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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
ALFREDO GONZALEZ, *
* No. 17-174V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: July 8, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Alfredo Gonzalez’s motion for final
attorneys’ fees and costs. He is awarded $102,921.99.
* * *
On February 6, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
Petitioner alleged that the tetanus-diphtheria-acellular pertussis vaccine he received
on or about December 29, 2014, which is contained in the Vaccine Injury Table
(the “Table”), 42 C.F.R. §100.3(a), caused him to suffer Guillain-Barré syndrome.
The parties filed multiple expert reports, with petitioner retaining Dr. David
Simpson and respondent retaining Drs. Peter Donofrio and Carolyn Casella.
Thereafter, the parties agreed to start settlement discussions and on March 23,
2021, the parties filed a stipulation, which the undersigned adopted as his decision
awarding compensation on the same day. 2021 WL 2795423.
On July 1, 2021, petitioner filed a motion for final attorneys’ fees and costs
(“Fees App.”). Petitioner requests a total amount of $107,721.99 comprised as
follows: $77,833.25 in attorney’ fees, $29,861.10 in attorneys’ costs, and $27.64 in
costs personally incurred by petitioner. Fees App. at 1-2. On July 6, 2021,
respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id at 2. Additionally, he recommends “that the Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Because petitioner received compensation, he 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 the requested amount is reasonable
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
2
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
The undersigned has reviewed the hourly rates requested for the work of his
counsel at Conway, Homer, PC (the billing records indicate that the majority of
attorney work was performed by Ms. Lauren Faga, with supporting work
performed by Ms. Meredith Daniels, Ms. Christina Ciampolillo, Mr. Joseph
Pepper, Mr. Patrick Kelly, and Mr. Ronald Homer) and finds that the hourly rates
are consistent with what these attorneys have previously been awarded for their
Vaccine Program work. See, e.g., Skiles v. Sec’y of Health & Human Servs., No.
18-1597V, 2020 WL 5407823 (Fed. Cl. Spec. Mstr. Aug 14, 2020); Heddens v.
Sec’y of Health & Human Servs., No. 15-734V, 2019 WL 5791266 (Fed. Cl. Spec.
Mstr. Oct. 24, 2019). Accordingly, the requested hourly rates are reasonable.
B. Reasonable Number of Hours
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 also did not directly challenge any of the requested hours as
unreasonable.
Upon review, a small amount must be reduced for attorney time billed for
review of status reports prepared by other attorneys. The undersigned notes that it
is common practice for Conway, Homer, P.C. to have several attorneys assist over
the course of a case. In some instances, such as when preparing substantive
documents like the petition, briefs, and settlement demands, it is reasonable to have
another set of eyes review that document. However, it is not reasonable to have an
attorney bill for time to review routine filings, such as status reports and motions
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for enlargement of time, when those filings were prepared (and billed for) by
another attorney. This is not the first time the undersigned or other special masters
have noted this particular issue concerning Conway, Homer P.C. billing practices.
See, e.g., Manetta v. Sec’y of Health & Human Servs., No. 18-172V, 2020 WL
7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health &
Human Servs., No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr. Oct. 2,
2020).
To offset these issues, the undersigned finds a reduction of $800.00 to be
appropriate in this case. However, the undersigned notes that in future cases in
which these same issues arise, the reduction will increase to reflect both a
reduction of inappropriately billed time billed and a deterrent aspect to offset the
increased use of judicial resources necessary to address these repetitive issues.2
Accordingly, petitioner is awarded final attorneys’ fees of $77,033.25.
C. Costs Incurred
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). Petitioner requests a total of
$29,861.10 in attorneys’ costs. This amount is comprised of acquiring medical
records, postage, the Court’s filing fee, work performed by petitioner’s medical
expert, Dr. David Simpson (a neurologist), and work performed by petitioner’s life
care planner, Ms. Maureen Clancy.
Dr. Simpson billed a total of 36 hours at a rate of $500.00 per hour to review
petitioner’s records and prepare three expert reports (albeit one supplemental
report was necessary because Dr. Simpson did not adequately answer all of the
undersigned’s questions contained in the expert instructions in his first report). The
rate requested by Dr. Simpson is consistent with what has previously been found to
be reasonable by other special masters in cases where Dr. Simpson provided expert
reports. See Franklin v. Sec'y of Health & Human Servs., No. 16-193V, 2020 WL
6151367 at *2 (Fed. Cl. Spec. Mstr. Sept. 23, 2020); Q.P. v. Sec'y of Health &
Human Servs., No. 15-449V, 2019 WL 4013436 at *2-3 (Fed. Cl. Spec. Mstr. July
29, 2019). Based on prior decisions in the Program, $500.00 per hour is potentially
2
Attorneys at Conway, Homer have been previously warned that including duplicate
work of other attorneys may result in an increased deduction. See, e.g., Burgos v. Sec’y of
Health & Human Servs., No. 16-903V, 2022 WL 1055355 (Fed. Cl. Spec. Mstr. Mar. 15, 2022).
However, that warning was given after the fee application was submitted in this case.
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a reasonable hourly rate. However, Dr. Simpson failed to address all the questions
in the Expert Instructions and was alerted that the failure to answer all the
questions might reduce compensation. Final Instructions, issued Sep. 13, 2017, at
2 n.1. In addition, Dr. Simpson’s invoices consistently block-billed his work,
making the reasonableness of his efforts difficult to assess. See Fee App. at pdf
77-81. Experts are expected to list the amount of time they spent on particular
activities. See Caves v. Sec’y of Health & Human Servs., 111 Fed. Cl. 774, 781-
83 (2013); Morse v. Sec’y of Health & Human Servs., 89 Fed. Cl. 683 (2009);
Guidelines for Practice Under the National Vaccine Injury Compensation Program
Section X, Chapter 2, Section D (stating “[i]n particular, the expert’s services must
be identified with particularity in contemporaneous, dated records indicating the
amount of time spent on each task.”). Moreover, Dr. Simpson was advised to
create detailed invoices. Final Instructions at 7 (stating “A rule of thumb is that
every half hour should have a separate task, differentiated from other tasks”).
Accordingly, to account for both some concerns about the quality of Dr. Simpson’s
work as well as problems with his invoicing, compensation for Dr. Simpson’s
work is reduced to $14,000. Based upon the undersigned’s experience, $14,000 is
a reasonable amount of compensation for Dr. Simpson’s work.
Petitioner also requests that his life care planner, Ms. Maureen Clancy, be
compensated for 51.3 hours of work at $150.00 per hour. Fees App. at 98. This rate
is consistent with what the undersigned and other special masters have previously
awarded Ms. Clancy for her work and shall be awarded herein. See Harris v. Sec’y
of Health & Human Servs., No., 2018 WL 5816741 at *3 (Fed. Cl. Spec. Mstr.
Sept. 24, 2018). The hours billed are also reasonable and shall be fully reimbursed.
The remainder of the costs are typical of Vaccine Program litigation and
have been supported by appropriate documentation. Additionally, Pursuant to
General Order No. 9, petitioner has indicated that he personally incurred costs
totaling $27.64 for postage, which is reasonable and shall also be reimbursed.
Petitioner is therefore awarded the full amount of attorneys’ costs sought.
E. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, the undersigned awards the following:
1) a total of $102,894.35 (representing $77,033.25 in attorneys’ fees and
$25,861.10 in attorneys’ costs) as a lump sum in the form of a check
jointly payable to petitioner and petitioner’s counsel, Mr. Ronald Homer;
and
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2) a total of $27.64, representing reimbursement for petitioner’s costs, in the
form of a check payable to petitioner.
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.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
6