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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
SHANNON FROGGE, *
* No. 16-1693V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 25, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Attorney Hourly Rate;
* Expert Hourly Rate
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for
Respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Shannon Frogge’s motion for final
attorneys’ fees and costs. She is awarded $65,726.81.
* * *
On December 23, 2016, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccination she received on December 23,
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.
2013, caused her to develop Guillain-Barré syndrome, paresthesia, and neuropathy.
On October 15, 2018, a fact hearing was held in Salt Lake City, Utah, followed by
more records being identified and filed and post-hearing briefs. The undersigned
issued a Findings of Fact on March 31, 2020, establishing the onset dates of
petitioner’s injuries.
Thereafter, petitioner retained an expert, Dr. Frederick Nahm, to file a report
explaining the diagnosis of GBS and the presentation of symptoms as established
in the Findings of Fact. The undersigned identified multiple problems with Dr.
Nahm’s initial report, such as not adhering to the Findings of Fact and not
identifying and explaining the diagnostic criteria. A revised report was filed on
November 9, 2020 – however, this report still contained many of the same issues.
For example, Dr. Nahm did not identify his basis for concluding petitioner suffered
atypical GBS and introducing the possibility of petitioner suffering from chronic
inflammatory demyelinating polyneuropathy.
A status conference was held on May 26, 2021, in which the undersigned
proposed that moving forward, petitioner may be required to show cause as to why
her cause should proceed based upon the lack of persuasive evidence in this case.
Based upon accumulated experience, the undersigned tentatively found that
petitioner was unlikely to establish entitlement because her diagnosis remained in
question and her expert had failed to persuasively explain why GBS was the proper
diagnosis and also failed to present evidence establishing a five-month interval
between vaccination and first symptoms as causally appropriate. On August 26,
2021, petitioner moved for a decision dismissing her petition. On the same day, the
undersigned issued his decision dismissing the petition for insufficient proof. 2021
WL 4268389.
On February 22, 2022, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $58,036.90 and
attorneys’ costs of $20,528.66 for a total request of $78,565.56. Fees App. at 2.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of her case. Id. On March 15, 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 that he defers to the Court
regarding whether the statutory requirements for an award of attorneys’ fees and
costs are met in this case and, should the Court determine that the requirements
have been met, exercise its discretion and determine a reasonable award. Id. at 4-5.
2
On April 22, 2022, the undersigned filed an order requesting that the parties
submit a filing addressing the reasonable basis of the claim. Petitioner submitted
her filing on June 22, 2022, arguing that reasonable basis existed for the claim to
proceed as it did, and requesting an additional $5,070.00 in attorneys’ fees for time
spent responding to the undersigned’s order, thus bringing the total amount
requested to $83,635.56. Respondent submitted his filing on July 22, 2022,
indicating that “[w]hile the weaknesses of petitioner’s evidence ultimately resulted
in the dismissal of her claim, it appears that petitioner submitted enough evidence
to satisfy the statutory requirement for an award of attorneys’ fees and costs.”
Resp’t’s Response to Memorandum at 7-8.
* * *
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, Respondent has
indicated that he is satisfied that good faith and reasonable basis have been
satisfied. 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)
3
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 Ms. Amy Senerth, $225.00 per hour for work performed in 2018,
$233.00 per hour for work performed in 2018, $250.00 per hour for work
performed in 2019, $275.00 per hour for work performed in 2020, $300.00 per
hour for work performed in 2021, and $325.00 - $350.00 per hour for work
performed in 2022; and for Mr. Max Muller, $275.00 per hour for work performed
in 2016, $300.00 per hour for work performed in 2017, and $400.00 per hour for
work performed in 2022. The undersigned has reviewed the requested rates and
finds them to be reasonable and consistent with what the undersigned has
previously awarded to petitioner’s counsel at Muller Brazil, LLP for her Vaccine
Program work. See, e.g. Viner v. Sec’y of Health & Human Servs., No. 20-357V,
2022 WL 9790765 (Fed. Cl. Spec. Mstr. Sept. 30, 2022); Pavlicek v. Sec’y of
Health & Human Servs., No. 19-1573V, 2022 WL 4115663 (Fed. Cl. Spec. Mstr.
Aug. 12, 2022).
However, the undersigned notes that Ms. Senerth billed her 2022 time at two
different hourly rates. In the original fees motion, she billed at $325.00 per hour,
and for work performed responding to the undersigned’s order, she billed $350.00
per hour. Petitioner has offered no justification for a rate increase in the middle of
the year, and the undersigned finds $325.00 to be a reasonable rate for all work
performed by Ms. Senerth in 2022. Application of this rate results in a reduction of
$242.50.
A larger issue concerns the work of counsel done after the issuance of the
undersigned’s Findings of Fact on March 31, 2020. The record reflects that
counsel’s time was not well-spent advancing petitioner’s cause after that date.
Despite the Findings of Fact placing petitioner’s onset outside of the time frame
typically associated with GBS, petitioner chose to obtain an expert in order to
advance an argument that petitioner’s GBS was atypical. However, the expert’s
work did little to advance petitioner’s cause, and counsel took much longer than
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typical in obtaining the reports (petitioner ultimately filed five motions for
extension of time to obtain the initial report and supplemental reports from Dr.
Nahm). Dr. Nahm’s reports also were not helpful to petitioner’s cause, as they did
not abide by the Findings of Fact set forth by the undersigned. That Dr. Nahm was
unable to correct these defects even after multiple attempts reflects, at least in part,
poor work by counsel to adequately apprise Dr. Nahm of the requirements set forth
by the undersigned.
When counsel should recognize a claim’s issues but continues to litigate the
claim despite diminishing returns, it is unreasonable to award the full amount of
attorneys’ fees. Austin v. Sec’y of Health & Human Servs., No., 2019 WL
4126538, at *4 (Fed. Cl. Spec. Mstr. Jul. 31, 2019); Anderson v. Sec'y of Health &
Human Servs., No. 02-1314V, 2018 WL 6787880, at *1-2 (Fed. Cl. Spec. Mstr.
Nov. 16, 2018); Pope v. Sec'y of Health & Human Servs., No. 14-078V, 2017 WL
5380926, at *3 (Fed. Cl. Spec. Mstr. Sept. 11, 2017); R.V. v. Sec'y of Health &
Human Servs., No. 08-504V, 2016 WL 7575568, at *4-5 (Fed. Cl. Spec. Mstr.
Nov. 28, 2016).
Ultimately, the undersigned finds it reasonable to compensate Ms. Senerth’s
time expended following the issuance of the Findings of Fact at fifty percent of her
typical hourly rate.2 This results in a reduction of $6,126.25.
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 an
overall reduction to the requested fees is warranted. First, a small reduction must
be made to account for administrative tasks such as paralegals filing documents
and attorneys billing time to direct their filing. See Guerrero v. Sec’y of Health &
Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May
22, 2015) (citing cases), mot. for rev. den’d in relevant part and granted in non-
relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-1753 (Fed.
2
Alternatively, the number of hours could be reduced by fifty percent and the
mathematical calculation would be the same.
5
Cir. Apr. 22, 2016). The undersigned will reduce the final award of fees by
$1,000.00 to account for these issues.
Petitioner is therefore awarded final attorneys’ fees of $55,738.15.
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
$20,528.66 in attorneys’ costs. Most of this amount ($14,880.00) is attributable to
work performed by Dr. Nahm with the balance comprised of acquiring medical
records, postage, the Court’s filing fee, and travel costs to attend the fact hearing in
Salt Lake City. These costs are reasonable and supported with the necessary
documentation and shall be fully reimbursed. Dr. Nahm’s work, however, requires
additionally discussion.
Dr. Nahm’s invoice reflects 24.8 hours billed at $600.00 per hour. The
undersigned finds that the hours billed are reasonable and similar to the amount of
time expended by Dr. Nahm in reviewing records and preparing multiple reports in
other cases. However, $600.00 per hour for Dr. Nahm’s work is not reasonable. As
a starting point, the undersigned notes that Dr. Nahm’s work has typically been
compensated at $500.00 by the undersigned and other special masters. See, e.g.,
Karapetian v. Sec’y of Health & Human Servs., No. 19-546V, 2022 WL 1865083,
at *3 (Fed. Cl. Spec. Mstr. May 9, 2022). However, Dr. Nahm’s work in this case
does not merit his usual rate. See Frantz. v. Sec’y of Health & Human Servs., 146
Fed. Cl. 137, 146 (2019) (affirming that special masters may reduce the
compensation rate for an expert when that expert’s work was not worth the charged
rate).
Dr. Nahm’s first report did not cite to medical literature to identify the
diagnostic criteria for GBS nor did Dr. Nahm explain how diagnostic criteria
would vary for an atypical presentation of GBS. Further, Dr. Nahm’s report did not
consistently adhere to the factual findings issued by the undersigned related to the
onset of petitioner’s neurologic symptoms on May 15, 2014. Scheduling Order,
issued August 10, 2020, at 1. Given these issues, the undersigned requested that
petitioner obtain a revised report from Dr. Nahm. However, the revised report
suffered from many of the same issues as the first report, namely that Dr. Nahm
had not identified the basis for determining that petitioner suffered from “atypical
GBS.” Scheduling Order, issued December 15, 2020, at 1. Furthermore, Dr.
Nahm’s suggestion that petitioner suffered from CIDP further confused the issues
6
and his discussion of peripheral nerve hyperexcitability syndrome did nothing to
advance petitioner’s claim for compensation. Id. A second supplemental report,
filed on April 5, 2021, also did not clearly explain how fasciculations could be a
manifestation of GBS. Ultimately, none of Dr. Nahm’s work product in this case
served petitioner well. These compounding problems reduce the value of Dr.
Nahm’s contributions to petitioner’s case. The undersigned finds that a reasonable
rate for Dr. Nahm’s work in this case is $175.00 per hour, making a reasonable
total for his work $4,340.00.
Petitioner is therefore awarded final attorneys’ costs of $9,988.66.
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 $65,726.81 (representing
$55,738.15 in attorneys’ fees and $9,988.66 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Ms. Amy
Senerth.
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.
7