Pasco v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 7, 2022
* * * * * * * * * * * * * * *
MISTY PASCO, parent and next *
friend of M.P., a minor, * No. 16-500V
* Special Master Sanders
Petitioner, *
*
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.
Tyler King, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1
On September 24, 2021, Misty Pasco (“Petitioner”) filed a motion for interim attorneys’
fees and costs, requesting $74,054.89 for her counsel, Mr. Richard Gage, for work performed
during the pendency of this case. Mot. Int. Attorneys’ Fees & Costs at 2, ECF No. 81 [hereinafter
“Fees App.”]. On September 28, 2021, Respondent filed his response to Petitioner’s motion.
Resp’t’s Resp., ECF No. 82. In his response, Respondent stated that “[s]hould the Special Master
be satisfied that the reasonable basis and interim fee award standards are met in this case,
[R]espondent respectfully recommends that the Special Master exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Id. at 4. Petitioner did not file a reply
thereafter. For the reasons stated below, the undersigned will award interim attorneys’ fees and
costs for Petitioner’s counsel at this time.
I. Procedural History
On April 22, 2016, Petitioner filed a petition on behalf of M.P., for compensation pursuant
1
This Decision shall be posted 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), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted Decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such material
will be deleted from public access.
to the National Vaccine Injury Compensation Program (“Program”). 2 42 U.S.C. §§ 300aa-1 to -34
(2012); Pet., ECF No. 1. Petitioner alleges that M.P. developed acute disseminated
encephalomyelitis (“ADEM”) and transverse myelitis (“TM”) as a result of measles-mumps-
rubella (“MMR”) and varicella vaccinations on May 14, 2015. Pet. at 1. Over the following year,
Petitioner filed medical records and a statement of completion. ECF Nos. 9–12, 17, 18.
On August 5, 2016, Respondent filed his Rule 4(c) report, indicating that this case was not
appropriate for compensation. Resp’t’s Report at 1, ECF No. 19. Thereafter, Petitioner filed
additional medical records, an affidavit, and multiple expert reports with supporting medical
literature from Dr. Lawrence Steinman, with Respondent providing expert reports from Drs.
Hayley Gans and Michael Kruer. ECF Nos. 20, 22, 27, 30, 35–38, 40–41, 46, 50, 56, 57, 64, 73–
75. An entitlement hearing was held on June 2, 2021. See Min. Entry, docketed June 2, 2021. This
case is awaiting a decision on entitlement.
II. Availability of Interim Attorneys’ Fees and Costs
A. Good Faith and Reasonable Basis
Under the Vaccine Act, petitioners may recover reasonable attorneys’ fees and costs only
if “the petition was brought in good faith, and there was a reasonable basis for which the petition
was brought.” 42 U.S.C. § 300aa-15(e)(1) (2012). Respondent does not object to Petitioner’s
motion on the basis of good faith or reasonable basis, and the undersigned finds that the statutory
criteria for an award of interim fees and costs are met.
B. Justification for an Interim Award
In Avera, the Federal Circuit stated that a special master may award attorneys’ fees and
costs on an interim basis. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir.
2008). The Court noted that such awards “are particularly appropriate in cases where proceedings
are protracted, and costly experts must be retained.” Id. Similarly, the Federal Circuit held in Shaw
that it is proper for a special master to award interim attorneys’ fees “[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 & Hum. Servs., 609 F.3d 1372, 1375 (Fed.
Cir. 2010).
Many cases in the Program are proceeding slower than they have in the past. See Miles v.
Sec’y of Health & Hum. Servs., No. 12-254V, 2017 WL 4875816 at *5 (Fed. Cl. Spec. Mstr. Oct.
4, 2017) (“[i]t may be months to years before an entitlement ruling is issued”); Abbott v. Sec’y of
Health & Hum. Servs., No. 14-907V, 2016 WL 4151689, at *4 (Fed. Cl. Spec. Mstr. July 15, 2016)
(“[t]he delay in adjudication, to date, is due to a steady increase in the number of petitions filed
each year.”). As Petitioner’s case was filed on April 22, 2016, it has been pending for nearly six
years. See Pet. At the current pace, although an entitlement hearing has been held, the subsequent
decision may not be rendered for a year or longer.
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
2
Meanwhile, Petitioner’s fees and costs have accumulated in the course of prosecuting this
case. Petitioner’s counsel has requested $74,054.89 in fees and costs, and “[i]t cannot be seriously
argued that in essence loaning cases thousands of dollars for years is not a hardship.” Kirk v. Sec’y
of Health & Hum. Servs., No. 08-241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13,
2009). Because of the protracted nature of the proceedings and the accumulation of fees and costs,
the undersigned finds an award of interim attorneys’ fees and costs reasonable and appropriate in
this case.
III. Reasonable Attorneys’ Fees
Only reasonable attorneys’ fees may be awarded, and it is “well within the special master’s
discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Hum. Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750,
753 (1991) (“the reviewing court must grant the special master wide latitude in determining the
reasonableness of both attorneys’ fees and costs.”). In making a determination, applications for
attorneys’ fees must include contemporaneous and specific billing records that indicate the work
performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Hum.
Servs., 85 Fed. Cl. 313, 316–18 (2008).
The Federal Circuit has approved the lodestar formula to determine reasonable attorneys’
fees under the Vaccine Act. Avera, 515 F.3d at 1348. This is a two-step approach. Id. 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. Avera, 515 F.3d at 1348.
A. Reasonable Rates
Forum rates are used in the lodestar formula, except when the rates in an attorneys’ local
area are significantly lower than forum rates. Id. at 1348–49. In a 2015 decision, Special Master
Gowen determined the reasonable forum rate ranges for attorneys with varying years of
experience. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323,
at *18-19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for recons. denied, 2015 WL 6181910 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015). When considering whether a requested rate is reasonable, special
masters may consider an attorney’s overall legal experience and his experience in the Vaccine
Program, as well as the quality of the work performed. Id. at *17. The McCulloch rates have been
updated for subsequent years and are accessible on the Court’s website at
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters.
a. Reasonable Hourly Rates
Petitioner requests that her counsel, Richard Gage, be compensated at the following hourly
rates for his representation of Petitioner: $300 per hour for work performed in 2015; $311 per hour
for work performed in 2016; $318 per hour for work performed in 2017; $326 per hour for work
performed in 2018; $338 per hour for work performed in 2019; $350 per hour for work performed
in 2020; and $362 per hour for work performed in 2021. Petitioner also requests that attorney
3
Kristen Blume be compensated at the following hourly rate for her assistance in the representation
of Petitioner: $251 per hour for work performed in 2017–2018; $350 per hour for work performed
in 2020; and $355 per hour for work performed in 2021. Petitioner requests the paralegals assisting
Mr. Gage, including Ms. Susan McNair, Mr. Brian Vance, Ms. Sharee Lange, and Ms. Helen
Nelson, be compensated at $120 per hour for work performed in 2015–2020; and $130 per hour
for work performed in 2021. 3 The undersigned has reviewed the hourly rates requested by
Petitioner for the work of her counsel through the duration of this case. The billing records indicate
that all the attorney work in this case has been performed by Richard Gage and Kristen Blume,
with the supporting work from the paralegals. The hourly rates requested for these individuals are
consistent with what they have previously been awarded for Vaccine Program work, and the
undersigned finds them to be reasonable for work performed in the instant case as well. See, e.g.,
Goldman v. Sec’y of Health & Hum. Servs., No. 16-1523V, 2021 WL 3056263, at *2 (Fed. Cl.
Spec. Mstr. June 21, 2021).
b. Hours Expended
The second step in Avera is for the Court to make an upward or downward modification
based upon specific findings. Avera, 515 F.3d at 1348. Petitioner has requested $54,032.90 in
interim fees. Fees App. at 6. In the Program, billing for administrative tasks is not appropriate. See
Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (stating that services that are “primarily of
a secretarial or clerical nature . . . should be considered as normal overhead office costs included
within the attorneys' fee rates”); see also Isom v. Sec'y of Health & Hum. Servs., No. 94-770, 2001
WL 101459, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2001) (agreeing with Respondent that tasks such
as filing and photocopying are subsumed under overhead expenses); Walters v. Sec’y of Health &
Hum. Servs., No. 15-1380V, 2022 WL 1077311, at *5 (Fed. Cl. Spec. Mstr. Sept. 17, 2018) (failing
to award fees for the review of CM/ECF notifications and the organization of the file); McCulloch,
2015 WL 5634323, at *26 (noting that clerical and secretarial tasks should not be billed at all,
regardless of who performs them).
Upon review, the undersigned finds that the billed hours are largely reasonable. Counsel
has provided sufficiently detailed descriptions for the tasks performed by himself, his assisting
attorney, and paralegals, and upon review, the undersigned does not find any of the billing entries
to be unreasonable. However, counsel and his paralegals billed for administrative tasks, including
the review of court orders and the filing of exhibits, on several occasions. Fees App. at 26–45.
After careful analysis, the undersigned estimates that no less than 1.5 hours billed by Mr. Gage
between 2016–2018, and no less than 4.5 hours billed by paralegals Susan McNair and Brian
Vance between 2016–2021, reasonably represents non-compensable work. See id. Therefore, the
undersigned will reduce the total award by approximately $1,000.00. See Broekelschen v. Sec'y of
Health & Hum. Servs., 102 Fed. Cl. 719, 728-29 (2011) (affirming the special master's reduction
of attorney and paralegal hours and finding that in exercising their discretion, special masters may
reduce the number of hours submitted by a percentage of the amount charged.).
Additionally, the undersigned notes that on May 6, 2016, paralegal Susan McNair billed at
a rate of $311 per hour for .5 hours’ worth of work performed, for a total of $155.50. Fees App. at
3
Petitioner requested that paralegal Ms. Sharee Lange be compensated at $120 per hour for her limited
work performed in 2021. See Fees App. at 44.
4
36. Consistent with counsel’s requested rate for paralegals in 2016, Ms. McNair should have billed
at a rate of $120 per hour and earned $60 for .5 hours’ worth of work performed. An appropriate
reduction for this charge is $95.50. Accordingly, Petitioner is entitled to interim attorneys’ fees in
the amount of $52,937.40.
B. Costs
Similar to attorneys’ fees, a request for reimbursement of costs must be reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). Petitioner has requested
$20,021.99 in interim costs. Fees App. at 6. This amount is comprised of acquiring medical
records, postage, photocopies, the Court’s filing fee, and expert work performed by Dr. Lawrence
Steinman. See id. at 48. Petitioner has provided mostly adequate documentation of the requested
costs, and the costs are largely reasonable in the undersigned’s experience. However, Petitioner
failed to provide documentation of counsel’s $423.93 payment to Healthport on December 31,
2015. Id. at 48–55. Without documentation, this cost cannot be reimbursed at this time.
Accordingly, Petitioner is entitled to interim attorneys’ costs in the amount of $19,598.06.
IV. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for interim
fees and costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable
to compensate Petitioner and his counsel as follows:
Interim Attorneys’ Fees Requested $54,032.90
(Reduction to Fees) - $1,095.50
Interim Attorneys’ Fees Awarded $52,937.40
Interim Attorneys’ Costs Requested $20,021.99
(Reduction of Costs) - $423.93
Interim Attorneys’ Costs Awarded $19,598.06
Interim Attorneys’ Fees and Costs $72,535.46
Accordingly, the undersigned awards a lump sum in the amount of $72,535.46 to be issued
in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Richard Gage, of
Richard Gage, P.C., for interim attorneys’ fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the above Decision. 4
IT IS SO ORDERED.
4
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
5
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
6