The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
DONNA SMITH, as Personal *
Representative of the ESTATE OF *
JOAN SMITH, *
* No. 17-1262V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: March 31, 2020
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Matthew B. Vianello, Jacobson Press P.C., Clayton, MO, for Petitioner;
Christine M. Becer, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Donna Smith’s motion for final
attorneys’ fees and costs. She is awarded $34,382.43.
1
The undersigned intends 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, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access. Because this
unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is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).
* * *
On September 15, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccination that Ms. Smith received on
September 24, 2014, caused her to suffer Guillain-Barré syndrome. Petition at 1.
Following Ms. Smith’s death on September 30, 2018, the caption was amended to
reflect Donna Smith, as personal representative of the estate of Joan Smith, as the
petitioner. On October 21, 2019, the parties filed a stipulation of dismissal, and on
the same day, the undersigned issued his order concluding proceedings pursuant to
Vaccine Rule 21(a)(1)(B).
On October 28, 2019, petitioners filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $23,805.00 and
attorneys’ costs of $13,303.53 for a total request of $37,108.53. Fees App. at 6.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of her case. On November 12, 2019,
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, the undersigned
has no reason to doubt the good faith of the claim, and although the claim was
ultimately unsuccessful, the undersigned finds that petitioner’s claim has a
reasonable basis. As the undersigned noted in his October 3, 2019 order, “with
respect to any forthcoming motion for attorneys’ fees and costs, there is no
question about reasonable basis through the treating physician’s deposition.”
Respondent also has not challenged the reasonable basis of the claim. A final
award of attorneys’ fees and costs is therefore proper in this case.
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 that her attorney, Mr. Matthew Vianello, be compensated
at $300.00 per hour for all work performed in this case, starting in 2017 and ending
in 2019. Mr. Vianello has previously been awarded $300.00 per hour for his
Vaccine Program work, and the undersigned finds that rate to be reasonable for
work performed in the instant case as well. See, e.g., Johns v. Sec’y of Health &
Human Servs., No. 18-741V, 2019 WL 5855900 (Fed. Cl. Spec. Mstr. Aug. 16,
2019).
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.
3
Upon review of the submitted billing records, the undersigned finds the only
minor issue of note is that Mr. Vianello appears to have a habit of combining all
tasks performed in one day into a single billing entry. For example, on October 23,
2018, the billing entry reads “Conference with court re: status; telephone
conversation with client and opposing counsel re settlement; research estate issues”
and is billed for 1.75 hours. Fees App. Ex. 1 at 5. Another entry reads “Research
probate issues; prepare letter to Dr. O’Keefe re: medical opinion.” Id. at 4. Each
task, separated here with a semicolon by Mr. Vianello, should be billed as an
individual billing entry. Indeed, the Vaccine Program’s Guidelines for Practice
state, “Each task should have its own line entry indicating the amount of time spent
on that task. Lumping together several unrelated tasks in the same entry frustrates
the court’s ability to assess the reasonableness of the request.”2
While the number of hours billed are not necessarily unreasonable, entries
such as the ones noted above do not permit the undersigned to truly assess the
reasonableness of the request. Thus, as has been done in the past, the undersigned
shall reduce the award of attorneys’ fees by two percent to encourage appropriate
line item billing in the future. See Shaver v. Sec’y of Health & Human Servs., No.
10-515V, 2019 WL 1150526, at *2 (Fed. Cl. Spec. Mstr. Feb. 22, 2019). This
results in a reduction of $476.10.
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
$13,303.53 in attorneys’ costs. The majority of this amount ($11,250.00) is for the
work of petitioner’s expert, Dr. Vithalbhai Dhaduk, while the remainder is for
obtaining medical records, the Court’s filing fee, and the costs associated with
subpoenaing and deposing petitioner’s treating physician. These costs are
reasonable and have been supported with adequate documentation and shall be
awarded. Petitioner’s expert costs, however, require further discussion.
The billing invoices indicate that Dr. Dhaduk billed 25 hours at a rate of
$600.00 per hour. Cognizant that $600.00 per hour would likely be found by the
undersigned to be excessive given the precedent on expert rates in the Vaccine
2
The Guidelines are available at:
http://www.cofc.uscourts.gov/sites/default/files/GUIDELINES%20FOR%20PRACTICE%20-
%208.22.2019.pdf.
4
Program, petitioner requests compensation at $450.00 per hour for Dr. Dhaduk’s
25 hours of work. Dr. Dhaduk is board certified in neurology and has run a private
practice as a general neurologist since 1987. He also served as Chief of Neurology
at Community Medical Center for seven years before limiting his practice to
private outpatient care only. Dr. Dhaduk indicated that he sees approximately 5-6
cases of GBS per year in his practice and has treated patients with influenza-related
GBS in the past. The undersigned finds that $450.00 per hour is a reasonable
hourly rate for Dr. Dhaduk’s work in this case.
Dr. Dhaduk’s billing records are somewhat lacking. In his order on expert
instructions, issued on July 5, 2018, the undersigned provided information about
what should be included in an expert invoice. Most notably, the undersigned stated
that “[t]he more significant issues regarding invoices are: what is being done and
how long the task takes. The expert should list separate tasks separately. A rule of
thumb is that every half hour should have a separate task, differentiated from other
tasks.” Dr. Dhaduk, however, billed entries such as 3 hours on each of the
following tasks: “Review of additional medical records”; “Literature search and
review of articles”; “review of records and taking notes.” Fees App. Ex. 4 at 4-6.
Based upon the vagueness of these entries, the work of Dr. Dhaduk, and the fact
that Mr. Vianello expended over 7 hours assisting in preparation of the report, the
undersigned will credit Dr. Dhaduk with 20 hours work and award $9,000.00 for
that work. Petitioner is thus awarded final costs of $11,053.53.
E. 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 $34,382.43 (representing
$23,328.90 in attorneys’ fees and $11,053.53 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Mr.
Matthew Vianello.
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.
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
s/Christian J. Moran
Christian J. Moran
Special Master
6