VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01692 Package ID: USCOURTS-cofc-1_18-vv-01692 Petitioner: L.S. Filed: 2018-11-01 Decided: 2024-09-12 Vaccine: diphtheria, tetanus, and pertussis Vaccination date: 2016-10-19 Condition: Hematuria and Henoch-Schonlein purpura (HSP) Outcome: compensated Award amount USD: 40000 AI-assisted case summary: On November 1, 2018, petitioner Amy Sullivan, as parent and natural guardian for minor L.S., filed a petition for compensation under the National Vaccine Injury Compensation Program. The initial petition alleged that L.S. suffered hematuria and Henoch-Schonlein purpura (HSP) as a result of his diphtheria, tetanus, and pertussis vaccination on October 19, 2016. An amended petition filed on January 9, 2022, alleged that L.S.'s condition was a result of his hepatitis B, measles, mumps, and rubella (MMR), and varicella-zoster virus (VZV) vaccines administered on June 8, 2016. The petitioner alleged that L.S. experienced residual effects for more than six months and met other program requirements, including that there had been no prior award or settlement of a civil action for damages and that the vaccine was administered in the United States. The respondent denied that any of the vaccines caused or significantly aggravated L.S.'s alleged hematuria/HSP or any other injury or his current condition. Despite the respondent's denial, the parties filed a joint stipulation on August 13, 2024, agreeing that compensation should be awarded. Special Master Daniel T. Horner found the stipulation reasonable and adopted it as the decision of the Court. The award includes a lump sum of $5,000.00, payable to the petitioner, for past reimbursable expenses. Additionally, $35,000.00 was awarded to purchase an annuity contract, paid to a life insurance company. The total award of $40,000.00 is intended to compensate for all items of damages available under the Vaccine Act. The public decision does not describe the specific onset of symptoms, medical tests, treatments, or the mechanism of causation. The names of petitioner counsel were Amy A. Senerth of Muller Brazil, LLP, and respondent counsel was Emilie Williams of the U.S. Department of Justice. Theory of causation field: Petitioner alleged that L.S. suffered hematuria and Henoch-Schonlein purpura (HSP) as a result of his October 19, 2016 diphtheria, tetanus, and pertussis vaccination, and later amended the petition to allege that his condition resulted from his June 8, 2016 hepatitis B, measles, mumps, and rubella (MMR), and varicella-zoster virus (VZV) vaccines. Respondent denied causation. The parties filed a joint stipulation agreeing to an award. The Special Master adopted the stipulation. The award totaled $40,000.00, consisting of $5,000.00 for past expenses and $35,000.00 for an annuity. The public decision does not detail the specific theory of causation, medical experts, or the mechanism of injury. The decision was issued by Special Master Daniel T. Horner on September 12, 2024, based on a stipulation filed August 13, 2024. Petitioner counsel was Amy A. Senerth, and respondent counsel was Emilie Williams. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_18-vv-01692-0 Date issued/filed: 2024-09-12 Pages: 10 Docket text: PUBLIC DECISION (Originally filed: 8/13/2024) regarding 75 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (sh). Service on parties made. -------------------------------------------------------------------------------- Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 1 of 10 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1692V Filed: August 13, 2024 L.S., a minor, by and through his parent and natural guardian, AMY SULLIVAN, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On November 1, 2018, petitioner, Amy Sullivan, 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 alleges that her minor child, L.S., suffered Hematuria and Henoch-Schonlein purpura (HSP) as a result of his October 19, 2016 diphtheria, tetanus, and pertussis vaccination. (ECF No. 1; ECF No. 74 (“Stipulation,” filed August 13, 2024), ¶ 1.) On January 9, 2022, petitioner filed an amended petition alleging that L.S.’s Hematuria and HSP was a result of his June 8, 2016 hepatitis B, measles, mumps, and rubella (MMR), and varicella-zoster virus (VZV) vaccines. (ECF No. 4; Stipulation at ¶ 1.) Petitioner further alleges that L.S. has experienced the residual effects of his condition for more than six months, that there has been no prior award or settlement of a civil action for damages as a result of his condition, and that 1 Because this document 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 document 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. A “Vinesign” form appended to the attached stipulation has already been omitted because it contained petitioner’s personal contact information. 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 (2012). Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 2 of 10 his vaccine was administered in the United States. (ECF No. 1, ¶¶ 3, 12-13; ECF No. 43, ¶¶ 2, 16-17; Stipulation at ¶¶ 3-5. “Respondent denies that any of the vaccines caused or significantly aggravated L.S.’s alleged hematuria/HSP or any other injury or his current condition.” Stipulation at ¶ 6. Nevertheless, on August 13, 2024, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: • A lump sum of $5,000.00, which represents compensation for past reimbursable expenses, in the form of a check payable to petitioner; and • An amount of $35,000.00 to purchase the annuity contract described in paragraph 10 of the Stipulation, paid to the life insurance company form which the annuity will be purchased. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 3 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 4 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 5 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 6 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 7 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 8 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 9 of 10 Case 1:18-vv-01692-UNJ Document 79 Filed 09/12/24 Page 10 of 10 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_18-vv-01692-cl-extra-11126623 Date issued/filed: 2025-08-25 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10660036 -------------------------------------------------------------------------------- CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1692V Filed: June 30, 2025 L.S., a minor by and through his Special Master Horner parent and natural guardian, AMY SULLIVAN Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On November 1, 2018, petitioner, Amy Sullivan, on behalf of her minor son, L.S., filed a petition under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that L.S. suffered Hematuria and Henoch-Schonlein purpura (HSP) as a result of his October 19, 2016 diphtheria, tetanus, and pertussis vaccination. (ECF No. 1). On August 13, 2024, a decision was entered awarding compensation to petitioner based on the parties’ joint stipulation. (ECF No. 75.) On December 4, 2024, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 80) (“Fees App.”). Petitioner requests the following compensation: attorneys’ 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), Petitioners 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, 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). fees and costs in the amount of $94,561.16, representing $69,569.10 in fees and $24,992.06 in costs. Fees App. at 2. Petitioner warrants she did not personally incur any costs in pursuit of this claim. Id. On December 9, 2024, respondent filed a response to petitioners’ motion. (ECF No. 81.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys' fees and costs.” Id. 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. Respondent “respectfully requests that the Court exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 5. Petitioner did not file a reply. 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, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347- 48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 894-95. 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. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in a line-by-line analysis of petitioners’ fee 2 application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521. a. Hourly Rates Petitioner request the following rates of compensation for her attorneys: for Ms. Amy Senerth: $233.00 per hour for work performed in 2018, $250.00 per hour for work performed in 2019, $275.00 per hour for work performed in 2020, $300.00 per hour for work performed in 2021, $325.00 per hour for work performed in 2022, $375.00 per hour for work performed in 2023, and $400.00 per hour for work performed in 2024; for Mr. Paul Brazil: $317.00 per hour for work performed in 2018, and $400.00 per hour for work performed in 2022; and for Ms. Leigh Finfer: $185.00 per hour for work performed in 2018. Fees App. Ex. A. Additionally, Petitioner requests between $125.00 to $177.00 per hour for work performed by paralegals from 2017-2024. Id. These rates are consistent with what counsel and paralegals have previously been awarded for their Vaccine Program work and I find them to be reasonable herein. I shall also award the requested paralegal time at the provided rates. 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, 3 F.3d at 1521. 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. Upon review of the submitted billing records, I find most of the time billed to be reasonable. However, I find a reduction necessary where time was billed for filing documents in CM/ECF. See Fees App., Ex. A at 3-4, 6-11, 13, 16-22, 24-27. Billing for some administrative tasks such as filing, even at a paralegal rate, is not permitted. “Clerical and secretarial tasks should not be billed at all, regardless of who performs them.” Paul v. Sec’y of Health & Human Servs., No. 19-1221V, 2023 WL 1956423, at *3 (Fed. Cl. Spec. Mstr. Feb. 13, 2023); see also Rochester, 18 Cl. Ct. at 387 (stating that services that are “primarily of a secretarial or clerical nature . . . should be considered as normal overhead office costs included within the attorneys’ fee rates”). This results in a reduction of $707.30. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $68,861.80. 3 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 $24,992.06 in attorneys’ costs. Fees App. at 1. These costs are comprised of acquisition of medical records, the Court’s filing fee, postage, and expert fees. Dr. Frederick Nahm billed at a rate of $500.00 per hour for 23 hours, totaling $11,500.00. Fees App. Ex. B at 9-10. Dr. Donald Levy billed at a rate of $500.00 per hour for 7.5 hours, totaling $3,750.00. Id. at 12. Dr. M. Eric Gershwin billed at a rate of $500.00 per hour for 18.25 hours, totaling $9,125.00. Id. at 13-15. I find that these costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the billing records and costs in this case and finds that petitioner’s request for fees and costs is reasonable. I find it reasonable to compensate petitioner and his counsel as follows: a lump sum in the amount of $93,853.86, representing reimbursement for petitioner’s attorneys’ fees and costs, to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. 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.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 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