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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 19, 2017
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JAMES GLOVER, * No. 16-891V
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Petitioner, * Special Master Sanders
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v. *
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SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Reasonable
AND HUMAN SERVICES, * Hourly Rate.
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Respondent. *
* * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Justine E. Walters, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On July 26, 2016, James Glover (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that he suffered from Guillain-Barré Syndrome (“GBS”) as a result of an
influenza (“flu”) vaccine administered on October 19, 2015. Decision, ECF No. 19. On March
9, 2017, the undersigned issued a decision awarding compensation to Petitioner pursuant to the
parties’ stipulation. Id.
Petitioner filed a motion for attorneys’ fees on August 23, 2017. Mot. Att’ys’ Fees, ECF
No. 25. Petitioner requested $25,266.00 for attorneys’ fees and $5,453.76 in costs, totaling
$30,719.76. Id. at 1. Respondent filed a Response on September 5, 2017. Resp’t’s Resp., ECF
No. 26. He indicated that “[t]o the extent the Special Master is treating [P]etitioner’s request for
attorneys’ fees and costs as a motion that requires a response from [R]espondent[,] . . .
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This decision shall be posted 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, § 205, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). 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).
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).
Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Id. at 2. Respondent “recommend[ed]” for the undersigned to “exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner
indicated to Chambers that he would not submit a reply to Respondent’s filing. Informal
Comm., dated Sept. 6, 2017.
For the reasons discussed below, the undersigned awards Petitioner’s Motion for
Attorneys’ Fees and Costs in part.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348
(Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . .
by ‘multiplying the numbers 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)). Second, the
court may make an upward or downward departure from the initial calculation of the fee award
based on specific findings. Id. at 1348.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also
Hines v. Sec’y of Health & Human Servs., 22 Cl Ct. 750, 753 (1991) (“[T]he reviewing court
must grant the special master wide latitude in determining the reasonableness of both attorneys’
fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific
billing records that indicate the work performed and the number of hours spent on said work.
See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008).
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). In
McCulloch, Special Master Gowen held that an attorney with twenty or more years of experience
has a reasonable hourly rate between $350 and $425. Id. The Court recently updated the
McCulloch rates for 2015-20163 and 2017.4 For attorneys with twenty to thirty years of
experience, the reasonable hourly fee range for work performed in 2017 is $358 to $424. The
3
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 hourly rates contained in the 2015-2016 Fee Schedule are updated from the
decision in McCulloch v. Secretary of Health and Human Services. 2015 WL 5634323, at *19.
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The 2017 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The hourly rates contained in the 2017 Fee Schedule are updated from the decision McCulloch v.
Secretary of Health and Human Services. 2015 WL 5634323, at *19.
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revised rate schedule also contains increased rates for attorneys with more than thirty-one years
of experience.
a. Hourly Rates
The first step of the lodestar approach involves determining an estimate by calculating
“the numbers of hours reasonably expended on the litigation times a reasonable hourly rate.”
Avera, 515 F.3d at 1347-48 (quotation omitted). Petitioner’s counsel, Ms. Leah Durant,
requested an hourly rate of $350 for her work performed in 2016, and $365 for 2017. ECF No.
25-1 at 10. Ms. Durant also requested an hourly rate of $140 for the work performed by her
paralegal, Ms. Ashley Raina, in 2016. Id. For 2017, Ms. Durant increased Ms. Raina’s hourly
rate request to $145. Id.Special masters have found reasonable the requested rates for Ms. Raina in 2016 and
2017, and for Ms. Durant in 2016. Nieto v. Sec’y of Health & Human Servs., No. 15-1504V,
2017 WL 1968318, at *2 (Fed. Cl. Spec. Mstr. Apr. 17, 2017); Terrell v. Sec’y of Health &
Human Servs., No. 13-334V, 2017 WL 11309417, at *2 (Fed. Cl. Spec. Mstr. Mar. 2, 2017).
However, the undersigned will reduce Ms. Durant’s requested hourly rate for 2017. Chief
Special Master Dorsey and Special Master Roth have found an hourly rate of $363 reasonable
for Ms. Durant’s work performed in 2017. Nieto, 2017 WL 1968318 at *2; Terrell, 2017 WL
11309417 at *2. The undersigned finds the reasoning behind Nieto and Terrell persuasive, and
holds $363 to be a reasonable hourly rate for Ms. Durant’s work performed in 2017. The
resulting deduction totals $30.20.
b. Hours Expended
The second step in Avera is for the Court to make an upward or downward modification
based upon specific findings. 515 F.3d at 1348. The undersigned finds no unnecessary or
unreasonable entries in Ms. Durant’s billing records, and therefore finds that the hours expended
are reasonable and should be awarded in full. See generally ECF No. 25-1.
c. 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 (1992). Petitioner’s costs consist of the
acquisition of medical records and the expert costs of Dr. Catherine Shaer. See generally ECF
No. 25-2. Although not explicitly stated in Ms. Durant’s application for fees, Dr. Shaer worked
as a medical consultant in this case. See ECF No. 25-1 at 3, 4, 7, 8. Dr. Shaer requested an
hourly rate of $250 for her consulting services, which included analyses of Petitioner’s medical
records and Respondent’s counter-demand. See id.; see also ECF No. 25-2 at 2, 8, 9. An hourly
rate of $250 for the work of medical consultants has been found reasonable. Mooney v. Sec’y of
Health & Human Servs., No. 05-266V, 2014 WL 7715758, at *15 (Fed. Cl. Spec. Mstr. Dec. 29,
2014) (listing cases). Dr. Shaer’s hourly rate request is therefore reasonable, and a review of her
billing records shows no unreasonable billing entries. Therefore, the undersigned will award Dr.
Shaer’s request in full. A review of the remainder of Petitioner’s costs show them to be
reasonable, as well, and the undersigned awards Petitioner costs in full.
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II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned
finds that Petitioner is entitled to attorneys’ fees and costs. Accordingly, the undersigned
hereby awards the amount of $30,689.56,5 in the form of a check made payable jointly to
Petitioner and Petitioner’s counsel, Leah V. Durant, of The Law Offices of Leah V. Durant,
PLLC.
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.6
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
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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).
6
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