In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
CAROLYN WALL and STEPHEN *
WALL on behalf of their minor *
child, G.W., *
* No. 17-583V
Petitioners, * Special Master Christian J. Moran
*
v. * Filed: December 17, 2020
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioners;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On August 21, 2020, petitioners Carolyn and Stephen Wall moved for final
attorneys’ fees and costs. They are awarded $17,729.51.
* * *
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
The background for this case has been set forth previously in the
undersigned’s prior decision awarding interim fees. See Interim Fees Decision,
2019 WL 7667636 (Fed. Cl. Spec. Mstr. Dec. 17, 2019). The instant fees motion
requests reimbursement for work performed from August 29, 2019 until the
present. During that time, petitioner obtained and filed additional medical records
and an additional expert report. On July 29, 2020, petitioners filed an unopposed
motion for a decision dismissing their petition, stating that, in light of litigation
currently being initiated against Merck involving injuries to Gardasil vaccine
recipients, petitioners “wish to pursue a third party action in district court against
Merck directly.” Pet’rs’ Mot., filed July 29, 2020, ¶3. On August 19, 2020, the
undersigned issued his decision dismissing the petition for insufficient proof.
On August 21, 2020, petitioners filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioners request attorneys’ fees of $14,791.00 and
attorneys’ costs of $3,538.51 for a total request of $18,329.51. Fees App. at 4.
Pursuant to General Order No. 9, petitioner states that she did not personally incur
any costs related to the litigation of this matter. Id. On September 1, 2020,
respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id at 2. Additionally, he recommends “that the special master exercise his
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, the undersigned
has no reason to doubt the good faith of the claim, and although the claim was
ultimately unsuccessful, the undersigned finds that petitioners’ claim has a
reasonable basis throughout the entire case. Respondent also has not challenged the
reasonable basis of the claim. A final award of attorneys’ fees and costs is
therefore proper in this case.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§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.
2
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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
during this period was done outside of the District of Columbia.
Petitioners request the following hourly rates for the work of their counsel
at Van Cott & Talamante, PLLC: for Mr. Andrew Downing, $385.00 per hour for
all work performed from 2019-2020, for Ms. Courtney Van Cott, $205.00 per hour
for work performed 2019 and $275.00 per hour for work performed in 2020. The
undersigned has previously found these rates to be reasonable for the work of Mr.
Downing and Ms. Van Cott, and they are reasonable for work in the instant case as
well. Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 2020 WL
6582180 (Fed. Cl. Spec. Mstr. Oct. 16, 2020).
B. Reasonable Number of Hours
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.
3
Upon review of the submitted billing records, the undersigned finds the
majority of the time billed to be reasonable. The timesheet entries are sufficiently
detailed such that the undersigned can assess their reasonableness. However, a
small reduction is necessary due to excessive paralegal time billed and a high
hourly rate. Paralegals billed time on administrative tasks such as filing documents
and reviewing and paying invoices. These issues have previously been noted
concerning Van Cott & Talamante paralegals. Second Fees Decision, 2018 WL
7046894, at *3; Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019
WL 948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health
& Human Servs., No. 16-538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr.
Jan. 23, 2019). A reasonable reduction for these issues is $600.00.
Accordingly, petitioners are awarded final attorneys’ fees of $14,191.00.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioners request a total of
$3,538.51 in costs. This amount is comprised of acquiring medical records,
postage, and work performed by petitioner’s medical expert, Dr. Mitchell Miglis.
Fees App. Ex. 1 at 15-16. Petitioners have provided adequate documentation
supporting these costs and they appear reasonable in the undersigned’s experience.
Petitioners are therefore awarded the full amount of costs sought.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $17,729.51 (representing
$14,191.00 in attorneys’ fees and $3,538.51 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioners and their attorney, Mr. Andrew
Downing.
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.2
IT IS SO ORDERED.
2
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
s/Christian J. Moran
Christian J. Moran
Special Master
5