VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-00767
Package ID: USCOURTS-cofc-1_16-vv-00767
Petitioner: Tonya Thomas
Filed: 2016-06-29
Decided: 2018-10-31
Vaccine: influenza
Vaccination date: 2014-11-07
Condition: urticaria and swelling
Outcome: compensated
Award amount USD: 41819

AI-assisted case summary:
Tonya Thomas filed a petition on June 29, 2016, alleging that the influenza vaccine she received on or about November 7, 2014, caused her to develop urticaria and swelling, with residual effects lasting over six months. Respondent filed a stipulation for award of compensation on August 20, 2018, which was adopted by the court on August 21, 2018. Subsequently, on September 6, 2018, Petitioner filed an application for attorneys' fees and costs totaling $41,819.77. Respondent indicated satisfaction with the statutory requirements for an award. The court reviewed the request using the lodestar approach, finding the requested hourly rates for attorneys and the expert, Dr. Hermes Garbán, to be reasonable and consistent with prior awards. The court also found the hours billed by counsel and the expert to be reasonable, noting the preparation of two expert reports and review of respondent's expert report. The costs requested, including medical record costs, mailing costs, and the court's filing fee, were also deemed reasonable. The court awarded the full amount of $41,819.77, comprising $25,821.50 in attorneys' fees and $15,998.27 in costs, to be paid jointly to Petitioner and her counsel.

Theory of causation field:
unclear

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_16-vv-00767-0
Date issued/filed: 2018-12-03
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 10/31/2018) regarding 54 DECISION of Special Master - Fees Signed by Special Master Herbrina Sanders. (jm) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-00767-UNJ Document 57 Filed 12/03/18 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 31, 2018
* * * * * * * * * * * * * *
TONYA THOMAS, *
*
Petitioner, * No. 16-767V
* Special Master Sanders
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Mallori B. Openchowski, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 29, 2016, Tonya Thomas (“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 that the influenza (“flu”) vaccine she received on or about November 7, 2014,
caused her to develop urticaria and swelling. See Stip. at 1, ECF No. 47. Petitioner further alleged
that she experienced residual effects of those injuries for more than six months. Id.
On August 20, 2018, Respondent filed a Stipulation for award of compensation, which the
undersigned adopted as the Decision Awarding Damages on August 21, 2018. (ECF No. 48). On
September 6, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF No. 52 (“Fees
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, 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.

Case 1:16-vv-00767-UNJ Document 57 Filed 12/03/18 Page 2 of 4
App.”). Petitioner requests total attorneys’ fees and costs in the amount of $41,819.77. Fees App
at 3. Pursuant to General Order No. 9, Petitioner has indicated that she has not personally incurred
any costs in pursuit of this litigation. Id. Ex. 5. Respondent reacted to the motion on September
12, 2018, indicating that “Respondent is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3
(ECF No. 43). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and
costs under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. 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.
It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to
prove that the requested hourly rate is reasonable. Id.
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys Forum Hourly Rate Fee Schedules
for 2015-2016, 2017, and 2018 can be accessed online.3
3 The 2015-2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-
2016.pdf. The 2017 Fee Schedule can be accessed at:
2

Case 1:16-vv-00767-UNJ Document 57 Filed 12/03/18 Page 3 of 4
Petitioner requests the following rates of compensation for her attorneys: for Mr. Jeffrey
Pop, $400.00 per hour for work performed in 2015 and $420.00 per hour for work performed in
2016-2018; for Ms. Kristina Grigorian, $250.00 per hour for all work performed in 2017 and 2018;
and for Ms. Alexandra Pop, $225.00 per hour for all work performed from 2015-2018. Fees App.
Ex. 1 at 2. Petitioner also requests that all law clerk work performed on this matter be compensated
at $125.00 per hour. Id.
The rates requested for all attorneys and law clerks are consistent with what counsel has
requested and been awarded in previous Vaccine Program cases. See Morrison v. Sec’y of Health
& Human Servs., No. 16-526V, 2017 WL 6889720 (Fed. Cl. Spec. Mstr. Nov. 28, 2017);
Contreras-Rodriguez v. Sec’y of Health & Human Servs., No. 05-626V, 2018 WL 3989507 (Fed.
Cl. Spec. Mstr. July 2, 2018); Delguzzi v. Sec’y of Health & Human Servs., No. 16-1350V, 2018
WL 739813, at *3 (Fed. Cl. Spec. Mstr. Jan. 9, 2018). Accordingly, no adjustment to the requested
rates is necessary.
b. Hours Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. 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 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Petitioner requests compensation for 92.2 total hours billed by Mr. Pop and his associates.
Fees App. Ex. 1 at 2. Petitioner has submitted adequate billing logs listing the date, amount of
time, individual, and the nature of each task. The undersigned has reviewed the billing records and
does not find any entries to be objectionable, and Respondent has not objected to any particular
entry either. Accordingly, I find the hours expended on this matter are reasonable. Petitioner is
therefore entitled to the full amount of attorneys’ fees sought, $25,821.50.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $15,998.27 in attorneys’ costs. The vast majority of this amount ($15,200.00) is
attributable to work performed by Petitioner’s expert, Dr. Hermes Garbán. Dr. Garbán billed 38
hours in this matter at a rate of $400.00 per hour. Fees App. Ex. 3 at 2. As with attorneys, fees for
experts in the Vaccine Program are subject to the same reasonableness standards as fees for
attorneys. Pelton v. Sec’y of Health & Human Servs., No. 14-674V, 2017 WL 3378773, at *6 (Fed.
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S
chedule%202018.pdf. The hourly rates contained within the schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015).
3

Case 1:16-vv-00767-UNJ Document 57 Filed 12/03/18 Page 4 of 4
Cl. Spec. Mstr. July 12, 2017) (citing Baker v. Sec’y of Health & Human Servs., No. 99-653, 2005
WL589431, at *1 (Fed. Cl. Spec. Mstr. Feb. 24, 2005)).
Upon review, the undersigned finds the requested rate for Dr. Garbán to be reasonable.
Previously, he has been awarded a similar rate for work in the Vaccine Program. See Pentcholov
v. Sec’y of Health & Human Servs., No. 14-414V, slip op. at 8 (Fed. Cl. Spec. Mstr. Apr. 29, 2016)
(awarding Dr. Garbán approximately $393.00 per hour for his expert work). Additionally, the
undersigned finds the amount of time billed by Dr. Garbán to be reasonable in light of the fact that
he prepared two expert reports in this matter while reviewing Respondent’s expert’s report, which
contained a substantial amount of medical literature. Accordingly, I will reimburse Petitioner in
full for her expert’s work.
The remaining balance of costs ($798.27) is comprised of medical record costs, mailing
costs, and the Court’s filing fee. All of these costs are typical of Vaccine Program litigation, and
Petitioner has provided adequate documentation of all requested costs. Accordingly, the
undersigned awards Petitioner the full amount of attorneys’ costs sought, $15,998.27.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, is reasonable. Accordingly, the undersigned hereby awards a total of $41,819.77
(representing $25,821.50 in attorneys’ fees and $15,998.27 in costs) to be issued in the form
of a check payable jointly to Petitioner and Petitioner’s counsel, Mr. Jeffrey S. Pop, of Jeffrey
S. Pop & Associates, for attorneys’ fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
4