P. v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 29, 2019
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
Q.P., *
* No. 15-449V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Reconsideration;
AND HUMAN SERVICES * Vaccine Rule 10(e); Expert Rate;
* Decision on Attorneys’ Fees and
Respondent. * Costs
* * * * * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 19, 2019, Q.P. (“petitioner”) filed a Motion for Reconsideration of my Decision
on Attorneys’ Fees and Costs issued on June 7, 2019. Mot. for Reconsideration (ECF No. 98).
Petitioner requests I reconsider my decision to decrease the costs awarded for petitioner’s expert,
Dr. David Simpson. Id. at 2. Upon review of Dr. Simpson’s qualifications, the quality of his work
in this case, and the resolution of this case utilizing Dr. Simpson’s expert report, I GRANT
petitioner’s Motion for Reconsideration and award attorneys’ fees and costs in the amount of
$73,448.71.
I. Procedural History
On May 4, 2015, petitioner filed a petition for compensation pursuant to the National
Vaccine Injury Compensation Program.2 Petition at ¶ 1 (ECF No. 1). Petitioner alleged that he
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
Ruling will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the
decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the
court’s website without any changes. Id.2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.
suffered from Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”) as a result of
receiving a tetanus-diphtheria-acellular-pertussis (“Tdap”) vaccination on August 9, 2012 and
measles, mumps, and rubella (“MMR”) vaccination on August 27, 2012. Id.
On December 14, 2018, the parties filed a joint stipulation in which they stated that a
decision should be entered awarding compensation to petitioner. Stipulation for Award (ECF No.
84). Respondent denied petitioner’s alleged injury and residual effects were caused-in-fact by the
Tdap and/or MMR vaccinations. Id. at ¶ 6. Nevertheless, the parties agreed that the issues between
them should be settled and a decision should be entered awarding compensation to petitioner. I
adopted the Stipulation for Award as my Decision awarding damages on December 18, 2018.
(ECF No. 85).
On March 11, 2019, petitioner filed a motion for attorneys’ fees and costs. Pet. Fees App.
(ECF No. 93). Petitioner requested compensation for his attorney, Mr. Ronald Homer in the total
amount of $74,565.67. This represented $60,625.10 in attorney’s fees and $13,540.57 in costs.
Pet. Fees App. at 1-2. Petitioner filed a statement pursuant to General Order No. 9 on March 11,
2019 stating petitioner personally incurred $400.00 in costs for this litigation. (ECF No. 94).
Petitioner filed a Status Report justifying 2019 rates for Homer, Conway P.C. attorneys, law clerks,
and paralegals on May 15, 2019. (ECF No. 96)
Respondent filed a response to petitioner’s fees motion on March 25, 2019, indicating that
“[r]espondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case” and recommending that “the special master exercise his discretion and determine
a reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 95). Petitioner did
not file a reply thereafter.
On June 7, 2019, I issued a Decision on Attorneys’ Fees and Costs in which Dr. Simpson
was awarded $450.00 per hour for his work in this case due to Dr. Simpson’s lack of experience
in the Vaccine Program despite his strong credentials.
On June 19, 2019, petitioner filed a Motion for Reconsideration of the Special Master’s
June 7, 2019 Decision on Attorneys’ Fees and Costs (“Mot. for Reconsideration”) requesting that
the Court reconsider its decision to decrease Dr. Simpson’s award amount. Mot. for
Reconsideration at 1 (ECF No. 98). Petitioner argues that the reasonableness of Dr. Simpson’s
proposed expert rate should be evaluated using the five relevant factors set for in Sabella. Id. at
5-6 (citing Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 1992)). Petitioner
then provided support for the factors of Dr. Simpson’s expertise, education and training, prevailing
rates for similar experts, quality of Dr. Simpson’s work, and cost of living where Dr. Simpson
practices. Id. at 6-14.
On June 24, 2019, I withdrew my June 7, 2019 Decision on Attorneys’ Fees and Costs in
order to properly adjudicate petitioner’s Motion for Reconsideration. See Order (ECF No. 99).
On June 26, 2019, I granted petitioner’s Motion for Reconsideration noting that whether petitioner
would be entitled to the substantive relief requested in their motion would be determined after
further analysis. See Order (ECF No. 100). Respondent filed a response to petitioner’s Motion
for Reconsideration on July 26, 2019, in which he deferred to my discretion to determine a
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reasonable hourly rate for petitioner’s expert. Resp. Response at 2 (ECF No. 101). This matter is
now ripe for adjudication.
II. Petitioner’s Motion for Reconsideration
a. Legal Framework
Vaccine Rule 10(e) governs motions for reconsideration. It is within a special master’s
discretion to grant or deny the motion “in the interest of justice.” Vaccine Rule 10(e)(3). Special
masters have construed the “interest of justice” standard within Vaccine Rule 10(e)(3) as a lesser
standard than the showing of required by the Rules of the Court of Federal Claims (“RCFC”)
59(a). See, e.g., R.K. v. Sec’y of Health & Human Servs., No. 03-632V, 2010 WL 5572074, at
*5 (Fed. Cl. Spec. Mstr. Nov. 12, 2010). Vaccine Rule 10 provides special masters with
“significant discretion to determine in a particular case what is in the interest of justice.”
McAllister v. Sec’y of Health & Human Servs., No. 03-2476V, 2011 WL 6000606, at *1 (Fed.
Cl. Spec. Mstr. Oct. 6, 2011).
b. Analysis
1. Expert Hourly Rate
Special masters have consistently reduced the rate for well-qualified experts who are not
experienced within the Vaccine Program. See, e.g., Rehfeld v. Sec’y of Health & Human Servs.,
No. 16-1048V, 2018 WL 4090665, at *3-4 (Fed. Cl. Spec. Mstr. Aug. 1, 2018); Emerson v. Sec’y
of Health & Human Servs., No. 15-42V, 2018 WL 3433317, at *3 (Fed Cl. Spec. Mstr. May 30,
2018). In the original Decision on Attorneys’ Fees and Costs issued on June 7, 2019, I awarded
petitioner’s expert, Dr. Simpson, an hourly rate of $450.00 instead of the requested $500.00 as a
result of Dr. Simpson’s lack of experience in the Vaccine Program.
In his Motion for Reconsideration, petitioner argued that a special master should
determine the reasonableness of a proposed expert rate based on the five Sabella factors: (1) the
area of the expert’s expertise; (2) the education and training of the expert to provide insight into
the case; (3) the prevailing rates of comparable experts; (4) the nature, quality, and complexity of
the provided information; and (5) the cost of living in the expert’s geographic area. Mot. for
Reconsideration at 5 (citing Sabella, 86 Fed. Cl. 206).
Upon reconsideration, I find that Dr. Simpson should be awarded an hourly rate of
$500.00 due to Dr. Simpson’s qualifications, his non-Vaccine Program rates, the rates of similar
experts, and his contributions that enabled a resolution of this case resulting in compensation for
petitioner.
Dr. Simpson is substantially qualified. He is double-board certified in neurology and
electrodiagnostic medicine, is a full professor at the Mount Sinai School of Medicine, he has
published over 200 peer-reviewed articles, and is an active researcher and practitioner. Mot. for
Reconsideration at 4-8. Additionally, Dr. Simpson is requesting a lower hourly rate than he
normally charges for non-Vaccine Program cases. Mot. for Reconsideration Tab A. I find that
Dr. Simpson’s requested hourly rate is the same as the rates requested and received by Drs.
Latov and Sheikh who are similarly qualified. Mot. for Reconsideration at 8-9.
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I find that Dr. Simpson’s expert report was helpful and important to this case. This was a
difficult case where Dr. Simpson’s expertise was critical in bringing about a favorable settlement
for petitioner. Id. at 12. Accordingly, in the interest of justice, petitioner will be awarded the
requested rate for Dr. Simpson of $500.00 an hour. I find Dr. Simpson’s hours expended on this
case to be reasonable. Therefore, petitioner will be awarded $11,500.00 for Dr. Simpson’s
involvement as an expert in this case.
Because the Vaccine Program reimburses petitioner’s for attorneys’ fees and costs, it is
incumbent that fee applications include all necessary and supporting justification so Special
Masters can make informed awards of fees and costs. When a petitioner is relying on an expert
that is new to the Vaccine Program, including supplemental information about the expert related
to the Sabella factors are helpful for Special Masters to evaluate the reasonableness of the
proposed expert rate. Including all relevant information in the initial fees’ application ensures
timely consideration of an application and reduces the need for the use of motions for
reconsiderations.
2. Paralegal Rate
Petitioner is not requesting reconsideration of the reduction of hours for paralegal work.
Id. at 14. As a result, I will award the same reasonable rate and hours as described below for the
paralegals at Conway, Homer, P.C. However, petitioner’s point considering the paralegals’ work
and the differentiation between that of law clerks is well-taken. Id. at 14-16. Petitioner’s
counsel should include such detail and explanations in future initial motions for attorneys’ fees
and costs to accurately assess paralegal and law clerk billed hours.
III. Petitioner’s Motion for Attorneys’ Fees and Costs
a. Legal Standard
Because my original Decision on Attorneys’ Fees and Costs was withdrawn to properly
rule on petitioner’s Motion for Reconsideration, petitioner’s Motion for Attorneys’ Fees and Costs
will now be addressed. (“Pet. Fees App.”) (ECF No. 93).
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs
for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(3)(1). Petitioner
in this case was awarded compensation pursuant to a Stipulation, and therefore can be awarded
reasonable attorneys’ fees and costs. (ECF No. 38).
The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. §
300aa-15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines
the reasonable hourly rate, which is then applied to the number of hours reasonably expended on
the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. At 484 n.1. The special master has the discretion to reduce awards sua sponte,
4
independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human Servs., 85 Fed.
Cl. 313 (Fed. Cl. 2008), aff’d No. 99-537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22,
2008). Special masters may look to their experience and judgment to reduce the number of hours
billed to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not
required. Wasson, 24 Cl. Ct., aff’d in relevant part, 988 F.2d 131 (Fed Cir. 1993) (per curiam).
b. Reasonable Attorneys’ Fees and Costs
1. Hourly Rate
Petitioner requests that his attorney, Mr. Homer, be compensated at $400.00 an hour for
work in 2016, $409.00 an hour for work in 2017, $421.00 an hour for work in 2018, and $430.00
an hour for work in 2019. Additionally, petitioner requests compensation for additional attorneys
at Conway, Homer, P.C., Ms. Meredith Daniels, Mr. Joseph Pepper, Ms. Christina Ciampolillo,
and Ms. Lauren Faga, for work contributed at various points in this litigation. Other special
masters and I have found the rates for Conway, Homer, P.C. attorneys to be reasonable for the
years requested. Fowler v. Sec’y of Health & Human Servs., No. 17-0809V, 2019 WL 982197, at
*3-5 (Fed. Cl. Spec. Mstr. Jan. 17, 2019); McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 5634323, at *19-20 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Additionally, the
requested rates for law clerks and paralegals at Conway, Homer, P.C. have been found to be
reasonable. Fowler, 2019 WL 982197, at *3. Upon review, I find that the rates requested for all
attorneys in the years 2016 through 2019 to be reasonable. I will award petitioner’s requested rates
in full.
2. Hours Expended:
As noted previously, a line-by-line evaluation of the invoiced hours is not required; instead,
I may rely on my experience to evaluate the reasonableness of the hours expended. Wasson, 24
Cl. Ct. at 484. Accordingly, I may reduce the number of hours claimed based on past experience.
Saxton, 3 F.3d at 1521. After review of the hours billed, I find that some reductions need to be
made.
Petitioner requested $60,625.10 in attorneys’ fees. It is well-established that billing for
administrative and clerical tasks is not compensable in the Vaccine Program. Rochester v. United
States, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V,
2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018). I have reviewed the billing entries
and found paralegals have billed time for preparation, receipt, review, and organization of medical
records for summarization by law clerks. These tasks are administrative in nature and duplicative
as law clerks would be reviewing and summarizing the medical records in their course of work.
See McMaster v Sec’y of Health & Human Servs., No. 17-319V, 2019 WL 1958492, at *2 (Fed.
Cl. Spec. Mstr. Mar. 8, 2019); Estes v. Sec’y of Health & Human Servs., No. 17-1003, 2019 WL
1806241, at *2 (Fed. Cl. Spec. Mstr. Mar. 4, 2019).
For example, paralegals billed 0.3 hours on September 26, 2013 for “medical records
from…, confirmed receipt of proper records, updated case file.” Pet. Fees App. at 5. This reflects
5
an administrative task. On February 27, 2014, the entry reads “review, organize and prep medical
records/exhibits 1-9 for summary and electronic filing.” Pet. Fees App. at 7. This is followed
immediately by a billing entry from the law clerks stating “began initial record summary…began
summarizing exhibits, completed exhibit 1 and part of exhibit 2.” Id. Additional entries in the
same manner are present throughout 2013 through 2018. Pet. Fees App. at 6-32. Billing for these
tasks has resulted in reductions in the past. See McMaster, 2019 WL 1958492, at *2; Estes v. Sec’y
of Health & Human Servs., 2019 WL 1806241, at *2. While distinguishing between paralegal
tasks and administrative tasks is often difficult, in light of the general policy of not reimbursing
for purely administrative or secretarial tasks which are viewed as part of the firm overhead, I will
reduce the paralegal billed time by 15%. The billing records indicate that paralegals billed 56.4
hours for a total of $7,446.40. As described above, petitioner is not seeking reconsideration of the
reasonable hours for paralegal work and the reduction in fees will be applied. Mot. for
Reconsideration at 14. Accordingly, I will reduce the award of attorneys’ fees by $1,116.96
and award petitioner attorneys’ fees in the amount of $59,508.14.
3. Attorney’s Costs
Like attorneys’ fees, a request for reimbursement for costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of
$13,540.57 in attorneys’ costs. $2,040.57 of the costs represent the cost of acquiring medical
records, postage charges, travel costs associated with meeting with petitioner, and settlement
discussions. Pet. Fees App. at 37-64. These costs are typical of the Vaccine Program and
petitioner has provided adequate documentation of all expenses. I find these expenses to be
reasonable and will award them in full. Petitioner is therefore awarded $2,040.57 in costs, in
addition to Dr. Simpson’s costs discussed above of $11,500.00, totaling $13,540.57.
4. Petitioner’s Costs
Pursuant to General Order No. 9, petitioner warrants that he has personally expended
$400.00 in pursuit of this litigation. Pet. Fees App. at 2; ECF No. 94. This amount represents the
filing cost of the petition incurred by petitioner. This cost has been adequately documented and
shall be awarded in full. Pet. Fees App. at 64. Petitioner is therefore awarded of costs in the amount
of $400.00.
IV. Conclusion
In accordance with the foregoing, petitioner’s application for attorney’s fees and costs is
GRANTED. I will award petitioner attorney’s fees and costs as follows:
Attorneys’ Fees $60,625.10
(Reduction of Fees) -($1,116.96)
Total Attorneys’ Fees $59,508.14
Attorneys’ Costs $13,540.57
(Reduction of Costs) -
Total Attorneys’ Costs $13,540.57
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Total Petitioner’s Costs $400.00
Total Amount $73,448.71
Accordingly, I award the following:
1) A lump sum in the amount of $73,048.71, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable jointly to petitioner and his
counsel, Ronald C. Homer;3 and
2) A lumpsum in the amount of $400.00, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
4
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
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