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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-271V
(not to be published)
*************************
JANICE BACON, *
* Special Master Corcoran
*
Petitioner, * Filed: July 16, 2019
*
v. *
* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
*
Respondent. *
*
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Ryan D. Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On February 27, 2017, Janice Bacon (“Petitioner”) filed a petition seeking compensation
under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner
alleged that she suffered from transverse myelitis (“TM”) as a result of receiving the influenza
(“flu”) vaccine on October 23, 2015. The parties filed a stipulation for award on February 7, 2019,
which I adopted as my Decision awarding damages on the same day. (ECF No. 46).
1
Although I have not designated this Decision for publication, it will be made available 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). 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, I agree that the identified material fits within this definition, I will
redact such material from the public Decision.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated April 5,
2019 (ECF No. 51) (“Fees App.”), requesting a total award of $30,077.62 (representing $28,279.30
in fees, plus $1,773.62 in costs). Fees App. at 2. Pursuant to General Order No. 9, Petitioner
warrants that she has personally incurred costs of $24.70 in pursuit of this litigation. Id. Respondent
reacted to the motion on April 9, 2019, indicating that he is satisfied that the statutory requirements
for an award of attorney’s fees and costs are met in this case, and deferring to my discretion to
determine the amount to be awarded. Response, ECF No. 53, at 2-3. Petitioner did not file a reply
thereafter.
For the reasons set forth below, I hereby GRANT Petitioner’s motion in part, awarding
final attorney’s fees and costs in the amount of $29,126.72.
ANALYSIS
Vaccine Program attorneys are entitled to a fees award in successful cases like this one.
Determining the appropriate amount of that award is a two-part process. The first part involves
application of the lodestar method – “multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d
1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second
part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered
applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,
461 U.S. 424, 429-37 (1983).
I have reviewed the rates requested by Petitioner for the work of the various attorneys who
worked on her case (the billing records indicate that most of the attorney work was performed by
3
An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999) ).
2
Mr. Joseph Pepper, although Mr. Homer, Ms. Christina Ciampolillo, and Ms. Meredith Daniels
also worked on the case) and I find the rates requested to be consistent with what I have previously
awarded Conway, Homer, P.C. attorneys, and also consistent with the Office of Special Masters’
fee schedules.4 The only adjustment required is to Mr. Pepper’s requested rate for 2019. I have
recently considered Mr. Pepper’s 2019 rate and determined that $325.00 per hour is reasonable for
his work – not the requested rate herein of $331.00. Curri v. Sec’y of Health & Human Servs., No.
17-432V, 2019 WL 2636032, at *2-3 (Fed. Cl. Spec. Mstr. May 28, 2019). Accordingly, I shall
reduce the final award of attorney’s fees by $18.00.5
Minor issues with the hours expended on this matter also necessitate a reduction in the total
fees award. Such issues include time spent by paralegals on administrative tasks (such as receiving
and preparing records to be reviewed by an attorney or law clerk), duplicative review of filings by
two attorneys, and a vague entry of 1.0 hour on April 4, 2019 for “case finalization”. See generally
Fees App. Ex. 1. For these reasons, I will reduce the amount billed by $932.90 to account for these
entries. Petitioner is therefore entitled to final attorney’s fees of $27,328.40.
I will next turn to costs. Just as they are required to establish the reasonableness of
requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining
medical records and expert time incurred while working on a case. Fester v. Sec’y of Health &
Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).
When petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding compensation. See,
e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4
(Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioner requests $1,798.32 in overall costs, representing attorney’s costs of $1,773.62
and petitioner’s costs of $24.70. Fees App. at 2. This amount is comprised of obtaining medical
4
The 2015–2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf. The 2018 Fee
Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202018.p
df. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.p
df. The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
5
($331.00 per hour requested - $325.00 per hour awarded) * 3.0 hours = $18.00.
3
records, postage charges, the Court’s filing fee, and costs incurred for travel by Petitioner’s counsel
to meet with Petitioner. Fees App. at 24-25. I have reviewed all of the requested costs and find
them to be reasonable, and Petitioner has provided adequate documentation supporting them.
Accordingly, Petitioner is entitled to the full amount of costs requested.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C.
§ 300aa-15(e). Accordingly, I award a total of $29,102.02 as a lump sum in the form of a check
jointly payable to Petitioner and her counsel, Mr. Ronald Homer, Esq., and a total of $24.70 as a
lump sum in the form of a check payable to Petitioner. In the absence of a timely-filed motion for
review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance
with this decision.6
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
6
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
4