Hitt v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
ANNA HITT, *
* No. 15-1283V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: July 27, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Renee J. Gentry, The Law Office of Renee J. Gentry, Washington, DC, for
Petitioner;
Kimberly S. Davey, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is Anna Hitt’s (“petitioner”) motion for final
attorneys’ fees and costs. She is awarded $151,853.38.
* * *
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 October 29, 2015, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccine she received on October 23, 2014,
which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her to
suffer from multiple sclerosis. Both parties retained medical experts and filed
briefs, and an entitlement hearing was held on April 17, 2018. The undersigned
ruled in favor of petitioner on January 24, 2020. 2020 WL 831822. Thereafter, the
parties filed briefs on pain and suffering and a damages hearing was held on May
20, 2021. The undersigned issued his decision awarding compensation on July 29,
2021. 2021 WL 3598322.
On August 26, 2021, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests is as follows: attorneys’ fees of
$132,654.75, attorneys’ costs of $25,411.28, and petitioner’s costs of $420.09 for a
total request of $158,486.12. Fees App. at 1. On August 30, 2021, respondent filed
a response to petitioners’ motion. Respondent argues that “[n]either the Vaccine
Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of
a request by a petitioner for an award of attorneys’ fees and costs.” Response 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 Court exercise its discretion” when determining a reasonable
award for attorneys’ fees and costs. Id. at 3. Petitioner did not file a reply
thereafter.
* * *
Because petitioner received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s 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 & Human 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 process yields a reasonable result, no additional adjustments are
2
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
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.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Petitioner requests the following rates of compensation for the work of her
counsel: for Ms. Renee Gentry, $400.00 per hour for work performed in 2015,
$415.00 per hour for work performed in 2016, $424.00 per hour for work
performed in 2017, $435.00 per hour for work performed in 2018, $445.00 per
hour for work performed in 2019, $464.00 per hour for work performed in 2020,
and $489.00 per hour for work performed in 2021; and for Mr. Clifford
Shoemaker, $415.00 per hour for work performed in 2015, $430.00 per hour for
work performed in 2016, $440.00 per hour for work performed in 2017, $450.00
per hour for work performed in 2018, and $460.00 per hour for work performed in
2019. These rates are consistent with what counsel has previously been awarded
for their Vaccine Program work and the undersigned finds them to be reasonable
herein for work performed in the instant case. See, e.g., Chilazi v. Sec'y of Health
& Human Servs., No. 17-221V, 2021 WL 3931913 (Fed. Cl. Spec. Mstr. July 1,
2021); Temes v. Sec'y of Health & Human Servs., No. 16-1465V, 2021 WL
2375787 (Fed. Cl. Spec. Mstr. Apr. 15, 2021); Hoefling v. Sec'y of Health &
Human Servs., No. 18-1935V, 2020 WL 6109440 (Fed. Cl. Spec. Mstr. Sep. 14,
2020).
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 v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
3
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and finds the
time billed on this matter to be largely reasonable although there are some minor
issues that require further discussion.2 First, much of the time Mr. Shoemaker has
billed for various communications (such as phone calls and e-mails) is vague
because it does not mention the topic of the communication. As the Federal Circuit
has previously ruled, disclosure of the general subject matter of billing statements
does not violate attorney-client privilege and billing entries for communication
should contain some indication as to the nature and purpose of the communication.
See Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011). Mr.
Shoemaker has previously been cautioned that his billing entries should contain
greater detail. Oliver v. Sec'y of Health & Human Servs., No. 10-394V, 2019 WL
2246727 (Fed. Cl. Spec. Mstr. Apr. 16, 2019); Price v. Sec'y of Health & Human
Servs., No. 11-442V, 2019 WL 1796100 (Fed. Cl. Spec. Mstr. Mar. 22, 2019);
Prokopeas v. Sec'y of Health & Human Servs., No. 04-1717V, 2017 WL 6763067(Fed. Cl. Spec. Mstr. Dec. 5, 2017).
Second, much of the time billed by Sabrina Knickelbein is redundant with
time billed by counsel to review Court orders and other routine filings from the
Court and respondent. When multiple people inside a firm bill for review of the
same documents, it creates a situation where an excessive amount of time is
expended on review of those documents. This is especially true for routine filings
such as scheduling orders and status reports. Ms. Knicklebein also billed time for
filing documents, a clerical task which the Court does not reimburse. See Guerrero
v. Secʼy of Health & Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed.
Cl. Spec. Mstr. May 22, 2015) (citing cases), mot. for rev. den’d in relevant part
and granted in non-relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No.
2016-1753 (Fed. Cir. Apr. 22, 2016).
2
The process for resolving damages was relatively drawn out, in part because of the
coronavirus pandemic. But, the parties’ inability to resolve all aspects of damages appears also to
be due to the respondent’s unduly low assessment of the reasonable amount of compensation for
the emotional distress associated with multiple sclerosis. See Damages Decision, 2021 WL
3598322 (awarding petitioner the maximum amount of pain and suffering). The extended nature
of the damages proceeding is reflected by the number of hours Ms. Gentry spent. When the
respondent essentially called upon Ms. Gentry to prove up her client’s damages, Ms. Gentry
passed this challenge with skill.
4
Finally, Ms. Gentry billed time for the drafting of pro forma documents
accompanying the filing of various exhibits. When an attorney does the work of a
paralegal or administrative assistant, he or she should be paid a rate commensurate
with the nature of the work. See Valdes v. Sec'y of Health & Human Servs., 89
Fed. Cl. 415, 425 (2009). In the undersigned’s experience, at a larger firm the
drafting of such documents would typically be handled by paralegals because they
do not require any specialized legal experience to create. To Ms. Gentry’s credit,
she delineated other paralegal tasks from her normal time billed and charged an
appropriate paralegal amount for those entries.
In the undersigned’s experience, given the large total at stake in the
requested attorneys’ fees, a relatively small total reduction should be imposed to
offset these issues – a five percent reduction yields an amount of $6,632.74, which
is appropriate in order to achieve “rough justice.” Fox v. Vice, 563 U.S. 826, 838
(2011).
Petitioner is therefore awarded attorneys’ fees in the amount of $126,022.01.
C. Costs Incurred
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). Petitioner requests a total of
$25,411.28 in attorneys’ costs. Most of this amount ($20,600.00) is attributable to
the work of petitioner’s medical expert, Dr. Carlo Tornatore, with the remainder
comprised if acquiring medical records, postage, photocopies, and costs associated
with the entitlement hearing. Dr. Tornatore billed a total of 51.5 hours at $400.00
per hour – during this time, he reviewed medical records, drafted two expert
reports, and prepared for and testified at the entitlement hearing. Fees App. at 55.
Dr. Tornatore’s hourly rate is consistent with what he has previously been awarded
for his Vaccine Program work and the hours billed are reasonable. See, e.g., Hodge
v. Sec’y of Health & Human Servs., No. 09-453V, 2017 WL 1315716, at *5 (Fed.
Cl. Spec. Mstr. Mar. 9, 2017). The remainder of the costs are reasonable in the
undersigned’s experience and have been supported with the necessary
documentation and shall be fully reimbursed.
Additionally, pursuant to General Order No. 9, petitioner has indicated that
she has personally incurred costs totaling $420.09 related to her petition for the
Court’s filing fee, postage, and medical records. These costs have been supported
with the necessary documentation and shall also be fully reimbursed.
5
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, the undersigned awards the following:
1) a total of $151,433.29 (representing $126,022.01 in attorneys’ fees and
$25,411.28 in attorneys’ costs) as a lump sum in the form of a check
jointly payable to petitioner and her counsel, Ms. Renee Gentry; and
2) a total of $420.09 representing reimbursement for petitioner’s costs as a
lump sum 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 is directed to enter judgment herewith.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
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