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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-144V
Filed: January 10, 2019
* * * * * * * * * * * * * * *
KYLE JAMES WETTERLING, * UNPUBLISHED
*
Petitioner, *
v. * Decision on Attorneys’ Fees and Costs;
* Hourly Rate; Forum Rate; Excessive
SECRETARY OF HEALTH * Billing
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Zachary Hermsen, Esq., Whitfield & Eddy Law, Des Moines, IA, for petitioner.
Justine Walters, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On January 31, 2017, Kyle Wetterling (“Mr. Wetterling” or “petitioner”) filed a petition
for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges
that he developed leg and foot pain, weakness, fatigue, and other health issues as a result of
receiving a tetanus-diphtheria-acellular pertussis vaccination on July 24, 2014. See Amended
Petition, ECF No. 20. On June 8, 2018, I dismissed this case for insufficient proof, pursuant to
Vaccine Rule 21(b)(1). Decision, ECF No. 33.
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen 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 whole Decision will be available to the public. Id.
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 August 9, 2018, petitioner filed a Motion for Attorneys’ Fees and Costs (“Motion for
Fees”). ECF No. 37. Petitioner requests attorneys’ fees in the amount of $17,386.50 and costs in
the amount of $30.76, for a total amount of $17,417.26. Id. at 2, 5. In accordance with General
Order #9, petitioner’s counsel represents that petitioner did not incur any out-of-pocket expenses.
ECF No. 41.
On August 22, 2018, respondent filed a response to petitioner’s Motion for Fees. Response,
ECF No. 38. Respondent provided no specific objection to the amount requested or hours worked,
but instead, “respectfully recommend[ed] that the Special Master exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
Attorneys from petitioner’s counsel’s firm have been awarded fees once by the Program.
That decision did not discuss counsel’s hourly rates, but rather determined that the overall fee
award was appropriate. See Morgan v. Sec’y of Health & Human Servs., No. 13-529, 2016 WL
5920737 (Fed. Cl. Spec. Mstr. Sept. 13, 2016). Upon review of the billing records submitted, I
determined that the instant matter warranted an analysis of the hourly rates billed by petitioner’s
counsel as well as those at his firm. Petitioner was ordered to file documentation in support of the
hourly rates requested for counsel. Scheduling Order, ECF No. 39. Petitioner filed a supplemental
brief (“Supp. Br.”) in support of the hourly rates requested. ECF No. 40.
I. Legal Framework
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, he or she is entitled to an
award of reasonable attorneys’ fees and costs. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891
(2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the
petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed.
§ 15(e)(1).
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys’ fee” is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347-48 (quoting Blum
v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based
on other specific findings. Id.
Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (2009). Special masters 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).
2
II. Discussion
A. Reasonable Hourly Rate
Petitioner was represented by Zachary Hermsen of Whitfield & Eddy in Des Moines, Iowa.
Billing records reflect that Tom Reavely and Nick Gral, also of Whitfield & Eddy, worked on this
matter as well. Motion for Fees at 4. Petitioner requested the following hourly rates for counsel:
$490 for Mr. Reavely, $300 for Mr. Hermsen, and $225 for Mr. Gral. Id. at 5. Petitioner requested
an hourly rate of $150 for work performed by a law clerk. Id. Petitioner acknowledged that rates
requested for Mr. Reavely and Mr. Hermsen were “slightly higher” than the McCulloch rates in
the Office of Special Masters’ Attorneys’ Forum Hourly Rate Fee Schedule for 2018, but
submitted that these rates were justified by these attorneys’ “significant experience in the Vaccine
Program.” Id. at 4, 5.
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner’s
attorney.” Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F.3d at 1349). There is a “limited exception” that provides for attorneys’ fees
to be awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. Hall v. Sec’y of Health & Human
Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). Succinctly stated, the forum
rate is the “default rate” unless there is a “very significant difference” between local and forum
rates.
It has not yet been determined whether there is a “very significant difference” between
local rates in Des Moines, Iowa and the forum rate. Accordingly, I must set appropriate local and
forum rates for petitioner’s attorneys in order to determine whether there is a “very significant”
difference between the local and forum rates as viewed through the lens of Davis County.
1. Local Rate
Petitioner submits that an appropriate local rate for Mr. Hermsen is $265 to $285, noting
that it “is only a 5% deviation from the $300 rate he has requested in this case.” Supp. Br. at 2.
Petitioner did not offer a specific local rate for Mr. Reavely, explaining that Mr. Reavely “practices
almost exclusively as a plaintiff’s attorney on a contingent fee basis,” but submitted that the
requested hourly rate of $490 is “consistent with the rates other similarly situated Des Moines-area
attorneys charge in similar local cases.” Id.
Petitioner offered affidavits from local attorneys in a variety of practice areas as well as
decisions on attorneys’ fees and costs issued by federal courts in Iowa in support of these local
rates.3
3
Petitioner is advised that, when using other attorneys’ billing rates to support his own billing rates, counsel
3
In bankruptcy cases, petitioner offered affidavits from attorneys John Moorlach and Jason
Casini, as well as a 2018 decision from the Bankruptcy Court in the Northern District of Iowa, In
re Bailey Ridge Partners, LLC, Debtor, No. 17-33, 2018 WL 3655385 (Bankr. N.D. Iowa June 28,
2018). Mr. Moorlach and Mr. Casini have 12 and 25 years of experience4 and bill at $325 to $375
and $325 per hour, respectively. Supp. Br. Ex. 6 at 1; Supp. Br. Ex. 7 at 1. The Bankruptcy Court
awarded a blended rate of $350 to Matthew McClintock and Brian J. Jackiw, who have 15 and 10
years of experience, respectively,5 and a rate of $290 to Bradley Kruse, who has over 20 years of
experience.6 In re Bailey Ridge, 2018 WL 3655385 at *1, *20.
In the area of products liability defense, Kevin Reynolds, an attorney with 37 years of
experience, bills between $285 and $350 per hour. Supp. Br. Ex. 9 at 1.
Petitioner also cited to multiple civil rights cases. A 2010 decision, Dorr v. Weber, awarded
hourly rates of $375 for William Mohrman, $350 for Erick G. Kaardal, $220 for Vincent J.
Fahnlander, and $150 for James Magnuson. 741 F. Supp. 2d 1022, 1032 (Bankr. N.D. Iowa 2010).7
At the time these fees were awarded, these attorneys had 25, 18, 22, and 2 years of experience,
respectively.8 Petitioner implied that these rates were lower than an appropriate forum rate for his
attorneys, including the caveat that “the Northern District of Iowa Bankruptcy Court sits in Cedar
Rapids, Iowa, a far less populated and less competitive legal market than Des Moines.” Supp. Br.
at 4. However, the court in Dorr specifically cited to previous decisions holding “that the relevant
market [for civil rights cases] is not confined to Sioux City, Iowa [where the defense counsel
practiced], nor the entire state of Iowa.” 741 F. Supp. 2d at 1033 (internal citations omitted).
must provide background information on those attorneys, i.e., their respective years of practice. It is not the
special master’s duty to research the attorneys referenced by petitioner; however, I have done so in this
matter in order to ensure that I had a complete picture of the local billing rates.
4
Mr. Casini’s affidavit did not indicate how many years of experience he has; this information was
obtained from his firm’s website. See Jason M. Casini, Whitfield & Eddy Law,
https://www.whitfieldlaw.com/attorneys-jason-m-casini (last visited Dec. 10, 2018).
5
The Bankruptcy Court’s decision did not refer to Mr. McClintock’s experience, nor did his firm’s website;
this information was obtained from his LinkedIn page. See Matthew McClintock, LinkedIn,
https://www.linkedin.com/in/matthew-e-mcclintock-69516a11/ (last visited Dec. 10, 2018). Similarly, Mr.
Jackiw’s experience was also obtained from his LinkedIn page. See Brian Jackiw, LinkedIn,
https://www.linkedin.com/in/brian-jackiw-b60ab36/ (last visited Dec. 10, 2018).
6
Mr. Kruse’s experience was obtained from his firm’s website. See Bradley R. Kruse, Dickinson Law,
https://www.dickinsonlaw.com/attorney-profiles/bradley-r-kruse (last visited Dec. 10, 2018).
7
Although this matter was adjudicated in bankruptcy court, attorneys’ fees were awarded under the Civil
Rights Attorneys’ Fees Awards Act of 1976. Dorr, 741 F. Supp. 2d at 1027; see also 42 U.S.C. §1983,
§1988.
8
This information was obtained from each attorney’s profile on the firm’s website. See William F.
Mohrman, Morhman, Kaardal & Erickson, P.A., http://mklaw.com/attorney/william-f-mohrman/ (last
visited Dec. 10, 2018); Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A.,
http://mklaw.com/attorney/erick-g-kaardal/ (last visited Dec. 10, 2018); Vincent J. Fahnlander, Mohrman,
Kaardal & Erickson, P.A., http://mklaw.com/attorney/vincent-j-fahnlander/ (last visited Dec. 10, 2018);
James R. Magnuson, Morhman, Kaardal & Erickson, P.A., http://mklaw.com/attorney/james-r-magnuson/
(last visited Dec. 10, 2018).
4
Because the hourly rates in Dorr were determined in the broader context of the Midwest and
specifically considered the “metropolitan area” of Minneapolis, where the plaintiff’s attorneys
practiced, they should not be considered artificially low due to the “less competitive legal market”
in Cedar Rapids, as advocated by petitioner. Supp. Br. at 4.
A 2015 order issued by the Iowa District Court for Chickasaw County9 awarded Page
Fiedler, an attorney with 20 years of experience, $400 per hour, and Roxanne Conlin, with 48
years of experience, $750 per hour. Supp. Br. at 5; see also Supp. Br. Ex. 13. The Court in
Haskenhoff also awarded fees to several other attorneys, although petitioner did not offer these
comparisons. Attorney Brooke Timmer billed at $275 with 9 years of experience, attorney Whitney
Judkins and Emily McCarty billed at $175 with 5 and 6 years of experience, respectively, attorney
Nate Borland billed at $125 with 2 years of experience, and attorney David Denison billed at $225
with 8 years of experience.10
Petitioner also cited to a civil rights case from 2011 in which Mark Sherinian was awarded
$350 per hour. See Lewis v. Heartland Inns of America, 764 F. Supp. 2d 1037, 1043 (S.D. Iowa
2011). At that time, Mr. Sherinian had been practicing for nearly 30 years.11 Petitioner did not
include that an attorney with 5 years of experience, Andrew LeGrant, was awarded $200 per
hour.12
In the family law context, attorney Leslie Babich, who has 44 years of experience and
founded his own law firm,13 billed at $450 per hour in 2014 and 2015. See generally, Supp. Br.
Ex. 10. Anjela Shutts, an attorney at petitioner’s counsel’s firm of Whitfield & Eddy with 22 years
of experience, currently charges $385 per hour. Supp. Br. Ex. 11 at 1. Another attorney at Whitfield
& Eddy, Tyler Coe, with “nearly identical experience” as Mr. Hermsen, bills at $285 per hour.
Supp. Br. at 5; see also Supp. Br. Ex. 12.
9
Order for Attorney Fees & Costs at 4, Haskenhoff v. Homeland Energy Solutions, L.L.C., 01191
LACV003218, issued Mar. 2, 2015.
10
The decision did not discuss the respective experience of these attorneys; this information was obtained
from either firm websites or LinkedIn profiles. See Timmer Judkins, Brooke Timmer,
https://www.timmerjudkins.com/who-we-are/brooke-timmer/ (last visited Dec. 10, 2018); Timmer
Judkins, Whitney Judkins, https://www.timmerjudkins.com/who-we-are/whitney-judkins/ (last visited
Dec. 10, 2018); Timmer Judkins, Emily McCarty, https://www.timmerjudkins.com/who-we-are/emily-
mccarty/ (last visited Dec. 10, 2018); Timmer Judkins, Nate Borland,
https://www.timmerjudkins.com/who-we-are/nate-borland/ (last visited Dec. 10, 2018); LinkedIn, David
Denison, https://www.linkedin.com/in/ddenison/ (last visited Dec. 10, 2018).
11
The decision did not discuss Mr. Sherinian’s experience; this information was obtained from his firm
website. See Mark D Sherinian, Sherinian & Hasso Law Firm,
http://www.sherinianlaw.com/mark_d_sherinian.htm (last visited Dec. 10, 2018).
12
Similarly, Mr. LeGrant’s information was also obtained from his firm’s website. See Andrew L. LeGrant,
LeGrant Law Firm, http://www.legrantlaw.com/our-attorneys/andrew-legrant.html (last visited Dec. 10,
2018).
13
Petitioner submitted billing records filed by Mr. Babich in a family court matter as evidence of Mr.
Babich’s hourly rates. Information on Mr. Babich’s experience was obtained from his firm’s website. See
Les Babich, Babich Goldman, http://babichgoldman.com/staff/leslie-babich (last visited Dec. 10, 2018).
5
Of the various hourly rates offered, none is from the plaintiffs’ side of personal injury,
medical malpractice, or products liability litigation. These practice areas are considered most
similar to the Vaccine Program in subject matter, though more procedurally complicated, as
Vaccine Program cases do not involve discovery rules or motion practice. See McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *12 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). This is understandable, however, as plaintiffs are generally represented on a contingency
fee basis, and not charged an hourly rate. Special masters have used civil rights cases as an
alternative point of reference, citing hourly rates in cases where attorneys’ fees were awarded to
the prevailing party under fee-shifting statutes. In Garrison v. Sec’y of Health & Human Servs.,
the special master concluded that, although the fee-shifting cases varied in complexity of subject
matter and procedure, they represented a range of complex litigation cases “generally of the same
complexity as a vaccine case.” No. 14-762V, 2016 WL 3022076, at *5 (Fed. Cl. Spec. Mstr. Apr.
29, 2016), mot. for rev. denied, 128 Fed. Cl. 99 (2016).
Notably, petitioner’s counsel failed to submit the rates of other attorneys practicing in the
Vaccine Program from Iowa. In fact, Iowa attorney Richard Moeller, has practiced in the Vaccine
Program since 1998 and is located in Sioux City. A recent decision awarded Mr. Moeller, who has
33 years of experience, hourly rates of $265 for work performed in 2012, $270 for work performed
in 2013, and $275 for work performed from 2014 to 2018. See Swick v. Sec’y of Health & Human
Servs., No. 13-526V, 2018 WL 6009290, at *7 (Fed. Cl. Spec. Mstr. Oct. 22, 2018). His associate
with 14 years of experience, Jason Gann, was awarded an hourly rate of $200, while an associate
with 4 years of experience, Nikki Nobbe, was awarded an hourly rate of $180. Id.
In this case, Mr. Reavely has been practicing for 47 years. Petitioner chose to compare Mr.
Reavely to Iowa attorney Roxanne Conlin, whose practice includes employment discrimination,
civil rights, medical malpractice, personal injury, and products liability.14 Ms. Conlin has 48 years
of experience and was awarded $750 per hour in a fee-shifting civil rights case;15 her hourly rate
for non-civil rights cases was not provided. When compared with the other rates submitted, this
$750 rate seems to be an outlier amongst the other rates provided for practitioners with over 30
years of experience. Leslie Babich, a family law practitioner, has 44 years of experience and bills
at $450 per hour; Kevin Reynolds, a products liability defense attorney, a practice more akin to
vaccine injury litigation, with 37 years of experience, bills between $285 and $350 per hour. Mark
Sherinian, an employment law attorney, was awarded an hourly rate of $350 when he had 30 years
of experience. Based on the rates of individuals in more similar practices, i.e., products liability, a
more appropriate rate for Mr. Reavely would be $425 at 47 years of experience.
Mr. Hermsen has been practicing for 3 years; Mr. Gral, less than two years. A survey of the hourly
rates awarded to attorneys with five or fewer years of experience – Andrew LeGrant, 5 years, $200;
Whitney Judkins, 5 years, $175; Nikki Nobbe, 4 years, $180; Tyler Coe, 3 years, $285; James
Information about Ms. Conlin’s areas of practice was obtained from her website. See Practice Areas,
14
Roxanne Conlin & Associates, P.C., https://www.roxanneconlinlaw.com/Practice-Areas/ (last visited
Dec. 13, 2018).
15
The Order in Haskenhoff noted that information on Ms. Conlin’s education, experience, and fee awards
from other cases was submitted to the Court, but the Order did not discuss this information. See Supp. Br.
Ex. 13 at 4.
6
Magnuson, 2 years, $150; Nate Borland, 2 years, $125 – results in the conclusion that Mr. Coe,
who practices family law, is a clear outlier among the group. The other four attorneys were
awarded their rates in either Vaccine Program or fee-shifting civil rights cases, implying that the
range for an appropriate local hourly rate for Mr. Hermsen is between $125 and $200, rather than
his requested range of $265 to $285. Similarly, the appropriate range for Mr. Gral appears to be
$125 to $150, rather than his requested rate of $225. Of the rates awarded in the fee-shifting cases,
the attorneys with 5 years of experience were awarded $175 to $200, and the attorneys with two
years of experience were awarded $125 to $150. Based on Mr. Hermsen’s three years of
experience, an appropriate local rate appears to be $163. Based on Mr. Gral’s two years of
experience, an appropriate local rate appears to be $138.
Accordingly, Mr. Reavely is awarded a local rate of $425, Mr. Hermsen is awarded a local
rate of $163, and Mr. Gral is awarded a local rate of $138.
2. Forum Rate
For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience.
McCulloch, 2015 WL 5634323. The Office of Special Masters has adopted the McCulloch
framework and has issued a Fee Schedule for subsequent years.16
Mr. Reavely has been practicing for 47 years; thus, the applicable range under McCulloch
for 2017 is $394 to $440, and for 2018 it is $407 to $455. Although Mr. Reavely requested $490
per hour, Mr. Reavely has relatively little experience in the Vaccine Program,17 and thus the lower
end of the range is appropriate. See Srour v. Sec’y of Health & Human Servs., No. 14-283V, 2017
WL 2537373, at *4 (Fed. Cl. Spec. Mstr. May 17, 2017) (awarding hourly rate based in part on
“specific experience with the Vaccine Program”); Dipietro v. Sec’y of Health & Human Servs.,
No. 15-742V, 2016 WL 7384131, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (considering level of
experience in the Vaccine Program in determining appropriate hourly rate). Therefore, the
undersigned will award Mr. Reavely an hourly rate of $394 for work performed in 2017 and $407
for work performed in 2018. Compare A.A. by Akers v. Sec’y of Health & Human Servs., No. 15-
597V, 2018 WL 3216243 (Fed. Cl. Spec. Mstr. May 31, 2018) (awarding hourly rates of $440 for
work performed in 2017 and $456 for work performed in 2018 to Michael McLaren, who has been
practicing for over 40 years, been an attorney in the Vaccine Program since its inception and is the
attorney of record in 177 cases in the Vaccine Program); Rice v. Sec’y of Health & Human
16
The fee schedules are posted on the Court’s website. See Office of Special Masters, Attorneys’ Forum
Hourly Rate Fee Schedule: 2015-2016, http://www.uscfc.uscourts.gov/sites/default/files/Attorneys -
Forum-Rate-Fee-Schedule2015-2016.pdf (last visited Dec. 10, 2018); Office of Special Masters,
Attorneys’ Forum Hourly Rate Fee Schedule: 2017,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf (last
visited Dec. 10, 2018); Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2018,
https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedul
e%202018.pdf (last visited Dec. 10, 2018).
Mr. Reavely has been the attorney of record in one Vaccine Program case, Morgan v. Sec’y of Health &
17
Human Servs., No. 13-529V, 2015 WL 9694667 (Fed. Cl. Spec. Mstr. Dec. 10, 2015).
7
Services, No. 15-1335V, 2018 WL 4784563 (Fed. Cl. Spec. Mstr. Aug. 27, 2018) (awarding hourly
rates of $409 for work performed in 2017 and $421 for work performed in 2018 to Ronald Homer,
who has been practicing in the Vaccine Program from its inception and is the attorney of record in
1,695 cases).
Mr. Hermsen has been practicing for 3 years, see Supp. Br. Ex. 3; thus, the applicable range
under McCulloch is $153 to $230 for work performed in 2017 and $159 to $238 for work
performed in 2018. Although Mr. Hermsen requested $300 per hour, he has relatively little
experience in the Vaccine Program18 and thus the lower end of the range is appropriate. Srour,
2017 WL 2537373, at *4. Accordingly, I award Mr. Hermsen the following rates: $153 for work
performed in 2017 and $159 for work performed in 2018. In comparison, Amy Senerth, an attorney
with 3 years of experience, has been attorney of record in 115 Vaccine Program and awarded
hourly rates of $225 and $233. See Mohler v. Sec’y of Health & Human Servs., No. 16-1404V,
2018 WL 3989515, at *2 (Fed. Cl. Spec. Mstr. July 2, 2018) (awarding Ms. Senerth an hourly rate
of $225 for work performed in 2017 and 2018); Roetgerman v. Sec’y of Health & Human Servs.,
No. 17-244V, 2018 WL 4907033, at *1 (Fed. Cl. Spec. Mstr. July 3, 2018) (awarding Ms. Senerth
an hourly rate of $233 for work performed in 2018).
Mr. Gral graduated from law school in 2017; therefore, he has been practicing for less than
two years and falls into the same applicable range as Mr. Hermsen.19 Like Mr. Hermsen and Mr.
Reavely, Mr. Gral has little experience and thus the lower end of the McCulloch range is
appropriate. Accordingly, Mr. Gral is awarded an hourly rate of $153 for work performed in 2017.
Jackson O’Brien was a second-year law clerk when he worked on this matter. Motion for
Fees at 4. No other information was given about his experience; therefore, I assume that, like the
attorneys he worked for, Mr. O’Brien has little experience in the Vaccine Program and thus the
lower end of the applicable range is appropriate. Accordingly, he is awarded an hourly rate of $128
for work performed in 2017.
3. Forum vs. Local Rate
Having decided the appropriate local and forum rates, I must now compare the two to
determine whether there is a “very significant difference.” There is no brightline rule for what
constitutes a “very significant difference,” but generally, any difference over 25% meets the
standard. See Auch v. Sec’y of Health & Human Servs., No. 12-673V, 2016 WL 3944701 at *11
(Fed. Cl. Spec. Mstr. May 20, 2016); see, e.g., Davis Cty., 169 F.3d at 757 (finding a very
significant difference existed where the forum rate was 70% higher than local rates); Masias v.
Sec’y of Health & Human Servs., 634 F.3d 1283, 1286-87 (Fed. Cir. 2011)(finding a “very
significant difference” existed where there was a 59% difference between local and forum rates);
18
Mr. Hermsen is attorney of record in four Vaccine Program cases other than the instant matter, all of
which were filed in the past 2 years. See Curtis v. Sec’y of Health & Human Servs. No. 17-607V; McDowell
v. Sec’y of Health & Human Servs., No. 17-1156V; K.G. v. Sec’y of Health & Human Servs., No. 18-120V;
Freie v. Sec’y of Health & Human Servs., No. 18-175V.
19
This information was obtained from the Whitfield & Eddy firm website. See Nick J. Gral, Whitfield &
Eddy, https://www.whitfieldlaw.com/attorneys-nick-j-gral (last visited Dec. 12, 2018).
8
Rojas v. Sec’y of Health & Human Servs., No. 14-1220V, 2017 WL 6032300, at *11 (Fed. Cl.
Spec. Mstr. Apr. 5, 2017) (finding rate differentials of 36% and 41% to be “very significant” for
attorneys from Montana); Onikama v. Sec’y of Health & Human Servs., No. 15-1348V, 2017 WL
1718798, at *13 (Fed. Cl. Spec. Mstr. Apr. 3, 2017) (finding a difference greater than 25% was
“very significantly different” from forum rates and therefore local rates were appropriate); Henry
v. Sec’y of Health & Human Servs., No. 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov.
4, 2016) (finding that Memphis, TN attorneys were entitled to forum rates based on a differential
of 17 to 21% between local and forum rates); Garrison, 2016 WL 3022076, at *7 (finding that a
difference between the local rate of Boise, Idaho, and the forum rate of 18.5% was not “very
significantly different.”) When the local rate is higher than the forum rate, a higher rate is only
awarded when either the non-local attorney possesses “special expertise” or the party seeking fees
and costs was unable to find other representation. Rodriguez v. Sec’y of Health & Human Servs.,
No. 06-559V, 2009 WL 2568468, at *10 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied,
91 Fed. Cl. 453, 478-79 (2010), aff’d, 632 F.3d 1381, 1385-86 (Fed. Cir. 2011).
Mr. Reavely has been awarded a local rate of $425 and forum rates of $394 for work
performed in 2017 and $407 for work performed in 2018. This yields differences of 7% and 4%.
Mr. Hermsen has been awarded a local rate of $163 and forum rates of $153 for 2017 and $159.00
for 2018. This yields differences of 6% and 2% between local and forum rates, respectively. Mr.
Gral has been awarded a local rate of $138 and a forum rate of $153, yielding a difference of about
11%. These rates are well within the range widely considered to be “not very significantly
different.” As previously discussed, petitioner’s attorneys do not have “special expertise” in the
Vaccine Program which would justify higher rates. Accordingly, I find that petitioner is entitled
to forum rates.
Petitioner’s fee award has been modified, as demonstrated in the chart below, to reflect
forum rates:
2017 2017 2017 2018 2018 2018 Overall
Hours Forum Total Hours Forum Total Total
Rate Rate
Zach 37.2 $153.00 $5,691.60 9.2 $159.00 $1,462.80 $7,154.40
Hermsen
Tom 4.2 $394.00 $1,654.80 0.9 $407.00 $366.30 $2,021.10
Reavely
Nick Gral 3.3 $153.00 $504.90 -- -- -- $504.90
Jackson 1.5 $128 $192.00 -- -- -- $192.00
O’Brien
$9,872.40
Petitioner’s requested attorneys’ fees are reduced to $9,872.40, based on the forum rates
awarded herein.
9
B. Hours Reasonably 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 ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal. 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. McCulloch, 2015 WL 5634323,
at *26. Hours spent traveling are ordinarily compensated at one-half of the normal hourly attorney
rate. See Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed.
Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time
for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health
& Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).
Ultimately, 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.” Saxton, 3 F.3d at 1522. In
exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-29 (affirming the Special
Master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38
Fed. Cl. 403, 406 (1997) (same).
Upon review of petitioner’s application, the undersigned noted some billing issues that
were “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521.20 Mr. Hermsen
billed a number of tasks at his full attorney rate that should have been billed at a paralegal rate, or
were secretarial in nature and should not have been billed at all.21 In the future, counsel is
encouraged to be specific in describing tasks performed, as paralegal tasks may be compensated
at paralegal rates but secretarial tasks will not be compensated at all. Additionally, Mr. Hermsen
billed 1.6 hours of travel at his full rate; travel is only compensated at one-half of an attorney’s
hourly rate.22 For these reasons, I find that petitioner’s fee award should be reduced by 5%.
Petitioner is advised that future billing infractions may result in a higher percentage reduction.
Petitioner is hereby awarded $9,378.78 in attorneys’ fees.
20
The following entries are examples and are not exhaustive; they merely provide a sampling.
21
See, e.g., Motion for Fees, Pet. Ex. 9, ECF No. 37-1, at 3 (“Downloading and reviewing docket”); id. at
4 (“Formatting and filing medical records”); id. (“Drafting and filing exhibit list”); id. (“Attempting to set
up prison email account for correspondence with client in prison”); id. at 5 (“Scheduling status
conference”).
22
Id. at 1 (0.8 hours billed for “Travel from Des Moines to Newton Correctional Facility for meeting with
Kyle Wetterling”); id. (0.8 hours billed for “Travel from Newton Correctional Facility to Des Moines
following meeting with Kyle Wetterling”).
10
C. Reasonable Costs
Petitioner requested a total of $30.76 in attorneys’ costs. Motion for Fees at 5. The
requested costs consist of fees for PACER research and fees associated with setting up petitioner’s
prison email account. Id. The undersigned finds petitioner’s requested costs to be reasonable.
III. Total Award Summary
Based on the foregoing, the undersigned awards the total of $9,409.54,23 representing
reimbursement for attorneys’ fees in the amount of $9.378.78 and costs in the amount of $30.76,
in the form of a check made payable jointly to petitioner and petitioner’s counsel, Zachary
Hermsen, Esq. The Clerk of the Court is directed to enter judgment in accordance with this
Decision.24
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
23
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).
24
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
11