Lewis v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
RAZENE LEWIS, *
* No. 14-1035V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 19, 2018
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner;
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING ATTORNEY’S FEES AND
COSTS1
Razene Lewis brought a successful petition for compensation under the
National Childhood Vaccine Compensation Program. She now sees an award for
attorneys’ fees and costs. She is awarded $107,112.03.
***
Represented by Patrick Jackson, Ms. Lewis filed her petition for
compensation on October 24, 2014. Ms. Lewis claimed that the diphtheria-
pertussis-tetanus vaccination she received on October 25, 2012, caused her to
suffer brachial neuritis. Less than one year after filing the petition, on June 4,
2015, Ms. Lewis filed a motion to substitute Mr. Richard Gage in place of Mr.
Jackson. After Mr. Gage became counsel of record, Ms. Lewis was found entitled
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
to compensation. Ruling Finding Facts and Granting Entitlement, issued Oct. 13,
2015, 2015 WL 7179710.
Following the ruling on entitlement, the parties started to determine the
amount of compensation to which Ms. Lewis was entitled. This process took a
relatively long amount of time. Due in part to the disagreements that were drawing
out the process, the special master awarded Ms. Lewis compensation for the
undisputed items. See Decision Awarding Compensation on an Interim Basis,
issued July 31, 2017. The parties proceeded to a hearing on damages. The
undersigned resolved the outstanding disputes. These rulings served as a basis for
a proffer on award of compensation that was then adopted. Decision, issued July
23, 2018, 2018 WL 3989520.
On August 7, 2018, Ms. Lewis moved for reimbursement of attorneys’ fees
and costs, requesting a total of $119,306.93. This comprised the following:
$65,925.20 in fees and $38,316.37 in costs for Ms. Lewis’s current counsel, Mr.
Richard Gage; $9,487.50 in fees and $3,513.52 in costs for Ms. Lewis’s former
counsel, Mr. Patrick Jackson; and $2,064.34 in costs personally incurred by Ms.
Lewis.
On August 8, 2018, the Secretary filed his response to the petitioner’s
motion. In his response, respondent did not object to petitioner’s request. Resp’t’s
Resp. at 2. Instead, the respondent stated that he is “satisfied that the statutory and
other legal requirements for an award of attorneys’ fees and costs are met” and
recommended that the undersigned exercise his discretion in determining “a
reasonable award for attorneys’ fees and costs.” Id. at 2-3.
On October 18, 2018, petitioner filed an amended fees motion, reducing the
amount requested for Mr. Gage’s costs by $1,568.46 due to a clerical error. The
next day, the Secretary provided his response to the amended motion, which
restated the substance of his initial response that was filed on August 8, 2018.
This matter is now ripe for adjudication.
***
Because Ms. Lewis received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Thus, the question
at bar is whether Ms. Lewis’s requested amount is reasonable.
2
Ms. Lewis’s fees application is comprised of two different fee applications.
One arises from her current representation by Mr. Richard Gage. The other from
her initial representation by Mr. Patrick Jackson. Both applications request
reimbursement for both fees and costs. In addition, Ms. Lewis requests
reimbursement of costs she personally incurred. These three categories are
addressed in turn.
I. Fees and Costs Incurred by Richard Gage PC
A. Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate . . . 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)).
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.
1. Reasonable Hourly Rates
Ms. Lewis requests the following rates of compensation for her attorneys:
For Mr. Richard Gage, $300 per hour for work performed in 2015; $311 per hour
for work performed in 2016; $318 per hour for work performed in 2017; and $326
per hour for work performed in 2018. For Ms. Kristen Blume, $251 per hour for
work performed in 2016-2017; and $265 per hour for work performed in 2018.
For Mr. Dustin Lujan, $200 per hour for work performed in 2015. Ms. Lewis also
requests $120 per hour for all paralegal work performed from 2015-2018. See
Pet’r’s Fees Mot., tab C.
The undersigned has previously evaluated many of the rates requested
herein, most recently in Pember v. Sec’y of Health & Human Servs., No. 15-
1005V, 2018 WL 3989514 (Fed. Cl. Spec. Mstr. June 28, 2018). For example, the
rates sought for Mr. Gage for 2015-17 are identical to those awarded to the
petitioner in Pember and are, accordingly, reasonable rates for the purpose of the
present motion. The one determination remaining for Mr. Gage is his rate for
2018, which the undersigned has yet to consider. Applying the same PPI-OL
inflation adjustment used in Pember to determine a reasonable rate for Mr. Gage in
2017, the undersigned finds the rate requested for 2018 is also reasonable. See id.
at *2, n.3.
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For Ms. Kristen Blume, the undersigned has yet to consider her rates, but
other special masters have held that $251 per hour is a reasonable rate at which to
compensate her for work prior to 2018. See Sajbel v. Sec’y of Health & Human
Servs., No. , 2018 WL 4229079, at *2 (Fed. Cl. Spec. Mstr. Aug. 30, 2017); Auch
v. Sec’y of Health & Human Servs., No. 12-673, 2016 WL 3944701 (Fed. Cl.
Spec. Mstr. May 20, 2016). The undersigned agrees with the analyses provided by
the other special masters and adopts those rates here. Ms. Blume’s increase in
rates for 2018 is also reasonable based on adjustments using the PPI-OL.
The undersigned has also previously considered the 2015 rates for Mr.
Lujan. See Anthony v. Sec’y of Health & Human Servs., No. 14-680, 2016 WL
7733084, at *13 (Fed. Cl. Spec. Mstr. Dec. 15, 2016). In Anthony, it was noted
that Mr. Lujan became licensed sometime after September 4, 2015, which was
used as the cutoff date to differentiate between work performed as a law clerk and
work performed as a licensed attorney. Id. at *12. After determining that Mr.
Lujan, like other attorneys at the Gage firm, was not entitled to forum rates, the
undersigned concluded that $90 per hour for work performed prior to September 4,
2015, and $107.25 per hour for work performed after that date were reasonable
rates for Mr. Lujan. Id. at *13. Those rates are adopted here and result in a total
reduction of $472.37.
The paralegal rates requested are consistent with rates the undersigned found
reasonable in Pember. The undersigned accordingly finds them reasonable here as
well.
2. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Sec’y of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
To facilitate the process of evaluating the reasonableness of an attorney's
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
4
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner's
responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys' fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).
As noted in Pember, billing records submitted by Mr. Gage have been
plagued by a general lack of specificity, with many older entries simply reading
“conference with paralegal” or “file review.” See Pember, 2018 WL 3989514, at
*3. Vague entries such as these frustrate the undersigned’s evaluation of the
reasonableness of the attorneys’ fees in this case. However, as was also the case in
Pember, Mr. Gage’s more recent entries reflect an apparent effort to imbue the
billing records with greater detail. See id.; Pet’r’s Fees Mot., tab C. Consistent
with the determination made in Pember, in consideration of Mr. Gage’s continued
efforts to revise his billing practices the undersigned will only deduct 5% from the
number of hours requested by Mr. Gage and his associates due to the vagueness of
the entries.
B. Costs
The motion requests reimbursement of $36,747.91 in costs incurred by Mr.
Gage. See Pet’r’s Fees Mot., tab H. Some of these costs are routine, including
costs for medical records, shipping, and travel expenses related to the hearing held
in Washington, D.C. These expenses are reasonable and are awarded in full.
The motion also requests reimbursement of $12,971.37 for petitioner’s
economist, Dr. Thomas Mayor. Dr. Mayor prepared expert reports and testified in
support of Ms. Lewis’s lost wages claim. Dr. Mayor’s invoice is a reasonable
expense and is awarded in full.
Mr. Gage also requests reimbursement of $21,299.23 in costs associated
with consultants who prepared Ms. Lewis’s life care plan. In the undersigned’s
experience, the amount billed by the life care planners is staggering, even for a
case of this complexity. Accordingly, the invoice should be subject to a more
thorough review.
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Unfortunately, the life care planner’s entries are often vague and make
examining the reasonableness of the number of hours difficult. Invoices for
professional services are expected to contain sufficient detail to allow an effective
review of reasonableness. See Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45
(Fed. Cir. 2011). Although the professional in Avgoustis was an attorney—who
had claimed that the attorney-client privilege overrode the expectation for detailed
invoices—this same standard should govern invoices life care planners create.
However, in this case, the life care planners invoiced for a number of multi-hour
entries that said little more than that the consultants were preparing the life care
plan and researching costs.
The vagueness is particularly problematic since life care planners are, based
on their experience and expertise—which justify their high hourly rates—expected
to be familiar with many common-place costs. The amount of time spent
researching these costs in this case appears excessive. See Manis v. Sec'y of
Health & Human Servs., No. 13-732V, 2016 WL 4437959, at *3 (Fed. Cl. Spec.
Mstr. Apr. 12, 2016) (finding a $5,580 life care plan excessive, noting that “given
life care planners' professional expertise, the projected costs for certain relatively
common items (such as medications, physical therapy, neurology appointments,
and high deductibles) should be readily available to them, and thus quickly
accessible. Life care planners are expected to have familiarity with such
commonplace costs”). Though it is conceivable that something in Ms. Lewis’s life
care plan necessitated the amount of research expended in this case, the vagueness
of the entries makes that conclusion not apparent. To account for concerns about
the reasonableness of the number of hours billed by Ms. Lewis’s life care planner,
the number of hours compensated is reduced by 25%.
The invoices also show that the life care planner invoiced his or her full
hourly rate for the time spent travelling to Ms. Lewis’s home for the site visit.
Pet’r’s Fees Mot. at 70-71. In the Vaccine Program, it is well-established that
travel time for professionals is reimbursed at half the professional’s standard rate.
Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 788 (2010) (citing
Rodriguez v. Sec'y of Health & Human Servs., No. 06–559V, 2009 WL 2568468,
at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); Kuttner v. Sec'y of Health & Human
Servs., No. 06–195V, 2009 WL 256447, at *10 (Fed. Cl. Spec. Mstr. Jan. 16,
2009); Carter v. Sec'y of Health & Human Servs., No. 04–1500V, 2007 WL
2241877, at *6 (Fed. Cl. Spec. Mstr. Jul. 13, 2007); English v. Sec'y of Health &
Human Servs., No. 01–61V, 2006 WL 3419805, at *12–13 (Fed. Cl. Nov. 9,
2006)). Accordingly, an additional $1,133.00 of the total amount billed will not be
compensated.
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II. Fees and Costs Incurred by Patrick R. Jackson
A. Attorneys’ Fees
The undersigned has reviewed the invoice and supporting documentation
related to Mr. Jackson’s representation of Ms. Lewis from 2012-2015. See Pet’r’s
Fees Mot., tab J. Based on the attorneys’ level of experience, the fees requested by
Mr. Jackson, his associates, and his paralegals are reasonable. Furthermore, the
billing records contain an appropriate amount of specificity concerning all of the
tasks performed, and none of the entries appear to be excessive in the amount of
time billed. Accordingly, Mr. Jackson’s invoice is awarded in full.
B. Costs
Mr. Jackson also requests reimbursement of costs in the amount of
$3,513.52. See Pet’r’s Fees Mot., tab J. This includes $1,013.52 related to routine
costs such as acquiring medical records, postage, and the Court’s filing fee. These
costs are awarded in full.
The remaining $2,500.00 is for the work of Mr. Glenn Herbert, who
performed a vocational evaluation and authored an expert report for Ms. Lewis.
Mr. Herbert’s hourly rate and number of hours billed are reasonable and thus the
cost is awarded in full.
III. Costs Incurred by Ms. Lewis
Pursuant to General Order No. 9, Ms. Lewis states that she has incurred
$2,064.34 in costs related to bringing her claim. These costs are all related to
travel to and from Washington, D.C. to attend the damages hearing held on
November 17, 2017. See Pet’r’s Fees Mot., tab I. While the majority of these
costs are reasonable and compensable, some are not. Non-compensable costs that
were requested include a third night in the hotel when the hearing was a one-day
hearing, premium economy airline seats, and alcohol. To address these non-
compensable expenses, $400.00 is deducted from the compensation award for Ms.
Lewis’s costs.
IV. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e), the
undersigned has reviewed the billing records and costs in this case and finds
7
petitioner’s request for fees and costs, other than those reductions delineated
above, to be reasonable. Accordingly, petitioner is awarded a total of $107,112.03
as follows:
1. The total of $92,446.67, in the form of a check made payable
jointly to petitioner and petitioner’s counsel, Richard Gage, for
attorneys’ fees and costs; and
2. The total of $13,001.02, in the form of a check made payable
jointly to petitioner and petitioner’s counsel, Patrick R. Jackson,
for attorneys’ fees and costs; and
3. The total of $1,664.34, in the form of a check made payable to
petitioner, for petitioner’s costs.
These amounts represent reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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