VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01342 Package ID: USCOURTS-cofc-1_19-vv-01342 Petitioner: Jonathan Ledee Filed: 2019-09-03 Decided: 2022-11-16 Vaccine: influenza Vaccination date: Condition: acute inflammatory demyelinating polyneuropathy Outcome: dismissed Award amount USD: AI-assisted case summary: Jonathan Ledee filed a petition for vaccine compensation on September 3, 2019, alleging that the influenza vaccine caused him to develop acute inflammatory demyelinating polyneuropathy. The case was filed by Virginia E. Anello, Esq., of Douglas & London, P.C., for the petitioner, and Dorian Hurley, Esq., of the U.S. Department of Justice, represented the respondent, the Secretary of Health and Human Services. Special Master Mindy Michaels Roth presided over the case. The public decision, issued on November 16, 2022, noted that the petitioner requested a dismissal decision on November 4, 2022. To receive compensation under the National Vaccine Injury Compensation Program, a petitioner must prove either a "Table Injury" listed in the Vaccine Injury Table or that the injury was actually caused by a vaccine. The record in this case did not contain evidence of a "Table Injury." Furthermore, the record lacked persuasive evidence indicating that the petitioner's alleged injury was vaccine-caused or vaccine-related. The Special Master noted that the petition must be supported by medical records or the opinion of a competent physician, neither of which was sufficiently provided to support a finding of entitlement. Consequently, Special Master Roth determined that the petitioner failed to demonstrate entitlement to an award. The case was dismissed for insufficient proof, and no compensation was awarded. The decision was originally filed on November 16, 2022, and later posted on the Court of Federal Claims' website. Theory of causation field: Petitioner Jonathan Ledee alleged that the influenza vaccine caused acute inflammatory demyelinating polyneuropathy. The case was filed on September 3, 2019, and dismissed on November 16, 2022, by Special Master Mindy Michaels Roth. The claim was treated as an off-Table claim. The petitioner failed to provide sufficient medical records or a competent physician's opinion to demonstrate that the alleged injury was vaccine-caused or vaccine-related, and did not establish a "Table Injury." Petitioner requested a dismissal decision. Attorneys for the petitioner were Virginia E. Anello, Esq., and Douglas & London, P.C. Attorney for the respondent was Dorian Hurley, Esq. No award was granted due to insufficient proof. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_19-vv-01342-0 Date issued/filed: 2022-12-12 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 11/16/2022) regarding 57 DECISION of Special Master. Signed by Special Master Mindy Michaels Roth. (dkj) Service on parties made. -------------------------------------------------------------------------------- Case 1:19-vv-01342-UNJ Document 58 Filed 12/12/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1342V Filed: November 16, 2022 * * * * * * * * * * * * * * JONATHAN LEDEE, * * Dismissal; Influenza (“flu”) Vaccine; Petitioner, * Acute Inflammatory Demyelinating * Polyneuropathy. * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Virginia E. Anello, Esq., Douglas & London, P.C., New York, NY, for petitioner. Dorian Hurley, Esq., U.S. Dept. of Justice, Washington, DC, for respondent. DECISION1 Roth, Special Master: On September 3, 2019, petitioner filed a petition for Vaccine Compensation in the National Vaccine Injury Compensation Program (“the Program”),2 alleging that the influenza (“flu”) vaccine caused him to develop acute inflammatory demyelinating polyneuropathy. Petition at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program. On November 4, 2022, petitioner filed a Motion for Dismissal Decision requesting 1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id. 2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act. Case 1:19-vv-01342-UNJ Document 58 Filed 12/12/22 Page 2 of 2 that his case be dismissed. ECF No. 55. To receive compensation under the Program, petitioner must prove either 1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to his vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence indicating that petitioner’s alleged injury was vaccine-caused or in any way vaccine-related. Under the Act, petitioner may not be given a Program award based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient medical records supporting petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion that supports a finding of entitlement. Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate either that he suffered a “Table Injury” or that his injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_19-vv-01342-cl-extra-10736299 Date issued/filed: 2024-02-02 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10269709 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1342V Filed: December 21, 2023 * * * * * * * * * * * * * * JONATHAN LEDEE, * * Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Michael A. London, Douglas & London, P.C., New York, NY, for petitioner. Dorian Hurley, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On September 3, 2019, Jonathan Ledee (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that he developed acute inflammatory demyelinating polyneuropathy after receiving an influenza (“flu”) vaccine On November 4, 2022, petitioner filed a motion for judgment on the record and on November 16, 2022, the undersigned issued her decision dismissing the petition for insufficient proof. (ECF No. 57). On June 28, 2023, petitioner filed an application for final attorneys’ fees and costs. (“Fees 1 The undersigned intends to post this Decision on the United States Court of Federal Claims' website. 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 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, 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). 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. App.”) (ECF No. 61). Petitioner requests total attorneys’ fees and costs in the amount of $17,554.16, representing $16,360.00 in attorneys’ fees and $1,194.16 in costs. Fees App. Ex. 1 at 1. Respondent responded to the motion on July 12, 2023, stating “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.” Response at 2 (ECF No. 62). Petitioner did not file a reply thereafter. 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, although the petition was eventually dismissed, the undersigned is satisfied that it maintained good faith and reasonable basis throughout its pendency. Respondent has also indicated he is satisfied the requirements for good faith and reasonable basis have been met in this case. Petitioner is therefore 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 2 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 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 his counsel: for Mr. Michael Lonson, $400.00 per hour for work performed in 2018, $425.00 per hour for work performed in 2019 and 2020, $450.00 per hour for work performed in 2021, and $434.00 per hour for work performed in 2022; and for Ms. Virginia Anello, $350.00 per hour for work performed in 2016 and 2017, $375.00 per hour for work performed in 2018, $380.00 per hour for work performed in 2019, $385.00 per hour for work performed in 2020, $390.00 per hour for work performed in 2021, $415.00 per hour for work performed in 2022, and $425.00 per hour for work performed in 2023. These rates are consistent with what counsel has previously been awarded for his Vaccine Program work and the undersigned finds them to be reasonable for work performed in the instant case. 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 3 The 2015-2023 Fee Schedules can be accessed 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 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). 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 $16,360.00. 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 $1,194.16 in costs for acquisition of medical records, the Court’s filing fee, and postage. Fees App. Ex. 2 at 1. The undersigned finds these costs reasonable and supported with adequate documentation. Accordingly, petitioner is entitled to the full amount of costs sought. III. Conclusion In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is GRANTED. The undersigned hereby awards a lump sum of $17,554.16, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Mr. Michael London. 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