Sparrow v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
KEVIN SPARROW and DANIELLE *
SPARROW, parents and natural guardians, *
on behalf of L.S., *
* No. 18-295V
Petitioners, * Special Master Christian J.
Moran
*
v. *
* Filed: October 25, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * attorneys’ fees
*
Respondent. *
*************************
Scott B. Taylor, Urban & Taylor, S.C., Milwaukee, WI, for petitioner;
Laurie Wiesner, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS 1
Seeking compensation pursuant to the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa–10 through 34 (2012), Kevin and Danielle Sparrow claim
that a mumps-measles-rubella vaccine caused their daughter, L.S., to suffer acute
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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. This posting will make the decision
available to anyone with the internet. 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.
disseminated encephalomyelitis. Counsel of record for the Sparrows is Scott
Taylor.
The Sparrows are requesting an award of attorneys’ fees and costs on an
interim basis. Pet’r’s Mot., filed Sept. 22, 2021. The Secretary has not opposed
this request. Resp’t’s Resp., filed Oct. 6, 2021. For the reasons that follow, the
Sparrows are awarded $82,257.40.
I. Abbreviated Procedural History
The Sparrows initiated this litigation by filing a petition on February 27,
2018. Mr. Taylor has represented them throughout this case. After the Sparrows
submitted medical records, the Secretary advised that they should not receive
compensation. Resp’t’s Rep., filed Dec. 20, 2018.
The parties presented reports from doctors whom they retained for this
litigation. The expert witness for the Sparrows is Dr. Lawrence Steinman, who has
often participated in the Vaccine Program. His reports are exhibits 18 and 42. The
Secretary has filed reports from Dr. Robert Fujinami and Dr. Michael Sweeney.
After the parties finished submitting reports from these experts, the parties
explored a potential informal resolution. However, the Secretary stated that he
was not interested in settlement. Resp’t’s Status Rep., filed Jan. 19, 2021.
Accordingly, the parties submitted briefs in advance of adjudication. A hearing is
scheduled for July 14–15, 2022. Order, issued Sept. 13, 2021.
The Sparrows filed their pending motion on September 22, 2021, requesting
fees for work Mr. Taylor performed and costs incurred in the litigation, including
costs for Dr. Steinman’s work. The Sparrows argue that an award of interim fees
and costs is appropriate because their case was filed with good faith and a
reasonable basis, and counsel has borne considerable fees and costs. Pet’r’s Mot.
The Secretary did not oppose the Sparrows’ request. Instead, he stated that
he “defers to the special master to determine whether or not petitioner has met the
legal standard for an interim fees and costs award as set forth in Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008).” Resp’t’s Resp., filed
Oct. 6, 2021, at 2.
This matter is now ripe for adjudication.
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II. Analysis
The Sparrows’ motion implicitly raises a series of sequential questions, each
of which requires an affirmative answer to the previous question. First, are the
Sparrows eligible under the Vaccine Act to receive an award of attorneys’ fees and
costs? Second, as a matter of discretion, should the Sparrows be awarded their
attorneys’ fees and costs on an interim basis? Third, what is a reasonable amount
of attorneys’ fees and costs? These questions are addressed below.
A. Eligibility for an Award of Attorneys’ Fees and Costs
As an initial matter, interim fee awards are available in Vaccine Act cases.
Avera, 515 F.3d at 1352. Since the Sparrows have not received compensation
from the Program, they may be awarded “compensation to cover [their] reasonable
attorneys’ fees and other costs incurred in any proceeding on such petition if the
special master or court determines that the petition was brought in good faith and
there was a reasonable basis for the claim.” 42 U.S.C. § 300aa–15(e)(1). As the
Federal Circuit has stated, “good faith” and “reasonable basis” are two separate
elements that must be met for a petitioner to be eligible for attorneys’ fees and
costs. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir.
2017).
The Secretary has not challenged the Sparrows’ good faith here, and there is
little doubt that the Sparrows brought the claim with an honest belief that a vaccine
injury occurred. Similarly, the Secretary has not challenged the reasonable basis
for this claim. Dr. Steinman’s reports satisfy the reasonable basis standard.
B. Appropriateness of an Interim Award
Interim awards should not be awarded as a matter of right. Avera, 515 F.3d
at 1352 (Fed. Cir. 2008). Instead, petitioners must demonstrate “undue hardship.”
Id. The Federal Circuit noted that interim fees “are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” Id.The Federal Circuit has also considered whether petitioners faced “only a short
delay in the award” before a motion for final fees could be entertained. Id.The Federal Circuit has not attempted to specifically define what constitutes
“undue hardship” or a “protracted proceeding.” In this case, however, an interim
award is appropriate. The proceedings have been ongoing for more than three
years and will probably continue for another year at least. In addition, the
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Sparrows’ counsel has expended funds on two expert reports. These
circumstances support an award of attorneys’ fees and costs on an interim basis.
C. Reasonableness of the Requested Amount
Under the Vaccine Act, a special master may award reasonable attorneys’
fees and costs. 42 U.S.C. § 300aa–15(e)(1). In light of the Secretary’s lack of
objection, the undersigned has reviewed the fee application for its reasonableness.
See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018).
Reasonable attorneys’ fees are calculated by multiplying a reasonable hourly rate
by a reasonable number of hours expended on litigation, the lodestar approach.
Avera, 515 F.3d at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984));
Saxton ex rel. v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir.
1993).
1. Reasonable Hourly Rate
Reasonable hourly rates are determined by looking at the “prevailing market
rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing
market rate” is akin to the rate “in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.” Id. at 895 n.11. A
petitioner’s counsel in the Vaccine Program is paid the forum rate unless the bulk
of the work is performed in a locale other than the forum (District of Columbia)
and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at
1349. If these two requirements are met, the Davis County exception applies, and
petitioner’s counsel is paid according to the local rate to avoid a “windfall.” Id.;
see Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v.
U.S. Envtl. Prot. Agency, 169 F.3d 755, 757–60 (D.C. Cir. 1999).
For cases in which forum rates apply, McCulloch provides a framework for
consideration of appropriate ranges for attorneys’ fees based upon the experience
of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly
Rate Fee Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be
accessed online.2
2
The 2015–2016, 2017, 2018, 2019, 2020, and 2021 Fee Schedules can be
accessed at: https://www.uscfc.uscourts.gov/node/2914. The hourly rates
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The Sparrows propose reasonable rates for Mr. Taylor in the amount of
$375.00/hour in 2015; $385.00/hour in 2016 and 2017; $396.00/hour in 2018;
$404.00/hour in 2019; and $421.00/hour in 2020; and $444.00/hour in 2021. The
Secretary does not dispute the Sparrows’ counsel’s entitlement to these rates.
Given Mr. Taylor’s level of experience, the undersigned finds these rates to be
reasonable. Isaacson v. Sec’y of Health & Human Servs., No. 14-1056V, 2021
WL 4596110 (Fed. Cl. Spec. Mstr. Sept. 7, 2021).
2. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton, 3 F.3d at 1521. The Secretary did not challenge any of the requested hours
as unreasonable.
Mr. Taylor’s time entries provide adequate detail to assess their
reasonableness, mostly. While most of the activities were reasonable for someone
to perform, Mr. Taylor has performed tasks such as communicating with the
Sparrows in the process of gathering medical records, reviewing medical records,
and drafting routine notices of filing that a paralegal could perform. An attorney
should not charge an attorney’s high hourly rate for work that a lower-charging
person can do. See Valdes v. Sec’y of Health & Human Servs., 89 Fed. Cl. 415,
425 (2009) (noting that “the Special Master exercised appropriate discretion in
denying requested costs for work performed by Petitioner’s counsel’s associate”
when the special master determined “that the associate’s time spent obtaining
medical records was more consistent with paralegal duties.”). Adjusting the time
spent on these tasks to the rate of a paralegal results in a reduction of $7,500.
While most of Mr. Taylor’s entries contain an appropriate level of detail,
two large entries do not. Mr. Taylor’s invoice includes a single entry for 52.4
hours for work performed from March 20, 2021 to April 19, 2021. The description
is “Review file, extensive drafting, preparation, editing, revising, finalization and
filing Petitioner’s prehearing submission, including review of numerous pieces of
medical literature, analysis of burden of proof, and legal research into additional
cases involving petitioner’s medical theory.” A similar, but smaller, entry is for
7.5 hours for work performed from June 22, 2021 to July 19, 2021. The
contained within the schedules are updated from the decision in McCulloch, 2015
WL 5634323.
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description is “Review file, drafting, preparation, editing, revising, finalization and
filing Petitioner’s Reply to respondent’s Brief Opposing Entitlement, including
review of medical literature.”
At the onset of the case, Mr. Taylor was advised that “Each discrete task
should have a specific entry. A rule of thumb is that tasks that require more than
one hour should be further refined.” Order regarding attorneys’ fees, issued Mar.
5, 2018, at 5. Multiple cases have advised against block billing because the
vagueness of the entries frustrate attempts to assess the reasonableness of the
activity. See Abbott v. Sec’y of Health & Human Servs., 135 Fed. Cl. 107 (2017)
(holding that the special master acted within his discretion in reducing an award
based on vague billing entries); see also Almanza v. United States, No. 13-130,
2018 WL 1704521, at *7 (Fed. Cl. Apr. 9, 2018) (reducing specific time entries
with block billing by 50 percent because the Court could not assess the
reasonableness of the activity). To account for the vagueness, 20 percent is
eliminated from these entries, causing a reduction of $5,319.12
Accordingly, the Sparrows are awarded attorneys’ fees in the amount of
$59,795.98. This amount is reasonable for work performed through September 15,
2021.
3. Costs
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). For attorneys’ costs through
September 15, 2021, the Sparrows requested $936.42, consisting of filing fees,
acquiring medical records, and photocopies. See Pet’r’s Mot., Fees Exhibits C and
D. These costs are reasonable. The Sparrows stated that they did not incur any
costs personally.
For the expert-related costs through September 15, 2021, the Sparrows have
requested compensation for the expert fees of Dr. Steinman, totaling $23,375.
Reasonable expert fees are also determined using the lodestar method in which a
reasonable hourly rate is multiplied by a reasonable number of hours. See
Chevalier v. Sec’y of Health & Human Servs., No. 15-001V, 2017 WL 490426, at
*3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017). A reasonable hourly rate for an expert
depends, in part, on the quality of the expert’s work. Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 218–25 (2009).
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Dr. Steinman’s invoices reflect that he has spent 42.5 hours on this case.
Fee Exhibit E. The number of hours appears reasonable.
Dr. Steinman has invoiced at $550 per hour. However, Dr. Steinman has
usually been compensated at a rate of $500 per hour and the Sparrows have not
presented any argument for this increase. See B.A. v. Sec’y of Health & Human
Servs., No. 11-51V, 2019 WL 460941, at *4 (Fed. Cl. Spec. Mstr. Jan. 10, 2019).
For Dr. Steinman’s work in 2021, the proposed rate of $550 per hour is reasonable,
but $500 per hour remains reasonable for work performed in 2019 and 2020.
Thus, a reasonable amount of compensation for Dr. Steinman is $21,525.
The Sparrows are awarded costs in the amount of $22,461.42.
III. Conclusion
Accordingly, the Sparrows are awarded:
A lump sum of $82,257.40 in the form of a check made payable to the
Sparrows and the Sparrows’ attorney, Scott B. Taylor.
This amount represents reimbursement of interim attorneys’ fees and other
litigation costs available under 42 U.S.C. § 300aa-15(e). 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.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
Entry of judgment can be expedited by each party’s filing of a notice
3
renouncing the right to seek review. Vaccine Rule 11(a).
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