In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
LUIS TRIGUEROS, *
* No. 16-1058V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: May 27, 2021
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Camille M. Collett, United States Dep’t of Justice, Washington, DC, for
Respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Luis Trigueros’ motion for final
attorneys’ fees and costs. He is awarded $88,612.96.
* * *
On August 25, 2016, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccine he received on October 2, 2013, which
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.
is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused him to suffer
Guillain-Barré syndrome. Petitioner further alleged that he suffered the residual
effects of this injury for more than six months. On October 17, 2017, the
undersigned issued his ruling on entitlement, finding that petitioner was entitled to
compensation for his vaccine injury. Thereafter, the parties engaged in settlement
discussions and on January 23, 2020, the parties filed a stipulation, which the
undersigned adopted as his decision awarding compensation on February 14, 2020.
On May 13, 2020, petitioner filed a motion for final attorneys’ fees and costs
(“Fees App.”). Petitioner requests attorneys’ fees of $68,074.10 and attorneys’
costs of $21,038.86 for a total request of $89,112.96. Fees App. at 2. Pursuant to
General Order No. 9, petitioner warrants that he has not personally incurred any
costs related to the prosecution of her case. Id. On May 28, 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 Court exercise its discretion” when determining a reasonable
award for attorneys’ fees and costs. Id. at 3. Petitioner did not file a reply
thereafter.
* * *
Because petitioner received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
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.
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.
2
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
was done outside of the District of Columbia.
The undersigned has reviewed the hourly rates requested for the work of her
counsel at Conway, Homer, PC (the billing records indicate that the majority of
attorney work was performed by Ms. Lauren Faga, with supporting work
performed by Ms. Meredith Daniels, Ms. Christina Ciampolillo, Mr. Joseph
Pepepr, Mr. Patrick Kelly, and Mr. Ronald Homer) and finds that the hourly rates
are consistent with what these attorneys have previously been awarded for their
Vaccine Program work. See, e.g., Skiles v. Sec’y of Health & Human Servs., No.
18-1597V, 2020 WL 5407823 (Fed. Cl. Spec. Mstr. Aug 14, 2020); Heddens v.
Sec’y of Health & Human Servs., No. 15-734V, 2019 WL 5791266 (Fed. Cl. Spec.
Mstr. Oct. 24, 2019). Accordingly, the requested hourly rates are reasonable.
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.
The undersigned has reviewed the submitted billing entries and on the
whole, the request is reasonable. However, a minor amount of time was billed for
administrative tasks such as filing documents and downloading those filed
documents. See Guerrero v Secʼy of Health & Human Servs., No. 12-689V, 2015
WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015) (citing cases), mot. for
rev. den’d in relevant part and granted in non-relevant part, 124 Fed. Cl. 153, 160
(2015), app. dismissed, No. 2016-1753 (Fed. Cir. Apr. 22, 2016). Based upon the
3
undersigned’s overall perception of the time billed after review, a reduction of
$500.00 is appropriate in order to achieve “rough justice.” See Florence v. Sec’y of
Health & Human Servs., No. 15-255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec.
Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011).
In sum, petitioner is awarded final attorneys’ fees of $67,574.10.
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). Petitioner requests a total of
$21,038.86 in attorneys’ costs. This amount is comprised of acquiring medical
records, the Court’s filing fee, travel costs associated with visiting petitioner, work
performed by petitioner’s life care planner, and work performed by Ms. Kimberly
Schleede of JMW Settlements in preparing pain and suffering valuations, life care
plan pricing with net-present value calculations, and rated age analysis at an hourly
rate of $375.00 per hour.
Ms. Schleede has thirty-three years of experience as a settlement consultant
and has earned professional accreditations as a Certified Structured Settlement
Consultant and a Master Structured Settlement Consultant. She has consulted with
petitioners in the Vaccine Program for over ten years and has provided court
testimony in one prior case, as well as participating in several mediations and
settlement conferences in the past. Respondent also does not contest the
reasonableness of Ms. Schleede’s hourly rate, noting that she “has a long history of
providing petitioners with her consulting services in the Vaccine Program, and her
$375.00 per hour rate has been routinely awarded by Special Masters since 2015.”
Response, filed May 8, 2021, at 2. Accordingly, the undersigned finds Ms.
Schleede’s hourly rate to be reasonable for the services she has provided in this
case.2
For the remainder of the costs, petitioner has provided adequate
documentation supporting all of the requested costs, and all appear reasonable in
2
The undersigned notes that not all structured settlement specialists may be entitled to a
similar hourly rate. Petitioner has noted that Ms. Schleede’s rate was established upon earning
her advanced accreditation of Master Structured Settlement Consultant. Memorandum, filed
October 1, 2020, at 3. Thus, a settlement specialist with less-robust credentials than Ms.
Schleede would likely be awarded a lesser hourly rate by the undersigned.
4
the undersigned’s experience. Petitioner is therefore awarded the full amount of
attorneys’ costs sought.
E. 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 $88,612.96 (representing
$67,574.10 in attorneys’ fees and $21,038.86 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Mr.
Ronald Homer.
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/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
5