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

Case 1:10-vv-00096-UNJ Document 112 Filed 04/05/18 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 5, 2018
UNPUBLISHED
* * * * * * * * * * * **
P.R. and S.R., Parents and Natural *
Guardians of M.R., a Minor, * Chief Special Master Dorsey
*
Petitioners, * No. 10-96V
*
* Attorneys’ Fees and Costs; Autism;
v. * Administrative Time; Excessive &
* Duplicative Time Billed By Co-Counsel;
SECRETARY OF HEALTH * Travel Unrelated to the Hearing.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for petitioners.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On February 17, 2010, P.R. and S.R. (“petitioners”) filed a petition for compensation
under the National Vaccine Injury Compensation Program2 (“the Program”), as the legal
representatives of their minor child, M.R. Petitioners alleged that multiple childhood
vaccinations that M.R. received caused him to develop autism or autism spectrum disorder
(“ASD”).
1
This decision will be posted on the website of the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by
42 U.S.C. § 300aa-12(d)(4)B), however, the parties may objection to the published Decision’s
inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b),
each party has 14 days within which to request redaction “of any information furnished by that
party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the
whole decision will be available to the public in its current form. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
1
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This case was part of the J.M. et al. (02-10V) omnibus case. On July 21, 2015,
petitioners filed a status report in which they agreed to be bound by the ruling in J.M et al. The
undersigned issued a decision dismissing both J.M. et al. and this case on August 31, 2017. J.M.
et al. v. Sec’y of Health & Human Servs., 02-10V, 2017 WL 7409771 (Fed. Cl. Spec. Mstr. Aug.
31, 2017).
On December 3, 2017, petitioners filed a motion for attorneys’ fees and costs.
Petitioners’ Application (“Pet. App.”) dated December 3, 2017 (ECF No. 109). Petitioners
requested $87,576.05 in attorneys’ fees to compensate their attorney, Mr. Robert Krakow, and
$10,882.44 in costs, including $550.00 in petitioners’ costs.3 Pet. App. at 5. Petitioners thus
request a total of $98,458.49 in fees and costs.
On December 18, 2017, respondent filed a response to petitioners’ motion for fees and
costs. Respondent’s Response (“Resp. Resp.”) dated Dec. 18, 2017 (ECF No. 110). Respondent
stated that he believed the statutory requirements for an award of attorneys’ fees and costs were
met in the case and left the appropriate amount of the award up to the undersigned’s discretion.
Id. at 2-3.
For the reasons discussed below, the undersigned GRANTS petitioners’ motion and
awards $77,908.28 in attorneys’ fees and costs and $550.00 in petitioners’ costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of 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, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in
[her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009).
3
Mr. Krakow acted as the attorney of record in two of the J.M. et al. omnibus cases: P.R. et al.,
(10-96v) (this case), and S.O. et al., (08-125v). In S.O. et al., Mr. Krakow requested $91,012.40
in attorneys’ fees and $9,631.37, in petitioners’ costs. The undersigned awarded Mr. Krakow a
total of $78,142.59 for the work he performed in S.O. et al.
2
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A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson, 24 Cl. Ct. 482, 484,
(Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed.
Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and
the number of hours claimed in attorney fee requests . . . [v]accine program special masters are
also entitled to use their prior experience in reviewing fee applications.” Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
i. Hourly Rates
Petitioners request compensation for Mr. Krakow in the amounts of $355.00 per hour for
work performed in 2010; $365.00 per hour for work performed in 2011; $375.00 per hour for
work performed in 2012; $385.00 per hour for work performed in 2013; $396.00 per hour for
work performed in 2014; $413.00 per hour for work performed in 2015; $425.00 per hour for
work performed in 2016; and $435.00 per hour for work performed in 2017. Pet. App. at 15. In
support of these rates, Mr. Krakow states that he has 37 years of experience practicing law, 14 of
which are in the Vaccine Program. Id. at 15-17. Mr. Krakow based his most hourly rate
increases on the Office of Special Masters’ 2015-2017 Fee Schedules, which specify hourly rate
ranges for attorneys based on the standards set forth in McCulloch v. Sec’y of Health & Human
Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).4
Counsel also requests paralegal rates for paralegal work performed by Mr. Krakow. Mr.
Krakow requests $125.00 per hour for paralegal work performed between 2008 and 2016. Pet.
App., Tab 2 at 16-17. He requests $140.00 per hour for paralegal work performed in 2017. Id.
The undersigned has evaluated Mr. Krakow’s requested attorney rates in many other
decisions regarding attorneys’ fees and costs and has awarded Mr. Krakow’s herein requested
attorney hourly rates from 2009 to 2016. Laderer v. Sec’y of Health & Human Servs., 09-97V,
2016 WL 3044838 (Fed. Cl. Spec. Mstr. Apr. 20, 2016). Moreover, the undersigned finds the
hourly rate requested for work performed in 2008 reasonable in light of the analysis set forth in
Laderer.5 With respect to the requested rate of $435.00 per hour for work performed in 2017, the
undersigned agrees with the analysis of Special Master Millman in J.O. v. Sec’y of Health &
Human Servs., 14-946V, 2017 WL 3165641 (Fed. Cl. Spec. Mstr. June 27, 2017), finding Mr.
Krakow entitled to this rate, and the undersigned awards $435.00 per hour for Mr. Krakow’s
work in 2017.
4
The 2015-2016 Hourly Rate Fee Schedule can be accessed at:
www.uscfc.uscourts.gov/sites/.../Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017
Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
5
The undersigned noted in Laderer that historically, Mr. Krakow and respondent negotiated and
filed stipulations for attorneys’ fees awards. The undersigned was unable to find any fee
decisions discussing Mr. Krakow’s hourly rate prior to 2014. 2016 WL 3044838, at *3.
3
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With respect to the requested paralegal rates, in Laderer, the undersigned stated that a
reasonable paralegal hourly rate for Mr. Krakow’s work was $125.00 per hour for work
performed between 2009 and 2016. 2016 WL 3044838, at *3. In this case, Mr. Krakow requests
a rate of $125.00 per hour for paralegal work performed between 2008 and 2016, and he requests
a rate of $140.00 per hour for paralegal work performed in 2017. Pet. App. at 17. Several other
special masters have raised Mr. Krakow’s paralegal rate to $140.00 per hour in 2017, and the
undersigned follows the reasoning set forth in those cases and awards a paralegal rate of $140.00
per hour in 2017. See Webb v. Sec’y of Health & Human Servs., 15-1387V, 2017 WL
22009902 (Fed. Cl. Spec. Mstr. Apr. 24, 2017) (Special Master Sanders); J.O., 2017 WL
3165641 (Special Master Millman).
ii. Reduction of Billable Hours
While the undersigned agrees that petitioners are entitled to an award of attorneys’ fees, a
reduction in the number of hours billed by Mr. Krakow is appropriate for four reasons. First,
much of the time that Mr. Krakow billed is duplicative with the time billed by Mr. John
McHugh, the lead counsel for the J.M. et al. omnibus. Second, counsel requests compensation
for multiple hours of administrative work, including filing documents, scheduling status
conferences, and organizing files. Third, petitioners’ counsel billed excessive time for travel that
was not related to the hearing in the case. Finally, counsel billed for time spent attempting to
gain access to the Vaccine Safety Datalink (“VSD”), despite the fact that two earlier motions for
access to the VSD were denied.
For all of these reasons, each of which is explained in further detail below, the
undersigned reduces the number of billable hours for which petitioners’ counsel is entitled to
compensation by 20 percent, or $17,515.216
1. Duplicative Billing with Work Performed by Co-Counsel
As explained by Mr. McHugh in his motion for attorneys’ fees and costs in the J.M. et al.
case, Mr. McHugh acted as lead counsel for petitioners in the omnibus case. 2018 WL 1514433.
Mr. Krakow described his work in the omnibus case as “co-counsel to the lead counsel, John F.
McHugh.” Pet. App. at 2. Mr. Krakow further explained that much of the work he performed in
the case from 2012 forward was split between this case and the P.R. et al. (10-96V) case, which
was also part of the J.M. et al. omnibus, “because counsel was working on tasks common to both
cases.” Id. at 5. Additionally, Mr. Krakow stated that he “participated in all aspects of the
proceeding,” including the hearings that were held in March and May 2016. Id. at 2.
6
In her decision awarding Mr. McHugh interim attorneys’ fees and costs, the undersigned
reduced Mr. McHugh’s requested fees from $465,060.00 to $305,492.75, resulting in an
approximately 39 percent cut. See J.M. et al. v Sec’y of Health & Human Servs., 02-10V, 2016
WL 720969. In the decision awarding final fees and costs, the undersigned reduced Mr.
McHugh’s fees from the requested $343,231.80 to $202,993.80, a reduction of over 40 percent.
Mr. McHugh did not file a motion for review of either of those decisions. J.M. et al. v. Sec’y of
Health & Human Servs., 02-10V, 2018 WL 1514433 (Fed. Cl. Spec. Mstr. Feb. 13, 2018); see
also Raymo v. Sec’y of Health & Human Servs., 11-654V, 2016 WL 7212323 (Fed Cl. Spec.
Mstr. Nov. 2, 2016); aff’d 129 Fed. Cl. 691 (Fed. Cl. Dec. 14, 2016) (Judge Lettow upheld the
undersigned’s decision reducing counsel’s fee request by 48%).
4
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Due to the nature of Mr. Krakow’s work as co-counsel, the undersigned finds that much
of the work in performed by Mr. Krakow in this case is duplicative of the work performed by
Mr. McHugh in the J.M. et al. omnibus. For example, Mr. Krakow billed numerous hours in this
case to review scheduling orders, medical literature, and the expert reports filed by both
petitioners’ and respondent’s experts.7 However, Mr. McHugh, as lead counsel, also billed time
in the J.M. et al. case for reviewing all of the same articles, expert reports, and scheduling orders.
Petitioners have not provided a sufficient explanation as to why it was necessary for Mr. Krakow
to extensively review medical articles, orders, and other documents in the omnibus, in addition to
the time billed by MR. McHugh for extensive time spent adjudicating the cases.8 The
undersigned does not intend to discourage petitioners’ counsel from working with other counsel.
However, in this case, the amount of duplicative entries is particularly concerning, especially in
light of Mr. Krakow’s concession that Mr. McHugh acted as lead counsel in the case.
The undersigned has previously found it reasonable to reduce attorneys’ fees awards due
to duplicative billing. See Lord v. Sec’y of Health & Human Servs., No. 12-255V, 2016 WL
3960445 (Fed. Cl. Spec. Mstr. June 30, 2016); Ericzon v. Sec’y of Health & Human Servs., No.
10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016); Sexton v. Sec’y of Health &
Human Servs., No. 99-453V, 2015 WL 7717209 (Fed. Cl. Spec. Mstr. Nov. 9, 2015); J.M. et al.,
2016 WL 720969; Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 214-15 (2009)
(affirming the special master’s reduction of fees for overstaffing where three attorneys from two
different firms worked on a case together).
2. Excessive Communication with Co-Counsel
The undersigned further reduces petitioners’ fee award for the excessive number of hours
billed by Mr. Krakow to communicate with co-counsel, Mr. McHugh, and petitioners’ expert,
Dr. Deisher. Mr. Krakow billed approximately 20 hours, totaling nearly $10,000.00, to discuss
the case with lead counsel, John McHugh, as well as with other omnibus attorneys.9 The
undersigned finds these entries excessive and duplicative, as Mr. McHugh’s application for
attorneys’ fees in the J.M. et al. case was similarly replete with entries for communicating with
7
Many of Mr. Krakow’s billing entries are in some way duplicative of those of Mr. McHugh. For
example, on June 24, 2015, Mr. Krakow billed one hour of time to review Dr. Deisher’s expert
reports from the J.M. et al. case. Pet. App., Tab 2 at 23. On June 26 and 30, 2015, he billed time
to review pending orders in the J.M. et al. cases, and in August 2015, there are multiple billing
entries for reviewing Dr. Deisher’s expert reports and other papers filed in the J.M. et al. omnibus.
See generally id. at 24-28. Similarly, in January 2016, Mr. Krakow billed at least 6.75 hours to
review expert reports and other exhibits filed in J.M. et al. Id. at 33-35. Throughout the duration
of the case, Mr. Krakow billed time for reviewing medical literature, expert reports in the J.M. et
al. case filed by both petitioners and respondent, scheduling orders, and other documents, all of
which McHugh, as lead counsel, would have also reviewed.
8
In total, the undersigned awarded petitioners’ lead counsel, John McHugh, $508,936.55 in
attorneys’ fees for the prosecution of the J.M. et al. omnibus cases. See J.M. et al., 2018 WL
1514433; J.M. et al., 2016 WL 720969.
9
This estimate does not include the duplicative time Mr. Krakow billed for working with Mr.
McHugh and/or Dr. Deisher to prepare for the trial.
5
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Mr. Krakow and other co-counsel. The undersigned has previously reduced a petitioner’s fee
application when counsel bills for meetings between each other, as such billing is excessive and
duplicative. Bondi v. Sec’y of Health & Human Servs., 12-476V, 2017 WL 1046526 (Fed. Cl.
Spec. Mstr. Feb. 23, 2017) (reducing counsel’s invoice for three law firm partners each billing
time for case meetings and emails with each other). Petitioners have not provided a sufficient
explanation of why it was necessary for Mr. Krakow to spend over 20 hours discussing the case
with Mr. McHugh, and the undersigned finds this communication to be particularly excessive.
Other special masters as well as the undersigned have reduced fee awards for excessive
and duplicative intraoffice communication. See Lord, 2016 WL 3960445, at *7; Ericzon, 2016
WL 447770, at *4; Austin v. Sec’y of Health & Human Servs., No. 10-362V, 2013 WL 659574,
at *14 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (Special Master Vowell deducted fees for excessive
intra-office communication in a case where seven attorneys at CHCC billed for attending
conferences and drafting memoranda about the case); Soto v. Sec’y of Health & Human Servs.,
No. 09-897V, 2011 WL 2269423, at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011) (Special Master
Millman reduced CHCC’s fees for intra-office communications and meetings); Carcamo v. Sec’
y of Health & Human Servs., No. 97-483V, 2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May
20, 2011) (Special Master Millman reduced fees when two attorneys at the Law Offices of Dale
K. Galipo billed for the same meetings with a client).
3. Administrative Work
The undersigned also finds it reasonable to reduce petitioners’ fee award due to the
excessive amount of administrative work billed by counsel. Mr. Krakow billed more than 60
hours of attorney and paralegal time between 2010 and 2017, totaling over $10,000.00, for
performing administrative tasks such as setting up meetings, organizing exhibits, bates stamping
records, filing records, burning discs, mailing documents, completing case inventory, receiving
docket notices, organizing files, and updating calendars.10 It is well established that billing for
10
Mr. Krakow’s billing records for both his attorney and paralegal time contain numerous entries
for time that is best characterized as administrative in nature. Some administrative time was
billed along with other attorney or paralegal work. The following is a non-exhaustive list of
dates on which Mr. Krakow billed at an attorney or paralegal rate for performing administrative
work: February 9, 2010; February 10, 2010; February 15-16, 2010; February 22-23, 2010;
February 24-25, 2010; April 13, 2010; April 20, 2010; April 23, 2010; May 24, 2010; June 4,
2010; October 26, 2010; October 28, 2010; February 6, 2011; October 21, 2011; December 6,
2011; December 28, 2011; February 2, 2012; February 10, 2012; April 30, 2012; September 24,
2012; October 17, 2012; November 3, 2012; November 27, 2012; December 31, 2012; January
28, 2013; March 27, 2013; July 10, 2013; August 19, 2013; August 27, 2013; January 6, 2014;
January 17, 2014; January 19, 2014; March 2, 2014; April 20, 2014; July 27, 2014; August 20,
2014; November 24, 2014; December 3, 2014; January 11, 2015; January 16, 2015; February 9,
2015; March 1, 2015; March 13, 2015; April 5, 2015; May 12-13, 2015; May 18, 2015; June 17-
18, 2015; June 24, 2015; July 22, 2015; July 27, 2015; August 18, 2015; August 24-27, 2015;
September 11, 2015; October 19-20, 2015; October 30, 2015; November 17, 2015; November
19, 2015; December 2, 2015; December 17, 2015; December 21-22, 2015; January 6, 2016;
January 8, 2016; January 11-16, 2016; January 18-20, 2016; January 22, 2016; February 11,
2016; February 18, 2016; February 24-26, 2016; February 29, 2016; March 1, 2016; March 3-4,
2016; March 8, 2016; March 10, 2016; March 12, 2016; March 14, 2016; March 16-17, 2016;
March 28, 2016; April 15, 2016; May 4, 2016; July 26, 2016; and October 5, 2017. See Pet.
6
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clerical and other secretarial work is not permitted 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 attorneys’ fee rates”). Other attorneys participating in the J.M. et al. omnibus were
previously warned that administrative time would not be compensated, and the undersigned
reduces petitioners’ fee application for administrative time. J.M. et al., 2016 WL 720969, at *5
(reducing Mr. McHugh’s time for administrative work).
4. Travel Time
The undersigned also finds it reasonable to reduce Mr. Krakow’s fee award for the five
hours of time he billed for traveling from New York to Baltimore, Maryland in July 2014. Pet.
App., Tab 2 at 18. This travel was unrelated to travel for the hearings held in March and May
2016. In the fee application for the P.R. et al. case, Mr. Krakow stated that the purpose of the
travel was for a “meeting of petitioners’ counsel for [J.M. et al.] omnibus.” Petitioners have not
provided any explanation as to why it was necessary for such a meeting to take place in person,
rather than over the phone. Indeed, petitioners’ invoice otherwise reflects that counsel
communicated over the phone at length with co-counsel and experts. The undersigned thus finds
the time billed by Mr. Krakow for traveling to Baltimore, Maryland, in July 2014, travel which
was unrelated to the hearing, to be unreasonable and excessive.
5. Time Spent Working on Motions to Access the Vaccine
Safety Datalink and the SEED Database
As was discussed in J.M. et al., 2018 WL 1514433, at *5, the undersigned finds that
petitioner’s fee application should be further reduced for the time that counsel spent working on
additional motions to compel access to the Vaccine Safety Datalink (“VSD”), as well as the time
counsel billed in May 2016 for a motion to gain access to information contained in the Study to
Explore Early Development (“SEED”) database. Mr. Krakow billed over four and a half hours
of attorney time and over 2 hours of paralegal time in 2015 related to preparing and filing a third
motion to access the VSD,11 and he billed nearly hours of time in May and July of 2016 related
to a motion to access information contained in the SEED database.12
Petitioners in the J.M. et al. case made several attempts throughout the life of the
omnibus cases to access information in the VSD and other government databases. Mr. McHugh
filed motions to compel access to the VSD and motions to compel documents from other
government sources in February and March 2012. In an extensive and well-reasoned Order
issued on June 12, 2013, then-presiding Chief Special Master Patricia Campbell-Smith denied
App., Tab 2.
11
These entries include but are not limited to the following dates: September 2, 2015; September
4, 2015; September 8, 2015; September 11, 2015; September 12, 2015; September 30, 2015;
October 1, 2015; October 15, 2015; October 23, 2015; and October 26, 2015. See Pet. App., Tab
2 at 28-30.
12
These entries include but are not limited to the following dates: May 1-4, 2016; July 5, 2016;
and July 7, 2016. See Pet. App., Tab 2 at 48-50.
7
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petitioners’ motions to compel access to the VSD. J.M. et al. v. Sec’y of Health & Human
Servs., No. 02-10V, 2013 WL 3368236 (Fed. Cl. Spec. Mstr. June 12, 2013). Shortly thereafter,
the case was transferred to Special Master George Hastings for further adjudication. On July 12,
2013, the omnibus petitioners filed a motion for reconsideration of Chief Special Master
Campbell-Smith’s Order, and Special Master Hastings denied petitioners’ motion for
reconsideration in a second well-reasoned and detailed order. J.M. et al. v. Sec’y of Health &
Human Servs., No. 02-10V, 2013 WL6038670 (Fed. Cl. Spec. Mstr. July 12, 2013).
Despite two extensive and detailed orders denying the omnibus petitioners access to the
VSD, petitioners filed a third motion to compel access to the VSD in the J.M. et al. case on
October 1, 2015, for which Mr. Krakow has billed time in this case. The undersigned denied the
motion to compel on August 30, 2016. J.M. et al. v. Sec’y of Health & Human Servs., 02-10V,
2016 WL 5362878 (Fed. Cl. Spec. Mstr. Aug. 30, 2016).13 Similarly, on May 5, 2016,
petitioners filed a motion to subpoena a government employee to “testify as to the composition
and research use of data collected by … SEED.” Pet. Mot. dated May 5, 2016 (ECF No. 261) at
1. Petitioners further wished to subpoena Dr. William Thompson of the Centers for Disease
Control to testify regarding matters unrelated to the theory of causation in the case. See id.
Two extensive, detailed, and well-reasoned orders were issued denying petitioners’
motions for access to the VSD, and an explanation was provided as to why the Vaccine Program
could not give petitioners access to the information they sought to subpoena or otherwise
compel. The special masters adjudicating those motions also made clear that neither the
information contained in the VSD nor the SEED database was relevant to petitioners’ medical
theory of causation and was not needed to go forward with the omnibus. Thus, the undersigned
finds that the additional hours billed by Mr. Krakow, totaling nearly $5,000.00, for preparing
additional VSD motions and the motion to compel information from SEED, are unreasonable.
b. Costs
Petitioners request $10,332.44 in attorneys’ costs and $550.00 in petitioners’ out-of-
pocket costs, for a total of $10,882.44. Pet. App at 7; Pet. App., Tab 4 at 1. Like attorneys’ fees,
attorneys’ costs must also be reasonable. Sabella, 86 Fed. Cl. at 206. After carefully considering
petitioners’ application and for the reasons discussed below, the undersigned awards a total of
$7,847.84 in costs and $550.00 in petitioners’ costs.
i. Expert Costs for Dr. Deisher
Petitioners request a total of $5,000.01 to compensate Dr. Theresa Deisher for work she
performed in the case in 2015. Pet. App., Tab 5 at 1. Dr. Deisher billed 10 hours of work at a
rate of $500.00 per hour. Id. Dr. Deisher submitted an expert report in the case that was specific
to petitioner M.R. The undersigned thus compensates Dr. Deisher for the work that she
performed in preparing the expert report but finds that Dr. Deisher’s hourly rate requires
13
On May 11, 2017, petitioners made a fourth attempt to renew their motion for access to the
VSD during the rebuttal testimony for Dr. Deisher, which the undersigned denied from the
bench.
8
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adjustment to $300.00 per hour.14 The undersigned awards $3,000.00 for the work performed by
Dr. Deisher, reducing petitioners’ fee application by $2,000.01.
ii. Other Costs
In addition to expert fees, Mr. Krakow also requests reimbursement for other expenses
incurred during the hearings in March and May 2016, as well as incidental expenses during these
trips. Mr. Krakow also seeks reimbursement for a trip to Baltimore in July 2014 to meet with
experts and other co-counsel in the J.M. et al. omnibus. The undersigned reimburses Mr.
Krakow for all of his requested expenses, with the exception of the following items discussed
below.
Mr. Krakow requests reimbursement for costs related to traveling from his office in New
York, New York, to Baltimore, Maryland in July 2014. These costs include $231.00 in mileage
for driving from New York to Baltimore, $35.55 in highway tolls, $15.45 in meals, and $154.47
in hotel costs.15 Pet. App., Tab 2 at 57-58; Pet. App., Tab 3 at 15-16, 48-49. The undersigned
finds these costs unreasonable, as they were not related to the hearing in the omnibus case. The
undersigned similarly denied travel expenses for Mr. McHugh in the J.M. et al. omnibus when
the travel was not related to the hearings in the cases in March and May 2016 and when
petitioners did not otherwise provide an explanation of why such expenses were reasonable or
necessary. J.M. et al., 2018 WL 1514433, at *6. The undersigned thus reduces petitioners’ costs
by the $436.47 spent on the trip to Baltimore.
Additionally, Mr. Krakow requests reimbursement for office supplies, which the
undersigned finds unreasonable. Mr. Krakow requests $97.05 in reimbursement for office
supplies purchased at FedEx Office. Pet. App., Tab 3 at 38. As explained by the undersigned in
J.M. et al., 2018 WL 1514433, at *19, office supplies are considered overhead expenses and are
not billable to the Program. The undersigned thus reduces petitioners’ costs request by $48.52.16
iii. Petitioners’ Out-of-Pocket Costs
Petitioners’ out-of-pocket costs include payment of the filing fee and costs related to
postage and photocopying. Pet. App., Tab 4 at 1. The undersigned finds these costs reasonable
and reimburses them in full.
14
The undersigned has previously found that $300.00 per hour is a reasonable hourly rate for Dr.
Deisher’s work, and she will compensate Dr. Deisher at this rate. J.M. et al., 2018 WL 1514433,
at *9.
15
The total cost of Mr. Krakow’s trip to Baltimore was $872.94, which Mr. Krakow split
between this case and the S.O. et al. case, which was also part of the J.M. et al. omnibus. Thus,
the undersigned reduces Mr. Krakow’s application in this case for one half of this cost, or
$451.92.
16
Mr. Krakow split the total cost of the FedEx charges between this case and the S.O. et al. case,
which was also part of the J.M. et al. omnibus. Thus, the undersigned only reduces one half of
the total requested costs.
9
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II. Conclusion
For the reasons set forth above, the undersigned finds that petitioners are entitled to an
award of attorneys’ fees and costs. The amount of the award is compute as follows:
Total Fees and Costs Requested: $98,458.49
Attorneys’ Fees:
Total Requested: $87,576.05
20 % Reduction: ($17,515.21)
Total Awarded: $70,060.84
Total Attorneys’ Fees Awarded: $70,060.84
Costs:
Total Requested $10,332.44
Dr. Theresa Deisher: $5,000.01
Reductions ($2,000.01)
Other Costs
Reduction for travel ($436.47)
Reduction for office supplies ($48.52)
Petitioners’ Costs
Requested $550.00
Reductions ($0.00)
Awarded $550.00
Total Costs Awarded: $7,847.44
Accordingly, the Court awards:
(1) $77,908.28 in attorneys’ fees and costs, in the form of a check payable jointly to
petitioners and petitioners’ attorney, Mr. Robert Krakow; and
(2) $550.00 in petitioners’ costs, in the form of a check payable to petitioners.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
court shall enter judgment in accordance herewith.17
17
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party,
either separately or jointly, filing a notice renouncing the right to seek review.
10
Case 1:10-vv-00096-UNJ Document 112 Filed 04/05/18 Page 11 of 11
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
11