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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-549V
Filed: November 22, 2017
************************************ Special Master Sanders
DONNA RAMSAY, *
* Attorneys’ Fees and Costs; Reduced Travel
Petitioner, * Rate; Reduced Expert Rate.
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
************************************
Patricia Leigh O’Dell, Beasley, Allen, et al., Montgomery, AL, for Petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 30, 2011, Donna Ramsay (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34
(2012). Petitioner alleged that as a result of a series of human papillomavirus (“HPV”) vaccines
administered on March 19, 2008 and June 30, 2008, she suffered from a systemic variant of
Juvenile Rheumatoid Arthritis (“sJIA”). Petition at Preamble, ECF No. 1. On December 18,
1 This decision shall be posted 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). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.
1
2015, Special Master Hamilton-Fieldman issued a Ruling on Entitlement, finding that the above-
stated vaccinations caused-in-fact Petitioner’s sJIA. Ruling on Entitlement, ECF No. 67. That
same day, a Damages Order was issued. Order, ECF No. 68. On February 28, 2017, the
undersigned issued a Decision pursuant to Respondent’s Proffer. Decision, ECF No. 84.
On August 30, 2017, Petitioner filed an application for attorneys’ fees and costs.
Petitioner requested attorneys’ fees in the amount of $48,235.00 and attorneys’ costs in the
amount of $87,847.86. See Pet’r’s Mot. Att’ys’ Fees and Costs at 2, ECF No. 89. In his
response, Respondent indicated that “[t]o the extent the Special Master is treating [P]etitioner’s
request for attorneys’ fees and costs as a motion that requires a response from [R]espondent . . .
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 (Aug. 31, 2017), ECF No. 90. Respondent recommended
that the undersigned “exercise her discretion and determine a reasonable award for attorneys’
fees and costs.” Id. at 3. 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).
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. The petitioner bears the burden of providing adequate
evidence to prove that the requested hourly rate is reasonable. Id.2
a. Hourly Rates
Special Master Gowen determined the reasonable forum rate ranges for attorneys with
varying years of experience. 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). Pursuant to McCulloch, a forum attorney with
more than 20 years of experience may be awarded $350 to $425 per hour. Id. An attorney with
less than four years of experience, on the other hand, has a reasonable hourly rate between $150
and $225. Id.In the instant case, Petitioner requests $275.00 per hour for work performed by her
attorney, Ms. O’Dell, from 2011-2017. Ms. O’Dell has been practicing law since 1994. See
Leigh O’Dell, Beasley Allen Law Firm, http://www.beasleyallen.com/attorney/leigh-odell/ (last
visited November 22, 2017). Due to a break in practice between 1998 and 2005, Ms. O’Dell had
approximately ten years of legal experience at the time this case was filed. Id. Ms. O’Dell also
had little experience in the Vaccine Program at that time. The undersigned finds the requested
rate reasonable as it does not exceed the ranges in the fee schedules3 for attorneys with her level
of experience. Therefore, the undersigned awards Petitioner the requested rate for Ms. O’Dell.
Petitioner requested Ms. O’Dell’s full hourly rate of $275.00 for travel time in 2013.
ECF No. 89-2 at 3. On July 24, 2013, the billing entry states, “Travel to Fargo, ND to meet with
Dr. Gershwin.” Id. On August 3, 2013 and August 7, 2013, the billing entries state respectively,
“Travel to DCI” and “Return travel.” Id. Following Gruber, the undersigned will grant half the
attorney’s rate for traveling, where the attorney does not provide documentation that she
performed work while traveling. 91 Fed. Cl. 773, 791 (2010); see also Amani v. Sec’y of Health
& Human Servs., No. 14-150V, 2017 WL 772536, at *5 (Fed. Cl. Spec. Mstr. Jan. 31, 2017).
Therefore, for travel time in 2013, Ms. O’Dell’s hourly rate is reduced to $137.50. The total fee
reduction for 16.5 hours of travel time is $2,268.75.
b. Hours Expended
Petitioner requests compensation for 175.4 hours entered by Ms. O’Dell. ECF No. 89-2.
Petitioner submitted adequate billing logs listing the date, amount of time, individual, and the
nature of each task. Based on the lack of objection from Respondent and my review of
Petitioner’s motion, I find that the hours expended are reasonable and should be awarded in full.
3
The 2015-2016 Fee Schedule can be accessed at: http://www.uscfc.uscourts.gov/sites/default/
files/Attorneys-Forum-Rate-Fee-Schedule-2015-2016.pdf. The 2017 Fee Schedule can be
accessed at: http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-
Schedule-2017.pdf. The hourly rates contained within both schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323(Fed. Cl. Spec. Mstr. Sept. 1, 2015).
3
c. Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
$87,847.86 in attorneys’ costs. These costs are associated with telephone conferencing, online
research, printing, postage and shipping, filing fees, medical record fees, travel expenses, and
expert expenses. See generally ECF No. 89-3.
Petitioner requests $200 per hour for expert services provided by Vargas Vocational
Consulting, d/b/a Automated Environments, Inc. in 2016. See Pet’r Ex. C at 113, ECF No. 89-3;
see also Resp’t Proffer at 1, ECF No. 83 (stating that Maria Vargas, MS, CRC, CLP was
engaged by the Petitioner to provide an estimation of Petitioner’s future vaccine-injury related
claims). Although the undersigned finds this rate to be reasonable for the expert services
provided, the rate is also requested for time spent on administrative tasks. Pet’r Ex. C at 113,
116, ECF No. 89-3. In particular, a $200 hourly rate was charged for 1 hour “Research[ing]
flights to Mobile”; 0.6 hours “research[ing] and purchasing tickets”; 1 hour “coordinating
travel”; and 0.8 hours making “flight and car arrangements.” Pet’r Ex. C at 113, 116, ECF No.
89-3. These tasks total 3.4 hours of administrative work billed at an expert rate.
In the past, when attorneys have performed administrative tasks that are routinely done
by paralegals, such attorneys were awarded a reasonable paralegal hourly rate, rather than the
attorneys’ normal hourly rate. DiFazio v. Sec’y of Health & Human Servs., No. 09-530V, 2017
WL 2417322, at *4 (Fed. Cl. Spec. Mstr. May 10, 2017) (citing Scharfenberger v. Sec’y of
Health & Human Servs., No. 11-221V, 2015 WL 3526559, at *12 (Fed. Cl. Spec. Mstr. May 15,
2015)). Similar to an attorney, an expert’s particular knowledge and training does not assist in
the completion of administrative tasks such as arranging travel. The undersigned will reduce the
expert’s compensation for administrative tasks to a reasonable paralegal rate of $145 per hour.
This reduction in rate for 3.4 hours totals $187.
The undersigned finds that the remainder of the costs are reasonable.
II. Conclusion
Based on all of the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested $48,235.00
(Reduction to Ms. O’Dell’s Travel Rate in 2013) - $2,268.75
Total Attorneys’ Fees Awarded $45,966.25
Attorney’s Costs Requested $87,847.86
(Reduction to Expert’s Hourly Rate for Administrative Tasks) - $187.00
Attorneys’ Costs Awarded $ 87,660.86
4
Total Attorneys’ Fees and Costs Awarded $133,627.11
The undersigned has reviewed Petitioner’s counsel’s detailed records of time and
expenses incurred in this case, and they are reasonable with the above reductions. In accordance
with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is
entitled to attorneys’ fees and costs. Accordingly, the undersigned hereby awards the
following amount: $133,627.11, in the form of a check made payable jointly to Petitioner
and Petitioner’s counsel, Patricia Leigh O’Dell, of Beasley, Allen, et al.4 In the absence of a
motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter
judgment in accordance herewith.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for
legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or
collecting fees (including costs) that would be in addition to the amount awarded herein. See
generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
5