Murray v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 28, 2019
* * * * * * * * * * * * * *
SARAH D. MURRAY, on behalf *
of her daughter, C.E.M., a minor child, *
*
Petitioner, * No. 17-361V
* Special Master Sanders
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Matthew J. Williams, Hodsdon & Ayer, Kennebunk, ME, for Petitioner.
Heather L. Pearlman, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 17, 2017, Sarah D. Murray (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program on behalf of her minor daughter,
C.E.M.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that the varicella vaccine C.E.M.
received on November 13, 2015 caused C.E.M. to develop varicella. See Stip. At 1, ECF No. 27.
On March 30, 2018, the parties filed a stipulation for award of compensation, which the
undersigned adopted as her decision awarding damages on the same day. Decision, ECF No. 28.
On October 30, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF No.
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 Because this unpublished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.
35 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $4,968.96
(representing $4,291.50 in fees and $677.46 in costs). Fees App at 1.3 Pursuant to General Order
No. 9, Petitioner has indicated that she has not personally incurred any costs in pursuit of this
litigation. ECF No. 38. Respondent reacted to the motion on November 9, 2018, indicating that
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case” and requesting that the undersigned “exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3 (ECF No. 36).
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).
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. The petitioner bears the burden of providing adequate evidence to
prove that the requested hourly rate is reasonable. Id.
a. Hourly Rates
3
In her motion, Petitioner originally requested total attorneys’ costs in the amount of $986.22
and total compensation in the amount of $5,277.72. Fees App. at 1-2. On November 16, 2018,
Petitioner filed a Reply brief, acknowledging that previously requested costs of $308.76 were
incurred in the process of counsel being admitted to practice before the Court of Federal Claims.
Reply, ECF No. 37, at 2. Acknowledging that “an attorney’s cost of admission to practice in a
particular court should not be considered a cost that is particular to any one case and should not
be part of an award for attorney’s costs,” Petitioner amended the amount of attorneys’ costs
sought. Id.
2
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, and 2018 can be accessed online.4
Petitioner requests the following rates of compensation for the work of her attorney, Mr.
Matthew Williams: $170.00 per hour for work performed in 2016, $175.00 per hour for work
performed in 2017, and $185.00 per hour for work performed in 2018. Fees App. Ex. 1 at 1. This
appears to be the first Vaccine Program case for Mr. Williams, and thus the first time a special
master has had the opportunity to consider his rates. Mr. Williams has been licensed to practice
law in Maine since 2009, and since that time has maintained his practice in the city of Kennebunk,
Maine. Id. Thus, at the time this case commenced, Mr. Williams had approximately 7 years of
legal experience.
Because Petitioner does not request in-forum rates for her counsel, the undersigned finds
that a more detailed analysis of the requested rates is not necessary. Indeed, in the undersigned’s
experience, the rates sought herein would likely be reasonable for any locale within the United
States. Accordingly, the requested rates are reasonable and no adjustment is necessary.
b. Hours Expended
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 v. Sec'y of Health & Human Servs., 3
F.3d 1517, 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Upon review, the undersigned finds the hours expended by Mr. Williams (24.50) to be
reasonable. The billing entries reflect the nature of the tasks performed and all appear to be
reasonable. Respondent also has not identified any particular entries as objectionable.
Accordingly, no adjustment to the hours expended is required. Petitioner is thus entitled to the full
amount of attorneys’ fees sought, $4,291.50.
c. Attorneys’ Costs
4
The 2015-2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-
2016.pdf. The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S
chedule%202018.pdf. The hourly rates contained within the schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015).
3
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 $677.46 in attorneys’ costs. This amount is comprised of the cost of obtaining medical
records, mailing costs, and the Court’s filing fee. All of the costs appear reasonable in the
undersigned’s experience and shall be awarded in full. Petitioner is thus entitled to attorneys’ costs
in the amount of $677.46.
II. Conclusion
Based on all of the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested $4,291.50
(Reduction to Rates) -
(Reduction to Total Hours) -
Total Attorneys’ Fees Awarded $4,291.50
Attorneys’ Costs Requested $677.46
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $677.46
Total Amount Awarded $4,968.96
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-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, other than those reductions delineated above, is reasonable. Accordingly, the undersigned
hereby awards a total of $4,968.96 to be issued in the form of a check payable jointly to
Petitioner and Petitioner’s counsel, Mr. Matthew Williams, of Hodsdon & Ayer, for
attorneys’ fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
4