Gose v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-461V
(not to be published)
*************************
HUGH GOSE, *
* Special Master Corcoran
*
Petitioner, * Filed: June 25, 2019
*
v. *
* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
*
Respondent. *
*
*************************
Amber D. Wilson, Maglio Christopher and Toale, PA, Washington, DC, 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 March 31, 2017, Hugh Gose (“Petitioner”) filed a petition seeking compensation under
the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that
he suffered from Guillain-Barré syndrome (“GBS”) as a result of receiving the influenza (“flu”)
vaccine on September 18, 2015. The parties filed a proffer on February 5, 2019, which I adopted
as my Decision awarding damages on February 6, 2019. (ECF No. 35).
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”).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated March
25, 2019 (ECF No. 40) (“Fees App.”), requesting a total award of $32,812.14 (representing
$31,059.60 in fees, plus $1,752.54 in costs). Fees App. at 2. Pursuant to General Order No. 9,
Petitioner warrants that he has not personally incurred any costs in pursuit of this litigation. Fees
App. Ex. 3. Respondent reacted to the motion on April 8, 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. 41, at 2-3.
Petitioner filed a reply on April 8, 2019, reiterating his belief that the requested amount of fees and
costs is reasonable. Reply, ECF No. 42, at 4-5.
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding final
attorney’s fees and costs in the amount of $32,174.54.
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
applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,
461 U.S. 424, 429-37 (1983).
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
Petitioner requests the following rates of compensation for his attorneys: for Ms. Amber
Wilson, $308.00 per hour for work performed in 2017-2018, and $323.00 per hour for work
performed in 2019; for Ms. Anne Toale, $378.00 per hour for work performed in 2017 and $402.00
per hour for work performed in 2018; for Mr. Altom Maglio, $362.00 per hour for work performed
in 2017 and $381.00 per hour for work permed in 2018, and for Ms. Diana Stadelnikas, $372.00
per hour for work performed in 2017. Fees App. Ex. 1 at 24. Petitioner also requests rates between
$135.00 and $154.00 per hour for paralegal work, depending on the paralegal and the year the
work was performed. Id.These rates are consistent with what I and other special masters have awarded Maglio
Christopher and Toale attorneys and staff for their work over the respective years, and also
consistent with the Office of Special Masters’ fee schedule.4 The only adjustment required is to
Ms. Wilson’s requested rate for 2017. Previously, Ms. Wilson has been awarded $290.00 per hour
for work performed in 2017. See Waldorf v. Sec’y of Health & Human Servs., No. 17-758V, 2019
WL 1796137, at *2 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). No persuasive basis has been offered in
the fee application to depart from that prior determination. The submitted billing record reflects
that Ms. Wilson billed 8.7 hours in 2017. Fees App. Ex. 1 at 24. Accordingly, I shall reduce the
final award of attorney’s fees by $156.60.5
Minor issues with the hours expended on this matter by paralegals, as reflected in the billing
entries, also necessitate a reduction in the total fees award. Such issues include time spent by
paralegals on administrative tasks (such as receiving and preparing records to be reviewed by an
attorney or law clerk), duplicative review of filings that were already reviewed by an attorney,
excessive time billed to file documents and exhibits, and downloading filings to update the case
folder. See generally Fees App. Ex. 1. Additionally, 1.6 hours was spent on correspondence with
UPS over resolving an issue with a lost request for medical records, when preparation of a new
request for medical records only took 0.2 hours. Id. at 15. For these reasons, I will reduce the
amount billed by paralegals by 5 percent, resulting in a reduction of $481.00.6 Petitioner is
therefore entitled to final attorney’s fees of $30,422.00.
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
($308.00 per hour requested - $290.00 per hour awarded) * 8.7 hours = $156.60.
6
$9,620.00 billed by paralegals x 0.05 = $481.00. Fees App. at 24.
3
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,
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).
Petitioner requests $1,752.54 in overall costs. This amount is comprised of obtaining
medical records, postage charges, and costs incurred for travel by petitioner’s counsel to meet with
petitioner. Fees App. Ex. 2. I have reviewed all of the requested costs and find them to be
reasonable, and Petitioner has provided adequate documentation supporting them. Accordingly,
Petitioner is 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 $32,174.54 as a lump sum in the form of a check
jointly payable to Petitioner and his counsel, Ms. Amber Wilson, 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.7
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
7
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