In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: February 18, 2020)
* * * * * * * * * * * * * *
LUCIANNA DILSAVER, * UNPUBLISHED
* No. 16-716V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway Homer, P.C., Boston, MA, for Petitioner;
Gabrielle M. Fielding, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On June 20, 2016, Lucianna Dilsaver (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 to -34
(2012). Petitioner alleged she suffered from dermatomyositis and necrotizing autoimmune
myopathy as a result of receiving an influenza (“flu”) vaccination on October 8, 2014. Petition.
(ECF No. 1 at 1). On July 25, 2019, a decision was issued awarding compensation to Petitioner
based on the parties’ stipulation. Decision (ECF No. 43).
On October 22, 2019, Petitioner filed an application for attorneys’ fees and costs. Motion
for Attorney Fees and Costs (ECF No. 50) (“Fees App.”). Petitioner requests compensation in
the amount of $62,710.05, representing $38,942.20 in attorney fees and $23,747.80 in attorney
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the
Ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner
has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a
reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of
Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
costs. Fees App. at 1- 2. Pursuant to General Order No. 9, Petitioner warrants that she has
personally incurred costs in the amount of $20.05 in pursuit of this litigation. Id. at 2.
Respondent filed his response on November 1, 2019 indicating that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case” Response. at 2-3,
(ECF No. 52). Petitioner did not file a reply thereafter. This matter is now ripe for consideration.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $62,710.05.
I. 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(e)(1).
When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
and costs “if the special master or court determines that the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.” Id. at
§15(e)(1). In this case, because petitioner was awarded compensation pursuant to a stipulation, a
final award of reasonable attorneys’ fees and costs is proper.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs.,
515F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s 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 and 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 of Health and 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 [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
A special master need not engage in a line-by-line analysis of a petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health and
Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d in
relevant part, 988 F. 2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.
i. Reasonable Hourly Rate
The undersigned has reviewed the rates requested for work of her counsel at Conway,
Homer, P.C. (the billing records indicate that the majority of the attorney work was performed by
Mr. Joseph Pepper, while supporting work was performed by Mr. Ronald Homer, Ms. Meredith
Daniels, Ms. Christina Ciampolillo, and Ms. Lauren Faga), and finds that the requested rates are
reasonable and in accordance with what these Conway, Homer, P.C. attorneys, law clerks, and
paralegals have previously been awarded for their Vaccine Program work. Accordingly, the
requested hourly rates are reasonable.
ii. Reasonable Number of Hours
The undersigned has reviewed the submitted billing entries and finds the total number of
hours billed to be reasonable. The billing entries accurately reflect the nature of the work
performed and the undersigned does not find any of the entries to be objectionable. Respondent
also has not indicated that he finds any of the entries to be objectionable either. Accordingly,
petitioner is entitled to the full amount of attorneys’ fees sought, $38,942.20.
b. Attorney Costs
Petitioner requests a total of $23,747.80 in attorneys’ costs. This amount is comprised of
acquiring medical records, the Court’s filing fee, travel expenses from petitioner’s
counsel to meet with petitioner and the work of petitioner’s expert Dr. Samar Gupta for review
of medical records and preparation of a submitted expert report. Fees App at 24. All of these
costs are typical of Vaccine Program litigation and petitioner has provided adequate
documentation supporting them. Concerning the work of Dr. Gupta, the undersigned makes no
finding as to the reasonableness of Dr. Gupta’s hourly rate – however, the hours billed are
reasonable and the total amount requested is reasonable for the work performed in the instant
case. Accordingly, the requested attorneys’ costs are reasonable, and petitioner shall be fully
reimbursed.
c. Petitioners’ Costs
Pursuant to General Order No. 9, petitioner warrants that she has personally incurred
costs in the amount of $20.05 in pursuit of this litigation for postage. Fees App. at 2. Petitioner
has provided adequate documentation for this cost and the undersigned finds it to be reasonable.
Petitioner is therefore entitled to a full reimbursement of costs incurred.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsel as follows:
Attorneys’ Fees Requested $38,942.20
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $38,942.20
Attorneys’ Costs Requested $23,747.80
Total Attorneys’ Costs Awarded $23,747.80
Total Attorneys’ Costs Awarded $20.05
Total Amount Awarded $62,710.05
Accordingly, the undersigned awards the following:
1) $62,690.00 in attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Mr. Ronald Homer; and
2) $20.05 in petitioner’s costs, in the form of a check payable to petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court
is directed to enter judgment herewith.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
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.