In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
SHAWN SHORKEY, *
* No. 15-768V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: April 21, 2017
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs.
*
Respondent. *
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Lawrence R. Cohan and David J. Carney, Anapol Weiss, Philadelphia, PA, for
petitioner;
Colleen C. Hartley, U.S. Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION ON FEES AND COSTS 1
On March 20, 2017, petitioner moved for final attorneys’ fees and costs in
the above-captioned matter. Petitioner is awarded $38,934.91.
On July 23, 2015, Shawn Shorkey filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012), alleging
that the influenza vaccine, which is contained in the Vaccine Injury Table, 42
C.F.R. §100.3(a), and which he received on November 15, 2012, caused him to
suffer chronic inflammatory demyelinating polyneuritis. The undersigned issued a
decision awarding compensation to Mr. Shorkey based on the parties’ stipulation.
Decision, 2017 WL 1330324 (Mar. 16, 2016).
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
Because Mr. Shorkey received compensation, he is entitled to an award of
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e).
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate . . . by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348.
* * *
Mr. Shorkey seeks a total of $41,782.71 ($36,825.50 in attorneys’ fees and
$4,957.21 in costs) for his counsel. In compliance with General Order No. 9, Mr.
Shorkey states that he advanced no monies for reimbursable costs in pursuit of his
claim. For hourly rates, Mr. Shorkey’s counsel, David J. Carney, billed $290 per
hour. This rate is reasonable, in accord with McCulloch, and has previously been
awarded. See McCulloch v. Sec’y Health & Human Servs., No. 09–293V, 2015
WL 5634323, *16 (Fed. Cl. Spec. Mstr. Oct. 18, 2016), Florence v. Sec’y of
Health & Human Servs., No. 15-255V, 2016 WL 6459592 (Fed. Cl. Spec. Mstr.
Oct. 6, 2016)
Mr. Carney received assistance from, Lawrence Cohan, a partner at the law
firm. Mr. Cohan billed $400 per hour for work done on the case. Additionally,
Mr. Shorkey seeks reimbursement for paralegal Robin Puccio who billed $125 per
hour. Both rates are reasonable, in accord with McCulloch, and have previously
been awarded. See id.
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See Shea v. Secʼy of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,
2
2015) (“special masters are not obligated to evaluate an attorney’s billing records
on a line-by-line basis in making the reasonableness determination . . . and
certainly need not do so when Respondent has not attempted to highlight any
specific alleged inefficiencies”). Here, and similar to in Florence, the attorneys’
timesheets are organized and do not contain block entries, but excessive time is
billed for routine tasks and the timesheets contain vague entries. In Florence, the
undersigned found that petitioner’s counsel had billed ten percent too many hours
due to excessive billing and vague time entries. Florence, 2016 WL 6459592, *2-3
(citing Fox v. Vice, 563 U.S. 826, 838 (2011)). The same “rough justice” applies
here resulting in a deduction of $2,847.80.
In addition to seeking attorneys’ fees, the Mr. Shorkey seeks an award of
costs for his counsel. Most of the costs are relatively routine, such as costs for
medical records retrieval, mailings, and photocopies. These costs are reasonable,
documented, and are awarded in full. The remaining costs are for the retainer of
neurologist Lawrence Steinman. Dr. Steinman’s invoice, dated February 19, 2015,
states that the $3,000 retainer covers the first six hours of services. The timesheets
state that Dr. Steinman was retained prior to the filing of the case for purposes of
“expert case review.” The cost is awarded in full.
After reviewing the request, the Court awards the following:
a. A lump sum of $38,934.91 in the form of a check made payable
to petitioner and petitioner’s attorney, Lawrence R. Cohan, of
Anapol Weiss.
This represents reimbursement for attorneys’ fees other litigation costs available
under 42 U.S.C. § 300aa-15(e). 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.2
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
3