Minsterman v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-991V
(not to be published)
WILLIAM MINSTERMAN, JR,
Chief Special Master Corcoran
Petitioner,
v. Filed: June 10, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Gary A. Butler, Massa Butler Giglione, Pittsburgh, PA, for Petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On July 11, 2018, William Minsterman, Jr. 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 he suffered Guillain-Barré syndrome as a result of
an influenza vaccine he received on October 6, 2015. (Petition at 1-2). On November 19,
2019, a decision was issued awarding compensation to Petitioner based on the parties’
stipulation. (ECF No. 31.)
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 references 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 17, 2020
(ECF No. 35), requesting a total award of $37,360.31 (representing $35,813.83 in fees
and $1,546.48 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that Petitioner incurred no out-of-pocket expenses. (ECF No. 35-3).
Respondent reacted to the motion on April 28, 2020, indicating that he is satisfied that the
statutory requirements for an award of attorney’s fees and costs are met in this case and
defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 36).
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. at 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
ATTTORNEY FEES
Petitioner requests the following rates for the attorneys of Massa Butler Giglione:
Rudolph Massa at the rate of $400 per hour for time billed in 2016; Gerald Butler at the
rate of $400 per hour for time billed from 2018 – 2020; and $140 per hour for time billed
by paralegals. (ECF No. 35-1). I find adjustments are needed to all rates requested.
First, the requested rate for Mr. Massa exceeds the previously-approved rate
($312 per hour) for time billed in 2016. See Henderson v. Sec’y of Health & Human Servs.,
No. 18-0193V, 2019 WL 7482155 (Fed. Cl. Spec. Mstr. Nov. 26, 2019); Olsavicky v. Sec’y
of Health & Human Servs., No 17-1806V, 2020 WL 1670707 (Fed. Cl. Spec. Mstr. Mar 4,
2020). Additionally, the paralegal rate of $140 per hour exceeds the awarded rates of
$130 per hour for 2016 and $135 per hour for 2017. See Henderson; Olsavicky. I
accordingly reduce the rates for Mr. Massa and the paralegals to the previously awarded
rates, reducing the overall request for attorney fees by $126.50. 3
Second, the rates requested for attorney Gerard Butler are also too high. Mr. Butler
has been a licensed attorney since 1997, placing him in the range of attorneys with 20-
30 years’ experience based on the OSM Attorney’s Forum Rate Schedule. (ECF No. 35
at 2). Although the requested rate is within the appropriate range for attorneys of
comparable overall experience, I find it necessary to reduce the rate due to Mr. Butler’s
lack of specific experience in the Vaccine Program. 4 I thus find that the rates of $380 per
hour for 2018, and $390 per hour for 2019 to be more appropriate rates for Mr. Butler.
But for time billed in 2020, as Mr. Butler has gained experience practicing in the Program,
I will award the requested rate of $400 per hour. This reduces the overall amount of
recoverable fees by $1,333.00. 5
ATTORNEY COSTS
Petitioner requests $1,546.48 in overall costs. (ECF No. 35 at 2). This amount is
comprised of obtaining medical records and the Court’s filing fee. I have reviewed all of
3 This amount consists of ($400 - $312 = $88 x 0.50 hrs = $44) + ($140 - $130 = $10 x 2 hrs = $20) + ($140
- $135 = $5 x 12.50 hrs = $62.50) = $126.50.
4 This is Mr. Butler’s first case in the Vaccine Program. He currently has multiple cases still pending before
the Court.
5This amount consists of ($400 - $380 = $20 x 55.35 hrs = $1,107) + ($400 - $390 = $10 x 22.6 hrs = $226)
= $1,333.00.
3
the documentation provided for the requested costs, find them to be reasonable, and
award the amount in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and
costs. I award a total of $35,900.81 (representing $34,354.33 in attorney’s fees and
$1,546.48 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. 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief 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