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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
TIFFANY HARRIS as parent of *
A.H., a minor, *
* No. 16-528V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 24, 2018
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Jason C. Bougere, U.S. Department of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Tiffany Harris, acting on behalf of her minor child A.H., brought a
successful petition for compensation under the National Childhood Vaccine
Compensation Program. She now sees an award for attorneys’ fees and costs. She
is awarded $53,526.20.
* * *
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unpublished ruling contains a reasoned explanation for the action in this case, undersigned is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).
Represented by Mr. Ronald Homer, Ms. Harris filed her petition for
compensation on April 29, 2016. Ms. Harris alleged that the influenza (“flu”)
vaccine that A.H. received on January 27, 2014, which is contained in the Vaccine
Injury Table, 42 C.F.R. § 100.3(a), caused A.H. to suffer neurological injuries,
including, but not limited to, cerebellitis, neuropathy, and Guillain-Barré
syndrome. The parties were able to informally resolve the case, agreeing to a joint
stipulation on award of compensation that was then adopted. Decision, issued Apr.
5, 2018.
On September 16, 2018, petitioner moved for reimbursement of attorneys’
fees and costs, requesting a total of $51,962.01 (representing $41,672.30 in
attorneys’ fees and $10,289.71 in attorneys’ costs). Petitioner’s Application for
Attorneys’ Fees and Costs (“Fees App.”) at 1-2. In addition to the attorneys’ fees
and costs, pursuant to General Order No. 9, petitioner warrants that she personally
incurred costs in pursuit of this litigation in the amount of $1,564.19. Id. at 2.
On August 24, 2018, respondent filed his response to the petitioner’s
motion. In his response, respondent did not object to petitioner’s request. Resp’t’s
Resp. at 2. Instead, the respondent stated that he is “satisfied that the statutory and
other legal requirements for an award of attorneys’ fees and costs are met” and
recommended that the undersigned exercise his discretion in determining “a
reasonable award for attorneys’ fees and costs.” Id. at 2-3.
This matter is now ripe for adjudication.
* * *
Because Ms. Harris received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Thus, the question
at bar is whether Ms. Harris’s requested amount is reasonable.
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.
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A. Reasonable Hourly Rates for Conway, Homer, PC Attorneys
Ms. Harris requests the following rates for her attorneys: for Mr. Ronald
Homer, $400 per hour for work performed in 2016, $409 per hour for work
performed in 2017, and $421 per hour for work performed in 2018; for Ms.
Christina Ciampollilo, $300 per hour for work performed in 2014-2016, $307 per
hour for work performed in 2017, and $316 per hour for work performed in 2018;
for Mr. Joseph Pepper, $290 per hour for work performed in 2016, $297 per hour
for work performed in 2017, and $305 per hour for work performed in 2018; for
Ms. Lauren Faga, $265 per hour for work performed in 2016 and $279 per hour for
work performed in 2018; for Ms. Meredith Daniels, $286 per hour for work
performed in 2017; and for Ms. Sylvia Chin-Caplan, $400 per hour for work
performed in 2015. Fees App. at 30. Additionally, Petitioner requests
compensation for several law clerks at rates ranging from $135-$142 per hour for
work performed from 2014-2018. Id.
The undersigned, as well as many other special masters, have found the rates
for Conway, Homer, PC attorneys and staff to be reasonable. See McSorley v.
Sec’y of Health & Human Servs., No. 14-919V, 2018 WL 4390500 (Fed. Cl. Spec.
Mstr. Aug. 16, 2018); Rice v. Sec’y of Health & Human Servs., No. 15-1335V,
slip op. at 3-4 (Fed. Cl. Spec. Mstr. Aug. 27, 2018); Clement v. Sec’y of Health &
Human Servs., No. 16-324V, 2018 WL 4090642 (Fed. Cl. Spec. Mstr. July 31,
2018). Accordingly, no adjustment to the requested rates is required.
The paralegal rates requested have previously been found reasonable and are
in line with forum rates for paralegals in each respective year. Accordingly, no
adjustment to the requested paralegal rates is required.
B. Reasonable Number of Hours for Conway, Homer, PC
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 did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See Shea v. Sec’y of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,
2015) (“special masters are not obligated to evaluate an attorney’s billing records
on a line-by-line basis in making the reasonableness determination . . . and
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certainly need not do so when Respondent has not attempted to highlight any
specific alleged inefficiencies”).
To facilitate the process of evaluating the reasonableness of an attorney's
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner's
responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys' fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).
Upon review of the submitted billing statement, the undersigned finds the
hours billed (201.8) to be reasonable. Although the petition was filed on April 29,
2016, the billing records indicate that work for this case began in September of
2014. It appears that counsel’s work prior to filing the petitioner was well spent, as
petitioner was able to file a substantial amount of medical records shortly after
filing the petition, and the matter quickly progressed to settlement discussions
which were ultimately fruitful for petitioner. Respondent has not identified any
particular entry as objectionable and the undersigned’s review of the billing record
also did not uncover any objectionable entries.
Accordingly, petitioner is entitled to compensation for attorneys’ fees in the
amount of $41,672.30.
C. Costs Incurred by Conway, Homer, PC
The fees application also asks for reimbursement in the amount of
$10,289.71 in for costs incurred by Conway, Homer, PC. Fees App. at 29. The
majority of this amount ($7,740.00) is for the life care plan created by Maureen
Clancy for Petitioner. Id. The balance consists of routine expenses, such as medical
records, mailing costs, and travel expenses. Id. 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).
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Upon review, the undersigned finds these requested costs to all be
reasonable. The record shows that Ms. Clancy billed 45.1 hours at $150 per hour
and 13 hours of travel to meet with Petitioner at $75 per hour. Both the rate and the
hours billed are reasonable in the undersigned’s experience, and Petitioner shall be
fully compensated for this cost. Likewise, Petitioner has provided adequate
documentation for the rest of the requested costs, and respondent has not identified
any as unreasonable. According, the full amount of costs requested shall be
awarded, $10,289.71.
D. Costs Incurred by Petitioner
Petitioner states that she has personally incurred costs of $1,564.19. Fees
App. at 2. These costs are for obtaining medical records and court fees related to
establishing a conservatorship. Petitioner has provided adequate documentation of
these costs and the undersigned finds them all to be reasonable. Accordingly,
Petitioner shall be awarded the totality of her requested costs.
E. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award the following:
(1) a total of $51,962.01 (representing $41,672.30 in attorneys’ fees and
$10,289.71 in costs) as a lump sum in the form of a check jointly payable to
petitioner and her counsel, Mr. Ronald Homer, Esq.; and
(2) a total of $1,564.19 as a lump sum in the form of a check payable to
Petitioner.
In the absence of a timely-filed motion for review (see Appendix B to the
Rules of the Court), the Clerk shall enter judgment in accordance with this
decision.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
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