Fields v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided August 18, 2022·No. 17-1056·Published

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

******************** * TERESA K. FIELDS, Executrix for * the estate of JAMES T. LAWRENCE,* No. 17-1056V * Special Master Christian J. Moran Petitioner, * * v. * Filed: July 27, 2022 * SECRETARY OF HEALTH * Attorneys’ Fees and Costs, AND HUMAN SERVICES, * Reasonable Number of Hours, * Vague Entries, Remand Respondent. * ******************** *

Carol L. Gallagher, Carol L. Gallagher, Esquire LLC, Somers Point, NJ, for Petitioner; Colleen C. Hartley, United States Dep’t of Justice, Washington, DC, for Respondent.

PUBLISHED DECISION ON REMAND AWARDING ATTORNEYS’ FEES AND COSTS1

A November 2, 2021 decision awarded $83,341.89 in attorneys’ fees and costs. After a motion for review was filed, the court denied the motion in part, granted the motion in part, vacated the underlying decision, and remanded for additional findings.

1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. This posting will make the decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. For the work covered by the previous decision, a reasonable amount of fees and costs is $88,861.75. In addition, a reasonable amount of attorneys’ fees and costs for work performed on the motion for review is $9,094.80.

I. Abbreviated Procedural History

A. Entitlement

According to the timesheets, Attorney Carol Gallagher started work on this case in June 2016. At that time, Ms. Gallagher received an email from “counsel.” The identity of this person is not otherwise described in the timesheets.

Ms. Gallagher collected and reviewed medical records over several months. Ms. Gallagher drafted a petition, filed August 4, 2017. On behalf of James Lawrence, Ms. Gallagher alleged in the petition that an influenza vaccine caused him to suffer Guillain-Barré syndrome (“GBS”). As part of the initial processing of this case, the undersigned presented guidance about how attorneys should prepare timesheets for in anticipation of requesting attorneys’ fees. Order, issued Aug. 4, 2017.

About six months before the petition was filed in this case, the Secretary recognized an association between flu vaccines and GBS. 82 Fed Reg. 6294. When the Secretary reviewed the evidence in this case, the Secretary expressed an interest in resolving it. Resp’t’s Status Rep., filed May 7, 2018. The Secretary’s openness to resolving the case simplified the case because Mr. Lawrence was not obligated to establish that he was entitled to compensation. Ms. Gallagher retained a life care planner. Timesheets (entry for May 7, 2018).

As the parties were attempting to resolve the case, Mr. Lawrence’s mental capacity declined. Accordingly, Ms. Gallagher explored obtaining a guardianship for Mr. Lawrence. Pet’r’s Status Report, filed April 2, 2019; see also entry for April 8, 2019.

Ms. Gallagher learned that Mr. Lawrence passed away on September 25, 2019. See exhibit 16. Mr. Lawrence’s death meant that he would no longer incur unreimbursed medical expenses. However, his estate would be eligible to receive $250,000 if his death was due to an injury the flu vaccine caused. Ms. Gallagher continued to attempt to resolve the case informally. See, e.g., entry for January 28, 2020.

In May 2020, the parties reached a tentative agreement, and after an authorized representative of the Attorney General agreed to the proposal, a 2 decision was issued on August 19, 2020. 2020 WL 5667945. This decision awarded compensation to Janet Fields, who was the executrix of the estate for Mr. Lawrence.

B. Attorneys’ Fees

On September 10, 2020, petitioner filed a motion for final attorneys’ fees and costs (“Fees App.”). Petitioner requested attorneys’ fees of $103,287.65 and attorneys’ costs of $11,466.06 for a total request of $114,756.71.

The same day as Ms. Fields requested attorneys’ fees and costs, the Secretary responded. The Secretary submitted his generic response, recommending that “that the Court exercise its discretion” in finding a reasonable amount of attorneys’ fees and costs. Resp’t’s Resp., filed Sep. 10, 2020, at 3.

Ms. Fields was awarded attorneys’ fees and costs. First Fee Decision, filed Nov. 4, 2021. With respect to the amount of attorneys’ fees, the undersigned reduced the amount requested by 30% because of the vagueness of many entries. There were also “infrequent entries” in which Ms. Gallagher charged for excessive activities or charged at an attorney’s rate for performing paralegal work. As to costs, the undersigned found that Ms. Gallagher claimed an unreasonable amount for food and beverages while she traveled. The total amount awarded was $83,341.89.

Ms. Fields contested the decision by filing a motion for review. She argued that the deductions for both attorneys’ fees and costs were arbitrary and capricious. She also sought an additional amount of attorneys’ fees for filing the motion for review. Pet’r’s Mot. for Rev., filed Nov. 30, 2021. The Secretary defended the November 4, 2021 decision as reasonable.

The Court came to different outcomes with respect to fees and costs. As to the reduction in costs for excessive charges for food and drink, the Court ruled that the undersigned’s reliance on an objective metric, the 2018 GSA per diem rates, could “hardly qualify as an abuse of discretion.” Opinion and Order, 2022 WL 1573538, at *8. Thus, Ms. Fields’s motion for review was denied in that respect.

On the other hand, the Court ruled that the blanket reduction of 30 percent was not justified. The Court’s review suggested that a 15 percent deduction may be appropriate. However, the Court also indicated that “a more detailed explanation from the Special Master” could substantiate a larger deduction. As such, the Court granted Ms. Fields’s motion for review regarding the award of attorneys’ fees and remanded “for further consideration.” Id. at *7. 3 Finally, the Court also approved Ms. Fields’s request for compensation regarding for the time she spent on preparing the motion for review. The Court remanded on this point as well.

II. Analysis

For determining a reasonable amount of attorneys’ fees, special masters may use the lodestar formula. In the lodestar formula, two factors are multiplied: a reasonable hourly rate and a reasonable number of hours. Opinion and Order, 2022 WL 1573538, at *4, citing Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). The reasonable hourly rates were set in the First Fees Decision. Thus, the only issue is a reasonable number of hours.

The finding about a reasonable number of hours in the First Fees Decision was based upon the undersigned’s evaluation of the time records and cost invoices. Without assistance from the Secretary, the undersigned identified line items in which Ms. Gallagher requested an unreasonable amount of compensation, such as billing a tenth of an hour for leaving a message. The undersigned also identified time entries that were vague. The Court appears to have agreed that reductions and/or elimination of these types of problematic entries was appropriate.

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