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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 23, 2020
* * * * * * * * * * * * * *
JAMES WRIGHT, * UNPUBLISHED
*
Petitioner, * No. 15-815V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Camille M. Collett, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On January 8, 2020, James Wright (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 65). For the reasons
discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of
$106,231.59.
I. Procedural History
On July 31, 2015, Petitioner filed a petition in the National Vaccine Injury Compensation
Program.2 Petitioner alleged that as a result of receiving the influenza (“flu”) vaccine on September
28, 2012, he suffered Guillain-Barré syndrome (“GBS”) and polymyalgia rheumatica (“PMR”).
Petition at 1. On November 22, 2019, the parties filed a stipulation, which I adopted as my Decision
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I intend to post this Ruling on the United States Court of Federal Claims' website. This means the Ruling 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. Because this unpublished ruling contains a reasoned explanation for the action in this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).
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.A. § 300aa.
awarding compensation on the same day. Decision, ECF No. 61.
On January 8, 2020, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for his attorney, Mr. Jeffrey Pop, in the total amount of $106,231.59,
representing $48,364.20 in attorneys’ fees and $57,867.39 in costs. Fees App. at 5-7. Pursuant to
General Order No. 9, Petitioner warrants that he not personally incurred any costs in pursuit of this
litigation. Fees App. Ex. 8. Respondent reacted to the fees motion on January 22, 2020, indicating
that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case” and recommending that “the Court exercise its discretion and determine a
reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 66). Petitioner did not
file a reply. The matter is now ripe for adjudication.
II. Analysis
Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation, but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). In this case, Petitioner was awarded
compensation pursuant to a stipulation, and therefore he is entitled to an award of reasonable
attorneys’ fees and costs.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
Petitioner requests the following rates of compensation for work performed by her
attorneys: for Mr. Jeffrey Pop, $400.00 per hour for work performed in 2015, $420.00 per hour for
work performed in 2016-2018, and $453.00 per hour for work performed in 2019; for Ms. Kristina
Grigorian, $235.00 per hour for work performed in 2015, $250.00 per hour for work performed in
2016-2018, and $292.00 per hour for work performed in 2019; and for Ms. Alexandra Pop, $225.00
per hour for work performed in 2015-2018 and $262.00 per hour for work performed in 2019. Fees
App Ex. 2 at 2. The rates requested for the attorneys and law clerks in this case are consistent with
what I and other special masters have awarded Mr. Pop’s firm for their work on Vaccine Program
cases. See Morrison v. Sec’y of Health & Human Servs., No. 16-526V, 2017 WL 6889720 (Fed.
Cl. Spec. Mstr. Nov. 28, 2018); Contreras-Rodriguez v. Sec’y of Health & Human Servs., No. 05-
626V, 2018 WL 3989507 (Fed. Cl. Spec. Mstr. July 2, 2018). Accordingly, no adjustment to the
requested rates is necessary.
Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter appear to be reasonable. The entries are reasonable and accurately describe the work
being performed and the length of time it took to perform each task. Respondent also has not
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identified any particular entries as being objectionable. Therefore, Petitioner is entitled to final
attorneys’ fees of $48,364.20.
b. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $57,867.39. This amount consists of acquiring medical records
and medical literature, mailing costs, travel costs, and the work petitioner’s experts, Drs. Lawrence
Steinman and S. Sohail Ahmed. I have reviewed the submitted documentation and billing records
and I find that the work performed by Petitioner’s experts is reasonable and that all costs have been
supported with adequate documentation. Accordingly, Petitioner is entitled to the full amount of
costs sought.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $48,364.20
(Reduction of Fees) -
Total Attorneys’ Fees Awarded $48,364.20
Attorneys’ Costs Requested $57,867.39
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $57,867.39
Total Attorneys’ Fees and Costs $106,231.59
Accordingly, I award a lump sum in the amount of $106,231.59, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and his attorney, Mr. Jeffrey Pop.3
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).
3
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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