R. v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 30, 2021
* * * * * * * * * * * * *
STEPHANIE ROSCOE, as *
Representative of the Estate of *
B.R., deceased, * UNPUBLISHED
*
Petitioner, * No. 11-206V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Kyle Pozza, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On April 4, 2011, Stephanie Roscoe (“petitioner”), as representative of the estate of B.R.,
deceased, filed a petition in the National Vaccine Injury Program2 alleging that as a result of
receiving hepatitis A (“Hep A”), tetanus-diphtheria-acellular pertussis (“Tdap”), meningococcal
(“Menactra”), and human papillomavirus (“HPV”) vaccines on March 31, 2009, B.R. suffered
fever, leg and bodily pain, emotional and mental confusion and anguish, and death. Petition at 1
(ECF No. 1).
1
Because this unpublished Decision contains a reasoned explanation for the action in this case,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 means the Decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioners 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.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
On June 30, 2021, petitioner filed a motion for interim attorney’s fees and costs,
requesting compensation for the attorneys and paralegals who worked on her case. Petitioner’s
Application for Interim Attorney’s Fees and Costs (“Pet. Mot.”), filed June 30, 2021 (ECF No.
209). Petitioner’s request can be summarized as follows:
Richard Gage, P.C.:
Fees – $86,995.00
Costs – $33,299.29
Petitioner:
Costs – $417.83
Johnny Litman:
Fees – $35,303.00
Costs – $900.00
Petitioner thus requests a total of $156,915.12. Respondent did not file a response by the
court-imposed deadline. This matter is now ripe for adjudication.
For the reasons discussed below, the undersigned GRANTS IN PART petitioner’s
motion and awards $155,267.42 in attorneys’ fees and costs.
I. DISCUSSION
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. § 15(e)(1). When
compensation is not awarded, the special master “may” award reasonable fees and costs “if the
special master or court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought.” Id. If a special master has
not yet determined entitlement, she may still award attorneys’ fees and costs on an interim
basis. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Such
awards “are particularly appropriate in cases where proceedings are protracted and costly
experts must be retained.” Id. Similarly, it is proper for a special master to award interim fees
and costs “[w]here the claimant establishes that the cost of litigation has imposed an undue
hardship and that there exists a good faith basis for the claim.” Shaw v. Sec’y of Health &
Hum. Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010).
The claim appears at this point to have been brought in good faith and built on a
reasonable basis. Moreover, the undersigned finds that an award of interim attorneys’ fees and
costs is appropriate here where there are significant expert fees to be paid.
A. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “an initial estimate of a reasonable attorneys’ fee by
2
‘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)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings. Id. at 1348.
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 & Hum. 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 & Hum. 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 the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Hum. 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 & Hum. Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Hum. Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991), rev’d on other grounds and aff’d in
relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.
1. Richard Gage, P.C.
Here, petitioner requests the following hourly rates for the attorneys and paralegals who
worked on this matter:
Richard Gage – Attorney
2018: $326.00
2019: $338.00
2020: $350.00
2021: $362.00
Kristen Blume – Attorney
2019: $338.00
2020: $350.00
2021: $355.00
Paralegals
2018-2020: $120.00
2021: $130.00
3
The undersigned finds that the requested rates are reasonable and in accordance with
what these attorneys and paralegals have previously been awarded for their Vaccine Program
work. See, e.g., Goldman v. Sec’y of Health & Hum. Servs., No. 16-1523V, 2021 WL
3056263, at *2 (Fed. Cl. Spec. Mstr. June 21, 2021) (awarding the same rates for Mr. Gage from
2018-2021, Ms. Blume in 2020, and the paralegals for 2018-2021); Martin v. Sec’y of Health &
Hum. Servs., No. 15-789V, 2020 WL 8674683, at *2-3 (Fed. Cl. Spec. Mstr. Dec. 8, 2020)
(awarding the same rates for Mr. Gage from 2018-2020, Ms. Blume from 2019-2020, and the
paralegals for 2018-2020). The undersigned will therefore award the rates requested.
The undersigned has reviewed the submitted billing entries and finds a reduction in the
hours billed necessary. Upon review, Mr. Gage engaged in double billing on two instances.3
This results in a reduction of $385.00.
Additionally, Brian Vance, a paralegal, billed for filing a motion.4 Billing for some
administrative tasks such as filing, even at a paralegal rate, is not permitted. See Rochester v.
United States, 18 Cl. Ct. 379, 387 (1989) (stating that services that are “primarily of a secretarial
or clerical nature . . . should be considered as normal overhead office costs included within the
attorneys’ fee rates”). As such, this entry is noncompensable and results in a further reduction of
$60.00.
The undersigned finds the hours billed for paralegal Susan McNair’s work do not
accurately reflect the amount requested. Specifically, an entry on January 2, 2019 billed 0.4
hours at a rate of $120 equals $48.00; however, Ms. McNair requested $132.00 for this entry.
This results in a reduction of $84.00.
Lastly, various entries are duplicative and excessive due to multiple attorneys and
paralegals billing for attending the same conferences or meetings or completing the same task on
the same day.5 In total, these entries equaled 8.4 hours, or $2,237.40. The undersigned will
reduce this by 50%, resulting in a further reduction of $1,118.70.
3
Mr. Gage billed 0.9 hours twice on July 9, 2020 for “Legal research on pain and suffering
damages” and 0.2 hours twice on July 21, 2020 for “Reviewed Order. Contact Civil Firm.”
4
On June 25, 2018, Mr. Vance billed for multiple tasks including filing. This entry constitutes
block billing and contains the noncompensable administrative task of filing. Mostovoy v. Sec’y
of Health & Hum. Servs., No. 02-10V, 2016 WL 720969, at *6 (Fed. Cl. Spec. Mstr. Feb. 4,
2016) (“It is well established that an application for fees and costs must sufficiently detail and
explain the time billed so that a special master may determine, from the application and the case
file, whether the amount requested is reasonable.”).
5
For example, see entries dated August 14, 2018, December 31, 2018, April 19, 2019, October
8, 2019, and February 25, 2020. These entries do not constitute an exhaustive list.
4
In total, the undersigned finds it necessary to reduce the requested attorneys’ fees by
$1,647.70.6
2. Johnny Litman
Here, petitioner requests the following hourly rates for her former attorney who worked
on this matter:
Johnny Litman – Attorney
2009: $300.00
2011-2018: $300.00
2021: $300.00
KM – Paralegal
2018: $95.00
The undersigned finds that the requested rates are reasonable and in accordance with
what similar attorneys and paralegals have previously been awarded for their Vaccine Program
work. The undersigned will therefore award the rates requested.
The undersigned has reviewed the submitted billing entries and finds the total number of
hours billed to be reasonable. The billing entries accurately reflect the nature of the work
performed. Thus, the undersigned will award them in full.
B. Attorneys’ Costs
1. Expert Fees: Richard Gage, P.C.
Petitioner requests $22,131.60 for work performed by Dr. Douglas Miller, including time
spent preparing an expert report, traveling to and from the entitlement hearing, and attending the
entitlement hearing, including a $1,000.00 retainer fee already paid to Dr. Miller. Pet. Mot., Tab
G.
The undersigned has previously found it reasonable to compensate Dr. Miller at a rate of
$500.00. See, e.g., Porter v. Sec’y of Health & Hum. Servs., No. 18-132V, 2020 WL 6705553,
at *3 (Fed. Cl. Spec. Mstr. Oct. 22, 2020); Anklam v. Sec’y of Health & Hum. Servs., No. 17-
2061V, 2020 WL 4049310, at *4 (Fed. Cl. Spec. Mstr. June 25, 2020); Mulroy v. Sec’y of
Health & Hum. Servs., No. 15-1324V, 2017 WL 4585570, at *5 (Fed. Cl. Spec. Mstr. Sept. 19,
2017). The undersigned finds Dr. Miller’s rate and time spent working on this case reasonable
and compensates him in full.
6
$385.00 + $60.00 + $84.00 + $1,118.70 = $1,647.70.
5
2. Miscellaneous Costs: Richard Gage, P.C.
Petitioner requests $11,167.69 to cover their attorney’s other miscellaneous expenses,
including copies, Fed Ex costs, Pacer expenses, costs associated with the entitlement hearing,
and other expenses. Pet. Mot., Tab G. The undersigned finds these costs reasonable and well-
documented,7 and she will award them in full.
3. Miscellaneous Costs: Johnny Litman
Petitioner requests $900.00 to cover their former attorney’s miscellaneous expenses,
including a retainer fee, Fed Ex costs, and expenses for Dr. Posey. Pet. Mot., Tab I. The
undersigned finds these costs reasonable and will award them in full.
C. Petitioner’s Costs
Petitioner request $417.83 to cover their expenses for travel to and from the entitlement
hearing and a two-night stay for the entitlement hearing. Pet. Mot., Tab H. The undersigned
finds these costs reasonable and well-documented, and awards them in full.
II. CONCLUSION
Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsels as follows:
Richard Gage, P.C.:
Requested Attorneys’ Fees: $ 86,995.00
Reduction of Attorneys’ Fees: - ($ 1,647.70)
Awarded Attorneys’ Fees: $ 85,347.30
Requested Attorneys’ Costs: $ 33,299.29
Awarded Attorneys’ Costs: $ 33,299.29
Petitioner:
Requested Costs: $ 417.83
Awarded Costs: $ 417.83
Johnny Litman:
Requested Attorneys’ Fees: $ 35,303.00
Awarded Attorneys’ Fees: $ 35,303.00
7
Petitioner did not provide full receipts for some meals associated with the entitlement hearing
in Atlanta, Georgia. Additionally, petitioner requests $124.55 for dinner on January 7, 2020. It
is not clear whether this meal was for only petitioner’s counsel, which would make it excessive,
or whether petitioner, petitioner’s friend, and petitioner’s expert were also at this dinner. The
undersigned will award these costs in full but cautions counsel against not providing full and
detailed invoices in the future.
6
Requested Attorneys’ Costs: $ 900.00
Awarded Attorneys’ Costs: $ 900.00
Total Interim Attorneys’ Fees and Costs: $ 155,267.42
Accordingly, the undersigned awards:
(1) A lump sum in the amount of $118,646.59, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable
jointly to petitioner and petitioner’s counsel of record, Mr. Richard Gage.
(2) A lump sum in the amount of $417.83, representing reimbursement for
reasonable costs, in the form of a check payable to petitioner.
(3) A lump sum in the amount of $36,203.00, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable
jointly to petitioner and petitioner’s former attorney, Mr. Johnny Litman.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this Decision.8
IT IS SO ORDERED.
/s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
8
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
7