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

In the United States Court of Federal
Claims
OFFICE OF SPECIAL MASTERS
**********************
DENNIS PICKENS, *
* No. 17-187V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 15, 2021
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * reasonable rate for expert
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On February 19, 2021, petitioner Dennis Pickens moved for final attorneys’
fees and costs. He is awarded $40,654.82.
* * *
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
On February 8, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the measles-mumps-rubella vaccination he received on
February 9, 2015, caused him to suffer subacute inflammatory demyelinating
polyneuropathy. Petition at 1. A fact hearing on June 11, 2019. On September 20,
2019, the undersigned issued his findings of fact and conclusions of law.
Thereafter, additional medical records and expert reports were filed by the parties
and the issues of the case were briefed. On January 22, 2021, the undersigned
issued his decision denying compensation. 2021 WL 615218 (Fed. Cl. Spec. Mstr.
Jan. 22, 2021).
Concurrently, following the fact hearing petitioner filed a motion for interim
attorneys’ fees and costs on July 15, 2019, which was granted-in-part on
September 5, 2019. The interim fees decision awarded most of the amount
requested by petitioner but made reductions for the following reasons: 1) some of
the hourly rates requested for counsel were higher than what they had previously
been awarded in other Vaccine Program cases; 2) clerical tasks were billed and
travel for counsel was not billed at half of the standard rate; 3) some of petitioner’s
travel costs were unreasonable; 4) petitioner had included an expert invoice which
was partially illegible; 5) petitioner had failed to include a receipt for parking.
On September 6, 2019, petitioner filed a motion for reconsideration, which
was granted-in-part with respect to the parking receipt and denied-in-part with
respect to the remaining issues, and an updated fees decision was filed on
September 20, 2019. 2019 WL 5260367 (Fed. Cl. Spec. Mstr. Sep. 20, 2019).
Petitioner filed a motion for review on October 2, 2019. On January 9, 2020, the
Court of Federal Claims denied petitioner’s motion for review and judgment was
entered in accordance with the September 20, 2019 interim fees decision. 2020 WL
414442 (Fed. Cl. 2020).
On September 19, 2021, petitioner filed a motion for final attorneys’ fees
and costs (“Fees App.”). Petitioner requests attorneys’ fees of $39,636.50 and
attorneys’ costs of $5,737.07 for a total request of $45,373.57. Fees App. at 8.2
Pursuant to General Order No. 9, petitioner warrants that he has not personally
incurred any costs related to the prosecution of his case. Id. On February 23, 2021,
respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
2
As previously noted, petitioner was awarded interim attorneys’ fees and costs in the
amount of $56,238.28.
2
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id at 2. Additionally, he recommends “that the Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful, the matter required a fact hearing
and a briefing of the legal issues and the undersigned finds that good faith and
reasonable basis existed throughout the matter. Respondent also has not
challenged the reasonable basis of the claim. A final award of reasonable
attorneys’ fees and costs is therefore proper in this case. See Greenlaw v. United
States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of matters the parties
present.”).
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
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A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
during this period was done outside of the District of Columbia.
Petitioner requests the following hourly rates for the work of his counsel at
Van Cott & Talamante, PLLC: for Mr. Andrew Downing, $385.00 per hour for all
work performed from 2019-2020; and for Ms. Courtney Van Cott, $205.00 per
hour for work performed in 2019, and $275.00 per hour for work performed in
2020. The undersigned has previously found these rates to be reasonable for the
work of Mr. Downing and Ms. Van Cott, and they are reasonable for work in the
instant case as well. Bourche v. Sec’y of Health & Human Servs., No. 15-232V,
2020 WL 6582180 (Fed. Cl. Spec. Mstr. Oct. 16, 2020).
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
Upon review of the submitted billing records, the undersigned finds most
time billed to be reasonable. The timesheet entries are sufficiently detailed such
that the undersigned can assess their reasonableness. However, two issues
necessitate a reduction. First, paralegals duplicated work Ms. Van Cott already
performed by reviewing routine court orders. Similarly, paralegals charged for
administrative tasks such as filing documents and reviewing and paying invoices.
These issues have previously been noted concerning Van Cott & Talamante
paralegals. Second Fees Decision, 2018 WL 7046894, at *3; Sheridan v. Sec’y of
Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl. Spec.
Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-538V,
2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Given these
previous decisions, Mr. Downing is advised that more significant reductions may
follow if his firm does not change its billing practice.
4
The second issue concerns time expended on the motion for review of the
undersigned’s interim fees decision. The billing records indicate that 5.4 hours
were expended between Mr. Downing and Ms. Van Cott on the drafting of the
motion for reconsideration, and an additional 14.3 hours were billed drafting the
motion for review. Upon review, these two documents are substantially similar,
particularly in their substantive arguments.
For example, petitioner’s motion for reconsideration is essentially seven
pages long. Petitioner’s motion for review is two pages and the accompanying
memorandum in support is fifteen (excluding caption and signature blocks). Of
those fifteen pages, the first three are the cover page and table of contents and
authorities, the next three are substantially similar to the two-page motion
(although slightly more robust) including a section on the standard of review, and
the final nine pages are substantially similar (again with some minor additions) to
the seven pages of the motion for reconsideration, with entire paragraphs copied
and pasted from the first document to the second. These additions do not, in the
undersigned’s experience, amount to an additional 14.3 hours of attorney work to
add to an existing filing.3 A reduction of hours when substantive portions of a
motion appear copied and pasted from a previous filing is not unreasonable or an
abuse of discretion. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729-730 (2011).
Upon review, the undersigned finds that a $3,500.00 reduction is reasonable
to offset the noted issues. Accordingly, petitioner is awarded final attorneys’ fees
of $36,136.50.
C. Costs Incurred
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), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$5,737.07 in costs. Most of this amount is for work performed by Dr. Robert
Friedman. The remainder is comprised of acquisition of medical records, postage,
and legal research charges, of which petitioner has provided adequate supporting
documentation.
Dr. Friedman has billed a total of 9.75 hours at an hourly rate of $550.00 per
hour. Petitioner argues this rate is reasonable because Dr. Friedman’s “credentials
3
For example, paralegals can create a table of citations and a table of authorities.
5
clearly warrant such a rate, and Dr. Friedman has been compensated at this rate in
the Program in other cases.” Fees App. at 4. However, the cases cited by petitioner
as past examples of Dr. Friedman receiving compensation at $550.00 per hour do
not contain any reasoned analysis of the hourly rate or even mention Dr. Friedman
by name. Thus, these cases hold little, if any, persuasive value.
Dr. Friedman’s credentials are set out in his curriculum vitae. Dr. Friedman
is board certified in neurology, pain medicine, and neuromuscular medicine.
Exhibit 46. However, Dr. Friedman’s curriculum vitae does not list any academic
positions and he appears to have written only one article published in a peer-
reviewed journal. Dr. Friedman does not have any specialized knowledge in
immunology, and this deficit contributed to not accepting opinions regarding the
theory and the timing espoused in his expert reports as set forth in the decision
denying compensation. 2021 WL 615281 at *7-8.
The undersigned has considered the necessary factors in determining a
reasonable hourly rate for an expert witness in the Vaccine Program. See Abbott v.
Sec’y of Health & Human Servs., No. 14-907V, 2020 WL 8766524 (Fed. Cl. Spec.
Mstr. Dec. 4, 2020) (finding a board-certified neurologist with similar credentials
warranted $400 per hour for work performed in 2015-2018). Based upon the
foregoing and the quality of Dr. Friedman’s work, the undersigned finds it
reasonable to reimburse his time at $425.00 per hour. A reasonable amount for Dr.
Friedman’s work is therefore $4,212.20 (inclusive of the medical articles
purchased by Dr. Friedman). Petitioner is therefore awarded final costs of
$4,518.32.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $40,654.82 (representing
$36,136.50 in attorneys’ fees and $4,518.32 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and his attorney, Mr. Andrew
Downing.
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
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
6
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
7