VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01237 Package ID: USCOURTS-cofc-1_17-vv-01237 Petitioner: Theresa Cusolito Filed: 2017-09-12 Decided: 2023-07-25 Vaccine: influenza Vaccination date: 2016-11-11 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 45000 AI-assisted case summary: Theresa Cusolito filed a petition for compensation under the National Vaccine Injury Compensation Program on September 12, 2017. She alleged that she developed a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccination on November 11, 2016. The respondent, the Secretary of Health and Human Services, denied that the immunization caused petitioner's injury. Despite the denial, the parties reached a joint stipulation to settle the case. Special Master Mindy Michaels Roth adopted the stipulation, awarding Ms. Cusolito a lump sum of $45,000.00, payable to her, as compensation for all damages available under the National Vaccine Injury Compensation Program for her SIRVA injury. The decision was issued on July 25, 2023. Petitioner was represented by Leah Durant, Esq., and respondent was represented by Debra Begley, Esq. The public decision does not describe the specific onset of symptoms, medical examinations, or treatments. The specific mechanism of injury is not detailed in the public decision. Theory of causation field: Petitioner Theresa Cusolito alleged a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccination on November 11, 2016. Respondent denied causation. The parties reached a joint stipulation to settle the case, which was adopted by Special Master Mindy Michaels Roth on July 25, 2023. The settlement awarded a lump sum of $45,000.00 to petitioner. The theory of causation is based on the "Table" of the National Vaccine Injury Compensation Program, as indicated by the provided data, though the specific mechanism is not detailed in the public decision. Petitioner was represented by Leah Durant, Esq., and respondent by Debra Begley, Esq. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_17-vv-01237-0 Date issued/filed: 2023-07-25 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 6/30/2023) regarding 67 DECISION Stipulation. Signed by Special Master Mindy Michaels Roth. (dkj) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1237V Filed: June 30, 2023 * * * * * * * * * * * * * THERESA CUSOLITO, * UNPUBLISHED * Petitioner, * Decision on Joint Stipulation; * Shoulder Injury Related to * Vaccine Administration v. * (“SIRVA”); Influenza (“Flu”) * Vaccine * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Leah Durant, Esq., Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Debra Begley, Esq., US Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 Roth, Special Master: On September 12, 2017, Theresa Cusolito [“Ms. Cusolito or “petitioner”] filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that she developed a shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza vaccination on November 11, 2016. Stipulation, filed June 30, 2023, at ¶¶ 1-4. Respondent denies that any of the aforementioned immunizations caused petitioner’s injury. Stipulation at ¶ 6. 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 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 public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). 1 Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 2 of 7 Nevertheless, the parties have agreed to settle the case. On June 30, 2023, the parties filed a joint stipulation agreeing to settle this case and describing the settlement terms. Respondent agrees to issue the following payment: A lump sum of $45,000.00 in the form of a check payable to petitioner, Theresa Cusolito. This amount represents compensation for all damages that would be available under § 300aa-15(a). I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review. 2 Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 3 of 7 Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 4 of 7 Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 5 of 7 Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 6 of 7 Case 1:17-vv-01237-UNJ Document 68 Filed 07/25/23 Page 7 of 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_17-vv-01237-cl-extra-10734343 Date issued/filed: 2024-09-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267753 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1237 Filed: June 26, 2024 * * * * * * * * * * * * * * * THERESA CUSOLITO, * * Petitioner, * * v. * Decision on Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On September 12, 2017, Theresa Cusolito [“Ms. Cusolito or “petitioner”] filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleged that she developed a shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza vaccination on November 11, 2016. Petition, ECF No. 1. On June 30, 2023, the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on the same day. (ECF No. 67). On January 29, 2024, petitioner filed an application for final attorneys’ fees and costs. (“Fees App.”) (ECF No. 71). Petitioner requests total attorneys’ fees and costs in the amount of $66,935.39, representing $45,801.10 in attorneys’ fees and $21,134.29 in costs. Fees App. at 1. Pursuant to General Order No. 9, petitioner indicated she has not expended any fees or costs 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 information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned finds that the identified material fits within this definition, such material will be redacted from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). in pursuit of her claim for compensation. Id. at 2. Respondent did not respond to petitioner’s motion. This matter is now ripe for consideration. I. Legal Framework The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs. The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial estimate of a reasonable attorneys' fees” is calculated 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)). That product is then adjusted upward or downward based on other specific findings. Id. Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). II. Discussion A. Reasonable Hourly Rate A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys' experience. See 2 McCulloch v. Sec’y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.3 Petitioner requests the following hourly rates for the work of her counsel: for Ms. Leah Durant (“LVD”), $350.00 per hour for work performed in 2016, $365.00 per hour for work performed in 2017, $377.00 per hour for work performed in 2018, $380.00 per hour for work performed in 2019, $395.00 per hour for work performed in 2020, $420.00 per hour for work performed in 2021, $441.00 per hour for work performed in 2022, and $463.00 per hour for work performed in 2023; for Mr. Mike Milmoe (“MM”), $484.00 per hour for work performed in 2020, and $509.00 per hour for work performed in 2021; and for Mr. Richard Armada (“RA”), $420.00 per hour for work performed in 2022, and $441.00 per hour for work performed in 2023. These rates are consistent with what counsel have previously been awarded for her Vaccine Program work, and the undersigned finds them to be reasonable herein. B. Hours Reasonably 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 ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one- half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728– 29 (affirming the Special Master’s reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). 3 The OSM Attorneys’ Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claims website at http://www.cofc.uscourts.gov/node/2914. 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 The overall hours spent on this matter appear are reasonable. Therefore, petitioner is entitled to a final award of attorneys’ fees in the amount of $45,801.10. C. Reasonable 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 $21,134.29 in costs for acquiring medical records, review of those records by Dr. Catherine Shaer, the Court's filing fee, and postage. Fees App. Ex. 2 at 2. This amount also includes expert services performed by Dr. Marko Bodor at $500.00 per hour for 10.1 hours totaling $5,050.00, as well as Dr. Uma Srikumaran at $1,000.00 per hour for 12.6 hours totaling $12,600.00. Id. at 15-17. Petitioner has provided adequate documentation supporting the requested costs and all appear reasonable in the undersigned’s experience. Accordingly, petitioner is entitled to final attorneys’ costs of $21,134.29. III. Conclusion In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is GRANTED. The undersigned hereby awards the following: a lump sum of $66,935.39, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to petitioner and Ms. Leah Durant. 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/Mindy Michaels Roth Mindy Michaels Roth 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