Mulrenin v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-22V
Filed: December 10, 2020
UNPUBLISHED
SUZANNE MULRENIN, on behalf of Special Master Horner
her minor child, R.M.,
Petitioner, Interim Attorneys’ Fees and
v. Costs Decision; Expert Costs;
Reasonable Hourly Rate
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On September 1, 2020, petitioner moved for an award of interim attorneys’ fees
and costs in the amount of $67,886.16. (ECF No. 45.) In response, respondent
deferred to the special master regarding both the amount and appropriateness of an
award of interim attorneys’ fees and costs. (ECF No. 46.) However, respondent did
note that “respondent is satisfied the statutory requirements and other legal
requirements for an award of attorneys’ fees and costs are met.” (Id. at 2.) For the
reasons discussed below, I award petitioner interim attorneys’ fees and costs in reduced
amount of $65,321.16.
I. Procedural History
On January 4, 2018, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that her minor child, R.M.,
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
experienced post-vaccination symptoms later diagnosed as a Mast Cell Activation
Syndrome (“MCAS”), caused or significantly aggravated by her November 16, 2015
influenza (“flu”) vaccination. (ECF No. 1.)
This case was originally assigned to Special Master Millman. (ECF No. 4.)
Petitioners filed records to a support her claim and a Statement of Completion. (ECF
Nos. 6-9, 11, 13, 14.) Thereafter, respondent filed his Rule 4(c) report, recommending
against compensation on May 17, 2018. (ECF No. 19.)
Petitioner then filed an expert report from Dr. Jonathan A. Bernstein, allergist and
immunologist. (ECF No. 21.) In response, respondent filed an expert report from Dr.
Andrew J. MacGinnitie. (ECF No. 24.) This case was reassigned to my docket on June
5, 2019. (ECF No. 30.) Subsequently, I held a status conference and asked the parties
to file a round of supplemental reports from their respective experts.
On January 20, 2020, petitioner filed a supplemental report from Dr. Bernstein
and on February 24, 2020, respondent filed a supplemental report from Dr. MacGinnitie.
(ECF Nos. 34, 37.) Thereafter, petitioner proposed resolving this case based on the
written record and respondent had no objection. (ECF No. 38.) On June 12, 2020,
petitioner moved for a decision on the record, on July 31, 2020, respondent filed his
response, and on August 7, 2020, petitioner filed a reply. (ECF Nos. 41-42, 44.)
Petitioner filed the instant motion for interim attorneys’ fees and costs on
September 1, 2020, respondent filed his response on September 8, 2020, and petitioner
did not file a reply. (ECF Nos. 45-46.) Accordingly, petitioner’s motion for interim
attorneys’ fees and costs is now ripe for resolution.
II. An Award of Interim Attorneys’ Fees and Costs is Appropriate
Section 15(e)(1) of the Vaccine Act allows for the special master to award
“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are
entitled to an award of reasonable attorneys' fees and costs if they are entitled to
compensation under the Vaccine Act, or, even if they are unsuccessful, if the special
master finds that the petition was filed in good faith and with a reasonable basis. Avera
v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). In his
response, respondent indicated that the statutory requirements were met in this case.
(ECF No. 46, p. 2.) I agree.
Additionally, the Federal Circuit has concluded that interim fee awards are
permissible and appropriate under the Vaccine Act. Shaw v. Sec’y of Health & Human
Servs., 609 F.3d 1372 (Fed. Cir. 2010); Avera, 515 F.3d at 1352. In Avera, the Federal
Circuit stated, “[i]nterim fees are particularly appropriate in cases where proceedings
are protracted and costly experts must be retained.” Id. In denying an interim fee
award, the Avera court reasoned, “The amount of fees here was not substantial;
appellants had not employed any experts; and there was only a short delay in the award
pending the appeal.” Id. In Shaw, the Federal Circuit clarified that “where the claimant
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establishes that the cost of litigation has imposed an undue hardship and there exists a
good faith basis for the claim, it is proper for the special master to award interim
attorneys’ fees.” 609 F.3d at 1375. Here, petitioner’s request for interim attorneys’
fees and costs is made after more than two years of litigation within the entitlement
phase of this case and after petitioner incurred costs for providing multiple expert
reports to support her claim.
III. Reasonableness of the Requested Award
a. Attorneys’ Fees
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.”). The Federal Circuit has approved
the lodestar approach to determine reasonable attorneys’ fees and costs under the
Vaccine Act. Avera, 515 F.3d at 1347. 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.
A reasonable hourly rate is “the prevailing market rate defined as the rate
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Avera, 515 F.3d at 1348 (citation and quotation
omitted). The decision in McCulloch provides a further 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), motions for recons. denied, 2015
WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office of Special Masters has
subsequently updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015-2016, 2017, 2018, 2019 and 2020 can be accessed online.2
In this case, petitioner is seeking $60,946.50 in interim attorneys’ fees for work
performed in 2017 through 2020. I have reviewed the billing records submitted with
petitioner’s request, and in my experience, the hourly rates billed for 2017 through 2020
for attorney time and paralegal time are all reasonable and in accord with prior awards
made by other special masters.
2 Each of the Fee Schedules for 2015 through 2020 can be accessed at
http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived
from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, and 2020 are
adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”).
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Turning next to the requested hours expended, special masters may rely on their
experience within the Vaccine Program to determine the reasonable number of hours
expended. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991),
rev’d on other grounds and aff’d in relevant part¸ 988 F.2d 131 (Fed. Cir. 1993). Special
masters have previously reduced the fees paid to petitioners due to excessive and
duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016
WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10
percent due to excessive and duplicative billing); Raymo v. Sec’y of Health & Human
Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced
overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). 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 (2009).
First, after reviewing the billing records, I find that counsel included entries that
are duplicative and excessive due to attorneys and paralegals billing for reviewing the
same orders and attending the same status conference. For duplicative entries, only
hours billed by Mr. Downing, the lead attorney in this case, will be awarded. These
duplicative billing entries result in a reduction of $450.50 of the interim fee award.3
Second, I find that the work billed by paralegal Danielle P. Avery for “analysis” of
the medical records to be duplicative and excessive. Ms. Avery billed between 0.20 to
0.40 hours for “analysis of medical records … to determine begin and end date of
records” for all the medical records received from different providers before preparing to
file such records. (See e.g., ECF No. 45-1, pp. 17-27, 29-30, 32, 34, 37.) In some
instances, Ms. Avery then followed by billing an additional 0.30 hours for “analysis of file
to determine end date of previous records,” to update the file and request for
supplemental records. (Id. at 26, 28-29, 31, 34, 37.) I find this work to be repetitive and
does not reflect substantive work in pursuing this case. Moreover, these records are
also reviewed substantively by either or both Courtney Van Cott, attorney, and/or
Robert W. Cain, paralegal, and subsequently analyzed by Mr. Downing. Additionally,
Ms. Avery included entries that are duplicative due to attorneys and paralegals billing for
reviewing the same orders. When calculating these entries, Ms. Avery billed over 12
hours of duplicative and/or excessive work. Therefore, I find the majority of the work
billed by Ms. Avery to be unnecessary and will reduce her hours billed by 20%. This
results in a reduction of $1,714.50 of the interim fee award.
b. Interim Attorneys’ Costs
Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both
3 There were duplicative entries billed by Courtney Van Cott on February 23, 2018, February 27, 2018,
May 17, 2018, July 17, 2018, July 18, 2018, and November 18, 2019. Of note, at least three people
reviewed respondent’s Rule 4(c) report and Ms. Van Cott additionally billed 0.2 hours to re-review the
report.
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‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both.
Not only must any request for reimbursement of attorneys’ fees be reasonable, so also
must any request for reimbursement of costs.”). An expert retained by the petitioner in
the Vaccine Program will only be compensated at a reasonable hourly rate, and the
petitioners have the burden of demonstrating that the expert costs incurred were
reasonable. Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL 623833,
at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2008).
In this case, petitioner seeks $6,939.66 in interim attorneys’ costs. The majority
of the expenses incurred were expert costs billed by Dr. Bernstein, who is relatively new
as an expert within the Vaccine Program. Therefore, there has not been a reasonable
hourly rate set for Dr. Bernstein. Dr. Bernstein received his medical degree from the
University of Cincinnati College of Medicine in 1985 and completed his fellowship in
allergy and immunology at Northwestern University in Chicago. Dr. Bernstein currently
holds a teaching position at his alma mater medical school, where he’s been since
1990, and works at his practice, Bernstein Allergy Group and Clinical Research Center.
His curriculum vitae identifies extensive research and publication work. Dr. Bernstein
billed $5,000.00 for 10 hours of work (8 hours in 2018 and 2 hours in 2020) at $500 an
hour.
Many Vaccine Program cases provide a framework for determining the
appropriate rate for experts in this program at a range between $250 and $500 an hour.
See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *17
(Fed. Cl. Spec. Mstr. Apr. 28, 2015) (awarding an hourly rate of $400 to an expert in
neurology); Dingle v. Sec'y of Health & Human Servs., No. 08–579V, 2014 WL 630473,
at *8 (Fed. Cl. Spec. Mstr. Jan. 24, 2014) (expert did not have “specialized knowledge
and experience” in the case to justify his requested hourly rate of $500 and, accordingly,
rate was reduced to $400 per hour); Allen v. Sec'y of Health & Human Servs., No. 11–
051V, 2013 WL 5229796, at *2 (Fed. Cl. Spec. Mstr. Aug. 23, 2013) (approving a rate of
$500 per hour for an expert in neurology and immunology and who also had expertise in
a pertinent area to the issue in the case); Chen Bou v. Sec’y of Health & Human Servs.,
No. 04-1329V, 2007 WL 924495, at *10, *16 (Fed. Cl. Spec. Mstr. Mar. 9, 2007)
(awarding an expert a rate of $350 per hour based in part on his poor performance in
testifying at hearing, but noting that “[b]ased upon the information submitted [ ], with the
appropriate set of facts the undersigned would have no issue with awarding the $500
requested by petitioner”)).
In 2018 a different special master observed, however, that “there does appear to
be support for using $450 per hour as a reference point for a reasonable hourly rate for
a medically-trained immunologist with extensive research experience.” Dominguez v.
Sec’y of Health & Human Servs., No. 12-378V, 2018 WL 3028975, at *5 (Fed. Cl. Spec.
Mstr. May 25, 2018); see also Lewis v. Sec’y of Health & Human Servs., 149 Fed. Cl.
308 (2020) (approving of the $450 reference point identified in Dominguez). Although
lower than what Dr. Bernstein has invoiced, I find that this constitutes a reasonable
hourly rate for Dr. Bernstein’s work in this case in 2018. I will award the requested rate
for his 2020 work. By way of comparison, this is also comparable to what Dr. Gershwin,
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an immunologist who participates frequently in Vaccine Program cases, has billed for
work performed as recently as 2019. A.S. by Svagdis v. Sec’y of Health & Human
Servs., No. 15-520V, 2020 WL 3969874 (Fed. Cl. Spec. Mstr. June 4, 2020) (billing
$450 per hour); but see Hoskins v. Sec’y of Health & Human Servs., No. 15-71V, 2017
WL 3379270 (Fed. Cl. Spec. Mstr. July 12, 2017) (billing $500 per hour).
Upon review of Dr. Bernstein’s two invoices, he spent 1.5 hours writing the first
report, 2 hours writing the supplemental report, 6 hours on “review of records (includes
review of literature,” and 0.5 hours on correspondence. (ECF No. 45-1, pp. 71, 74.) I
find the 10 hours billed by Dr. Bernstein in this case to be reasonable and award him
the hours in full.
The change in hourly rate for Dr. Bernstein results in a reduction of $400.00 in
the interim costs award. Aside from the expert costs, the remaining costs were well-
documented and shall be awarded in full.
IV. Conclusion
In light of the above, petitioner’s motion for an award of interim attorneys’ fees
and costs is hereby GRANTED. Petitioner is awarded $65,321.16, representing
$58,781.50 in interim attorneys’ fees and $6,539.66 in interim attorneys’ costs.
Accordingly, I award a total of $65,321.16 as a lump sum in the form of a check
payable to petitioner and her counsel, Andrew Donald Downing, Esq.
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 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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