Raymo v. Secretary of Health and Human Services

129 Fed. Cl. 691, 2016 U.S. Claims LEXIS 1950, 2016 WL 7474538
United States Court of Federal Claims·Decided December 14, 2016·No. 11-654V·Published·Cited by 533 cases

Opinion

Attorneys’ fees and costs in a vaccine case; lodestar approach applied to local rates for fees in Louisiana and Arkansas; reduction for attorneys’ time spent on paralegal and administrative tasks; reasonable rates for medical experts; documentation of costs

OPINION AND ORDER 1

LETTOW, Judge.

Kevin and Heather Raymo, acting on behalf of their minor child, H.T.R., and through their attorneys, request that this court review the chief special master’s decision awarding attorneys’ fees and costs. See Pet’rs’ Mem. of Objs. in Support of Mot. for Review (“Pet’rs’ Mem.”), ECF No. 125-1. The ease was initiated on October 11, 2011, when Kevin and Heather Raymo filed a petition on behalf of H.T.R., alleging that H.T.R. developed transverse myelitis as a result of certain vaccines she received. Raymo v. Sec’y of Health & Human Servs., No. 11-654V, slip op. at 1-2, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (“Fees Decision”). On February 24, 2014, then-Chief Special Master Vowell ruled that petitioners were entitled to compensation for H.T.R.’s injuries. Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL 1092274 (Fed. Cl. Spec. Mstr. Feb. 24, 2014).

On July 15, 2016, Chief Special Master Dorsey 2 awarded petitioners $354,809.31 in attorneys’ fees and costs, which was significantly less than the amount requested by petitioners, $731,251.40. Fees Decision at 3. Petitioners filed a motion for reconsideration on August 5, 2016, relating specifically to costs for work performed by petitioners’ economist. Pet’rs’ Mot. for Recons. Regarding Decision on Att’ys’ Fees and Costs (“Pet’rs’ Mot. for Recons.”), ECF No. 113. Chief Special Master Dorsey granted the motion and awarded petitioners an additional $14,144.50 to reflect the economist’s costs. Order Granting Pet’rs’ Mot. for Recons. (Oct. 26, 2016), ECF No. 123. As a result, Chief Special Master Dorsey withdrew the decision *695 issued on July 15, 2016 and issued a new decision on November 2, 2016, awarding petitioners $368,953.81 in attorneys’ fees and costs. Fees Decision at 3. Petitioners filed a motion for review of the chief special master’s decision regarding attorneys’ fees- and costs on November 10, 2016, which is now pending before this court. 3 For the reasons stated, the court denies petitioners’ motion for review and affirms the chief special master’s decision on attorneys’ fees and costs.

BACKGROUND

Petitioners, Kevin and Heather Raymo, are the legal representatives of their minor daughter, H.T.R. Fees Decision at 1. Petitioners allege that H.T.R. developed transverse myelitis due to her receipt in October 2010 of vaccinations for human papillomavi-rus virus, meningococcus, hepatitis A, diphtheria, tetanus and pertussis. Raymo, 2014 WL 1092274, at *1. H.T.R. was eleven years old at the time of the vaccinations. Id. at *2. As a result, H.T.R. is completely paralyzed from the waist down. Id. at *2, *5.

A. Procedural History

Petitioners filed this suit on October 11, 2011, pursuant to the National Vaccine Injury Compensation Program. Fees Decision at l. 4 Then-Chief Special Master Vowell held an entitlement hearing in November 2012, and determined that petitioners were entitled to compensation on February 24, 2014. Raymo, 2014 WL 1092274, at *5, *23. Respondent (“government”) did not concede that the vaccines caused H.T.R.’s injuries, but did agree to compensate petitioners. See Stipulation (Nov. 5, 2015), ECF No. 100. Chief Special Master Dorsey accepted the stipulation and awarded compensation accordingly. See Decision on Joint Stipulation (Nov. 5, 2015), ECF No. 101.

On March 4, 2016, petitioners requested $532,976.90 in attorneys’ fees and $195,724.50 in costs, for a total of $728,701.40. Pet’rs’ Mot. for Fees and Costs (Mar. 4, 2016), ECF No. 107. 5 The government responded that a reasonable fees and costs award “would fall between $97,000.00 to $120,000.00.” Resp’t’s Resp. to Pet’rs’ Appl. for Att’ys’ Fees and Costs at 3 (March 15, 2016), ECF No. 108. Petitioners subsequently requested an additional $2,550.00 to account for attorneys’ fees accumulated in 2016. Pet’rs’ Suppl. Mot. for Fees and Costs (May 17, 2016), ECF No. 110. On July 15, 2016, Chief Special Master Dorsey awarded petitioners $354,809.31 in attorneys’ fees and costs. Fees Decision at 3. Petitioners filed a motion for reconsideration on August 5, 2016, Pet’rs’ Mot. for Recons., and a motion for review on August 15, 2016, Peers’ Mot. for Review of Decision on Att’ys’ Fees and Costs, ECF No. 114. The motion was fully briefed and a hearing was held on September 30,2016.

On October 6, 2016, the court remanded the case to Chief Special Master Dorsey for the limited purpose of ruling on petitioners’ motion for reconsideration. See Order of October 6, 2016, ECF No. 119. Petitioners’ motion for reconsideration related solely to the costs for petitioners’ economist, Malcolm M. Dienes, LLC. See Pet’rs’ Mot. for Recons. Chief Special Master Dorsey granted the motion, which resulted in petitioners receiving an additional $14,144.50 in costs for Dienes, LLC. See Order Granting Pet’rs’ Mot. for Recons. Chief Special Master Dorsey issued a new decision on November 2, 2016 that awarded petitioners $368,953.81, comprised of $269,358.35 in attorneys’ fees and $99,595.46 in costs. Fees Decision at 32-33. Petitioners filed a motion for review of that decision on November 10, 2016. Pet’rs’ Mem. The government filed its response to *696 petitioners’ motion for review on December 8, 2016. Resp’t’s Resp. to Mot. for Review (“Resp’t’s Opp’n”), ECF No. 126.

B. Chief Special Master’s Decision on Attorneys’ Fees and Costs

1. Attorneys’hourly rates.

The chief special master relied upon the lodestar approach to determine reasonable attorneys’ fees. Fees Decision at 5 (citing Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008)). Under the lodestar approach, the court or special master begins by “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Next, the court or special master “may then make an upward or downward departure to the fee award based on other specific findings.” Id. at 1348. Here, the chief special master applied local Louisiana and Arkansas billing rates, rather than Washington, D.C.

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Raymo v. Secretary of Health and Human Services, 129 Fed. Cl. 691, 2016 U.S. Claims LEXIS 1950, 2016 WL 7474538 (uscfc 2016).

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