Nelson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-70V
(Not to be Published)
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DAWN ASHLEY NELSON, *
* Filed: November 30, 2015
Petitioner, *
*
v. * Attorney’s Fees and Costs;
* Influenza (“Flu”) vaccine;
SECRETARY OF HEALTH * Pemphigus Vulgaris (“PV”).
AND HUMAN SERVICES, *
*
Respondent. *
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DECISION GRANTING APPLICATION FOR
AWARD OF ATTORNEY’S FEES AND COSTS1
Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner.
Debra Begley, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
On January 27, 2014, Dawn Nelson filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”), alleging that she
developed pemphigus vulgaris after receiving the influenza vaccine on February 1, 2011.2 On June
18, 2015, the Parties filed a stipulation regarding an award for Petitioner (ECF No. 24), and my
1
Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of
the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
§ 205, 116 Stat. 2899, 2913 (Dec. 17, 2002 (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that each party has 14 days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the public. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (hereinafter “Vaccine Act” or “the
Act”).
June 19, 2015, decision awarded the stipulated amount ($45,000) to Petitioner. ECF No. 25.
Petitioner subsequently requested an award of fees and costs reflecting work performed by her
counsel, the law firm of Conway, Homer & Chin-Caplan, P.C. (the “Homer Firm”) in the amount
of $21,243.64. App. for Attorney Fees and Costs, dated October 30, 2015 (ECF No. 31).
Respondent filed a response on November 13, 2015 (ECF No. 33) reiterating that she stands by
the arguments she put forth in the similarly-situated case, Dolloff v. Sec’y of Health & Human
Servs., No. 13-731V, about the calculation of hourly rates for Homer Firm attorneys.
Ms. Nelson requests $19,870.20 in attorney’s fees plus $1,017.57 in costs incurred by
Petitioner’s counsel and an additional $355.87 for costs incurred by Petitioner directly.
Respondent’s primary objection concerns the hourly rates claimed by the Homer Firm. The Federal
Circuit has endorsed the use of the lodestar approach when determining what constitutes
reasonable attorney’s fees under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1347-48 (Fed. Cir. 2008). Utilizing this approach, a special master first designates a
reasonable hourly rate for the attorney in question, and then multiplies it by the number of hours
that the attorney reasonably expended on the litigation. Avera, 515 F.3d at 1347-48.3
Petitioner requests attorney rates that are consistent with those established in McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), reconsid. den’d, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). In that case,
Respondent was locked in a battle with the Homer Firm over attorney hourly rates. In resolving
that dispute in the above-cited decision, Special Master Gowen extensively considered appropriate
hourly rates for the Homer Firm attorneys in Vaccine Program cases, based on (i) the prevailing
rate for comparable legal work within the forum of Washington, D.C.; (ii) the prevailing rate for
cases in the Vaccine Program; (iii) the experience of the attorney both generally and within the
Vaccine Program more specifically; (iv) the quality of their work; and (v) their reputation in the
legal community and the community at large. He ultimately arrived at hourly rates for several
Homer Firm attorneys.
Respondent has maintained her prior objections to the McCulloch rates, but has also
indicated that she will not devote further resources to challenging the wisdom of those rates. See
ECF No. 33 at 1. I am persuaded by McCulloch, and will therefore apply those rates herein.
3
After making this initial calculation, a special master may make an “upward or downward departure to the fee award
based on other specific findings.” Id. at 1348. However, there is a presumption that following this procedure results
in a reasonable fees award, which may “only be overcome in those rare circumstances in which the lodestar does not
adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010) (internal quotations omitted). In requesting attorney’s fees, the
petitioner in a Vaccine Program case bears the burden of providing evidence to support the reasonableness of the
attorney’s hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Sabella v. Sec'y of Health & Human Servs.,
86 Fed. Cl. 201, 211 (2009); Rupert v. Sec'y of Health & Human Servs., 52 Fed. Cl. 684, 686 (2002).
2
The second part of the lodestar calculation is the reasonableness of the attorney time
devoted to this matter. A Vaccine Act petitioner should be compensated only for hours “reasonably
expended” on the litigation. Carrington v. Sec’y of Health & Human Servs., 85 Fed. Cl. 319, 323
(2008) (quoting Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 754 (Apr. 2, 1991)). It
is within the special master’s discretion to reduce the number of hours by a percentage of the
amount charged, rather than making a line-by-line determination regarding the reasonableness of
the charges. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 728–29 (2011)
(affirming the special master's reduction of attorney and paralegal hours); Guy v. Sec’y of Health
& Human Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master's reduction in the
number of hours from 515.3 hours to 240 hours); Edgar v. Sec’y of Health & Human Servs., 32
Fed. Cl. 506 (1994) (affirming the special master's awarding only 58 percent of the numbers of
hours for which compensation was sought).
Here, Respondent has failed to identify any specific examples of unreasonable billing.
Rather, she simply attempts to incorporate the arguments asserted in Dolloff, such as challenges to
the numbers of hours billed. See ECF No. 33 at 1. However, special masters are not obligated to
evaluate an attorney’s billing records on a line-by-line basis in making the reasonableness
determination (Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517,1521-22 (Fed. Cir. 1993)),
and certainly need not do so when Respondent has not attempted to highlight any specific alleged
inefficiencies. The hours billed by Petitioner’s counsel appear to be reasonable, and I therefore see
no independent reason to reduce them.
Accordingly, I hereby grant Petitioner’s Motion for Attorney’s Fees and Costs in its
entirety. An award should be made in the form of a check in the amount of $20,887.77 representing
attorney’s fees and costs, payable jointly to Petitioner and Petitioner’s counsel, Conway, Homer
& Chin-Caplan, PC. In addition, an award should be made in the form of a check in the amount of
$355.87 representing costs incurred directly by the Petitioner, payable solely to Petitioner.4 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.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Special Master
4
Respondent did not in this case (or in Dolloff) lodge any objection to costs incurred, and I have not independently
identified any basis for reducing or limiting them. Therefore, the entirety of costs incurred by Petitioner and
Petitioner’s counsel are also awarded.
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or
separately) a notice renouncing their right to seek review.
3