019, however, are reasonable and consistent
with what Mr. Cohan has previously received. I therefore will employ those rates in
calculating fees – and since I am making no changes based on determinations about the
reasonableness of work performed, only the aforementioned reduction for 2020 and 2021
time will be made to the total fees requested.
ATTORNEY COSTS
Petitioner requests $1,619.78 in overall costs. (ECF No. 39 at 2). This amount is
comprised of obtaining medical records, shipping costs and reports and the Court’s filing
fee. I have reviewed all of the requested costs and find them to be reasonable and shall
award it in full.
3
This amount consists of ($484 - $470 = $14 x 12 hrs = $168.00) + ($509 - $484 = $25 x 2.7 hrs =
$67.50) = $235.50.
3
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $20,673.58 (representing $19,053.80 in fees and $1,619.78 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
4