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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1545V
(not to be published)
MEI H. LI,
Chief Special Master Corcoran
Petitioner,
v. Filed: June 24, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Timothy James Lessman, Knutson & Casey Law Firm, Mankato, MN, for Petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 3, 2019, Mei Li filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine
Act”). Petitioner alleges that she suffered from Guillain-Barré syndrome as a result of an
influenza vaccine she received on October 17, 2016. (Petition at 1). On January 19, 2022,
a decision was issued awarding compensation to Petitioner based on the Respondent’s
proffer. (ECF No. 36).
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
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 means the Decision 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, I agree that the identified material fits within this definition, I will redact such material from
public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated March 16,
2022 (ECF No. 41), requesting a total award of $35,749.20 (representing $19,148.95 in
fees and $16,600.25 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 41-
4.) Respondent reacted to the motion on March 17, 2022, indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case, but deferring resolution of the amount to be awarded to my discretion. (ECF No.
42). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate for the reason listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
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 & Hum. Servs., 86 Fed.
Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
2
ATTORNEY FEES
Petitioner requests compensation for attorney Timothy Lessman at the rate of $317
per hour for time billed from 2019-22. (ECF No. 41-4). This requested rate is reasonable
and consistent with what has previously been awarded for work performed by Mr.
Lessman, and will therefore be awarded.
ATTORNEY COSTS
Just as they are required to establish the reasonableness of requested fees,
petitioners must also demonstrate that requested litigation costs are reasonable. Perreira
v. Sec'y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375(Fed.Cir.1994); Preseault v. United States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002).
Reasonable costs include the costs of obtaining medical records and expert time incurred
while working on a case. Fester v. Sec’y of Health & Hum. Servs., No. 10-0243V, 2013
WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to carry
their burden, such as by not providing appropriate documentation to substantiate a
requested cost, special masters have refrained from awarding compensation. See, e.g.,
Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4
(Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioner seeks $16,600.25 in attorney’s costs that include expenses associated
with travel, medical records, postage, and expert costs. (ECF No. 41-7). However, upon
review of the receipts submitted, I find numerous issues regarding counsel’s travel to
meet with Petitioner from August 12 – 15, 2021.
Receipts for travel expenses are for costs incurred by Mr. Lessman, and a second
individual identified as Patricia Lessman. 3 (Id. at 19 - 20). Mr. Lessman billed time for his
travel to Florida for a meeting with Petitioner on August 12 - 13, 2021, and for his return
travel on August 15, 2021. (ECF No. 41-5 at 3). Mr. Lessman extended his stay in Florida
for an additional two days, billing no time working on Petitioner’s case, but requests
reimbursement for costs incurred for the additional hotel stay, extended rental car days
and meals incurred during this time.
Previously, special masters have denied reimbursement for travel costs where a
petitioner or counsel traveled unnecessarily early to a hearing in advance of the
3
The request for reimbursement for any costs incurred for counsel’s guest, Patricia Lessman are not
reimbursable by this Court as Ms. Lessman is not an attorney associated with this case or an expert hired
to consult.
3
argument. See, e.g., Gramza v. Sec'y of Health & Hum. Servs., No. 15-247V, 2017 WL
3574794, at *5 (Fed. Cl. Spec. Mstr. June 28, 2017) (declining to reimburse full amount
of costs personally incurred by the petitioner when she and her family traveled to
Washington, DC three days prior to the scheduled hearing). Such determinations have
been upheld on appeal. Broekelschen v. Sec'y of Health & Hum. Servs., 102 Fed. Cl. 719,
732 (2011) (upholding special master's determination that it was unnecessary for
petitioner's counsel to travel two days before the argument, despite traveling from a
different time zone).
Similarly, Petitioner’s requests for costs for the extension of Mr. Lessman’s stay
where no work was performed will not be reimbursed. Costs that are considered
reimbursable by the Program include standard airfare (not to include first-class or
upgrades); reasonable hotel charges (not to include suites, upgrades, or stays on days in
which no time is billed); costs for standard rental cars; and reasonable meal costs (not to
include alcohol or meals for parties that are not for counsel or Petitioner). But the Program
is not responsible for reimbursing an extended visit for counsel or individuals that are not
associated with these proceedings. Accordingly, costs associated with counsel’s
extended stay for himself and his guest - which include the additional two nights hotel
stay on August 12 – 13, 2021, the flight for Ms. Lessman, two days of parking garage
parking, and the additional two days of meal charges – were not reasonably incurred and
will be disallowed.
Additionally, the costs incurred by Mr. Lessman for his rental car also warrant a
deduction in the total award. Mr. Lessman elected to rent a Tesla, which is considered a
luxury vehicle, incurring a rental charge of $708.79. (ECF No. 41-7 at 22-23). Although
the Vaccine Program allows for a reasonable reimbursement of rental vehicle charges, a
rental of any luxury vehicle or use of a luxury vehicle service exceeds what is appropriate
for the Program. Special masters have reduced or denied costs for unnecessarily
excessive vehicle rentals or services. See, e.g., Wright v. Sec'y of Health & Hum. Servs.,
No. 12-0423V, 2018 WL 7051676, at *6 (Fed. Cl. Spec. Mstr. Dec. 10, 2018); Digerolamo
v. Sec'y of Health & Hum. Serv., No. 16-0920V, 2019 WL 4305792, at *7 (Fed. Cl. Spec.
Mstr. Jun. 28, 2019); Spivey v. Sec'y of Health & Hum. Serv., No. 18-0959V, 2019 WL
7580151, at *5 (Fed. Cl. Spec. Mstr. Dec. 12, 2019); Lepper v. Sec'y of Health & Hum.
Servs., No. 18-0984V, 2019 WL 7580152, at *3 (Fed. Cl. Spec. Mstr. Dec. 12, 2019).
4
I find all of the specific costs discussed to be unreasonable and deny them in full
(while allowing those not addressed). This will reduce Petitioner’s award by $2,183.27. 4
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT IN PART Petitioner’s Motion for attorney’s fees and
costs. I award a total of $33,565.93 (representing $19,148.95 in fees and $14,416.98 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
counsel. 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. 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
This amount consists of two nights hotel stay at $230.63 per night ($691.89 for 3 nights); flight costs of
$778.90 ($1,557.79 for 2 people); rental car charges of $708.79; 2 days of parking at $34.67 per day
($104.00 for 3 days); one meal at $104.60 and one meal at $60.38. (ECF No. 41-7 at 19 – 21).
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncincg their right to seek review.
5