Myers v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
MARIA LYNN MYERS, executrix of *
ESTATE OF VINCENT LOUIS *
MATASSA, *
* No. 20-424V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 26, 2023
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner;
Ronalda E. Kosh, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner’s motion for final attorneys’ fees and
costs. She is awarded a total of $56,877.46.
* * *
On August 25, 2022, the parties filed a joint stipulation concerning the
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
petition for compensation filed by Maria Myers on April 14, 2020. Petitioner
alleged that the influenza vaccine Vincent Matassa received on September 18,
2018, which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused
him to suffer from an encephalopathy that eventually resulted in his death.
Petitioner further alleges that Mr. Matassa suffered the residual effects of this
injury for more than six months. Following respondent’s contestment of
entitlement, petitioner filed an expert report from Dr. Bart Chwalisz, a neuro-
ophthalmologist. Thereafter, the parties agreed to explore settlement and on
August 25, 2022, the parties filed a joint stipulation, which the undersigned
adopted as his decision awarding compensation on September 2, 2022.
On February 17, 2023, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). The petitioner requests attorneys’ fees of $48,381.40 and
attorneys’ costs of $10,496.06 for a total request of $58,877.46. Fees App. at 2.
Pursuant to General Order No. 9, petitioner filed a statement indicating that
personal costs of $7,282.39 were incurred during the prosecution of this case. Id.On March 3, 2023, respondent filed a response to petitioner’s motion. Respondent
argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role
for respondent in the resolution of a request by a petitioner for an award of
attorneys’ fees and costs.” Response at 1. Respondent adds, however that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Id at 2. Additionally, he recommends “that the Court exercise
its discretion” when determining a reasonable award for attorneys’ fees and costs.
Id. at 3. Petitioner did not file a reply thereafter.
* * *
Because petitioner 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 the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. 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. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
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required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates for the work of her counsel at
Conway, Homer, P.C.:
Attorney 2019 2020 2021 2022 2023
Ronald Homer X $447 $447 $475 X
Meredith Daniels $320 $350 $350 $410 $410
Christina Ciampolilo X $380 $380 $425 $425
Joseph Pepper X $355 $355 X X
Nathaniel Enos X X X $280 X
Patrick Kelly X $225 $225 $250 X
Paralegals $145 $155 $155 $170 $170
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These rates are consistent with what Mr. Homer and the attorneys of Conway,
Homer, P.C., have previously been awarded for their Vaccine Program work, and
the undersigned finds them to be reasonable herein for work performed in the
instant case. See Kaiser v. Sec’y of Health & Human Servs., 20-1096V, 2023 WL
2622520 (Fed. Cl. Spec. Mstr. Mar. 24, 2023).
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
Concerning the time billed by Conway, Homer, P.C., a reduction must be
made for attorney time billed for review of status reports prepared by other
attorneys. The undersigned notes that it is common practice for Conway, Homer,
P.C. to have several attorneys assist over the course of a case. In some instances,
such as when preparing substantive documents like the petition, briefs, and
settlement demands, it is reasonable to have another set of eyes review that
document. However, it is not reasonable to have an attorney bill for time to review
routine filings, such as status reports and motions for enlargement of time, when
those filings were prepared (and billed for) by another attorney. See Order, issued
May 4, 2020, at 3 (noting a concern about having multiple attorneys work on a
case). In the undersigned’s experience, the Conway, Homer firm stands out in that
other firms, who also competently represent petitioners, do not engage in the same
practice of having multiple attorneys charge for reviewing routine submissions.
This is not the first time the undersigned or other special masters have noted this
particular issue concerning Conway, Homer P.C. billing practices. See, e.g.,
Manetta v. Sec’y of Health & Human Servs., No. 18-172V, 2020 WL 7392813, at
*2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Human Servs.,
No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr. Oct. 2, 2020).
The undersigned has previously cautioned counsel that due to the repetitive
nature of these issues, in future cases in which the same issues arise a reduction
will be increased beyond the mere time billed to reflect both a reduction of
inappropriately billed time and a deterrent aspect to offset the incurred use of
judicial resources that are wasted in addressing them. See C.H. v. Sec'y of Health
& Hum. Servs., No. 18-1920V, 2023 WL 34613, at *2 (Fed. Cl. Jan. 4, 2023) (“the
reduction will increase to reflect both a reduction of inappropriately billed time
billed and a deterrent aspect to offset the increased use of judicial resources
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necessary to address these repetitive issues”); Burgos v. Sec'y of Health & Human
Servs., No. 16-903V, 2022 WL 1055355 (Fed. Cl. Spec. Mstr. Mar. 15, 2022);2 see
also Valdes v. Sec'y of Health & Human Servs., No. 99–310V, 2009 WL 1456437,
at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (warning an attorney (not from Conway
Homer) that penalties may be necessary to motivate him to submit requests for fees
that do not contain “erroneous, duplicative, or unreasonable entries”), mot. for rev.
granted in non-relevant part and denied in non-relevant part, 89 Fed. Cl. 415(2009). It cannot be the case that attorneys can freely submit excessive bills and the
only consequence is that the billing is reduced to an amount that should have been
submitted initially. If that were the system, then attorneys would be incentivized to
submit higher and higher bills. The undersigned finds a total reduction of
$2,000.00 to the attorneys’ fees to be appropriate.
Attorneys at Conway, Homer are further advised that additional reductions /
penalties may be imposed. Petitioner is therefore awarded final attorneys’ fees of
$46,381.40.
C. Costs Incurred
i. Attorney Costs
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioners’ requests a total of
$10,496.06 in attorneys’ costs. This amount is comprised of acquiring medical
records, the Court’s filing fee, postage costs, and expenses incurred by petitioner’s
expert, Bart Chwalisz, M.D. Dr. Chwalisz has previously awarded the rate of
$500.00 per hour for his expert work. See Parker v. Sec’y of Health & Human
Servs., No. 18-1325V, 2022 WL 1055477 (Fed. Cl. Spec. Mstr. Mar. 23, 2022).
The undersigned finds this rate to be reasonable and awards it herein.3 Petitioner
has provided adequate documentation supporting the requested costs and all are
2
After Burgos, the undersigned has warned attorneys from Conway, Homer at least four
times to stop billing for additional review of routine materials.
3
With respect to the number of hours, Dr. Chwalisz’s invoice contains some entries for a
relatively long amount of time but with relatively little detail. Fee App’n, tab B, at 14. Dr.
Chwalisz is advised that such billing may be reduced in the future. See Instructions, issued Jan.
21, 2021, at 8.
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reasonable in the undersigned’s experience. Petitioner is therefore awarded final
attorneys’ costs of $10,496.06.
ii. Petitioner’s Costs
Petitioner requests $7,282.39 in costs personally incurred in this matter.
(ECF No. 72). These expenses are time and costs petitioner paid to The Law
Offices of Susan Pittard Weidman, P.A., for preparation of the Estate of Vincent
Louis Matassa. Fees App. at pdf 51 – 53. During the proceedings, petitioner
transferred the probate work to Morris James, LLC, which completed the work in
probate. Id. at pdf 56 – 75.
Whether the expenses incurred in probate would have been incurred but for
the claim in the Vaccine Program is not entirely clear. Ms. Myers attested the
“estate was established primarily to prosecute this claim in the Vaccine Program.”
Exhibit 16 ¶ 10. The term “primarily” suggests that probate proceedings might
have been required for other (or secondary) reasons. While her Vaccine Program
attorney asserted that the “Mr. Matassa’s estate did not require probate,” Fees App.
at pdf 78-79, Ms. Myers did not support this statement with an affidavit from an
attorney who represented her in probate. Ms. Myers also did not submit the
various accountings, which would have documented some of the work performed
by the probate attorneys.
Thus, whether Ms. Myers warrants reimbursement for all probate court work
is unclear. The undersigned is mindful that the Secretary did not interpose an
objection to this work. See Resp’t’s Resp., filed March 3, 2023. If the Secretary
had objected and Ms. Myers did not submit additional information, the result might
have been different. But, on the present record, the undersigned is satisfied that
these costs were necessary for the instant proceedings and the undersigned shall
award them in full.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, the undersigned awards attorneys’ fees and
costs as follows:
1) a lump sum of $56,877.46 (representing $46,381.40 in attorneys’ fees
and $10,496.06 in attorneys’ costs) in the form of a check jointly payable
to petitioner and petitioner’s counsel, Mr. Ronald C. Homer; and
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2) a lump sum of $7,282.39, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
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.4
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
7