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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-413V
(not to be published)
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CHRISTOPHER STEPHEN FENNELL, *
* Special Master Corcoran
*
Petitioner, * Filed: February 13, 2018
*
v. * Decision; Attorney’s Fees and Costs;
* Influenza (“flu”) Vaccine; Acute
SECRETARY OF HEALTH * Demyelinating Encephalomyelitis
AND HUMAN SERVICES, * (“ADEM”).
*
Respondent. *
*
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Caryn Suzanne Fennell, Caryn S. Fennell, P.C., Woodstock, GA, for Petitioner.
Glenn Alexander MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent.
FINAL ATTORNEY’S FEES AND COSTS DECISION1
On April 1, 2016, Christopher Stephen Fennell filed a petition seeking compensation under
the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that
the Influenza (“flu”) vaccine he received on September 24, 2014, caused him to develop Acute
Demyelinating Encephalomyelitis (“ADEM”), neuropathy, and hearing loss. Petition (ECF No. 1)
(“Pet.”) at 1. After the filing of the Statement of Completion, on September 29, 2016 (ECF No.
11), Respondent entered a Stipulation for Award on July 18, 2017, in the amount of $185,000.00
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s 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 object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen 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 Decision in its present form will be available.
Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
(ECF No. 21). I entered a Decision approving the Stipulation that same day. See Decision, dated
July 18, 2017 (ECF No. 24).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated January
24, 2018. See generally Motion for Attorney Fees (“Fees App.”) (ECF No. 32); see also
Supplement to Attorney Fees Motion (“Supp. Mot.”), dated February 9, 2018 (ECF No. 34).
Petitioner requests reimbursement of $21,408.15 in total (representing $19,966.64 in fees and
$1,441.51 in costs). Id.
For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding
attorney’s fees in the total amount of $21,930.01 (representing $20,488.50 in attorney fees and
$1,441.51 in costs).
Procedural History and Fee Request
This action has been pending nearly two years. Pet. at 1. Following the filing of the Petition
in early April 2016, the case proceeded in a timely manner, with Petitioner filing medical records
from April through August 2016. See ECF Nos. 1, 9. Thereafter, the parties filed the Statement of
Completion on September 29, 2016 (ECF No. 11). Following settlement negotiations, Respondent
entered a Stipulation for Award, and I approved the Stipulation that same day.
Petitioner filed the pending fees application on January 24, 2018 (ECF No. 32). In it,
Petitioner specifically requests that his counsel, Caryn Fennell of Caryn Fennell, P.C., in
Woodstock, Georgia, be compensated at a rate of $350 per hour for 78.5 hours of work performed
in 2016-2017. Fees App. at 9, 11. Throughout that time period, the majority of the week performed
included reviewing medical records, participating in settlement negotiations, and communicating
with Petitioner. See generally Fees App. Petitioner does not request paralegal fees associated with
this matter. Id.
Furthermore, Petitioner indicated in the fee application that counsel reduced her overall fee
request (which based on the 78.5 hours billed, would be $27,632.00) by over 25% given her
“identified learning curve” in the Vaccine Program. Id. at 1. In total, Petitioner requests that his
counsel be compensated for $21,408.15 (representing $19,966.64 in fees and $1,441.51 in costs).3
3
On February 9, 2018, Petitioner supplemented the record with additional documentation needed to analyze her fee
award (specifically, Petitioner submitted receipts evidencing her requested costs). See generally Supp. Motion. In the
supplemental filing, Petitioner also reduced her costs by $527.85 (representing a total costs reduction from $1,969.36
to $1,441.51). Id. at 1-2. This resulted in a reduction of her total fee request from $21,936.00 to $21,408.15. Id. at 2.
2
Petitioner has not represented that he incurred any other personal costs related to this matter.4
Respondent reacted to the fees request on January 31, 2018, indicating that he was satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this case, but
deferring to my discretion in determining the amount to be awarded. ECF No. 33 at 2-3.
Analysis
I. Relevant Law Governing Attorney’s Fees
Vaccine Program petitioners who receive compensation for their injuries are by statute
entitled to an award of “reasonable” attorney’s fees and costs. Section 15(e)(1). To this end, special
masters have discretion in determining what a reasonable fees award is, and may reduce hours sua
sponte, apart from objections raised by Respondent and without providing a petitioner notice and
opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09
(2009).
Determining the appropriate amount of a fees to award is a two-part process. The first part
involves application of the lodestar method – “multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888
(1984)). The second part involves adjusting the lodestar calculation up or down. Avera, 515 F.3d
at 1348.
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate on the forum in which the relevant court sits (Washington, DC, for Vaccine Act
cases), except where an attorney’s work was not performed in the forum and there is a substantial
difference in rates (the Davis exception). Avera, 515 F.3d at 1348 (Fed. Cir. 2008, citing Davis
Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169
F.3d 755, 758 (D.C. Cir. 1999)). As the Federal Circuit stated in Avera, inclusion of the Davis
exception ensures against a “windfall” – meaning paying a lawyer in a rural or less expensive
locale more than she would otherwise earn, simply because she is litigating a case in a court of
national jurisdiction. Avera, 515 F.3d at 1349. McCulloch established the hourly rate ranges for
attorneys of different levels of experience who are entitled to the forum rate. See McCulloch v.
4
Petitioner did not file a General Order No. 9 Statement in connection with his fee application (although he
erroneously titled it as a “General Order No. 9 Statement”). I therefore deem Petitioner to have waived any additional
costs not otherwise requested herein.
3
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr.
Sept. 1, 2015).
After the hourly rate is determined, the reasonableness of the total hours expended must be
determined. Sabella, 86 Fed. Cl. at 205-06. This inquiry mandates consideration of the work
performed on the matter, the skill and experience of the attorneys involved, and whether any waste
or duplication of effort is evident. Hensley v. Eckerhart, 461 U.S. 424, 437(1983).
II. Calculation of Fee Award
With all of the above in mind, I turn to Petitioner’s request for a rate of $350 per hour for
Ms. Fennell for her work performed in 2016-2017. As established in McCulloch, an hourly rate of
$350 is reserved for those attorneys who practice in forum and who possess roughly ten years of
experience of relevant experience. See McCulloch, 2015 WL 5634323, at *21. Ms. Fennell
practices in Woodstock, Georgia, a suburb of Atlanta. Although Petitioner has not specifically
argued that Woodstock, Georgia is an in-forum locale, Petitioner does request forum rates. See
Fees App. at 9, 11. For support of the reasonable rate request, counsel states that she conferred
with the Court of Claims Bar Association, and determined that attorneys in the Court typically
charge between $350-$450 per hour. See Ex. A to Fees App. (Ex. 32) at 7. She also indicated that
her rate was consistent with the rate charged in her locale. Id. at 5. However, these statements
made by Petitioner are not entitled to significant weight in determining the appropriateness of
awarding forum rates to Ms. Fennell, because they do not evidence rates paid to Atlanta-area
lawyers for work comparable to Vaccine Program work. See Rivera v. Sec’y of Health & Human
Servs., No. 15-487V, 2017 WL 2460690, at *3 (Fed. Cl. Spec. Mstr. Apr. 20, 2017).
Regardless, I find that Ms. Fennell is entitled to forum rates. Attorneys in Atlanta have
been consistently awarded McCulloch forum rates in the Program. See, e.g., Means v. Sec’y of
Health & Human Servs., No. 12-740V, 2017 WL 2856411, at *1 (Fed. Cl. Spec. Mstr. June 5,
2017). In addition, it is well settled in the Vaccine Program that suburb locales can be considered
equivalent to an in-forum locale where the suburb rates are not significantly disproportionate to
the relevant urban area. See Echevarria v. Sec’y of Health & Human Servs., No. 15-100V, 2016
WL 6872975, at *3 (Fed. Cl. Spec. Mstr. Oct. 28, 2017); Pelton v. Sec’y of Health & Human
Servs., No. 14-674V, 2017 WL 3378773, at *4 (Fed. Cl. Spec. Mstr. July 12, 2017). This
determination is also consistent with my own decision finding that a suburb locale is entitled to
forum rates based on the rates awarded to its counterpart city. See Mikkelson v. Sec’y of Health &
Human Servs., No. 15-867V, 2016 WL 6803786, at * 2 (Fed. Cl. Spec. Mstr. Oct. 3, 2016)
(determining that Vienna, VA is a forum locale based on its nearness to Washington, DC).
Furthermore, in a recent case, I found that Fayetteville, Georgia (also a suburb of Atlanta) is an in-
4
forum locale. See Halm v. Sec’y of Health & Human Servs., No. 17-338V, slip. op. 8 (Fed. Cl.
Spec. Mstr. Dec. 19, 2017).
Now that I have determined that the Ms. Fennell will receive in-forum rates, I must decide
what rate within the McCulloch range is appropriate. Ms. Fennell has been practicing law for
roughly seven years. However, this case appears to be Ms. Fennell’s first case in the Vaccine
Program (a fact she acknowledges). Under McCulloch, the rate range for an attorney of her
experience (between four and seven years) is $225-300 for 2016 and $230-$307 for 2017, with
$300 and $307 representing the high-end of the range. See Attorney’s Forum Hourly Rate Fee
Schedule: 2017.5 Ms. Fennell’s requested a rates of $350 per hour for 2016-2017, are at the highest
end of the rate schedule for an attorney with eight to ten years of experience. The requested rate
will be adjusted as it does not correspond with Ms. Fennell’s limited Vaccine Program experience
and years of practice experience. I will instead compensate Ms. Fennell at a rate of $290 per hour
for the work completed in this matter.
I otherwise do not find any particular billing entries to be objectionable, nor has
Respondent identified any as such. As noted above, in calculating the requested fees and costs
award, Petitioner voluntarily reduced his counsel’s overall request by 25% (including her costs).
See Fees App. at 1. However, I will reduce the amount awarded by only 10%, resulting in an
attorney’s fee award of $20,488.50. Although I appreciate counsel’s self-imposed learning curve
reduction of 25%, I find that any appropriate fee reduction is accounted for in my McCulloch rate
range reduction, along with a smaller learning curve deduction.
Petitioner also requests a total of $1,441.51 in costs associated with this matter. See Supp.
Mot. at 2. The requested costs include the filing fee, mailing and postages expenses, copy costs,
and medical records expenses. See Fees App. at 9-13. Petitioner further requests costs associated
with counsel’s travel to Arizona to meet with Petitioner’s treating physicians. Id. at 9, 12; see also
Supp. Mot. at 1. These costs appear reasonable and will be awarded in full. Accordingly, I will
award a total of $21,930.01 (representing $20,488.50 in attorney fees and $1,441.51 in costs),
resulting in a $521.86 increase from Petitioner’s final request. See Supp. Mot. at 2.
CONCLUSION
For the aforementioned reasons, I award a total of $21,930.01 (representing $20,488.50 in
attorney fees and $1,441.51 in costs) as a lump sum in the form of a check jointly payable to
Petitioner and his counsel, Caryn Fennell, Esq. In the absence of a motion for review filed pursuant
5
The Attorney’s Forum Hourly Rate Fee Schedule: 2017 is available on the Court’s website
(http://www.uscfc.uscourts.gov/node/2914).
5
to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.6
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
6
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.
6