Garrison v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-762V
Filed: April 29, 2016
* * * * * * * * * * * *
* UNPUBLISHED
KRISTINA GARRISON, *
* Special Master Gowen
Petitioner, *
* Interim Attorneys’ Fees and Costs;
v. * Reasonable Hourly Rate; Forum
* Rate; Local Rate; Reasonable Hours
SECRETARY OF HEALTH * Expended
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * *
Curtis R. Webb, Twin Falls, ID, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS' FEES AND COSTS1
On August 22, 2014, Kristina Garrison (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving
a trivalent influenza (“flu”) vaccination on October 28, 2011, she developed narcolepsy and
cataplexy. See Petition at ¶¶ 1, 2. Further, petitioner alleged that she experienced residual
effects of her injury for more than six months. Id. at ¶ 16.
On August 2, 2015, respondent filed a Rule 4(c) Report and a motion for a decision on
entitlement based on the record. Respondent recommended against compensation in this case,
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
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).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to 34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to individual sections of
the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
but stated that she would “not expend further resources to contest entitlement in this matter.”
Respondent’s (“Resp’s”) Report at 4. On October 29, 2015, I issued a Ruling on Entitlement,
finding petitioner entitled to compensation. Petitioner has been in the process of collecting
damages information since. See Status Report, filed March 1, 2016.
On January 7, 2016, petitioner filed an application for interim attorneys’ fees and costs,
requesting $62,086.50 in attorneys’ fees, and $12,626.51 in attorneys’ costs, for a total fees and
costs award of $74,713.01. See Petitioner’s (“Pet’r’s”) Application (“App.”) at 1. Respondent
filed a response in opposition to petitioner’s application on March 1, 2016, objecting to the
requested hourly rate and to certain hours billed. See Resp’s Opposition (“Opp.”) at 1.
Petitioner filed a reply in support of her motion on March 11, 2016.
For the reasons set forth below, I award petitioner a total of $69,427.76 for interim
attorneys’ fees and costs.
I. Discussion
Interim fee awards are permissible under the Vaccine Act. See Avera v. Sec’y of Health
& Human Servs., 515 F.3d 1343, at 1352 (Fed. Cir. 2008); see also Shaw v. Sec’y of Health &
Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). Respondent has not objected to an award of
interim fees in the present case, and I find an award of fees and costs at this time reasonable.
Therefore, the only issue to be decided is the reasonable amount of fees and costs to be awarded.
a. Attorneys’ Fees—Reasonable Hourly Rates
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “an initial estimate of a reasonable attorneys’ fee by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings. Id. at 1348.
Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate defined as
the rate prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Avera, 515 F.3d at 1347-48. In determining an award of
attorneys’ fees, a court should generally use the forum rate, i.e., the District of Columbia rate.
Id. at 1348. However, an exception to the forum rule applies where the bulk of an attorney’s
work is performed outside of the forum, and where there is a “very significant” difference in
compensation rates between the place where the work was performed and the forum. Id. at 1349
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States
Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Petitioner argues that her attorney, Curtis Webb, should be compensated at the forum
rate, which she asserts is $415 per hour for an attorney of Mr. Webb’s skill, experience, and
reputation. Pet’r’s App. at 4. Respondent argues that petitioner’s counsel should be
2
compensated at the local rate for Twin Falls, Idaho, where Mr. Webb’s office is located, because
there is a very significant difference between the forum rate and local rates. Resp’s Opp. at 4.
i. Local Rate
Mr. Webb’s Previously Awarded Rate
In her initial application, petitioner contended that the local rate for work performed by
Mr. Webb in the years 2014 and 2015 is $285 per hour. Pet’r’s App. at 7. Two special masters
determined that $270 per hour was a reasonable local hourly rate for work performed by Mr.
Webb in 2013. Id. at 8 (citing Nuttall v. Sec’y of Health & Human Servs., No. 07-810V, 2014
WL 643584 (Fed. Cl. Spec. Mstr. Jan. 23, 2014); Barclay v. Sec’y of Health & Human Servs.,
No. 07-605V, 2014 WL 2925245 (Fed. Cl. Spec. Mstr. Feb. 7, 2014)). In Nuttall, Mr. Webb
requested an hourly rate of $250 for work performed in 2011, and respondent did not object.
Nuttall, 2014 WL 643584, at *4. The special master found a $10 per hour yearly increase
reasonable for both 2012 and 2013 based “in part by rises in the cost of living, and in part
because of [his] favorable view of the high quality of Mr. Webb’s work in general.” Id. The
special master did not discuss how $250 was determined to be a reasonable hourly rate for 2011.
In Barclay, Mr. Webb requested a rate of $240 per hour for work performed in 2008 through
2010, and respondent did not object. Barclay, 2014 WL 2925245, at *3. The special master
found a $10 per hour yearly increase reasonable for 2011, 2012, and 2013, as such an increase
“appear[ed] to approximate the rate of inflation.” Id. at *3-*4. The basis for finding a rate of
$240 per hour reasonable for work performed in 2010 was not discussed. In Mr. Webb’s
affidavit filed in the present case, he states that “[t]he $250 an hour rate for 2011 was based on
the rates charged by attorneys who practice in Twin Falls, Idaho and have experience and
reputations similar to my own.” Pet’r’s App., Affidavit of Curtis R. Webb, at ¶ 18. He attached
an affidavit from a Twin Falls attorney, prepared in 2011, stating that $250 per hour was a
reasonable 2011 rate for Twin Falls, Idaho. Id., Attachment C.
Petitioner states that the 2013 rate of $270 per hour should be adjusted by a 3.7% annual
increase beginning in 2014. Pet’r’s App. at 8. This percentage, based upon the Real Rate
Report3 submitted by respondent in McCulloch, represents the annual rate of growth in
attorneys’ fees since the 2008 recession, and was applied to determine hourly rate increases in
McCulloch. Id. (citing McCulloch, No. 09-293V, 2015 WL 5634323, at *16 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015)). Applying this increase, petitioner states that local hourly rates were $280
in 2014 and $290 in 2015. Petitioner then averages the 2014 and 2015 rates and concludes that
Mr. Webb’s local rate for 2014-2015 would have been $285 per hour for both years. Id.Respondent argues that the local rate should be adjusted using the Consumer Price Index (CPI),
as reported by the Bureau of Labor Statistics,4 which the court has used previously. Resp’s Opp.
at 4 (referencing Scharfenberger v. Sec’y of Health & Human Servs., No. 11-221V, 2015 WL
3The Real Rate Report was a study of attorney billing rates to corporate clients and stated in its executive
summary that attorney rates have increased by an average of 3.7% since 2008. See McCulloch, 2015 WL
5634323, at *9. Prior to that the rate increase had been higher. Id.4
Bureau of Labor CPI calculator available at http://www.bls.gov/data/inflation_calculator.htm.
3
3526559, at *6 (Fed. Cl. Spec. Mstr. May 15, 2015)). Using this method, $270 in 2013 would be
equivalent to $275 in 2015. Id.I agree with petitioner that 3.7% is an appropriate annual adjustment to apply to
previously awarded local rates in order to determine a reasonable 2014-2015 rate. Although
some special masters have adjusted rates using the CPI, I adjusted rates according to the 3.7%
annual rate of growth in attorneys’ fees in McCulloch, and would apply the same adjustment in
the present case. See McCulloch, 2015 WL 5634323, at *16. Accordingly, if local rates are
determined by adjusting the previously awarded $270 per hour local rate in vaccine cases, a
reasonable local rate for work performed in 2014-2015 would be $285 per hour.
Recent Idaho District Court Rates
In her reply brief, however, petitioner submitted evidence of higher local rates awarded in
2014 by the United States District Court for the District of Idaho. See Pet’r’s Reply at 3-5. In
two civil rights cases in 2014, the court awarded $400 per hour to attorneys with 21, 28, and 34
years of experience. See Latta v. Otter, No. 1:13-CV-00482, 2014 WL 7245631, at *1-*4 (D.
Idaho, Dec. 19, 2014) (facial constitutional challenge to Idaho laws that defined marriage as the
legal union between a man and a woman); Community House, Inc. v. City of Boise, No. 1:05-
CV-00283, 2014 WL 1247758, at *6-*7 (D. Idaho, Mar. 25, 2014) (violations of the Fair
Housing Act, Idaho and United States Constitutions, and various laws of the State of Idaho).
Latta and Community House both involved an award of attorneys’ fees under federal statutes
allowing the court to award reasonable attorneys’ fees to the prevailing party. See Latta, 2014
WL 7245631, at *1; Community House, 2014 WL 1247758, at *3. Both cases involved a
determination by the United States District Court for the District of Idaho of a reasonable rate “in
line with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” Latta, 2014 WL 7245631, at *2 (quoting Blum,
465 U.S. at 895); Community House, 2014 WL 1247758, at *4.
Petitioner also cited two5 slightly older cases from the United States District Court for the
District of Idaho. See Pet’r’s Reply at 3-5 (citing J.R. Simplot Co. v. Nestle USA, Inc., No. CV
06-141-S-EJL-CWD, 2009 U.S. Dist. LEXIS 62439 (D. Idaho, July 20, 2009); LaPeter v.
Canada Life Ins. of America, No. CV–06–121–S–BLW, 2007 WL 4287489 (D. Idaho, Dec. 4,
2007)). In J.R. Simplot, the court awarded an attorney with 41 years of experience a rate of $300
per hour. 2009 U.S. Dist. LEXIS 62439, at *2, Attachment A. In LaPeter, the court awarded an
5
Petitioner also cited United States ex rel. Suter v. National Rehabilitation Partners, Inc., No. CV–03–15–
S–BLW, 2007 WL 2790397 (D. Idaho, Sept. 24, 2007). In Suter, the court did not specify a reasonable
rate for each attorney, but rather noted that it appeared Boise rates were approximately half as much as
the rates charged, and reduced the entire bill by half. 2007 WL 2790397, at *3-*4. This effectively
reduced the billing rate of a senior partner from Los Angeles with 25 years of experience from $720 per
hour to $360 per hour. Id. Unlike the other cases cited, fees were not awarded to the prevailing party.
Rather, fees were awarded pursuant to Federal Rule of Civil Procedure 37(b)(2), which provides that “if a
party fails to obey [a discovery order], ‘the court in which the action is pending may make such orders in
regard to the failure as just.’” 2007 WL 4287489, at *2. Suter did not involve a fee-shifting statute
directly comparable to the Vaccine Act or the statutes that Laffey Matrix rates are generally used for, and
will therefore not be discussed further. See supra.
4
attorney with over 30 years of experience a rate of $350 per hour. 2007 WL 4287489, at *1-*2.
J.R. Simplot and LaPeter were breach of contract actions involving an award of attorneys’ fees
under Idaho Code § 12-120(3), which entitles the prevailing party to an award of reasonable
attorneys’ fees when a commercial transaction is the gravamen of the lawsuit. See J.R. Simplot,
2009 U.S. Dist. LEXIS 62439, at *5; LaPeter, 2007 WL 4287489, at *1. Both cases involved a
determination of a reasonable hourly rate calculated “according to the prevailing market rates in
the relevant community.” J.R. Simplot, 2009 U.S. Dist. LEXIS 62439, at *27 (quoting Schwarz
v. Sec’y of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995)); LaPeter, 2007 WL
4287489, at *1.
In vaccine cases, a reasonable hourly rate is the forum rate in Washington, D.C., unless
“the prevailing market rate defined as the rate prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and reputation” is very significantly
lower. Avera, 515 F.3d at 1347-48. As an initial matter, I find that Twin Falls and Boise are
part of the same “community” for purposes of evaluating prevailing local rates. Twin Falls and
Boise are both located in southern Idaho. A comparative cost of living calculator for
metropolitan areas, which I also consulted in McCulloch, shows a cost of living that is only
0.33% greater in Boise than in Twin Falls.6
The United States District Court for the District of Idaho cases support a finding that a
reasonable local rate for Mr. Webb’s work in 2014 and 2015 is higher than $285 per hour. In my
view, the judgment of federal judges located in Idaho should be awarded significant respect,
particularly on an issue such as local attorney rates with which they are presumably familiar.
However, the rates awarded by the U.S. District Court for the District of Idaho do not support a
finding that a reasonable local rate for Mr. Webb’s work in vaccine cases would be $400 per
hour. Those rates were awarded under statutes that provide for an award of attorneys’ fees to the
prevailing party, whereas an attorney in the Vaccine Program is entitled to an award of
attorneys’ fees as long as the claim was brought in “good faith” and with a “reasonable basis.”
See 42 U.S.C. § 300aa-15(e)(1). Accordingly, the District Court rates are most appropriately
compared to the Washington, D.C. Laffey Matrix rates.7 The Laffey Matrix was originally
developed to evaluate fees in a complex employment discrimination case, and has since been
republished annually by the United States Attorney’s office for the District of Columbia for use
in fee-shifting cases. See Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983),
affirmed in part, reversed in part on other grounds, 746 F.2d 4 (D.C.Cir. 1984). The matrix is
intended to be used in cases in which a “fee shifting” statute permits the prevailing party to
recover “reasonable attorneys' fees.” The explanatory note to the updated Laffey Matrix
references Civil Rights cases, Freedom of Information Act cases, and Equal Access to Justice
Act cases by way of example. Laffey Matrix—2014–2015 Explanatory Notes, available at
https://www.justice.gov/usao-dc/civil-division (last accessed Mar. 25, 2016).
6
The Cost of Living Calculator, at http://www.bankrate.com/calculators/savings/moving-cost-of-living-
calculator.aspx (last visited Apr. 14, 2016).
7
The Laffey Matrix methodology has been revised starting with the 2015-2016 year, and the matrix is
now titled the “USAO Attorney’s Fees Matrix.” USAO Attorney’s Fees Matrix—2015—2016, available
at https://www.justice.gov/usao-dc/civil-division (last accessed Mar. 25, 2016).
5
When determining the appropriate forum rate for vaccine cases in McCulloch, I used the
Laffey Matrix as a guidepost, but not as prima facie evidence of the appropriate rate. See
McCulloch, 2015 WL 5634323, at *17-18. I concluded that the Laffey Matrix rates were more
closely analogous to the type of litigation that occurs in vaccine cases than average Washington
attorney fee rates, which were considerably higher. Id. I also concluded that the Laffey Matrix
rates included a risk premium, as the fee shifting under the relevant statutes did not occur unless
a case was won. Id. at *18. For attorneys with more than 20 years of experience, the Laffey rate
is $520 per hour. Using the same frame work as the Laffey Matrix, I determined that an
appropriate rate range for practitioners in the Vaccine Program with more than 20 years’
experience was $350 to $425. Id. at *19. Thus, comparing the Laffey rate of $520 per hour for
attorneys with 20 years’ experience to the high end of the McCulloch range, $425 per hour, I
effectively eliminated the risk premium by reducing the Laffey rate by approximately 18.3% for
vaccine cases.8
Analysis: Mr. Webb’s Reasonable Local Rate
Upon review of the cases cited by petitioner, I have determined that the rates awarded in
Latta, Community House, J.R. Simplot, and LaPeter are appropriate points of reference for
determining Mr. Webb’s local rate. Latta and Community House were civil rights cases where
attorneys’ fees were awarded to the prevailing party under fee shifting statutes, and thus are
squarely within the type of cases to which Laffey Matrix rates would apply in Washington, D.C.
J.R. Simplot and LaPeter involved a state fee shifting statute, which provided for the award of
attorneys’ fees to the prevailing party. Thus, although J.R. Simplot and LaPeter were breach of
contract actions, rather than the type of case specifically referenced by the explanatory note to
the Laffey Matrix, they involve a similar type of fee-shifting statute.
The District Court cases cited by petitioner vary in complexity of subject matter and
procedure, but represent a range of complex litigation cases that I find to be generally of the
same complexity as a vaccine case. In McCulloch, I noted that “[w]hile the Laffey case itself
was quite complicated and heavily litigated, many of [the fee-shifting cases it is now used in] are
not as complex as, or no more complex than, vaccine cases in terms of their subject matter and
evidence.” McCulloch, 2015 WL 5634323, at *18
I further explained:
It is true that before fees are awarded in fee shifting cases there is
the requirement that the case be won, that negligence or some other
form of liability be proven (in addition to causation in personal
injury cases), and that those cases include the array of available
discovery devices provided under the Federal Rules of Civil
Procedure. However, it should be noted that procedural tasks such
as depositions and motions result in the billing of many additional
8
This calculation represents the percentage by which the Laffey Matrix rate was reduced to arrive at
vaccine case rates:
% decrease = [100 (Laffey rate – Vaccine rate)] / Laffey rate
6
hours, and thus the ultimate compensation in those cases is raised
relative to vaccine cases by virtue of the number of hours billed
rather than necessarily the hourly rate.
Id. In vaccine cases, petitioner does not need to prove negligence or a constitutional
violation, but does need to address difficult issues of causation.
In both Latta and Community House, the court noted that the $400 per hour fee award
was reasonable based in part on the complex nature of the issues presented. Latta, 2014 WL
7245631, at *3-*4; Community House, 2014 WL 1247758, at *5-*6. In Latta, the court stated
that the $400 per hour rate was “at the high end of the range for experienced complex litigation
attorneys in the Boise market,” but was reasonable based on factors such as “the complexity of
the case, its undesirability relative to more typical legal work, the delay in payment, and rates
allowed in similar cases.” 2014 WL 7245631, at *3-*4. In Community House, the court found
the rate reasonable based on “the length, complexity, and the unlikelihood that Boise attorneys
would have endeavored to take a case like this one; [the attorney’s] experience and national
recognition; as well as the Court’s decisions in prior cases . . . .” 2014 WL 1247758, at *6. In
both cases, the court considered testimony that there were few attorneys in Idaho that are willing
or able to take those types of civil rights cases. See Latta, 2014 WL 7245631, at *3; Community
House, 2014 WL 1247758, at *6. Community House was also procedurally complex—the case
was filed in 2005, and “involved complex motion practice, an injunction, and two interlocutory
appeals before it ever reached a jury,” as well as “three judges and two Ninth Circuit Panels.”
Id. at *6. Latta, on the other hand, was filed in 2013, “proceeded quickly on a legal track, and
was decided on summary judgment after oral argument.” 2014 WL 7245631, at *1. An appeal
was filed, and was ongoing at the time of the attorneys’ fees decision. Id. at *1 n.1.
In contrast, J.R. Simplot and LaPeter did not involve particularly complex subject matter.
In J.R. Simplot, the court noted that although the “document production and organization may
have been intensive, the legal issues presented—breach of contract, fraud, and the like—were not
particularly novel or complex.” 2009 U.S. Dist. LEXIS 62439, at *34. The rates awarded
“represent[ed] the upper end of the range for attorneys in the Boise area with similar skill and
expertise.” Id. at *31. Similarly, in LaPeter, the court stated that “[t]he nature of this case,
essentially a breach of contract case, was not exceptional,” and the case was “more akin to the
ordinary personal injury case.” 2007 WL 4287489, at *3. The rates awarded were reasonable
“[b]ased on the Court’s knowledge of typical attorney rates in the Boise area.” Id. at *2. J.R.
Simplot was decided on summary judgment after “protracted litigation,” and LaPeter was also
decided on summary judgment. J.R. Simplot, 2009 U.S. Dist. LEXIS 62439, at *1; LaPeter,
2007 WL 4287489, at *1.
In Latta and J.R. Simplot, the court noted that the rates awarded represented the high end
of reasonable rates for attorneys with similar skill and experience. I find it appropriate to award
Mr. Webb a rate based on the high end of local rates. In Latta and Community House, the court
considered the fact that it was unlikely another attorney would have been able or willing to take
the claims at issue. There are only a few attorneys in Idaho and other western states (other than
7
California and Washington), who take vaccine cases.9 Among vaccine practitioners, Mr. Webb
has significant experience in the Program. He has 27 years of experience representing more than
275 petitioners in the National Vaccine Injury Compensation Program. Pet’r’s App. at 9. In
addition, he served on the Advisory Committee on Childhood Vaccines (ACCV) from 1992 to
1995, and is currently a member of the Vaccine Committee of the Advisory Council to the
United States Court of Federal Claims. Id. at 8-9. Special Masters have noted that his work is of
high quality. Id. at 9 (citing Nuttall, 2014 WL 643584, at *4; Thorne-Erickson v. Sec’y of
Health & Human Servs., No. 96-361V, 1999 WL 1268149, at *5 (Fed. Cl. Spec. Mstr. Dec. 10,
1999)).
I conclude that the rates awarded in Latta, Community House, LaPeter, and J.R. Simplot
suggest that a reasonable local rate for complex litigation matters similar to Laffey Matrix cases
for Idaho attorneys with over 20 years of experience in 2014 and 2015 is approximately $400 per
hour.10 As discussed above, however, to determine a reasonable local rate for vaccine work, the
local rate of $400 per hour based on the District Court fee-shifting cases must be adjusted to take
into account the fact that Vaccine Program attorneys may be awarded attorneys’ fees regardless
of whether petitioners prevail on the underlying claim. See 42 U.S.C. § 300aa-15(e)(1). In
McCulloch, I effectively eliminated the risk premium by reducing the Laffey rate by
approximately 18.3% for vaccine cases. In this case, reducing the $400 per hour rates awarded
to Idaho attorneys for civil rights cases by 18.3% yields an hourly rate of $327 per hour.11
Accordingly, I conclude that a reasonable local rate for Mr. Webb’s work
performed in 2014 and 2015 is $327 per hour.
ii. Local Versus Forum Rate
Petitioner next argues that there is not a “very significant” difference between the local
rate for Twin Falls, Idaho, and the forum rate, and that the forum rate should therefore be
awarded. Pet’r’s App. at 8 (citing Davis County, 169 F.3d at 757; Avera, 515 F.3d at 1349-50).
Respondent asserts that there is a very significant difference between the local rate and the forum
rate. Resp’s Opp. at 5. Respondent cites several cases in which the court has applied the Davis
9
See the List of Vaccine Attorneys, available on the United States Court of Federal Claims website, at
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters. There is listed one attorney in
each of Idaho, Wyoming, and Utah, and none in Colorado, Montana, or New Mexico.
10
Latta and Community House awarded rates of $400 per hour in 2014. J.R. Simplot awarded $300 per
hour in 2009, and LaPeter awarded $350 per hour in 2007. As discussed above, I have previously found
that 3.7% is an appropriate annual adjustment to apply. I note that if the 2007 rate of $300 per hour and
the 2009 rate of $350 per hour were adjusted yearly based on a 3.7% rate of increase, the 2014-2015 rate
would actually be greater than $400 per hour.
11
Again, as in McCulloch, this calculation represents the reduction of the District Court rate by 18.3% to
arrive at Mr. Webb’s rate, and is based on the following formula:
Mr. Webb’s rate = Idaho D. Court rate - [Idaho D. Court rate (.183)]
8
exception in cases with rate differences purportedly comparable to the present case. Id. at 6
(citing Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283, 1286 (Fed. Cir.
2011)(affirming an award based on local rates for Cheyenne, Wyoming, of $220 per hour in
2008, when the forum rate would have likely been $350 per hour, a 59% difference); Mooney v.
Sec’y of Health & Human Servs., No. 05-266V, 2014 WL 7715158, at *9 (Fed. Cl. Spec. Mstr.
Dec. 29, 2014)(awarding a local rate of $275 per hour in Baton Rouge, Louisiana in 2014);
O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at*4-*5 (Fed. Cl.
Spec. Mstr. Apr. 28, 2015)(awarding a local rate of $300 per hour from 2011-2013 in Sarasota,
Florida).
I find that the difference between the local rates in Twin Falls, Idaho, and forum rates in
Washington, D.C. in this case is not “very significant,” and therefore Mr. Webb’s hourly rate
should be determined by reference to forum rates. In Avera, the Federal Circuit adopted the
Davis County exception to the forum rule that “‘where the bulk of [an attorney's] work is done
outside the jurisdiction of the court and where there is a very significant difference in
compensation favoring D.C.,’” local rates apply. Avera, 515 F.3d at 1349 (quoting Davis
County, 169 F.3d at 758). As noted by petitioner, in Davis County, the D.C. rate sought was
approximately 70% higher than local rates. Davis County, 169 F.3d at 757. In Avera, the
requested D.C. rate of $598 per hour was “nearly three times” the local rate of $200—199%
greater. Avera, 515 F.3d at 1350. The rate differences in Davis County and Avera are clearly
very significant, but those decisions do not provide guidance on where to draw the line as to
what constitutes a “very significant” difference in less extreme cases.
The cases cited by respondent do not provide very much insight into the question of what
constitutes a “very significant” difference. In Masias, the special master awarded local rates
where there was a 59% difference between local and forum rates. 634 F.3d at 1286-87. In
Mooney, the special master did not make a determination whether there was a “very significant”
difference, as she concluded that the parties had conceded that the Davis County exception
applied because the only evidence presented was focused on local Baton Rouge rates. 2014 WL
7715158, at *3. In O’Neill, the special master stated that “the local rates applicable in Sarasota,
Florida . . . are significantly lower than those applicable in the forum,” and found that local rates
applied to the work performed in Florida. 2015 WL 2399211, at *4. However, petitioner did not
seek the forum rates for the Florida attorneys, but rather sought only forum rates for attorneys in
the firm’s D.C. office. Id. Furthermore, it is difficult to determine what difference the special
master found “very significant,” as the Florida attorneys to whom $300 per hour was awarded
had at least 17 years of experience, whereas the D.C. attorneys to whom $325 and $295 per hour
were awarded had 8 and 3 years of experience, respectively. Id. at *5-*7.
In this case, the median forum rate of $387.50 per hour is only 18.5% greater than a local
rate of $327 per hour. I also note that even when calculated differently, the rate difference
remains low. The requested forum rate of $415 is 26.9% higher than a $327 local rate, and the
highest-end McCulloch rate for attorneys with more than 20 years of experience, $425, is 30%
higher.12 In Avera, the Federal Circuit did not say that the forum rate should be used except
12
In Davis County, the court determined that the forum rate was 70% higher than the local rate, and in
Avera the court determined that the forum rate was nearly three times higher than the local rate. In
Masias, where the local rate was $220 per hour and the forum rate was $350 per hour, the special master
9
when the local rate is “different” or even “significantly different.” Rather, the court said the
forum rate should be used except where the local rate is “very significantly different.” The cases
in which very significant differences have been found were based on rate differentials higher
than the difference in this case, as explained above. Therefore, I have concluded that the Twin
Falls, Idaho rate is different, but not very significantly so, from the forum rate range in
McCulloch. The local Twin Falls, Idaho, rate is not very significantly different than the
Washington, D.C. forum rate, and Mr. Webb should receive the forum rate.
iii. Forum Rate
In McCulloch, I found $350 to $425 to be a reasonable rate range for attorneys with more
than 20 years of experience, depending on the special master’s judgment of the attorneys’ years
of experience in practice and in the Vaccine Program in particular, quality of advocacy in
vaccine cases, and reputation in the legal community and community at large. McCulloch, 2015
WL 5634323, at *17-*19.
Petitioner asserts that Mr. Webb should be compensated at $415 per hour, given that Mr.
Webb has 31 years of experience in the legal profession, and 27 years of experience representing
more than 275 petitioners in the National Vaccine Injury Compensation Program. Pet’r’s App. at
9. In addition, he served on the Advisory Committee on Childhood Vaccines (ACCV) from
1992 to 1995, and is currently a member of the Vaccine Committee of the Advisory Council to
the United States Court of Federal Claims. Id. at 8-9. Special Masters have noted that his work
is of high quality. Id. (citing Nuttall, 2014 WL 643584, at *4; Thorne-Erickson v. Sec’y of
Health & Human Servs., No. 96-361V, 1999 WL 1268149, at *5 (Fed. Cl. Spec. Mstr. Dec. 10,
1999)).
Respondent argues that the Davis County exception was designed to prevent windfalls for
attorneys practicing in substantially less costly home markets. Resp’s Opp. at 5. The court in
Davis County addressed “situations like the one we face, where out-of-jurisdiction lawyers
would receive substantially higher rates than they ordinarily command for work done almost
exclusively in their home territory.” Davis County, 169 F.3d at 758. It created the “very
significant difference in compensation favoring D.C.” rule to address the situation where a non-
D.C. attorney would be “vastly overcompensated” if D.C. forum rates applied. Id. (emphasis in
original). As discussed above, based on the decisions of the United States District Court for the
District of Idaho, it appears that Mr. Webb would be able to obtain rates comparable to
McCulloch rates for work in fee-shifting cases in Idaho. The range of $350 to $425 found in
McCulloch was designed to allow considerable discretion to the special masters to determine an
appropriate forum rate, and contemplated a “multi-factorial” analysis. McCulloch, 2015 WL
found that there was a 59% difference between local and forum rates. These cases calculate the
“difference” in rates based on the percentage by which the forum rate is an increase over the local rate,
which is represented by the following formula:
% increase or “difference” = [(forum rate - local rate) / local rate] 100
The calculation of the difference between local and forum rates for Mr. Webb in this case is based on the
same formula.
10
5634323, at *17. Based on the quality of Mr. Webb’s advocacy and years of vaccine program
experience, and considering rates awarded by the United States District Court for the District of
Idaho and rates awarded to Mr. Webb in the past, I find that Mr. Webb is entitled to $387.50 per
hour, the median forum range. Accordingly, I will award the median McCulloch rate of
$387.50 per hour to Mr. Webb for work performed in 2014-2015.
b. Attorneys’ Fees—Reasonable Hours Expended
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 & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983)).
A special master has “wide discretion in determining the reasonableness” of attorneys'
fees and costs. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33
F.3d 1375 (Fed. Cir. 1994). In making reductions, a line-by-line evaluation of the fee application
is not required. Wasson, 24 Cl. Ct. at 484. Special masters may rely on their experience with the
Vaccine Act and its attorneys to determine the reasonable number of hours expended. Id. Just as
“[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours
claimed in attorneys’ fee requests . . . [v]accine program special masters are also entitled to use
their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.
i. Attorney Curtis Webb
Petitioner requests compensation for 143.1 hours of work performed by Mr. Webb on this
matter. Pet’r’s App. at 9. Respondent contends that Mr. Webb’s hours should be reduced
because of excessive research beginning at the outset of the case, which respondent contends is
duplicative of research performed later in the case.13 Resp’s Opp. at 7-8. Respondent also states
that a limited process occurred in this case—petitioner filed the claim, obtained an expert report,
and had just begun assembling damages information at the time of filing the interim fees motion.
Id. at 9.
On review of petitioner’s application and billing log, I find the number of hours expended
reasonable. Petitioner submitted an adequate log of the hours and dates of services performed on
this case, and the name of the person providing the service. See Pet’r’s App., Attachment A. I
note, however, that petitioner’s billing log could be more detailed with respect to pairing smaller
blocks of time to particular tasks. For example, the time log indicates that counsel spent six
hours on April 30, 2014, on which day he “[r]eceived e-mail from client: re: Dr. Mignot as
13
Respondent notes that “[b]ecause of the vague billing entries, it is difficult to tell what hours were
devoted to research versus standard case preparations, but research appears to be the lion’s share of
significant block billing at the outset of the case.” Resp’s Opp. at 8 (citing Pet’r’s App., Attachment A at
2. 6 hours on 4/3/2014, 7 hours on 4/10/2014, 6 hours on 4/30/2014, 4 hours on 5/1/2014).
11
witness; H1N1/Narcolepsy research at Stanford; Prepared cause in fact case: review of medical
literature; treating physician records/opinions on causation; expert witness choice; Assessment
and proof on degree of disability; insurance coverage; Conferred by phone with client (x2),
Drafted Notes: current condition, terms of insurance policies.” Id. I emphasize that billing
records should contain discrete entries for each task performed. On April 30, for example, it
appears Mr. Webb performed at least four separate tasks—reviewing emails from the client,
performing research, other preparation of the case, and conferring with the client by phone.
Accordingly, Mr. Webb’s time log should contain separate entries reflecting the time spent on
each of these individual tasks so that the court can better assess whether the amount of time spent
on each was reasonable. Nevertheless, given the complex medical condition of his client and the
challenge of linking it to the vaccine, I find that the number of hours Mr. Webb spent on this
case is reasonable, and I will award attorneys’ fees for 143.1 hours of work performed by
Mr. Webb.
ii. Paralegal Alexander Webb
Petitioner requests compensation for 27 hours of work performed by Alexander Webb,
Curtis Webb’s son, at a rate of $100 per hour. Pet’r’s App. at 11. Alexander Webb is a senior at
Utah State University in Logan, Utah, and has worked for Mr. Webb since March, 2015. Id.
Petitioner states that the nature and quality of the work Alexander performs is similar to that
performed by paralegals and law clerks, but a somewhat lower rate is requested because
Alexander has not yet graduated from college. Id. at 12.
Respondent states that Alexander Webb appears to be a relative14 who worked part time
in Mr. Webb’s office, is not a paralegal in the true sense of the term, and is still an undergraduate
Resp’s Opp. at 8. Respondent also asserts that the paralegal hours billed (e.g., 11 hours of
highlighting) are redundant of tasks Mr. Webb and petitioner’s expert should have performed in
the time already billed, and should be reduced. Id.
I find that $50 per hour is a reasonable rate for the work performed by Alexander Webb.
Although petitioner notes that her request for a rate of $100 per hour represents a rate that is
already lower than the paralegal rate awarded in McCulloch, I find that an even lower rate is
appropriate based on Alexander Webb’s lack of experience. It does not appear that Alexander is
a certified paralegal, and he is still an undergraduate. In addition, he has been working for Mr.
Webb only since March 2015, and there is no indication that he has other experience with
paralegal-type work. The paralegal rate of $135 per hour awarded in McCulloch represented a
rate for the Conway, Homer & Chin-Caplan firm’s “well-qualified, carefully chosen college
graduates” who each had “several years at the firm doing exclusively vaccine work.”
McCulloch, 2015 WL 5634323, at *21. In addition, Mr. Webb’s affidavit states that when he
has used paralegals in the past, he has billed $100 for their work, a rate “based on what law firms
in Idaho charge for experienced paralegals.” Pet’r’s App., Affidavit at 7. Alexander Webb’s
experience appears to be significantly less than that of the paralegals for whom rates were
determined in McCulloch, and even appears less than paralegals for whom Mr. Webb has
previously requested a $100 per hour rate. Accordingly, I will compensate Alexander Webb
for 27 hours of work at a rate of $50 per hour.
14
Alexander Webb is Mr. Webb’s son. Pet’r’s Reply at 10.
12
c. Costs
The requirement that attorneys’ fees be reasonable also applies to costs. Perreira, 27 Fed.
Cl. at 34 (“Not only must any request for attorneys’ fees be reasonable, so must any request for
reimbursement of costs”).
Petitioner requests $12,626.51 for attorneys’ costs, and respondent has not objected to the
costs sought. Upon review, I find the requested costs associated with the litigation of this claim
reasonable. Accordingly, as requested, I award $12,626.51 in attorneys’ costs.
II. Conclusion
I award attorneys’ fees and costs as follows:
Requested Attorneys’ Fees: $62,086.50
Attorneys’ Fees Awarded: $56,801.25
Mr. Curtis Webb: $55,451.25
Mr. Alexander Webb: $1,350.00
Costs Awarded: $12,626.51
Total Fees & Costs Awarded: $69,427.76
Accordingly, the court awards:
(1) A lump sum of $69,427.76 in the form of a check payable jointly to petitioner
and petitioner’s counsel of record, Mr. Curtis R. Webb, for attorneys’ fees
and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.15
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
15
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
13