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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 27, 2016
* * * * * * * * * * * * * * *
OLIVIA MEYLOR, *
* No. 10-771V
Petitioner, *
* Special Master Hamilton-Fieldman
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Reasonable Amount Requested.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Mark Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for Petitioner.
Lara Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
On November 8, 2010, Olivia Meylor (“Petitioner”) petitioned for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).
Petitioner alleged that the administration of the Human Papillomavirus (“Gardasil” or “HPV”)
vaccines on November 15, 2007 and August 1, 2008, caused her to develop Premature Ovarian
Insufficiency (“POI”). Petition at Preamble, filed November 8, 2010. On May 16, 2016, the
undersigned issued a decision dismissing the case, finding that Petitioner’s claim is time-barred.
On October 13, 2016, Petitioner filed an application for final attorneys’ fees and costs. 2
Petitioner requested compensation in the amount of $17,651.50 for attorneys’ fees and costs, and
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the purposes espoused in the E-Government Act of 2002. See 44
U.S.C. § 3501 (2012). 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).
2
A decision awarding interim fees and costs was filed March 24, 2014. Meylor v. Sec’y of HHS,
No. 10-771V, 2014 WL 1413436 (Fed. Cl. Spec. Mstr. Mar. 24, 2014). This decision awards
fees and costs incurred after that decision was filed.
1
$500.00 for Petitioner’s costs. Petitioner’s Application at 4, filed Oct. 13, 2016. Respondent
filed a response to Petitioner’s request on October 25, 2016, stating that based on a survey of fee
awards in similar cases and in her experience litigating Vaccine Act claims, a reasonable amount
for fees and costs in this case would fall between $7,000.00 and $12,000.00. Response at 3, filed
Oct. 25, 2016. Respondent also specifically objected to any award of fees and costs in
connection with the appeal filed in the Federal Circuit on August 3, 2016. Respondent stated
that “Because [P]etitioner failed to request review in the Court of Federal Claims, this appeal
was plainly improper and was dismissed by the Federal Circuit for lack of jurisdiction.” Id., at 3
n.2. Therefore, Respondent argued, “Counsel should not be awarded fees for this error.” Id.Furthermore, Respondent objected to the “duplicative nature of the billing not only between this
case and the Madelyne Meylor case, but between this case and the other primary ovarian
insufficiency cases that presented similar statute of limitations problems.” Id. Petitioner filed a
reply on November 2, 2016, arguing that she should be awarded fees and costs associated with
the appeal filed in the Federal Circuit on August 3, 2016, and objected to the claim that there
were “duplicative” entries. Reply at 1-2.
First, the undersigned agrees that the attorney’s hourly rate is reasonable. Attorneys’ fees
and costs are specific to each case and cannot be generalized as Respondent argues. Respondent
provided no basis or explanation for how she arrived at her proposed range for this specific case.
The undersigned also finds, however, that Petitioner is not entitled to fees and costs associated
with her appeal. Petitioner did not have recourse to file directly with the Federal Circuit. A
party must first seek review by a judge of the Court of Federal Claims before appealing to the
Court of Appeals for the Federal Circuit. See Mahaffey v. Sec’y of HHS, 368 F. 3d 1378 (Fed.
Cir. 2004); Grimes v. Sec’y of HHS, 988 F.2d 1196 (Fed. Cir. 1993).
Lastly, the undersigned agrees in part with Respondent’s objection to duplicative fees.
The research and review hours were already awarded in the lead case Culligan. 3 However, it
was necessary to assess the instant case, with its own individual facts, for appropriateness as an
onset case. Therefore, the fee entries duplicative of those made in the Madelyne Meylor case, 4
and/or those that were already awarded in Culligan, are reduced to .50 for every 1.00 hour of
time billed. Since only two entries were specifically objected to by Respondent, only 0.9 hours
billed will be disallowed. Thus, Petitioner’s request is reduced by $905 for fees and costs
associated with the incorrectly filed appeal, and $270 for duplicative fees. The total amount
awarded to Petitioner’s counsel shall be $16,976.50.
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and expert costs in this case and finds that Petitioner’s request for
fees and costs, other than those reductions delineated above, is reasonable. Accordingly, the
3
A decision awarding interim fees and costs in the lead case was filed March 31, 2016. Culligan
v. Sec’y of HHS, No. 14-318V, 2016 WL 1622967 (Fed. Cl. Spec. Mstr. Mar. 31, 2016).
4
See Meylor v. Sec’y of HHS, No. 10-770V, Petitioner’s Final Application for an Award of
Attorney’s Fees and Costs, Attachment 1, Affidavit of Attorney Mark L. Krueger, filed October
13, 2016.
2
undersigned hereby awards the amount of $16,976.50, in the form of a check made payable
jointly to Petitioner and Petitioner’s counsel, Mark L. Krueger, of Krueger & Hernandez,
SC for attorneys’ fees and costs. 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/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
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).
3