Sanchez-Aldana v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1879V
(not to be published)
*************************
ANDREW SANCHEZ-ALDANA and *
KARINA SANCHEZ-ALDANA, *
on behalf of V.S.A., a minor, *
* Special Master Corcoran
*
Petitioners, * Filed: July 31, 2019
*
v. *
* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
*
Respondent. *
*
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John R. Howie, Jr., Howie Law, PC, Dallas, TX, for Petitioner.
Althea W. Davis, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On December 5, 2017, Andrew and Karina Sanchez-Aldana filed a petition on behalf of
their minor child, V.S.A., seeking compensation under the National Vaccine Injury Compensation
Program (“Vaccine Program”).2 Petitioners alleged that V.S.A. suffered from intussusception as a
result of receiving the rotavirus vaccine on December 5, 2014. The parties filed a stipulation for
award on April 5, 2019, which I adopted as my Decision awarding damages on the same day. (ECF
No. 23).
1
Although I have not designated this Decision for publication, it will be made available 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). 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 the public Decision.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Petitioners have now filed a motion requesting final attorney’s fees and costs, dated April
25, 2019 (ECF No. 27) (“Fees App.”), requesting a total award of $19,672.51 (representing
$19,175.70 in fees, plus $496.81 in costs). Fees App. at 1. Pursuant to General Order No. 9,
Petitioners warrant that they have not personally incurred any costs in pursuit of this litigation.
Fees App. Ex. 4 at 1. Respondent reacted to the motion on May 9, 2019, 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 to my discretion to determine the amount to be awarded. Response, ECF No.
29, at 2-3. Petitioners filed a reply on May 9, 2019, stating that “a review of Respondent’s
Response reflects that Respondent has made no specific objection to Petitioners’ Application;
therefore, Petitioners do not intend to file a substantive reply to Respondent’s response.” Reply,
ECF No. 30, at 1.
For the reasons set forth below, I hereby GRANT Petitioner’s motion in part, awarding
final attorney’s fees and costs in the amount of $19,471.71.
ANALYSIS
Vaccine Program attorneys are entitled to a fees award in successful cases like this one.
Determining the appropriate amount of that award is a two-part process. The first part involves
application of the lodestar method – “multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d
1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second
part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered
3
An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999) ).
2
applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,
461 U.S. 424, 429-37 (1983).
Petitioners request the following rates of compensation for their attorney, Mr. John Howie:
$363.00 per hour for work performed in2017, $383.00 per hour for work performed in 2018, and
$395.00 per hour for work performed in 2019. Fees App. at 1. Petitioners also request rates ranging
from $50 per hour to $148.00 per hour for paralegal work, depending on the individual paralegal
and the year the work was performed. Id. at 1-2. I find the rates requested to be consistent with
what Mr. Howie has previously been awarded for his Vaccine Program work, and also consistent
with the Office of Special Masters’ fee schedules.4
I have reviewed the billing entries and find them to be largely reasonable. The only
reduction necessary is for time billed by Debbie Lupo, one of Mr. Howie’s paralegals. Ms Lupo
consistently billed 0.3 hours for review of mundane court filings, such as scheduling orders, the
notice of assignment, and notice of appearance by Respondent’s counsel. Fees App. Ex. 2 at 8. In
my experience, this is an excessive amount of for review of these such filings. By comparison, one
of Mr. Howie’s other paralegals only billed 0.1 hours for review of a scheduling order, a more
reasonable amount of time for this task. Id. at 9. I will therefore reduce Ms. Lupo’s 2017 hours
billed by 0.8 and her 2018 hours billed by 0.6, resulting in a reduction of $200.80.5 Petitioners are
thus awarded final attorney’s fees of $18,974.90.
I will next turn to costs. Just as they are required to establish the reasonableness of
requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining
medical records and expert time incurred while working on a case. Fester v. Sec’y of Health &
Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).
When petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding compensation. See,
4
The 2015–2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf. The 2018 Fee
Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202018.p
df. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.p
df. The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
5
(0.8 hours * $140.00) + (0.6 hours * $148.00) = $200.80.
3
e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4
(Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioners request $496.81 in overall costs. Fees. App. at 1. This amount is comprised of
obtaining medical records, postage charges, and the Court’s filing fee. I have reviewed all of the
requested costs and find them to be reasonable, and Petitioners have provided adequate
documentation supporting them. Accordingly, Petitioners are entitled to the full amount of costs
requested.
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 $19,471.71 as a lump sum in the form of a check
jointly payable to Petitioners and their counsel, Mr. John Howie, Jr., Esq. 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.6
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
6
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
4