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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1284V
(not to be published)
DOLORES GORCZYCA,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Nancy R. Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On August 24, 2018, Dolores Gorczyca filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that she suffered Guillain-Barré syndrome as a result of
an influenza vaccination administered on October 3, 2017. (Petition at 1). On March 30,
2020, a decision was issued awarding compensation to Petitioner based on the
Respondent’s proffer. (ECF No. 48).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
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 means the Decision 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, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner filed a motion for attorney’s fees and costs, dated August 27, 2020 (ECF
No. 53) (“Fees App.”), requesting a total award of $16,689.74 (representing $15,205.90
in fees and $1,483.84 in costs). In accordance with General Order No. 9, Petitioner also
filed a signed statement indicating that she incurred no out-of-pocket expenses. (ECF No.
53-4). Respondent failed to file a response within the allotted time, and Petitioner did not
file a reply.
On September 21, 2020, I issued a decision awarding final fees and costs. Due to
an oversight, however, the issue of whether Petitioner’s counsel, Ms. Nancy R. Meyers,
should receive an increased hourly rate for a portion of the work performed in 2020 was
not specifically addressed in the body of the Decision. In order to correct this oversight,
on September 24, 2020, I withdrew that fees decision. (ECF No. 55). I now revisit in detail
the issue of Ms. Meyers’s proper hourly rates in this matter.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
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practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S., at 434.
ATTORNEY FEES
A. Hourly Rates
The main issue to be resolved is whether the hourly rates Petitioner has requested
for the work of Ms. Meyers are reasonable. Petitioner requests the following hourly rates:
$375.00 per hour for work performed in 2018, $390.00 per hour for work performed in
2019, $400.00 per hour for work performed in 2020 prior to joining her new law firm,
Turning Point Litigation (“TPL”), and $430.00 per hour for work performed after joining
TPL. The hourly rates of $375.00 to $400.00 are consistent with what I and other special
masters have previously awarded Ms. Meyers for her Vaccine Program work and are
therefore reasonable for her to receive in the instant case. See, e.g., Berlin v. Sec’y of
Health & Human Servs., No. 18-893V, 2020 WL 1896711 (Fed. Cl. Spec. Mstr. Mar. 16,
2020).
Petitioner argues that the rate increase to $430.00 per hour for part of 2020 is
reasonable because Ms. Meyers’ “change in employment has prompted a re-evaluation
of the appropriate rate structure and has necessitated that her rate be consistent with
[TPL] attorneys Allison Mullins and L. Cooper Harrell, with whom she now practices.”
Fees App. at 2.3 The seminal case discussing the factors relevant to a determination of
the reasonableness of an hourly rate was laid out in McCulloch v. Sec’y of Health &
Human Servs. and has since been adopted by every special master in the Vaccine
Program. No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
McCulloch outlines the following specific factors as paramount in deciding a reasonable
forum rate:
1. The prevailing rate for comparable legal work in the forum of Washington D.C.;
2. the Prevailing Rate for Cases in the Vaccine Program;
3. The experience of the attorneys in the Vaccine Program;
3 Petitioner also states that “[a] pending request for interim fees requesting the establishment of the rates
for the attorneys of Turning Point Litigation has been filed in the Kameron Hilton matter, 17-1739V, which
details the requested fee structure and the affidavits in support thereof.” Fees App. at 1-2. I have reviewed
the filings in that matter and note that they do not contain any additional relevant information beyond the
credentials of her new colleagues, Ms. Mullins and Mr. Harrell, and a reiteration of the argument that an
increase to Ms. Meyers’ 2020 rate post-TPL is needed to ensure consistency with the rates sought by her
colleagues. Those materials were not otherwise filed herein.
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4. The overall legal experience of the attorneys;
5. The quality of work performed in vaccine cases; and
6. Reputation in the legal community and community at large.
McCulloch, 2015 WL 5634323, at *17. Retroactive rate increases are disfavored. See,
e.g., Ramirez v. Sec’y of Health & Human Servs., No. 16-1180V, 2019 WL 948385, at *2
(Fed. Cl. Spec. Mstr. Jan. 30, 2019) (Noting that counsel “should only submit billing logs
that reflect the hourly rate previously awarded to him”) (emphasis added).
Ms. Meyers has previously been awarded $400.00 for her 2020 work based upon
application of the McCulloch factors. Her decision to change law firms does not alter how
those factors were applied in making that determination – and itself is not even something
under McCulloch that should prompt a change (and certainly not within the same year for
which there is already a well-founded rate determination). The mere act of changing firms
has not increased Ms. Meyers’ experience, the quality of her work, or her reputation in
the legal community (at least not in any way that Petitioner has argued nor is readily
apparent to me).
I also do not find that a comparison to the circumstances of Ms. Meyers’ new
colleagues, Ms. Mullins and Mr. Harrell, is grounds for a mid-year increase. These two
individuals have not had their hourly rates analyzed and approved in the Vaccine Program
- because they have almost no prior Vaccine Program experience. As of the date of this
decision, Mr. Harrell is the undersigned counsel in one pending case, and Ms. Mullins
was previously undersigned counsel in one pending case, in which Ms. Meyers
subsequently appeared upon joining TPL. Neither of those cases has produced a
reasoned decision suggesting what their fees should be, and neither attorney performed
work in this case that I could evaluate independently.
At bottom, Ms. Meyers’ 2020 rate should not be increased solely to ensure
consistency with the rates of her colleagues (especially when there is at this time no
independent basis for determining what their rates should be for Program work).
Petitioner has therefore not provided a persuasive argument that an increase is
appropriate based upon Ms. Meyers’ circumstances.4 For 2021 work, Ms. Meyers may
certainly seek a rate increase that takes into account her firm switch - and if well-
4 Petitioner’s motion also seeks an increased hourly rate for paralegal Jacqueline Taylor Barrett, from
$150.00 per hour to $154.00 per hour, for the same general reasons as Ms. Meyers. In determining
reasonable paralegal rates, McCulloch applied similar factors as those relevant for attorneys (noting a
college degree and concentrated work on Vaccine Program cases as factors which can enhance a
paralegal’s value). 2015 WL 5634323, at *21. Thus, a paralegal would not be entitled to a rate increase for
changing firms any more than an attorney would.
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substantiated her arguments may prove persuasive – but she cannot obtain a mid-year
increase based on the showing made herein.
Accordingly, I will continue to compensate Ms. Meyers at $400.00 per hour for all
work performed in this case in 2020, and her paralegal at $150.00 per hour for work
performed in 2020. Application of these rates results in a reduction of $87.40.
B. Hours Billed
Upon review, I find the billed hours to be reasonable. The billing entries describe
with sufficient detail the task being performed and the time spent on each task.
Respondent has not identified any particular entries as objectionable and upon review, I
did not find any entries to be objectionable either. Accordingly, Petitioner is entitled to a
final award of attorney’s fees of $15,118.50.
ATTORNEY COSTS
Just as they are required to establish the reasonableness of requested fees,
petitioners must also demonstrate that requested litigation costs are reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of
obtaining medical records and expert time incurred while working on a case. Fester v.
Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec.
Mstr. Aug. 27, 2013). When petitioners fail to carry their burden, such as by not providing
appropriate documentation to substantiate a requested cost, special masters have
refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec’y of Health &
Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30,
2005).
Petitioner requests $1,483.84 in overall costs. Fees. App. at 2. This amount is
comprised of obtaining medical records, the filing fee, postage, and photocopies. I have
reviewed all of the requested costs and find them to be reasonable, and Petitioner has
provided adequate documentation supporting them. Accordingly, Petitioner is entitled to
the full amount of costs requested.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Petitioner is awarded a lump sum of $16,602.34, representing reimbursement
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for attorneys’ fees and costs, in the form of a check payable jointly to Petitioner
and Petitioner’s counsel, Ms. Nancy Meyers.5
In the absence of a timely-filed motion for review (see Appendix B to the Rules of
the Court), the Clerk shall enter judgment in accordance with this decision.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924
F.2d 1029 (Fed. Cir.1991).
6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
6