Curtis v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 14, 2020
* * * * * * * * * * * * * *
DAVID ROBIN CURTIS, * No. 17-607V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Zachary J. Hermsen, Whitfield & Eddy Law, Des Moines, IA, for Petitioner.
Julia M. Collison, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On May 5, 2017, David Robin Curtis (“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 he suffered an exacerbation of severe dry eyes and mouth as a result
of his May 5, 2014 receipt of the measles, mumps, and rubella (“MMR”) vaccine. Pet. at ¶ 1. On
July 24, 2019, the parties filed a Stipulation for Award, which I adopted as my decision awarding
compensation on the same day. Decision, ECF No. 46.
On August 27, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.
48 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $19,254.75
(representing $16,968.50 in fees and $2,286.25 in costs). Fees App. at 5. Pursuant to General Order
1
I intend 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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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. § 3501note (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. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
No. 9, petitioner warrants that he has not personally incurred any costs related to the prosecution
of his petition. ECF No. 53. Respondent responded to the motion on August 28, 2019, indicating
that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case” and requests that I exercise my discretion and determine a reasonable award for
attorneys’ fees and costs. Resp. at 2–3 (ECF No. 49). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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.
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). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. 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. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
2
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3
Petitioner requests the following rates for the work of his attorneys: for Mr. Tom Reavely,
$400.00 per hour for all work performed (covering 2016-2018), and for Mr. Zach Hermsen,
$175.00 per hour for work performed in 2016 and 2017, $195.00 per hour for work performed in
2018, and $215.00 per hour for work performed in 2019. Fees App. at 2. The rates requested for
Mr. Hermsen and for Mr. Reavely in 2018 are reasonable and consistent with what these
individuals have previously been awarded for their Vaccine Program work, and I shall award them
herein. See McDowell v. Sec’y of Health & Human Servs., No. 17-1156V, 2019 WL 2296779, at
*2-3 (Fed. Cl. Spec. Mstr. Mar. 28, 2019). However, for Mr. Revealy’s work prior to 2018, he has
previously been awarded $394.00 per hour. Id. at *2; see also Wetterling v. Sec’y of Health &
Human Servs., No. 17-144V, 2019 WL 441956, at *8 (Fed. Cl. Spec. Mstr. Jan. 10, 2019).
Application of this rate results in a reduction of $30.00.4
b. 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. 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 & Human 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.
Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and, upon review, the
undersigned does not find any of the billing entries to be unreasonable. Respondent also did not
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. 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%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
4
($400.00 per hour requested - $394.00 per hour awarded) * 5.0 hours billed in 2016-17 = $30.00.
3
indicate that he finds any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $16,938.50.
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 $2,286.25 in attorneys’ costs. This amount comprises the cost of obtaining medical
records, postage, the Court’s filing fee, records review work performed by Drs. Mark Greiner and
John Zittergruen. Petitioner has provided adequate documentation supporting the requested costs
and all appear reasonable in my experience. Petitioner is thus entitled to the full amount of
attorneys’ costs sought.
II. Conclusion
Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:
Attorneys’ Fees Requested $16,968.50
(Reduction to Fees) - ($30.00)
Total Attorneys’ Fees Awarded $16,938.50
Attorneys’ Costs Requested $2,286.25
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $2,286.25
Total Attorneys’ Fees and Costs $19,224.75
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have 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. Accordingly, I award a lump sum in the
amount of $19,224.75, representing reimbursement for petitioner’s attorneys’ fees and costs,
in the form of a check payable to petitioner and his attorney, Mr. Zachary Hermsen.
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.5
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
5
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