Bechel v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-887V
(Not to be Published)
*************************
ALEX BECHEL and TESS BECHEL, *
parents of G.J.B., a minor, *
* Chief Special Master Corcoran
Petitioners, *
* Dated: August 1, 2022
v. *
*
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Isaiah Kalinowski, Bosson Legal Group, Fairfax, VA, for Petitioners.
Colleen Clemons Hartley, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING IN PART
INTERIM AWARD OF ATTORNEY’S FEES AND COSTS 1
On July 26, 2016, Alex and Tess Bechel filed a petition as parents of G.J.B., seeking
compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”). 2
Petitioners allege that G.J.B. experienced encephalopathy, epilepsy, seizures, delirium, confusion,
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request 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). Otherwise, the whole Decision will be available to the public.
Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
altered mental state, and other injuries due to the administration of several vaccines on July 29,
2013. Pet. at 1–2 (ECF No. 1).
The matter is still pending and undecided. It was previously before another special master,
then transferred to me in early 2021. I set the case down for an entitlement hearing, to be held in
February 2022. However, in November 2021, Petitioners’ initial counsel, Mr. Otwell Rankin,
informed me of his intent to withdraw from the matter, and in the ensuing course of time it was
determined that the case should be resolved on the papers rather than after a trial. In spring 2022,
new counsel appeared on Petitioners’ behalf. Motion, dated Mar. 7, 2022 (ECF No. 71).
Petitioners have now filed a motion for an interim award of attorney’s fees and costs
(amended after some missing items of proof were identified)—the first fees request since the
claim’s initiation six years ago. Motion, dated July 15, 2022 (ECF No. 77) (“Interim Fees Mot.”).
Petitioners specifically request $78,405.06 in fees for the work of their prior attorneys plus a
paralegal, from 2016 through March 2022. Id. at 2. Petitioners also seeks $30,186.58 in costs,
largely attributable to the expenses incurred from the preparation of multiple expert reports. Ex.
96 at 16–17 (ECF No. 77-3). Respondent reacted to the interim fees request on March 4, 2022. See
Response, dated Mar. 4, 2022 (ECF No. 70) (“Response”). Respondent requests I determine
whether Petitioners are entitled to an award, and that I use my discretion in determining a
reasonable award if one is deemed appropriate. Response at 3. Petitioner did not file a reply.
For the reasons set forth below, I hereby GRANT Petitioners’ motion in part, awarding
fees and costs in the total amount of $85,691.33 ($55,504.75 in attorney’s fees and $30,186.58 in
costs).
ANALYSIS
I. Requests for Interim Attorney’s Fees and Costs
I have in prior decisions discussed at length the standards applicable to determining
whether to award fees on an interim basis. Auch v. Sec'y of Health & Human Servs., No. 12-673V,
2016 WL 3944701, at *6–9 (Fed. Cl. Spec. Mstr. May 20, 2016); Al-Uffi v. Sec'y of Health &
Human Servs., No. 13-956V, 2015 WL 6181669, at *5–9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It
is well-established that a decision on entitlement is not required before interim fees or costs may
be awarded. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *8
(Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also Cloer v. Sec’y of Health and Human Servs., 675
F.3d 1358, 1362 (Fed. Cir. 2012); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352
(Fed. Cir. 2008).
While there is no presumption of entitlement to interim fees and cost awards, special
masters may in their discretion make such awards, and often do so. Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim
costs are subject to the same standards as when fees are sought in unsuccessful cases (since the
matter literally has yet to “succeed”). Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52
Fed. Cl. 667, 670 (2002); Fester, 2013 WL 5367670, at *16. Some specific criteria that I have
found to be important in determining whether an interim award should be permitted include: 1) if
the amount of fees requested exceeds $30,000; 2) where expert costs are requested, if the aggregate
amount is more than $15,000; or 3) if the case has been pending for more than 18 months. See
Knorr v. Sec’y of Health & Human Servs., No. 15-1169V, 2017 WL 2461375 (Fed. Cl. Spec. Mstr.
Apr. 17, 2017).
I find that Petitioners have made a showing sufficient to justify an award of interim fees
and costs. The case has been pending for about five and a half years, and the total amount of
attorney’s fees requested exceeds the minimum threshold that I find to be appropriate. Another
important factor here is that Petitioners’ initial counsel is now withdrawing in the case, thus
presenting circumstances for completing their role in the matter. I otherwise find no reason to
question the claim’s reasonable basis at this time.
II. Calculation of Fees
Determining the appropriate amount of a fees award is a two-part process. The first part
involves application of the lodestar method— “multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs.,
515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
The second part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in
most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424,
429–37 (1983).
A. Rate Adjustments
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,
for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there
is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348
(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges
for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine
Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at
*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Petitioners requests the following rates for her initial attorneys, based on the years work
was performed:
2014 2015 2016 2017 2018 2019 2020 2021 2022
Mr. $279.33 $290.50 $351.67 $365.74 $380.37 $395.58 $484.13 $503.50 $523.64
Otwell
Rankin
Ms. $432.91 $450.22 $468.23 $487.13 $506.62 $526.88 $547.96 $569.88 $592.66
Barbara
Bonar
Paralegal - - $135.00 $145.00 - $145.00 - - $145.00
Ex. 96 at 1–15.
Mr. Rankin and Ms. Bonar practice in Covington, Kentucky, which is part of the
Cincinnati, Ohio metropolitan area. Accordingly, the rates are compared to the District of
Columbia to determine if they are significantly different. See Avera, 515 F.3d at 1349. On several
occasions this analysis has been performed, but it has been determined that non-forum rates are
appropriate. See Johnson v. Sec’y of Health & Hum. Servs., No. 16-1449V, 2021 WL 4737466, at
*16 n.14 (Fed. Cl. Spec. Mstr. Aug. 13, 2021) (stating “this is at least the fourth time counsel’s
rates have required adjustment by the Court.”); Windhorst v. Sec’y of Health & Hum. Servs., No.
13-647V, 2017 WL 4768125 (Fed. Cl. Spec. Mstr. Sept. 27, 2017); Jones v. Sec’y of Health &
Hum. Servs., No. 09-293V, 2016 WL 7233938 (Fed. Cl. Spec. Mstr. Nov. 18, 2016). I otherwise
will apply rates that have been previously awarded to these counsel in other Vaccine Act cases and
will make adjustments for “new” years consistent with what they received before.
In light of the above, I will compensate withdrawing counsel at the following adjusted
hourly rates (with no adjustment to paralegal rates, which are appropriate and track what has been
awarded in prior cases):
2014 2015 2016 2017 2018 2019 2020 2021 2022
Mr. $250.00 $250.00 $250.00 $281.00 $291.00 $297.00 $337.00 $360.00 $375.00
Otwell
Rankin
Ms. $385.00 $385.00 $385.00 $395.00 $410.00 $418.00 $436.00 $465.00 $484.00
Barbara
Bonar
Based upon the adjusted rates, the total amount of attorney’s fees recoverable is reduced to
$60,334.20. 3
B. Improperly-Billed Attorney Time
Besides the aforementioned rate adjustments, I will also disallow certain inappropriately-
billed attorney time. First, some rates were billed at an attorney rate for paralegal-type work, such
as travel time to obtain medical records or phone calls to the Clerk’s office about filing issues. See
e.g., Doe/11 v. Sec’y of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at *9–10
(Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989));
Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec.
Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818,
at *20–21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No.
99-535, 2008 WL 5747914, at *5–7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). Specifically, I have
identified 2.2 hours of work devoted to paralegal-level tasks. See e.g., Ex. 96 at 2 (July 18, 2016,
bill for driving to pick up medical records). This results in a reduction of $259.30, 4 reducing the
total recoverable amount of fees to $60,074.90.
Second, the billing invoices reveal a number of instances in which Ms. Bonar overbilled
for a variety of matters. In particular, she in several cases appears to have devoted more time to a
specific task than the more junior Mr. Rankin, or performed tasks that (from their invoice
descriptions) cannot be ascertained to reflect proper attorney utilization. See e.g., Ex. 96 at 8
(November 29, 2018, Ms. Bonar billed 2.8 hours for supplemental reports while Mr. Rankin billed
1.5 hours). I have totaled these objectionable instances and will permit recovery of only one-half
the time at issue (5.6 hours) as a reasonable reduction specifically tailored to what is objectionable
about these billing instances, resulting in a total deduction of $2,290.45 (thus further reducing
recoverable fees to $57,784.45).
Finally, a deduction of $29.70 is needed for duplicated billing between counsel that appears
to have occurred on February 22, 2019. Ex. 96 at 9. And I will reduce the amount of time spent on
the interim attorney’s fees request, deeming 12 hours excessive and awarding instead only six
hours as appropriate, awarding only $2,250. This brings the total of recoverable attorney’s fees to
$55,504.75.
3
The time put forth in the bill was used and multiplied by the corrected rates to get the new total.
4
A total of 1.9 hours were in 2016 that should be paralegal time, meaning the corrected rate of $250 per year would
be $475, however using the paralegal rate of $135 the amount is $256.50. In 2017 0.3 hours were adjusted to
paralegal hours. The rate for that year is $281 with a total of $84.3, with the paralegal rate of $145.00 being $43.5.
Therefore, a reduction of $259.30.
III. Calculation of Attorney’s Costs
Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Presault, 52 Fed. Cl. at 670;
Perreira, 27 Fed. Cl. at 34. Reasonable costs include the costs of obtaining medical records and
expert time incurred while working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-
243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to
substantiate a cost item, such as by not providing appropriate documentation to explain the basis
for a particular cost, special masters have refrained from paying the cost at issue. See, e.g.,
Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl.
Spec. Mstr. June 30, 2005).
Petitioners seeks $30,186.58 in costs incurred since the claim’s filing, including medical
record retrieval costs, filing fee, postage, and expert fees for Drs. Marcel Kinsborne and Vera
Byers. Ex. 96 at 16–17. Dr. Kinsbourne charged a rate of $500.00 per hour, with a $2,000.00
retainer. Id. at 18–19. He performed a total of 32 hours of work resulting in $16,000 billed to the
matter (exclusive of the retained). Id. Dr. Beyers charged a rate of $400.00 per hour, with a total
of 27.5 hours, billing $11,000.00. Id. at 23. I find both of these requested amounts reasonable under
the circumstances. Further, the other litigation costs were typical and reasonable of the Program.
Therefore, I find the full amount of costs requested to be appropriately awarded.
CONCLUSION
Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a final fees award, I GRANT Petitioners’ Interim Motion for Attorney’s Fees and
Costs, and award a total of $85,691.33 reflecting $55,504.75 in attorney’s fees and $30,186.58 in
costs, in the form of a check made jointly payable to Petitioners and their prior attorney, Mr. Otwell
Rankin. 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 this Decision. 5
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.