Hao v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-606V
Filed: October 16, 2015
* * * * * * * * * * * * * * * * UNPUBLISHED
LESLIE HAO, parent of K.H., a minor, *
* Special Master Gowen
Petitioner, *
*
v. * Attorneys’ Fees and Costs.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On July 14, 2014, Leslie Hao (“petitioner”) filed a petition on behalf of her minor child,
K.H., pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -
34 (2012). Petitioner alleged that as a result of receiving an influenza vaccine on October 4, 2011,
K.H. suffered from limbic encephalitis. See Petition at Preamble, docket no. 1, filed July 14, 2014.
On December 1, 2014, the parties filed a stipulation in which they stated that a decision should be
entered awarding compensation to petitioner, even though respondent denies that the influenza
vaccine caused the minor child’s alleged injury or any other condition. See Stipulation for Award,
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat.
2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). As provided by Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
docket no. 14, filed Dec. 1, 2014. A decision adopting the parties’ stipulation was issued by the
undersigned that same day, awarding petitioner a lump sum of $150,000.00 as guardian of the
estate of K.H., and a lump sum of $2,630.29 for reasonable and necessary expenses paid by
petitioner on behalf of K.H. See Decision, docket no. 15, filed Dec. 1, 2014. On December 2, 2014,
judgment entered on the compensation decision.
On April 23, 2015, petitioner filed a motion for attorneys’ fees and costs. In the motion,
petitioner’s counsel at the firm of Conway, Homer & Chin-Caplan (“CHC”) requested hourly
rates which were the subject of litigation by the parties in McCulloch v. Sec’y of HHS, No. 09-293,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). On September 1, 2015, the undersigned
issued a decision in McCulloch, setting forth reasonable hourly rates for the attorneys at CHC.
Thereafter, petitioner in this matter was ordered to file an amended motion for attorneys’ fees and
costs, consistent with the rates and reasoning established in McCulloch. Petitioner filed an
amended motion on September 3, 2015. See Amended Motion, docket no. 31, filed Sept. 3, 2015.
Here, respondent has raised identical objections to CHC’s hourly rates as she raised in
McCulloch. See Response to Motion for Attorneys’ Fees and Costs at 1-16, docket no. 23, filed
May 11, 2015. Additionally, respondent objects to two attorneys at CHC spending seventeen hours
preparing a detailed amended petition and an affidavit in this matter. Id. at 17. Respondent also
objects to billing by two associates for attending a case meeting. Id. For the reasons stated in
McCulloch and Jones v. Sec’y of HHS, No. 11-70, 2014 WL 7508006, at *7, Fed. Cl. Spec. Mstr.
Dec. 4, 2014), I find the time spent preparing a detailed petition and affidavit in this matter, one in
which there were approximately 1700 pages of medical records, is a reasonable amount of time.
Furthermore, while some overstaffing may not be justifiable in some cases, having two attorneys
working on a case such as this one is not unreasonable.
Petitioner here requests a total award of attorneys’ fees and costs in the amount of
$34,378.98. Amended Motion at 2. This amount includes attorneys’ fees in the amount of
$30,162.70, attorneys’ costs in the amount of $1,409.28, and petitioner’s out-of-pocket costs in
the amount of $2,807.00. Id. at 1. In accordance with General Order #9, petitioner represents that
she incurred reimbursable costs in pursuit of this claim in the amount of $2,807.00. See Notice,
docket no. 22, filed Apr. 23, 2015.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300
aa-15(e). Based on the reasonableness of petitioner’s request, which is consistent with the rates
and reasoning established in McCulloch, the undersigned GRANTS the request for approval and
payment of attorneys’ fees and costs.
Accordingly, an award should be made as follows:
(1) in the form of a check jointly payable to petitioner and to petitioner’s attorneys
at Conway, Homer & Chin-Caplan, in the amount of $31,571.98; and
(2) in the form of a check payable to petitioner only, Leslie Hao, pursuant to General
Order No. 9, in the amount of $2,807.00.
2
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.3
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
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.
3