VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01843 Package ID: USCOURTS-cofc-1_21-vv-01843 Petitioner: Wilburn E. Richardson Filed: 2021-09-13 Decided: 2024-02-20 Vaccine: influenza Vaccination date: 2018-09-14 Condition: Brachial Neuritis Outcome: compensated Award amount USD: 28700 AI-assisted case summary: Wilburn E. Richardson filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that the influenza vaccine he received on September 14, 2018, caused him to suffer from Brachial Neuritis. Respondent denied that Mr. Richardson suffered from brachial neuritis, that the vaccine caused his alleged injury, or that his current condition is a sequela of a vaccine-related injury. Despite these denials, the parties filed a joint stipulation agreeing that a decision should be entered awarding compensation to Mr. Richardson. The stipulation was found reasonable by the Special Master. Mr. Richardson was awarded a lump sum of $28,700.00 as compensation for all damages available under the program. This amount represents compensation for pain and suffering and any other damages. The parties also agreed to waive their right to seek review, allowing for expedited judgment. Theory of causation field: unclear Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-01843-0 Date issued/filed: 2024-02-20 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 2/5/24) regarding 32 DECISION Stipulation/Proffer, Signed by Special Master Herbrina Sanders. (sh) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-01843-UNJ Document 35 Filed 02/20/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 5, 2024 * * * * * * * * * * * * * * * * * * * * * * * * * WILBURN E. RICHARDSON, * No. 21-1843V * Petitioner, * Special Master Sanders v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Jennifer A. Shah, United States Department of Justice, Washington, DC, for Respondent. DECISION1 On September 13, 2021, Wilburn E. Richardson (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that the influenza (“flu”) vaccine he received on September 14, 2018, caused him to suffer from Brachial Neuritis (“BN”). Pet. at 1, ECF No. 1. On February 1, 2024, the parties filed a stipulation in which they state that a decision should be entered awarding compensation to Petitioner. Stipulation ¶ 7, ECF No. 31. Respondent “denies that [P]etitioner suffered brachial neuritis; denies that the vaccine caused [P]etitioner’s alleged brachial neuritis injury, or any other injury; and denies that [P]etitioner’s current condition is a sequela of a vaccine-related injury.” Id. ¶ 6. Nevertheless, the parties agree to the joint stipulation. See id. ¶ 7. I find the stipulation reasonable and adopt it as the decision of the Court in awarding damages, on the terms set forth therein. 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. Case 1:21-vv-01843-UNJ Document 35 Filed 02/20/24 Page 2 of 7 The parties stipulate that Petitioner shall receive the following compensation: A lump sum of $28,700.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Id. ¶ 8. I approve the requested amount for Petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 CaCsaes e1 :12:12-1v-vv-v0-10814834-3U-NUJN J DDooccuummeenntt 3351 F Filieledd 0 022/0/210/2/244 P aPgaeg e1 3o fo 5f 7 CaCsaes e1 :12:12-1v-vv-v0-10814834-3U-NUJN J DDooccuummeenntt 3351 F Filieledd 0 022/0/210/2/244 P aPgaeg e2 4o fo 5f 7 CaCsaes e1 :12:12-1v-vv-v0-10814834-3U-NUJN J DDooccuummeenntt 3351 F Filieledd 0 022/0/210/2/244 P aPgaeg e3 5o fo 5f 7 CaCsaes e1 :12:12-1v-vv-v0-10814834-3U-NUJN J DDooccuummeenntt 3351 F Filieledd 0 022/0/210/2/244 P aPgaeg e4 6o fo 5f 7 CaCsaes e1 :12:12-1v-vv-v0-10814834-3U-NUJN J DDooccuummeenntt 3351 F Filieledd 0 022/0/210/2/244 P aPgaeg e5 7o fo 5f 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-01843-cl-extra-10839620 Date issued/filed: 2025-04-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10373032 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: February 26, 2025 * * * * * * * * * * * * * * WILBURN E. RICHARDSON, * No. 21-1843 * Petitioner, * Special Master Young * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, for Petitioner; Alexis B. Babcock, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On September 13, 2021, Wilburn E. Richardson (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to -34 (2018)2 (the “Vaccine Act” or “Program”). Petitioner alleged that the influenza (“flu”) vaccine he received on September 14, 2018, caused him to suffer from Brachial Neuritis (“BN”). Pet. at 1, ECF No. 1. On February 1, 2024, the parties filed a joint stipulation, which I adopted as my decision awarding compensation on February 5, 2024. ECF No. 32. On July 8, 2024, Petitioner filed a motion for attorneys’ fees and costs. (“Pet’r’s Mot. for AFC”) (ECF No. 37). Petitioner requests total attorneys’ fees and costs in the amount of 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. $36,035.25, representing $33,277.50 in attorneys’ fees, and $2,757.75 in attorneys’ costs. Pet’r’s Mot. for AFC at 1. Pursuant to General Order No. 9, Petitioner states that he has not personally incurred any costs in this case. Id. at 2. Respondent responded to the motion on July 22, 2024, stating that Respondent “is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case” and asking the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3 (ECF No. 38). Petitioner filed a reply on July 23, 2024, requesting that the Court award Petitioner all fees and costs requested. This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of her 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, he is entitled to a final award of reasonable attorneys’ fees and costs. 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, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . 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)). 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 895. 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. 2 A. Reasonable Hourly Rates 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 can be accessed online.3 Petitioner requests the following hourly rates for the work of his counsel: for Ms. Leah Durant (“LVD”), $420.00 per hour for work performed in 2021, $441.00 per hour for work performed in 2022, $463.00 per hour for work performed in 2023, and $486.00 per hour for work performed in 2024; for Mr. Glen MacLeod (“GM”), $525.00 per hour for work performed in 2022, and $553.00 per hour for work performed in 2023; for Mr. Mike Milmoe (“MM”), $553.00 per hour for work performed in 2023; and for Mr. Richard Armada (“AR”), $463.00 per hour for work performed in 2024. Additionally, for paralegals, Petitioner requests $165.00 per hour for work performed in 2021, $173.00 per hour for work performed in 2022, $181.00 per hour for work performed in 2023, and $190.00 per hour for work performed in 2024. The rates requested are consistent with what counsel have previously been awarded for their Vaccine Program work, and I find them to be reasonable herein. Petitioner also requests $584.00 per hour for work performed by Mr. Milmoe in 2024, representing a rate increase of $31.00. I find this hourly rate to be reasonable and will award the attorney’s fees requested. B. Reasonable Number of Hours 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 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Upon review, I find the overall hours billed to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review, I do not find any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $33,277.50. C. 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 $2,757.75 in attorneys’ costs comprised of acquiring medical records, the Court’s filing fee, and expert fees. This amount is comprised of acquiring medical records and review of those records by Mr. Timothy Hancock, postage, and the Court’s filing fee. Pet’r’s 3 The OSM Fee Schedules are available at: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly- rate-fee-schedules. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. 3 Mot. for AFC, Ex. 2 at 2. Petitioner has provided adequate documentation supporting all of his requested costs. Petitioner is therefore awarded the full amount of costs sought. II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2018), I have reviewed the billing records and costs in this case and find that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, I find that it is reasonable to compensate Petitioner and his counsel as follows: Attorneys’ Fees Requested $33,277.50 (Reduction to Fees) - Total Attorneys’ Fees Awarded $33,277.50 Attorneys’ Costs Requested $2,757.75 (Reduction of Costs) - Total Attorneys’ Costs Awarded $2,757.75 Total Attorneys’ Fees and Costs $36,035.25 Accordingly, I award a lump sum in the amount of $36,035.25 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 is directed to enter judgment herewith.4 IT IS SO ORDERED. s/Herbrina Sanders Young Herbrina Sanders Young Special Master 4 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. 4