David A. Brown v. Secretary of Health and Human Services ( 2013 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 09-426V
May 6, 2013
To be Published
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DAVID A. BROWN, *
*
Petitioner, * Final Application for Attorneys’ Fees and
* Costs; Reasonable Hours; Supplemental
v. * Decision
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Lisa A. Roquemore, Irvine, CA, for petitioner.
Lara A. Englund, Washington, DC, for respondent.
MILLMAN, Special Master
SUPPLEMENTAL DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On June 29, 2009, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa–10-34, alleging that flu vaccine caused his acute disseminated
encephalomyelitis (“ADEM”). The undersigned held an entitlement hearing on September 1 and
2, 2010, and November 4, 2010. On September 30, 2011, the undersigned issued a ruling on
entitlement in favor of petitioner. Petitioner filed an application for interim attorneys’ fees and
costs on November 16, 2011. On February 29, 2012, the undersigned issued a decision awarding
interim fees and costs in the amount of $229,829.68 for attorneys’ fees and costs and $8,128.85
for petitioner’s costs. The case proceeded to damages and respondent filed a proffer on October
3, 2012. The undersigned issued a damages decision on October 4, 2012.
1
Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document’s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
I. Procedural History of Attorneys’ Fees and Costs
On January 4, 2013, petitioner filed a final application for attorneys’ fees and costs (“Fee
App.”). On January 28, 2013, respondent filed her response to petitioner’s application for
attorneys’ fees and costs. On February 1, 2013, petitioner filed a reply to respondent’s response.
On March 28, 2013, petitioner filed a supplemental declaration from Liz Holakiewicz,
petitioner’s life care planner, in support of petitioner’s fee request. On April 5, 2013,
respondent’s counsel informed the undersigned’s law clerk that respondent would not file an
additional response to petitioner’s supplemental declaration from Ms. Holakiewicz.
In his January 4, 2013 application for attorneys’ fees and costs, petitioner requested
$70,887.70, comprised of $70,597.00 in attorneys’ fees and $290.70 in costs for the period of
October 1, 2011 through January 4, 2013. Petitioner requested expert fees and costs for
petitioner’s life care planner, Ms. Holakiewicz, in the amount of $43,878.14 for the period of
October 12, 2011 through September 13, 2012. Petitioner also requested his own unreimbursed
litigation costs of $2,400.00. Fee App. 2. In petitioner’s February 1, 2013 reply, petitioner
requested $11,368.50 in attorneys’ fees for the period of January 5, 2013 through February 1,
2013. Reply 26. On April 8, 2013, the undersigned issued a decision (“Decision”) awarding
petitioner $109,035.84, representing reimbursement for attorneys’ fees and costs, and $2,400.00,
representing reimbursement for petitioner’s costs.
Petitioner filed a motion for reconsideration/clarification of the fees and costs decision on
April 18, 2013.2 On April 23, 2013, respondent filed a response to petitioner’s motion for
reconsideration (“Resp.”). Petitioner filed a reply to respondent’s response on April 26, 2013
(“Reply”).3 In petitioner’s reply, petitioner requests $9,509.80 in attorneys’ fees and costs for
the period of April 9, 2013 through April 26, 2013. On May 6, 2013, the undersigned issued an
Order granting in part and denying in part petitioner’s motion for reconsideration. The
undersigned denied petitioner’s motion for reconsideration of petitioner’s counsel’s forum rate
and the reasonableness of the time petitioner’s counsel spent researching the viability of
Medicare. Order 2-3. The undersigned granted petitioner’s motion for reconsideration of the
undersigned’s finding that petitioner’s counsel’s communications with petitioner’s life care
planner were excessive and unreasonable. Id. at 3.
II. Communications with Petitioner’s Life Care Planner
Petitioner claims that all of petitioner’s counsel’s communications with petitioner’s life
care planner, Ms. Holakiewicz, were necessary and reasonable. Mot. for Reconsideration 4. The
2
With his motion for reconsideration, petitioner filed three exhibits in support of his request. See
Fee App., Ex. 31 (the Laffey Matrix ); Fee App., Ex. 32 (counsel’s communications with petitioner’s life
care planner); Fee App., Ex. 33 (petitioner’s counsel’s billing invoices).
3
With his reply, petitioner filed an exhibit in support of his request. See Fee App., Ex. 34
(petitioner’s counsel’s billing invoices).
2
undersigned found petitioner’s counsel’s hours billed for communication with petitioner’s life
care planner excessive and unreasonable and reduced the number of hours for which petitioner’s
counsel would be reimbursed by sixteen hours. Decision 6. Petitioner requests that the
undersigned “articulate which specific communications were unnecessary.” Id. at 6.
Respondent responds that the court’s decision to reduce the number of hours billed for
petitioner’s counsel’s communication with the life care planner does not require clarification
because special masters are not required to assess fee petitions line by line. Resp. 2. Petitioner
replies that a 44% discount for petitioner’s counsel’s communications with the life care planner
is unfair and unjust. Reply 8. Petitioner also asserts that there is some possible duplication in
reductions in the decision for time counsel billed for Medicare depletion and time billed for
communications with petitioner’s life care planner regarding the viability of Medicare. Id. The
undersigned reviewed Exhibit 32, which petitioner filed in support of his motion for
reconsideration. Exhibit 32 documents the substance of each of petitioner’s counsel’s
communications with petitioner’s life care planner. Based on Exhibit 32, the undersigned finds
that petitioner’s counsel’s communications with petitioner’s life care planner were reasonable
except for instances where counsel and petitioner’s life care planner communicated about
Medicare depletion. Petitioner’s counsel communicated with petitioner’s life care planner
regarding Medicare depletion on April 24, 2012, April 25, 2012, May 1, 2012, May 2, 2012, and
July 27, 2012. See Fee App., Ex. 32, at 2. In the April 8, 2013 decision, the undersigned
reduced petitioner’s counsel’s fees by the appropriate amounts for work regarding Medicare
depletion for April 25, 2012, May 1, 2012, May 2, 2012, and July 27, 2012. Decision 5; see Fee
App., Ex. 32, at 2; Fee App., Ex. 2, at 29, 31, 42. There was no possible overlap in the decision
for petitioner’s telephonic conference with petitioner’s life care planner on April 24, 2013. The
undersigned finds petitioner’s counsel’s 0.4 hours of communication with petitioner’s life care
planner on April 24, 2013 to be unreasonable. After reviewing Exhibit 32, the undersigned finds
that petitioner’s counsel’s request for reimbursement for 15.6 hours of petitioner’s counsel’s
communication with petitioner’s life care planner not dealing with the viability of Medicare that
was previously disallowed to be reasonable. Accordingly, the undersigned awards petitioner
$5,538.00, 15.6 hours at a rate of $355.00 per hour, for petitioner’s counsel’s communication
with petitioner’s life care planner.
III. Fees for Fees
Respondent objects to petitioner’s billing for work associated with filing petitioner’s
motion for reconsideration. Resp. 3. Petitioner requests $9,509.00 in attorneys’ fees and $0.80
in costs for petitioner’s counsel’s work on petitioner’s motion for reconsideration and reply.
Reply 13; Fee App., Ex. 34, at 3. Respondent objects to petitioner’s request as “yet another
example of petitioner seeking ‘fees for fees.’” Resp. 3. The undersigned finds petitioner’s
counsel’s work on the motion for reconsideration and reply to be reasonable for activities related
to the issue of counsel’s communications with petitioner’s life care planner. The undersigned
finds research, discussions, and time billed for drafting and revising the portions of petitioner’s
filings related to petitioner’s counsel’s forum rate to be unreasonable.4 Respondent states that
4
On April 9, 2013, petitioner’s counsel billed 0.6 hours for research regarding forum rates and
0.1 hours for computer research regarding the Laffey Matrix. On April 11, 2013, petitioner’s counsel
3
petitioner’s request for clarification of the forum rate is “somewhat puzzling,” particularly given
that petitioner’s counsel was awarded the hourly rate she requested. Resp. 1. Petitioner’s
request for clarification and a higher rate are unreasonable because the undersigned awarded
petitioner a reasonable forum rate, $355.00 per hour, that was based on the Federal Circuit’s
decision in Rodriguez v. Secretary of Health and Human Services, 632 F.3d 1381, 1383 (Fed.
Cir. 2011). Decision 4. Petitioner needed no additional explanation or clarification. Petitioner’s
fee request is reduced by 1.7 hours at the hourly rate of $355.00, or $603.50. In addition, the
undersigned finds research, discussions, and time billed for drafting and revising the portions of
petitioner’s filings related to petitioner’s inquiry into the viability of Medicare to be
unreasonable.5 Petitioner’s line of inquiry is speculative and unreasonable due to the plain
language of 42 U.S.C. § 300aa–15(g). Petitioner’s fee request is reduced by 0.6 hours at the
hourly rate of $355.00, or $213.00. Petitioner’s counsel does not delineate the particular portions
of counsel’s filings for which counsel bills. Petitioner’s motion for reconsideration had three
primary issues it addressed: the forum rate, petitioner’s counsel’s communications with
petitioner’s life care planner, and petitioner’s counsel’s work on Medicare depletion. The
undersigned finds petitioner’s counsel’s hours billed for drafting and revising the portions of
petitioner’s filings related to petitioner’s counsel’s forum rate and Medicare depletion, two of the
three primary issues in petitioner’s filings, to be unreasonable. Petitioner’s $4,615.00 fee request
for time spent drafting and revising the motion for reconsideration and reply is reduced by two-
thirds or $3,076.67.6 Accordingly, the undersigned awards petitioner $5,615.83 for attorneys’
fees and $0.80 for costs for petitioner’s counsel’s work on petitioner’s motion for reconsideration
and reply.
IV. Conclusion
In sum, the following tables contain the amounts of attorneys’ fees and costs:
billed 1.0 hour for review of cases regarding forum rates and the Laffey Matrix. Fee App., Ex. 34, at 1-2.
These entries add to 1.7 hours.
5
On April 23, 2013, petitioner’s counsel billed 0.3 hours for analyzing invoices pertaining to the
number of hours spent on Medicare depletion issues. On April 24, 2013, petitioner’s counsel billed 0.3
hours for a telephonic conference with Liz Holakiewicz regarding Medicare depletion. Fee App., Ex. 34,
at 1-2. These entries add to 0.6 hours.
6
On April 16, 2013, petitioner’s counsel billed 1.0 hour for drafting petitioner’s motion for
reconsideration. On April 17, 2013, petitioner’s counsel billed 2.8 hours to draft and begin revising
petitioner’s motion for reconsideration. On April 18, 2013, petitioner’s counsel billed 0.8 hours to revise
petitioner’s motion for reconsideration. On April 23, 2013, petitioner’s counsel billed 2.5 hours to draft
petitioner’s reply. On April 24, 2013, petitioner’s counsel billed 1.3 hours to draft petitioner’s reply. On
April 25, 2013, petitioner’s counsel billed 4.6 hours to draft, review, analyze, and revise petitioner’s
reply. Fee App., Ex. 34, at 1-3. These entries add to 13.0 hours.
4
Table A: Total Attorneys’ Fees and Costs
Supplemental Award for Petitioner’s
Counsel’s Communications with $5,538.00
Petitioner’s Life Care Planner
Supplemental Award for Petitioner’s
Counsel’s Work on the Motion for $5,615.83
Reconsideration and Reply
Attorneys’ Fees Awarded April 8, 2013 $70,534.50
Total Attorneys’ Fees Awarded $81,688.33
Supplemental Award for Costs
Associated with the Motion for $0.80
Reconsideration and Reply
Attorneys’ Costs Awarded April 8,
$290.70
2013
Total Costs $291.50
Fees & Costs Awarded for Life Care
$38,210.64
Planner
Total Attorneys’ Fees and Costs
$120,190.477
Awarded
Table B: Petitioner’s Costs
Petitioner’s Costs Awarded $2,400.00
7
This total is a sum of $81,688.33, $291.50 and $38,210.64.
5
The undersigned VACATES the award amount totals in the April 8, 2013 decision on
attorneys’ fees and costs. Order 4; see Decision 10. The undersigned finds the amounts herein
to be reasonable and awards petitioner the following in attorneys’ fees and costs:
a. $120,190.47, representing reimbursement for attorneys’ fees and costs. The award
shall be in the form of a check made payable jointly to petitioner and the Law Offices
of Lisa A. Roquemore, in the amount of $120,190.47; and
b. $2,400.00, representing reimbursement for petitioner’s costs. The award shall be in
the form of a check for $2,400.00 made payable to petitioner.
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.8
IT IS SO ORDERED.
Dated: May 6, 2013 s/ Laura D. Millman
Laura D. Millman
Special Master
8
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either
separately or jointly, filing a notice renouncing the right to seek review.
6