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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0763V
Filed: March 8, 2019
UNPUBLISHED
L.B.,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Lisa Annette Roquemore, Rancho Santa Margarita, CA, for petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On June 29, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine that she received on
October 28, 2013. Petition at 2. On December 11, 2018, the undersigned issued a
decision awarding compensation to petitioner based on the parties’ stipulation. ECF
No. 69.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the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
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).
On January 3, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 75. Petitioner requests attorneys’ fees in the amount of $88,070.13 and attorneys’
costs in the amount of $15,882.25 . Id. at 2. Additionally, in compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred $2,402.94
in out-of-pocket expenses. Thus, the total amount requested is $106,355.32.
On February 8, 2019, respondent filed a response to petitioner’s motion. ECF
No. 79. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
Petitioner has filed no reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.§
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of
Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in
their fee requests hours that are “excessive, redundant, or otherwise unnecessary.”
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s
discretion to reduce the hours to a number that, in [her] experience and judgment, [is]
reasonable for the work done.” Id. at 1522. Furthermore, the special master may
reduce a fee request sua sponte, apart from objections raised by respondent and
without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not
engage in a line-by-line analysis of petitioner’s fee application when reducing fees.
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
2
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
II. Attorney Fees
A. Administrative Time
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the
attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of
Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at
387). A total of 15.3 hours was billed by paralegals on tasks considered administrative
including, receiving & downloading documents, finalizing & preparing PDF’s and
organizing the client file. Examples of these entries include:
• April 9, 2015 (0.20 hrs) “Set up folder on www.dropbox.com and upload
Exhibits 1-8 medical records and email Ms. Rojo the invitation to the share
folder.
• January 18, 2016 (0.30 hrs) “Prepare 68 pages of Kaiser Permanente
medical records for attorney review ensuring no duplicative records and
append to Exhibit 9”
• June 29, 2016 (0.20 hrs) “Prepare service on Respondent”
• August 23, 2016 (0.10 hrs) “Download for attorney review and client
discussions Scheduling Order filed August 19, 2016”
• February 23, 2017 (0.10) “Process second PT recommendation document
to improve readability”
• March 15, 2017 (0.10 hrs) “Create Exhibits in Order file for medical
records to send”
• December 3, 2018 (0.10 hrs) “Prepare Settlement Stipulation for USPS
Priority Mail to DOJ S. Duncan”
ECF No. 75-2 at 4, 12, 21, 28 and 44.
The undersigned reduces the request for attorney fees by $2,088.30 3, the
total amount of entries considered to be administrative.
III. Attorney Costs
Petitioner is requesting attorney costs in the amount of $15,882.25, which
includes costs for copy charges, medical records, postage and expert costs. As with
3 This amount consists of 7.7 hours at $135 per hour and 7.6 hours at $138 per hour.
3
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), aff’d 33 F. 3d 1375(Fed Circ. 1994). The undersigned finds a reduction of costs to be appropriate for the
reasons listed below.
i. Helen M. Woodard, M.A.
Petitioner requests a total of $13,319.75 in expert costs to compensate Helen M.
Woodard, M.A. for professional services retained in this case. “Fees for experts are
subject to the same reasonableness standard as fees for attorneys.” See Baker v. Sec’y
of Health & Human Servs., 99-653V, 2005 WL 589431, at *1 (Fed. Cl. Spec. Mstr. Feb
24, 2005). The undersigned finds it necessary to reduce petitioner’s request for costs
regarding Ms. Woodard as it related to travel time, vague and block billing entries.
As has been noted by other Special Masters, Ms. Woodard’s billing entries
continue to be consistently vague. See Desai v. Sec’y of Health & Human Servs., No.
14-811V, 2018 WL 6819551, at *8 (Fed. Cl. Spec. Mstr. Nov. 27, 2018); Nosches v.
Sec’y of Health & Human Servs., No. 16-1657, (Fed. Cl. Spec. Mstr. March 4, 2019). In
this matter Ms. Woodard billed 13.17 hours across eight entries as “Review Records”
and 31.07 hours over 27 entries as “Life care plan research re: costs”. ECF No. 75-9 at
2-6. Entries such as these do not allow the undersigned to assess the actual task or
reasonableness of the line entry. Thus, the undersigned reduces the overall amount
requested by Ms. Woodard by 10%. This results in a reduction of $1,388.23.
Ms. Woodward billed five hours, over two entries that include travel time to meet
with the petitioner in her home. Id at 2. In the Vaccine Program, special masters
traditionally have compensated time spent traveling when no other work was being
performed at one-half an attorney’s hourly rate. See Hocraffer v. Sec’y of Health &
Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25,
2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468,
at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs.,
No. 01-61V, 2006 WL 3419805, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). The
travel time was blocked into the same entry as other tasks therefore, the undersigned
cannot decipher how much time was spent travel alone. As Ms. Woodward is held to
the same reasonableness as attorneys in the program, the undersigned will reduce the
hours billed that include travel time by 50% reducing the request for costs by $562.50.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.
4
Accordingly, the undersigned awards the total of $102,316.29 4 as follows:
• A lump sum of $99,913.35, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Lisa A. Roquemore; and
• A lump sum of $2,402.94, representing reimbursement for
petitioner’s costs, in the form of a check payable to petitioner.
The clerk of the court shall enter judgment in accordance herewith. 5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief 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” as well as fees for legal services rendered.
Furthermore, § 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 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
5