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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 30, 2020
* * * * * * * * * * * * * * *
THOMAS P. KELLEHER, * No. 16-1307V
*
Petitioner, *
* Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Decision; Interim Attorneys’ Fees;
AND HUMAN SERVICES, * Reduction for Administrative Tasks
*
Respondent. *
* * * * * * * * * * * * * * *
Nancy Routh Meyers, Ward Black Law, Greensboro, NC, for Petitioner.
Ronalda Elnetta Kosh, United States Department of Justice, Washington, D.C., for Respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES 1
On November 5, 2019, Thomas P. Kelleher (“Petitioner”) filed a motion for interim
attorneys’ fees, requesting $26,203.50 in interim attorneys’ fees for his counsel, Ms. Nancy
Routh Meyers. Pet’r’s Mot. for Int. Att’ys’ Fees, ECF No. 50 [hereinafter Pet’r’s Mot. for IAF].
On November 18, 2019, Respondent filed a response to Petitioner’s motion in which he indicated
a desire for “the Court [to] exercise its discretion and determine a reasonable award for
attorneys’ fees and costs.” Resp’t’s Resp. at 3, ECF No. 52. For the reasons stated below, I will
award interim attorneys’ fees to Petitioner at this time.
I. Procedural History
This is Petitioner’s second motion for an interim award. See Pet’r’s Mot. for Int. Costs,
ECF No. 39. On April 30, 2019, I issued a decision granting Petitioner’s first motion and
awarding him $9,923.42 in interim costs. See Dec., ECF No. 44. I will dispense with a full
recitation of the procedural history here, as I provided an in-depth review in my previous fee
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This decision shall be posted 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 means the decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such material
will be deleted from public access.
decision. See Kelleher v. Sec’y of Health and Human Servs., No. 16-1307V, 2019 WL 3036538,
at *1–2 (Fed. Cl. Spec. Mstr. Apr. 30, 2019).
Following the issuing of my decision, the parties have submitted further filings to the
Court. Petitioner filed a second supplemental expert report from Lawrence Steinman, M.D., on
November 18, 2019. Pet’r’s Ex. 40, ECF No. 53-1. On November 19, 2019, Respondent filed a
second supplemental expert report by Thomas Liest, M.D., Ph.D. Resp’t’s Ex. K, ECF No. 54-1.
Petitioner filed medical literature in support of Dr. Steinman’s second supplemental report on
November 25, 2019. Pet’r’s Exs. 41–43, ECF Nos. 55-1–55-4.
On December 11, 2019, Petitioner filed a status report indicating that he did “not intend to file
any additional expert reports at this time.” ECF No. 56. Neither party has submitted any additional
filings to date.
This matter is now ripe for consideration.
II. Availability of Interim Attorneys’ Fees and Costs
A. Good Faith and Reasonable Basis
Under the Vaccine Act, petitioners may recover reasonable attorneys’ fees and costs only
if “the petition was brought in good faith and there was a reasonable basis for which the petition
was brought.” 42 U.S.C. § 300aa-15(e)(1). Respondent does not object to Petitioner’s motion
on the basis of good faith or reasonable basis, and I find that the statutory criteria for an award of
interim attorneys’ fees are met.
B. Justification for an Interim Award
In Avera, the Federal Circuit stated that a special master may award attorneys’ fees and
costs on an interim basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed.
Cir. 2008). The court noted that such awards “are particularly appropriate in cases where
proceedings are protracted and costly experts must be retained.” Id. Similarly, the Federal
Circuit held in Shaw that it is proper for a special master to award interim attorneys’ fees
“[w]here the claimant establishes that the cost of litigation has imposed an undue hardship and
that there exists a good faith basis for the claim[.]” Shaw v. Sec’y of Health & Human Servs.,
609 F.3d 1372, 1375 (Fed. Cir. 2010).
Applying these standards, an award of interim costs is reasonable and appropriate in this
case. This case has been pending for over three-and-a-half years. To date, Petitioner has
submitted four expert reports and numerous exhibits in support of his petition. See Pet’r’s Exs.
1–40. Additionally, due to a multitude of factors, many cases in the Program are not proceeding
to an entitlement hearing as quickly as they may have in the past. See Abbott v. Sec’y of Health
& Human Servs., No. 14-907V, 2016 WL 4151689, at *4 (Fed. Cl. Spec. Mstr. July 15, 2016)
(“The delay in adjudication, to date, is due to a steady increase in the number of petitions filed
each year.”). Based on the number and nature of cases currently waiting for available hearing
dates, a hearing is not currently scheduled for this case in the coming months. Petitioner’s
counsel has requested over $26,000 in fees, and “[i]t cannot be seriously argued that in essence
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loaning cases thousands of dollars for years is not a hardship.” Kirk v. Sec’y of Health & Human
Servs., No. 08-241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009). Therefore, I
find an award of interim attorneys’ fees reasonable and appropriate in this case.
III. Reasonable Attorneys’ Fees
Only reasonable attorneys’ fees may be awarded, and 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 (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.”). In making a determination,
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).
The Federal Circuit has approved the lodestar formula to determine reasonable attorneys’
fees under the Vaccine Act. Avera, 515 F.3d at 1348. This is a two-step approach. 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.
A. Reasonable Rates
Forum rates are used in the lodestar formula, except when the rates in an attorney’s local
area are significantly lower than forum rates. Id. at 1348–49. In a 2015 decision, Special Master
Gowen determined the reasonable forum rate ranges for attorneys with varying years of
experience. See McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *18-19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for recons. denied, 2015 WL
6181910 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). When considering whether a requested rate is
reasonable, special masters may consider an attorney’s overall legal experience and experience
in the Vaccine Program, as well as the quality of the work performed. Id. at *17. The
McCulloch rates have been updated for subsequent years and are accessible on the court’s
website at http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters.
i. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the attorneys and paralegals who have
worked on this matter to date:
Attorneys:
- Nancy Routh Meyers:
o 2016: $350.00
o 2017: $350.00
o 2018: $375.00
3
o 2019: $390.00
Paralegals:
o 2016: $145.00
o 2017: $145.00
o 2018: $145.00
o 2019: $145.00
These rates are consistent with what Ms. Meyers has been previously awarded in Vaccine
Program. See Cook v. Sec’y of Health and Human Servs., No. 18-255V, 2019 WL 4256285, at
*2 (Fed. Cl. Spec. Mstr. Aug. 26, 2019); Wade v. Sec’y of Health and Human Servs., No. 17-
1039V, 2019 WL 4256263, at *2 (Fed. Cl. Spec. Mstr. Aug. 16, 2019); Trollinger v. Sec’y of
Health and Human Servs., No. 16-170V, 2019 WL 7565466, at *2 (Fed. Cl. Spec. Mstr. Oct. 31,
2019). I find these rates reasonable. Accordingly, no adjustment is required.
ii. Hours Expended
The second step in Avera is for the court to make an upward or downward modification
based upon specific findings. Avera, 515 F.3d at 1348. As outlined below, I have determined
that a reduction in the number of hours requested is appropriate.
While clerical and other administrative work is necessary in every case, billing separately
for such work is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct.
379, 387 (1989) (tasks that were “primarily of a secretarial and clerical nature . . . should be
considered as normal overhead office costs included with the attorneys’ fees rates”). Clerical
and administrative work includes tasks such as making travel arrangements, setting up meetings,
and reviewing invoices. See Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016
WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). It also includes organizing exhibits,
preparing compact discs, and filing records. Floyd v. Sec’y of Health & Human Servs., No. 13-
556V, 2017 WL 1344623, at *5 (Fed. Cl. Spec. Mstr. Mar. 2, 2017); Hoskins v. Sec’y of Health
& Human Servs., No. 15-071V, 2017 WL 3379270, at *3 (Fed. Cl. Spec. Mstr. July 12, 2017);
Kerridge v. Sec’y of Health & Human Servs., No. 15-852V, 2017 WL 4020523, at *3 (Fed. Cl.
Spec. Mstr. July 28, 2017). It is the nature of the tasks performed, not a person’s professional
title, which determines whether the work is legal, paralegal, or clerical in nature. Doe 11 v. Sec’y
of Health & Human Servs., No. XX–XXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan.
29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)).
The paralegal billing records contain entries for clerical and administrative tasks that are
not compensable in the Vaccine Program. For example, on October 12, 2016, a paralegal billed
.2 hours to “[f]ile [n]otice of [i]ntent to[f]ile on CD with Vaccine Court.” Pet’r’s Mot. for IAF,
Attach. 1, at 7, ECF No. 50-1. There are numerous other instances of billing time for preparing
and filing exhibits with the Court. See, e.g., id. (a .5-hour entry on 10/10/2016, to “[p]repare
CDs of [e]xhibits to be served on Vaccine Court Clerk and defense attorney.”); id. at 11 (a 1.9-
hour entry on 1/20/2017, reflecting the following tasks: “[f]iled [n]otice of [f]iling of [e]xhibit 9,
parts 1–8. Downloaded file-stamped copy. (1.2 [hours]). Filed updated exhibit list per Court’s
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requirement. Prepared and filed [s]tatus [r]eport requesting an extension to submit client’s
records from [medical provider]. (.7 [hours]).”); id. at 15 (a .3-hour entry to “[f]inalize [m]otion
for [e]xtension of [t]ime to [f]ile [e]xpert [r]eport and file with the Court.”); id. at 15–16 (a 6.1-
hour entry reflecting the following tasks: “Review and finalize expert report from Dr. Steinman
for filing with the Court (.9 [hours]); compile all references cited in report and prepare as
exhibits, including pagination, in preparation for filing (3.2 [hours]); . . . Prepare additional
references for filing with the Court (.9); Prepare and file [n]otice of [f]iling [e]xpert [r]eport
(Exhibit 11 ), updated [e]xhibit [l]ist and [n]otice of [i]ntent to [f]ile on CD (1.1 [hours]).”); id. at
21 (a .6-hour entry to “[f]ile Dr. Steinman's supplemental responsive expert report with cited
literature. File updated [e]xhibit [l]ist. Receipt and download file-stamped copies for our file.”).
Preparing, filing, and downloading exhibits and other documents with the Court are not
compensable tasks in the Program. By my review, there are at least seventeen instances of this
type of billing entry. Based on the number of hours spent on these tasks as indicated in the
billing records, the paralegals billed roughly 14.6 hours for this work. 2 Accordingly, I will
reduce Petitioner’s fee award by $2,117.00. 3
I find the remainder of Petitioner’s billing entries to be reasonable. Therefore, no further
reductions are necessary.
IV. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I award Ms. Myers
$24,086.50 in interim attorneys’ fees. Accordingly, I award the total of $24,086.50 to be issued
in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Ms. Nancy Meyers,
of Ward Black Law, for interim attorneys’ fees.
2
In some instances, Ms. Meyers grouped multiple tasks together in one billing entry without indicating
how much time was spent on each individual task. See, e.g., Pet’r’s Mot. for IAF, Attach. 1, at 5 (a .4-
hour entry for the following tasks: “Received client's vaccination record from Sam's Club Pharmacy.
Reviewed and prepared as exhibit for referencing in petition. Revised SOL in case files and in database
to reflect correct date. Sent client e-mail forwarding copy of vaccination records via e-mail attachment.”)
(emphasis added); id. (a .3-hour entry for the following tasks: “Received records from Jenner's Pond
Preston Residence. Prepared as exhibit for referencing in petition. E-mailed copy of records to client.”)
(emphasis added); id. at 7–8 (a .3-hour entry for the following tasks: “Review case notes to confirm there
were no outstanding records requests and e-mail to Attorney Meyers regarding same. Prepare [s]tatement
of [c]ompletion and filed same with the Court.”) (emphasis added). This type of billing practice, known
as “block billing,” is discouraged in the Program. See Mostovoy v. Sec’y of Health and Human Servs.,
No. 02-010V, 2016 WL 720969, at *6 (Fed. Cl. Spec. Mstr. Feb 4, 2016) (“Block billing, or billing large
amounts of time without sufficient detail as to what tasks were performed, is clearly disfavored[ in the
Vaccine Program].”); see also Guidelines for Practice Under the National Vaccine Injury Compensation
Program at 72 (revised Apr. 24, 2020), retrieved from http://www.uscfc.uscourts.gov/sites/default/files/
Guidelines-4.24.2020.pdf (last visited May 14, 2020) (“Each task should have its own line entry
indicating the amount of time spent on that task. Lumping together several unrelated tasks in the same
time entry frustrates the [C]ourt’s ability to assess the reasonableness of the request.”). This type of
billing practice also makes calculating the amount of time spent on each task difficult. Therefore, I will
value non-compensable tasks included in billing entries such as those listed above at .2 hours of time in
calculating my deductions to Petitioner’s fee request.
3
14.6 hours x $145.00 per hour = $2,117.00.
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In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT in accordance with the terms of the above decision. 4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
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