Meador v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
SANDRA MEADOR, *
*
* No. 19-1333V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: June 1, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs.
*
Respondent. *
*********************
David J. Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner;
Adriana R. Teitel and Darryl R. Wishard, United States Dep’t of Justice,
Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On August 8, 2021, petitioner Sandra Meador moved for final attorneys’
fees and costs. She is awarded $26,887.93.
* * *
1
Because this published 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 posting means the decision will be available to
anyone with access to the Internet. In accordance with Vaccine Rule 18(b), the
parties have 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.
On August 30, 2019, petitioner filed for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34. The
petition alleged that the influenza (“flu”) vaccine she received on October 11,
2016, caused her to develop rheumatoid arthritis. After filing initial medical
records, petitioner was ordered to begin the process of retaining an expert. Order,
issued Mar. 18, 2020. In a status conference held on June 29, 2020, the
undersigned discussed the potential impact of Tullio v. Secretary of Health &
Human Services, No. 15-51V, 2019 WL 7580149 (Fed. Cl. Spec. Mstr. Dec. 19,
2019), mot. for rev. denied, 149 Fed. Cl. 448 (2020). In Tullio, the undersigned
found that the petitioner failed to establish that the flu vaccine can cause
rheumatoid arthritis via molecular mimicry. The undersigned stated that for the
case to proceed, any expert retained by petitioner should advance a different theory
than the experts in Tullio. Order, issued June 29, 2020. Petitioner was unable to
secure an expert opinion and moved to dismiss her claim on March 2, 2021.
Pet’r’s Mot., filed Mar. 2, 2021, at 5-6. On April 28, 2021, the undersigned issued
his decision dismissing the petition for insufficient proof. Decision, 2021 WL
2106068 (Fed. Cl. Spec. Mstr. Apr. 28, 2021).
On August 5, 2021, petitioner moved for final attorneys’ fees and
costs. Pet’r’s Mot., filed Aug. 5, 2021. Petitioner requests attorneys’ fees of
$23,544.00 and attorneys’ costs of $3,843.93 for a total request of $27,387.93.
Pet’r’s Mot. at 2-3. Pursuant to General Order No. 9, petitioner states that she has
not personally incurred any costs in pursuit of this litigation. Fee exhibit 3. On
August 13, 2021, respondent filed a response to petitioner’s motion. Resp’t’s
Resp., filed Aug. 13, 2021. Respondent argues, “Neither the Vaccine Act nor
Vaccine Rule 13 requires respondent to file a response to a request by a petitioner
for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however,
that he “is satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Id. at 2. Additionally, he recommends that the
undersigned “exercise [his] discretion” when determining a reasonable award for
attorneys’ fees and costs. Id. at 3. Petitioner did not file a reply.
* * *
The burden is on the petitioner to provide sufficient evidence to support a
request for attorneys’ fees and costs. See, e.g., Scharfenberger v. Sec’y of Health
& Hum. Servs., 124 Fed. Cl. 225, 234 (2015). The Secretary is not required to
make objections to requests for fees and costs. Id. Accordingly, special masters
are “not limited to objections raised by respondent.” Id. (quoting Lamar v. Sec’y
2
of Health & Hum. Servs., No. 99-538V, 2008 WL 3845165, at *5 (Fed. Cl. Spec.
Mstr. July 30, 2008)).
The Secretary previously provided objections to requests for attorneys’ fees
and costs. See Dominguez v. Sec’y of Health & Hum. Servs., 136 Fed. Cl. 779,
781 (2018). However, the Secretary no longer routinely provides objections to fee
motions due to lack of resources and desire to avoid further litigation. See id.Given the Secretary’s lack of substantive participation in fee motions, special
masters have an independent duty to evaluate them for their reasonableness. See
id. at 785; McIntosh v. Secʼy of Health & Hum. Servs., 139 Fed. Cl. 238 (2018);
Spahn v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 252, 262-63 (2018).
Therefore, the undersigned has independently reviewed the fee application for its
reasonableness. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1520
(Fed. Cir. 1993); Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994) (affording special masters discretion
to determine the reasonableness of requests of attorneys’ fees and costs); see also
Saxton, 3 F.3d at 1521; Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201,
209 (2009) (allowing special masters to rely on accumulated experience in
determining fee awards).
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful, the undersigned finds that good
faith and reasonable basis existed throughout the matter. Respondent also has not
challenged the reasonable basis of the claim. A final award of reasonable
attorneys’ fees and costs is therefore proper in this case. See Greenlaw v. United
States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of matters the parties
present.”).
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). 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 & Hum. 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. Here, because the lodestar
3
process yields a reasonable result, no additional adjustments are required. Instead,
the analysis focuses on the elements of the lodestar formula, a reasonable hourly
rate and a reasonable number of hours.
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
However, when the bulk of the work is done outside the District of Columbia and
the attorneys’ rates are substantially lower, the Davis County exception applies,
and petitioner’s counsel is paid according to the local rate. Id. at 1349 (citing
Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S.
Env’t Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the
attorneys’ work was done in Philadelphia, Pennsylvania. The local rate of
Philadelphia, Pennsylvania is substantially similar to the forum rate. Therefore,
the Davis County exception does not apply.
Petitioner requests the following hourly rates for the work of her counsel,
Mr. David Carney: $325.00 per hour for work performed in 2019; $350.00 per
hour for work performed in 2020; and $375.00 per hour for work performed in
2021. These rates are consistent with what Mr. Carney has previously been
awarded for his Vaccine Program work. See, e.g., Martinez v. Sec’y of Health &
Hum. Servs., No. 16-738V, 2022 WL 1210556, at *3 (Fed. Cl. Spec. Mstr. Mar.
29, 2022); Morgan v. Sec’y of Health & Hum. Servs., No. 19-1105V, 2021 WL
3056271, at *2 (Fed. Cl. Spec. Mstr. June 28, 2021). Petitioner also requests
reasonable hourly rates for work performed by the firm’s paralegal. Accordingly,
the requested hourly rates are reasonable.
B. 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 directly challenge any of the
requested hours as unreasonable.
The undersigned has reviewed the submitted billing records and finds most
of the time billed to be reasonable. The timesheet provides sufficiently detailed
descriptions of the work performed. See fee exhibit 1. One issue is a small
amount of clerical work billed by the firm’s paralegal, including time billed for
receiving and downloading medical records, reviewing court orders, and
4
calendaring dates. Mr. Carney also occasionally billed for time spent filing
documents. Billing for clerical or administrative work is not permitted in the
Vaccine Program. See Rochester v. United States, 18 Cl. Ct. 379 (1989).
However, this issue is relatively minor and merits only a reduction of $500.00.
Accordingly, petitioner is awarded final attorneys’ fees of $23,044.00.
C. Costs
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira, 27 Fed. Cl. at 34. Petitioner requests a total of $3,843.93 in
attorneys’ costs. This amount is comprised of acquiring medical records, postage,
the Court’s filing fee, and expert fees for Dr. Marc Serota. The bulk of the costs
represent fees incurred by counsel in attempting to secure an expert opinion by Dr.
Serota. See fee exhibit 2.
Dr. Serota billed a total of 6 hours at a rate of $400.00 per hour to review
and analyze medical records and medical literature. See Pet’r’s Mot. at 39. This
totals $2,400, the amount of Dr. Serota’s retainer fee. Petitioner notes that Dr.
Serota did not charge for telephone or email correspondence or any work beyond
the $2,400 retainer fee because he did not provide an expert report. Id. at 3. Dr.
Serota was awarded his requested hourly rate in a previous Vaccine Program case.
See Petrocelli v. Sec’y of Health & Hum. Servs., No. 17-1019V, 2021 WL
1771786, at *3 (Fed. Cl. Spec. Mstr. Mar. 30, 2021). Although Dr. Serota did not
ultimately provide an expert opinion, special masters have previously awarded
expert costs in the absence of an expert report. See, e.g., Spain v. Sec’y of Health
& Hum. Servs., No. 18-737V, 2020 WL 3619927, at *2 (Fed. Cl. Spec. Mstr. June
15, 2020); Sykes v. Sec’y of Health & Hum. Servs., No. 17-716V, 2019 WL
7565467, at *6 (Fed. Cl. Spec. Mstr. Oct. 15, 2019); Gambrill v. Sec’y of Health &
Hum. Servs., No. 17-105V, 2018 WL 6787629, at *7 (Fed. Cl. Spec. Mstr. Nov.
29, 2018); Replogle v. Sec’y of Health & Hum. Servs., No. 16-1274V, 2018 WL
2225081, at *4 (Fed. Cl. Spec. Mstr. Apr. 6, 2018). Additionally, Dr. Serota’s
review and conclusion that he was unable to provide an opinion supporting vaccine
causation played a direct role in petitioner’s decision to move for dismissal. See
Gambrill, 2018 WL 6787629, at *7. Accordingly, Dr. Serota is awarded a total of
$2,400.00 in expert costs.
For the remainder of the costs, petitioner has provided adequate
documentation supporting all of the requested costs, and all appear reasonable in
the undersigned’s experience. Petitioner is therefore awarded $3,843.93 in costs.
5
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $26,887.93 (representing
$23,044.00 in attorneys’ fees and $3,843.93 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Mr.
David Carney. 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. 2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment
by filing a joint notice renouncing their right to seek review.
6