Williams v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: December 3, 2019

* * * * * * * * * * * * * * JESSICA WILLIAMS, mother of* E.W.H., * No. 15-1224V * Special Master Horner Petitioner, * * v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner. Althea W. Davis, United States Department of Justice, Washington, D.C., for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On October 21, 2015, Jessica Williams (“petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program on behalf of her minor child, E.W.H.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged that E.W.H. suffered eczema and scarring as a result of his May 22, 2014 receipt of varicella, measles mumps rubella (“MMR”), and influenza (“flu”) vaccines. On January 29, 2019, the parties filed a stipulation for award, which the previously assigned special master adopted as her Decision awarding damages on the same day. Decision, ECF No. 72.3

1 I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the ruling 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. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 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). 3 Following Special Master Millman’s retirement this case was reassigned to me on September 27, 2019 for resolution of attorneys’ fees and costs. On September 2, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No. 75 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $21,692.75 (representing $15,121.85 in fees and $6,570.90 in costs). Fees App. at 4. Pursuant to General Order No. 9, petitioner warrant that she has personally incurred costs of $6,435.00 related to the prosecution of her petition. Id. at 59. Respondent responded to the motion on September 16, 2019, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the special master “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Resp. at 2–3 (ECF No. 76). 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. 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

2 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

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 for 2015–2016, 2017, 2018, and 2019 can be accessed online.4

Petitioner requests the following rates for the work of her attorneys: for Mr. Richard Gage, $299.64 per hour for work performed in 2014, $300.00 per hour for work performed in 2015, $311.00 per hour for work performed in 2016, $318.00 per hour for work performed in 2017, $326.00 per hour for work performed in 2018, and $338.00 per hour for work performed in 2019; for Ms. Kristen Blume, $251.00 per hour for work performed in 2018; and for Mr. Donald Gerstein, $251.00 per hour for work performed in 2015. Petitioner also requests paralegal rates ranging rom $112.00 per hour to $120.00 per hour depending on the paralegal and the year the work was performed. These rates are consistent with what Mr. Gage and his staff have previously been awarded, and I find the rates to be reasonable in this case as well. See Woolf v. Sec’y of Health & Human Servs., No. 17-908V, 2019 WL 2498774, at *6 (Fed. Cl. Spec. Mstr. May 23, 2019).

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.

4 The 2015–2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum- Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202018.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.

3 Upon review, I find the billed hours require reduction due to excessive interoffice communication. Mr. Gage’s firm has been warned of this issue on numerous previous occasions. See, e.g., Taylor v. Sec’y of Health & Human Servs., No. 15-1346V, 2019 WL 1376039, at *4 (Fed. Cl. Spec. Mstr. Mar. 1, 2019); Mack v. Sec’y of Health & Human Servs., No. 15-149V, 2017 WL 5108680, at *5 (Fed. Cl. Spec. Mstr. Sept. 28, 2017). Upon review, the majority of the billing entries are for either office meetings or conferences. Also due to this billing practice, petitioner has requested compensation for work performed by Ms. Blume, despite the fact that Ms. Blume’s only billing entries are for office meetings. Fees App. at 28. Overall, the billing records are too vague to determine the nature of her role in the case and whether her billing time in this case was reasonable. See Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *8 (Fed. Cl. Spec. Mstr. Jun. 27, 2009) (noting that petitioners bear the burden of documenting the reasonableness of fees and costs claimed). Accordingly, I find that petitioner’s attorneys fees should be reduced by 10%, resulting in a reduction of $1,512.18. Petitioner is therefore awarded final fees of $13,609.67.

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 $6,570.90 in attorneys’ costs. This amount comprises the cost of obtaining medical records, the Court’s filing fee, making copies, and work performed by petitioner’s expert, Dr. M. Eric Gershwin. Fees App. at 4. Petitioner has provided adequate documentation supporting the requested costs and all appear reasonable in my experience. Petitioner is thus entitled to the full amount of attorneys’ costs sought.

d. Petitioner’s Costs

Pursuant to General Order No. 9, petitioner warrants that she has personally incurred costs of $6,435.00 relating to guardianship work and establishing a trust necessary for receipt of awarded judgment as outlined by the Stipulation. Fees App. at 59-63. I find these costs to be reasonable and supported by sufficient documentation, and they shall be reimbursed in full.

II. Conclusion

Based on all the above, I find that petitioner is entitled to the following award of reasonable attorneys’ fees and costs:

Attorneys’ Fees Requested $15,121.85 (Reduction to Fees) - ($1,512.18) Total Attorneys’ Fees Awarded $13,609.67

Attorneys’ Costs Requested $6,570.90 (Reduction of Costs) - Total Attorneys’ Costs Awarded $6,570.90

Total Attorneys’ Fees and Costs $20,180.57

4 Petitioner’s Costs $6,435.00

Total Amount Awarded $26,615.57

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, other than the reductions delineated above, is reasonable. Accordingly, I award the following:

1) a lump sum in the amount of $20,180.57, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney, Mr. Richard Gage; and

2) a lump sum in the amount of $6,435.00, representing reimbursement for petitioner’s costs, in the form of a check payable to petitioner.

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.5

IT IS SO ORDERED.

s/Daniel T. Horner Daniel T. Horner Special Master

5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).