Filed: Jul. 27, 2018
Latest Update: Jul. 27, 2018
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . Dorsey, Chief Special Master: On October 7, 2016, 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 alleges that she suffered a shoulder injury related to vaccine administration ("SIRVA") following an influenza ("flu") vaccination she received on November 19, 2015. Petition at
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . Dorsey, Chief Special Master: On October 7, 2016, 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 alleges that she suffered a shoulder injury related to vaccine administration ("SIRVA") following an influenza ("flu") vaccination she received on November 19, 2015. Petition at 1..
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UNPUBLISHED
DECISION ON ATTORNEYS' FEES AND COSTS1
NORA BETH DORSEY, Chief Special Master.
Dorsey, Chief Special Master:
On October 7, 2016, 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 alleges that she suffered a shoulder injury related to vaccine administration ("SIRVA") following an influenza ("flu") vaccination she received on November 19, 2015. Petition at 1. On February 26, 2018, the undersigned issued a decision awarding compensation to petitioner based on the parties' stipulation. (ECF No. 37).
On July 3, 2018, petitioner filed a motion for attorneys' fees and costs. (ECF No. 41). Petitioner requests attorneys' fees in the amount of $23,646.60 and attorneys' costs in the amount of $1,019.79. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at 2. Thus, the total amount requested is $24,666.39.
On July 17, 2018, respondent filed a response to petitioner's motion. (ECF No. 42). 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." 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 "respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
On July 18, 2018, petitioner filed a reply. (ECF No. 43). Petitioner disputes respondent's position that she has no role in resolving attorneys' fees and costs and further reiterates her view that her attorneys' fees and costs in this case are reasonable.
The undersigned has reviewed the billing records submitted with petitioner's request and finds a reduction in the amount of fees to be awarded appropriate for the reasons listed below.
Attorney Franklin John Caldwell billed 2.9 hours in 2018 at a rate of $391 per hour. (ECF No. 41-1 at 14). The undersigned shall reduce Mr. Caldwell's hourly rate to the previously awarded rate of $385 for 2018. See Roetto v. Sec'y of Health & Human Servs., No. 16-0018V, 2018 WL 3031026, at *2 (Fed. Cl. Spec. Mstr. March 29, 2018) (setting Mr. Caldwell's rate for 2018). This results in a reduction of fees in the amount of $17.40.
Upon review of the records, a number of entries billed by the paralegals are for tasks better characterized as clerical or administrative. In the Vaccine Program, secretarial work "should be considered as normal overhead office costs included within the attorneys' fee rates." Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec'y of Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). "[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program." Mostovoy v. Sec'y of Health & Human Servs., No .02-10V, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). A total 0.60 hours3 was billed by paralegals on administrative tasks including, reviewing, organizing and uploading documents. For these reasons the request for attorney's fees is reduced in the amount of $87.30.4
The undersigned also notes that there is a duplicate billing entry dated January 18, 2017. (Id. at 6). This entry is for 0.20 hour and is listed as "Review and respond to e-mail from client." The undersigned reduces the request for attorney's fees by $29.00, the amount of the duplicated entry.
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). Based on the reasonableness of petitioner's request, the undersigned GRANTS petitioner's motion for attorneys' fees and costs.
Accordingly, the undersigned awards the total of $ 24,532.695 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel Franklin John Caldwell. Petitioner requests check be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
The clerk of the court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
