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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 16, 2021
* * * * * * * * * * * * * *
BRADLEY GROW, * No. 16-013V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Lisa A. Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita, CA, for
Petitioner;
Catherine E. Stolar, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On January 4, 2016, Bradley Grow (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq. (2012).
Petitioner alleged that the influenza vaccine he received on January 13, 2013, caused him to
develop brachial neuritis, also known as Parsonage Turner Syndrome. Pet. at 4 (ECF No. 1). On
November 24, 2020, the undersigned issued her decision denying compensation and dismissing
the petition. 2020 WL 7366332 (Fed. Cl. Spec. Mstr. Nov. 24, 2020).
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,
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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
On December 22, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 80
(“Fees App.”). Petitioner requests total final attorneys’ fees and costs in the amount of
$122,138.48, representing $103,064.40 in attorneys’ fees, $16,159.13 in attorneys’ costs, 3 and
$2,914.95 in costs personally incurred by petitioner. Fees App. at 2. Respondent responded to the
motion on December 22, 2020, indicating that “Respondent is satisfied the statutory requirements
for an award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp. at 2. ECF No. 82.
Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. 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.
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.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.a. Hourly Rate
The decision in McCulloch provides a 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), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
3
This amount is comprised of $409.13 in firm costs and a balance of $15,750.00 for Petitioner’s expert
after Petitioner personally incurred $2,500.00 for a retainer fee. Fees App. at 2 n.2.
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.4
Petitioner requests the following hourly rates for the work of his counsel, Ms. Lisa
Roquemore: $365.00 per hour for work performed in 2014 and 2015, $400.00 per hour for 2016,
$409.00 per hour for work performed in 2017 and 2018, $421.00 per hour for work performed
in 2019 and 2020. These rates are consistent with what Ms. Roquemore has previously been
awarded for her Vaccine Program work, and the undersigned finds them to be reasonable herein
for work performed in the instant case.
b. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
Upon review, the undersigned finds that the overall hours spent on this matter appear to be
largely reasonable. The only minor issues concern time billed by paralegals to perform
administrative tasks such as formatting and bates stamping exhibits, and excessive overall time on
the handling of routine filings by the Court and Respondent. Ms. Roquemore's firm appears to
utilize a process where her paralegal downloads new filings and then presents them to Ms.
Roquemore for review. The practical effect of this process is that it ensures at least twelve minutes
is billed for the review of all new filings, no matter how routine they may be. This is excessive in
the undersigned’s experience. While each individual entry represents a small amount of time, the
cumulative effect of this billing practice over the course of an entire case which lasts several years,
such as this one, is not insignificant. These issues have been noted and reduced by other special
masters previously. See, e.g., J.T. v. Sec'y of Health & Human Servs., No. 12-618V, 2018 WL
4623163, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 20, 2018). Upon review, a reasonable reduction for
these entries is $2,500.00. Petitioner is therefore awarded final attorneys’ fees of $100,564.40.
c. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $16,159.13 in attorneys’ costs, comprised of acquiring medical records, postage, copies,
and work performed by Petitioner’s medical expert, Dr. M. Eric Gershwin. The undersigned has
reviewed these costs and finds them to be reasonable and supported with adequate documentation.
Petitioner is therefore awarded final attorneys’ costs of $16,159.13.
d. Petitioner’s Costs
Pursuant to General Order No. 9, Petitioner states that he has personally incurred costs of
$2,914.95 related to his petition. This amount is comprised of the court’s filing fee, a retainer for
4
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
Dr. Gershwin, and postage. Petitioner has provided adequate documentation supporting these costs
and they shall be fully reimbursed.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Based on the above analysis, the
undersigned finds that it is reasonable to compensate Petitioner and his counsel as follows:
Attorneys’ Fees Requested $103,064.40
(Reduction to Fees) - ($2,500.00)
Total Attorneys’ Fees Awarded $100,564.40
Attorneys’ Costs Requested $16,159.13
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $16,159.13
Total Attorneys’ Fees and Costs $116,723.53
Petitioner’s Costs $2,914.95
Total Amount Awarded $119,638.48
Accordingly, the undersigned awards the following:
1) a lump sum in the amount of $116,723.53, representing reimbursement for
Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner
and Petitioner’s counsel, Ms. Lisa Roquemore; and
2) a lump sum in the amount of $2,914.95, representing reimbursement for
Petitioner’s costs, in the form of a check payable to Petitioner.
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.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
5
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.