Rhodes v. Secretary of Health and Human Services ( 2019 )


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  •     In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    Filed: May 28, 2019
    * * * * * * * * * * * * *  *
    ROBERT B. RHODES,          *                                    UNPUBLISHED
    *
    Petitioner,       *                                    No. 16-597V
    *                                    Special Master Gowen
    v.                         *
    *                                    Attorneys’ Fees and Costs
    SECRETARY OF HEALTH        *
    AND HUMAN SERVICES,        *
    *
    Respondent.       *
    * * * * * * * * * * * * * *
    Nancy R. Meyers, Ward Black Law, Greensboro, NC, for Petitioner.
    Debra A. Filteau Begley, United States Department of Justice, Washington, DC, for Respondent.
    DECISION ON ATTORNEYS’ FEES AND COSTS1
    On February 25, 2019, Robert B. Rhodes (“Petitioner”) filed a motion for attorneys’ fees
    and costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 73). For the reasons
    discussed below, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs and
    awards a total of $43,683.41.
    I.        Procedural History
    On May 20, 2016, Petitioner filed a petition in the National Vaccine Injury Compensation
    Program.2 Petitioner alleged that he developed Transverse Myelitis (“TM”) as a result of receiving
    an influenza (“flu”) vaccination on November 13, 2014. Pet. at ¶ 22. On November 29, 2018, the
    parties filed a stipulation, which I adopted as my Decision awarding damages on the same day.
    1
    The undersigned intends 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, the undersigned agrees that the identified material fits within this
    definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a
    reasoned explanation for the action in this case, the undersigned is 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
    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.
    Decision, ECF No. 68.
    On February 25, 2019, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
    requests compensation for his attorney, Ms. Nancy Meyers, in the total amount of $44,620.23,
    representing $35,968.50 in attorneys’ fees and $8,651.73 in costs. Fees App. at 1. Pursuant to
    General Order No. 9, Petitioner warrants that he not personally incurred any costs in pursuit of this
    litigation. Fees App. Ex. 1 at 2. Respondent reacted to the fees motion on March 19, 2019,
    indicating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees
    and costs are met in this case” and recommending that “the special master exercise his discretion
    and determine a reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 74).
    Petitioner filed a reply on March 19, 2019, concurring with Respondent’s recommendation that I
    exercise my discretion and determine a reasonable award of fees and costs. Reply at 1 (ECF No.
    75).
    II.     Analysis
    Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
    for a petition that does not result in an award of compensation, but was filed in good faith and
    supported by a reasonable basis. § 300aa–15(e)(1). In this case, Petitioner was awarded
    compensation pursuant to a stipulation, and therefore he is entitled to an award of reasonable
    attorneys’ fees and costs.
    Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
    the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 
    24 Cl. Ct. 482
    ,
    484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
    filed. 
    Id. at 484
    n. 1. The special master has the discretion to reduce awards sua sponte, independent
    of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
    Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 
    85 Fed. Cl. 313
    (Fed.
    Cl. 2008), aff'd No. 99–537V, 
    2008 WL 2066611
    (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
    a. Attorneys’ Fees
    Petitioner requests the following rates of compensation for his attorney, Ms. Meyers:
    $350.00 per hour for work performed in 2015-2017, $375.00 per hour for work performed in 2018,
    and $390.00 per hour for work performed in 2019. Fees App. Ex.2 at 2. The rates for 2015-2018
    are consistent with what Ms. Meyers has previously been awarded for her Vaccine Program work
    and is reasonable. See Porges v. Sec’y of Health & Human Servs., No. 15-427V, 
    2018 WL 2772241
    , at*3 (Fed. Cl. Spec. Mstr. May 7, 2018); Drake v. Sec’y of Health & Human Servs., No.
    16-732V, 
    2018 WL 4391065
    , at*2 (Fed. Cl. Spec. Mstr. Aug. 20, 2018). Additionally, her
    requested rate for 2019 is reasonable given her years of experience, quality of work, and overall
    reputation in the Vaccine Program. Accordingly, no adjustment to the requested rates is required.
    However, Ms. Meyers billed several entries at various points between 2015-2017 at $375.00 per
    hour despite most of the entries in that time period being billed at $350.00 per hour in accordance
    with what the Court has previously awarded her. In sum, these erroneous entries total 7.4 hours. I
    will therefore reduce the award of fees by $185.00 to correct for this error.
    2
    Upon review of the submitted billing statement, I find the overall hours spent on this matter
    require a minor reduction. The hours billed by Ms. Meyers (57.8) appear reasonable upon review.
    The hours billed by paralegals (103.7), however, appear somewhat excessive. There are multiple
    entries indicating that paralegals billed time for non-compensable administrative/clerical tasks
    such as scanning and preparing documents. See Rochester v. United States, 
    18 Cl. Ct. 379
    , 387
    (1989). These entries typically combined administrative tasks with other compensable tasks into
    one larger entry (e.g., entries on 9/25/15, 3/30/16, 10/19/17, 6/27/18, 6/28/18). Paralegals also
    routinely billed 0.2 hours or more on downloading file-stamped versions of documents filed and
    calendaring deadlines, which is excessive in my experience (e.g., entries on 10/26/16, 8/14/17,
    5/9/18, 5/10/18, 6/12/18, 7/13/18).
    For these reasons, I will reduce the time billed by paralegals by 5% as I have in the past for
    similar issues. See Dileo v. Sec’y of Health & Human Servs., No. 16-1639V, 
    2019 WL 1149785
    ,
    at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2019). This results in a reduction of $751.82.3 Petitioner is
    therefore entitled to final attorneys’ fees of $35,031.68.
    b. Attorneys’ 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). Petitioner requests total
    attorneys’ costs in the amount of $8,651.73, comprising of the cost of acquiring medical records,
    postage, and the expert work of Dr. Lawrence Steinman. Fees App. Ex. 2 at 2. Petitioner has
    provided adequate documentation supporting all these costs, and they shall be reimbursed in full.
    Petitioner is therefore entitled to final attorneys’ costs of $8,651.73.
    III.      Conclusion
    In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
    GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
    follows:
    Attorneys’ Fees Requested                                                 $35,968.50
    (Reduction of Fees)                                                       - ($936.82)
    Total Attorneys’ Fees Awarded                                             $35,031.68
    Attorneys’ Costs Requested                                                $8,651.73
    (Reduction of Costs)                                                          -
    Total Attorneys’ Costs Awarded                                            $8,651.73
    Total Attorneys’ Fees and Costs                                           $43,683.41
    Accordingly, I award the following:
    3
    $15,036.50 billed by paralegals * 0.05 = $751.82. Fees App. Ex. 2 at 2.
    3
    1) A lump sum in the amount of $43,683.41, representing reimbursement for petitioner’s
    attorneys’ fees and costs, in the form of a check payable to petitioner and his attorney,
    Ms. Nancy Meyers.4
    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/Thomas L. Gowen
    Thomas L. Gowen
    Special Master
    4
    This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
    the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
    prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded
    herein. See generally Beck v. Sec’y of Health & Human Servs., 
    924 F.2d 1029
    (Fed. Cir. 1991).
    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).
    4
    

Document Info

Docket Number: 16-597

Judges: Thomas L. Gowen

Filed Date: 6/27/2019

Precedential Status: Non-Precedential

Modified Date: 6/27/2019