Florence v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
JANET FLORENCE, * No. 15-255V
* Special Master Christian J. Moran
Petitioner *
*
v. * Filed: October 6, 2016
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Lawrence R. Cohan and David J. Carney, Anapol Weiss, Philadelphia, PA, for
Petitioner;
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for
Respondent.
PUBLISHED DECISION ON ATTORNEYS’ FEES AND COSTS1
Petitioner Janet Florence filed her application for attorneys’ fees and costs
on June 3, 2016. The Secretary objects to the amount the petitioner has requested
and presents an alternative range of $35,000.00 to $45,000.00. The petitioner is
awarded $50,000.00.
* * *
Ms. Florence filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa—10 through 34 (2012), on March 12, 2015. The petition
alleged that Ms. Florence suffered from lymphedema in her left arm after she
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
received the influenza vaccine on December 2, 2011. See Pet., filed Mar. 12,
2015.
In May 2015, the undersigned ruled, based upon the respondent’s
concession, see Respondent’s Report, filed May 19, 2015, that the petitioner is
entitled to compensation under the Vaccine Act. Between May 2015 and April
2016, the parties quantified the amount of compensation to which Ms. Florence
was entitled. The petitioner and the respondent retained separate life care planners
during this process. In April 2016, the petitioner received compensation consistent
with a proffer. Decision, issued Apr. 21, 2016, 2016 WL 2990608 (awarding
$258,381.93 plus an annuity).
In June 2016, the petitioner filed a motion for attorneys’ fees and costs
requesting $43,005.00 in fees and $11,448.78 in costs, for a total amount of
$54,453.78. The Secretary objected to the amount, stating that a reasonable
amount is between $35,000 and $45,000, and suggesting the undersigned award
attorneys’ fees and costs within that range. See Resp’t’s Resp., filed June 20,
2016, at 3. In support of her estimated range, the Secretary listed comparable
cases, and their associated fees and costs. Id. Petitioner replied on May 27, 2016,
listed her own comparable cases, and asked for an additional $725.00 in fees for
her reply. Pet’r’s Reply, filed June 20, 2016, at 7-8. Therefore, the petitioner now
requests $43,730 in fees and $11,448.78 in costs, for a total amount of $55,178.78.
At this point, the motion is ready for adjudication.
* * *
In this case, the petitioner received compensation, and thus is entitled to an
award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). The ensuing question
is the reasonable amount for attorneys’ fees and costs.
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.
For attorneys’ fees, the petitioner has requested $43,730. Attorney David
Carney performed most of the work and seeks compensation at $290 per hour. Mr.
2
Carney, at times, consulted with attorney Larry Cohan, who seeks compensation at
$400 per hour. Paralegals also assisted, and their proposed rate of compensation is
$125 per hour.
The Secretary did not directly challenge any of the requested rates as
unreasonable. In the undersigned’s experience, these rates are reasonable.
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).
Attorneys are expected to work efficiently by delegating appropriate
assignments to paralegals, who may be compensated separately, and to secretaries,
whose compensation is included in the attorney’s hourly rate. See Bennett v. Dep’t
of Navy, 699 F.2d 1140, 1145 n. 5 (Fed. Cir. 1983) (secretarial expenses are
covered by an attorney’s hourly rate); Guy v. Sec’y of Health & Human Servs., 38
Fed. Cl. 403, 407–08 (1997) (“secretarial support is included within an attorney’s
hourly rate and is not reimbursable”); Riggins v. Sec’y of Health & Human Servs.,
No. 99–382V, 2009 WL 3319818, at *25 (Fed. Cl. Spec. Mstr. June 15, 2009)
(“[T]he time spent by an attorney performing work that a paralegal can accomplish
should be billed at a paralegal’s hourly rate, not an attorney’s”), mot. for rev.
denied, (Dec. 10, 2009), aff’d, 406 Fed. Appx. 479 (Fed. Cir. 2011).
When attorneys fail to provide sufficient information in their billing
invoices, special masters may reduce the award. See Barclay v. Sec’y of Health &
Human Servs., No. 07-605V, 2014 WL 2925245, at *4 (Fed. Cl. Spec. Mstr. Feb.
7, 2014) (reducing an attorney’s requested time due to vague entries which made it
impossible to determine the reasonable amount of time, and reducing requested
time due to the attorney’s performing tasks reasonably delegated to a paralegal or
secretary).
The undersigned conducted a line-by-line analysis of all the entries
documented in the timesheets, despite the fact that when making reductions, a line-
by-line evaluation of the fee application is not required. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *5 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015) (quoting Wasson by Wasson v. Sec’y of Health & Human
Servs., 24 Cl. Ct. 482 (1991)). The attorneys’ timesheets are organized, and do not
contain block entries. However, there are two issues with the petitioner’s
timesheets: (1) excessive time is billed for very routine tasks; and (2) it is
impossible to determine whether certain activities are reasonable because of vague
entries. Each issue is discussed more specifically below.
3
First, the petitioner’s attorneys billed excessive time for routine tasks, or, in
the alternative, performed work that a paralegal or secretary could perform. A few
examples will suffice. On August 5, 2015, the undersigned’s law clerk coordinated
a date for a status conference to discuss the petitioner’s July 31, 2015 status report.
The petitioner’s counsel billed half an hour for this coordination. On September
14, 2015, the petitioner filed a five-sentence status report stating that she needed an
additional 45 days to work with her life care planner and provide a settlement
demand to the respondent. The petitioner’s counsel billed half an hour to prepare
the five-sentence status report.2 On April 21, 2016, the petitioner billed .8 hours to
review a page and a half boilerplate decision (with attachments that were reviewed
and billed previously) and file a joint notice not to seek review.3 Excessive billing
for routine tasks is unacceptable in the Vaccine Program. See Yang v. Sec’y of
Health & Human Servs., No. 10-33V, 2013 WL 4875120 (Fed. Cl. Aug. 22, 2013).
Second, the petitioner’s attorneys’ billing records are sometimes vague,
making it impossible to determine whether certain activities are necessary.
In November 2004, the Office of Special Masters issued revised Guidelines.
The Guidelines state “counsel are advised to maintain detailed contemporaneous
records of time and funds expended under the Program.” Office of Special
Masters, Guidelines for Practice under the National Vaccine Injury Compensation
Program (Rev. Nov. 2004) at § XIV. Detailed (or stated another way, non-vague)
contemporaneous records are the petitioner’s responsibility and allow the Office of
Special Masters to determine the reasonableness of attorneys’ fees requests. See
Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011) (stating that
requiring entries which permit effective review of the fees is in accord with cases
from the Federal Circuit and the Supreme Court).
Inconsistent with Avgoustis, the petitioner’s attorneys’ billing records are
sometimes vague. Almost half of the petitioner’s billing entries (approximately
2
Prior to filing this extension, the petitioner did not coordinate with the respondent, or
indicate in her motion whether an opposition to the motion would be filed, as required under
Vaccine Rule 19(b)(3). Subsequently, on September 16, 2015, the undersigned’s chambers
requested the petitioner coordinate with opposing counsel as required under Vaccine Rule
19(b)(3). The petitioner billed 24 minutes to coordinate with the respondent and send a five-
word reply email to chambers.
3
There are other examples of excessive time being billed for routine work, and work
being billed at attorney rates that is unreasonable. The undersigned, however, prefers not to
create a litany of complaints about the petitioner’s attorneys, after all, they helped their client
obtain a concession and significant award.
4
100 out of 212) do not provide enough detail for the undersigned to determine if
the activity was necessary (and therefore reasonable), or if the work was in fact
attorney work (as opposed to paralegal or secretarial work). These entries fall into
three main categories: file review, communications with the client, and emails to
and from the life care planner.
The petitioner’s attorneys recorded 25 “file review” entries, which total
$6,098 in fees, or over 14% of the attorneys’ fees portion of the bill.4 See Pet’r’s
Application for Attorneys’ Fees and Costs, filed June 3, 2016, at Exhibit “A”.
Every entry is identical: “File Review: reviewed case file, notes, t/c notes and
medical summaries; discussed next steps with staff.” Id. All file review took at
least half an hour, and five took an hour to complete. The entries occur almost
once every month, and the petitioner’s attorneys stated in a status conference that
they endeavor to review their cases on a monthly basis to make sure they are on
track. This amount of “file review,” without an explanation of the necessity for it,
is not reasonable. See Brown v. Sec’y of Health & Human Servs., No. 09-426V,
2013 WL 1790212, at *5 (Fed. Cl. Apr. 8, 2013), supplemented, No. 09-426V,
2013 WL 2350541 (Fed. Cl. May 6, 2013) (“It is difficult to comprehend why
counsel billed for a general review of the case file at the start of each month when
she was actively involved in the case.”). Of note, the deductions in Brown were
for much smaller increments of time for file review (no more than .4 hours) when
compared to the half hour and greater time increments billed in this case. See id.;
Pet’r’s Application for Attorneys’ Fees and Costs at Exhibit “A”.
The undersigned’s review of the billing entries indicate that over 40 entries
concerned attorney-client communication. These entries annotated either email
(“emails to and from client re case status, pictures and current condition”) or
teleconference (“t/c with client re case status, update on current condition”)
communication. Pet’r’s Application for Attorneys’ Fees and Costs at Exhibit “A”.
The remaining vague entries document communications between the
petitioner’s attorneys and the petitioner’s life care planner (“emails to and from
LCPer”). Id. Though not raised by the petitioner’s attorneys, perhaps these
communications could raise a work-product doctrine issue and, thus, explain the
brevity of the relevant entries.
4
The December 29, 2014, “reviewed file” entry is not included in the 25 total because the
petitioner’s entry explains that the detailed review was in preparation for writing their petition.
However, the December 29, 2014 detailed file review makes the subsequent January 6, 2015
“routine” file review unreasonable given that a thorough file review was done by the same
attorney only one week before.
5
In a September 9, 2016 status conference, the undersigned pointed to the
attorney-client communication entries as problematic billings. In response, the
petitioner’s attorneys asserted that the attorney-client privilege prevented
elaboration.
The Federal Circuit has rejected a similar argument. In a request for fees
made pursuant to the Equal Access to Justice Act, an attorney representing a
veteran submitted invoices containing descriptions such as “writing to client,
reviewing Court’s notice of docketing, reviewing litigation file, [t]elephone
conversations with VA counsel, and faxing materials to VA counsel.” Avgoustis,
639 F.3d at 1344-45 (Fed. Cir. 2011) (internal quotation marks omitted) (citing
McDonald v. Nicholson, 21 Vet. App. 257, 265 (2007)). The Federal Circuit
agreed with the Court of Appeals of Veterans Claims that requiring billing entries
“adequately identif[y] the purpose of the activities” does “not in most cases invade
the attorney-client privilege when applied to client communications.” Id. They
also stated generally that “requiring such disclosures does not violate the attorney-
client privilege absent unusual circumstances” and that “[c]ourts have also
frequently required disclosures of the general subject matter of communications
without any indication that they would implicate the attorney-client privilege or
that they would raise any conflict with the privilege.” Avgoustis, 639 F.3d at
1345.
Nevertheless, the undersigned understands and appreciates the petitioner’s
attorneys’ desire to protect their client’s privilege, and perhaps their own work-
product. Undoubtedly, however, there is ample space for more detail between the
petitioner’s attorneys’ repetitive and unenlightening billing entries in this case, and
a disclosure of information protected by the attorney-client privilege and/or work-
product doctrine. In future fee applications, the petitioner’s attorneys should
explore this space, and provide billing entries that adequately support the necessity
and appropriateness of their work.
Despite the issues outlined above, it is important to highlight some of the
billing entries that were examined by the undersigned and found reasonable. Mr.
Carney billed 7.9 hours, or more than $2,200, in researching lymphedema as a
vaccine injury.5 Pet’r’s Application for Attorneys’ Fees and Costs at Exhibit “A”.
5
A lymphedema is defined as a chronic unilateral or bilateral edema (swelling) of the
limbs due to accumulation of interstitial fluid as a result of stasis of lymph, secondary to
6
Mr. Carney billed 8.1 hours, and Mr. Cohan 1 hour, for a total of 9.1 hours, and
more than $2,700, in drafting the petitioner’s demand.6 Id. All billing entries by
the petitioner’s attorneys’ paralegal are also reasonable. See id. In short, entries
for work performed at the appropriate billing level, and with adequate description
to determine the reasonableness of the work, are reasonable.
In addition to the line-by-line evaluation, the undersigned has also
considered the petitioner’s counsel’s fees in the context of the overall case, and
experience with similar Vaccine Act litigation. In short, all factors point to a
finding that the petitioner’s counsel has billed approximately 10 percent too many
hours. Admittedly, this estimate is not precise. It is important to recall, however,
that “the essential goal in shifting fees (to either party) is to do rough justice, not to
achieve auditing perfection. So trial courts may take into account their overall
sense of a suit, and may use estimates in calculating and allocating an attorney's
time.” Fox v. Vice, 563 U.S. 826, 838 (2011). While not precise, the evidence
marshalled above is adequate to accomplish “rough justice.” Accordingly, the
undersigned finds an appropriate amount of attorneys’ fees to be $38,551.22. This
amount includes the additional $725.00 requested for the petitioner’s reply to the
Secretary’s response.
The above analysis is the basis for this decision. The undersigned, however,
has also examined the Secretary’s response to the petitioner’s motion for attorneys’
fees, as well as the petitioner’s reply.
The Secretary, in her response to the petitioner’s fees motion, cited three
cases supporting a fees and costs range between $35,000 and $45,000.7 The
petitioner, in reply, cited eight cases supporting her attorneys’ fees and costs
obstruction of lymph vessels or disorders of lymph nodes. Dorland’s Illustrated Medical
Dictionary 1084 (32d ed. 2012).
6
The late November 2015 entries regarding drafting the demand also include a detailed
file review which, again, as in footnote four, makes the subsequent December 4, 2015 “routine”
file review unreasonable.
7
The three cases cited by the Secretary are: Abdulla v. Sec’y of Health & Human Servs.,
No. 13-853V, 2015 WL 9920826 (Fed. Cl. Spec. Mstr. Dec. 23, 2015); Jenney v. Sec’y of Health
& Human Servs., No. 14-338V, 2015 WL 7068205 (Fed. Cl. Spec. Mstr. Oct. 23, 2015); George
v. Sec’y of Health & Human Servs., No. 13-621V, 2014 WL 3035514 (Fed. Cl. Spec. Mstr. June
13, 2014).
7
motion.8 In this case, the undersigned considered the following case characteristics
to determine if cases are comparable in nature and scope: similar legal market to
Anapol Weiss (the petitioner’s attorneys’ firm),9 settled or conceded case,
existence of an expert report, existence of a life care plan, presence of a Medicaid
lien, the size of the damages award, and the attorneys’ fees and costs broken out
separately.10
8
The eight cases cited by the petitioner are: Pierce v. Sec’y of Health & Human Servs.,
No. 14-0881V, 2016 WL 3208056 (Fed. Cl. Spec. Mstr. May 9, 2016); B.K. by Kelley v. Sec’y
of Health & Human Servs., No. 14-505V, 2016 WL 1594008 (Fed. Cl. Spec. Mstr. Mar. 29,
2016); Higgins v. Sec’y of Health & Human Servs., No. 13-497V, 2015 WL 3940852 (Fed. Cl.
Spec. Mstr. June 1, 2015); Lister v. Secy’y of Health & Human Servs., No. 13-492, 2015 WL
1577634 (Fed. Cl. Spec. Mstr. Mar. 13, 2015); Prevette v. Sec’y of Health & Human Servs., No.
12-662V, 2015 WL 2379339 (Fed. Cl. Spec. Mstr. Apr. 17, 2015); Behie v. Sec’y of Health &
Human Servs., No. 13-109V, 2014 WL 4628480 (Fed. Cl. Spec. Mstr. Aug. 27, 2014); Gooden
v. Sec’y of Health & Human Servs., No. 12-596V, 2014 WL 4328223 (Fed. Cl. Spec. Mstr. July
29, 2014); Dubin v. Sec’y of Health & Human Servs., No. 10-632V, 2014 WL 1093746 (Fed. Cl.
Spec. Mstr. Feb. 26, 2014).
9
In her attorneys’ fees reply, the petitioner states that the cases cited by the respondent
are not representative because they were not litigated by Anapol Weiss, the petitioner’s
attorneys’ law firm. Pet’r’s Reply, filed June 20, 2016, at 4. When comparing vaccine litigation
firms, it is not the specific firm and their hourly billing rates that are of primary concern, but that
they practice in comparable legal markets. This is especially true in the Vaccine Program, in
which attorneys are usually compensated at the rate prevailing in the forum. Avera, 515 F.3d at
1348. Therefore, the Secretary’s failure to provide comparable cases litigated by Anapol Weiss
does not matter, so long as the Secretary provides comparable (procedurally, factually, etc.)
Vaccine Program cases within a legal market similar to Anapol Weiss’s.
10
Both the petitioner and the respondent did not always break out attorneys’ fees and
costs separately (even when possible). Where possible, the distinction should be made when
citing comparable cases.
8
attorneys charge in Lake Charles, Louisiana, are likely not comparable to the
petitioner’s attorneys’ rates in Philadelphia, Pennsylvania. After removing
George, the average of the attorneys’ fees from the two cases the Secretary cited is
$30,835.50 (or ($33,184.29 + $28,486.70) / 2).
In examining the petitioner’s comparable cases, and similar to what the
petitioner did in her reply, the cases with causation experts should be excluded, as
this case did not require one. See Pet’r’s Reply at 5. Of note, however, Behie, 13-
109V, which the petitioner stated did not have an expert, actually did, and
therefore will be removed from the below calculation. Additionally, Lister, 13-
492, includes attorneys’ fees and costs as a lump sum, and the undersigned cannot
determine what portion of that is attorneys’ fees, and what portion is costs.
Therefore, it is excluded. That leaves Pierce, B.K., and Higgins (14-0881V, 14-
505V, and 13-497V) in the calculation, resulting in an attorneys’ fees average of
$46,310.86 (or ($46,692.50 + $44,120.00 + $48,120.07) / 3).
That creates an approximate range for attorneys’ fees of $31,000 to $46,000.
The midpoint of this range is $38,500. The lodestar calculation yielded a result of
$38,551.22. Thus, the parties’ analogous cases, viewed in total, are further
evidence supporting the separately calculated lodestar value.
In addition to the award of attorneys’ fees, the petitioner also requests an
award of costs. The undersigned considered costs associated with this case, and
found them to be reasonable. Accordingly, the undersigned finds an appropriate
amount of costs to be $11,448.78.
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $50,000 ($38,551.22 in fees and $11,448.78 in
costs) to be a reasonable amount for all attorneys’ fees and costs incurred. The
undersigned GRANTS the petitioner’s motion and awards $50,000.00 in attorneys’
fees and costs. This shall be paid as follows:
A lump sum payment of $50,000.00, in the form of a check made
payable jointly to the petitioner and the petitioner’s attorney, Lawrence
R. Cohan, Anapol Weiss, for attorneys’ fees and other litigation costs
available under 42 U.S.C. § 300aa-15(e).
10
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
11