Spracklen v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
HEATHER SPRACKLEN and *
JOE HIGGINS on Behalf of M.H., *
a Minor, *
* No. 16-559V
Petitioners, * Special Master Christian J. Moran
*
v. * Filed: June 10, 2020
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
John R. Howie, Jr., Howie Law, PC, Dallas, TX, for Petitioners;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioners’ motion for final attorneys’ fees and
costs. They are awarded $95,725.91.
* * *
1
Because this published decision contains a reasoned explanation for the action in this
case, the undersigned is 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. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access.
On May 9, 2016, petitioners filed for compensation on behalf of their minor
daughter, M.H., under the Nation Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10 through 34. Petitioners alleged that the measles-mumps-rubella
vaccine caused M.H. to suffer acute disseminated encephalomyelitis. Petitioners
further alleged that M.H. suffered the residual effects of this injury for more than
six months. After respondent challenged entitlement, the parties retained experts,
with petitioners submitting reports from Dr. Steven Lovitt and respondent
submitting reports from Dr. Peter Bingham. Due to a dispute between the experts,
the case proceeded to an entitlement hearing, which was held in Dallas, Texas, on
February 8, 2019. Following post-hearing briefing, the undersigned issued his
Decision denying entitlement on July 31, 2019. 2019 WL 4201572 (Fed. Cl. Spec.
Mstr. Jul 31, 2019).
On January 17, 2020, petitioners filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioners request attorneys’ fees of $70,469.00 and
attorneys’ costs of $28,006.91 for a total request of $98,475.91. Fees App. at 1.
Pursuant to General Order No. 9, petitioners warrant that they have not personally
incurred any costs related to the prosecution of their case. Fees App. Ex. 5, at 1. On
January 21, 2020, respondent filed a response to petitioner’s motion. Respondent
argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role
for respondent in the resolution of a request by a petitioner for an award of
attorneys’ fees and costs.” Response at 1. Respondent adds, however that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Id at 2. Additionally, he recommends “that the Court exercise
its discretion” when determining a reasonable award for attorneys’ fees and costs.
Id. at 3. Petitioners filed a reply on July 21, 2020, indicating that because
Respondent has made no specific objections to petitioners’ application, they did
not intend to file a substantive reply. Reply at 1.
The matter is now ripe for disposition.
* * *
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, the undersigned
has no reason to doubt the good faith of the claim, and although the claim was
ultimately unsuccessful, the matter necessitated an entitlement hearing and the
undersigned finds that petitioners’ claim has a reasonable basis throughout the
entire case. Respondent also has not challenged the reasonable basis of the claim.
A final award of attorneys’ fees and costs is therefore proper in this case.
2
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioners request the following rates of compensation for the work of their
counsel: for Mr. John Howie, Jr., $383.00 per hour for work performed in 2018
and $395.00 per hour for work performed in 2019; and for Mr. Michael Gross,
$160.00 per hour for work performed in 2018 and $182.00 per hour for work
performed in 2019.
The undersigned has reviewed the requested rates and finds them to be
reasonable and consistent with what special masters have previously awarded to
petitioners’ counsel at Howie Law, PC for their Vaccine Program work. See, e.g.
Kaiser v. Sec’y of Health & Human Servs., No. 17-1099V, 2020 WL 2510449
(Fed. Cl. Spec. Mstr. Apr. 28, 2020). Accordingly, the requested hourly rates are
reasonable.
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B. 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 also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and finds that the
hours billed by Mr. Howie are reasonable. The hours billed by Mr. Gross, while
reasonable, reflect work that is more properly categorized as paralegal rather than
attorney. Upon review, it appears that Mr. Gross primarily drafted and tracked
requests for medical records, prepared exhibit lists, and engaged in interoffice
communications with Mr. Howie and firm paralegals to help coordinate the case.
In awarding interim fees in this case, the undersigned previously noted that another
associate attorney at Mr. Howie’s firm primarily performed paralegal tasks. 2018
WL 3991090, at *2 (Fed. Cl. Spec. Mstr. June 13, 2018). Thus, the undersigned
finds it reasonable to compensate most of Mr. Gross’ billed time at paralegal,
rather attorney, hourly rates. An appropriate reduction for this is $1,000.00.
In sum, petitioners are awarded final attorneys’ fees of $69,469.00.
C. Costs Incurred
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 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$28,006.91 in attorneys’ costs. This amount is comprised of acquiring medical
records, work performed by petitioners’ expert, Dr. Lovitt, and travel costs
associated with attending the entitlement hearing for Dr. Lovitt and petitioners.
Fees App. Ex. 3 at 1. Petitioners have provided adequate documentation supporting
these costs and they are largely reasonable in the undersigned’s experience. The
only reduction necessary is for travel time billed by Dr. Lovitt. His billing records
indicate that he billed time to travel from Houston, Texas, to Dallas at his full
hourly rate. Fees App. Ex. 6 at 6. Dr. Lovitt’s billing records do not indicate that
any case work was being performed during travel. The undersigned will therefore
compensate 10 total hours of travel time at one-half of Dr. Lovitt’s standard hourly
rate, resulting in a reduction of $1,750.00.
Petitioners are therefore awarded final attorneys’ costs of $26,259.91.
E. Conclusion
4
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $95,725.91 (representing
$69,469.00 in attorneys’ fees and $26,259.91 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioners and petitioners’ counsel, Mr. John
Howie, Jr.
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.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
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