Maize v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 6, 2022
* * * * * * * * * * * * * * UNPUBLISHED
LAVELL MAIZE, * No. 17-921V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Sylvia Chin-Caplan, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for Petitioner.
Voris E. Johnson, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On July 7, 2017, Lavell Maize (“petitioner”), filed a claim under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012).2 Petitioner alleged he suffered significant
aggravation of his pre-existing multiple sclerosis after receiving an influenza vaccine. (ECF No.
1). On August 17, 2021, the parties filed a stipulation, which I adopted as my decision awarding
compensation on the same day. (ECF No. 60).
On February 14, 2022, petitioner filed an application for attorneys’ fees and costs. (ECF
No. 65) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$86,128.59, broken down as follows: $61,453.25 in attorneys’ fees and $17,339.73 in costs to
petitioner’s current counsel and $6,890.50 in attorneys’ fees and $445.11 in costs for petitioner’s
former counsel, Conway Homer, P.C. Fees App. at 1. Pursuant to General Order No. 9, petitioner
1
I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling
will be available to anyone with access to the Internet. 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 public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am required to post it on the United States
Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501note (2012) (Federal Management and Promotion of Electronic Government Services).
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).
certifies that he has not incurred any fees or costs related to the prosecution of his petition. Id. at
2. Respondent responded to the motion on February 23, 2022, indicating that “Respondent is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Resp. at 2 (ECF No. 66). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
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, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
2
a. Hourly Rates
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). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3
Petitioner requests the following hourly rates for the work of his counsel: for Ms. Sylvia
Chin-Caplan, $400.00 per hour for work performed in 2016, $414.00 per hour for work performed
in 2017, $429.00 per hour for work performed in 2018, $445.00 per hour for work performed in
2019, $445.00 per hour for work performed in 2020, and $458.00 per hour for work performed in
2021, and $441.00 per hour for work performed in 2022; for Mr. Timothy Mason, $225.00 per
hour for work performed in 2017, $238.00 per hour for work performed in 2018, $247.00 per hour
for work performed in 2019, and $253.00 per hour for work performed in 2020. These rates are
consistent with what counsel have previously been awarded for their Vaccine Program work, and
I find them to be reasonable for work performed in the instant case.
b. Hours 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, 3 F.3d at 1521. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See 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. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review of the submitted billing records, I find that an overall reduction to the hours
billed is necessary for several reasons. First, in my experience, there is an excessive amount of
interoffice communication between Ms. Chin-Caplan and Mr. Mason. Special masters have
previously noted the inefficiency that results when cases are staffed by multiple individuals and
have reduced fees accordingly. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (2009); Raymo v. Sec’y of Health & Human Servs., 129 Fed.Cl. 691, 703-704 (2016); Rice v.
Sec’y of Health & Human Servs., No. 15-1335V, 2018 WL 4784563, at*2 (Fed. Cl. Spec. Mstr.
Aug. 27, 2018).
Second, many of Ms. Chin-Caplan’s billing entries are vague. Entries for reviewing records
do not mention which particular records were being reviewed and entries for communication with
Petitioner do not mention the subject of the communication. As the Federal Circuit has previously
ruled, disclosure of the general subject matter of billing statements does not violate attorney-client
privilege and billing entries for communication should contain some indication as to the nature
and purpose of the communication. See Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir.
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
3
2011). Overall, the vagueness of these entries makes it difficult for me to assess their
reasonableness. Ms. Chin-Caplan has been previously criticized for creating vague entries. See
Abbott v. Sec’y of Health & Human Servs., No. 10-485V, 2017 WL 2226614, at *6 (Fed. Cl. Apr.
26, 2017), mot. for rev. denied, 135 Fed. Cl. 107, 111-12 (2017).
Accordingly, I shall reduce the final award of attorneys’ fees to petitioner’s current counsel
by five percent, resulting in a reduction of $3,072.66. Petitioner is therefore awarded final
attorneys’ fees of $58,380.59 to his current counsel and $6,890.50 to his former counsel.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $17,784.84 in attorneys’ costs. This amount is comprised of acquiring medical records,
professional review of those records, the Court’s filing fee, postage, work performed by
petitioner’s medical expert, Dr. Carlo Tornatore, and costs to take Dr. Okuda’s deposition. Fees
App. Ex. 2 at 2. Petitioner has provided adequate documentation of the requested costs and they
appear to be reasonable in my experience. Petitioner is therefore awarded the full amount of costs
sought ($17,784.84 to petitioner’s current counsel and $445.11 to petitioner’s former counsel).
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs is
reasonable. I find it reasonable to compensate petitioner and his counsel as follows:
1) a lump sum in the amount of $76,165.43, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s
counsel, Ms. Sylvia Chin-Caplan; and
2) a lump sum in the amount of $7,335.61, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s
former counsel, Conway, Homer, P.C.
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.4
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
4
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