Sarver v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 22, 2019
* * * * * * * * * * * * *
ROXANNA SARVER, * UNPUBLISHED
*
Petitioner, * No. 15-1207V
*
v. * Chief Special Master Dorsey
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Excessive Interoffice Communication;
* Expert Fees.
Respondent. *
* * * * * * * * * * * * *
Ronald C. Homer, Conway Homer, P.C., Boston, Massachusetts, for petitioner.
Linda S. Renzi, United States Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On October 15, 2015, Roxanna Sarver (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program (“the Program”).2 Petitioner alleges
that as a result of an influenza (“flu”) vaccine she received on October 1, 2013, she developed
Guillain-Barre Syndrome and POEMS (polyneuropathy, organomegaly, endocrinopathy,
monoclonal gammopathy, and skin changes). Petition at 1.
An entitlement hearing was held in this matter on January 29-30, 2019. Subsequently, on
March 11, 2019, petitioner filed a motion for interim attorneys’ fees and costs, requesting
compensation for the attorneys and paralegals who worked on her case. Petitioner’s Motion
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Because this unpublished decision contains a reasoned explanation for the action in this case,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),
petitioner has 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). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1
(“Pet. Mot.”) dated Mar. 11, 2019 (ECF No. 115). Petitioner’s request can be summarized as
follows:
Attorneys’ Fees – $158,079.15
Attorneys’ Costs – $77,807.35
Petitioner’s Costs – $795.24
Petitioner thus requests a total of $236,681.74. Respondent filed his response on March
27, 2019, indicating that he “does not challenge the good faith or reasonable basis requirements
in this case” and asking the undersigned to “exercise her discretion” in determining a reasonable
award of attorneys’ fees and costs. Respondent’s Response dated Mar. 27, 2019 (ECF No. 118)
at 1 n.1, 3.
This matter is now ripe for adjudication. For the reasons discussed below, the
undersigned GRANTS petitioner’s motion in part and awards $231,939.36 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 & Human 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 & Human Servs., 609 F.3d 1372,
1375 (Fed. Cir. 2010).
Over the past five years, petitioner’s counsel has expended significant time and
resources to advance this claim. The requested costs alone, which include expert fees and
travel expenses for the entitlement hearing, total nearly $80,000.00. Moreover, the claim
appears at this point to have been brought in good faith and build on a reasonable basis. The
undersigned thus finds that an award of interim attorneys’ fees and costs is appropriate here.
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
‘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.
2
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 the 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
(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 &
Human 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.
i. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the attorneys and paralegals who
worked on this matter:
Nicole Caplan – Attorney
2015: $200.00
Christina Ciampolillo – Attorney
2015: $300.00
2017: $307.00
2018: $342.00
2019: $350.00
Meredith Daniels – Attorney
2014-2016: $280.00
2017: $286.00
2018: $294.00
2019: $320.00
Lauren Faga – Attorney
2017: $271.00
3
Ronald Homer – Attorney
2015-2016: $400.00
2017: $409.00
2018: $421.00
2019: $430.00
Patrick Kelly – Paralegal/Attorney
2014-2016: $135.00
2019: $205.00
Joseph Pepper – Attorney
2016: $290.00
2018: $305.00
Paralegals
2014-2016: $135.00
2017: $138.00
2018: $142.00
2019: $145.00
Because these attorneys practice in Boston, Massachusetts, forum rates apply. The
undersigned finds that the requested rates are reasonable and in accordance with the guidelines
set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323(Fed. Cl. Spec. Mstr. Sept. 1, 2015). These rates also align with what other special masters have
approved for these attorneys in the past.3 See, e.g., Agarwal v. Sec’y of Health & Human Servs.,
No. 16-191V, 2019 WL 2281744 (Fed. Cl. Spec. Apr. 23, 2019); Dawsonia v. Sec’y of Health &
Human Servs., No. 15-1476V, 2019 WL 582543 (Fed. Cl. Spec. Mstr. Jan. 17, 2019); Cabrera v.
Sec’y of Health & Human Servs., No. 13-598V, 2017 WL 656303 (Fed. Cl. Spec. Mstr. Jan. 23,
2017); Ruppert v. Sec’y of Health & Human Servs., No. 13-869V, 2017 WL 510468 (Fed. Cl.
Spec. Mstr. Jan. 11, 2017). Therefore, the undersigned will award the rates requested.
ii. Reduction of Billable Hours
While petitioner is entitled to an award of attorneys’ fees and costs, the undersigned has
determined that a small reduction in the number of hours billed by petitioner’s counsel is
appropriate.
In the past, the undersigned and her fellow special masters have frequently noted the
inefficiency that results when multiple attorneys work on one case. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 214-15 (2009) (affirming a special master’s reduction
of fees for overstaffing where three attorneys from two different firms worked on the same case).
3
Patrick Kelly became a licensed attorney in November 2018, and so his appropriate hourly rate
has not yet been considered. See Pet. Mot. at 2. However, the requested rate of $205.00 accords
with the fee range established in McCulloch for attorneys with less than four years of experience.
See McCulloch, 2015 WL 5634323, at *19.
4
Such inefficiency is evident in this case. Over the course of this litigation, 7 attorneys and 5
paralegals have billed their time. See generally Pet. Mot. at 5-58. As a result, the firms billed
unnecessary time for inter-office meetings and other forms of inter-office communication. See,
e.g., Pet. Mot. at 11 (“memo [from a paralegal] to [another paralegal] re case posture, client
status, record summary”); 12 (“case meeting with [Meredith Daniels] re preparing petition”); 14
(“detailed memo [from a paralegal] to [another paralegal] addressing issues related to missing
records”); 21 (“meeting with [paralegal] re status of updated records”); 30 (“memo [from
paralegal] to [another paralegal] re case posture and summarization of exhibit 32-36”). For these
reasons, the undersigned will decrease the requested attorneys’ fees by 3%. Petitioner is thus
entitled to attorneys’ fees of $153,336.77.4
B. Costs
i. Attorneys’ Costs
a. Expert Fees
1. Dr. Norman Latov, M.D., Ph.D.
Petitioner requests $48,750.00 for work performed by Dr. Norman Latov – 92.5 hours,
billed at an hourly rate of $500.00, and 10 hours of travel, billed at an hourly rate of $250.00.
Pet. Mot. at 94, 97, 102, 165. Dr. Latov currently serves as a professor of neurology and
neuroscience at Weill Medical College, Cornell University, and is licensed to practice medicine
in New York. Pet. Ex. 30 at 1-2. He submitted several expert reports and testified at the
entitlement hearing.
Although an hourly rate of $500.00 is considered high in the Vaccine Program, the
undersigned will allow that rate here, based on the depth of Dr. Latov’s expert reports and his
performance at the hearing. Moreover, the undersigned notes that other special masters have
also found this hourly rate appropriate. See, e.g., Lozano v. Sec’y of Health & Human Servs.,
No. 15-369V, 2017 U.S. Claims LEXIS 1813 (Fed. Cl. Spec. Mstr. Dec. 7, 2017); Floyd v. Sec’y
of Health & Human Servs., No. 13-556V, 2017 U.S. Claims LEXIS 300 (Fed. Cl. Spec. Mstr.
Mar. 2, 2017). Therefore, the undersigned will award the full requested fee.
2. Dr. Samir Parekh, M.D.
Petitioner requests $15,500.00 for work performed by Dr. Samir Parekh – 31 hours,
billed at an hourly rate of $500.00. Pet. Mot. at 167. Dr. Parekh is an associate professor of
oncological sciences and hematology-oncology at the Icahn School of Medicine at Mount Sinai
in New York, in addition to serving as an attending physician in the school’s Department of
Hematology and Medical Oncology. Pet. Ex. 58 at 1. He submitted an expert report and
testified at the entitlement hearing. As with Dr. Latov, the undersigned finds that the requested
fee is appropriate, and she will award it in full.
4
The reduction is calculated as follows: $158,079.15 x 0.03 = $4,742.38.
5
3. Dr. Adriana Rossi, M.D.
Petitioner requests $2,025.00 for work performed by Dr. Adriana Rossi – 4.5 hours,
billed at an hourly rate of $450.00. Pet. Mot. at 166. Dr. Rossi reviewed the medical records
and expert reports as a consultant, but she ultimately did not author her own report or testify at
the hearing. Id. Petitioner has also filed Dr. Rossi’s CV, which indicates that Dr. Rossi is
currently an assistant professor of medicine (hematology/oncology) and associate clinical
director of the Myeloma Center at Weill Cornell Medicine. See id. at 177. She also serves as
inpatient service chief of myeloma/autologous stem cell transplant at New York-Presbyterian
Hospital. Id. Based on Dr. Rossi’s CV, as well as the relatively few hours billed for her
consulting services, the undersigned will award the requested fee in full.
b. Travel Costs
Petitioner requests $3,135.08 for attorneys’ costs related to travel associated with hearing
preparation and the hearing itself. See Pet. Mot. at 65-170. The undersigned finds these costs
reasonable, and she will reimburse them in full.
c. Miscellaneous Office Costs
Petitioner requests $8,397.27 for attorneys’ costs related to miscellaneous office
expenses, including medical records requests, medical literature, postage, and printing. See Pet.
Mot. at 65-170. The undersigned finds these costs reasonable, and she will reimburse them in
full.
ii. Petitioner’s Costs
Petitioner also requests $795.24 in petitioner’s costs, which she incurred for filing fees
and travel expenses associated with the hearing. See Pet. Mot. at 172-75. The undersigned finds
these costs reasonable, and she will reimburse them in full.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsel as follows:
Requested Attorneys’ Fees: $ 158,079.15
Reduction in Attorneys’ Fees (Interoffice Communication): $ (4,742.38)
Awarded Attorneys’ Fees: $ 153,336.77
Requested Attorneys’ Costs: $ 77,807.35
Awarded Attorneys’ Costs: $ 77,807.35
Requested Petitioner’s Costs: $ 795.24
Awarded Petitioner’s Costs $ 795.24
6
Total Interim Attorneys’ Fees and Costs: $ 231,939.36
Accordingly, the undersigned awards:
A lump sum in the amount of $231,939.36, 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, Ronald C. Homer.
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.5
IT IS SO ORDERED.
/s/ Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5
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