# Hernandez v. Secretary of Health and Human Services

> United States Court of Federal Claims · January 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10791765

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** January 31, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Mindy Michaels Roth
- **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
No. 20-723
Filed: November 22, 2024

* * * * * * * * * * * * * * *
EMMA PATRICIA HERNANDEZ, *
*
Petitioner, *
*
v. * Decision on Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *

Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

On June 15, 2020, Emma Patricia Hernandez [“Ms. Hernandez or “petitioner”] filed a
petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner
alleged that she developed vasculitis after receiving an influenza vaccine on or about October 12,
2018. Petition, ECF No. 1. On April 11, 2024, the parties filed a stipulation, which the
undersigned adopted as her decision awarding compensation on the April 12, 2024. (ECF No.
58).

On May 21, 2024, petitioner filed an application for final attorneys’ fees and costs. (“Fees
App.”) (ECF No. 63). Petitioner requests total attorneys’ fees and costs in the amount of
$44,068.91, representing $35,885.80 in attorneys’ fees and $8,183.11 in costs. Fees App. at 2.

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, the undersigned finds that the identified material fits within this
definition, such material will be redacted 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).
Pursuant to General Order No. 9, petitioner indicated she has not advanced any funds in the
prosecution of her claim Id. Respondent responded to the motion on May 23, 2024, stating
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case” and requesting that the undersigned “exercise [her] discretion and determine a
reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 64). Petitioner did not
file a reply thereafter.

This matter is now ripe for consideration.

I. Legal Framework

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner
was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable
attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys' fees” is calculated 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)). That product is then adjusted upward or downward
based on other specific findings. Id.

Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.
201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee
application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).

II. Discussion

A. Reasonable Hourly Rate

A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's
attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees
to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum

2
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human
Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys’ fees based upon the attorneys' experience. See
McCulloch v. Sec’y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3

Petitioner requests the following hourly rates for the work of her counsel: 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;
for Mr. Paul Brazil, $325.00 per hour for work performed in 2019, $350.00 per hour for work
performed in 2020, and $400.00 per hour for work performed in 2022; for Mr. Max Muller,
$375.00 per hour for work performed in 2021; for Ms. Bridget McCullough, $225.00 per hour for
work performed in 2019; and for Ms. Laura Levenberg, $350.00 per hour for work performed in
2022. These rates are consistent with what counsel have previously been awarded for her Vaccine
Program work, and the undersigned finds them to be reasonable herein.

B. Hours Reasonably 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 ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). 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. Hours spent traveling are ordinarily compensated at one-
half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V,
2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is
inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine
Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2
(Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, it is “well within the Special Master's discretion

3
The OSM Attorneys’ Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claims website
at http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr.
Sept. 1, 2015).

3
to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work
done.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–
29 (affirming the Special Master’s reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

The overall hours spent on this matter appear are reasonable. Therefore, petitioner is
entitled to a final award of attorneys’ fees in the amount of $35,885.80.

C. Reasonable 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 $8,183.11 in costs. Fees App. Ex. B at 1. This amount consists of acquiring medical
records, the Court's filing fee, and postage. Id. These administrative costs are typical in Vaccine
Program cases and were reasonably incurred in this matter.

Petitioner’s requested costs also includes expert services performed by Dr. Philip L. Cohen
at a rate of $500.00 per hour. Dr. Cohen is certified by the American Board of Internal Medicine
and is certified in rheumatology. Ex. 19 at 2. Dr. Cohen is currently a Professor of Medicine and
Microbiology/Immunology and Chief of Rheumatology Section at Temple University School of
Medicine, and the Chief of Rheumatology at Temple University Hospital. Id. Dr. Cohen graduated
from Yale University in 1972, and is currently licensed to practice medicine in Pennsylvania. Id.
at 1-2. Other rheumatologist/immunologists who have provided expert work in the Vaccine
Program have been awarded rates similar to what is sought for Dr. Cohen. See, e.g., Zambelli v.
Sec’y of Health & Human Servs., No. 19-551V, 2024 WL 1406314, at *6 (Fed. Cl. Spec. Mstr.
Mar. 6, 2024) (awarding board-certified rheumatologist Dr. M. Eric Gershwin $500.00 per hour);
Bishara v. Sec’y of Health & Human Servs., No. 19-115V, 2024 WL 945728, at *6 (Fed. Cl. Spec.
Mstr. Jan. 31, 2024) (awarding rheumatologist Dr. Samar Gupta $500.00 per hour). Based upon
Dr. Cohen’s credentials, the undersigned finds that $500.00 per hour is a reasonable hourly rate
for his work, and that the hours he billed in this case are reasonable.

Finally, petitioner requests $2,500.00 for services provided by the Expert Institute. Fees
App. Ex. B at 13. Although no explanation was provided, it appears that the Expert Institute was
retained as an expert finder service to secure Dr. Cohen’s services. See Fees App. Ex. A at 7 (billing
entry by Ms. Finfer dated 10/19/21 “Review email from expert institute re scheduling conference
call with 2 potential experts”); see id. at 8 (billing entry by Ms. Finfer dated 11/11/21 “Prepare
email to expert institute re expert selected; next steps”). The undersigned questions whether this
was a necessary expense. Rheumatologists and immunologists are frequently retained as experts
in Vaccine Program cases, and while an expert referral service might be necessary to obtain an
expert in a more niche field of medicine, the undersigned does not find it to be reasonable in the
instant case. See Halcrow v. Sec’y of Health & Human Servs., No. 16-212V, 2021 WL 4199921,
at *4 (Fed. Cl. Spec. Mstr. Aug. 10, 2021). If counsel did not have any prior working relationships
with experts in rheumatology and immunology from their prior Vaccine Program experience, a
more practical solution would have been to reach out to their colleagues at the Vaccine Injured
Petitioners Bar Association to inquire if other attorneys could recommend a medical expert with

4
the requisite experience given the facts of the instant case. However, the undersigned finds that
cost of the services provided by the Expert Institute was reasonable in this case and will be paid
in full. Counsel is cautioned that similar expenditures will be scrutinized and may not be paid in
the future.

Accordingly, petitioner is awarded final attorneys’ costs in the amount of $8,183.11.

III. Conclusion

In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned hereby awards the following: a lump sum of $44,068.91,
representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check
payable jointly to petitioner and Ms. 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.4

IT IS SO ORDERED.

s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master

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).

5

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10791765. Public record. Not legal advice.