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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
JACQUELINE M. DUNCAN, *
* No. 16-1367V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 7, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Braden A. Blumenstiel, The Law Office of DuPont & Blumenstiel, Dublin, OH,
for Petitioner;
Traci R. Patton, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Jacqueline Duncan’s motion for final
attorneys’ fees and costs. She is awarded $52,623.74.
* * *
On October 19, 2016, 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 human papillomavirus vaccination she received on
October 28, 2013, significantly aggravated her underlying pediatric autoimmune
neuropsychiatric disorder associated with streptococcal infections (“PANDAS”). A
more detailed explanation of the procedural history of this case is available in the
undersigned’s decision denying compensation. Briefly, once respondent indicated
he did not believe compensation was appropriate, petitioner submitted a letter from
Dr. Michael Joseph, one of treating physicians, and an expert report from Mr.
James Lyons-Weiler, who has a Ph.D. in ecology but is not a medical doctor.
Thereafter the undersigned issued an order to show cause on February 24, 2020,
indicating that if she failed to present “a credible, competent, and complete opinion
to support her claim that the HPV vaccination significantly aggravated her
PANDAS,” then her claim would be dismissed. After several extensions of time,
petitioner filed a response to the show cause order indicating that she intended to
file an updated report from Dr. Joseph. Respondent replied, indicating the case
should be dismissed because petitioner had failed to present any evidence to carry
her burden of proof. Petitioner failed to file anything thereafter and the
undersigned issued his decision dismissing the petition on October 19, 2020. 2020
WL 6738118 (Fed. Cl. Spec. Mstr. Oct. 19, 2020).
Petitioner filed a motion for review of the dismissal decision on November
18, 2020. Oral argument was held on March 30, 2021. On April 19, 2021, the
Court denied petitioner’s motion for review. 153 Fed. Cl. 642.
On October 16, 2021, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”), requesting a total of $77,657.96, comprised of $76,453.42 in
attorneys’ fees and $1,204.54 in attorneys’ costs. On October 29, 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.
The undersigned issued an order on July 21, 2022, requesting additional
information from petitioner in support of her fees motion, including
invoices/receipts of costs incurred, a detailed breakdown of expert costs, and a
General Order No. 9 statement. Petitioner made her responsive filing on August
18, 2022, indicating that counsel was unable to support two of the requested costs
and therefore waives them, bringing the requested attorneys’ costs to $1,138.98
and the total amount requested to $77,592.40. Pursuant to General Order No. 9,
2
petitioner has indicated she has not personally incurred any costs. Respondent did
not file a response to this filing.
* * *
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful the undersigned finds that good
faith and reasonable basis existed throughout the matter. Respondent has also
indicated that he is satisfied that good faith and reasonable basis have been
satisfied. Resp’t’s Resp., filed Oct. 29, 2021, at 2. Respondent’s position greatly
contributes to the finding of reasonable basis. See Greenlaw v. United States, 554
U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the parties present.”). A final
award of reasonable attorneys’ fees and costs is therefore proper in this case and
the remaining question is whether the requested fees and costs are 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.
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
3
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. Braden Blumenstiel, $225.00 per hour for all work performed in
this case (from 2018-2021); and for Mr. James Blumenstiel, $225.00 per hour for
all work performed in this case in 2016 and 2017. 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. Howie v. Sec’y of Health & Human Servs., No. 16-
1575V, 2022 WL 1553044 (Fed. Cl. Spec. Mstr. Apr. 22, 2022); Lawrence v.
Sec’y of Health & Human Servs., No. 14-835V, 2021 WL 5410246 (Fed. Cl. Spec.
Mstr. Oct. 27, 2021). 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 that
several reductions are necessary to the billed hours. First, concerning the entries of
Mr. Braden Blumenstiel, the undersigned has noted three entries which appear to
be included in error. On May 26, 2017, and May 10, 2018, counsel included entries
for expenses which have not been supported by the necessary documentation (one
of the costs was for medical records, the other cost was for a meal which counsel
also included as part of the costs and later declined to seek reimbursement for in
the supplemental filing). These costs were included in the total for attorneys’ fees
and shall not be reimbursed, resulting in a reduction of $118.67. There is also an
entry on October 20, 2020, in which a paralegal billed 0.6 hours on “Reading
Order of dismissal and denial of compensation” but inadvertently billed at an
hourly rate of $14,500.00 (the undersigned presumes this time was meant to be
billed at the established paralegal rate of $145.00 per hour). This has led to an
overbilling of $8,613.00 which shall also be reduced from the final award.
Additionally, some general billing issues necessitate a reduction. One issue
is that Mr. Blumenstiel has billed large amounts of time combining many tasks into
4
a single entry. For example, on July 6, 2018, he billed 5.6 hours to “Review
medical records and file and prepare material for experts” and on July 8, 2018, he
billed 7.1 hours for “Reviewed and summarized medical records. Prepared letter
for Obtaining expert opinion.” Fees App. Ex. 3, at 2. It would be helpful for Mr.
Blumenstiel to describe which records he was reviewing so the undersigned could
assess whether the time expended was reasonable. See Order regarding Attorneys’
Fees, issued Oct. 25, 2016 (warning against block billing). Excessive time was
spent on several occasions drafting routine one page status reports (examples on
7/25/19, 5/18/20, 7/31/20). Other minor issues include time spent on administrative
tasks, such as filing documents, and a component of a billing entry on November
25, 2019, when counsel drove to a doctor’s office to obtain a report but did not bill
this time at half his hourly rate.
In evaluating a motion for attorney's fees and costs, special masters “need
not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563
U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). The undersigned shall
therefore, in the exercise of his discretion in setting reasonable fees to be awarded,
reduce the request for attorney fees by fifteen percent, resulting in a further
reduction of $5,114.32. See Fields v. Sec’y of Health & Hum. Servs., No. 17-
1056V, 2022 WL 3569300, at *2-3 (Fed. Cl. Spec. Mstr. July 27, 2022) (citing
cases in which fee adjudicators reduced requests by various percentages), mot. for
rev. denied on other grounds, slip op. (Aug. 23, 2022).
Turning next to the hours billed by petitioner’s former counsel, Mr. James
Blumenstiel, the undersigned has noted several issues which require an overall
reduction. Mr. Blumenstiel billed time traveling to and from various appointments
at his full hourly rate, billed paralegal and administrative tasks such as acquiring
medical records and bates stamping and scanning those records at an attorney
hourly rate, and in general spent an excessive amount of time drafting routine
notices of filing and status reports (entries on 3/9/17, 3/21/17, 4/7/17, 4/20/17,
4/24/17, 5/1/17, 5/12/17, 6/13/17, 6/16/17). All of these issues have been noted
previously by other special masters concerning Mr. Blumenstiel’s billing. Howie,
2022 WL 1553044 at *1; Bailey v. Sec’y of Health & Human Servs., No. 15-
1417V, 2021 WL 4270225, at *2 (Fed. Cl. Spec. Mstr. Aug. 18, 2021); Lawrence,
2021 WL 5410246 at *2-3. For these issues, the undersigned finds it necessary to
reduce Mr. James Blumenstiel’s time by thirty percent, a reduction of $10,087.87.
Petitioner is therefore awarded final attorneys’ fees of $52,519.56.
C. Costs Incurred
5
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
$1,138.98 in attorneys’ costs. This amount is mostly attributable to an “expert
review fee” with the remainder comprised of acquiring medical articles. The costs
for the articles are reasonable and supported with adequate documentation and
shall be reimbursed. The expert review fee, however, is so vague and uncertain,
even after petitioner filed her supplement in support of the cost, that it cannot be
reimbursed.
Petitioner’s motion requests $1,034.80 for “J. Duncan: Expert review fee.”
Fees App. Ex. 1 at 10.2 No additional support of this cost was included. The
undersigned’s order on July 21, 2022, noted this issue and stated that “[t]he
application for payment of experts’ fees and costs must contain the same
supporting documentation that is required for attorneys’ fees – in particular, the
expert’s services must be identified with particularity in contemporaneous, dated
records indicating the amount of time spent on each task and the hourly rate billed
at.”3 Petitioner filed her supplement supporting the requested costs on August 18,
2022. In this filing, petitioner states that “Please note (on Ex. 2) that the 7/12/2019
expenditure of $2,069.60 is double the amount of the Expert Review Fee. Counsel
believes the $2,069.60 represents the fees for experts to review two different cases.
Thus, he is only seeking half of the expense on this case.” Supplement at 1. What
petitioner has attached as exhibit 2 is a printout of a Chase ATM & Debit Card
statement, showing a charge on 7/12/2018 in the amount of $2,069.60 for “07/11
Ammedicale 7039327777 VA Card 7971.” Supplement Ex. 2 at 2.
This documentation is wholly deficient. Petitioner has failed to provide an
invoice from the expert which contains a breakdown of the work performed, the
time expended on that work, and the hourly rate billed for that work, as requested
twice by the undersigned. Nowhere in the fees motion or supplement does it
explicitly state who performed the work petitioner now seeks reimbursement for,
leaving the undersigned to at best infer that it is for Mr. Lyons-Weiler. Petitioner is
2
The undersigned presumes that based on the date this cost was incurred (July 11, 2018),
that this is for work performed by Mr. Lyons-Weiler and not petitioner’s other medical expert,
Dr. Joseph, because on that same day petitioner filed a status report indicating that she had found
an expert to opine on her case and on November 27, 2018, petitioner ultimately filed an expert
report from Mr. Lyons-Weiler.
3
The requirements for an appropriate expert invoice were also covered in the
undersigned’s Order Regarding Expert Reports, issued August 8, 2017.
6
not even certain that the amount billed to this case is correct (“Counsel believes the
$2,069.60 represents the fees for experts to review two different cases.”) (emphasis
added). Petitioner was notified on several occasions of the requirements necessary
to receive reimbursement for expert work in the Vaccine Program and has failed to
provide that information. Accordingly, the cost for expert review cannot be
reimbursed.
Petitioner is therefore awarded final attorneys’ costs of $104.18.
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 $52,623.74 (representing
$52,519.56 in attorneys’ fees and $104.18 in attorneys’ costs) as a lump sum in the
form of a check jointly payable to petitioner and petitioner’s counsel, Mr. Braden
Blumenstiel.
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.4
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
7