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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0285V
VANESSA GAMEZ,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 14, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for
Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On February 22, 2019, Vanessa Gamez filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleged that she suffered from Guillain-Barré syndrome as a
result of an influenza vaccine she received on September 7, 2017. Petition, ECF No. 1.
On April 12, 2023, I issued a decision awarding compensation to Petitioner based on the
parties’ stipulation. ECF No. 78.
1
Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision 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
inf ormation, the disclosure of which would constitute an unwarranted invasion of privacy. If , upon review, I
agree that the identified material fits within this definition, I will redact such material f rom public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $135,353.31 (representing $110,260.80 in fees, plus $25,092.51 in costs). Petitioner’s
Application for Fees and Costs (“Motion”) filed June 16, 2023, ECF No. 83. In accordance
with General Order No. 9, Petitioner filed a signed statement representing that Petitioner
incurred no out-of-pocket expenses. ECF No. 83-3.
Respondent reacted to the motion on June 20, 2023, reporting that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s
Response to Motion at 2-3, ECF No. 84. Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees and costs to be awarded appropriate, for the reasons
listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). 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 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
2
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
ATTORNEY FEES
Because Petitioner succeeded in this matter, her entitlement to fees cannot be
disputed – but the fees incurred must still be reasonable. Here, the magnitude of the fees
sought is facially high, especially compared to SPU cases generally. The specific
circumstances of this case, and the severe nature of the injury at issue, may explain this
discrepancy to some extent. And the total amount received by Petitioner was significant
as well – this is not a matter in which there is a disparity between the claimant’s award
and fees to be paid. Nevertheless, the sum is large, and counsel should take care in future
SPU cases to avoid incurring fees of this size.
Petitioner requests the following hourly rates for attorneys performing work in this
matter:
2018 2019 2020 2021 2022 2023
Michael McLaren X $464 $484 $484 $501 X
William Cochran $377 $391 $405 $420 $435 $457
Chris J. Webb X X $351 X $395 $415
Paralegals X $156 $160 $161 $167 $175
The hourly rates requested for Mr. McLaren through the end of 2023 are
reasonable and consistent with prior determinations and will therefore be adopted herein.
The hourly rates requested for Mr. Cochran, Mr. Webb, and paralegals between 2019-22
are also consistent with prior determinations and will be adopted. And all travel time was
properly billed at one-half of the attorney’s usual hourly rate. Hocraffer v. Sec’y of Health
& Hum. Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25,
2011).
However, the requested rates for Mr. Cochran, Mr. Webb, and paralegals for time
billed in 2023 require adjustment. For this year, Mr. Cochran was previously awarded the
lesser rate of $450 per hour, Mr. Webb $410, and paralegals $172. See Gibson v. Sec’y
of Health & Hum. Servs., No. 20-0243V (Fed. Cl. Spec. Mstr. May 8, 2023); and Leonard
v. Sec’y of Health & Hum. Servs., No. 19-0714 (Fed. Cl. Spec. Mstr. June 8, 2023). I find
no reason to deviate from such reasoned determinations, and it otherwise is not the
practice of OSM to adjust prior rate determinations upward in subsequent cases. See
Jefferson v. Sec’y of Health & Hum. Servs., No. 19-1882V, 2023 WL 387051 (Fed. Cl.
3
Spec. Mstr. Jan. 9, 2023). Accordingly, I will reduce the 2023 rates to be consistent with
prior determinations. This results in a reduction of $224.30. 3
ATTORNEY COSTS
Petitioner requests $24,540.84 in overall costs. ECF No. 83-2. This sum includes
the cost of obtaining medical records, shipping costs, expert fees, and the Court’s filing
fee. I have reviewed the requested costs and find them to be reasonable, with the
exception of $189.50 in costs that were not substantiated with an independent bill or
invoice, or where the specific cost appears to have been requested twice. 4 See ECF No.
83-2. When Petitioners fail to provide appropriate documentation to substantiate a
requested cost, special masters have refrained from awarding the relevant sum. See,
e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520,
at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). This amount will not be awarded, reducing the
total amount of litigation costs to be recovered by $189.50.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for
attorney’s fees and costs. I award a total of $134,939.51 (representing $110,036.50 in
attorney’s fees and $24,903.01 in attorney’s costs) as a lump sum in the form of a
check jointly payable to Petitioner and Petitioner’s counsel, William E. Cochran, Jr.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk of Court shall enter judgment in accordance with this Decision. 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
This amount consists of ($457 - $450 = $7 x 25.20 hrs.) + ($415 - $410 = $5 x 1.30 hrs.) + (175 - $172 =
$3 x 13.80 hrs.) = $224.30
4
Examples of the unsubstantiated costs include: 12/5/18 (two entries): “Medical Records – Clinica Santa
Maria,” (only one receipt was submitted f or these two entries. Thus, I am only awarding costs f or one of
these entries); 6/5/19: “Medical Records – City of Brownsville EMS/Coll,” and 6/26/19: “Medical Records –
City of Brownsville EMS/Coll. See ECF No. 83-2.
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
4