Mecklenburg v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 30, 2020
* * * * * * * * * * * * * *
CHRISTINA MECKLENBURG on *
behalf of her minor child, H.M.,
* UNPUBLISHED
*
Petitioner, * No. 18-1203V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Julia M. Collison, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 20, 2020, Christina Mecklenburg (“Petitioner”) filed a motion for attorneys’ fees
and costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 45). For the reasons
discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of
$34,097.34.
I. Procedural History
On August 14, 2018, Petitioner filed a petition in the National Vaccine Injury
Compensation Program on behalf of her minor child H.M.2 Petitioner alleged that H.M. suffered
ocular sixth nerve palsy as a result of receiving the measles, mumps and rubella (“MMR”) vaccine
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 Because this unpublished ruling contains a reasoned explanation for the action in this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. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine
Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
on February 7, 2018. See Petition (ECF No. 1). On March 16, 2020, the parties filed a stipulation,
which I adopted as my Decision awarding compensation on the same day. (ECF No. 41).
On March 20, 2020, Petitioner filed a motion for final attorneys’ fees. Petitioner requests
compensation for her attorney, Mr. Andrew Downing, in the total amount of $34,847.34,
representing $29,051.50 in attorneys’ fees and $5,795.84 in costs. Fees App. at 1. Pursuant to
General Order No. 9, Petitioner warrant she has not personally incurred any costs in pursuit of this
claim. Fees App. at 4. Respondent reacted to the fees motion on March 27, 2020, stating that
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Response at 2. (ECF No. 46). Petitioner did not file a reply thereafter.
The matter is now ripe for adjudication.
II. Analysis
Under the Vaccine Act, the special master shall award reasonable attorney’s fees and costs
for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(3)(1). Petitioner
in this case was awarded compensation pursuant to a stipulation, and therefore is entitled to an
award of reasonable attorney’s fees and costs.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
I have reviewed the rates requested by Petitioners for the work of their counsel, Mr.
Andrew Downing and Ms. Courtney Van Cott, and I find the rates requested herein to be consistent
with what they have previously been awarded for their Vaccine Program work and reasonable in
light for the work performed in this case.
Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter appear to be largely reasonable. The entries are reasonable and accurately describe
the work being performed and the length of time it took to perform each task. However, a small
amount must be reduced for overbilling by firm paralegals. In the instant case, the overbilling
incudes time expended on clerical/administrative tasks such as receiving and paying invoices and
a general excessive amount of time billed to complete various tasks such as preparing and filing
documents and reviewing filings from the Court and Respondent. These issues have all been
previously noted concerning the work of Van Cott & Talamante paralegals. See, e.g., Sheridan v.
Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl. Spec. Mstr.
Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-538V, 2019 WL 1556701, at
*4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019).
2
Upon review, an appropriate reduction for these issues is $750.00. Petitioners are therefore
awarded final attorneys’ fees of $28,301.50.
b. Attorneys’ 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 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $5,795.84. This amount is comprised of acquiring medical
records, postage, the Court’s filing fee, and work performed by Petitioner’s expert, Dr. Heather
Moss. Fees App. at 28-30. Petitioner has provided adequate documentation supporting all of the
requested costs, and all appear reasonable in my experience.3 Petitioner is therefore entitled to the
full amount of costs sought.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $29,051.50
(Reduction of Fees) - ($750.00)
Total Attorneys’ Fees Awarded $28,301.50
Attorneys’ Costs Requested $5,795.84
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $5,795.84
Total Attorneys’ Fees and Costs $34,097.34
Accordingly, I award a lump sum in the amount of $34,097.34, representing
reimbursement for Petitioner’s attorneys’ fees, in the form of a check payable to Petitioner
and her attorney, Mr. Andrew Downing.4
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
3
Concerning the work performed by Dr. Moss, I find the total amount billed to be reasonable in light of the work
performed in the instant case and am not making a finding as to the reasonableness of Dr. Moss’s hourly rate.
4
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
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).
3
IT IS SO ORDERED.
/s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4