Middleton v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 12, 2020
* * * * * * * * * * * * * *
EMILY MIDDLETON, * No. 17-1910V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner;
Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On December 8, 2017, Emily Middleton (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq.
(2012). Petitioner alleged that she developed rheumatoid arthritis and/or other neurologic and
physical impairments and other injuries as a result of the human papillomavirus vaccinations she
received on May 28, 2015, August 14, 2015, and/or February 29, 2016. Pet. at 1, ECF No. 1. On
April 22, 2019, Petitioner filed a motion for a decision dismissing her petition, and on April 30,
2019, the undersigned dismissed the petition for insufficient proof. ECF No. 38.
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling will be available to anyone with access to the Internet. In accordance with Vaccine
Rule 18(b), petitioner has 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. Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
On May 31, 2019, Petitioner filed a motion for final attorneys’ fees and costs, which was
opposed by Respondent. The undersigned issued her decision granting Petitioner’s fees motion on
January 6, 2020. ECF No. 47.3 On February 5, 2020, Respondent filed a motion for review and on
March 6, 2020, Petitioner filed her response. The Court of Federal Claims denied Respondent’s
motion for review on July 6, 2020. ECF No. 55.
On July 22, 2020, Petitioner filed a second motion for final attorneys’ fees and costs. ECF
No. 59 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$15,825.03, representing $15,803.50 in attorneys’ fees and $21.53 in attorneys’ costs, for work
done on the appeal to the Court of Federal Claims. Fees App. at 2. Respondent responded to the
motion on August 4, 2020, stating that Respondent “is satisfied that the statutory requirements for
an award of attorneys’ fees and costs are met in this case” and asking the Court to “exercise its
discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3,
ECF No. 61. Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. 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.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.3
A corrected fees decision was issued on September 30, 2020. ECF No. 65.
a. Hourly Rate
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.4
The undersigned has reviewed the requested hourly rates for Petitioner’s counsel at Black
McLaren (the billing records indicate that the majority of attorney work was performed by Mr.
Chris Webb, with supporting work provided by Mr. Michael McLaren and Mr. William Cochran,
Jr.) and finds that the rates are consistent with what these attorneys have previously been awarded
for their Vaccine Program work. Accordingly, the rates are reasonable.
b. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and upon review, the
undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $15,803.50.
c. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $21.53 in attorneys’ costs, comprised of photocopies and legal research charges. These
costs are reasonable and shall be fully reimbursed.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $15,803.50
(Reduction to Fees) -
4
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
Total Attorneys’ Fees Awarded $15,803.50
Attorneys’ Costs Requested $21.53
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $21.53
Total Attorneys’ Fees and Costs $15,825.03
Accordingly, the undersigned awards a lump sum in the amount of $15,825.03,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and Petitioner’s counsel, Mr. Michael McLaren.
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.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.