Lohman v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1153V
(not to be published)
TARA M. LOHMAN,
Chief Special Master Corcoran
Petitioner,
v. Filed: May 15, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Justin Glenn Day, Greg Coleman Law, PC, Knoxville, TN, for Petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 25, 2017, Tara M. Lohman, (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that she suffered Guillain-Barré
syndrome as a result of an influenza vaccine administered on September 19, 2014.
Petition at 1. On August 28, 2019, a decision was issued awarding compensation to
Petitioner based on the parties’ stipulation. (ECF No. 49).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision 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.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated April 6, 2020
(ECF No. 52), requesting a total award of $12,857.50 (representing $12,127.50 in fees
and $730.00 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that Petitioner has not incurred out-of-pocket expenses. (ECF No.
52-3). Respondent reacted to the motion on April 9, 2020, indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case, and deferring to my discretion to determine the amount to be awarded. (ECF No.
53). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find
some reduction in the total amount of fees to be awarded appropriate, for the reasons
listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). 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 & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). A claimant “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
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ATTORNEY FEES
A. Hourly Rates
Petitioner requests the rate of $250 per hour for all time billed between 2016 – 2019
for attorney Justin Day, and $400 per hour for the same time period for attorney Celia
Hastings. (ECF No. 52-1 at 6). However, Mr. Day has been previously awarded the rates
of $200 per hour for 2016, $230 for 2017, and $240 for 2018. See Winters v. Sec’y v.
Health & Human Servs., No. 17-0887V, 2019 WL 5079322 (Fed. Cl. Spec. Mstr. May 17,
2019). I find no reason to deviate from the previously-awarded rates, and therefore reduce
Mr. Day’s rates accordingly. This lowers the total amount to be awarded in fees by
$127.00. Otherwise, the $250 hourly rate requested for time billed in 2019 is appropriate,
and I award it herein.
Just as with Mr. Day, Ms. Hastings’s requested rate of $400 per hour for all time billed
exceeds what was previously awarded for her time in Winters. There, Ms. Hastings was
awarded the rate of $385 per hour for 2017, although she was permitted $400 per hour
for 2018. I reduce her 2017 rate to what was previously awarded, lowering the amount of
total fees available to be awarded herein by $20.25.
B. Paralegal Tasks
Upon review of the records submitted, it is evident that multiple entries were billed
at attorney rates for tasks considered paralegal in nature. However, it is axiomatic in the
Program that “[t]asks that can be completed by a paralegal or a legal assistant should not
be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Human Servs., No. 99-382V,
2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). Rather, “the rate at which
such work is compensated turns not on who ultimately performed the task but instead
turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Human Servs.,
No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010).
Examples of such improperly-billed entries include:
• November 16, 2016 (0.30 hrs) - “Request medical records from Norwood Family
Practice”;
• August 25, 2017 (1.0hrs) - “Prepare petition and exhibits for filing with court”;
• August 16, 2018 (0.10 hrs) - “file petitioner’s status report with vaccine court”; and
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• November 16, 2018 (0.10 hrs) - “file Petitioner’s Exhibit List with vaccine court.”
(ECF No. 52-1 at 1, 2, 4 and 5). 3
Mr. Day was previously awarded the paralegal rate of $135 for all such time billed
between 2016 – 2018. See Winters. I find that same rate to be appropriate in this matter,
and therefore reduce the hourly rate for all tasks considered paralegal to the rate of $135
per hour for 2016 – 2018. For tasks considered paralegal in 2019, I will award the
increased rate of $150 per hour. This reduces the available amount of fees by $2,161.00. 4
I otherwise find the time billed to this matter to be appropriate. Based on the
foregoing rate revisions, Petitioner is awarded $9,819.25 in attorney’s fees.
ATTORNEY COSTS
Petitioner also requests $730.00 in attorney costs. (ECF No. 52-1 at 7). This
amount includes costs associated with obtaining medical records, shipping costs, and the
Court’s filing fee. I have reviewed the requested costs and find them to be reasonable,
and therefore award the requested amount in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT IN PART Petitioner’s Motion for attorney’s fees and
costs. I award a total of $10,549.25 (representing $9,819.25 in fees, and $730.00 in costs)
as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 5
3
These are merely examples and not an exhaustive list.
4 This amount consists of the reduced rate of ($385 - $135 = $250 x 0.60 hrs = $150) + ($400 - $135 =
$265 x 5.30 hrs = $1,404.50) + ($400 - $135 = $265 x 2.10 hrs = $556.50) + ($400 - $150 = $250 x 0.20
hrs = $50) = $2,161.00.
5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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