Rupert v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 13, 2021
* * * * * * * * * * * * * *
KELLY RUPERT, * No. 15-841V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
William E. Cochran, Jr., Black McLaren, et al., PC, Memphis, TN, for Petitioner;
Sarah C. Duncan, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On August 7, 2015, Kelly Rupert (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq. (2012).
Petitioner alleged that the influenza vaccine she received on September 23, 2013, caused a
significant aggravation of her kidney failure and glomerulonephritis. See Pet. at 1, ECF No. 1. An
entitlement hearing was held on October 29-30, 2019, and on March 31, 2021, the undersigned
issued her decision dismissing the petition. (ECF No. 88).
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling will be available to anyone with access to the Internet. In accordance with Vaccine
Rule 18(b), petitioner has 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. Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
On September 29, 2021, Petitioner filed a motion for attorneys’ fees and costs. (“Fees
App.”) (ECF No. 97). Petitioner requests total attorneys’ fees and costs in the amount of
$71,390.26, representing $38,855.20 in attorneys’ fees and $32,535.06 in attorneys’ costs. Fees
App. at 1.3 Pursuant to General Order No. 9, Petitioner has indicated that she has not personally
incurred any costs in pursuit of this litigation. Fees App. Ex. 3. Respondent responded to the
motion on September 30, 2021, stating that 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 (ECF No. 98).
Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, the undersigned does not doubt that the petition was filed
in good faith, and although the petition was eventually dismissed, the undersigned finds that there
was reasonable basis to file the petition. Respondent has also not challenged the reasonable basis
of the petition. Accordingly, a final award of fees is appropriate.
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). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
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. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
a. Hourly Rate
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
3
Petitioner was previously awarded interim attorneys’ fees and costs in the amount of $116,207.82 on
August 30, 2019.
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). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be accessed online.4
Petitioner requests the following rates for her counsel: for Mr. William Cochran, Jr.,
$391.00 per hour for work performed in 2019, $405.00 per hour for work performed in 2020, and
$420.00 per hour for work performed in 2021; for Mr. Michael McLaren, $464.00 per hour for
work performed in 2019, and $484.00 per hour for work performed in 2020; and for Mr. Chris
Webb, $338.00 per hour for work performed in 2019 and $364.00 per hour for work performed in
2021. The undersigned finds these rates to be reasonable and consistent with what these Black
McLaren et al. attorneys have previously been awarded for their vaccine program work and shall
award them herein.
b. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
Upon review, the undersigned finds the overall hours billed to be largely reasonable.
Counsel has provided sufficiently detailed descriptions for the tasks performed and most appear
reasonable in the undersigned’s experience. However, paralegals have billed time for clerical tasks,
such as filing documents. Upon review, a reasonable reduction for this issue is $400.00. Petitioner
is therefore awarded final attorneys’ fees of $38,455.20.
c. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $32,535.06 in attorneys’ costs, comprised of travel expenses for attending the entitlement
hearing in Washington, DC, and work performed by Petitioner’s medical experts, Dr. M. Eric
Gershwin and Dr. Wesam Ballouk. Petitioner has provided adequate documentation of all these
expenses, and they are mostly reasonable in the undersigned’s experience. However, Dr. Gershwin
submitted a receipt for his dinner with counsel which indicates that alcohol was purchased. Fees
App. Ex. 2 at 19. However, the Vaccine Program does not reimburse alcohol purchased with meals.
See Kreten v. Sec’y of Health & Human Servs., No. 15-504V, 2018 WL 6819553, at *4 (Fed. Cl.
Spec. Mstr. Nov 30, 2018). Accordingly, the requested costs shall be reduced by $50.00 to account
for the alcohol and tax.
II. Conclusion
4
The Fee Schedules are available at http://www.uscfc.uscourts.gov/node/2914.
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Based on the above analysis, the
undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $38,855.20
(Reduction to Fees) - ($400.00)
Total Attorneys’ Fees Awarded $38,455.20
Attorneys’ Costs Requested $32,535.06
(Reduction of Costs) - ($50.00)
Total Attorneys’ Costs Awarded $32,485.06
Total Attorneys’ Fees and Costs $70,940.26
Accordingly, the undersigned awards a lump sum in the amount of $70,940.26,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and her attorney, Mr. William Cochran, Jr.
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.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
5
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.