Guerrero v. Secretary of Health and Human Services , 124 Fed. Cl. 153 ( 2015 )

In the United States Court of Federal Claims
No. 12-689V
(Filed Under Seal: November 16, 2015) 1
(Filed for Publication: December 4, 2015)
**************************
*
AMANDA GUERRERO, *
* National Childhood Vaccine Injury Act;
Petitioner, * 42 U.S.C. § 300aa-15(e); Attorney’s Fees
* and Costs; Award of Fees and Costs
v. * Associated with Motion for Review.
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
**************************
Lisa A. Roquemore, Law Office of Lisa A. Roquemore, 30021 Tomas Street, Suite 300,
Rancho Santa Margarita, CA, 92688, for Petitioner.
Benjamin C. Mizer, Rupa Bhattacharyya, Vincent J. Matanoski, Voris E. Johnson, Jr.,
Lara A. Englund, United States Department of Justice, Civil Division, Torts Branch, P.O. Box
146, Benjamin Franklin Station, Washington, D.C., 20044, for Respondent.
____________________________________________________
OPINION
____________________________________________________
WILLIAMS, Judge.
This vaccine injury case comes before the Court on Petitioner’s Motion for Review of the
Special Master’s decision, Guerrero v. Sec’y of Health & Human Servs., No. 12-689V, 2015
U.S. Claims LEXIS 757 (Fed. Cl. Spec. Mstr. May 22, 2015) (“Second SM Op.”), awarding
Petitioner reduced attorney’s fees of $50,073.71, instead of her claimed $61,357.71. Following
Petitioner’s first Motion for Review, the Court remanded the matter to the Special Master for
further explanation of his fee award. Guerrero v. Sec’y of Health & Human Servs., 120 Fed. Cl.
474 (2015). The Special Master’s decision is affirmed in part and reversed in part, and Petitioner
1
Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims,
the Court issued its opinion under seal to provide the parties an opportunity to submit redactions.
Neither party filed proposed redactions. Accordingly, the Court publishes this opinion.
is awarded $55,957.71. In addition, the Court awards Petitioner $22,593.35 in attorney’s fees
and costs related to this Motion for Review.
Background
On October 11, 2012, Amanda Guerrero filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10 to 34 (2012) (“Vaccine Act”), along with 534 pages of
medical records and an expert report, alleging that she developed Guillain-Barré syndrome
(“GBS”) after receiving an influenza vaccine on September 22, 2011. Guerrero, 120 Fed. Cl. at
477. Petitioner’s attorney began work on the case on February 21, 2012, almost seven months
before filing the petition. Id. Petitioner represents that “‘[a]n expert report was filed in support
of the petition due to various complications in the case, without which ‘reasonable basis’ [a
prerequisite for award of attorney’s fees under 42 U.S.C. § 300aa-15(e) if the petitioner is not
awarded compensation] may have been questioned.’”2 Id. (alteration in original). These
“complications” included two other possible causes for Petitioner’s GBS – infections with the
cytomegalovirus and the Epstein-Barr virus. Id.
Over a year after Petitioner’s counsel began work on the case, and roughly six months
after the petition was filed, the parties engaged in settlement discussions, and “conditionally
resolved” the case on April 3, 2013. Id. The case was resolved without any status conferences,
and Respondent did not file a Vaccine Rule 4 report. Id. Petitioner was awarded a lump sum
compensation payment of $165,000.
Petitioner filed her application for fees and costs on November 26, 2013, seeking $38,114
in attorney and paralegal fees, $17,000 in expert costs, and $752.31 in costs. Respondent
objected, arguing that the fees and costs were excessive.
The Special Master found that the amount of fees Petitioner sought was unreasonable,
based on a comparison of Petitioner’s claimed fees with his compilation of median fees and costs
in Vaccine Act cases of similar procedural complexity. Guerrero v. Sec’y of Health & Human
Servs., No. 12-689V, 2014 U.S. Claims LEXIS 1142, at *11 (Fed. Cl. Spec. Mstr. Sept. 23,
2014) (“First SM Op.”). The Special Master did not cite any precedent for this construct and did
not identify the cases from which he had derived some of the medians. Guerrero, 120 Fed. Cl.
at 478. Comparing Petitioner’s case to two of the categories of cases he had identified, the
Special Master found that the procedural complexity of Petitioner’s case did not warrant the
hours Petitioner’s counsel and paralegal spent. First SM Op. *21.
In all, the Special Master awarded fees for 59.83 attorney hours at a rate of $355 per
hour, and 34.37 paralegal hours at a rate of $125 per hour, along with reduced expert costs,
expenses for the fee application, and other miscellaneous costs, for a total award of $48,779.61.
Petitioner sought review of the Special Master’s reduced fee award in this Court on
October 7, 2014, arguing that the Special Master applied a legally erroneous median test, and
2
The Vaccine Act provides for the recovery of attorney’s fees when the petition was
brought in good faith and there was a reasonable basis for the claim. Cloer v. Sec’y of Health &
Human Servs., 675 F.3d 1358, 1359 (Fed. Cir. 2012).
2
that his decision lacked sufficient specificity. Petitioner also sought additional attorney’s fees
and costs totaling $16,221.20, reflecting the time spent in preparing her Motion for Review.
On review, this Court found:
The Special Master failed to adequately explain why he reduced Petitioner’s
requested attorney hours by one-third. The Special Master found that Petitioner’s
counsel “spent an unreasonable amount of time on a multitude of tasks to the
effect that small incremental charges contributed to a submission in which Ms.
Guerrero’s fee request exceeds median fee awards by a large margin.” The
Special Master did not identify any of the referenced “multitude of tasks” or
“small incremental charges,” cite any instance of overbilling, or identify a time
period when billing levels were inappropriate in light of the tasks done.
Guerrero, 120 Fed. Cl. at 480-81 (internal citations omitted). Further, the Special Master’s
opinion reflected a concern with excessive billing, finding that “[s]omething for which Ms.
Roquemore is charging 0.3 hours can be reasonably accomplished in 0.1 hours. Something for
which she is charging 1.0 hours can be reasonabl[y] accomplished in 0.3 hours. Something for
which Ms. Roquemore spent 0.5 hours may have been redundant and, therefore unnecessary.”
First SM Op. *20-21. However, “[t]he Special Master did not identify any task he characterized
as ‘something’ that was an excessive or redundant charge even by way of example.” Guerrero,
120 Fed. Cl. at 481. This Court recognized that while the Special Master was not required to
provide a “line-by-line analysis of the attorney’s bills, he was required to state why he
determined discrete tasks, categories of tasks, or components of attorney time to be
noncompensable.” Id. (citing Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773, 793
(2010) (reduction of fees “must be explained clearly . . . and reasonably based on the documents
and facts of the particular case.”)) (alteration in original).
Finding that the Special Master’s median fee comparison approach did not “provide a
basis for this Court to assess whether the Special Master’s reduction of fees was rational or an
abuse of discretion,” this Court remanded the matter to the Special Master for a “clear and
concise explanation of the fee award.” Id. at 483, 485. In addition, this Court awarded Petitioner
the requested $16,221.20 in fees and costs related to the Motion for Review.
On remand, the Special Master engaged in a detailed analysis of Petitioner’s attorney’s
fees and costs request. The Special Master acknowledged that a line-by-line analysis was not
required, but nonetheless chose “to adopt this method to communicate the reasons for each
reduction.” Second SM Op. *5. The Special Master stated:
The principle that attorneys must exercise judgment in submitting a request for
attorneys’ fees has two ramifications that are especially important in evaluating
the fee application here. First, activities that a paralegal can perform should be
billed at a paralegal rate, regardless of whether an attorney or paralegal actually
performed the work . . . . Second, activities that are “purely clerical or secretarial
tasks should not be billed at a paralegal rate, regardless of who performs them.”
Attorneys may not separately charge for clerical or secretarial work because those
charges are overhead for which the hourly rate accounts.
3
Id. at *4-5 (internal citations omitted). The Special Master then divided the case into five
discrete time periods, and engaged in a line-by-line analysis of questionable billing entries in
each period.3 Id. at *5.
In his decision, the Special Master identified what he viewed as unreasonable billing by
Petitioner’s attorney, such as billing time for creation and review of documents which were
simply modified from use in earlier cases, charging at least 0.1 hour for every task, even if de
minimis, charging at an attorney rate for work which could have been performed by a paralegal,
duplication of work between the attorney and paralegal, and charging at a paralegal rate for
clerical work. Id. at *37-38. The largest single deductions in attorney and paralegal hours
involved what the Special Master characterized as unnecessary duplication of work for counsel
and her paralegal’s review and summarization of Petitioner’s medical records. Id. at *10-11, 14.
The Special Master awarded Petitioner a total of $50,073.71, representing a reduction of
$11,284 from Petitioner’s request for $61,357.71.
Petitioner now seeks review of the Special Master’s second fee decision, arguing that the
Special Master abused his discretion in reducing fees and reassigning certain fees among
attorney, paralegal, and clerical rates. Petitioner also seeks attorney’s fees and costs for this
second Motion for Review.
Discussion
Jurisdiction and Standard of Review
This Court exercises jurisdiction pursuant to Section 300aa-12(a) of the Vaccine Act. In
reviewing a decision rendered by a special master, this Court may: (1) uphold the findings of fact
and conclusions of law by sustaining the special master’s decision; (2) set aside any findings of
fact or conclusions of law “found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law” and issue its own findings of fact or conclusions of law; or (3)
“remand the petition to the special master for further action in accordance with the court’s
direction.” 42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012); see Saunders v. Sec’y of Dep’t of Health
& Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994) (quoting Munn v. Sec’y of Dep’t of
Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992)).
While legal conclusions of the special master are reviewed de novo, findings of fact are
reviewed under the deferential “arbitrary and capricious” standard of review. In Vaccine Act
cases before this Court contesting a special master’s determination of reasonable attorney’s fees,
the applicable standard of review is abuse of discretion. Hall v. Sec’y of Health & Human
Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011) (citing Saxton ex rel. Saxton v. Sec’y of Health &
3
The Special Master divided the case into the following five phases: (1) From Initial
Client Communication to Filing the Petition; (2) From Filing of Petition to Issuance of 15-Week
Order; (3) From Issuance of 15-Week Order to Entry of Judgment; (4) Preparing Initial
Attorneys’ Fees Submission; and (5) Fees for Fees. Although the Special Master made
deductions of unreasonable billing entries in each of Phases One through Four, he did not find
any of the billing entries for Phase Five to be unreasonable, and awarded the entire requested
amount.
4
Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993). “If the special master has considered the
relevant evidence of record, drawn plausible inferences and articulated a rational basis for the
decision, reversible error will be extremely difficult to demonstrate.” Hines ex rel. Sevier v.
Sec’y of Dep’t of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).
Standard for Awarding Attorney’s Fees
Special masters are statutorily authorized to determine and award “reasonable attorneys’
fees” under the Vaccine Act. 42 U.S.C. § 300aa-15(e)(1) (2012). To calculate such fees, the
Federal Circuit has endorsed the lodestar method. Avera v. Sec’y of Health & Human Servs.,
515 F.3d 1343, 1349 (Fed. Cir. 2008). Under the lodestar method, a special master first
determines an initial estimate of reasonable fees by multiplying the number of hours reasonably
expended by a reasonable hourly rate. Id. at 1347-48. After making the initial estimate, the
special master “may then make an upward or downward departure to the fee award based on
other specific findings.” Id. at 1348.
The Motion for Review
The United States Court of Appeals for the Federal Circuit found, in Saxton, that the
Special Master has discretion in awarding fees and costs in Vaccine Act cases, explaining:
[The Special Master] “has discretion in determining the amount of a fee award.
This is appropriate in view of the [Special Master’s] superior understanding of the
litigation and the desirability of avoiding frequent appellate review of what
essentially are factual matters.”
3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). Additionally, “[t]he
special master is within his discretion in reducing hours that are duplicative, padded, spent on
unrelated matters, or not reasonably expended.” Hines ex rel. Sevier v. Sec’y of Dep’t of Health
& Human Servs., 22 Cl. Ct. 750, 754 (1991).
This discretion, however, is not unfettered. In order to permit the court to perform its
review function and determine whether any abuse of discretion occurred, the special master must
provide a description of the reasoning used to reach his conclusions. Wasson v. Sec’y of the
Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 486 (1991), aff’d 988 F.2d 131 (Fed. Cir.
1993). “It is essential that the [special master] provide a reasonably specific explanation for all
aspects of a fee determination . . . .” Perdue v. Kenny A., 559 U.S. 542, 558 (2010).
In its first review of the Special Master’s award of fees and costs, this Court found that
the Special Master had “fail[ed] to provide adequate specificity to allow meaningful review,” and
remanded the matter to obtain a clearer explanation of why reductions in the fee award had been
made. Guerrero, 120 Fed. Cl. at 480. In seeking to comply with the decision of this Court, the
Special Master engaged in a line-by-line analysis of the billing entries of Petitioner’s attorney
and paralegal and set forth his reasons for each individual time segment deducted from the award
– including multiple deductions of 0.1 hour per task. Such an analysis goes beyond what is
required of the Special Master, and this Court’s earlier decision should not be interpreted to
require such detail. Instead, the Special Master must explain why he determined certain types of
work or billing practices to be excessive or identified categories of work to be unnecessary and
provide the reason for his deduction based on the work performed. See Hocraffer v. Sec’y of
5
Health & Human Servs., No. 99-533V, 2011 U.S. Claims LEXIS 2361, at *40 (Fed. Cl. Nov. 22,
2011) (“the special master properly used a global—rather than line-by-line—approach to
determine the reasonable number of hours expended in this case.”); Wasson, 24 Cl. Ct. at 483-84
(affirming the Special Master’s approach not to “base her decision on a line-by-line evaluation of
the petition.”). Special masters “need not, and indeed should not, become green-eyeshade
accountants” when awarding attorney’s fees and costs; rather, the “essential goal in shifting fees
(to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 131 S.
Ct. 2205, 2216 (2011).
Here, Petitioner contends that the Special Master committed legal error and abused his
discretion by reducing the number of hours, recategorizing certain attorney billing entries as
paralegal tasks and some paralegal billing entries as clerical tasks, consolidating de minimis
billing entries, and failing to address other fee award decisions that support Petitioner’s fee
request.
The Court recognizes the discretion granted to special masters in making fee award
decisions. Saxton, 3 F.3d at 1521. Given the Special Master’s “superior understanding of the
litigation” and the deference owed to the Special Master’s exercise of discretion to reduce hours
which he deems duplicative, excessive, or unreasonable, the Court affirms the Special Master’s
reductions in the following categories: (1) excessive work; (2) unnecessary work; (3) email
related deductions; (4) conversions of attorney time to paralegal time; (5) duplicative work (other
than medical record review and summarization); (6) retention and disbursement agreement
related deductions; and (7) clerical or administrative work. The Court reverses the Special
Master’s reduction of fees related to the review and summarization of medical records because
he found the tasks involved to be duplicative. Specifically, the Special Master erroneously
characterized three different tasks – attorney review of medical records, paralegal summarization
of medical records, and attorney review of the paralegal’s summary – as duplicative work and
deducted 8.3 attorney hours and 23.5 paralegal hours.
Excessive Work
The Special Master deducted 6.1 attorney hours, totaling $2,165.50, and 1.5 paralegal
hours, totaling $187.50, from Petitioner’s fee award for billing he deemed excessive. These
deductions encompassed preparation of nine Notices of Filing for exhibits, when only one was
necessary, review of the electronic notice of filing of the petition and case assignment notice, and
drafting, revising, and finalizing a Notice of Intent to Continue, and settlement negotiations. In
addition, with respect to settlement negotiations, the Special Master deducted 5.6 hours of
attorney time out of a requested 25.6 hours, and 0.8 hour of paralegal time out of a requested 1.6
hours, because he found that Petitioner’s attorney’s practice during this period continued to show
signs of excessive, duplicative, and unnecessary billing entries. Second SM Op. *21-25. The
Special Master also found that “[i]n [his] experience, attorneys who are knowledgeable about the
Vaccine Program have negotiated a settlement in similar cases in approximately 10-15 hours.
Attorneys with much less experience than [Petitioner’s attorney] negotiated a resolution in 22
hours.” Id. at *24-25.4
4
Petitioner argues that two recent cases bolster her request for attorney’s fees because the
Special Master in each awarded a higher number of hours. Second Mot. for Review 20-21
6
Petitioner has not established that the above deductions were arbitrary, capricious, or an
abuse of discretion. The deductions related to the Notices are matters within the Special
Master’s particular expertise and experience, and this Court will not second guess those
determinations. Similarly, although settlement negotiations can vary based upon factual and
legal issues and personal dynamics, the Court deems the Special Master’s fee reduction for
settlement negotiations to be reasonable because the Special Master pointed to “signs of
excessive duplicative and unnecessary billing entries” that the Special Master was in a superior
position to detect.
Unnecessary Work
The Special Master deducted 1.4 attorney hours, totaling $497, and 1.3 paralegal hours,
totaling $162.50, from Petitioner’s fee award for billing entries that reflected unnecessary work.
These deductions covered paralegal time for the creation of “fee summary monthly narratives,”
drafting a motion for electronic filing, attorney time spent “reviewing the new guidelines for any
effect on this case,” receiving and drafting an email regarding the routine 240-Day Notice, and
prematurely drafting and revising a Joint Notice to Waive Review of Decision regarding Fees
that was never filed and that was similar to notices filed by Petitioner’s attorney in prior cases.
See Second SM Op. *12, 16-20, 27-28, 34-35.
The Court affirms these deductions as the Special Master is in a superior position to
understand the nature and necessity of the work performed and the propriety for charging for
such work.
Email Related Deductions
The Special Master deducted 0.4 attorney hour, totaling $142, from Petitioner’s fee
award for billing entries which reflected excessive billing practices regarding email
communications. The Special Master determined that it was inappropriate for counsel to charge
separately for receiving and responding to emails. In addition, the Special Master denied fees
charged for receiving an email from Respondent’s attorney authorizing filing of the Joint Notice
Not to Seek Review and instructing the paralegal to file the Notice. See id. at * 6, 12-13, 14, 30-
31.
The Court affirms these deductions as the Special Master is in a superior position to
understand the nature of the work performed and the propriety of the charges.
(citing Tieu Binh Le v. Sec’y of Health & Human Servs., No. 07-895V, 2014 U.S. Claims
LEXIS 839, at *26 (Fed. Cl. Spec. Mstr. July 31, 2014) (awarding $49.527.02, for 152.42
attorney hours at $295 per hour, and 29.88 paralegal hours at $95 per hour)); Yang v. Sec’y of
Health & Human Servs., No. 10-33V, 2013 U.S. Claims LEXIS 1293, at *36 (Fed. Cl. Spec.
Mstr. Aug. 22, 2013) (awarding a total of $67,275.10, including $49,402.25 in attorneys’ and
paralegal fees)). As Respondent correctly noted, however, both cases required more time to
reach settlement, required more filings to be made with the Special Master, and contained more
complex facts than Petitioner’s case. Resp. to Second Mot. for Review 14-15.
7
Conversion of Attorney Time to Paralegal Time
The Special Master deducted 2.2 attorney hours, totaling $781, and awarded 1.5 paralegal
hours, totaling $187.50, from Petitioner’s fee award for billing entries which he found reflected
tasks more properly suited to a paralegal hourly rate than that of an attorney. The Special Master
recharacterized the hours regarding email and telephonic communications about medical records,
the expert’s fees, costs, and invoice, litigation expenses, Petitioner’s social security number,
drafting an Election to Accept Judgment, and a Statement of Completion. See id. at *8, 19, 31-
33, 35.
Recognizing that the Special Master is in a superior position to evaluate the nature of this
work, the Court affirms the Special Master’s recharacterization of tasks as a reasonable exercise
of discretion.
Duplicative Work
The Special Master deducted 1.9 attorney hours, totaling $674.50, and 0.2 paralegal hour,
totaling $25, from Petitioner’s fee award for billing entries which he deemed duplicative,
because the billing entries either duplicated tasks completed earlier in this litigation or
documents prepared for previous litigation. The Special Master awarded 0.4 paralegal hour,
totaling $50. These deductions concerned an email regarding a potential expert report which was
duplicated in a telephone call billed the same day, drafting a declaration for Petitioner which
duplicated much of the petition, reviewing and finalizing the statement of completion, and
drafting a routine, two-sentence Joint Notice to Waive Review. See id. at * 8, 16, 20-21, 30.
The Court finds these deductions reasonable as the Special Master is in a superior position to
understand the nature of the work performed in this case and prior litigation.
Retention and Disbursement Agreements
The Special Master deducted 1.3 attorney hours, totaling $461, from Petitioner’s fee
award for the drafting and preparation of retention agreements with Petitioner and a medical
expert, Dr. Steinman, and for drafting and preparation of a disbursement agreement which
allowed for disbursement of fee awards to Petitioner’s counsel without requiring Petitioner’s
endorsement. The Special Master reasonably found that these expenses are not commonly billed
to the client, and awarded 0.4 paralegal hour, totaling $50, for editing and delivery of these
documents to Petitioner and the expert. See id. at *9, 12.
The Court finds these deductions reasonable as the Special Master is in a superior position to
understand the nature of the work performed in this case and prior litigation.
Clerical or Administrative Work
The Special Master deducted 0.4 attorney hour, totaling $142, and 6.8 paralegal hours,
totaling $850, from Petitioner’s fee award for billing entries which he reasonably deemed clerical
or administrative in nature. This work encompassed conferring with paralegal on processing
agreements, “scanning and Bates-stamping . . . exhibit[s], revising and finalizing the notice of
filing, conducting the ECF entry, and updating the medical records binder,” preparing
correspondence to Respondent’s attorney regarding signing and filing the Settlement Stipulation,
8
inquiring about Respondent’s attorney’s physical address, filing the Joint Notice Not to Seek
Review and Election to Accept Judgment, changing an address on a letter to the client, and filing
the fee application and related exhibits with the Court. See id. at *10, 18, 29, 31, 30-34, 36.
The Court agrees with the Special Master’s assessment of the nature of this work and
affirms these deductions.
Review and Summarization of Medical Records
Petitioner’s counsel billed 19.5 hours of attorney time and 23.5 hours of paralegal time
for review and summarization of medical records. The Special Master deducted 8.3 attorney
hours and all 23.5 paralegal hours related to this work. Id. at *10-11, 14.
When the medical records had initially been collected, counsel spent 9.1 hours over
several days reviewing these records, which “comprised between 400 and 530 pages.” Id. at *7.
The Special Master noted that “[t]his amount of time seems relatively high” but nonetheless gave
“Ms. Roquemore the benefit of the doubt.” Id. A couple of weeks later, the paralegal spent 16
hours preparing a summary of these medical records. Finding this work duplicative of the
attorney review of the records, the Special Master deducted all 16 hours of paralegal time. Id. at
*10. After another two weeks, counsel “spent a total of 8.3 hours reviewing and revising the
medical records summary.” Id. at *10-11. Finding that “excessive” and “one of the more
remarkable tasks that Ms. Roquemore claims she performed,” because Petitioner’s attorney had
already spent more than nine hours reviewing medical records, and “[h]er paralegal spent the
equivalent of two entire workdays, creating a summary of those records,” the Special Master
deducted all 8.3 hours of attorney time spent reviewing and revising the paralegal’s summary.
Id. at *10-11.
The Special Master also deducted 5.5 hours of paralegal time spent revising the medical
record summary and highlighting critical entries following the review by counsel, finding this
activity redundant and unnecessary. Id. at *11. Finally, the Special Master deducted 2.0 hours
of paralegal time spent summarizing additional medical records received later, because he found
it duplicative of an earlier 1.2 hours of attorney time spent reviewing these records. Id. at *14.
The Special Master awarded 0.9 hour of attorney time for reviewing updated records. Id. at *20.
In making his deduction, the Special Master stated:
In my experience, attorneys frequently delegate to paralegals the task of
summarizing medical records initially. After the paralegal completes a first pass,
the attorney should spend some time reviewing the medical records and the
summary. However, Ms. Roquemore did not follow this practice. Ms.
Roquemore’s review of the medical records occurred first. Once the attorney has
reviewed the medical records, a separate summarization from the paralegal (and
associated review of the summarization) is redundant.
Id. at *11 n.4.
This Court finds the Special Master’s approach to counsel and the paralegal’s review and
summarization of medical records to be unreasonable. This work is not duplicative, as it
comprises three separate and discrete tasks: 1) attorney review of medical records, 2) paralegal
9
summarization of such records, and 3) attorney review and revision of the paralegal’s
summarization. Because developing an accurate summary of medical records for reference and
advocacy was proper preparation for litigation and/or settlement, these three categories of work
were necessary. Given the quantity and nature of the medical records, the time billed was not
excessive.
The Special Master’s suggestion that counsel’s chronological approach deviated from his
experience of a common practice does not form a reasonable basis for denying fees. The
practice of Petitioner’s counsel here could be deemed equally reasonable to the Special Master’s
observed common practice, as counsel could guide the focus of the paralegal’s review into key
documents. Understanding some 500 pages of medical records is a critical undertaking for
counsel in a vaccine case. The Special Master’s deduction of 8.3 attorney hours and 23.5
paralegal hours of this effort, and award of only 11.2 attorney hours and zero paralegal hours,
was arbitrary and capricious. The Court reverses the Special Master on these deductions, and
finds that Petitioner is entitled to $5,884 for this work.
Fees for this Motion
Petitioner seeks $22,593.35 in attorney’s fees and costs incurred in the preparation of her
Second Motion for Review. The requested amount represents 58.6 hours5 of attorney work at a
rate of $365 per hour, 9.0 hours of paralegal work at a rate of $125 per hour, and $68.40 in costs.
Respondent argues that this Court should decline to award any fees for this motion, contending
that this Motion for Review is frivolous, that the fee request is excessive, and that, if awarded,
Petitioner will have recovered more than twice as much in attorney’s fees for litigating fees than
for litigating the underlying injury. Resp. to Second Mot. for Review 15-17.
The Vaccine Act empowers this Court to award compensation for reasonable attorney’s
fees and other costs incurred in a Vaccine Act case. 42 U.S.C. § 300aa-15(e)(1); see also
Vaccine Rule 34(b) (“Following review by an assigned judge of a special master’s decision on
attorney’s fees and costs under Vaccine Rule 13, a request for any additional fees and costs
relating to such review may be decided either by the assigned judge or by the special master on
remand.”). In light of this Court’s adjudication of Petitioner’s first and second Motions for
Review and familiarity with the arguments of counsel, it is appropriate for this Court to address
Petitioner’s requested attorney’s fees and costs incurred in this proceeding. See Hocraffer, 2011
U.S. Claims LEXIS 2361, at *42 (awarding requested fees for preparation of a motion for
review).
In determining whether Petitioner’s counsel’s requested fee award is reasonable, this
Court uses the lodestar method, multiplying the number of hours reasonably expended by a
reasonable hourly rate, and then assessing whether an upward or downward adjustment is
warranted based on other specific findings. Avera, 515 F.3d at 1347-48. The time sheets
submitted by Petitioner with this Motion reflect: (1) attorney time by Ms. Roquemore of 59.3
hours, spent reviewing and analyzing the Special Master’s decision, researching relevant case
5
Although Petitioner requests attorney’s fees for 58.63 hours of attorney work, the billing
invoices submitted to the Court with the Motion for Review reflect 59.3 hours of billed attorney
work. This discrepancy is left unexplained by Petitioner, and the Court bases this decision on the
amount requested and assumes this amount to be 58.6 hours.
10
law, consulting with peers, and drafting a 24-page Motion for Review raising three substantive
issues; (2) 9.0 hours of paralegal time spent assisting in the preparation and filing of the Motion
for Review; and (3) $68.40 in miscellaneous costs. Second Mot. for Review Att. I.
Upon consideration of the detailed Special Master’s Opinion, the research required for
the Motion, and the arguments articulated by Petitioner, the Court finds that the number of hours
Petitioner’s attorney and paralegal expended on this Motion for Review were reasonable, and
sufficiently similar to the number of hours awarded in previous cases. Cf. Rodriguez v. Sec’y of
Health & Human Servs., No. 06-559V, 2013 U.S. Claims LEXIS 214, at *50 (Fed. Cl. Spec.
Mstr. Mar. 1, 2013) (awarding compensation for 50 hours for time spent researching, writing,
and editing a motion for review of a fee application); and Doe/11 ex rel. Child Doe/11 v. Sec’y
of the Dept. of Health & Human Servs., 89 Fed. Cl. 661, 667 (2009) (awarding 160.2 attorney
hours for two motions for review of the decisions of a special master).
As to Petitioner’s counsel’s hourly rate, the Court finds, as it did in Petitioner’s first
Motion for Review, that $365 is a reasonable hourly rate. Guerrero, 120 Fed. Cl. at 484-85
(“Petitioner’s counsel is clearly experienced in Vaccine Act cases . . . . Petitioner requests $365
per hour here, a $10 per hour increase from what she requested from the Special Master in this
case for work performed in 2012 and 2013. This increase is a reasonable amount for inflation.”)
(internal citations and quotation marks omitted). The Court also finds Petitioner’s paralegal rate
of $125 per hour reasonable. Id. at 485. Petitioner’s costs of $68.40 in preparing this Motion for
Review, consisting of copying costs in preparing the Motion for filing, are also reasonable.
The Court awards fees and costs of $22,593.35 for the second Motion for Review. In the
Court’s view, there are no particular circumstances that warrant an upward or downward
adjustment of the reasonable fees and costs.
Conclusion
The decision of the Special Master is AFFIRMED IN PART and REVERSED IN
PART as explained above. The Special Master has provided a thorough analysis of his
disallowances of Petitioner’s claimed fees and reasonably deducted billings for excessive,
duplicative, and unnecessary work, and tasks billed improperly at attorney rates, or not properly
billed to the client. As such, the Court affirms these deductions. However, with respect to
counsel’s and her paralegal’s review and summarization of medical records, the Special Master
erroneously characterized three discrete tasks, i.e. counsel’s review of medical records, the
paralegal’s summarization of those records, and counsel’s revision and review of the paralegal’s
summary as a single, duplicative task. This Court finds that conclusion arbitrary and capricious.
The Court determines that the time billed for this work was reasonable and necessary and
concludes that an additional $5,884 in fees is properly awarded.
The Court determines that Petitioner’s counsel is entitled to a fee award of $55,957.71.
In addition, this Court awards Petitioner fees and costs totaling $22,593.35 related to this Motion
for Review. Judgment shall be entered accordingly.
s/ Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
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