McHugh v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-148V
************************* *
*
ENYE McHUGH, parent, on behalf of S.M., *
a minor, *
* UNPUBLISHED
*
Petitioner, *
*
* Special Master Katherine E. Oler
v. *
* Filed: July 27, 2022
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
* Final Attorneys’ Fees and Costs
*
Respondent. *
*
************************* *
Peter M. Young, Habush, Habush & Rottier, S.C., Wausau, WI, for Petitioner
Catherine E. Stolar, U.S. Department of Justice, Washington, DC, for Respondent
DECISION AWARDING FINAL ATTORNEYS’ FEES AND COSTS1
On February 12, 2020, Enye McHugh (“Petitioner”) filed a petition on behalf of minor
S.M., seeking compensation under the National Vaccine Injury Compensation Program (“the
Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges S.M. suffered injuries from a varicella
vaccine-strain viral reactivation resulting from a Varicella vaccination received on August 3, 2018.
Pet. at 1.
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to
post this Decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). This means 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 Decision in its present form will be available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
1
Petitioner filed a Motion for Interim Attorneys’ Fees and Costs on March 22, 2021. ECF
No. 20. Respondent filed a response on April 1, 2021, stating it is within my discretion to award
interim attorneys’ fees and costs. Fees Resp., ECF No. 21. Respondent “defers to [me] to determine
whether or not petitioner here has met the legal standard for an interim fees and costs award.” Id.
at 2. Petitioner filed an amended Motion for Interim Attorneys’ Fees and Costs on April 22, 2021
(hereinafter “Fees Application” or “Fees App.”). ECF No. 24. Respondent filed a response of May
6, 2021, again deferring to me to determine whether or not Petitioner has met the legal standard
for an interim fees and costs award (hereinafter “Fees Response” or “Fees Resp.”). ECF No. 25.
On June 23, 2021, I issued an order deferring ruling on interim attorneys’ fees and costs
because Petitioner’s request was $8,646.74 and Petitioner had not demonstrated any undue
hardship or any pertinent circumstances that would warrant granting interim fees and costs. See
ECF No. 28. I indicated that I would adjudicate Petitioner’s motion when I made a determination
on final fees. See id.
On November 18, 2021, I issued a decision awarding damages to Petitioner. ECF No. 34.
Petitioner did not incur any additional expenses between his application for interim fees and the
decision awarding damages. Accordingly, my law clerk emailed the parties and informed them
that I would consider Petitioner’s motion for interim attorneys’ fees and costs as a motion for final
attorneys’ fees and costs. See Informal Communication Remark dated July 27, 2022.
This case has concluded thus the pending motion for attorneys’ fees and costs must be
resolved. I hereby GRANT Petitioner’s application and award a total of $8,646.74 in final
attorneys’ fees and costs.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant
to a proffer, she is entitled to a final award of reasonable attorneys’ fees and costs.
It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). 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 & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
2
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.A. Attorneys’ Fees
Petitioner requests a total of $7,830.00 in attorneys’ fees. Fees App. at 1.
i. Reasonable Hourly Rate
A reasonable hourly rate is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's
attorney.” Rodriguez v. Sec'y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349).
McCulloch provides the framework for determining the appropriate compensation for
attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Hum.
Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of
Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for
subsequent years. 3
Petitioner’s counsel, Mr. Peter Young, requests compensation for former attorney Kristin
Cafferty an hourly rate of $300.00 for work performed from 2019-2021. Mr. Young also requests
an hourly rate of $150.00 for Ms. Cafferty’s paralegals, Ms. Richer and Ms. Kim. Ms. Cafferty
and her paralegals have previously been awarded their requested rates. See Harnisch v. Sec’y of
Health & Hum. Servs., No. 18-1656V, 2021 WL 3913940 (Fed. Cl. Spec. Mstr. Jul. 29, 2021).
Accordingly, I find the requested rates reasonable and that no adjustment is warranted.
ii. Hours Reasonably Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion
to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work
done.” Saxton ex rel. Saxton v. Sec'y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993).
In exercising that discretion, special masters may reduce the number of hours submitted by a
3
The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%
27%20Forum%20Rate%20Fee%20Schedule%202018.pdf.
The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2
7%20Forum%20Rate%20Fee%20Schedule%202019.pdf.
The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2
7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf
The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo
rum-Rate-Fee-Schedule-2021-PPI-OL.pdf
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
3
percentage of the amount charged. 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);
Guy v. Sec'y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master's
reduction of attorney and paralegal hours). Petitioner bears the burden of establishing that the rates
charged, hours expended, and costs incurred are reasonable. Wasson v. Sec’y of Health & Hum.
Servs., 24 Cl. Ct. 482, 484 (1993). However, special masters may reduce awards sua sponte,
independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum.
Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed.
Cl. 313, 318 (Fed. Cl. 2008), aff’d No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22,
2008).
A special master need not engage in a line-by-line analysis of petitioner's fee application
when reducing fees. Broekelschen v. Sec'y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.
Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees
and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Hum.
Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993). It is within a special master's discretion to instead make
a global reduction to the total amount of fees requested. See Hines v. Sec'y of Health & Hum.
Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the
reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec'y of Health & Hum. Servs.,
No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011
WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and
endorsing “a global – rather than line-by-line – approach to determine the reasonable number of
hours expended in this case”).
While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health &
Hum. Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical
and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 2015 WL 5634323, at *26.
Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Fees
App., Ex. A. I find the hours to be reasonable and award them in full.
Total attorneys’ fees to be awarded: $7,830.00
B. Reasonable Costs
Petitioner requests a total of $816.74 in costs, which includes obtaining medical records,
legal research, telephone costs, and the Court’s filing fee. Fees App., Exs. B, C.
Specifically, Petitioner requests $370.80 for medical records requests, $31.94 for legal
research, $14.00 for telephone costs, and $400.00 for the Court’s filing fee. Documentation for all
medical record requests was provided and will be awarded in full. No documentation was provided
4
regarding Petitioner’s requested legal research or telephone costs. As they are reasonable
expenditures, I will award them in full.4 Thus, I award Petitioner’s requested costs in full.
Total costs to be awarded: $816.74
II. Conclusion
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
final fee and cost awards, and based on the foregoing, I GRANT Petitioner’s application, as
follows:
A lump sum in the amount of $8,646.74, representing reimbursement of Petitioner’s final
attorneys’ fees and costs in the form of a check jointly payable to Petitioner and her attorney,
Peter Young.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
4
Petitioner should be aware that failure to provide documentation for all costs will result in deductions in
the future.
5