Valdes v. Secretary of Health & Human Services

89 Fed. Cl. 415, 2009 U.S. Claims LEXIS 329, 2009 WL 3347106
CourtUnited States Court of Federal Claims
DecidedSeptember 30, 2009
DocketNo. 99-310V
StatusPublished
Cited by58 cases

This text of 89 Fed. Cl. 415 (Valdes v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valdes v. Secretary of Health & Human Services, 89 Fed. Cl. 415, 2009 U.S. Claims LEXIS 329, 2009 WL 3347106 (uscfc 2009).

Opinion

MEMORANDUM OPINION AND FINAL ORDER REGARDING ATTORNEY FEES AND COSTS

BRADEN, Judge.

On March 21, 2008, the Special Master issued a decision accepting a settlement of this case. Unpublished Decision, Valdes v. Sec’y of Health & Human Servs., No. 99-310V (Fed.Cl.Spec.Mstr., March 21, 2008) (“Valdes I”). The matter before the court concerns the Special Master’s award for Petitioner’s attorney’s fees and attorney and other costs in Valdes v. Sec’y of Health & Human Servs., No. 99-310V, 2009 WL 1456437 (Fed.Cl.Spec.Mstr., Apr. 30, 2009) (“Valdes 77”).

I. RELEVANT FACTS AND PROCEDURAL HISTORY.

On May 14, 1999, Petitioner filed a claim for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l to 34 (“the Vaccine Act”), as amended, that was assigned to Special Master George L. Hastings, Jr (“the Petition”). The Petition alleged that the hepatitis B vaccine caused Petitioner to develop joint pain and rheumatoid arthritis. The Petition was filed by Shoemaker & Associates, that represented Petitioner until the conclusion of this case.1

On August 3, 1999, Petitioner’s case was reassigned to Chief Special Master Gary J. Golkiewiez. Between June 10, 2002 and September 5, 2003, Petitioner filed relevant medical records. No more activity took place until March 2005, because the Chief Special Master was resolving another ease alleging that the hepatitis B vaccine caused rheumatoid arthritis. In Capizzano v. Sec’y of Health & Human Servs., No. 00-759V, 2004 WL 1399178 (Fed.Cl. June 8, 2004), the Chief Special Master found that, to receive an award under the Vaccine Act, a Petitioner was required to show the presence of one of four types of evidence: epidemiologic studies; re-challenge; presence of pathological markers or genetic predisposition; or general acceptance in the scientific and medical communities. Subsequently, the United States Court of Appeals for the Federal Circuit reversed Capizzano and held that the Chief Special Master impermissibly raised Petitioner’s burden of proof under the Vaccine Act by demanding certain types of evidence to establish causation. Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320 (2006). The appellate court held that a petitioner was only required to establish by a preponderance of the evidence that [418]*418the vaccine caused the injury to receive an award under the Vaccine Act.

On July 11, 2006, the Petition in this proceeding was reassigned to Special Master Christian J. Moran (“Special Master”). On March 6, 2007, an expert report was filed and was revised one month later. Thereafter, the parties engaged in discussions that resulted in a March 4, 2008 settlement agreement. The Special Master adopted the settlement agreement, issued a March 21, 2008 Decision, and judgment was entered on April 30, 2008. Valdes I.

On November 1, 2008, an Application For Attorneys’ Fees And Costs was filed, including fees and costs for the Law Office of David Krathen. On February 6, 2009, however, Special Master Moran was advised that attempts to obtain information from that firm were not successful and requested that the Application be considered as filed on November 1, 2008.

On February 18, 2009, the Government filed Objections. On March 2, 2009, Petitioner filed a Reply. On April 30, 2009, the Special Master issued a decision that found Petitioner’s November 1, 2008 Application For Attorney’s Fees and Costs was not substantiated and reduced the attorney fees and costs. Valdes II at *1. On June 1, 2009, Petitioner filed a timely Motion For Review.

II. THE SPECIAL MASTER’S APRIL 30, 2009 DECISION ON ATTORNEY’S FEES AND COSTS.

On April 30, 2009, the Special Master awarded Petitioner $28,190.42 for attorney’s fees, $10,823.49 for attorney costs, and other costs of $341.59. Valdes I at *1.

A. The Special Master’s Findings Regarding Attorney Fees.

Petitioner initially requested $32,257.27 in attorney fees. The Government lodged three objections. First, the Government objected to certain time spent working with two non-testifying consultants, Dr. David Geier and Dr. Mark Greenspan. For example, compensation was requested for 0.3 hours (or 18 minutes) in preparing a one sentence motion to file electronically. Petitioner responded that the entry of 0.3 hours was a typographical error and the proper entry should have been 0.1 hours (or 6 minutes). Accordingly, the Special Master reduced the attorney fee award by 0.2 hours or $60.00. Valdes II at *2-3.

Second, the Government also challenged attorney fees for attempting to reach one of Petitioner’s doctors on New Year’s Day 2001. Petitioner agreed to eliminate the 0.1 hours billed. In response, the Special Master reduced attorney’s fees by $25.00. Id. at *3. The Special Master took this occasion to observe that “the need to change the entry is a problem ... [a] pattern appears to be developing in which [Petitioner’s counsel] creates unreasonable or duplicative entries. Then, when ... challenged ... replies that the entry was actually created in error.” Id. The Special Master further noted that Petitioner’s counsel’s billing errors had become a pattern, since “errors for Mr. Shoemaker’s time are not rare.” Id. (citing Savin v. Sec’y of Health & Human Servs., 85 Fed.Cl. 313, 317 (2008) (observing that seven different Special Masters had reduced fee and cost requests of this same counsel in at least fourteen different proceedings)). The Special Master also felt compelled to remark that these “time records contain far more mistakes than any other attorney in the Vaccine Program.” Id. (citing Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed.Cir.1993)) (authorizing Special Masters to use their experience to review applications for attorney’s fees and costs).

The Special Master warned that “[t]he threat of a penalty may motivate [Petitioner’s counsel] to eliminate ‘mistakes’ in his record keeping. Without the threat of losing some or all of the requested attorney’s fees and costs, Mr. Shoemaker has not improved his submissions.” Id. at *4 n. 3. The Special Master recounted that:

In 2006, Mr. Shoemaker’s hourly rate was $300. A one-sentence motion to convert to electronic case filing should take no more than six minutes of an attorney’s time (or $30.00). Mr. Shoemaker has claimed 18 minutes, which, given Mr. Shoemaker’s hourly rate, is $90.00.
[419]*419At this point there are two possibilities. First, no one notices that Mr. Shoemaker charged 18 minutes preparing this motion. Consequently, Mr. Shoemaker is compensated for an, arguably, undeserved $60.
The second possibility is what actually happened in [Petitioner’s] case. [The Government] objects to the unreasonable entry. Mr. Shoemaker, then, modifies his request to only six minutes. This amount of time is the amount he should have entered originally. Consequently, Mr.

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89 Fed. Cl. 415, 2009 U.S. Claims LEXIS 329, 2009 WL 3347106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valdes-v-secretary-of-health-human-services-uscfc-2009.