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

Case 1:16-vv-00868-UNJ Document 49 Filed 10/02/18 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
VACILIS KOLLIAS *
* No. 16-868V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 2, 2018
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Joseph T. McFadden, Jr., Rawls Law Group, Norfolk, VA, for Petitioner;
Ryan D. Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Vacilis Kollias brought a successful petition for compensation under the
National Childhood Vaccine Compensation Program. He now sees an award for
attorneys’ fees and costs. He is awarded $76,121.72.
1
The undersigned intends 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, the
undersigned agrees that the identified material fits within this definition, the
undersigned will redact such material from public access. Because this unpublished
ruling contains a reasoned explanation for the action in this case, 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).
Case 1:16-vv-00868-UNJ Document 49 Filed 10/02/18 Page 2 of 6
* * *
Represented by Mr. Joseph McFadden, Mr. Kollias filed his petition for
compensation on July 22, 2016. Mr. Kollias alleged that the tetanus-diphtheria-
acellular pertussis vaccine that he received on July 26, 2013, which is contained in
the Vaccine Injury Table, 42 C.F.R. § 100.3(a), caused him to suffer Guillain-
Barré syndrome. The parties were able to informally resolve the case, agreeing to a
joint stipulation on award of compensation that was then adopted. Decision, issued
June 27, 2018.
On August 21, 2018, petitioner moved for reimbursement of attorneys’ fees
and costs, requesting a total of $78,467.95 (representing $71,852.89 in attorneys’
fees and $6,615.06 in attorneys’ costs). Petitioner’s Application for Attorneys’
Fees and Costs (“Fees App.”) at 1-2. Pursuant to General Order No. 9, petitioner
warrants that he has not personally incurred any costs in pursuit of this litigation.
Fees App Ex. 3 at 2.
On August 21, 2018, respondent 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. Petitioner did not file a
reply.
This matter is now ripe for adjudication.
* * *
Because Mr. Kollias received compensation, he 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 Mr. Kollias’ requested amount is reasonable.
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
2
Case 1:16-vv-00868-UNJ Document 49 Filed 10/02/18 Page 3 of 6
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 Rates
Mr. Kollias requests the following rates for his attorney, Mr. McFadden:
$350.00 per hour for work performed in 2015, $363.00 per hour for work
performed in 2016, $376.00 per hour for work performed in 2017, and $395.00 per
hour for work performed in 2018. Fees App. at 3. Additionally, Petitioner requests
compensation for several paralegals at rates ranging from $135-$152 per hour for
work performed from 2015-2018. Id.
Concerning Mr. McFadden’s rates for 2015-2017, other special masters who
have considered these rates have found them to be reasonable. See Jones v. Sec’y
of Health & Human Servs., No. 15-774V, 2017 WL 7691908, at *3 (Fed. Cl. Spec.
Mstr. Oct. 10, 2017); Eberhart v. Sec’y of Health & Human Servs., No. 16-169V,
2017 WL 3623724, at *2 (Fed. Cl. Spec. Mstr. July 13, 2017). Additionally, the
undersigned finds the requested 2018 rate for Mr. McFadden, which is being
considered here for the first time by a special master, to also be reasonable for an
attorney with his experience. Accordingly, no adjustment to the requested rates is
necessary.
The paralegal rates requested have previously been found reasonable and are
in line with forum rates for paralegals in each respective year. Accordingly, no
adjustment to the requested paralegal rates is required.
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 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 Shea v. Sec’y of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,
2015) (“special masters are not obligated to evaluate an attorney’s billing records
on a line-by-line basis in making the reasonableness determination . . . and
certainly need not do so when Respondent has not attempted to highlight any
specific alleged inefficiencies”).
3
Case 1:16-vv-00868-UNJ Document 49 Filed 10/02/18 Page 4 of 6
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.”
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).
Upon review of the submitted billing statement, the undersigned finds the
hours billed (271.5) to be slightly excessive, especially in relation to the amount of
hours billed by paralegals (126.1). For example, the billing records indicate that
from February 5, 2016, to May 17, 2016, a paralegal billed 35.1 hours solely on
preparing a chronological record of Petitioner’s care and treatment – this is on top
of any entries which billed for review of the same records but did not mention
making the chronological chart. Fees App. Ex. 1 at 8-10. In the undersigned’s
experience, this is an excessive amount of time to bill on review of medical
records. Additionally, many entries, although for small amounts of time, were
billed by paralegals for filing documents online via CMECF and for dealing with
payment invoices for medical records. It is well established that tasks like these are
clerical in nature and are not compensable in the Vaccine Program. Rochester v.
United States, 18 Cl. Ct. 379,387 (1989) (denying an award of fees for time billed
by a secretary and finding that “[these] services . . . should be considered as normal
overhead office costs included within the attorney’s fee rates”).
Accordingly, the undersigned finds it appropriate to reduce the amount of
fees awarded for paralegal work by 10%. The billing record indicates that for the
126.1 hours of work done by paralegals, the total amount charged was $17,626.50.
This results in a total reduction of $1,762.65. Petitioner is therefore entitled to
compensation for attorneys’ fees in the amount of $70,090.24.
C. Costs Incurred by Rawls Law Group
The fees application also asks for reimbursement in the amount of $6,615.06
in for costs incurred by Rawls Law Group. Fees App. Ex. 2 at 3. Like attorneys’
4
Case 1:16-vv-00868-UNJ Document 49 Filed 10/02/18 Page 5 of 6
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).
The majority of this amount ($4,539.50) is for mediation services performed
by former Chief Special Master Gary Golkiewicz. Id. The former Chief Special
Master billed 22.35 hours at a rate of $400.00 per hour for a total $9,078.00
(including $138.00 for travel costs). Fees App. Ex. 2 at 31. Per their agreement, the
parties agreed to split this cost, resulting in a total cost of $4,539.00 to Petitioner.
As the parties eventually reached a negotiated settlement, it is clear that the former
Chief Special Master played a valuable role in the resolution of this case.
Additionally, this court has previously found his rate of $400.00 to be reasonable.
See Robinson v. Sec’y of Health & Human Servs., No. 15-967V, slip op. at 5 (Fed.
Cl. Spec. Mstr. Sept. 12, 2018). The undersigned will therefore reimburse this cost
in full. However, it appears that Petitioner has made an inadvertent typo which has
resulted in overcharging for this expense, albeit by a mere $0.50. Compare Fees
App. Ex. 2 at 31 with Fees App. Ex. 2 at 3. Petitioner’s award of costs is therefore
reduced by $0.50.
Another matter warranting reduction is the cost of $583.08 for “Advocate
Capital Interest.” Id. It appears that, in order to finance costs associated with this
case, the Rawls Law Group took out an advance loan from AdvoTrac, which
markets itself as a “case expense funding service.” Fees App. Ex. 2 at 32.
Petitioner now seeks reimbursement for interest charged by AdvoTrac on the loan.
This expense cannot be reimbursed by the court.
Another special master recently ruled upon this exact issue. In Beiting v.
Sec’y of Health & Human Servs., the Rawls Law Group sought compensation for
interest incurred on another loan taken out from AdvoTrac. Beiting v. Sec’y of
Health & Human Servs., No. 17-726V, slip op. at 5 (Fed. Cl. Spec. Mstr. Sept. 11,
2018). In disallowing the interest cost, the special master ruled that while
Petitioner’s counsel was free to conduct their business as they saw fit, the accrual
of interest was a foreseeable cost of taking out a loan to finance litigation costs,
and that interest charges are not compensable in the Vaccine Program. Id. (citing
Jeffries v. Sec’y of Health & Human Servs., No. 99-670V, 2006 WL 3903710, at
*18 (Fed. Cl. Spec. Mstr. Dec. 15, 2006)).
The undersigned agrees with the decisions in Beiting and Jeffries and finds
that interest charges for loans taken out to finance litigation are unambiguously not
5
Case 1:16-vv-00868-UNJ Document 49 Filed 10/02/18 Page 6 of 6
compensable in the Vaccine Program. Accordingly, Petitioner’s awarded costs are
reduced by $583.08.
The remainder of the costs are routine expenses commonly incurred in
Vaccine Program litigation, such as the cost of medical records and postage.
Petitioner has provided adequate documentation of all these costs, and they shall be
reimbursed in full.
Accordingly, Petitioner is awarded $6,031.48 in attorneys’ costs.
D. Conclusion
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 $76,121.72 (representing
$70,090.24 in attorneys’ fees and $6,031.48 in costs) as a lump sum in the form of
a check jointly payable to petitioner and his counsel, Mr. Joseph McFadden, Jr.,
Esq.
In the absence of a timely-filed motion for review (see Appendix B to the
Rules of the Court), the Clerk shall enter judgment in accordance with this
decision.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.
6