Judges: Nora Beth Dorsey
Filed: Sep. 21, 2020
Latest Update: Sep. 21, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: August 24, 2020 * * * * * * * * * * * * * LINDSEY HANSON, on behalf of, * L.R.H., * UNPUBLISHED * Petitioner, * No. 18-590V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs. AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Yuri Jelokov, Farrish Johnson Law Office, Mankato, MN, for petitioner. Sarah Christina Duncan, United States Department of Justice, Washington,
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: August 24, 2020 * * * * * * * * * * * * * LINDSEY HANSON, on behalf of, * L.R.H., * UNPUBLISHED * Petitioner, * No. 18-590V * v. * Special Master Dorsey * SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs. AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Yuri Jelokov, Farrish Johnson Law Office, Mankato, MN, for petitioner. Sarah Christina Duncan, United States Department of Justice, Washington, D..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 24, 2020
* * * * * * * * * * * * *
LINDSEY HANSON, on behalf of, *
L.R.H., * UNPUBLISHED
*
Petitioner, * No. 18-590V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * *
Yuri Jelokov, Farrish Johnson Law Office, Mankato, MN, for petitioner.
Sarah Christina Duncan, United States Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On April 25, 2018, Lindsey Hanson (“petitioner”), on behalf of L.R.H., a minor, filed a
petition in the National Vaccine Injury Program2 alleging that as a result of the Measles, Mumps,
and Rubella (“MMR”) vaccine L.R.H. received on June 30, 2017, she suffers from chronic
arthritis. Petition at 1.
On April 13, 2020, petitioner filed a motion for interim attorneys’ fees and costs,
requesting compensation for the attorney who worked on her case. Petitioner’s Motion for
1
Because this unpublished Decision contains a reasoned explanation for the action in this case,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 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
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
Interim Fees and Costs (“Pet. Mot.”), filed Apr. 13, 2020 (ECF No. 31). On July 16, 2020,
petitioner filed a supplemental fees motion. Supplemental Fees, filed July 16, 2020 (ECF No.
38). Petitioner’s request can be summarized as follows:
Attorneys’ Fees – $23,220.00
Attorneys’ Costs – $9,507.43
Petitioner thus requests a total of $32,727.43. Respondent filed his response on April 27,
2020, stating that he “respectfully requests that the Special Master exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Respondent’s Response to Pet.
Mot. (“Resp. Response”), filed Apr. 27, 2020, at 3 (ECF No. 32).
This matter is now ripe for adjudication. For the reasons discussed below, the
undersigned GRANTS petitioners’ motion and awards $32,852.43 in attorneys’ fees and costs.
I. DISCUSSION
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. § 15(e)(1). When
compensation is not awarded, the special master “may” award reasonable fees and costs “if the
special master or court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought.” Id. If a special master has
not yet determined entitlement, she may still award attorneys’ fees and costs on an interim
basis. Avera v. Sec’y of Health & Human Servs.,
515 F.3d 1343, 1352 (Fed. Cir. 2008). Such
awards “are particularly appropriate in cases where proceedings are protracted and costly
experts must be retained.”
Id. Similarly, it is proper for a special master to award interim fees
and costs “[w]here the claimant establishes that the cost of litigation has imposed an undue
hardship and that there exists a good faith basis for the claim.” Shaw v. Sec’y of Health &
Human Servs.,
609 F.3d 1372, 1375 (Fed. Cir. 2010).
The claim appears at this point to have been brought in good faith and built on a
reasonable basis. Moreover, the undersigned finds that an award of interim attorneys’ fees and
costs is appropriate here where there are significant expert fees to be paid.
A. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “an initial estimate of a reasonable attorneys’ fee 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)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings.
Id. at 1348.
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
2
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 the 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
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Human Servs.,
24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.”
Saxton, 3 F.3d at 1521.
Here, petitioner requests the following hourly rates for the attorney who worked on this
matter:
Mr. Jelokov – Attorney
2018-2020: $300.00
The undersigned finds the requested rates reasonable. Mr. Jelokov has been practicing
law since 2008, giving him approximately 10 years of experience in 2018. This would place him
in the upper end of the OSM Attorneys’ Forum Hourly Rate Fee Schedule, which prescribes
rates ranging from $297-$378 for attorneys with 8-10 years of experience. Overall, based on Mr.
Jelokov’s training, education, and experience, the undersigned finds the hourly rate of $300.00 to
be reasonable. Therefore, the undersigned will award the rates requested.
Petitioner’s counsel requests compensation for 77.4 hours for 2018-2020. Pet. Mot. at
13. This results in petitioners’ counsel accurate request for attorney’s fees for $23,220.00.
B. Attorneys’ Costs
1. Expert Fees
Petitioner requests $2,625.00 for work performed by Dr. Harry Hull, which was a total of
5.25 hours, billed at an hourly rate of $500.00. Pet. Mot. at 23; see Notice of Filing, filed July
16, 2020, at 2 (ECF No. 37-2).
3
Petitioner also requests $5,950.00 for work performed by Dr. Arthur Brawer. Pet. Mot. at
25-28; Notice of Filing, filed July 16, 2020, at 1 (ECF No. 37-1). Dr. Brawer did not provide the
number of hours billed or the hourly rate, but stated the amounts charged represent “a flat fee of
routine office policy that is not broken down into hourly work.”3 Notice of Filing, filed July 16,
2020, at 1 (ECF No. 37-1).
The undersigned finds the expert fees paid to Dr. Hull and Dr. Brawer are reasonable and
therefore, petitioner is awarded $8,575.00 for expert fees.
2. Miscellaneous Costs
Petitioners request $1,057.43 to cover their attorney’s other miscellaneous expenses,
including a postage costs, medical record costs, the filing fee, and other expenses.4 Pet. Mot. at
13. The undersigned finds these costs reasonable and well-documented, and she will award them
in full.
II. CONCLUSION
Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioners and their counsel as follows:
Requested Attorneys’ Fees: $ 23,220.00
Reduction of Attorneys’ Fees - ($ 0.00)
Awarded Attorneys’ Fees: $ 23,220.00
Requested Attorneys’ Costs: $ 9,507.43
Reduction of Attorneys’ Costs: + ($ 125.00)
Awarded Attorneys’ Costs: $ 9,632.43
Total Interim Attorneys’ Fees and Costs: $ 32,852.43
Accordingly, the undersigned awards:
A lump sum in the amount of $32,852.43, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel of record, Mr. Yuri Jelokov.
3
The undersigned notes that in the future, an invoice that describes Dr. Brawer’s hourly rate and
provides a description of his work is required. Counsel shall reference the Vaccine Guidelines
for Practice under the National Vaccine Injury Program (“Vaccine Guidelines”), which can be
found on the Court’s website or at http://www.cofc.uscourts.gov/vaccine-guidelines. Failure to
comply may result in forfeiture of attorneys’ costs in the future.
4
Petitioner did not provide full documentation of all expenses, specifically: (1) $9.85 postage
service; (2) $33.75 copies of claim for service; (3) $21.60 postage; and (4) $17.80 postage to
expert. All invoices should be provided in future filings.
4
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this Decision.5
IT IS SO ORDERED.
/s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
5
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
5
