Larson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1290V

KEITH LARSON, Chief Special Master Corcoran Petitioner,

v. Filed: September 19, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Heidi Marie Torvik, Lommen Abdo, P.A., Minneapolis, MN, for Petitioner.

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On September 14, 2022, Keith Larson filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine administration following an influenza vaccination he received on September 13, 2021. ECF No. 1. On December 19, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 37.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision 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 inf ormation, 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 f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $32,017.64 (representing $31,271.00 in fees plus $746.64 in costs). Application for Attorney’s Fees and Costs (“Motion”) filed May 30, 2024. ECF No. 43. Furthermore, Petitioner filed a signed statement representing that she incurred no personal out-ofpocket expenses. ECF No. 44.

Respondent reacted to the motion on June 10, 2024, indicating that he is satisfied the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, ECF No. 45. Petitioner did not file a reply thereafter.

I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reasons listed below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). 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 & 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 & 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 petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private

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practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.

ATTORNEY FEES

The hourly rates requested for attorney Kathleen M. Loucks and associated paralegals through the end of 2023 are reasonable and consistent with our prior determinations and will therefore be adopted herein. However, the hourly rate requested for attorney Heidi Torvik ($360 for 2022), requires adjustment.

Ms. Torvik was previously awarded the lesser rate of $350 per hour for her time billed in 2022. See Crysler-Ehlen v. Sec’y of Health & Hum. Servs., No. 22-0621V, Slip Op. 43 (Fed. Cl. Spec. Mstr. July 12, 2024). I find no reason to deviate from such reasoned determination and hereby reduce Ms. Torvik’s 2022 rate be consistent with the rate she originally requested for that year. This results in a reduction of attorney’s fees to be awarded of $129.00. 3 Ms. Torvik’s hourly rates of $365 for 2023 and $370 for 2024 are reasonable and shall be awarded in full.

Petitioner has otherwise provided supporting documentation for all claimed costs.

ECF No. 43 at 28-36. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and costs. I award a total of $31,888.64 (representing $31,142.00 in fees plus $746.64 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Heidi M. Torvik. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 4

3 This amount consists of ($360 - $350 = $10 x 12.90 hrs. = $129.00).

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review.

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IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master