Filed: Feb. 27, 2019
Latest Update: Feb. 27, 2019
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . On October 6, 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 injuries, including a Shoulder Injury Related to Vaccine Administration resulting from an influenza vaccination received on October 13, 2014. Petition at 1. On October 9, 2018, the und
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . On October 6, 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 injuries, including a Shoulder Injury Related to Vaccine Administration resulting from an influenza vaccination received on October 13, 2014. Petition at 1. On October 9, 2018, the unde..
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UNPUBLISHED
DECISION ON ATTORNEYS' FEES AND COSTS1
NORA BETH DORSEY, Chief Special Master.
On October 6, 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 injuries, including a Shoulder Injury Related to Vaccine Administration resulting from an influenza vaccination received on October 13, 2014. Petition at 1. On October 9, 2018, the undersigned issued a decision awarding compensation to petitioner based on the respondent's proffer. ECF No. 43.
On January 7, 2019, petitioner filed a motion for attorneys' fees and costs. ECF No. 50. Petitioner requests attorneys' fees in the amount of $17,292.00 and attorneys' costs in the amount of $476.30. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. ECF No. 49. Thus, the total amount requested is $17,768.30.
On February 8, 2019, respondent filed a response to petitioner's motion. ECF No. 51. 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 and finds a reduction in the amount of fees to be awarded appropriate for the reason listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys' fees and costs.§ 15(e). 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 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 a 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 engaged 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 (2011).
The petitioner "bears the burden of establishing the hours expended, the rates charged, and the expenses incurred." Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. at 482, 484 (1991). She "should present adequate proof [of the attorneys' fees and costs sought] at the time of the submission." Id. at 484 n.1. Petitioner's counsel "should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S., at 434.
II. Attorney Fees
A. Hourly Rates
Petitioner is requesting an hourly rate of $440 for attorney Steven I. Kastner. ECF No. 50-1 at 8. The undersigned shall reduce Mr. Kastner's hourly rate to the previously awarded rates of $400 for work performed in 2017 and $415 for work performed in 2018. See Peterson v. Sec'y of Health & Human Servs., No. 17-0893V, 2018 WL 4390072 (Fed. Cl. Sp. Mstr. May 30, 2018) (setting rates for Mr. Kastner). This results in a reduction of fees in the amount of $1,300.503.
III. Attorney Costs
Petitioner requests reimbursement for attorney costs in the amount of $476.30 which consists of the Court's filing fee and a charge for postage.4 The undersigned finds the overall amount of costs reasonable and awards the amount requested in full.
IV. Conclusion
Based on the reasonableness of petitioner's request, the undersigned GRANTS IN PART petitioner's motion for attorneys' fees and costs.
Accordingly, the undersigned awards the total of $16,467.805 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel Steven I. Kastner.
The clerk of the court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
