Hales v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
STEPHEN B. HALES, * No. 14-552V
* Special Master Christian J. Moran
Petitioner, *
* Filed: March 9, 2017
v. *
* Attorneys’ fees and costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*********************
Douglas Lee Burdette, Burdette Law, PLLC, Seattle, WA, for Petitioner
Alexis B. Babcock, U.S. Dep’t of Justice, Washington DC, for Respondent
UNPUBLISHED DECISION ON FEES AND COSTS1
After receiving compensation through the Vaccine Program, Stephen B.
Hales filed a motion for attorneys’ fees and costs. Mr. Hales is awarded
$59,279.32.
* * *
Mr. Hales alleged that the influenza vaccine he received caused him to
develop polymyalgia rheumatic (“PMR”). Mr. Hales was awarded compensation
based on the parties’ stipulation. Decision, filed Oct. 28, 2016, 2016 WL 6945267.
With the merits of Mr. Hales’ case resolved, the parties turned to the issue of
attorneys’ fees and costs.
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The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. §300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
On November 1, 2016, Mr. Hales filed the pending motion for attorneys’
fees and costs. Mr. Hales requested $24,065.00 in attorneys’ fees and $35,214.32
in attorneys’ costs. On November 18, 2017, the Secretary filed a response to Mr.
Hales’ application. The Secretary stated that Mr. Hales had “satisfied the statutory
requirements for an award of attorneys’ fees and costs.” Resp’t’s Resp., filed Nov.
18, 2016, at 2. However, the Secretary asserted that the reasonable range for
attorneys’ fees and costs was $45,000.00 to $55,000.00 based upon similar cases
and his experience litigating Vaccine Act claims. Id. at 3. The Secretary cited
three cases he considered comparable in support of his proposed range. Further,
the Secretary recommended that “the special master exercise his discretion” when
determining the award for attorneys’ fees and costs within that range. Id.
This matter is now ripe for adjudication.
* * *
Because Mr. Hales received compensation, he is entitled to an award of
reasonable attorneys’ fees. 42 U.S.C. § 300aa-15(e). As to the amount, 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 must determine 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, 88 (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.
* * *
Mr. Hales requests compensation for his attorney, Mr. Douglass Lee
Burdette. For work on this case, Mr. Burdette charged $350 per hour. Mr.
Burdette was assisted by Ms. Kelly Burdette, who charged $250 per hour for her
work on this case. These rates have been found reasonable. See Jackson v. Sec’y
of Health & Human Servs., No. 15-391, 2016 WL 8136090, at *1 (Fed. Cl. Spec.
Mstr. Dec. 5, 2016); Klopfenstein v. Sec’y of Health & Human Servs., No. 16-
42V, 2016 WL 5799765, at *1 (Fed. Cl. Spec. Mstr. Sept. 7, 2016). These rates
also reflect each attorney’s experience and are consistent with the rates proposed in
the McCulloch rate matrix. See generally McCulloch v. Sec’y of Health & Human
Servs., No. 09-923V, 2015 WL 5634323, at *18 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), reconsideration denied, No. 09-293V, WL 6181910 (Fed. Cl. Spec. Mstr.
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Sept. 21, 2015). The Secretary did not directly challenge the requested rates as
unreasonable. Therefore, the proposed rates are accepted as reasonable.
The second factor in the lodestar formula is a reasonable number of hours.
For the number of hours to be considered reasonable, they must not be excessive,
redundant, or otherwise unnecessary. See Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In this case, Mr. Hales requested
compensation for the 55.65 hours Mr. Burdette spent working on this case and the
18.35 hours Ms. Burdette spent working on this case. The Secretary did not
directly challenge either of these requests for hours worked as unreasonable.
Additionally, Mr. Burdette reviewed the hours billed and deleted time entries that
he deemed should not be submitted to the Vaccine Program. See Pet’r’s Mot. filed
Nov. 1, 2016, at 2. This voluntary removal of hours demonstrates “billing
judgment.”
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”). All aspects of the application for attorneys’ fees appear
reasonable.
In addition to seeking an award for attorneys’ fees, Mr. Hales seeks
compensation for costs expended. The amount requested represents costs
associated with routine items, such as gathering medical records, and the cost of an
expert. The routine costs are adequately documented, reasonable, and awarded in
full.
The bulk of the costs are for Dr. Zizic, who served as an expert in this case.
Dr. Zizic billed at a rate of $400 per hour for a total 80.9 hours. To support the
number of hours billed, three extremely detailed invoices were submitted which
logged the date, Dr. Zizic’s activity, and the time spent on each item. For example,
one entry reads “10/3/15 Read Crowson et al. Arth. Rheum 63:633, 2011 0.5
hours.” See Pet’r’s Costs, filed Nov. 1, 2016, at 25. These logs provide adequate
documentation for the work Dr. Zizic performed. Furthermore, in a May 8, 2015
order, the undersigned informed the parties that the expert’s reports could serve as
direct testimony. It appears that counsel for Mr. Hales and Dr. Zizic took this
direction to heart and prepared thorough reports. These factors indicate that the
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amount of time Dr. Zizic took, although perhaps high at first blush, was actually
reasonable. Therefore, no adjustment is made to his time.
Additionally, Dr. Zizic opined on a subject matter in which he had
significant experience, supporting his requested hourly rate. Dr. Zizic has been an
Associate Professor of Medicine at Johns Hopkins University School of Medicine
for approximately 20 years. Exhibit 14, filed Dec. 18, 2015, at 1. He served as the
Associate Director of the Rheumatic Disease unit for Johns Hopkins for
approximately nine years and has also served on various committees and boards.
Id. Further, Dr. Zizic conducts research which requires him to maintain a working
knowledge in the fields of rheumatology, toxicology, pharmacology, and
epidemiology. Id. at 2. Dr. Zizic’s expertise and adequate documentation of his
work illustrate that the costs associated with his work as an expert are reasonable
and therefore are awarded in full.
While the foregoing analysis is the basis for this decision the undersigned
also considered the cases the Secretary offered as relevant comparisons. The three
cases involved the award of attorneys’ fees and costs when cases had been resolved
after the filing of expert reports. See Wilson v. Sec’y of Health & Human Servs.,
No. 10-483V, 2015 WL 720814, at *1 (Fed. Cl. Spec. Mstr. Jan. 26, 2015)
(awarding $52,031.18 in attorneys’ fees and costs); Sankaran v. Sec’y of Health &
Human Servs., No. 11-248V, 2015 WL 2357739, at *1 (Fed. Cl. Spec. Mstr. Apr.
20, 2015) (awarding $54,224.42 in attorneys’ fees and costs); Velk v. Sec’y of
Health & Human Servs., No. 14-59V, 2016 WL 1762194, at *1 (Fed. Cl. Spec.
Mstr. Apr. 8, 2016) (awarding $53,460.50 in attorneys’ fees and costs).
Further, $55,000 was given by the Secretary as the maximum in the range
for reasonable attorneys’ fees and costs. Here, the difference between the
Secretary’s maximum limit and the amount requested by Mr. Hales is $4,279.32.
Based upon the undersigned’s experience in adjudicating fee applications, it is
highly probable that counsel for the parties could have engaged in discussions to
reach a compromise, but the Secretary’s resistance to do so has led to an increase
in litigation. See Whitney v. Sec’y of Health & Human Servs., No. 10-809V, 2017
WL 4491499, at *7 (Fed. Cl. July 17, 2016).
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $59,279.32 ($24,065.00 in fees and $35,214.32 in
costs) to be a reasonable amount for all attorneys’ fees and costs incurred.
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Pursuant to General Order No. 9, Mr. Hales states that he did not personally incur
any costs in pursuit of this litigation. The undersigned GRANTS the petitioner’s
motion and awards $59,279.32 in attorneys’ fees and costs. This shall be paid as
follows:
A lump sum of $59,279.32, in the form of a check made payable to
petitioner and petitioner’s attorney, Douglas Lee Burdette, of Burdette
Law, for attorneys’ fees and other litigation costs available under 42
U.S.C. §300aa-15(e).
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of court is directed to enter judgement herewith.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
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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