Cerrone v. Secretary of Health and Human Services

*********************
NIKKO CERRONE, *
* No. 17-1158V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: February 25, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs; interim
* award
Respondent. *
*********************
Gary Krochmal, Law Office of Gary A. Krochmal, PLLC, Farmington Hills, MI,
for petitioner;
Lisa Watts, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1
Nikko Cerrone alleges the human papillomavirus vaccine and/or the
hepatitis A vaccine caused him to develop ulcerative colitis. He seeks
compensation pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §
300aa–10 through 34 (2012). Mr. Cerrone is represented by Mr. Gary Krochmal.
To support his claim, Mr. Cerrone has presented two reports from David
Rosenstreich, an immunologist, and one report from John Santoro, a
gastroenterologist.
Mr. Cerrone filed an amended motion for an award of attorneys’ fees and
costs on an interim basis on February 6, 2020. For the reasons that follow,
petitioner is awarded $26,683.06.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
* * *
The requested fees include work performed and costs incurred as of
December 1, 2019. Petitioner seeks a total of $67,326.43 comprised of $30,137.85
in attorneys’ fees and $37,188.58 in attorneys’ costs. Mr. Cerrone has not incurred
any costs personally. Exhibits 64, 67.
The Secretary filed his response to petitioner’s motion on February 11, 2020.
The Secretary did not provide any objection to petitioner’s request. Id. Instead, he
deferred to the special master to determine whether petitioner established the
statutory requirements for an award of attorneys’ fees, whether an award on an
interim basis is appropriate, and the reasonable amount of attorneys’ fees and
costs.
Petitioner did not file a reply. This matter is now ripe for adjudication.
* * *
Petitioner’s motion implicitly raises a series of sequential questions, each of
which requires an affirmative answer to the previous question.2 First, whether
petitioner is eligible under the Vaccine Act to receive an award of attorneys’ fees
and costs? Second, whether, as a matter of discretion, petitioner should be
awarded her attorneys’ fees and costs on an interim basis? Third, what is a
reasonable amount of attorneys’ fees and costs? These questions are addressed
below.
1. Eligibility for an Award of Attorneys’ Fees and Costs
As an initial matter, interim fee awards are available in Vaccine Act cases.
Avera, 515 F.3d at 1352. Since petitioner has not received compensation from the
Program, he may be awarded “compensation to cover [his] reasonable attorneys’
fees and other costs incurred in any proceeding on such petition if the special
master or court determines that the petition was brought in good faith and there
was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). As the Federal
Circuit has stated, “good faith” and “reasonable basis” are two separate elements
2
Petitioner’s motion does not present any argument regarding the eligibility for
attorneys’ fees or the appropriateness of an award on an interim basis. In the future, a short
statement would be appropriate.
2
that must be met for a petitioner to be eligible for attorneys’ fees and costs.
Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).
“Good faith” is a subjective standard. Id.; Hamrick v. Sec’y of Health &
Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov.
19, 2007). A petitioner acts in “good faith” if he or she honestly believes that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary has
not challenged petitioner’s good faith here, and there is little doubt that petitioner
brought the claim with an honest belief that a vaccine injury occurred.
In contrast to good faith, reasonable basis is purely an objective evaluation
of the weight of the evidence. Simmons, 875 F.3d at 636. Because evidence is
“objective,” the Federal Circuit’s description is consistent with viewing the
reasonable basis standard as creating a test that petitioners meet by submitting
evidence. See Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013
WL 6234660 at *12–13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that
reasonable basis is met with evidence), mot. for rev. denied, 116 Fed. Cl. 276
(2014).
Here, respondent did not interpose any objection. In addition, petitioner has
presented reports from Dr. Rosenstreich and Dr. Santoro. Thus, the undersigned
finds that petitioner satisfies the reasonable basis standard.
2. Appropriateness of an Interim Award
Interim awards should not be awarded as a matter of right. Avera, 515 F.3d
at 1352 (Fed. Cir. 2008). Instead, petitioners must demonstrate “undue hardship.”
Id. The Federal Circuit noted that interim fees “are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” Id.
The Circuit has also considered whether petitioners faced “only a short delay in the
award” before a motion for final fees could be entertained. Id.
The Federal Circuit has not attempted to specifically define what constitutes
“undue hardship” or a “protracted proceeding.” In the undersigned’s practice,
interim fees may be appropriate when the amount of attorneys’ fees exceeds
$30,000 and the case has been pending for more than 18 months. Petitioner clears
both hurdles.
3
3. Reasonableness of the Requested Amount
Under the Vaccine Act, a special master may award reasonable attorneys’
fees and costs. 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are
calculated by multiplying a reasonable hourly rate by a reasonable number of hours
expended on litigation, the lodestar approach. Avera, 515 F.3d at 1347–48
(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton ex rel. v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In light of the
Secretary’s lack of objection, the undersigned has reviewed the fee application for
its reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl.
238 (2018).
A. Reasonable Hourly Rate
Reasonable hourly rates are determined by looking at the “prevailing market
rate” in the relevant community. See Blum, 465 U.S. at 895. 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. A
petitioner’s counsel in the Vaccine Program is paid the forum rate unless the bulk
of the work is performed in a locale other than the forum (District of Columbia)
and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at
1349. If these two requirements are met, the Davis County exception applies, and
petitioner’s counsel is paid according to the local rate to avoid a “windfall.” Id.;
see Davis Cnty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v.
United States Envtl. Prot. Agency, 169 F.3d 755, 757–60 (D.C. Cir. 1999).
For cases in which forum rates apply, 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, *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 seeks compensation for Mr. Krochmal’s work at a rate of $395 per
hour for work performed in 2017; $410 per hour for work performed in 2018; and
3
The 2015–2016, 2017, 2018, and 2019 Fee Schedules can be accessed at:
https://www.uscfc.uscourts.gov/node/2914. The hourly rates contained within the schedules are
updated from the decision in McCulloch, 2015 WL 5634323.
4
$425 for work performed in 2019. For paralegal work, petitioner seeks
compensation at a rate of $135 per hour for all years. These rates are reasonable.
See Miskell v. Sec’y of Health & Human Servs., No. 18-526V, 2019 WL 5568822
(Fed. Cl. Spec. Mstr. Aug. 2, 2019).
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, 3 F.3d at 1521. The Secretary did not challenge any of the requested hours
as unreasonable.
Mr. Krochmal’s time entries provide enough detail to assess reasonableness.
Generally, Mr. Krochmal appropriately did not request compensation for
administrative tasks, which are not compensable. Thus, the undersigned finds Mr.
Krochmal’s number of hours expended to be reasonable.
However, the paralegal performed multiple tasks such as transcribing,
scanning, filing, and mailing, that are administrative / clerical.4 These activities
should not be charged at all. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989);
Bennett v. Dep’t of Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983); Guy v. Sec'y
of Health & Human Servs., 38 Fed. Cl. 403, 407-08 (1997); Dempsey v. Sec’y of
Health & Human Servs., No. 04-394V, 2017 WL 6343870, at *6 (Fed. Cl. Spec.
Mstr. Nov. 16, 2017) (finding transcribing to be administrative and non-
compensable). The undersigned finds that a reasonable reduction amounts to
$4,890.38.
Accordingly, taking this fees reduction into account, petitioner is awarded
attorneys’ fees in the amount of $25,247.48.
C. Costs
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
4
As one example of how the paralegal’s work unreasonably increased the proposed fees,
on June 21, 2018, Mr. Krochmal spent 0.4 hours to prepare a relatively routine motion for
extension of time. The motion, in substance, is four sentences, totaling fewer than 100 words.
The paralegal then added an additional 0.60 hours to transcribe this motion. For this motion, one
hour of legal professional time is excessive.
5
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). For non-expert costs, petitioner’s
request falls into two categories. For the cost of acquiring medical records, and
paying the court filing fee, petitioner requests $1,145.58. Exhibit 65. These items
are adequately document and costs will be awarded in full.
Petitioner also requests $750.00 for an apparently catchall category of items
described as “postage, photocopy, mileage, telephone, fax, Fed Ex, etc.” Exhibit
62. Petitioner has not submitted any documents for these items. When there is no
evidence supporting the request for a cost, special masters cannot evaluate the
reasonableness of the request. See Riggins v. Sec’y of Health & Human Servs.,
No. 99-382V, 2009 WL 3319818, at *15 (Fed. Cl. Spec. Mstr. June 15, 2009), mot.
for rev. den’d (slip op. Dec. 10, 2009), aff’d, 406 F. App’x 479 (Fed. Cir. 2011);
Long v. Sec’y of Health & Human Servs., No. 91-326V, 1995 WL 774600, at *8
(Fed. Cl. Spec. Mstr. Dec. 21, 1995) (“[the court] simply cannot compensate
petitioner for undocumented, unexplained charges”). Thus, they are denied.
The bulk of the costs, totaling $35,290.00, concerns the work related to
experts. Reasonable expert fees are determined using the lodestar method, in
which a reasonable hourly rate is multiplied by a reasonable number of hours.
Caves v. Sec'y of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013). To
determine the reasonableness of this rate, of a proposed rate, special masters may
consider the “area of expertise; the education and training required to provide
necessary insight; the prevailing rates for other comparably respected available
experts; the nature, quality, and complexity of the information provided; [and] the
cost of living in the expert's geographic area.” Sabella v. Sec'y of Health &
Human Servs., 86 Fed. Cl. 201, 206 (2009). Furthermore, “[p]etitioner has the
burden of providing the foregoing information concerning expert fees.” Id.
Here, petitioner has not offered any evidence to justify the proposed hourly
rate for Dr. Rosenstreich or Dr. Santoro. Moreover, the undersigned has not heard
Dr. Rosenstreich or Dr. Santoro testify. Because the quality of the expert’s work is
a factor that should be considered when determining the appropriate rate, it is
advantageous to have heard the expert witness’s testimony before making this
determination when possible. See Schultz v. Sec’y of Health & Human Servs., No.
16-539V, 2019 WL 5098963, at *4-5 (Fed. Cl. Spec. Mstr. Aug. 28, 2019)
(denying mot. for reconsideration on this point); Jones v. Sec’y of Health &
Human Servs., No. 16-864V, 2019 WL 5098965, at *3 (Fed. Cl. Spec. Mstr. Aug.
26, 2019); Nifakos v. Sec’y of Health & Human Servs., No. 14-236V, 2018 WL
7286553, at *5 (Fed. Cl. Spec. Mstr. Dec. 12, 2018) (deferring award when
expert’s invoice is not detailed); Al-Uffi v. Sec’y of Health & Human Servs., No.
6
13-956V, 2015 WL 6181669, at *14 (Fed. Cl. Spec. Mstr. Sept. 30, 2015) (noting
that interim expert costs are more commonly awarded after a hearing). Thus, the
costs associated with Dr. Rosenstreich and Dr. Santoro are deferred.5 On the other
hand, petitioner has documented the cost for a referral to obtain an expert. This
amount ($290.00) is awarded.
In sum, as part of an interim fee award, petitioner is awarded $1,435.58 for
costs.
* * *
Accordingly, petitioner is awarded:
A lump sum of $26,683.06 in the form of a check made payable to
petitioner and petitioner’s attorney, Gary A. Krochmal.
This amount represents reimbursement of interim attorneys’ fees and other
litigation costs available under 42 U.S.C. § 300aa-15(e). 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.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
5
When petitioner submits another application for attorneys’ fees and costs, petitioner
should submit an itemized statement from Dr. Santoro. A retainer does not evidence the work
Dr. Santoro performed. See Guidelines for Practice Under the National Vaccine Injury
Compensation Program, Section X. Chapter 3. ¶ A (“With regard to attorneys’ fees and experts’
fees, the particular tasks for which fees are claim, the amount of time spent on that task, the
person who performed the task, and that person’s billed hourly rate must be identified in
contemporaneous, dated records”); see also Dahl v. Sec’y of Health & Human Servs., No. 13-
98V, 2018 WL 6818741, at *8 (Fed. Cl. Spec. Mstr. Nov. 30, 2018).
7