In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-628V
(not to be published)
*************************
CAMERON SHARP, *
* Chief Special Master Corcoran
*
Petitioner, * Filed: August 31, 2020
*
v. *
* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
*
Respondent. *
*
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Jessica A. Olins, Maglio Christopher and Toale, PA, Seattle, WA, for Petitioner.
Camille M. Collett, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On May 11, 2017, Cameron Sharp filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged he suffered from
chronic inflammatory demyelinating polyneuropathy as a result of the influenza vaccine he
received on December 7, 2015. Petition (ECF No. 1). On March 12, 2019, the parties filed a
stipulation, which I adopted as my decision awarding compensation on March 25, 2020. (ECF No.
51).
1
Although I have not designated this Decision for publication, it will be made available 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). 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, I agree that the identified material fits within this definition, I will
redact such material from the public Decision.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated April 21,
2020 (ECF No. 56) (“Fees App.”). Petitioner requests a total award of $48,668.75 (representing
$42,862.30 in fees and $5,806.45 in costs). Fees App. at 1. Pursuant to General Order No. 9,
Petitioner warrants that he has personally incurred costs of $661.08 in pursuit of this litigation. Id.
at 2. Respondent reacted to the Fees Motion on May 1, 2020, indicating that he is satisfied that the
statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring
to my discretion to determine the amount to be awarded. Response, at 2-3 (ECF No. 58). Petitioner
filed a reply on May 1, 2020, reiterating his belief that the requested amount of fees and costs is
reasonable. (ECF No. 59).
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding final
attorney’s fees and costs in the amount of $49,329.83.
ANALYSIS
Vaccine Program attorneys are entitled to a fees award in successful cases like this one.
Determining the appropriate amount of that award is a two-part process. The first part involves
application of the lodestar method – “multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d
1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second
part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered
applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,
461 U.S. 424, 429-37 (1983).
3
An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999) ).
2
Determining the appropriate amount of that award is a two-part process. The first part
involves application of the lodestar method – “multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human
Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888
(1984)).4 The second part involves adjusting the lodestar calculation up or down to take relevant
factors into consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is
considered applicable in most cases where a fee award is authorized by federal statute. Hensley v.
Eckerhart, 461 U.S. 424, 429-37 (1983).
Petitioner requests the following rates for the work of his counsel: for Ms. Amber Wilson,
$290.00 per hour for work performed in in 2017, $308.00 per hour for work performed in 2018,
$323.00 per hour for work performed in 2019; and $345.00 per hour for work performed in 2020;
and for Ms. Jessica Olins, $225.00 per hour for work performed in 2020. Fees App. Ex. 1 at 30.
These rates are consistent with what Ms. Wilson and Ms. Olins have previously been awarded by
me and other special masters for their work in the Vaccine Program, and they are reasonable for
the work performed in the instant case. In addition, I have reviewed the billing entries and
otherwise find them to be reasonable. The billing entries describe with sufficient detail the task
being performed and the time spent on each task. Respondent has not identified any particular
entries as objectionable and upon review, I did not find any entries to be objectionable either.
Accordingly, Petitioner is entitled to a final award of attorney’s fees of $42,862.30.
I will next turn to costs. Just as they are required to establish the reasonableness of
requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining
medical records and expert time incurred while working on a case. Fester v. Sec’y of Health &
4
An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999) ).
3
Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).
When petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding compensation. See,
e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4
(Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioner requests $5,806.45 in overall costs. Fees. App. Ex. 2 at 1-2. This amount is
comprised of obtaining medical records, the filing fee, postage, and costs associated with
mediation. I have reviewed all of the requested costs and find them to be reasonable, and Petitioner
has provided adequate documentation supporting them. Accordingly, Petitioner is entitled to the
full amount of costs requested.
Pursuant to General Order No. 9, petitioner warrants he has personally incurred $661.08 in
out-of-pocket costs for postage and costs associated with attending mediation. These costs are
reasonable and have been properly supported by petitioner and shall therefore be fully reimbursed.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C.
§ 300aa-15(e). Accordingly, I award the following:
1) total of $48,668.75 as a lump sum in the form of a check jointly payable to Petitioner
and his counsel, Ms. Jessica Olins, Esq., to be forwarded to Maglio Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236; and
2) a total of 661.08 as a lump sum in the form of a check payable to Petitioner.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision.5
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
4
5