Opinion

Johnson v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Jan 31, 2025
Status
Unpublished
On the bench
Daniel T. Horner
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. 20-1008V

Filed: November 22, 2024

VICTOR JOHNSON, Special Master Horner

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Leigh Finfer, Muller Brazil LLP, Dresher, PA, for Petitioner.

Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On August 13, 2020, Victor Johnson, “petitioner” 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 filed an amended petition filed on November 23,

2021. Petitioner alleged that he suffered a shoulder injury related to vaccine

administration (“SIRVA”) as a result of the influenza (“flu”) vaccine he received on

September 20, 2017. (ECF Nos. 1, 25.) On April 8, 2024, the parties filed a proffer,

which I adopted as my decision awarding compensation on that same day. (ECF Nos.

52-53.)

On June 11, 2024, petitioner filed a final motion for attorneys’ fees and costs.

(ECF No. 58.) (“Fees App.”). Petitioner requests attorneys’ fees in the amount of

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).

$32,103.60 and attorneys’ costs in the amount of $11,517.47. Fees App. at 2. Pursuant

to General Order No. 9, petitioner has indicated that he has not personally incurred any

costs in pursuit of this litigation. Id. Thus, the total amount requested is $43,621.07. On

June 11, 2024, respondent filed a response to petitioner’s motion. (ECF No. 59.)

Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires

respondent to file a response to a request by a petitioner for an award of attorneys' fees

and costs.” Id. 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.

Respondent further states, “[t]o the extent petitioner is requesting higher expert hourly

rates than what has typically been awarded in the past, respondent submits that the

Court should reserve the highest rates for the most qualified experts opining on the

most complex medical issues . . . . ” and requesting that the Court “continue to make

case-by-case determinations about a reasonable hourly rate, based upon the work

performed, and any revised expert hourly rate ceiling should reflect the unique character

of the Vaccine Program.” Id. at 3-4. Respondent “respectfully requests that the Court

exercise its discretion and determine a reasonable award for attorneys’ fees and costs.”

Id. at 4. Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §

15(e). The Federal Circuit has approved the lodestar approach to determine reasonable

attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human

Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-

48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours

reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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.

It is “well within the special master’s discretion” to determine the reasonableness

of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir.

1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).

(“[T]he reviewing court must grant the special master wide latitude in determining the

reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees

must include contemporaneous and specific billing records that indicate the work

performed and the number of hours spent on said work. See Savin v. Sec’y of Health &

Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not

include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate”

in the relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate”

is akin to the rate “in the community for similar services by lawyers of reasonably

2

comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the

burden of providing adequate evidence to prove that the requested hourly rate is

reasonable. Id.

Special masters can reduce a fee request sua sponte, without providing

petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human

Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee

reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee

application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729

(Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to

determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of

Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in

relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their

prior experience to reduce hourly rates and the number of hours claimed in attorney fee

requests . . . Vaccine program special masters are also entitled to use their prior

experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.

a. Hourly Rates

Petitioner requests the following rates of compensation for his attorneys: for Ms.

Leigh Finfer, $185.00 per hour for work performed in 2019, $200.00 per hour for work

performed in 2020, $225.00 per hour for work performed in 2021, $250.00 per hour for

work performed in 2022, $275.00 per hour for work performed in 2023, and $300.00 per

hour for work performed in 2024; and for Mr. Paul Brazil, $317.00 per hour for work

performed in 2019, $325.00 per hour for work performed in 2020, and $350.00 per hour

for work performed in 2020. These rates are consistent with what counsel have

previously been awarded for their Vaccine Program work and the undersigned finds

them to be reasonable herein.

b. Hours Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests

hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at

1521. While attorneys may be compensated for non-attorney-level work, the rate must

be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y

of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr.

Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of

who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

Upon review, the overall number of hours billed appears to be reasonable. I have

reviewed the billing entries and find that they adequately describe the work done on the

case and the amount of time spent on that work. I do not find any of the entries to be

objectionable, nor has respondent identified any as such. Petitioner is therefore

awarded final attorneys’ fees of $32,103.60.

3

c. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be

reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl.

1992). Petitioner requests a total of $11,517.47 in attorneys’ costs comprised of

acquisition of medical records and postage. Fees App. Ex. B at 1. This amount also

includes expert services performed by Naveed Mayer Natanzi, DO, board certified in

pain management, and physical medicine and rehabilitation, at $520.00 per hour for 21

hours totaling $10,920.00. Id. at 8. Dr. Natanzi’s rate is consistent with what he has

previously been awarded for his expert services, and I find it to be reasonable herein.

See, e.g., Peka v. Sec'y of Health & Human Servs., No. 20-1099V, 2023 WL 9288151

(Fed. Cl. Spec. Mstr. Dec. 20, 2023). Accordingly, I find that all costs have been

supported with the necessary documentation and are reasonable. Petitioner is therefore

awarded the full amount of costs sought.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have

reviewed the billing records and costs in this case and finds that petitioner’s request for

fees and costs is reasonable. I find it reasonable to compensate petitioner and his

counsel as follows: a lump sum in the amount of $43,621.07, representing

reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check

payable to petitioner and petitioner’s counsel, Leigh Finfer.

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.3

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

3

Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.

Vaccine Rule 11(a).

4

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.

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