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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
LESIA JONES, *
* No. 19-0023V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 13, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Milton C. Ragsdale, IV, Ragsdale LLC, Birmingham, AL, for Petitioner;
Alexa Roggenkamp, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Lesia Jones’ motion for final
attorneys’ fees and costs. She is awarded $74,738.49.
* * *
On January 4, 2019, 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 hepatitis B and varicella vaccines she received on or
about September 7, 2016, which are contained in the Vaccine Injury Table, 42
C.F.R. §100.3(a), caused her to suffer post-herpetic neuralgia. On February 1,
2022, the parties filed a stipulation, which the undersigned adopted as his decision
awarding compensation on the same day. 2022 WL 540018 (Fed. Cl. Spec. Mstr.
Feb. 1, 2022).
On January 18, 2022, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner’s motion requests attorneys’ fees of $70,363.70 and
attorneys’ costs of $7,499.79 for a total request of $77,863.49. Pursuant to General
Order No. 9, petitioner has indicated that she has not personally incurred any fees
or costs related to the prosecution of his petition. Fees App. Ex. 4 at 2. On
February 1, 2022, 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, 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 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.
Petitioner requests the following rates of compensation for the work of her
counsel: for Mr. M. Clay Ragsdale, $400.00 per hour for work performed in 2017,
$410.00 per hour for work performed in 2018, $420.00 per hour for work
performed in 2019, $430.00 per hour for work performed in 2020, and $450.00 per
hour for work performed in 2021; and for Ms. Allison Riley, $270.00 per hour for
work performed in 2017, $290.00 per hour for work performed in 2018, $305.00
per hour for work performed in 2019, $325.00 per hour for work performed in
2020, and $350.00 per hour for work performed in 2021. The undersigned has
reviewed the requested rates and finds them to be reasonable and consistent with
what special masters have previously awarded to petitioner’s counsel for their
Vaccine Program work. See, e.g. Eason v. Sec’y of Health & Human Servs., No.
18-406V, 2022 WL 1869353 (Fed. Cl. Spec. Mstr. May 9, 2022); Brown v. Sec’y
of Health & Human Servs., No. 17-253V, 2018 WL 5095121 (Fed. Cl. Spec. Mstr.
Sept. 6, 2018). 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.
The undersigned has reviewed the submitted billing entries and finds the
request to be reasonable. Although the petition was not filed until January 2019,
the billing records indicate that work for this case began over two years earlier.
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Counsel’s time prior to filing appears well spent because petitioner filed all the
necessary medical records and a damages affidavit within two months of filing the
petition, and the matter progressed to settlement discussions quickly despite
multiple expert reports being filed. The billing entries contain sufficient detail to
permit the undersigned to assess their reasonableness, and upon review none
appear to be objectionable. Respondent also has not indicated that he finds any of
the billing entries to be objectionable. Therefore, petitioner is awarded final
attorneys’ fees in the amount of $70,363.70.
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
$7,499.79 in attorneys’ costs. This amount is comprised of acquiring medical
records, the Court’s filing fee, postage, and work performed by a medical expert,
Dr. Chander Raman.
Dr. Raman is an immunologist who billed 12.5 hours at $500.00 per hour to
review petitioner’s medical records and submitted an expert report. However, Dr.
Raman is not a medical doctor – he instead has a Ph.D. The undersigned has
previously found that an appropriate rate for people who have earned a Ph.D. in
immunology but do not have a medical license is $250.00 per hour, although a
higher rate of $300.00 is reasonable when the expert has very strong qualifications.
Lewis v. Sec’y of Health & Human Servs., No., 2020 WL 831998, at *7 (Fed. Cl.
Spec. Mstr. Jan. 24, 2020), mot. for rev. denied in relevant part, 149 Fed. Cl. 308,
314-15 (2020) (citing Dominguez v. Sec’y of Health & Human Servs., No. 12-
378V, 2018 WL 3028975 (Fed. Cl. Spec. Mstr. May 25, 2018)).
Dr. Raman was a competent expert but lacks some of the premier credentials
that would merit an hourly rate of $300.00, let alone $500.00 per hour. For
example, the immunologist in Lewis, Dr. Akbari, has years of demonstrated
Vaccine Program experience on top of excellent credentials. Petitioner has also
failed to substantiate $500.00 per hour as a reasonable rate for Dr. Raman or any
immunologist, such as an affidavit from Dr. Raman or perhaps another Ph.D.
immunologist. See Guidelines for Practice under the National Vaccine Injury
Compensation Program, Sect. X, Chap. 3 ¶ B.1.c (describing evidence relevant to
establishing a reasonable hourly rate for an attorney). Accordingly, $250.00 per
hour is a reasonable rate for Dr. Raman in this case. Dr. Raman’s invoice contained
a good amount of detail and the undersigned finds the hours he billed to be
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reasonable. Therefore, a reasonable amount for Dr. Raman’s work in this case is
$3,125.00.
The remainder of the costs are all reasonable and supported with the proper
documentation and shall be awarded in full. Petitioner is therefore awarded final
attorneys’ costs totaling $4,374.79.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $74,738.49 (representing
$70,363.70 in attorneys’ fees and $4,374.79 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Mr. M.
Clay Ragsdale, IV.
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.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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