In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1083V
Filed: January 27, 2017
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REBECCA SWANICK, on behalf of J.S., * UNPUBLISHED
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Petitioner, * Special Master Gowen
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v. * Attorneys’ Fees and Costs
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SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
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Respondent. *
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Brian S. McCormick, Orlando & Associates, Gloucester, MA, for petitioner.
Michael Patrick Milmoe, United States Department of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 28, 2015, Rebecca Swanick (“petitioner”) filed a petition on behalf of her
minor daughter, J.S., for compensation under the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged that J.S. suffered a syncopal
episode resulting in a fractured jaw and broken teeth as a result of the Flumist, Hepatitis A,
Tetanus-Diphtheria-acellular Pertussis, and Menactra vaccines administered on October 15, 2012.
Petition at Preamble, ¶ 2, filed Sept. 28, 2015. On August 31, 2016, respondent filed a Rule 4(c)
report in which she conceded that petitioner was entitled to compensation. Respondent’s Report
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.
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(“Resp’t Report”) at 1. That same day, the undersigned issued a Ruling on Entitlement finding
that petitioner was entitled to compensation based on an injury caused-in-fact by one or more of
the vaccines at issue.
Respondent also filed a Proffer on an award of compensation as part of her Report. The
Proffer indicated that petitioner agreed to compensation in the amount of $90,000.00, for all
elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). A
decision awarding petitioner $90,000.00 in compensation, pursuant to the terms of the Proffer, was
issued on August 31, 2016.
On January 12, 2017, petitioner filed an application for attorneys’ fees and costs.
Petitioner’s (“Pet.”) Motion (“Mot.”) at 1. Petitioner requested $28,725.00 in attorneys’ fees for
her counsel, Mr. Brian S. McCormick of Orlando Associates and $3,674.60 in costs,3 coming to a
total of $32,099.60 in attorneys’ fees and costs. Pet. Mot. at 1, Exhibit A at 9. Pursuant to General
Order #9, petitioner states that she did not incur any fees or costs related to the prosecution of this
petition. See General Order #9 Statement, filed Jan. 27, 2017. On January 18, 2017, respondent
filed a response to petitioner’s application, in which she “respectfully recommend[ed] that the
special master exercise his discretion and determine a reasonable award for attorneys’ fees and
costs.” Respondent’s Response at 3.
I. Attorneys’ Fees and Costs
a. 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(3)(1). In the
present case, petitioner was awarded compensation pursuant to the terms of a joint stipulation.
Therefore, petitioner is entitled to an award of reasonable attorneys’ fees and costs.
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.
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These costs include an invoice from attorney Mr. Troy M. Sullivan for work related to setting up a
conservatorship for petitioner and her minor daughter J.S., in the amount of $2,612.00. They also include
costs of obtaining the medical records, proceeding in the Vaccine Program and probate court, copies, and
postage, in the amount of $762.60.
2
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. 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 his experience and judgment,
[is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee
request sua sponte, apat from objections raised by respondent and without providing petitioners
notice and an opportunity to respond. Sabella v. Secy’ of Health & Human Servs., 86 Fed. Cl.
201, 209 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner’s
fee application when reducing fees. Broekelschoen v. Secy’ of Health & Human Servs.,102 Fed.
Cl. 719, 729 (Fed Cl. 2011). Just as “[t]rial courts routinely use their prior experience to reduce
hourly rates and the number of hours claimed in attorney fee requests . . . [v]accine program special
masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3
F.3d at 1521 (citing Farrar v. Secy’ of Health & Human Servs., 1992 WL 336502 at *2-3 (Cl. Ct.
Spec. Mstr. Nov. 2, 1992).
i. Reasonable Hourly Rate
Petitioner requests that her counsel, Mr. McCormick, be paid at a rate of $375.00 per hour.
The undersigned recently discussed the range of appropriate hourly rates to be awarded, based on
an attorney’s years of experience. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Under McCulloch, the appropriate range
for an attorney with 11 to 19 years of experience is $300 to $375 per hour. Id. at *19. The
particular attorney’s experience in the Vaccine Program, overall legal experience, quality of work,
and reputation in the legal community and the community at large should also be considered. Id.
at *17.
Upon submission of the application for attorneys’ fees and costs, Mr. McCormick had been
licensed to practice law for 19 years. See Orlando & Associates – Brian S. McCormick, Esq.,
http://orlandoassociates.com/brian-s-mccormick-esq/ (providing that Mr. McCormick was
admitted to the bar of the Commonwealth of Massachusetts in 1987). He was admitted to practice
before the U.S. Court of Federal Claims on February 2016. Docket Entry on Feb. 22, 2016. This
is his first case in the Vaccine Program. The undersigned finds, based on his consideration of the
factors listed above, that it is appropriate to award a rate of $350.00 per hour to Mr. McCormick.
ii. Hours Expended
Mr. McCormick logged a total of 76.6 hours on this case, from August 2014 to January
2017. He conducted a few hours of preliminary research on the Vaccine Program (as this was his
first case in the Program). He also logged communications with petitioner, efforts to obtain
medical records, preparation of filings to the Court, and communications with respondent’s
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counsel which resulted in a successful result for petitioner. The undersigned finds that the hours
expended in this case were reasonable and will not be adjusted.
b. Costs
The requirement that attorneys’ fees be reasonable also applies to costs. McCulloch, 2015
WL 5634323 at *5 (citing Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992).
Petitioner’s application for costs includes an invoice from Mr. Troy M. Sullivan.
Petitioner’s (“Pet.”) Motion (“Mot.”) at 1, Exhibit A at 9-10. Mr. Sullivan is an estate planning
attorney with sixteen years of legal experience. See The Sullivan Firm – About Us,
http://estateplannermass.com/about/#sthash.pEsUjYeR.dpbs; Troy M. Sullivan LinkedIn Profile,
https://www.linkedin.com/in/troymsullivan (providing that he graduated from law school and
began working as an associate in 2000). Mr. Sullivan billed $275.00 per hour for 9.5 hours of
work setting up a conservatorship for the minor, J.S. Pet. Mot. at 9-10. The undersigned finds
that this is comparable to the cost of creating conservatorships in other Vaccine Program cases,
and it is reasonable.
Petitioner’s remaining costs are for medical records, legal proceedings in the Vaccine
Program and in the probate court, copying and postage. These costs total $762.60. The
undersigned finds that these costs are also reasonable and they will not be adjusted.
II. Conclusion
Upon review of the documentation of the requested attorneys’ fees and costs, and based on
his experience with the Vaccine Act and its attorneys, the undersigned finds that it is reasonable
to award a rate of $350.00 per hour for 76.6 hours of legal work performed by Mr. McCormick,
for a total of $26,810.00 in attorneys’ fees. He finds that the requested costs, totaling $3,674.60,
are reasonable and need not be adjusted. Accordingly, he awards a total of $30,484.60 in attorneys’
fees and costs.
The undersigned awards attorneys’ fees and costs as follows:
(1) A lump sum of $30,484.60 in the form of a check payable jointly to petitioner
and petitioner’s counsel, Brian S. McCormick of Orlando & Associates, for
attorneys’ fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance herewith.4
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Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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