Tarsell v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
EMILY TARSELL, as the Executrix *
of the Estate of CHRISTINA * No. 10-251V
TARSELL, * Special Master Christian J. Moran
Petitioner, *
* Filed: July 31, 2018
v. *
*
SECRETARY OF HEALTH * Attorneys’ fees & costs
AND HUMAN SERVICES, *
*
Respondent. *
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Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for petitioner;
Ann D. Martin, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND
COSTS1
Ms. Emily Tarsell brought a successful petition for compensation from the
National Childhood Vaccine Compensation Program. She now seeks an award for
attorneys’ fees and costs. She is awarded her requested amount in part.
* * *
Represented by Mr. Mark T. Sadaka, Ms. Tarsell filed her petition on April
19, 2010, alleging that the human papillomavirus (“HPV”) vaccine caused her
daughter, Christina, to die unexpectedly. Pet. at 1. Ms. Tarsell acted as the
executrix of Christina’s estate and sought compensation pursuant to the National
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
Childhood Vaccine Injury Compensation Program, codified at 42 U.S.C. §
300aa−10 through 34 (2012).
On May 17, 2015, petitioner filed a motion for interim attorneys’ fees and
costs for work performed through February 17, 2015. Petitioner was awarded
$173,107.70 in interim attorneys’ fees and costs. Interim Fee Decision, issued
May 19, 2015, 2015 WL 3631831.
After a motion for review and remand, the undersigned found, on September
25, 2017, that Ms. Tarsell was entitled to compensation. Ruling, 2017 WL
4583233. On December 18, 2017, petitioner filed a subsequent motion for interim
attorneys’ fees and costs. On January 16, 2018, the motion was denied, without
prejudice, because the resolution of the case was likely imminent. Order, issued
Jan. 16, 2018.
One month later, the parties agreed upon a proffer on award of
compensation, and the undersigned found the proffer reasonable. Decision, issued
Feb. 26, 2018, 2018 WL 1559865.
Petitioner filed the present motion for attorneys’ fees and costs on April 24,
2018. Petitioner requested $58,767.34 for attorneys’ fees and $587.90 for costs
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since February 17, 2015, and $877.14 for petitioner’s costs since 2008. Mot.
Attys’ Fees & Costs at 2.
On May 8, 2018, respondent filed his response to petitioner’s motion. In his
response, respondent did not object to petitioner’s motion. Resp’t’s Resp. at 2.
Instead, respondent deferred to the undersigned to determine the reasonableness of
petitioner’s motion. Id. at 3. This matter is now ripe for adjudication.
I. Attorneys’ Fees
Because Ms. Tarsell received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether petitioner’s requested amount is reasonable.
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
2
Petitioner’s motion for attorneys’ fees and costs has inconsistent pagination. Thus, for ease of
reference, cites to petitioner’s motion will refer to the PDF page numbers.
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process. See 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. See id. at 1348. Here,
because the lodestar process yields a reasonable result, no additional adjustments
are required.
A. Hourly 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. Avera, 515 F.3d at
1348-49. The forum in Vaccine Act cases will always be Washington, DC because
special masters operate as “extension[s] of the United States Court of Federal
Claims.” Id. at 1353. When deciding the reasonableness of requested rates,
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. See
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015, 2015 WL
5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for recons. denied, 2015
WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015).
Three attorneys worked on Ms. Tarsell’s case: Mr. Mark T. Sadaka, Ms.
Anna Sweeney, and Mr. Andrew Pinon. Mot. Atty’s’ Fees & Costs at 2. Four
paralegals worked on petitioner’s case: Ms. Bria Wilson, Ms. Keri Congiusti, Ms.
Melina Fotiou, and Ms. Michele Curry. Id. One law clerk, Mr. Peter Anastasio Jr.,
worked on petitioner’s case as well. Id.The undersigned finds all the requested rates for work between 2015 and
2018 reasonable.
B. Number of Hours Billed
Having established reasonable rates, the undersigned turns to the amount of
time counsel billed on this matter in order to determine the total fee award.
Petitioner’s counsel’s billing records reflect clerical, duplicative, and excessive
billing entries. In addition, counsel often relies on block billing. As elucidated
below, these findings indicate a reduction in the number of hours billed is
appropriate.
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Billing at any rate for clerical and other administrative work is not permitted
in the Vaccine Program because it is “considered as normal overhead office costs
included in attorneys’ fees . . . .” Rochester v. United States, 18 Cl. Ct. 379, 387
(1989). Filing documents is a clerical task for which attorneys should not charge.
See Guerrero v Secʼy of Health & Human Servs., No. 12-689, 2015 WL 3745354,
at *6 (Fed. Cl. Spec. Mstr. May 22, 2015), mot. for rev. denied in relevant part,
124 Fed. Cl. 153, app. dismissed, No. 2016-1753 (Fed. Cir. April 22, 2016).
Moreover, billing for administrative tasks, like scheduling and calendaring
deadlines, is also not compensable. See Kerridge v. Sec’y of Health & Human
Servs., No. 15-0852V, 2017 WL 4020523, at *3 (Fed. Cl. Spec. Mstr. July 28,
2017).
Furthermore, billing records reflecting duplicative billing are subject to
reductions. Duplicative billing includes multiple staff members and/or attorneys
reviewing and billing for the same tasks. See Z.H. v. Sec’y of Health & Human
Servs., No. 16-123V, 2018 WL 1835210, at *7 (Fed. Cl. Spec. Mstr. Mar. 6, 2018)
(reducing fees where “[m]ultiple attorneys reviewed the same orders and
notifications and all billed time for doing so”). In Turkopolis, Special Master
Millman reduced fees after noting a pattern of billing 0.10 attorney hours for
review of all filings, regardless of the filing’s length or complexity. See
Turkupolis v. Sec’y of Health & Human Servs., No. 10-351V, 2015 WL 393343, at
*13 (Fed. Cl. Spec. Mstr. Jan. 9, 2015).
Billing records reflecting excessive billing are also subject to reductions.
Billing for intra-office communication is unreasonable and excessive. See Ericzon
v. Sec’y of Health & Human Servs., No. 16-753V, 2016 WL 447770, at *3 (Fed.
Cl. Spec. Mstr. Jan. 15, 2016). Intra-office communication includes emails and
meetings between associates, paralegals, and lead attorneys. See Panaitescu v.
Sec’y of Health & Human Servs., No. 16-753V, 2017 WL 4876036, at *3 (Fed. Cl.
Spec. Mstr. Oct. 2, 2017) (holding counsel excessively billed for intra-office
communication and reduced the hours expended by 10%). Moreover, repetitive
billing for emails can be excessive when charging for sending and receiving emails
separately. See Guerrero, 124 Fed. Cl. at 159.
Finally, block billing is discouraged in the Vaccine Program. See Barry v.
Sec’y of Health & Human Servs., No. 12-039V, 2016 WL 683552, at *21-22; see
also Broekelschen v. Sec’y of Health & Human Servs., No. 07-137V, 2008 WL
5456319, at *5 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (making a total 20% deduction
because the block billing prevented a reasonable assessment due to “the lack of
more specific information . . . .”). The Vaccine Guidelines clearly state that
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“[e]ach task should have its own line entry indicating the amount of time spent on
that task. Several tasks lumped together with one time entry frustrates the court's
ability to assess the reasonableness of the request.” Guidelines for Practice Under
the National Vaccine Injury Compensation Program, at 68 (Office of Special
Masters, United States Court of Federal Claims, April 2016).
In this case, petitioner’s billing records reflect clerical and administrative
tasks that are not compensated for by the Vaccine Program. Such tasks are labeled
as: “prepare documents for trial binder,” “update schedule,” “file and serve,” or
“set docket deadline.” Mot. Attys’ Fees & Costs, Exhibit A at 1-3, 6-12. As noted
above, clerical tasks are not compensable and there are over twenty such entries.
See id.Petitioner’s records also indicate duplicative billing entries by Mr. Sadaka,
his associates, and his paralegals. The records indicate repetitious billing, where
Mr. Sadaka and another employee billed for the same entries. These entries are
described as “receipt/review” of notices, minute entries, orders, unopposed
motions, notices of assignment, or scheduling orders. Mot. Attys’ Fees & Costs,
Exhibit A at 1-12. Duplicative billing for such tasks is not reasonable, and there
are over fifty such entries. See id.Additionally, the undersigned finds that there are excessive entries by Mr.
Sadaka, his associates, his paralegals, and his law clerk. The excessive entries
include intra-office communication and billing for correspondence sent and
received. The excessive correspondence and intra-office communication billed for
are described as: “inhouse communication,” “prepare for attorney review,”
“communicate with associate attorney,” “communicate with peer counsel,”
“communicate with attorney,” “communicate with inhouse staff,” and separate
billings for sending and receiving “correspondence.” Id. at 1, 3-5, 7-11. There are
over forty such entries. See id.More generally, the block billing in petitioner’s records frustrates the
undersigned’s ability to assess the reasonableness of the time expended on each of
the aforementioned entries. Furthermore, the undersigned notes that using block
billing can often mask other deficiencies. For example, block billing can obfuscate
work that is clerical and/or duplicative in nature.
For the aforementioned reasons, the undersigned finds that a 20% reduction
in the number of hours billed is appropriate.
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II. Costs
The Vaccine Act also permits an award of costs. 42 U.S.C. § 300aa-15(e).
Like attorneys’ fees, a request for reimbursement of incurred costs must be
reasonable and supported by documentation. See Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
When a requested cost does not appear reasonable, special masters may not award
such a cost if it is undocumented and unexplained. See Riggins v. Sec’y of Health
& Human Servs., No. 99-382V, 2009 WL 3319818, at *15 (Fed. Cl. Spec. Mstr.
June 15, 2009), mot. for rev. den’d (slip op. Dec. 10, 2009), aff’d, 406 F. App’x
479 (Fed. Cir. 2011); Long v. Sec’y of Health & Human Servs., No. 91-326, 1995
WL 774600, at *8 (Fed. Cl. Spec. Mstr. Dec. 21, 1995) (the court “cannot
compensate petitioner for undocumented, unexplained charges”). Moreover, the
parties of a lawsuit are not entitled to witness fees for their missed work to attend
hearings. 28 U.S.C. § 1821; see Stevens v. CoreLogic, Inc., 893 F.3d 648, 660
(9th Cir. 2018); Picking v. Pennsylvania R. Co., 11 F.R.D. 71, 72 (M.D. Pa. 1951),
app. dismissed, 201 F.2d 672; Long, No. 91-326, at *2.
The undersigned finds most of the costs reasonable, except for two requests.
First, the $45.49 “Gift cost” entry listed under “Additional Charges” was not
accompanied by a receipt nor an explanation. Mot. Attys’ Fees & Costs, Exhibit A
at 13. Without supporting evidence or any explanation for the “gift cost,” the
undersigned cannot assess the reasonableness and cannot award said cost. Second,
petitioner’s requested $598.50 for cancelling six appointments with her clients to
attend the fact hearing. Mot. Attys’ Fees & Costs, Exhibit B at 1, 3. As the
executrix of her daughter’s estate, Ms. Tarsell is a party to this claim. As such, she
is not entitled to costs for missing work to attend the fact hearing.
Thus, the undersigned reduces petitioner’s costs by $643.99.
III. Conclusion
For the aforementioned reasons, petitioner’s request for attorneys’ fees is
reduced by 20%, and petitioner’s request for costs is reduced by $643.99. In
accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e), the undersigned
reviewed the billing records and costs in this case and finds petitioner’s request for
fees and costs, other than those reductions delineated above, is reasonable.
Accordingly, petitioner is awarded a total of $47,834.93 as follows:
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1. The total of $47,556.31, in the form of a check made payable
jointly to petitioner and petitioner’s counsel, Mark Theodore
Sadaka, of Mark T. Sadaka, LLC, for attorneys’ fees and costs;
and
2. The total of $278.62, in the form of a check made payable to
petitioner, for petitioner’s costs.
These amounts represent reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). 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.
s/Christian J. Moran
Christian J. Moran
Special Master
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