# WHITESELL v. SECRETARY OF HEALTH AND HUMAN SERVICES

> United States Court of Federal Claims · January 4, 2024

URL: https://www.frixlaw.com/law-library/cases/10736546

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** January 4, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Christian J. Moran
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS

**********************
CHEYENNE WHITESELL *
on behalf of her deceased minor child, *
M.W., *
* No. 17-1557V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 16, 2023
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *

Patricia A. Finn, Patricia Finn, P.C., Pearl River, N.Y., for Petitioner;
Benjamin P. Warder, United States Dep’t of Justice, Washington, DC, for
Respondent.

UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1

Pending before the Court is petitioner Cheyenne Whitesell’s (“petitioner”)
motion for final attorneys’ fees and costs. She is awarded $50,922.50.
* * *

1
Because this published decision contains a reasoned explanation for the action in this
case, the undersigned is 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 posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access.
On October 18, 2017, Cheyenne Whitesell filed for compensation under the
Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34,
on behalf of her deceased child, M.W. Ms. Whitesell claims that the hepatitis A,
influenza (“flu”), measles, mumps, and rubella (“MMR”), and varicella vaccines
her son, M.W., received on October 19, 2015, caused his death on October 22,
2015. The parties submitted reports from experts and argued their positions
through legal briefs. On July 12, 2022, the undersigned issued his decision
dismissing petitioner’s case for insufficient proof. 2022 WL 3081327.

On February 8, 2023, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $54,467.90 and
attorneys’ costs of $9,775.00 for a total request of $64,24.90. Fees App. at 1.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of his case. Fees App at 23. On
February 22, 2023, respondent filed a response to petitioner’s motion. Respondent
argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role
for respondent in the resolution of a request by a petitioner for an award of
attorneys’ fees and costs.” Response at 1. Respondent adds, however that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Id at 2. Additionally, he recommends “that the Court exercise
its discretion” when determining a reasonable award for attorneys’ fees and costs.
Id. at 3. Petitioner did not file a reply thereafter.

* * *

Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful the undersigned finds that good
faith and reasonable basis existed throughout the matter. Respondent has also
indicated that he is satisfied that the claim has good faith and reasonable basis.
Respondent’s position greatly contributes to the finding of reasonable basis. See
Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of
matters the parties present.”). A final award of reasonable attorneys’ fees and costs
is therefore proper in this case and the remaining question is whether the requested
fees and costs are reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
2
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.

In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)

A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.

Petitioner requests the following hourly rates for the work of counsel, Ms.
Patricia Finn, $375.00 per hour for work performed in 2016, $383.00 per hour for
work performed in 2017, $396.00 per hour for work performed in 2018, $405.00
per hour for work performed in 2019, $422.00 per hour for work performed in
2020, and $444.00 per hour for work performed in 2021, and 2022. These rates
require further review because they are not consistent with what Ms. Finn has
previously been awarded for her Vaccine Program work. See Bohn on behalf of
G.B. v. Sec'y of Health & Human Servs., No. 16-265V, 2023 WL 2364831 (Fed.
Cl. Spec. Mstr. Mar. 6, 2023) (awarding Ms. Finn $316 in 2015, $328 in 2016,
$340 in 2017, $352 in 2018, $365 in 2019, $378 in 2020, $400 in 2021, and $422
in 2022); Yates v. Sec'y of Health & Human Servs., No. 14-560V, 2022 WL
2441324 (Fed. Cl. Spec. Mstr. June 9, 2022) (awarding Ms. Finn $310 in 2014,
$316 in 2015, $328 in 2016, $340 in 2017, $352 in 2018, $365 in 2019, and $378
in 2020). Accordingly, Ms. Finn's rates are reduced to the following consistent
with her previously awarded rates; $328.00 per hour for work performed in 2016,
3
$340.00 per hour for work performed in 2017, $352.00 per hour for work
performed in 2018, $365.00 per hour for work performed in 2019, $378.00 per
hour for work performed in 2020, $400,00 per hour for work performed in 2021
and $422.00 per hour for work performed in 2022. Application of these rates
results in a reduction of attorney’s fees in the amount of $5,320.40.
B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and finds the
request to be largely reasonable. However, the undersigned shall reduce some of
the hours Ms. Finn billed for revisions to her brief. As the undersigned noted in his
decision dismissing the petition, petitioner’s initial briefing was lacking in content
and presentation and deficient in several aspects, including failure to clearly
distinguish the separate Althen prongs. Decision at 4. Ms. Finn is an experienced
Vaccine Program practitioner and it is unlikely that a paying client would want to
reimburse her for time revising a deficient pleading not once but twice. The
undersigned shall reduce the final award of fees by $4,000.00, representing 10
hours billed at $400.00 per hour. Therefore, petitioner is awarded final attorneys’
fees in the amount of $45,147.50.

C. Costs Incurred

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), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$9,775.00 in attorneys’ costs. This amount is comprised of the Court’s filing fee,
and work performed by experts Dr. Laurel Waters and Dr. Alan Levin. Fees App.
at 15. While most of the requested costs appear reasonable, Dr. Levin’s work
requires additional scrutiny and reduction.
Although the total requested for Dr. Levin’s work ($6,000.00, representing
15 hours billed at $400.00 per hour) is fairly modest for expert work, the lack of
quality in Dr. Levin’s reports means that even this amount is too high. As the
undersigned previously noted, although Dr. Levin is board-certified in
immunology, he does not currently practice immunology, choosing to primarily

4
practice law instead. As noted, his lack of current medical practice has contributed
to criticism of his opinions from several special masters in the Vaccine Program.
Decision at 5-7. In the instant case, Dr. Levin’s proposed theories were lacking in
support from medical literature and ultimately were not persuasive or helpful to
petitioner’s case. Upon review, a reasonable amount for Dr. Levin’s work in this
case is $2,000.00. 2

For the remainder of the costs, petitioner has supported all requested costs
with documentation. The undersigned notes that the proposed rate for Dr. Waters
($500.00 per hour) has been previously accepted by this Court and appears
reasonable for the work performed in the instant case, and her total hours billed
(6.5) are also reasonable for reviewing autopsy reports and slides and
communicating with counsel. See Yates v. Sec’y of Health & Human Servs., No.
14-560V, 2022 WL 2441324, at *3 (Fed. Cl. Spec. Mstr. Jun. 9, 2022).
Accordingly, petitioner is awarded final costs of $5,775.00.
D. 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 $50,922.50 (representing
$45,147.50 in attorneys’ fees and $5,775.00 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Ms.
Patricia A. Finn. In the absence of a motion for review filed pursuant to RCFC
Appendix B, the clerk of the court is directed to enter judgment herewith.3

IT IS SO ORDERED.

s/Christian J. Moran
Christian J. Moran
Special Master

2
Dr. Levin’s work was of such poor quality that a reasonable outcome is not to
compensate for his work at all, and Ms. Finn is cautioned that continued use of Dr. Levin as an
expert may result in total non-reimbursement for his work.
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.

5

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10736546. Public record. Not legal advice.