Knox v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 15, 2022
* * * * * * * * * * * * * * UNPUBLISHED
KARLA KNOX, *
*
Petitioner, * No. 20-0067V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Lynn C. Schlie, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On January 22, 2020, Karla Knox (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that she suffered from transverse myelitis as a result of the influenza vaccination
she received on March 13, 2018. See Petition, ECF No. 1. On December 28, 2021, the parties filed
a stipulation, which the undersigned adopted as her decision awarding compensation on the same
day. (ECF No. 40).
On March 8, 2022, Petitioner filed an application for final attorneys’ fees and costs. (ECF
No. 45) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$28,192.24, representing $27,554.00 in attorneys’ fees and $638.24 in attorneys’ costs. Fees App.
at 2. Pursuant to General Order No. 9, Petitioner states that she has personally incurred costs
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling will be available to anyone with access to the Internet. In accordance with Vaccine
Rule 18(b), petitioner has 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. Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
totaling $25.15 related to this litigation. Id. Respondent responded to the motion on March 9, 2022,
stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Resp’t’s Resp. at 2 (ECF No. 47). Petitioner did not file a reply
thereafter.
This matter is now ripe for consideration.
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 stipulation, 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
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. Reasonable Hourly Rates
The undersigned has reviewed the rates requested by Petitioner for the work of her counsel
at Conway, Homer, P.C. (the billing records indicate that the majority of attorney work was
performed by Ms. Lauren Faga, with supporting work from Mr. Ronald Homer, Mr. Patrick Kelly,
Ms. Meredith Daniels, Ms. Christina Ciampolillo, and Mr. Joseph Pepper). The rates requested for
these are attorneys are consistent with what they have previously been awarded for their Vaccine
Program work, and the undersigned finds them to be reasonable herein.
b. Reasonable Hours Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
2
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
Upon review, the undersigned finds the majority of the hours billed to be reasonable.
However, a small amount must be reduced for attorney time billed for review of status reports
prepared by other attorneys. The undersigned notes that it is common practice for Conway, Homer,
P.C. to have several attorneys assist over the course of a case. In some instances, such as when
preparing substantive documents like the petition, briefs, and settlement demands, it is reasonable
to have another set of eyes review that document. However, it is not reasonable to have an attorney
bill for time to review routine filings, such as status reports and motions for enlargement of time,
when those filings were prepared (and billed for) by another attorney. This is not the first time the
undersigned or other special masters have noted this particular issue concerning Conway, Homer
P.C. billing practices. See, e.g., Manetta v. Sec’y of Health & Human Servs., No. 18-172V, 2020
WL 7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Human Servs.,
No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr. Oct. 2, 2020). A reduction of $463.50 shall
be made to address this issue.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $638.24 in attorneys’ costs. Fees App. at 31-32. This amount is comprised of acquiring
medical records, the Court’s filing fee, and postage. Petitioner has provided adequate
documentation supporting these costs and they are reasonable in the undersigned’s experience.
d. Petitioner’s Costs
Pursuant to General Order No. 9, Petitioner has indicated that she has personally incurred
costs totaling $25.15. This cost is for postage and has been supported by the necessary
documentation and shall be fully reimbursed.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. The undersigned finds that it is
reasonable to compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $27,554.00
(Reduction to Fees) - ($463.50)
Total Attorneys’ Fees Awarded $27,090.50
Attorneys’ Costs Requested $638.24
(Reduction to Costs) -
Total Attorneys’ Costs Awarded $638.24
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Total Fees & Costs Awarded $27,728.74
Petitioner’s Costs $25.15
Total Amount Awarded $27,753.89
Accordingly, the undersigned awards the following:
1) a lump sum in the amount of $27,728.74, representing reimbursement for reasonable
attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and
Petitioner’s counsel of record, Mr. Ronald Homer; and
2) a lump sum in the amount of $25.15, representing reimbursement for Petitioner’s
costs, 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 shall enter judgment in accordance herewith.3
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
4