Deshler v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1070V
(Not to be published)
*************************
CATHY DESHLER, *
* Special Master Corcoran
Petitioner, *
* Dated: March 13, 2019
v. *
* Attorney’s Fees and Costs;
* Interim Fees.
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Colleen C. Hartley, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING IN PART INTERIM AWARD OF ATTORNEY’S FEES AND
COSTS1
On August 26, 2016, Cathy Deshler filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that she
suffered from Guillain-Barré syndrome as a result of receiving the pneumococcal conjugate
vaccine on May 13, 2015. Petition (“Pet.”) (ECF No. 2) at 1. The matter is currently set for hearing
to take place on October 1-2, 2019. See Pre-Hearing Order, dated Oct. 11, 2018 (ECF No. 32).
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen 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 whole 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”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Petitioner has now requested an interim award for attorney’s fees and costs in the total
amount of $41,434.23 (representing $28,986.00 in attorney’s fees, plus $12,448.23 in costs). See
generally Application for Interim Fees and Costs, filed Nov. 27, 2018 (ECF No. 36) (“Interim Fees
App.”).
Respondent reacted to the fees motion on December 7, 2018, deferring to my discretion as
to whether Petitioner has met the legal standards for an interim fees and costs award. ECF No. 37
at 2. Respondent otherwise represents that in his estimate, the statutory and other legal
requirements for an award of attorney’s fees and costs are met, and he recommends that if I find
that an interim award is appropriate, I calculate a reasonable award. Id. at 2-3.
For the reasons stated below, I hereby GRANT IN PART Petitioner’s motion, awarding
at this time interim fees and costs in the total amount of $36,034.23.
PROCEDURAL HISTORY
This action has been pending for over two and one-half years. Pet. at 1. As the billing
invoices submitted in support of the fees application reveal, Petitioner first approached the law
firm of Muller Brazil, LLP about her case on February 1, 2016. See Ex. A to Interim Fees App. at
1. The case thereafter proceeded with Petitioner filing her medical records and final statement of
completion by November 17, 2016 (ECF No. 11), and Respondent filing the Rule 4(c) Report on
January 23, 2017 (ECF No. 12).
After two extensions of time, Petitioner filed an expert report from Dr. Nizar Souayah on
June 19, 2017 (ECF No. 18-1). Respondent thereafter filed an expert report from Dr. Vinay
Chaudhry on September 28, 2017 (ECF No. 21-1). Following two additional extensions of time,
Petitioner filed a supplemental expert report from Dr. Donald Levy on March 16, 2018 (ECF No.
25-2), and Respondent filed a supplemental report from Dr. Lindsay Whitton on July 31, 2018
(ECF No. 27). I subsequently set the matter for hearing to be held on October 1-2, 2019. ECF No.
32.
Petitioner filed the instant interim request for an award of attorney’s fees and costs on
November 27, 2018. See generally Interim Fees App. The relevant billing records indicate that the
work performed in this case has been divided between two Muller Brazil attorneys – Mr. Muller
and Ms. Senerth – along with firm paralegals. Id. The application requests total compensation for
Muller Brazil, LLP in the amount of $41,434.23, reflecting fees in the amount of $28,986.00, for
work performed from February 1, 2016, to November 1, 2018, at the following hourly rates: $275
per hour for Mr. Muller in 2016 (with increases to $300 per hour in 2017 and $317 per hour in
2018), and $225 per hour for Ms. Senerth in 2017 (with an increase to $233 per hour in 2018). Id.
Petitioner also seeks to recover $12,448.23 in costs, including medical records collection, the filing
2
fee, and expert costs for Dr. Levy (at a rate of $450 per hour). Ex. B to Interim Fees App. at 5.3
ANALYSIS
I. Legal Standard Applicable to Interim Fees and Costs Requests
I have in prior decisions discussed at length the standards applicable to determining
whether to award fees on an interim basis (here meaning while the case is still pending). Auch v.
Sec'y of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *6-9 (Fed. Cl. Spec. Mstr.
May 20, 2016); Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at
*5-9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It is well-established that a decision on entitlement is
not required before interim fees or costs may be awarded. Fester v. Sec’y of Health & Human
Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also
Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). While there is no presumption
of entitlement to interim fees and cost awards, special masters may in their discretion make such
awards, and often do so. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992),
aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim costs are subject to the same standards.
Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Fester, 2013
WL 5367670, at *16.
I find that Petitioner has made a showing sufficient to justify an award of interim fees and
costs. Criteria that I have found to be important in determining whether an interim fees request
should be permitted (which are set forth as well in this case’s initial order) include: 1) if the amount
of fees requested exceeds $30,000; 2) where expert costs are requested, if the aggregate amount is
more than $15,000; or 3) if the case has been pending for more than 18 months. See, e.g., Knorr v.
Sec’y of Health & Human Servs., No. 15-1169V, 2017 WL 2461375 (Fed. Cl. Spec. Mstr. Apr.
17, 2017); see also Initial Order, dated Aug. 31, 2016 (ECF No. 8) at 4. The facts relevant to this
matter meet these criteria: the case has been pending for over two and one-half years, the total
amount of fees requested exceeds the minimum threshold that I find to be appropriate, and it is
likely Petitioner will continue to incur additional fees and expert costs as this case proceeds.
II. Amounts Requested for Petitioner’s Attorneys
Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part
process. The first part involves application of the lodestar method – “multiplying the number of
hours reasonably expended4 on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at
3
Petitioner is not requesting fees for Dr. Souayah’s work at this time. See Ex. B to Fees App. at 2.
4
An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008); Rodriguez v. Sec’y of Health
3
1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting
the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This
standard for calculating a fee award is considered applicable in most cases where a fee award is
authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).
The attorneys from Muller Brazil have repeatedly been found to be "in forum" and
therefore entitled to the forum rates established in McCulloch. See McCulloch v. Sec'y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
This determination is also consistent with my own decisions (as well as the hourly rate chart set
forth by the Office of Special Masters5). See, e.g., Grose v. Sec’y of Health & Human Servs., No.
16-1248V, 2018 WL 6381907 (Fed. Cl. Spec. Mstr. Nov. 5, 2018); Winterfeld v. Sec'y of Health
& Human Servs., No. 15-933V, 2018 WL 2225178 (Fed. Cl. Spec. Mstr. Mar. 9, 2018); Colagreco
v. Sec'y of Health & Human Servs., No. 14-465V, 2016 WL 6518579 (Fed. Cl. Spec. Mstr. Sept.
26, 2016). Other special masters have awarded forum rates to these attorneys as well. See, e.g.,
Warkoczewski v. Sec’y of Health & Human Servs., No. 17-284V, 2018 WL 7286514 (Fed. Cl.
Spec. Mstr. Dec. 17, 2018). And the rates requested herein are consistent with what Muller Brazil
attorneys have been paid in other cases. Accordingly, no adjustments to the requested rates are
required.
In addition, the hours expended on this matter appear to be reasonable for a case that has
lasted over two and one-half years (with an entitlement hearing set for later this year). This case
has also proceeded in a timely fashion, and Petitioner’s attorneys efficiently used their time to
collect the necessary medical records and medical literature relevant to this case. I do not find any
particular billing entries to be objectionable, nor has Respondent identified any as such. Therefore,
the requested attorney’s fees will be reimbursed in full, in the amount of $28,986.00.
& Human Servs., No. 06-559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied,
91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011). That rate is in turn determined by the “forum rule,”
which bases the award rate on rates paid to similarly qualified attorneys in the forum where the relevant court sits
(Washington, D.C., for Vaccine Program cases). Avera, 515 F.3d at 1348. After the hourly rate is determined, the
reasonableness of the total hours expended must be considered. Sabella v. Sec’y of Health & Human Servs., 86 Fed.
Cl. 201, 205-06 (2009). This reasonableness inquiry involves consideration of the work performed on the matter, the
skill and experience of the attorneys involved, and whether any waste or duplication of effort is evident. Hensley, 461
U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)).
5
See Office of Special Masters Attorneys’ Hourly Rate Fee Schedule: 2018, https://www.uscfc.gov/node/2914 (last
accessed on Mar. 13, 2019).
4
III. Requested Costs
Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Perreira, 27 Fed. Cl. at 34;
Presault, 52 Fed. Cl. at 670. Reasonable costs include the costs of obtaining medical records and
expert time incurred while working on a case, for example. Fester, 2013 WL 5367670, at *16.
As noted above, Petitioner requests costs associated with the above-captioned matter
(totaling $12,448.23). The bulk of this amount reflects the cost of an expert review by Dr. Donald
Levy (performed at a rate of $450 per hour and totaling $5,400.00). See Ex. B to Interim Fees App.
at 5. Petitioner also requests a total sum of $225.00 for a medical record summary review
completed by Megan Gaspar, RN. Id. at 2.6 The remainder of the costs requested by counsel
represent ordinary Vaccine Program litigation costs (including the filing fee and medical records
requests). Id. at 1.
Petitioner’s requested litigation costs for Dr. Levy’s work total an amount of $5,400.00.
Given the posture of the case to date, I will not award this sum as this juncture. This is in part due
to the fact that in my experience, the expert’s value to the case is best determined after the expert
has testified at hearing. See, e.g., Bell v. Sec’y of Health & Human Servs., No. 13-709, 2015 WL
10434882, at *3-4 (Fed. Cl. Spec. Mstr. Nov. 10, 2015); see also Knorr, 2017 WL 2461375, at *4
(same). Moreover, a review of the relevant caselaw suggests that this case appears to be one of Dr.
Levy’s first Program cases (even more reason to defer determination of his hourly rate until after
hearing).
Immediately after the hearing (at which time I can better judge the value that Petitioner’s
expert added to the case’s resolution), however, Petitioner may renew the present request for Dr.
Levy’s fees, supplementing it with statements or invoices reflecting any additional expert costs
that have been incurred. Until then, I defer resolution of this aspect of Petitioner’s motion. See,
e.g., Auch, 2016 WL 3944701, at *16-17; Roberts v. Sec’y of Health & Human Servs., No. 09-
427V, 2013 WL 2284989 (Fed. Cl. Spec. Mstr. Apr. 30, 2013) (granting interim award of expert
costs after conclusion of hearing but before issuance of entitlement decision). This determination
reduces Petitioner’s interim award by $5,400.00.
Otherwise, the majority of costs expended on this matter by counsel (including requests
pertaining to medical records, medical summaries, and the filing fee) appear to be reasonable, and
Respondent did not identify any entries as objectionable. The above-noted non-expert costs will
6
The invoice for this work suggests that Ms. Gaspar completed a “comprehensive review of medical records to index,
summarize, and identify missing records.” Ex. B to Interim Fees App. at 2.
5
be awarded without reduction. I will therefore award the remaining $7,048.23 in costs requested
herein.
CONCLUSION
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of interim fees awards, and based on the foregoing, I hereby GRANT IN PART Petitioner’s
motion. I therefore award a total of $36,034.23 in interim fees and costs as a lump sum in the form
of a check jointly payable to Petitioner and Petitioner’s counsel, Ms. Amy Senerth, representing
attorney’s fees in the amount of $28,986.00, plus costs in the amount of $7,048.23.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of this decision.7
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
7
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
6