VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01649 Package ID: USCOURTS-cofc-1_21-vv-01649 Petitioner: David Vazquez-Gonzalez Filed: 2023-01-26 Decided: 2023-02-21 Vaccine: influenza Vaccination date: 2019-02-14 Condition: cranial neuropathies Outcome: dismissed Award amount USD: AI-assisted case summary: David Vazquez-Gonzalez filed a claim on January 26, 2023, alleging that he suffered cranial neuropathies caused-in-fact by an influenza vaccine he received on February 14, 2019. He also alleged that the influenza vaccine significantly aggravated his depression, anxiety, and alcohol abuse disorder. The respondent filed a Rule 4 report on June 24, 2022, recommending against compensation. Following the respondent's report, the petitioner was ordered to file an expert report supporting his claim. After filing multiple motions for extensions of time, the petitioner was ultimately unable to secure an expert report. On January 25, 2023, the petitioner filed a Motion for a Decision Dismissing his Petition, stating that an investigation of the facts and science supporting his case demonstrated he would be unable to provide that he is entitled to compensation, and that proceeding further would be unreasonable and would waste the resources of the Court, the respondent, and the Vaccine Program. The petitioner understood that a decision dismissing his petition would result in a judgment against him, ending all his rights in the Vaccine Program. To receive compensation, a petitioner must prove either a "Table Injury" or an injury actually caused by a covered vaccine. To prove causation in fact, a petitioner must show by preponderant evidence a medical theory connecting the vaccination and the injury, a logical sequence of cause and effect, and a proximate temporal relationship. The Vaccine Act prohibits ruling for a petitioner based solely on allegations unsubstantiated by medical records or medical opinion. The Special Master found that the petitioner's medical records did not support his allegations by a preponderance of the evidence, and he did not file a medical opinion from an expert. Therefore, Special Master Daniel T. Horner granted the petitioner's motion and dismissed the petition for failure to establish a prima facie case of entitlement to compensation. The case was dismissed with prejudice, and judgment was entered accordingly. Petitioner's counsel was Anne Toale of Maglio Christopher and Toale. Respondent's counsel was Felicia Langel of the U.S. Department of Justice. The public decision does not describe the specific onset or symptoms of the cranial neuropathies, nor does it detail any specific medical records, medical opinions, or expert testimony that were considered or presented. Theory of causation field: Petitioner David Vazquez-Gonzalez alleged that an influenza vaccine received on February 14, 2019, caused cranial neuropathies and aggravated depression, anxiety, and alcohol abuse disorder. The case was filed on January 26, 2023, and dismissed on February 21, 2023, by Special Master Daniel T. Horner. The respondent recommended against compensation. The petitioner was ordered to file an expert report but was unable to secure one, leading to a motion to dismiss his own petition due to an inability to prove entitlement. The dismissal was based on failure to establish a prima facie case, as medical records did not support the allegations by a preponderance of the evidence, and no expert medical opinion was filed. The theory of causation was "Off-Table." No specific medical experts were named in the public decision. The petitioner's counsel was Anne Toale, and respondent's counsel was Felicia Langel. The award amount was $0.00 as the case was dismissed. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01649-0 Date issued/filed: 2023-02-21 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 1/26/2023) regarding 24 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (amb) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01649-UNJ Document 25 Filed 02/21/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1649V Filed: January 26, 2023 UNPUBLISHED DAVID VAZQUEZ-GONZALEZ, Special Master Horner Petitioner, Petitioner’s Motion for Decision v. Dismissing Petition; Influenza (flu) vaccine; cranial SECRETARY OF HEALTH AND neuropathies HUMAN SERVICES, Respondent. Anne Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioner. Felicia Langel, U.S. Department of Justice, Washington, DC, for respondent. DECISION1 On August 2, 2021, petitioner filed a claim under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he suffered “injuries,” including cranial neuropathies caused-in-fact by the influenza vaccination he received on February 14, 2019. (ECF No. 1.) Petitioner also alleged that the influenza vaccine significantly aggravated his depression, anxiety, and alcohol abuse disorder. (Id.) On June 24, 2022, respondent filed his Rule 4 report, recommending against compensation. (ECF No. 17.) Following the filing of respondent’s Rule 4 report, petitioner was ordered to file an expert report supporting his claim. After filing multiple motions for extensions of time, petitioner was ultimately unable to secure an expert report. (ECF Nos. 19, 20, 22, 23.) On January 25, 2023, petitioner filed a Motion for a Decision Dismissing his Petition. (ECF No. 23.) Petitioner indicated that “[a]n investigation of the facts and science supporting his case has demonstrated to petitioner that he will be unable to 1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will be posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (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 the special master, upon review, agrees that the identified material fits within this definition, it will be redacted from public access. Case 1:21-vv-01649-UNJ Document 25 Filed 02/21/23 Page 2 of 2 provide that he is entitled to compensation in the Vaccine Program,” and that “to proceed further would be unreasonable and would waste the resources of the Court, the respondent, and the Vaccine Program. (Id. at 1.) Petitioner further stated that he “understands that a decision by the Special Master dismissing his petition will result in a judgment against him” and that “[h]e has been advised that such a judgment will end all of his rights in the Vaccine Program.” (Id.) To receive compensation in the Vaccine Program, petitioner must prove either (1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy her burden of proving causation in fact, petitioner must show by preponderant evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from ruling for petitioner based solely on her allegations unsubstantiated by medical records or medical opinion. Petitioner’s medical records do not support his allegations by a preponderance of the evidence, and he did not file a medical opinion from an expert in support of his allegations. Accordingly, the undersigned GRANTS petitioner’s Motion for a Decision Dismissing his Petition and DISMISSES this petition for failure to establish a prima facie case of entitlement to compensation. CONCLUSION This case is now DISMISSED. The clerk of the court is directed to enter judgment in accordance with this decision.2 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01649-cl-extra-10736801 Date issued/filed: 2023-12-07 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270211 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 31, 2023 * * * * * * * * * * * * * * UNPUBLISHED DAVID VAZQUEZ-GONZALEZ, * No. 21-1649V * Special Master Horner Petitioner, * * v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Anne C. Toale, Maglio Christopher and Toale, Sarasota, FL, for Petitioner. Felicia Langel, United States Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On August 2, 2021, David Vazquez-Gonzalez (“petitioner”), filed a claim under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that his receipt of an influenza vaccination on February 14, 2019, caused him to suffer injuries including cranial neuropathies and that the vaccine significantly aggravated his depression, anxiety, and alcohol abuse disorder. (ECF No. 1.) After petitioner was unable to secure a medical expert to support his claim, he filed a motion on January 25, 2023, to voluntarily dismiss his petition. On January 26, 2023, I issued my decision dismissing the petition for insufficient proof. (ECF No. 24). On May 9, 2023, petitioner filed an application for attorneys’ fees and costs. (ECF No. 30) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $71,767.63 (representing $60,388.20 in fees and $11,379.43 in costs). Fees App. at 1. Pursuant to General 1 I intend 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, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am 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. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Order No. 9, petitioner states that he has not personally incurred any costs related to this litigation. Id. at 2. Respondent responded to the motion on May 10, 2023, indicating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Resp. at 2 (ECF No. 31). Petitioner filed his reply on May 10, 2022. (ECF No. 32). 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 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 2 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, 2018, 2019, 2020, and 2021 can be accessed online.3 Petitioner requests the following hourly rates for the work of his counsel; for Ms. Anne Toale: $475.00 per hour for work performed in 2021, $500.00 per hour for work performed in 2022, and $535.00 per hour for work performed in 2023; and for Ms. Danielle Strait, $340.00 per hour for work performed in 2019 and $370.00 per hour for work performed in 2020. These rates are consistent with what counsel have previously been awarded for their Vaccine Program work. 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, the overall number of hours billed appears to be reasonable. I have reviewed the billing entries and find that they adequately describe the work done on the case and the amount of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent identified any as such. Petitioner is therefore awarded final attorneys’ fees of $60,388.20. 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 $11,379.43 in attorneys’ costs, comprised of acquiring medical records, postage, the Court’s filing fee, translation of medical records from Spanish to English, and work performed by a medical expert, Dr. Joseph Rizzo, who reviewed petitioner’s medical records and discussed the matter with Ms. Toale but ultimately was unable to produce an expert report. Fees App. Ex. 3. Petitioner has provided adequate documentation of the requested costs which I have reviewed, and I find the total amount of costs to be reasonable. Petitioner is therefore awarded the full amount of costs sought.4 3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. 4 In finding the requested costs reasonable, I am not endorsing any specific hourly rate requested for expert work as reasonable (or unreasonable). Rather, I am holding that, given the work performed in this specific case, the total amount requested for expert work is reasonable. 3 II. Conclusion Based on all the above, I find that petitioner is entitled to the following award of reasonable attorneys’ fees and costs: Attorneys’ Fees Requested $60,388.20 (Reduction to Fees) - Total Attorneys’ Fees Awarded $60,388.20 Attorneys’ Costs Requested $11,379.43 (Reduction of Costs) - Total Attorneys’ Costs Awarded $11,379.43 Total Attorneys’ Fees and Costs $71,767.63 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 $71,767.63, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and his attorney, Ms. Anne Toale. 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.5 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 5 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