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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 31, 2019
* * * * * * * * * * * * * *
JOHN SHERIDAN, *
*
Petitioner, * No. 17-669V
* Special Master Sanders
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Gabrielle M. Fielding, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On May 22, 2017, John Sheridan (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that the influenza (“flu”) vaccine he received on January 25, 2016 caused him
to develop Transverse Myelitis (“TM”). See Stip. at 1, ECF No. 28. On October 25, 2018, the
parties filed a stipulation for award of compensation, which the undersigned adopted as her
decision awarding damages on November 1, 2018. Decision, ECF No. 29.
On November 1, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF
No. 30 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
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 Because this unpublished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.
$26,046.27 (representing $24,377.50 in fees and $1,668.77 in costs). Fees App at 1. Pursuant to
General Order No. 9, Petitioner has indicated that he has not personally incurred any costs in
pursuit of this litigation. Id. at 2. Respondent reacted to the motion on November 2, 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. 32).
Petitioner did not file a reply thereafter.
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
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.3
3
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:
2
Petitioner requests the following rates of compensation for the work of her attorneys: for
Mr. Andrew Downing, $350.00 per hour for work performed in 2016, $375.00 per hour for work
performed in 2017, and $385.00 per hour for work performed in 2018; and for Ms. Courtney Van
Cott, $195.00 per hour for work performed in 2016-2017, and $205.00 per hour for work
performed in 2018. Petitioner also requests that paralegals be compensated at rates from $100.00
per hour to $135.00 per hour, depending on the year.
The rates requested herein are consistent with what has previously been awarded to Van
Cott & Talamante, PLLC attorneys and paralegals. See Gramza v. Sec’y of Health & Human Servs.,
No. 15-247V, 2018 WL 4697098, at *3 (Fed. Cl. Spec. Mstr. Aug. 17, 2018); Combs v. Sec'y of
Health & Human Servs., No. 14-878V, 2018 WL 2772218 (Fed. Cl. Spec. Mstr. Apr. 23, 2018);
Cowles v. Sec'y of Health & Human Servs., No. 16-1164V, 2018 WL 277312 (Fed. Cl. Spec. Mstr.
Apr. 26, 2018); Chewiwi v. Sec'y of Health & Human Servs., No. 15-954V, 2018 WL 2225074(Fed. Cl. Spec. Mstr. Apr. 10, 2018). Accordingly, no adjustment to any of the requested rates is
required.
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 billed by Mr. Downing and Ms. Van Cott to
be reasonable. The hours billed by paralegals, however, contain several errors that warrant an
overall reduction. First, paralegals billed for administrative tasks such as payment of invoices for
medical records. See, e.g., Fees App. at 14-16 (entries on 9/20/16, 9/26/26, 12/9/16, 2/10/17).4
Other administrative tasks charged for include sending faxes and other mail (entries on 5/5/17,
10/11/18) and bates stamping and otherwise preparing records for filing (entries on 6/5/17,
5/22/17). It is well-established that work such as preparing exhibits for filing, calendaring events,
and mailing documents is considered secretarial/clerical work and is not compensable in the
Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health &
Human Servs., No. 02-1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
Also concerning is that paralegal “DPA” appeared to view 0.2 hours as the minimum
amount of time required to complete most tasks. For example, DPA routinely billed 0.2 hours to
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).
4
The examples listed herein are merely meant to be illustrative of an issue and are not intended
to represent all such instances of the issue in the billing records.
3
“receive, review and process” all filings made in this case, no matter how mundane or routine they
may be, such as the notice of assignment to the undersigned, scheduling orders of the Court, and
status reports filed by Respondent. DPA also routinely billed 0.3 hours to “finalize and
electronically file” documents such as exhibits and status reports. In the undersigned’s experience,
all of these tasks are typically billed at 0.1 hours, if they are billed for at all. The undersigned has
previously noted that billing in minimum increments greater than 0.1 hours is not permissible in
the Vaccine Program. Meadows v. Sec’y of Health & Human Servs., No. 16-861V, 2018 WL
6292565, at *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). In the instant case, it is highly unlikely that it
took the paralegal 12 minutes to review all status reports or scheduling orders, or that it took 18
minutes file documents via CMECF.
These issues appear to be unique to paralegal DPA. The record indicates that this paralegal
billed a total of 26.8 hours for a total of $3,376.50. Fees App. at 22. Accordingly, the undersigned
will reduce the total amount billed by DPA by 30%. This results in a total reduction of $1,012.95.
c. Attorneys’ Costs
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 $1,668.77 in attorneys’ costs. Most of this requested amount is reasonable, as it
encompasses the cost of medical records, mailing documents, and the Court’s filing fee. However,
the undersigned finds the requested fax charges to be unreasonable. Petitioner’s counsel has been
notified previously that operating the office fax machine is part of a law office’s general overhead
and thus separate costs should not be charged to individual cases. Bourche v. Sec’y of Health &
Human Servs., No. 15-232V, 2017 WL 2480936, at *5 n.5 (Fed. Cl. Spec. Mstr. May 11, 2017).
Other special masters have also held that costs associated with faxes are non-compensable. See
Dashty v. Sec’y of Health & Human Servs., No. 15-966V, 2018 WL 6990680, at *5 (Fed. Cl. Spec.
Mstr. Nov. 21, 2018). The total amount billed for sending and receiving faxes in the instant case
is $67.00. Accordingly, the award of attorneys’ costs is reduced by $67.00.
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 $24,377.50
(Reduction to Paralegal Hours) - ($1,012.95)
Total Attorneys’ Fees Awarded $23,364.55
Attorneys’ Costs Requested $1,668.77
(Reduction of Costs) - ($67.00)
Total Attorneys’ Costs Awarded $1,601.77
Total Amount Awarded $24,966.32
4
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 $24,966.32 to be issued in the form of a check payable jointly to
Petitioner and Petitioner’s counsel, Mr. Andrew Downing, of Van Cott & Talamante, PLLC,
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).
5