In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 21, 2016
* * * * * * * * * * * * * * * * UNPUBLISHED
SHERMIAN P. DANIEL, M.D., *
* No. 10-745V
Petitioner, *
* Chief Special Master Dorsey
v. *
* Reasonable Attorney’s Fees and
SECRETARY OF HEALTH * Costs.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for petitioner.
Debra Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1
On October 29, 2010, Shermian Daniel (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program 2 alleging that the Human Papilloma Virus (“HPV”)
vaccinations she received on August 31, 2007, and October 30, 2007, caused a significant
aggravation of pre-existing acute disseminated encephalomyelitis (“ADEM”) and/or multiple
sclerosis (“MS”). Petition at ¶ 22. Petitioner later amended her petition, alleging only that the
October 30, 2007 vaccination was the cause of her alleged injuries. Amended Petition at ¶ 50.
On October 6, 2016, the parties filed a stipulation in which they stated that a decision
should be entered awarding compensation. The following day, the undersigned issued a decision
based on the parties’ stipulation, awarding petitioner $350,000.00. Decision dated October 7,
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).
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.
1
2016 (ECF No. 141). On October 30, 2016, petitioner filed a motion for attorneys’ fees and
costs. Petitioner’s Application (“Pet’r’s App.”) dated October 30, 2016 (ECF No. 145).
I. Procedural History
a. Petitioner’s Application for Fees and Costs
Petitioner requests an award of $145,527.45 in attorneys’ fees and $35,623.92 in costs,
for a total of $181,151.37. Pet’r’s App. at 2; see also Pet’r’s App., Ex. 2 at 95. In support of her
motion, petitioner states that her attorney, Mr. Robert Krakow, worked on her case for
approximately six years. Id. at 1. Petitioner filed contemporaneously created time and expense
sheets documenting the 440.85 total hours of work performed by Mr. Krakow and his associate,
Ms. Susan Lee. Petitioner also provided invoices from a mediator and from petitioner’s two
expert witnesses, Dr. Nizar Souayah and Dr. Lawrence Steinman. Pet’r’s App., Exs. 2-5.
b. Respondent’s Response to Petitioner’s Motion for Fees and Costs
Respondent filed a response on November 17, 2016, in which she raised a general
objection to the overall cost of petitioner’s application. Respondent’s Response (“Resp’s Resp.”)
dated November 17, 2016 (ECF No. 147). Respondent stated her belief that the statutory
requirements for an award of attorneys’ fees were met and stated that “the determination of the
amount of reasonable attorneys’ fees is within the special master’s discretion.” Id. at 2 (quoting
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993)); see also §
300aa-15(e)(1)(A)-(B). Although respondent recommended a range of $75,000.00 to
$88,000.00, she defers to the undersigned to determine a reasonable amount of fees and costs.
Id. at 3.
c. Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for Fees
and Costs
Petitioner filed a reply on November 17, 2016, arguing that respondent’s recommended
range “constitutes a significant and unjustified reduction of the attorney[s’] fees and costs
claimed by petitioner, which are supported by a detailed invoice and substantial supporting
evidence.” Pet’r’s Reply dated November 17, 2016 (ECF No. 148) at 1.
This matter is now ripe for a decision on petitioner’s motion for attorneys’ fees and costs.
For the reasons set forth below, the undersigned GRANTS petitioner’s motion for attorneys’ fees
and costs and awards a total of $181,116.37.
II. Discussion
a. Reasonable Attorneys’ Fees
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(e)(1).
Petitioner in this case was awarded compensation pursuant to a stipulation, and therefore she is
entitled to an award of reasonable attorneys’ fees and costs.
2
The undersigned has recently considered the hourly rates of Mr. Krakow, finding that he
is entitled to the following hourly rates: $396.00 per hour in 2014, $413.00 per hour in 2015, and
$425.00 per hour in 2016. See Laderer v. Sec’y of Health & Human Servs., 09-97V, 2016 WL
3044838 (Fed. Cl. Apr. 20, 2016). Other special masters have found the same rates to be
reasonable in light of other decisions awarding similar rates to similarly situated attorneys. See
Raszkiewicz v. Sec’y of Health & Human Servs., 15-509V, 2016 WL 6599966 (Fed. Cl. Oct. 14,
2016). The undersigned adopts the reasoning of her earlier decision in Laderer for the instant
analysis and awards petitioner’s counsel hourly rate amounts in accordance with that decision.
The undersigned has carefully reviewed petitioner’s billing records and notes that
occasionally, petitioner may have inadvertently billed paralegal tasks at the attorney’s hourly
rate 3 and that a few of the billing entries are vague. 4 Additionally, it appears that a few of the
billing entries are for time that is administrative in nature. 5 However, upon closely reviewing
petitioner’s application, the undersigned observed that petitioner’s counsel exercised discretion
with regard to the amount of time billed and occasionally did not charge for otherwise billable
time. 6
Petitioner’s counsel spent approximately six years working on the case, which involved
fairly complicated medical issues. Although mediation failed, a settlement was ultimately
reached, with petitioner receiving an award of $350,000.00. Petitioner’s billing record is
comprehensive and contains fairly detailed descriptions of the work performed and the amount
of time spent on each task. The undersigned also appreciates petitioner’s diligence in ensuring
that all of the time spent was reasonable. Thus, she will not further police petitioner’s
application and finds the overall amount of attorneys’ fees to be reasonable.
b. Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perriera v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
3
Attorneys may be compensated for non-attorney level work, but usually at a rate that is
comparable to what would be paid for a paralegal or secretary. Mostovoy v. Sec’y of Health &
Human Servs., 2016 WL 720969 (Fed. Cl. Spec. Mstr. February 4, 2016).
4
For example, petitioner occasionally billed time for reviewing the file and/or the status of the
case. Without further information, these billing entries are vague. The undersigned thus warns
petitioner’s counsel that these types of entries may not be compensated in the future. The
undersigned has previously found it reasonable to reduce the fees paid to attorneys due to vague
and/or excessive billing. Mostovoy, 2016 WL 720969.
5
It is well established that billing for administrative work is not permitted in the Vaccine
Program. Mostovoy, 2016 WL 720969; Rochester v. United States, 18 Cl. Ct. 379, 387 (1989).
6
See, e.g., Pet’r’s App., Ex. 2 at 59, 70, 74. See also Pet’r’s Reply at 7, n. 2 (“Petitioner …
waives her claim to supplemental fees for the time expended by her attorney to review
respondent’s Response and prepare petitioner’s Reply.”) (emphasis in original).
3
$35,623.92 for costs incurred between 2010 to 2016. Pet’r’s App. at 2; see also Pet’r’s App., Ex.
3. Petitioner’s costs include reimbursement for half of the mediation costs 7 as well as the expert
witness fees of Dr. Souayah 8 and Dr. Steinman. 9 Petitioner provided detailed contemporaneous
billing records from both the mediator and her experts which specify the amount of time spent
and the services performed. Petitioner also requested reimbursement for filing fees, medical
record fees, postage, photocopies, and travel expenses.
The undersigned notes that petitioner’s records contain a bill for $35.00 from Pediatric
Ear, Nose & Throat of Atlanta, Georgia. Pet’r’s App., Ex. 3, at 23-24. This appears to be a
mistake, as the records were collected were for a person who is not the petitioner in this case. 10
Thus, the undersigned will not compensate petitioner for these costs. For this reason, the
undersigned reduces petitioner’s costs by $35.00, awarding petitioner a total of $35,588.92 in
costs.
III. Conclusion
Based on all of the above, the undersigned finds that petitioner’s counsel is entitled to a
reimbursement of attorneys’ fees and costs.
Accordingly, the undersigned awards a lump sum of $181,116.37, representing
reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, the Law Office of Robert J. Krakow, P.C.
7
The parties agreed that one half of the mediation costs would be covered by petitioner and one
half of the costs would be paid by respondent. Pet’r’s App., Ex. 3 at 99.
8
Dr. Souayah billed a total of 44.40 hours at a rate of $500.00 per hour, amounting to an overall
bill of $22,200.00. Pet’r’s App., Ex. 4 at 1-3. The undersigned has previously awarded Dr.
Souayah an hourly rate of $500.00 per hour. Laderer, 2016 WL 3044838. Furthermore, Dr.
Souayah’s bill contains contemporaneous and detailed records explaining the amount of time
spent and the work performed. Thus, the undersigned reimburses these costs in full.
9
Dr. Steinman billed a total of 4.0 hours at a rate of $500.00 per hour, amounting to an overall
bill of $4,000.00. Pet’r’s App., Ex. 5 at 1. Dr. Steinman has previously been awarded hourly
rates between $450.00 to $500.00 per hour. Brown v. Sec’y of Health & Human Servs., 09-
426V, 2012 WL 952268 (Fed. Cl. Spec. Mstr. February 29, 2012). Dr. Steinman performed an
initial review of some of the medical records and respondent’s expert report and was instructed
to wait until further instructions were received from petitioner’s counsel. Pet’r’s App., Ex. 5 at
1. Ultimately, petitioner’s cases did not require an expert report from Dr. Steinman. However,
and especially in light of the limited amount of time spent and the prudence of petitioner’s
counsel in ensuring that unnecessary work was not performed, the undersigned finds Dr.
Steinman’s work reasonable and will compensate him in full.
10
Petitioner’s counsel confirmed in an email sent to the undersigned’s law clerk on December
21, 2016, that this receipt was placed in petitioner’s application in error.
4
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision. 11
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
11
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
5