Boyer v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 16, 2017
************************************* UNPUBLISHED
ROBERT BOYER, *
*
*
Petitioner, * No. 15-1160V
*
v. *
* Chief Special Master Dorsey
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ Fees and Costs; Reasonable
* Hourly Rates; Overhead Office Costs.
Respondent. *
*
*************************************
Ronald C. Homer, Conway, Homer, P.C., Boston, Massachusetts, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION1
On October 9, 2015, Robert Boyer (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“the Program”)2 alleging that as a result of
the influenza vaccination he received on October 19, 2012, he suffered from ischemic optic
neuropathy. Petition at 1. On May 18, 2017, the undersigned issued a decision based on the
parties’ stipulation awarding compensation to petitioner in the amount of $160,000.00. Decision
dated May 18, 2017 (ECF No. 42).
1 Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision 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, 116 Stat. 2899,
2913 (Dec. 17, 2002). 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). Otherwise, the entire decision will be available to the public.
Id.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 (2006) (“Vaccine Act” or “Act”). All citations in this decision to
individual sections of the Act are to 42 U.S.C.A. § 300aa.
1
On August 24, 2017, petitioner filed a motion for attorneys’ fees and costs, requesting a
total of $31,040.54, including $22,221.10 in attorneys’ fees for his counsel, Conway Homer, P.C.,
$8,419.44 in attorneys’ costs, and $400.00 in petitioner’s costs. Petitioner’s Application (“Pet.
App.”) dated August 24, 2017 (ECF No. 47) at 2. On September 9, 2017, respondent filed a
general response to petitioner’s motion for fees and costs, leaving the amount of the award to the
undersigned’s discretion. Respondent’s Response (“Resp. Res.”) dated September 6, 2017 (ECF
No. 49) at 2. Petitioner did not file a reply.
This matter is now ripe for adjudication. For the reasons discussed below, the
undersigned GRANTS petitioner’s motion and awards a total of $29,516.99 in attorneys’ fees and
costs and $400.00 in petitioner’s costs.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs
for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
a. Reasonable Attorneys’ Fees
i. Hourly Rate
It appears from the billing records that Ms. Christina Ciampolillo acted as the lead
attorney in this case. However, petitioners also request compensation for other attorneys at the
firm, including Joseph Pepper, Lauren Faga, Meredith Daniels, and Ronald Homer, as well as for
law clerks and paralegals. The undersigned has reviewed each person’s hourly billing rates and
finds that they are in accordance with the Office of Special Masters’ Fee Schedules for 2015 and
2016-2017.3 The undersigned finds the hourly rates charged reasonable and does not reduce
petitioner’s application for them.
ii. Time Billed
While petitioners are entitled to an award of attorneys’ fees and costs, the undersigned
finds that a reduction in the number of hours billed by petitioners’ counsel is appropriate for
excessive and duplicative billing, specifically with regard to intra-office communication. In
making reductions, a line-by-line evaluation of the fee application is not required. Wasson, 24
Cl. Ct. at 484, rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993).
Special masters may rely on their experience with the Vaccine Act and its attorneys to
determine the reasonable number of hours expended. Id. Just as “[t]rial courts routinely use
their prior experience to reduce hourly rates and the number of hours claimed in attorney fee
requests . . . [v]accine program special masters are also entitled to use their prior experience in
reviewing fee applications.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521
(Fed. Cir. 1993).
3 The 2015-2016 Hourly Rate Fee Schedule can be accessed at:
www.uscfc.uscourts.gov/sites/.../Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017
Hourly Rate Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf
2
The undersigned has previously found it reasonable to reduce attorneys’ fees awards due
to duplicative billing. See Lord v. Sec’y of Health & Human Serv., No. 12-255V, 2016 WL
3960445 (Fed. Cl. Spec. Mstr. June 30, 2016); Ericzon v. Sec’y of Health & Human Se rvs.,
No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016); Sexton v. Sec’y of Health
& Human Serv., No. 99-453V, 2015 WL 7717209 (Fed. Cl. Spec. Mstr. Nov. 9, 2015);
Mostovoy, No. 02-10V, 2016 WL 720969 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Sabella v. Sec’y
of Health & Human Servs., 86 Fed. Cl. 201, 214-15 (2009) (affirming the special master’s
reduction of fees for overstaffing where three attorneys from two different firms worked on a
case together).
The undersigned finds some of petitioners’ requested fees unreasonable, unnecessary,
and duplicative. At least five attorneys worked on petitioners’ case, including Ronald Homer,
Christina Ciampolilo, Lauren Faga, Meredith Daniels, and Joseph Pepper, as well as law clerks.
See Pet. App., Tab A. Petitioners have not provided a sufficient explanation as to why the
involvement of this many attorneys and law students in a single case is necessary. The
undersigned and other special masters have previously noted the inefficiency that results when
multiple attorneys work on one case and have found that the reviewing of documents by
multiple attorneys leads to excessive billing. See Lord, 2016 WL 3960445, at *7; Cozart v.
Sec’y of Health & Human Servs., 00-590V, 2016 WL 5766359 (Fed. Cl. Spec. Mstr. Sept. 7,
2016). Similar to the law firm’s practices in Lord and Cozart, the attorneys in this case billed
excessive hours to review court orders and filing notifications. In petitioners’ fee application,
there are at least 28 entries, totaling nearly three hours, in which attorneys, and specifically Mr.
Homer, billed time to review orders and notifications in this case and calendar deadlines.
Undoubtedly, multiple attorneys reviewed the same orders and notifications and all billed time
for doing so.
Petitioners’ counsel also billed excessive time for intra-office communications,
including case meetings and intra-office memoranda. For example, paralegals and law clerks
billed time on numerous occasions for drafting memoranda to attorneys working on the case.4
Additionally, on several occasions, attorneys at the firm billed time for reviewing memoranda
from other attorneys, paralegals, and/or law clerks, and they also billed time for holding case
meetings with each other.5
Other special masters as well as the undersigned have reduced fee awards for excessive
and duplicative intraoffice communication. See Lord, 2016 WL 3960445, at *7; Ericzon, 2016
WL 447770, at *4; Austin v. Sec’y of Health & Human Servs., No. 10-362V, 2013 WL
659574, at *14 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (Special Master Vowell deducted fees for
excessive intra-office communication in a case where seven attorneys at CHCC billed for
attending conferences and drafting memoranda about the case); Soto v. Sec’y of Health &
4 See Pet. App., Tab A at 6, 7, 11-13, 15-20, 25.
5 See Pet. App., Tab A, regarding time entries on the following dates: July 9, 2015; October 9,
2015; October 24, 2015; August 18, 2017; August 22, 2017. This is not an exhaustive list of the
duplicative billings in petitioner’s fee application.
3
Human Servs., No. 09-897V, 2011 WL 2269423, at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011)
(Special Master Millman reduced CHCC’s fees for intra-office communications and meetings);
Carcamo v. Sec’y of Health & Human Servs., No. 97-483V, 2011 WL 2413345, at *7 (Fed. Cl.
Spec. Mstr. May 20, 2011) (Special Master Millman reduced fees when two attorneys at the
Law Offices of Dale K. Galipo billed for the same meetings with a client).
For the reasons discussed above, the undersigned reduces petitioner’s attorneys’ fee
award by five percent, or $1,111.05.
b. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioners’ counsel
requests $8,419.44 in attorneys’ costs for expenses incurred by the firm. Pet. App. at 2. These
costs include charges for photocopying, Fed Ex invoices, postage, payments for medical records,
and expert fees for two neuro-ophthalmologists, Dr. Vivek Patel and Dr. Thomas Hedges. Pet.
App., Tab B at 30-32.
Petitioners provided an invoice for the services of both Dr. Patel, who submitted an expert
report in the case, and Dr. Hedges, who reviewed the case but was not retained as an expert
witness. See Pet. App., Tab B at 32; Pet. App., Tab B at 9. Petitioners request a rate of $500.00
per hour for both experts, who are both well-qualified neuro-ophthalmologists. The undersigned
finds these costs reasonable and will reimburse petitioner in full for them.
The undersigned finds all of petitioner’s requested costs reasonable, with the exception of
the $12.50 telephone charge for placing long distance calls. Pet. App., Tab B at 31. This
service is considered an overhead office cost and is not compensable. See, e.g., Cain v. Sec’y of
Health & Human Servs., No. 91-817V, 1992 WL 379932 (Fed. Cl. Spec. Mstr. 1992); Bourche v.
Sec’y of Health & Human Servs., 2017 WL 2480936, note 5 (Fed. Cl. Spec. Mstr. May 11, 2017).
II. Conclusion
Attorneys’ Fees:
Amount requested: $22,221.10
Five percent reduction: ($1,111.05)
Amount paid: $21,110.05
Costs:
Amount requested: $8,419.44
Phone Bill reduction: ($12.50)
Amount awarded: $8,406.94
Petitioner’s Costs:
Amount requested: $400.00
Amount awarded: $400.00
Accordingly, the undersigned awards:
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$400.00 in the form of a check payable to petitioner, Mr. Robert Boyer, representing
reimbursement for petitioner’s out-of-pocket costs; and
$29,516.99 in the form of a check payable jointly to petitioner, Mr. Robert Boyer, and
his counsel, Conway, Homer, P.C., representing reimbursement for attorneys’ fees and
costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with this decision.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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