In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-972V
Filed: March 1, 2016
* * * * * * * * * * * * * UNPUBLISHED
KRISTIN J. REGINELLI and *
DANIEL W. REGINELLI, parents *
and natural guardians of L.R., a minor, *
* Special Master Gowen
Petitioners, *
* Attorneys’ Fees and Costs;
v. * Excessive Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
James B. Blumenstiel, Blumenstiel Falvo, LLC, Dublin, OH, for petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On November 3, 2015, the undersigned issued a Decision awarding petitioners
compensation pursuant to the parties’ stipulation. On December 9, 2015, petitioners filed an
application for attorneys’ fees and costs, requesting $15,025.50 in attorneys’ fees and $1,925.41
in attorneys’ costs. Petitioners’ (“Pet’rs’”) Application (“App.”) at 2.
Petitioners filed a supplemental motion for attorneys’ fees and costs on January 18, 2016,
requesting an additional $3,842.50 in attorneys’ fees for Randolph Knavel for his work
establishing the guardianship account that will hold the settlement award for the benefit of L.R.,
until she reaches the age of majority. Pet’rs’ Supplemental (“Supp.”) App. at 2.
On February 22, 2016, petitioners filed a second supplemental motion for attorneys’ fees
and costs, with additional documentation of attorney James B. Blumenstiel’s costs in relation to
this matter. See Pet’rs’ Second Supp. App., Tab A.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b).
For the reasons set forth below, the undersigned awards petitioners a total of $20,443.70
in reimbursement for attorneys’ fees and costs.
I. Procedural History
On October 9, 2014, Kristen J. Reginelli and Daniel W. Reginelli (“petitioners”), parents
and natural guardians of L.R., a minor, filed a petition pursuant to that National Vaccine Injury
Compensation Program.2 Petitioners alleged that as a result of receiving an influenza (“flu”)
vaccine on October 8, 2012, L.R. developed Guillain-Barre Syndrome (“GBS”) and/or Chronic
Inflammatory Demyelinating Polyneuropathy (“CIDP”). Petition at Preamble, ¶¶ 12, 16.
Further, petitioners alleged that L.R. experienced residual effects of her injury for more than six
months. See id. at ¶ 18. On November 2, 2015, the parties filed a stipulation stating that a
decision should be entered awarding compensation. The undersigned issued a Decision pursuant
to the parties’ stipulation on November 3, 2015.
On December 9, 2015, petitioners filed an application for attorneys’ fees and costs,
requesting $15,025.50 in attorneys’ fees and $1,925.41 in attorneys’ costs. Pet’rs’ App. at 2. In
accordance with General Order #9, petitioners affirm that petitioners did not advance any
litigation expenses in this matter. Id. Petitioners filed a supplemental motion for attorneys’ fees
and costs on January 18, 2016, requesting an additional $3,842.50 in attorneys’ fees for
Randolph Knavel for his work establishing the guardianship account that will hold the settlement
award for the benefit of L.R., until she reaches the age of majority. Pet’rs’ Supplemental App. at
2. Respondent did not file a response to petitioners’ initial and supplemental applications for
attorneys’ fees and costs.
On February 22, 2016, petitioners filed a second supplemental application providing
receipts documenting the attorneys’ costs requested in the original December 9, 2015,
application. See Pet’rs’ Second Supp. App., Tab A. By email communication on March 1,
2016, respondent indicated that she defers to the special master to determine whether the fees
and costs requested are reasonable.
II. 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. 42 U.S.C. § 300aa-15(3)(1). In
the present case, petitioners were awarded compensation pursuant to a joint stipulation
agreement. Therefore, petitioners are entitled to an award of reasonable attorneys’ fees and
costs.
a. Reasonable Attorneys’ Fees
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-1 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.
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). 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 1347-58 (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
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 or Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cl. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Petitioners have requested $15,025.50 in attorneys’ fees for attorney Blumenstiel,
representing 66.78 hours of work at a rate of $225.00 per hour, and respondent has not objected.
Pet’rs’ App. at 2. Mr. Blumenstiel has been practicing law since 1967, he has had several cases
in the Vaccine Program to-date, and has forty-eight years of experience litigating personal injury
cases. Pet’rs’ App., Ex. 20 at ¶ 1; Pet’rs’ App. at 2. In his affidavit, he states that his hourly rate
of $225.00 is “below the standard hourly rate for attorneys in this community with similar years
of experience.” Pet’rs’ App., Ex. 20 at ¶ 3. The undersigned finds $225.00 is a reasonable
hourly rate for Mr. Blumenstiel in this matter. In addition, petitioners’ application included an
adequate log of the hours and dates of services performed on this case, and the undersignedfinds
the number of hours expended reasonable. See Pet’rs’ App., Ex. 21.
Petitioners have also requested $3,842.50 in attorneys’ fees for attorney Knavel,
representing 19.21 hours of work at a rate of $200.00 per hour, and respondent has not objected.
See Pet’rs’ Supp. App., Ex. A. Mr. Knavel states that his fee of $200.00 per hour does not
exceed that customarily charged in Cuyahoga County, Ohio, for legal services relating to probate
matters. Id. at 1. The undersigned finds $200.00 is a reasonable hourly rate for Mr. Knavel in
this matter. Petitioners’ application included an adequate log of the hours and dates of services
performed by Mr. Knavel in establishing the guardianship in this case, and the undersigned finds
the number of hours expended reasonable. Id. at 3-4.
Accordingly, as requested by petitioners, the undersigned awards $15,025.50 in
attorneys’ fees for Mr. Blumenstiel, and $3,842.50 in attorneys’ fees for Mr. Knavel.
b. Costs
Petitioners request $1,925.41 for attorneys’ costs incurred by Mr. Blumenstiel.3
Respondent did not object. Upon review, the undersigned finds most, but not all, of the
requested costs reasonable.
The undersigned finds it reasonable to award costs for expenses associated with the
litigation of this claim. Reasonable costs include the cost of obtaining medical records and an
expert report, and expenses incurred while traveling in relation to this claim. Based on the
attorneys’ fees time sheet submitted, it appears that Mr. Blumenstiel traveled in relation to this
claim on three occasions: December 12, 2013; May 29, 2014; and January 7 and 8, 2015. Costs
associated with these trips will be awarded, with the exception of $21.00 spent on alcoholic
beverages as part of a meal during the January, 2015, travel. See Pet’rs’ Second Supp. App., Tab
A at 21. The cost of alcoholic beverages is not reimbursable by the Program. See Macrelli v.
Sec’y of Health & Human Servs., No. 98-103V, 2012 WL 229811, at *11 (Fed. Cl. Spec. Mstr.
Jan. 30, 2002); Bhuiyan v. Sec’y of Health & Human Servs., No. 05-1269V, 2015 WL 2174208,
at * 8 (Fed. Cl. Spec. Mstr. Apr. 16, 2015).
The undersigned finds that it is not reasonable to reimburse petitioners’ counsel for the
cost of meals and other miscellaneous expenses on typical work days, in the area where he
normally works and resides. Furthermore, cross-referencing the submitted receipts with
counsel’s time log reveals that counsel is requesting reimbursement for meals during days and
times that the time log does not show that counsel was working on the case. See, e.g., Pet’rs’
Second Supp. App., Tab A at 1-3. These costs are personal expenses, and were not incurred as a
result of work performed on this claim.
A review of the receipts submitted with petitioners’ second supplemental application
reveals $1,596.70 in reasonable costs, including the cost of obtaining medical records and an
expert report, and travel expenses such as gasoline, tolls, meals, and lodging incurred while
traveling in relation to this claim. Accordingly, the undersigned awards $1,575.70 in
attorneys’ costs.
III. Conclusion
The undersigned awards a total of $20,443.70 in attorneys’ fees and costs as follows:
(1) A lump sum of $16,601.20 in the form of a check payable jointly to
petitioners and petitioners’ counsel of record, James B. Blumenstiel, for
attorneys’ fees and costs.
3
Petitioners’ initial application included an expense summary, but did not include supporting
documentation. Petitioners filed a second supplemental application on February 22, 2016, providing
receipts. The second supplemental application includes receipts for costs totaling $2,185.67, which
petitioners note is slightly more than the $1,925.41 requested in the initial December 9, 2015, application.
Pet’rs’ Second Supp. App. at 1. Petitioners state that they are not requesting reimbursement of the
additional expenses. Id.
(2) A lump sum of $3,842.50 in the form of a check payable jointly to petitioners
and petitioners’ former counsel, Randolph Knavel, for attorneys’ fees.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.