Makstell Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1154V
(not to be published)
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LLOYD MAKSTELL and NADINE *
MAKSTELL WHITSETT, as Legal *
Representative of the Estate of EDWARD * Special Master Corcoran
B. MAKSTELL, Deceased, *
*
Petitioners, * Filed: September 11, 2018
*
v. *
* Attorney’s Fees and Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Otwell Sayers Rankin, B. Dahlenburg Bonar P.S.C., Covington, KY, for Petitioner.
Ryan Daniel Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING IN PART ATTORNEY’S FEES AND COSTS1
On September 16, 2016, Lloyd Makstell and Nadine Makstell Whitsett filed a petition on
behalf of Edward Makstell, deceased, seeking compensation under the National Vaccine Injury
Compensation Program (“Vaccine Program”).2 Pet. at 1, ECF No. 1. Petitioners alleged that Mr.
Makstell suffered from encephalopathy and related sequelae as a result of his September 18, 2013
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision in its present form will be
available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012) (“Vaccine Act” or “the Act”). All subsequent
references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
influenza vaccine, which ultimately led to his death. Id. The parties filed a stipulation for damages
on February 26, 2018, ECF No. 25, which I adopted as my Decision awarding damages. See
generally Decision, ECF No. 26.
Petitioners have now filed a motion requesting final attorney’s fees and costs, dated July
31, 2018 (ECF No. 31 (“Fees App.”)), requesting reimbursement in the total amount of $44,529.48
(representing $43,054.68 in attorney’s fees, plus $1,474.80 in costs). Fees App. at 2. Respondent
reacted to the motion on July 31, 2018, indicating that he believes Petitioners have satisfied the
statutory requirements for an award of attorney’s fees and costs and deferring to my discretion to
determine the amount to be awarded. Resp. Fees. App. at 2–3, ECF No. 32. Petitioners filed no
reply.
For the reasons set forth below, I hereby GRANT IN PART Petitioners’ motion, awarding
final attorney’s fees and costs in the amount of $30,788.13
BACKGROUND
Petitioners’ attorneys, Ms. Barbara Bonar and Mr. Otwell Rankin, began working on this
matter on January 22, 2015, nearly twenty-one months before litigation formally commenced. Fees
App. Ex. 1 at 1, ECF No. 31-1. Both attorneys spent many hours reviewing medical records,
communicating with Petitioners, and preparing materials for the initial filing. See generally id. at
1–4. Petitioners filed their initial claim on September 16, 2016, accompanied by extensive medical
records and other documentation. See generally Pet., ECF No. 1. The Joint Statement of
Completion was submitted on December 12, 2016. ECF No. 10. The parties thereafter engaged in
settlement negotiations throughout early 2017, and Respondent filed its Rule 4(c) Report on July
28, 2017. ECF No. 18. By early 2018, the parties had reached a settlement agreement. See
generally Stipulation, ECF No. 25.
ANALYSIS
Vaccine Program attorneys are entitled to a fees award in successful cases such as this one.
§ 15(e)(1); Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Determining the appropriate award amount
requires the special master to calculate a base figure using the lodestar method, i.e., “multiplying
the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera
v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). In arriving at this number, the special master may adjust the
number of hours reasonably expended on the basis of certain specific findings. McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *5 (Fed. Cl. Spec. Mstr. Sept. 1,
2015) (citing Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991)). This
2
standard for calculating a fee award is applicable in most cases where a fee award is authorized by
federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429–37 (1983).
a. Reasonable Hourly Rate
An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing
market rate” in the appropriate forum. Avera, 515 F.3d at 1348. That rate is in turn determined by
the “forum rule,” which bases the award on rates paid to similarly qualified attorneys in the forum
where the relevant court sits (Washington, D.C., for Vaccine Program cases). Id. However, when
the majority of counsel’s work is done outside the forum jurisdiction and when counsel’s local
rate would be “substantially lower” than District of Columbia rates, a local rate may be used
instead. Id. at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv.
Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Petitioners have requested compensation for their counsel at the following rates, which
they assert are appropriate in light of Ms. Bonar and Mr. Rankin’s respective years of experience:
Attorney 2015 2016 2017 2018
Ms. Bonar $450.22 $468.23 $487.13 $506.62
Mr. Rankin $338.14 $351.67 $365.74 $380.37
Fees App. at 4. The majority of Ms. Bonar and Mr. Rankin’s work in this case was done outside
the District of Columbia. See id. at 3. Their offices are located in the Cincinnati, Ohio metropolitan
area. Id. Accordingly, it is appropriate to compare Cincinnati rates and District of Columbia rates
to ascertain whether the two differ significantly. See Avera, 515 F.3d at 1349.
Special Masters Gowen and Roth addressed reasonable hourly rates for Ms. Bonar and Mr.
Rankin in Jones v. Sec’y of Health & Human Servs., No. 09-293V, 2016 WL 7233938 (Fed. Cl.
Spec. Mstr. Nov. 18, 2016) and Windhorst v. Sec’y of Health & Human Servs., 2017 WL 4768125
(Fed. Cl. Spec. Mstr. Sept. 27, 2017), respectively. In those cases, as here, the majority of Ms.
Bonar and Mr. Rankin’s work was performed in the Cincinnati metropolitan area. Jones, 2016 WL
7233938, at *2; Windhorst, 2017 WL 4768125, at *2. To determine whether Cincinnati rates
differed significantly from District of Columbia rates, Special Masters Gowen and Roth looked to
the “Rubin Committee” rates, an index of attorney’s fee rates often used in Cincinnati-area
attorney’s fee calculations. Jones, 2016 WL 7233938, at *3; Windhorst, 2017 WL 4768125, at *2.
The Rubin Committee rates were set in 1983 when, “in response to the growing number of
statutes that required the trial court to determine a reasonable fee to award the prevailing party,
former Chief Judge Carl Rubin of the Southern District of Ohio formed a committee to determine
3
a reasonable fee for attorneys in the Cincinnati area.” Kindel v. Cont’l Cas. Co., No. 1:02CV879,
2005 WL 1241975, at *4 (S.D. Ohio May 25, 2005). The rates are increased by 4 percent annually
for cost of living, Jones, 2016 WL 7233938, at *3, and decisions from the Southern District of
Ohio continue to reference the adjusted rates when determining appropriate attorney’s fee awards.
See, e.g., Concepta Bus. Sols., LLC v. Cogent Analytics, LLC, No. 1:16-cv-438, 2017 WL 1881341,
*10 (S.D. Ohio May 9, 2017); Vigna v. Emery Fed. Credit Union, No. 1:15-cv-51, 2016 WL
7034237, *5 (S.D. Ohio Dec. 2, 2016). Adjusted for cost of living, the Rubin Committee rates for
2015–18 are:
Experience 1983 2015 2016 2017 2018
0–2 years $61.77 $216.69 $225.36 $234.37 $253.10
2–4 years $71.62 $251.25 $261.30 $271.37 $282.62
4–5 years $82.81 $290.50 $302.12 $314.20 $326.77
6–10 years $96.39 $338.14 $351.67 $365.74 $380.37
11–20 years $113.43 $397.92 $413.84 $430.39 $447.61
20+ years $128.34 $450.22 $468.23 $487.13 $506.62
Gutter Topper, Ltd. v. Sigman & Sigman Gutters, Inc., No. 1:05-CV-149, 2015 WL 5016503, at
*4 (S.D. Ohio Aug. 25, 2015).
Ms. Bonar was first admitted to the bar in 1984, giving her thirty-four years of experience.
Fees App. at 4. She thus falls in the “20+ years of experience” category. Mr. Rankin began
practicing law in 2009, meaning he has nine years of experience, and therefore falls in the “6–10
years of experience” category. Id. However, as indicated by Special Master Gowen, Rubin
Committee rates should be reduced by 18.3 percent in Program cases in order to eliminate the risk
premium.3 Jones, 2016 WL 7233938, at *3 (citing McCulloch, 2015 WL 5634323, at *17–19).
Accordingly, taking into account their respective years of experience and the 18.3 percent
reduction, the local rates for Ms. Bonar and Mr. Rankin should be considered as follows:
Attorney 2015 2016 2017 2018
Ms. Bonar $367.83 $382.54 $397.99 $413.91
Mr. Rankin $276.26 $287.31 $298.81 $310.76
3
As explained by Special Master Gowen in McCulloch, many fee-shifting statutes outside the Program require a
party to prevail in order for it to receive attorney’s fees. McCulloch, 2015 WL 5634323, at *19. Such a requirement
necessitates that a “risk premium” be factored into fee awards. See id. However, petitioners in the Program may be
reimbursed for reasonable attorney’s fees and costs even if they do not prevail on their claims. See id. Thus, fee
indexes used to calculate reasonable fees in other areas of litigation should be reduced by 18.3% to account for the
absence of this risk premium. Jones, 2016 WL 7233938, at *3.
4
As indicated by Special Masters Gowen and Roth, these rates are not substantially different from
the District of Columbia rates enumerated in McCulloch and subsequently embraced by the Office
of Special Masters.4 Jones, 2016 WL 7233938, at *4; Windhorst, 2017 WL 4768125, at *2.
Petitioners’ counsel should therefore receive forum rates.5
Applying forum ranges and adhering to the rates set out for Ms. Bonar and Mr. Rankin in Jones
and Windhorst, I will employ the following rates:
Attorney 2015 2016 2017 2018
Ms. Bonar $385.00 $385.00 $395.00 $410.00
Mr. Rankin $250.00 $250.00 $281.00 $290.00
b. Hours Reasonably Expended
After determining appropriate hourly rates, special masters must consider the
reasonableness of the total hours expended. Sabella v. Sec’y of Health & Human Servs., 86 Fed.
Cl. 201, 205–06 (2009). This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or
duplication of effort is evident. Hensley, 461 U.S. at 434, 437. Pursuant to their skill and
experience, special masters may modify the hours expended in the lodestar calculation as they see
fit. McCulloch, 2015 WL 5634323, at *5 (citing Wasson, 24 Cl. Ct. at 484). They need not engage
in a line-by-line analysis of billing records when determining whether an overall hour reduction is
proper. Id. Indeed, when appropriate, special masters may reduce attorneys’ hours by a percentage
rather than proceeding line by line. Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691,
702 (2016). The Court of Federal Claims has indicated that “percentage reductions ‘are subject to
4
The forum rate tables are available online at http://www.uscfc.uscourts.gov/node/2914.
5
In previous determinations regarding whether attorneys are entitled to forum rates, I have looked to other federal
cases in the relevant district. E.g., Dezern v. Sec’y of Health & Human Servs., No 13-643V, 2016 WL 6678496, *5
(Fed. Cl. Spec. Mstr. Oct. 14, 2016). In particular, I have considered rates awarded to counsel in Fair Debt
Collection Practices Act (“FDCPA”), Fair Credit Reporting Act (“FCRA”), and Fair Labor Standards Act (“FLSA”)
cases, as these practice areas, like Vaccine Program cases, are considered relatively straightforward, and therefore
involve comparable work performed under a federal fee-shifting statute. Id. A sampling of recent fee awards from
FDCPA and FLSA cases from the Southern District of Ohio (where Cincinnati is located) further supports my
finding that Cincinnati rates do not differ significantly from forum rates. See, e.g., Thompson v. Rosenthal, No. 2:14-
cv-37, 2014 WL 7185313, *5 (S.D. Ohio Dec. 16, 2014) (FDCPA; approving a $400 hourly rate for an attorney with
over thirty years of experience); Wright v. Premier Courier, Inc., No. 2:16-cv-420, 2018 WL 3966253, *6 (S.D.
Ohio Aug. 17, 2018) (FLSA; approving a $350 hourly rate for an attorney with over thirty years of experience and a
$225 hourly rate for an attorney with roughly five years of experience). Accordingly, although I am relying here on
prior fees determinations involving the Rubin Committee rates, my determination that these particular lawyers are
entitled to forum rates would be the same even if I simply adhered to my usual analytic approach in such
circumstances.
5
heightened scrutiny’” and that special masters employing them “must provide a ‘concise but clear’
explanation as to why the fee reduction is justified.” Id. (citations omitted).
Upon review of Petitioners’ counsel’s billing statements, I will reduce their total
enumerated hours on the basis of certain billing log entries containing activities that should have
been billed at lower rates or should not have been billed at all. As discussed in greater detail below,
I have chosen to employ a percentage reduction because bulk billing log entries make it impossible
to determine precisely how much time should have been billed at a lower rate or not billed at all.
First, I note that time spent traveling is generally compensated at one-half of the attorney’s
hourly rate. Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed.
Cl. Spec. Mstr. June 5, 2014) (citations omitted). Petitioners’ counsel’s billing records, however,
reflect that Mr. Rankin billed full hourly rates for round-trip travel to Cincinnati, Ohio, on two
occasions. Fees App. Ex. 1 at 3, 7. These entries both lump the travel time in with other activity,
id., so it cannot be said exactly how many hours should be billed at a reduced rate. See, e.g., id. at
3 (“Traveled to 1050 Mehring Way; met with Nadine Whitsett (Injured’s daughter); returned from
1050 Mehring Way, Cincinnati, OH—2.50 hours”). While special masters routinely halve the rate
for improperly-billed travel time, see, e.g., McCulloch, 2015 WL 5634323, at *26, I am unable to
do so here, because Mr. Rankin did not indicate how much time out of each of these entries was
spent in transit.
Second, work that could be done by a paralegal, such as organizing exhibits, should be
billed at an appropriate paralegal rate.6 Mostovoy v. Sec’y of Health & Human Servs., 2016 WL
720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). The billing records include bulk entries reflecting
at least some paralegal-level work, such as the 5.50 hours Mr. Rankin spent to “Conduct
organization/ edit of Petition package and all attachments, including affidavits, medical records in
preparation for filing. File Petition and attachments.” Fees App. Ex. 1 at 4. Mr. Rankin billed
another 1.75 hours at a paralegal rate of $135 per hour that same day to “Prepare copy of Petition
package including all attachments, for distribution; mail.” Id. It is unclear why, over the course of
three years of work in this matter, only that one time log entry was billed at a paralegal rate. Rather
than attempting to parse out which components of certain bulk entries were paralegal-level
organizational work and which were attorney-level tasks, I will simply take these bulk entries into
consideration when modifying the overall hours expended.
Finally, work that is clerical or secretarial in nature, such as arranging meetings, should not
be billed at all. Mostovoy, 2016 WL 720969, at *5. Yet several of the entries in counsel’s billing
log are of such an administrative nature. See, e.g., Fees App. Ex. 1 at 6 (“Receipt and review Non-
6
Forum paralegal rates for 2018 are $132–$153. See OSM Attorneys’ Forum Hourly Rate Fee Schedules,
http://www.uscfc.uscourts.gov/node/2914.
6
PDF Scheduling Order re: Status Conference held on May 2, 2017, calendar dates—0.20 hours”),
7 (“Emailed Nadine to schedule time to meet at her office—0.10 hours”). Because several of these
entries also include a combination of attorney work and clerical work, I will not strike specific
time entries altogether, but rather factor them in when determining an overall hour reduction.
Upon consideration of the travel and the paralegal-level and clerical work scattered
throughout Petitioners’ counsel’s billing logs, I will reduce the overall hours total by 10%. As a
result, the final attorney’s fees award shall be $30,246.03,7 a reduction of $12,808.65.
c. Reasonable 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 (1992). Reasonable costs include, for example, expenses incurred
to obtain medical records and expert reports, as well as filing fees, postage, and photocopying. See,
e.g., Sabella, 86 Fed. Cl. at 224. Petitioners may fail to carry their burden of demonstrating that
requested costs are reasonable if they do not provide appropriate documentation to substantiate a
requested cost. See Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL
6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). In such instances, special masters have
refrained from awarding compensation. See, e.g., id.
Petitioners request $1,474.80 in costs associated with this matter. Fees App. at 7. The
requested costs are for obtaining medical records, photocopies, and the filing fee in this matter.
Fees App. Ex. 1 at 10–11. However, although counsel has recorded these costs as part of a larger
invoice, documentation was provided for only four of the twenty-one requested line item expenses.
See Substantiating Documents for Costs, filed Sept. 11, 2018, ECF No. 33. Specifically,
Petitioner’s counsel provided substantiation for the cost of obtaining copies of medical records on
7
Based on the following calculations:
 Ms. Bonar:
o 2015: $385 x (90% of 6 hours) = $2,079.00
o 2016: $385 x (90% of 4.7 hours )= $1,628.55
o 2017: $395 x (90% of 1.65 hours) = $568.58
o 2018: $410 x ((90% of 5.75 hours) = $2,121.75
Subtotal for Ms. Bonar: $6,415.88
 Mr. Rankin:
o 2015: $250 x (90% of 26.25 hours) = $5,906.25
o 2016: $250 x (90% of 35.25 hours) = $7,931.25; $135 x (90% of 1.75 hours) = $212.63
o 2017: $281 x (90% of 26.7 hours) = $6,752.43
o 2018: $290 x (90% of 11.6 hours) = $3,027.60
Subtotal for Mr. Rankin: $23,830.16
Total: $30,246.03
7
August 9, 2016 ($17.80, Ex. 8) and September 1, 2016 ($106.85, Ex. 9); the filing fee ($400.00,
Ex. 10); and the postage receipt for mailing a copy of the petition to Respondent ($17.45, Ex. 11).
While I find the substantiated costs to be reasonable, I cannot determine the reasonableness of all
other requested costs without proper documentation. Accordingly, Petitioners shall receive
$542.10 for costs, a reduction of $932.70.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e).
Accordingly, I award a total of $30,788.13 (representing $30,246.03 in attorney’s fees and $542.10
in costs) as a lump sum in the form of a check jointly payable to Petitioners and their counsel, Mr.
Otwell Rankin, Esq. 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.8
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
8
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
8