Rocha v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
OMARY ROCHA, *
Executor for the Estate of *
NESTOR ROCHA, *
* No. 16-241V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Issued: June 11, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs,
* interim award, billing judgment.
Respondent. *
**********************
Carol L. Gallagher, Carol L. Gallagher, Esquire, LLC, Linwood, NJ, for petitioner;
Kimberly S. Davey, United States Dep’t of Justice, Washington, DC, for
respondent.
PUBLISHED DECISION DENYING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1
The petitioner, Omary Rocha, is pursuing a claim that the influenza vaccine
administered to her late husband, Nestor Rocha, on October 18, 2013, caused him
to suffer from vasculitis and other related complications that resulted in his death.
Ms. Rocha seeks compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. §§300aa-10 through 34 (2012). While her claim is still
pending, Ms. Rocha filed a motion for an award of attorneys’ fees and costs on an
interim basis. For the reasons explained below, Ms. Rocha’s motion is denied.
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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.
Procedural History
Ms. Rocha’s counsel, Carol Gallagher, began working on Ms. Rocha’s case
in September 2014. Exhibit A (timesheets) at 1. The petition was filed on
February 18, 2016. Ms. Rocha later filed medical records and affidavits in support
of her petition.
The Secretary reviewed this material and recommended against
compensation. Resp’t’s Rep., filed Oct. 31, 2016. The Secretary challenged
petitioner’s claim that the influenza vaccine caused Mr. Rocha to suffer from
vasculitis and, furthermore, that vasculitis caused Mr. Rocha’s death. Id. at 12-13.
Part of the deficiency, according to the Secretary, was that petitioner did not
present an expert opinion linking the vaccination to the alleged condition. Id. at
13.
Following the Rule 4(c) report, the parties retained experts. Ms. Rocha
presented reports from Lawrence Steinman, a neurologist. The Secretary retained
Mehrdad Matloubian, a rheumatologist. The Secretary added a report from a
pathologist, Barbara S. Ducatman. Ms. Rocha then responded with a report from
another pathologist, Steven Rostad.
On January 17, 2019, petitioner moved for interim fees and costs. CM/ECF
81. Petitioner’s motion requested $105,550.55 in attorneys’ fees, $24,110.43 in
costs paid by petitioner’s attorney, and $1,000.00 in costs paid for by petitioner.
At this time, Ms. Rocha had retained only Dr. Steinman and not Dr. Rostad.
The undersigned granted this motion in part and denied this motion in part.
First Interim Fees Decision, issued April 30, 2019, CM/ECF 87. Ms. Rocha was
granted the costs that she personally incurred as well as costs Ms. Gallagher
incurred, such as costs for Dr. Steinman’s first reports. However, as significant for
the pending motion, the undersigned declined to award any attorneys’ fees. The
undersigned determined that Ms. Gallagher had not exercised appropriate billing
judgment. Thus, the request for fees was denied, but Ms. Rocha was permitted to
file a renewed motion with adjustments to the amount of fees requested.
Ms. Rocha, acting through Ms. Gallagher, responded with a series of
motions. On May 14, 2019, she filed a motion for leave to file a motion for review
(CM/ECF 88); on May 16, 2019, she filed a motion for reconsideration (CM/ECF
89); also, on May 16, 2019, she filed a second motion for attorneys’ fees and costs
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on an interim basis (CM/ECF 90). The undersigned stated that filing a motion for
leave to file a motion for review was not necessary. Order, issued May 22, 2019,
CM/ECF 92. The undersigned denied the motion for reconsideration. Order,
issued May 22, 2019, CM/ECF 93. The denial of the motion for reconsideration
(1) noted that Ms. Rocha had already expressed an intent to file a motion for
review and (2) expressed an intention to follow the instructions of any appellate
authority.
On May 30, 2019, Ms. Rocha acted in accord with her previously announced
intentions by filing a motion for review of the First Interim Fees Decision.
CM/ECF 96. The Secretary responded. CM/ECF 104. Because of the overlap
between the issues in the second motion for interim fees and the motion for review,
the second motion for interim fees remained unadjudicated.
Meanwhile, Ms. Rocha and the Secretary continued to advance the claim
that the vaccine harmed Ms. Rocha’s husband. For example, the parties presented
reports from the pathologists.
When it appeared that the parties had completed the submission of opinions
from their experts, see Pet’r’s Status Rep., filed Dec. 17, 2019, CM/ECF 118, the
case was poised to move to the next phase. In this stage, the parties would submit
briefs regarding entitlement. See order filed Dec. 20, 2019, CM/ECF 118. Upon
receipt of this order, Ms. Rocha reversed course and determined that she wanted to
file another expert report, which she filed on March 12, 2020.
A status conference was held on May 7, 2020. The Secretary requested an
opportunity to respond to the most recent report from Ms. Rocha’s expert. In
addition, Ms. Gallagher announced an intention to file a motion to withdraw as
counsel. The undersigned advised that Ms. Gallagher’s motion would not be
granted automatically as the case had been pending for many years.
Ms. Rocha filed a motion to withdraw the pending motion for review of the
First Interim Fees Decision on May 14, 2020. The Court granted that motion the
same day. CM/ECF 129-30. The withdrawal of motion for review allowed the
Clerk’s Office to enter judgment in accord with the First Interim Fees Decision,
which happened on June 2, 2020. CM/ECF 132.
Before the Clerk’s Office entered judgment, Ms. Rocha filed a third motion
for an award of attorneys’ fees and costs on an interim basis. CM/ECF 131. While
Ms. Gallagher has requested reimbursement for activities after the first two
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motions for interim fees, it appears that Ms. Gallagher has not otherwise modified
her request. Via an informal communication, the Secretary was permitted not to
file a formal response as the Secretary had responded previously. In response to
the entry of judgment awarding some costs, Ms. Gallagher amended the motion for
attorneys’ fees and costs on an interim basis.
Analysis
The First Interim Fees Decision found that Ms. Gallagher did not exercise
appropriate billing judgment. That Decision explained:
When an attorney does the work of a paralegal or
administrative assistant, he or she should be paid a rate
commensurate with the nature of the work. See Valdes
v. Sec'y of Health & Human Servs., 89 Fed. Cl. 415, 425
(2009) (noting that “the Special Master exercised
appropriate discretion in denying requested costs for
work performed by Petitioner's counsel’s associate”
when the special master determined “that the associate’s
time spent obtaining medical records was more consistent
with paralegal duties”); Riggins v. Sec’y of Health &
Human Servs., No. 99-382V, 2009 WL 3319818, at *25
(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).
Furthermore, attorneys should not charge for the
performance of secretarial / clerical tasks. 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). One example of a clerical task for which a
charge is not appropriate is filing documents. Guerrero
v. Secʼy of Health & Human Servs., No. 12-689V, 2015
WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015)
(citing cases), mot. for rev. den’d in relevant part and
granted in non-relevant part, 124 Fed. Cl. 153, 160
(2015), app. dismissed, No. 2016-1753 (Fed. Cir. Apr.
22, 2016).
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In her motion for fees and costs, petitioner
summarized the work that her attorney has done thus far.
She states that in addition to obtaining and filing medical
records and expert reports: “There were five (5) status
conferences held, status reports were filed, a motion to
obtain a subpoena and two (2) motions for extensions
were filed, correspondence was sent to two (2) of
petitioner’s treating physicians, pursuant to the court’s
order, there were numerous communications, via e-mail,
with petitioner’s expert, and email and telephone
communications with petitioner. A demand was sent to
respondent on November 30, 2017.” Pet’r’s Mot., filed
Jan. 17, 2019, at 1. For this, petitioner requests over
$105,000 in attorneys’ fees.
In the undersigned’s experience in the Vaccine
Program and given the complexity and duration of Ms.
Rocha’s petition, the request of $105,000 for attorneys’
fees is stunning. The amount requested is more in line
with final fees awards for cases with more extended
procedural histories, including going to hearing.
A review of Ms. Gallagher’s timesheets provides an
indication of the nature of the problem. The timesheets
are replete with line items showing that Ms. Gallagher
billed for the time spent collecting medical records from
providers, time spent reviewing simple docketing entries,
and time spent dictating to her Secretary how to do
paralegal-type work. These entries subsume those entries
that represent actual legal work of the nature that
commands hourly rates as high as $400 per hour.
This is not the first, second, or even third time that
these same concerns have been shared with Ms.
Gallagher. In De Souza, the undersigned recently
reduced Ms. Gallagher’s invoice by 35% to correct for
overbilling. De Souza v. Sec'y of Health & Human
Servs., No. 17-100V, 2018 WL 4624249, at *3 (Fed. Cl.
Spec. Mstr. July 3, 2018) (citing Ploughe v. Secʼy of
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Health & Human Servs., No. 14-626V, 2017 WL
4455632, at *4 (Fed. Cl. Spec. Mstr. Sep. 11, 2017) and
Gonzalez v. Sec'y of Health & Human Servs., No. 14-
1072V, 2015 WL 10435023, at *13-14 (Fed. Cl. Spec.
Mstr. Nov. 10, 2015), as two examples where Ms.
Gallagher’s invoices were found to suffer from the same
problem), mot. for rev. denied in relevant part, 141 Fed.
Cl. 338 (2018). On review, Judge Kaplan performed her
own assessment of Ms. Gallagher’s invoice and
independently found that the billing entries were
consistent with systemic overbilling. De Souza, 141 Fed.
Cl. at 346.
According to the Supreme Court, when counsel
submits an application for attorneys’ fees, the attorney
should exercise “billing judgment.” See Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983) (citing Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)
(emphasis in the original) (“In the private sector, billing
judgment is an important component in fee setting. It is
no less important here. Hours that are not properly billed
to one's client also are not properly billed to one's
adversary pursuant to statutory authority”)). Ms.
Gallagher’s decision to bill at $400 per hour for tasks that
can be effectively performed by a paralegal or secretary
is incompatible with billing judgment. Furthermore,
excessive billing is not consistent with superior quality
legal work. Pennsylvania v. Delaware Valley Citizens’
Council for Clean Air, 478 U.S. 546, 566-67 (1986).
The issues present in Ms. Gallagher’s timesheets
are pervasive enough to make an assessment as to
reasonableness not feasible currently. In prior decisions,
the undersigned has resorted to making percent
reductions that could achieve “rough justice.” De Souza,
2018 WL 4624249, at *3 (citing Fox v. Vice, 563 U.S.
826, 838 (2011)). These reductions have, it would seem,
not been sufficient to encourage Ms. Gallagher to
exercise billing judgment since she submitted more
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invoices that are replete with many of the same problems
previously identified.
Accordingly, Ms. Rocha’s request for attorneys’
fees is denied without prejudice to renew. Ms. Rocha
may submit another motion for fees and costs at a
subsequent date. If the motion includes an invoice from
Ms. Gallagher, it must substantially conform with the
precedent in this Program regarding attorneys’ fees. If it
does not, the motion may be denied.
Despite the direction in the First Interim Fees Decision, it appears that in the
pending motion for an award of attorneys’ fees and costs on an interim basis, Ms.
Gallagher has not changed the substance of her request. Thus, the undersigned’s
evaluation remains.
The undersigned recognizes that Ms. Gallagher was not satisfied with the
previous outcome. As a disappointed litigant, Ms. Gallagher possessed the right to
seek review of the First Interim Fees Decision and she did file a motion for review.
The motion for review was an appropriate procedure to change the result of the
First Interim Fees Decision. Simply refiling essentially the same motion that was
previously denied is not.
Accordingly, the amended motion for an award of attorneys’ fees and costs
filed on June 9, 2020, is DENIED. This request may be folded into any motion for
attorneys’ fees and costs filed at the conclusion of proceedings on entitlement.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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