VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01743 Package ID: USCOURTS-cofc-1_21-vv-01743 Petitioner: Robert Zampitella Filed: 2021-08-23 Decided: 2023-09-06 Vaccine: influenza Vaccination date: 2018-10-04 Condition: Bell's Palsy Outcome: compensated Award amount USD: 15000 AI-assisted case summary: Robert Zampitella filed a petition for compensation under the National Vaccine Injury Compensation Program on August 23, 2021. He alleged that he suffered Bell's Palsy as a result of receiving an influenza vaccination on October 4, 2018. Mr. Zampitella further alleged that he experienced residual effects from the condition for more than six months. The respondent, the Secretary of Health and Human Services, denied that the flu vaccine caused Mr. Zampitella's condition. Despite the denial, the parties filed a joint stipulation on August 7, 2023, agreeing that compensation should be awarded. Special Master Daniel T. Horner found the stipulation to be reasonable and adopted it as the decision of the Court. Pursuant to the stipulation, Robert Zampitella was awarded a lump sum of $15,000.00, payable by check to the petitioner. This amount was intended to compensate for all items of damages available under the Vaccine Act. The clerk of the court was directed to enter judgment in accordance with this decision, unless a motion for review was filed. Petitioner's counsel was Laura Levenberg of Muller Brazil PA, and respondent's counsel was Christine Mary Becer of the U.S. Department of Justice. Theory of causation field: Petitioner Robert Zampitella alleged that he suffered Bell's Palsy as a result of his October 4, 2018 influenza vaccination and experienced residual effects for more than six months. The respondent denied causation. The parties filed a joint stipulation agreeing to an award. The Special Master adopted the stipulation. The public decision does not describe the specific theory of causation, medical experts, onset, symptoms, tests, or treatments. Robert Zampitella was awarded $15,000.00 as a lump sum. Special Master Daniel T. Horner issued the decision on September 6, 2023. Petitioner was represented by Laura Levenberg, and respondent by Christine Mary Becer. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01743-0 Date issued/filed: 2023-09-06 Pages: 8 Docket text: PUBLIC DECISION (Originally filed: 8/8/2023) regarding 31 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (sh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1743V Filed: August 8, 2023 ROBERT ZAMPITELLA, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil PA, Dresher, PA, for petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On August 23, 2021, petitioner 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 he suffered Bell’s Palsy as a result of his October 4, 2018 influenza (“flu”) vaccination. Petition at 1; Stipulation, filed August 7, 2023, at ¶ 2, 4. Petitioner further alleges that he 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 her condition, and that his vaccine was administered in the United States. Petition at 1-2; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine is the cause of petitioner’s alleged Bell’s Palsy or any other injury or his current condition. ” Stipulation at ¶ 6. Nevertheless, on August 7, 2023, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation 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. 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 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 2 of 8 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 $15,000.00 in the form of a check payable to petitioner. 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 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 3 of 8 Case 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 4 of 8 Case 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 5 of 8 Case 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 6 of 8 Case 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 7 of 8 Case 1:21-vv-01743-UNJ Document 35 Filed 09/06/23 Page 8 of 8 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01743-cl-extra-10734307 Date issued/filed: 2024-09-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267717 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1743V Filed: July 26, 2024 ROBERT ZAMPITELLA, Special Master Horner Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Laura Levenberg, Muller Brazil LLP, Dresher, PA, for Petitioner. Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On August 23, 2021, Robert Zampitella 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 he suffered Bell’s Palsy as a result of his October 4, 2018 influenza (“flu”) vaccination. Petition at 1. On August 7, 2023, the parties filed a stipulation, which I adopted as my decision awarding compensation on August 8, 2023. (ECF Nos. 30-31.) On November 28, 2023, petitioner filed a final motion for attorneys’ fees and costs. (ECF No. 37.) (“Fees App.”). Petitioner requests attorneys’ fees in the amount of $14,579.30 and attorneys’ costs in the amount of $4,896.16. Fees App. at 2. Pursuant to 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). General Order No. 9, petitioner has indicated that he has not personally incurred any costs in pursuit of this litigation. Id. Thus, the total amount requested is $19,475.46. On November 28, 2023, respondent filed a response to petitioner’s motion. (ECF No. 38.) 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 3. 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, 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. 2 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 requests the following rates of compensation for his attorneys: for Ms. Laura Levenberg, $275.00 per hour for work performed in 2021, $350.00 per hour for work performed in 2022, and $375.00 per hour for work performed in 2023; for Ms. Leigh Finfer, $185.00 per hour for work performed in 2019, $200.00 per hour for work performed on 2020, and $225.00 per hour for work performed in 2021; and for Mr. Max Muller, $375.00 per hour for work performed in 2021. These rates are consistent with what counsel have previously been awarded for their Vaccine Program work and the undersigned finds them to be reasonable herein. 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 $14,579.30. 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 $4,896.16 in attorneys’ costs comprised of postage, medical records, the court’s filing fee, and expert services in 2022 performed by John D. Hixson, M.D., at $500.00 per hour for 8.75 hours totaling $4,375.00. Fees App. Ex. B. These costs have been supported with the necessary documentation and are reasonable. Petitioner is therefore awarded the full amount of costs sought. 3 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 her counsel as follows: a lump sum in the amount of $19,475.46, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Laura Levenberg. 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