David v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 20, 2022
* * * * * * * * * * * * * *
CHERYL DAVID, as personal *
representative of the estate of
*
FRANCES LABONTE, *
deceased, * No. 17-1554V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Lara A. Englund, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On October 18 2017, Frances Labonte (“Mr. Labonte”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq.
(2012). Mr. Labonte passed away on November 12, 2017, and on March 30, 2018, Cheryl David
(“Petitioner”), as personal representative of Mr. Labonte’s estate, was substituted as Petitioner.
Petitioner alleged that the influenza vaccine Mr. Labonte received on October 28, 2014, caused
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
him to develop Guillain-Barré syndrome. Pet. at 1 (ECF No. 1). On July 26, 2021, the parties filed
a proffer, which the undersigned adopted as her decision awarding compensation on August 11,
2021. (ECF No. 73).
On October 14, 2021, Petitioner filed a motion for attorneys’ fees and costs. (ECF No. 79)
(“Fees App.”). Petitioner requests total final attorneys’ fees and costs in the amount of $53,296.84,
representing $49,584.20 in attorneys’ fees and $3,712.64 in attorneys’ costs. Fees App. at 1-2.
Pursuant to General Order No. 9, Petitioner has indicated she has personally incurred costs totaling
$2,866.81 related to her petition. Id. Respondent responded to the motion on October 14, 2021,
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. 80). 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
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be accessed online.3
The undersigned has reviewed the hourly rates requested by Petitioner for the work of
her counsel at Conway, Homer, P.C. (the billing records indicate that the majority of attorney
work was performed by Mr. Joseph Pepper, with supporting work from Mr. Ronald Homer, Ms.
Christina Ciampolillo, Ms. Meredith Daniels, Mr. Nathaniel Enos, Ms. Lauren Faga, and Mr.
Patrick Kelly). The rates requested are consistent with what counsel has previously been
awarded for their 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 the overall hours billed to be largely reasonable.
Counsel has provided sufficiently detailed descriptions for the tasks performed. However, a small
reduction must be made for excessive review of filings by counsel. While it is reasonable to have
a second set of attorney eyes review substantive filings, such as the petition or a settlement demand,
it is not reasonable to have another attorney review routine filings such as status reports or the joint
notice not to seek review given that Mr. Pepper (lead counsel in this case) is an experienced
Vaccine Program practitioner. Accordingly, a reduction of $876.90 is being made to account for
this issue. Petitioner is therefore awarded final attorneys’ fees of $48,707.30.
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 $3,712.64 in attorneys’ costs, comprised of acquiring medical records, postage,
photocopies, and the Court’s filing fee. The undersigned has reviewed these costs and finds them
to be reasonable and supported with adequate documentation. Petitioner is therefore awarded the
full amount of costs requested.
d. Petitioner’s Costs
Pursuant to General Order No. 9, Petitioner has indicated that she has personally incurred
costs totaling $2,866.81 related to her petition, comprised of postage and work performed by an
estate attorney in setting up the estate of Mr. Labonte. Petitioner has provided adequate
documentation supporting these costs and they are reasonable in the undersigned’s experience.
3
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.
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 her counsel as follows:
Attorneys’ Fees Requested $49,584.20
(Reduction to Fees) - ($876.90)
Total Attorneys’ Fees Awarded $48,707.30
Attorneys’ Costs Requested $3,712.64
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $3,712.64
Total Attorneys’ Fees and Costs $52,419.94
Petitioner’s Costs $2,866.81
Total Amount Awarded $55,286.75
Accordingly, the undersigned awards the following:
1) a lump sum in the amount of $52,419.94, representing reimbursement for
Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner
and Petitioner’s counsel, Mr. Ronald Homer; and
2) a lump sum in the amount of $2,866.81, 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.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
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.