In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-605V
Filed: November 4, 2016
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EVANGELINA AVILA, *
*
Petitioner, *
v. * Attorneys’ Fees and Costs;
* Contested; Range.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
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Martin Martinez, Martinez Law Office, Napa, CA, for petitioner.
Alexis Babcock, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On July 14, 2014, Evangelina Avila (“Ms. Avila” or “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” or “Program”]. Petitioner alleged a diphtheria-tetanus-acellular
pertussis (“DTaP”) vaccine she received on February 21, 2012 caused her to develop a shoulder
injury related to vaccine administration (“SIRVA”). See generally Petition (“Pet.”), ECF No. 1.
On December 10, 2015, respondent filed a proffer for an award of compensation. Proffer, ECF
No. 39. The undersigned issued a decision awarding petitioner compensation according to
respondent’s Proffer on December 11, 2015. Decision, ECF No. 40. Petitioner now seeks an
award of attorney’s fees and costs in the amount of $28,324.39, pursuant to Section 15(e) of the
1
Because this unpublished decision contains a reasoned explanation for the action in this case, it
will be posted on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance
with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If,
upon review, I agree that the identified material fits within this definition, I will delete such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
Vaccine Act. Motion for Attorney’s Fees (“Motion for Fees”), ECF No. 46. After careful
consideration, the undersigned has determined to grant the request in part for the reasons set
forth below.
I. Procedural History.
This case was filed on July 14, 2014 and initially assigned to Special Master Dorsey.
ECF No. 1, 5.3 An initial status conference was held on October 23, 2014. Petitioner filed
medical records via CD on October 31, 2014, and January 5, 2015. Petitioner’s Exhibits (“Pet.
Ex.”) 1-7. Respondent filed her Rule 4(c) Report (“Rsp. Rpt.”) on July 1, 2015, indicating that
this matter was appropriate for compensation. ECF No. 26. On July 2, 2015, Chief Special
Master Dorsey issued a Ruling on Entitlement, finding that the petitioner was entitled to
compensation. Ruling on Entitlement, ECF No. 27. That same day, the special master issued a
Damages Order, encouraging the parties to resolve damages informally. Damages Order, ECF
No. 28.
This case was reassigned to me on October 19, 2015. ECF No. 36. Respondent filed a
proffer for an award of compensation on December 10, 2015. ECF No. 39. I issued a decision
awarding compensation to the petitioner on December 11, 2015. ECF No. 40.
Petitioner filed a motion for attorneys’ fees on June 6, 2016. Motion for Fees, ECF No.
46. Before petitioner filed her petition, she had retained attorneys at Curtis Legal Group
(“Curtis”) to prosecute her case in federal district court. See Petitioner’s Reply to Response to
Motion for Attorneys’ Fees (“Reply”), ECF No. 48. Upon learning that this was a Vaccine
Program matter, Curtis contacted Martin Martinez (“Mr. Martinez”), an attorney with experience
in the Vaccine Program, to handle petitioner’s petition. Mr. Martinez and Curtis agreed to
represent petitioner as co-counsel “as they [Curtis] had built up a trust between their office and
the petitioner.” Reply to Response to Motion (“Reply”) at 3, ECF No. 48. Petitioner has
requested fees and costs for the Curtis Law Firm in the amount of $9,015.00 in attorneys’ fees
and $1,444.39 in expenses, for a total of $10,459.39. Id. Petitioner requests attorneys’ fees for
Mr. Martinez in the amount of $17,465.00 and costs in the amount of $400.00 for a total of
$17,865.00. Id.
Respondent filed a response to the petitioner’s motion for fees on June 23, 2016.
Response to Motion for Attorneys’ Fees (“Response”), ECF No. 47. Respondent made no
specific objections to the attorneys’ hours or rates, but simply offered a range of $11,000 to
$14,000 as reasonable attorneys’ fees for this case. Respondent listed a number of cases
involving a similar vaccine injury in which the amount of attorneys’ fees awarded is within the
range suggested by respondent. Response at 3.
Petitioner filed a reply to this response on June 27, 2016. Petitioner argued that
respondent is advocating “a table like cap on attorney fees” which would have a chilling effect
on the prosecution of SIRVA cases. Reply at 1-3. Furthermore, petitioner contends that the
attorneys’ fees requested are “reasonable due to the results achieved for the petitioner.” Id. at 3.
3
Special Master Dorsey was elevated to Chief Special Master on September 1, 2015.
2
This matter is now ripe for decision.
II. Applicable Law.
In order to be eligible to practice in the Vaccine Program, an attorney must be admitted to
practice in the Court of Federal Claims. Vaccine Rule 14(a)(1). An attorney who is not eligible to
practice in the Vaccine Program cannot recover attorneys’ fees. Underwood v. Sec’y of HHS, No.
00-357V, 2013 WL 3157525, at *4 (Fed. Cl. Spec. Mstr. May 31, 2013). Furthermore, an
attorney who is not admitted to practice before the Court of Federal Claims is not eligible to
serve “of counsel” and collect fees for his work. Id.; Vaccine Rule 14(b).
However, attorneys who refer cases to practitioners in the Vaccine Program are eligible
to receive fee awards for work that contributed to the litigation of petitioner’s claim. See, e.g.,
Barrett v. Sec’y of HHS, No. 09-389, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014)
(awarding fees to an attorney whose work on petitioner’s claim predated the filing of the
petition). For example, special masters have routinely awarded costs where an attorney who does
not practice in the Vaccine Program has been retained to establish a guardianship, when that
guardianship is a condition of the settlement. Id. at *5 (discussing the practice of awarding the
costs of establishing a guardianship). Fees for these referral attorneys are determined using the
same method and standards used to award fees to practitioners in the Vaccine Program. Id. at *14
(“[T]he reasonableness of a referring attorney’s pre-filing activity is subject to the same standard
that governs the fee requests of the attorneys who actually litigated the case.”)(Internal citations
omitted).
The Vaccine Act permits the payment of reasonable fees and costs. The fact finder uses a
lodestar method – multiplying a “reasonable” fee by the hours the attorney worked. Blanchard v.
Bergeron, 489 U.S. 87, 94 (1989); Schueman v. Sec’y of HHS, No. 04-693V, 2010 WL 3421956,
at *3 (Fed. Cl. Spec. Mstr. Aug. 11, 2010). While respondent does have the opportunity to object
to said amount, pursuant to the Vaccine Rules, when no justification or specific objection is
proffered, her “representation carries very little weight.” Reyes v. Sec’y of HHS, No. 14-953V,
2016 WL 2979785, at *1 (Fed. Cl. Spec. Mstr. Apr. 27, 2016) (specifically when the attorneys of
record supply detailed time sheets and present a complete case). However, respondent’s failure to
object to fees and costs billed by petitioner’s counsel does not require the special master to find
the request reasonable, or to give petitioner a “second chance to explain.” Savin ex rel. Savin v.
Sec’y of HHS, 85 Fed. Cl. 313, 319 (2008).
The recent decision in McCulloch provides a framework for consideration of appropriate
ranges for attorneys’ fees based on the experience of a practicing attorney. McCulloch v. Sec’y of
HHS, No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). According to
McCulloch, if an attorney has been practicing for 20 or more years, an appropriate range is
approximately $350 to $425 per hour. Id. If an attorney has 11 to 19 years of experience, $300 to
$375 is proper. Id. An appropriate range for an attorney with 8 to 10 years of experience would
be $275 to $350. Id. For 4 to 7 year years of experience, $225 to $300 is sufficient. Id. If an
attorney has fewer than 4 years of experience, he/she should receive between $150 and $225. Id.
3
In determining an appropriately hourly rate, Special Master Gowen concluded that the
following factors should be considered: (1) the prevailing rate for comparable legal work in the
forum of Washington, D.C.; (2) the prevailing rate for cases in the Vaccine Program; (3) the
attorney’s experience in the Vaccine Program; (4) the attorney’s overall legal experience; (5) the
quality of the work performed in vaccine cases; and (6) reputation in the legal community and
community at large. Id. at *17.
III. Discussion.
In her response, respondent provided no specific objection to the amount requested or the
hours worked in this matter, but instead, offered a range which she believes is reasonable to pay
the attorneys who worked on this case. Response at 3. Rather, respondent “reminded” the Court
of its discretion in awarding fees, quoting Fox v. Vice, and reiterated the fact that ‘the
determination of [attorneys’] fees “should not result in a second major litigation.”’ Response at
2-3. Respondent proffered that a “reasonable” amount for fees and costs in this case would fall
between $11,000.00 and $14,000.00, without specifically addressing how that range applied to
this particular matter.
Based on the billing records submitted by both Mr. Martinez and Curtis, it appears that
petitioner initially presented to Curtis with the intent of filing a medical malpractice/personal
injury suit. Curtis collected petitioner’s medical records and sent a demand to the malpractice
insurance carrier of the hospital where petitioner received the DTaP vaccine. Motion, Exhibit 2,
at 1 [ECF No. 46-2]. Upon researching the governing vaccine injury claims, Curtis discovered
that petitioner’s appropriate avenue of recourse was to file a petition in the Vaccine Program,
which is under the jurisdiction of the U.S. Court of Federal Claims. Curtis then sought out an
attorney who was admitted to practice in the Vaccine Program. Motion, Exhibit 2, at 2 [ECF No.
46-2]. Curtis contacted Mr. Martinez on April 18, 2014; billing records indicate that a retainer
agreement between petitioner and Mr. Martinez was signed on April 28, 2014. Id. Accordingly,
Curtis, as referring attorneys, will receive attorneys’ fees for work billed through April 28, 2014
– when Mr. Martinez officially began to represent petitioner in the Vaccine Program.
Mr. Martinez has been licensed to practice law since 1981, and has been practicing in the
Vaccine Program since 2008. Motion at 3. He practices in the San Francisco Bay Area and
therefore qualifies for forum rates. Mr. Martinez previously received his requested hourly rate of
$350 for work performed from 2015 to 2016. See Dineen v. Sec’y of HHS, No. 15-700, 2016 WL
1627199 (Fed. Cl. Spec. Mstr. Apr. 4, 2016). Furthermore, based on his experience both in the
Vaccine Program and overall, an hourly rate of $350 is appropriate under McCulloch.
Petitioner did not submit any information on the experience or qualifications of the
attorneys at Curtis Legal Group. However, according to Curtis’s website, the attorneys working
on this matter have been practicing for the following amounts of time: Andrew Mendlin, 20
years; Eric Gutierrez, 11 years; and Peter Fisher, 7 years. Curtis is situated in the San Francisco
Bay Area; therefore, these attorneys qualify for forum rates. However, none of these attorneys
have any experience in the Vaccine Program. Accordingly, I award hourly rates as follows:
Andrew Mendlin, $350; Eric Gutierrez, $300; and Peter Fisher, $225. Their paralegal, Barbara
4
Castro, is awarded an hourly rate of $125. Therefore, the fees awarded to Curtis Legal Group are
reduced to a total of $3,580.
2013 Rates Total 2014 hours Rates Total
hours (through
4/28/2014)
Andrew 0 3 $350 $1,050
Mendlin
Eric 3.6 $300 $1,080 0
Gutierrez
Peter Fisher 0 4.5 $225 $1,012.5
Barbara 1.5 $125 $187.5 2 $125 $250
Castro
4.8 $1,267.5 9.5 $2,312.5
Sum $3,580
Total:
It appears that all of the costs were borne by the Curtis firm in their representation of
petitioner. Mr. Martinez submitted only costs for the filing of the petition in the amount of $400.
Therefore, the Curtis firm will be reimbursed for its costs in this matter in the amount $1,444.39.
After reviewing the billing records, the amount of hours billed by Mr. Martinez seems
reasonable and I see no erroneous or duplicative billing. See generally Motion. I therefore see no
reason to reduce petitioner’s application for fees and costs for Mr. Martinez.
IV. Total Award Summary.
In light of the foregoing and pursuant to § 15(e)(1), I award the total of $22,889.39 as
follows:
A lump sum of $17,865.004 representing reimbursement for attorneys’ fees and
costs, in the form of a check made payable jointly to petitioner and petitioner’s
counsel of record, Martin Martinez; and
A lump sum of $5,024.39 representing reimbursement for attorneys’ fees and
costs, in the form of a check made payable jointly to petitioner and Curtis Legal
Group.
4
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs,” as well as fees for
legal services rendered. Furthermore 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from
charging or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally, Beck v. Sec’y of HHS, 924 F.2d 1029 (Fed. Cir. 1991).
5
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
5
Entry of judgment can be expedited by each party’s filing or a joint filing of a notice
renouncing the right to seek review. See Vaccine Rule 11(a).
6