Filed: Jun. 22, 2018
Latest Update: Jun. 22, 2018
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . On May 17, 2017, 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 right shoulder injury related to vaccine administration ("SIRVA") as a result of her September 14, 2015 influenza ("flu") vaccination. Petition at 1. On May 15, 2018, the undersigned is
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . On May 17, 2017, 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 right shoulder injury related to vaccine administration ("SIRVA") as a result of her September 14, 2015 influenza ("flu") vaccination. Petition at 1. On May 15, 2018, the undersigned iss..
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UNPUBLISHED
DECISION ON ATTORNEYS' FEES AND COSTS1
NORA BETH DORSEY, Chief Special Master.
On May 17, 2017, 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 right shoulder injury related to vaccine administration ("SIRVA") as a result of her September 14, 2015 influenza ("flu") vaccination. Petition at 1. On May 15, 2018, the undersigned issued a decision awarding compensation to petitioner based on the respondent's proffer. (ECF No. 47).
On June 12, 2018, petitioner filed a motion for attorneys' fees and costs. (ECF No. 51). Petitioner requests attorneys' fees in the amount of $23,314.00 and attorneys' costs in the amount of $1,512.13. Id. at 2. In accordance with General Order #9, petitioner's counsel represents that petitioner incurred no out-of-pocket expenses. Id. at 2. Thus, the total amount requested is $24,826.13.
On June 13, 2018, respondent filed a response to petitioner's motion. (ECF No. 52). 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.
Petitioner has filed no reply.
The undersigned has reviewed the billing records submitted with petitioner's request. In the undersigned's experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates with the following exceptions. Due to attorney C. Clark Hodgson, III`s inexperience in the Vaccine Program, the undersigned does find cause to reduce his hourly rate from the requested $225 an hour to $200 an hour. Therefore, attorneys' fees are reduced by $55.00.3
In regards to attorney Shealene P. Wasserman, a rate of $225 per hour was awarded for work performed in 2017. Ms. Wasserman's requested rate of $250 per hour for work in 2018 is outside the experience range for an attorney with 3 years' experience. Under the Court's Fee Schedule, an attorney in the range of 1-4 years' experience is entitled to hourly rates between $159 — $238 for work performed in 2018. Her increase for 2018, based on the Producer Price Index for the "Office of Lawyers" (PPI-OL), provided by the Department of Labor Bureau of Labor Statistics, would result in a rate $233 per hour, which is a more appropriate rate given the undersigned's experience and analysis of the McCulloch factors as applied to Ms. Wasserman. Therefore, the undersigned reduces the fee request by $185.30.4
It is clearly established that 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, No. 02-10V, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). On May 16, 2018, 0.30 was billed to the program to "Mail letter to client re: Damages award". (ECF No. 51 at 11). Mailing documents is considered administrative overhead and the undersigned reduces the fee request by $37.50.
The full amount of costs sought, $1,512.13, is awarded.
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 $24,548.335 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel Shealene Priscilla Wasserman.
The clerk of the court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
