Opinion

Maxwell v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Jan 31, 2025
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 33.9%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1877V

MICHAEL MAXWELL,

Chief Special Master Corcoran

Petitioner,

v. Filed: December 30, 2024

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Alison Haskins, Siri & Glimstad, LLP, Aventura, FL, for Petitioner.

Eleanor Hanson, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On September 21, 2021, Michael Maxwell 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 (“GBS”) as

defined by the Vaccine Injury Table, or, in the alternative a caused-in-fact injury, after

receiving an influenza vaccine on October 26, 2018. Petition at ¶¶ 1, 21-22. On February

27, 2024, I issued a decision awarding damages following briefing by the parties. ECF

No. 41.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at

https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of

2002. 44 U.S.C. § 3501 note (2018) (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 (2018).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award

of $100,751.08 (representing $99,342.80 for fees $1,408.28 for costs). Petitioner’s Motion

for Attorney’s Fees and Costs, filed May 15, 2024, ECF No. 51. In accordance with

General Order No. 9, Petitioner filed a signed statement indicating that she incurred no

out-of-pocket expenses. ECF No. 51-7.

Because Petitioner’s counsel changed law firms while still attorney of record in this

case, it is important to note that $96,508.90 in fees and $1,396.79 in costs were incurred

while Ms. Haskins was at her prior law firm: Maglio, Christopher, & Toale (“MCT”), PA

ECF No. 51 at 1-2. Ms. Haskins’s current law firm, Siri & Glimstad, LLC, will reimburse

MCT for the fees and has already reimbursed the costs. Id.

Respondent reacted to the motion on May 16, 2024, indicating that he is satisfied

that the statutory requirements for an award of attorney’s fees and costs are met in this

case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s

Response to Motion at 2-3, 3 n.2, ECF No. 52.

I have reviewed the billing records submitted with Petitioner’s request and find a

reduction in the amount of fees and costs to be awarded appropriate, for the reason stated

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).

2

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. 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.

ATTORNEY FEES

The rates requested for work performed through the end of 2024 are reasonable

and consistent with our prior determinations, and will therefore be adopted.

Regarding the number of hours billed, I deem the total amount of time devoted to

briefing severity and damages to be excessive. See Petitioner’s Motion for Findings of

Fact and Conclusions of Law Regarding Entitlement to Compensation and Damages, filed

Nov. 7, 2022, ECF No. 31; Petitioner’s Motion for Findings of Fact and Conclusions of

Law Regarding Damages, filed Sept. 21, 2023, ECF No. 39; Petitioner’s Reply to

Respondent’s Brief on Damages, filed Oct. 30, 2023, ECF No. 43. Petitioner’s counsel

expended approximately 53.6 hours drafting the motion regarding entitlement and

damages, 18.9 hours drafting a second motions regarding damages, and 9.8 hours

drafting the reply damages brief, totaling 82.33 hours. ECF No. 51-3 at 18-24.

My above calculation does not include time spent communicating with Petitioner

and preparing additional supporting documentation such as affidavits or signed

declarations, which is being awarded in full. See, e.g., ECF No. 51-3 at 20-21 (entries

dated 9/14/22 and 11/7/22).

It is unreasonable for counsel to spend so much time briefing the issues of

entitlement and damages in this case, even considering the three instances of briefing

were needed. I have identified numerous cases (which may reasonably be compared to

3 These totals are calculated as follows: 54.2 hours billed on 8/11/22, 8/12/22, 8/22/22, 8/23/22, 8/24/22,

8/25/22, 8/30/22, 8/31/22, 9/8/22, 11/1/22, 11/3/22, 11/4/22, 11/5/22, 11/6/22, 11/7/22, and 12/27/22, at a

rate of $460 by Alison Haskins; and 28.1 hours billed on 8/15/23, 8/16/23, 9/12/23, 9/13/23 (two entries),

9/14/23, 9/21/23, 10/23/23, 10/25/23, 10/26/23, and 10/30/23, at a rate of $492 by Alison Haskins. ECF No.

51-3 at 18-24.

3

time spent in this matter), 4 in which attorneys have accomplished this task in less than

half the time. 5 Accordingly, I will reduce the sum to be awarded for damages briefing (a

total of 82.3 hours, or $38,757.20) by thirty percent. Such an across-the-board reduction

(which I am empowered to adopt) 6 fairly captures the overbilling evidenced by this work,

without requiring me to act as a “green eye-shaded accountant” in identifying with

specificity each objectionable task relevant to this one sub-area of work performed on the

case. This results in a reduction of $11,627.16.7

ATTORNEY AND COSTS

Petitioner has provided supporting documentation for all claimed costs, except for

the cost of some postage which I nevertheless will reimburse. ECF No. 51-5. I have

reviewed these costs and find them to be reasonable. And Respondent offered no specific

4 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are

excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993).

5 See, e.g., O’Donnell v. Sec’y of Health & Hum. Servs., No. 21-1508V (Nov. 22, 2024) (15.9 and 6.4 hours

billed for drafting a damages brief and responsive damages brief, respectively); Feitel v. Sec’y of Health &

Hum. Servs., No. 21-1370V May 6, 2024) (14.7 and 6.3 hours billed for drafting a damages brief and

responsive damages brief, respectively); Hobbs v. Sec’y of Health & Hum. Servs., No. 21-1442V (Apr. 9,

2024) (18.0 and 4.8 hours billed for drafting a damages brief and responsive damages brief, respectively);

Poteet v. Sec’y of Health & Hum. Servs., No. 20-1295V (Apr. 1, 2024) (19.4 and 12.2 hours billed for drafting

a damages brief and responsive damages brief, respectively); Schwalm v. Sec’y of Health & Hum. Servs.,

No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively); Stanton v. Sec’y of Health & Hum. Servs., No. 21-

0360V (Nov. 25, 2024) (15.9 and 4.5 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively); Hirsch v. Sec’y of Health & Hum. Servs., No. 20-

1110V (Nov. 25, 2024) (16.0 and 4.1 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively); Templin v. Sec’y of Health & Hum. Servs., No.

21-1446V (Nov. 25, 2024) (12.0 and 0.4 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively) Kleinschmidt v. Sec’y of Health & Hum. Servs.,

No. 20-0680V (Apr. 9, 2024) (13.9 and 4.8 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively); Amor v. Sec’y of Health & Hum. Servs., No. 20-

0978V (Apr. 10, 2024) (11.9 and 2.7 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively); McGraw v. Sec’y of Health & Hum. Servs., No.

21-0072V (Apr. 1, 2024) (17.4 and 9.6 hours billed for drafting an entitlement and damages brief and

responsive entitlement and damages brief, respectively). These decisions can (or will) be found on the

United States Court of Federal Claims website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Dec. 6, 2024).

6 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is

sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017);

Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health &

Hum. Servs., 86 Fed. Cl. 201, 214 (2009).

7 This amount is calculated as follows: 54.2 hrs. x $460 x .30 + 28.1 hrs. x $492 x .30 = $11,627.16.

4

objection to the amounts sought. ECF No. 50.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for

successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for

attorney’s fees and costs. I award a total of $89,123.92 (representing $87,715.64 for

fees and $1,408.28 in costs).

Per Petitioner’s request, the award is to be made in a lump sum in the form

of a check jointly payable to Petitioner and Petitioner’s attorneys - Siri Glimstad,

LLP, and mailed to 745 Fifth Avenue, Suite 500, New York, NY 10151. In the absence

of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of

Court shall enter judgment in accordance with this Decision.8

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

8 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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.