Michel v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-781V
(Not to be Published)
*************************
RICHARD J. MICHEL, * Filed: November 28, 2016
*
Petitioner, *
v. * Vaccine Act; Attorney’s Fees
* & Costs; Reasonable Basis
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************
Ravinder Singh Bhalla, Florio Perrucci Steinhardt and Fader, LLC, Rochelle Park, NJ, for
Petitioner.
Sarah Duncan, U.S. Dep’t of Justice, Washington, D.C. for Respondent.
DECISION AWARDING ATTORNEY’S FEES AND COSTS1
On August 27, 2014, Richard Michel filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”).2 The Petition alleged
that the influenza (“flu”) vaccine that he received on or about September 27, 2011, caused him to
develop Guillain-Barré syndrome (“GBS”). See Pet. at 1 (ECF No. 1). The parties filed expert
reports in this case, but earlier this year Petitioner opted to request dismissal of his claim, and I
granted that request by decision dated March 29, 2016 (ECF No. 32).
1
Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will
be available to the public. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Petitioner now requests a final fees and costs award in the total amount of $62,943.893. See
Motion for Attorney’s Fees and Costs, dated September 29, 2016 (ECF No. 35), and Brief in
Support, dated September 29, 2016 (ECF No. 36) (“Fees App.”). Petitioner also filed a reply brief
itemizing additional costs associated with Drs. Kinsbourne and Morgan, amounting to $11,700.
See Reply to Respondent’s Response to Petitioner’s Motion for Attorney’s Fees, dated November
7, 2016 (ECF No. 38) (“Reply”). Respondent does not assert that the case lacked reasonable basis
despite its dismissal, but questions whether the total sum requested is itself reasonable. See
Response to Motion for Attorney’s Fees, dated October 26, 2016 (ECF No. 37) (“Response”).
Based upon my review of the record and materials filed in support of the fees application, I hereby
grant in part Petitioner’s motion, awarding $46,720.39 in fees and costs.
Procedural History
As noted above, this action was initiated in August 2014. However, the first attorney who
represented Mr. Michel, Mr. Steven Srenaski, began work on the matter nine months before, in
November 2013. See Fees App. Exhibit (“Ex.”) 2 at 1-8. Mr. Srenaski was the sole attorney who
performed tasks for Petitioner’s claim until the date of filing, billing approximately 58 hours to the
case. Id. at 1-8. He worked on the matter for a bit longer before being replaced by another attorney
at the same firm, Mr. Ravinder Bhalla, and Petitioner formally requested to have Mr. Bhalla
replace Mr. Srenaski by motion dated December 9, 2014 (ECF No. 10), which I thereafter granted.
After a statement of completion was filed in this matter in December 2014, Respondent
submitted her Rule 4(c) Report on January 16, 2015 (ECF No. 11). In it, Respondent observed that
although Mr. Michel received the flu vaccine in late September 2011, the medical records revealed
he had experienced no symptoms prior to February 2012 – nearly five months later. Rule 4(c)
Report at 2. This, Respondent maintained, was too long for a causation/flu-GBS claim. Id. at 4.
Respondent otherwise noted that Petitioner had not offered any expert support for his claim, and
that a viral infection that Petitioner experienced prior to his officially-recorded symptoms was a
more likely cause for his GBS. Id.
Petitioner thereafter undertook efforts to obtain expert support for his claim, filing a report
from Dr. Marcel Kinsbourne on June 1, 2015 (ECF No. 15)(“Kinsbourne Report”). Dr. Kinsbourne
stated that, assuming onset of Mr. Michel’s symptoms began as the records indicated (in February
2012), he could not offer an opinion that Petitioner’s GBS was vaccine-related, since the time
interval from vaccination to onset of symptoms was too long to be medically acceptable.
Kinsbourne Report at 5-6. However, Petitioner had also asserted, in an affidavit filed in support of
his Petition, that he first experienced symptoms within one to two weeks of the vaccination, and
3
Petitioner’s Fees App. contained contradictory amounts to be paid. The brief in support of the motion stated that
the total amount owed to Petitioner was $56,020.07, however the itemized invoice contained as an exhibit with the
Fee App. listed the total due as $62,943.89. To resolve this, my clerk called Petitioner’s counsel to verify the proper
total, which is $62,943.89. See Informal Communication, filed on November 18, 2016.
2
this fact pattern would support the diagnosis of chronic inflammatory demyelinating
polyneuropathy (“CIDP”) – a demyelinating illness similar to GBS but with a stop-start nature and
longer course. Id. at 6. The medical records, however, contained no such alternative diagnosis, and
Dr. Kinsbourne admitted that if his alternative causation explanation were accepted, the GBS
diagnosis reflected in the contemporaneous medical records “would have to be discarded.” Id.
I held a status conference with the parties in this matter on June 9, 2015, at which time the
GBS vs. CIDP diagnoses, and support (or lack thereof) for them in the record, were discussed.
Respondent indicated that she would file a responsive expert report on the matter, while Petitioner
stated he would locate record support for the alternative CIDP diagnosis. Order, dated June 9, 2015
(ECF No. 16). Respondent subsequently filed that expert report from Dr. Arnold Levinson on
August 31, 2015 (ECF No. 21-1), in which Dr. Levinson strongly disputed Dr. Kinsbourne’s
proposal that CIDP was the correct diagnosis.
Based upon Respondent’s expert, I informed Petitioner that I would allow him the
opportunity to supplement Dr. Kinsbourne’s earlier opinion. Order, dated September 9, 2015.
Petitioner was to do so on or before October 16, 2015, but thereafter requested two extensions of
time to act. I held another status conference with the parties in December 2015, at which time
Respondent expressed the intent to seek the case’s dismissal. I set February 12, 2016 as the
deadline to do so (Order, dated December 21, 2015), but after Respondent filed her motion (ECF
No. 27), Petitioner filed a concurrent dismissal request on March 23, 2016 (ECF No. 30), which
as noted above I subsequently granted.
Fees Request
Mr. Michel filed the present fees petition in September, seeking in total $62,943.89 in fees
and costs. See generally Fees App. His total requested award includes $49,767.50 in attorney’s
fees, incurred by Messrs. Bhalla and Srenaski (billing at $350 per hour and $275 per hour,
respectively), plus two associates both billing their time at $225 per hour. Fees App. Ex. 2 at 15.
Paralegal time in the total sum of $5,871.00 is also requested for the two paralegals who performed
wok on the matter, both of whom were billed at $95.00 per hour. Id. In addition, Petitioner asks
for $7,305.39 in litigation-related costs.
With respect to experts, Petitioner asks for $9,700.00 for Dr. Kinsbourne’s time (with
$1,000.00 of that sum payable as a litigation cost to reflect an initial retainer paid by Petitioner’s
counsel). Fees App. at 16; see generally Reply. Petitioner also retained an additional undisclosed
expert, Dr. Thomas Morgan, to review medical records in the matter and possibly offer an opinion
in the matter. He ultimately did not do so, but the attorney’s invoices offered in support of the fees
request indicate that he was consulted prior to the claim’s filing. Ex. 2 to Fees App. at 4-7.
Petitioner asks for reimbursement of the $2,000.00 retainer paid to him for these services.
3
On October 26, 2016, Respondent filed a document reacting to Petitioner’s Motion. See
Response. Respondent asserts that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates
any role for Respondent in the resolution of a request by a Petitioner for an award of attorney’s
fees and costs.” Id. at 1. Respondent added that she “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Id. at 2. However, she maintained that a
reasonable amount for fees and costs in the present case would fall between $22,000.00 and
$38,000.00. Id. at 3. In support of the range, Respondent cites two other cases in which fees and
costs were awarded after the case was dismissed, and where expert reports were filed. See, e.g.,
Pokorny v. Sec’y of Health & Human Servs., No. 12-556V, 2014 WL 4216016, at *1 (Fed. Cl.
Spec. Mstr. July 28, 2014) (fees stipulated to after case lasted for two years).
Petitioner filed a reply on November 7, 2016. ECF No. 38. In it, he reiterated his prior
arguments, noting that Respondent had not globally objected to the propriety of an award, nor had
offered any specific line-item objections. Reply at 1. He also observed that the two cases cited in
support of Respondent’s proposed fees range had been the result of stipulations, limiting their
applicability to these circumstances. Id. at 2. And he attached the invoices for Drs. Kinsbourne and
Morgan that were not filed with the original fees request. The matter is now ripe for resolution.
ANALYSIS
I. Attorney’s Fees Award
I have in other decisions addressed at length the legal standards applicable to evaluating
the propriety of a fees request in an unsuccessful case. See generally Lemaire v. Sec'y of Health &
Human Servs., No. 13-681V, 2016 WL 5224400, at *3-4 (Fed. Cl. Spec. Mstr. Aug. 12, 2016). At
bottom, even in cases that are dismissed, attorneys representing Vaccine Program claimants may
still receive a fees and costs award, assuming the matter had reasonable basis during its life. Here,
Respondent does not assert that the matter lacked reasonable basis prior to Petitioner’s decision to
seek dismissal, and I do not independently find otherwise.
This leaves determining the sum to be paid to Mr. Michel’s counsel, and calculating it
raises another legal topic repeatedly examined in the decisions of this Court. See, e.g., Hudson v.
Sec'y of Health & Human Servs., No. 15-114V, 2016 WL 3571709, at *2-5 (Fed. Cl. Spec. Mstr.
June 3, 2016). In effect, counsel is entitled to a reasonable hourly rate (a determination depending
in part on where counsel practices), and that sum is multiplied by reasonable hours spent on the
matter. Special masters have discretion to determine whether the work performed on the matter
was reasonable, and need not conduct a line-by-line analysis of the submitted invoices. Saxton v.
Health & Human Servs., 3 F.3d 1517 at 1521-22 (approving the special master's elimination of 50
percent of the hours claimed); see also Broekelschen v. Health & Human Servs., 102 Fed. Cl. 719at 728–29 (2011) (affirming the special master’s reduction of attorney and paralegal hours); Guy
4
v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master’s
reduction in the number of hours from 515.3 hours to 240 hours); Edgar v. Sec’y of Health &
Human Servs., 32 Fed. Cl. 506 (1994) (affirming the special master's awarding only fifty-eight per
cent of the numbers of hours for which compensation was sought). At bottom, as the Supreme
Court instructs, when awarding attorney’s fees, special masters may use estimates to achieve
“rough justice.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).
First, I find that the hourly rates requested herein are reasonable. Mr. Bhalla and the other
attorneys who worked on this matter practice in the greater New York metropolitan region, and
similarly-situated attorneys representing Vaccine Program litigants have been found entitled to
forum rates. See, e.g., Paterek v. Sec'y of Health & Human Servs., No. 02-411V, 2014 WL
3339503, at *3 (Fed. Cl. Spec. Mstr. June 12, 2014); Dimatteo v. Sec’y of Health & Human Servs.,
No. 10-566V, 2014 WL 1509320, at *5-6 (Fed. Cl. Spec. Mstr. Mar. 27, 2014). The rates
requested, moreover, are consistent with the ranges paid to forum counsel of similar experience,
as set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323,
at *18-21 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).4 Mr. Bhalla has practiced law since 1999, and is
currently a Partner at Florio Perrucci Steinhardt and Fader, LLC, and thus has approximately 17
years of experience. Fees App at 2. Accordingly, I will compensate Mr. Bhalla at the hourly rate
of $350 per hour; Mr. Srenaski at the rate of $275 per hour; and the two associates who assisted
on the matter at the rate of $225 per hour.
Second is the matter of the reasonableness of the time devoted to Mr. Michel’s claim. I
find a reduction in the fees request, based on the total hours billed to the matter, is appropriate.
Attorneys began working on this matter in November 2013, approximately nine months before it
was filed. Thus were under no immediate time pressure to file the claim, assuming an onset of
symptoms as early as September 2011 (meaning that, under the Act’s three-year limitations period,
the claim would have been timely if filed before September 2014). Section 16(a)(2). A substantial
amount of time (by my review, approximately 20.6 hours) was devoted to drafting what ended up
being a four and one-half page petition, alleging a claim very common to the Vaccine Program
rather than a complicated or opaque fact pattern requiring significant attorney input. Moreover,
even assuming some front-end work was required in preparing the matter for filing, Mr. Bhalla
alone, after appearing for Mr. Srenaski (who had already devoted 60 hours to the matter), billed
more than 75 additional hours to the case – in service of the preparation of an unpersuasive expert
report that was never supplemented. And there are also instances in the invoice which it appears
counsel were attempting to get “up to speed” to Vaccine Program practice generally – the kind of
task that is not compensated. See, e.g., Fees App. Ex. 2 at 1 (billing 1.9 hours for reviewing case
4
McCulloch’s formulation has recently been converted to a matrix that is now published as a downloadable pdf file
on the Court of Federal Claims’ website, as guidance to counsel requesting fees awards. See
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (last visited November 7, 2016).
5
law); see also Estate of Oswalt v. Sec’y of Health & Human Servs., No. 03–2153, 2011 WL
2149932 (Fed. Cl. Spec. Mstr. May 2, 2011).
All in all, this is an excessive amount to bill to a flu-GBS case. Some initial research by
counsel would have revealed that the claim would be difficult to prevail upon, given the lengthy
five-month timeframe from vaccine to onset. Woodring v. Sec’y of Health & Human Servs., No.14-
896V, 2015 WL 9701094 at *8 (Fed. Cl. Spec. Mstr. Nov. 9, 2015)(“the Secretary’s proposal to
add [to the Vaccine Table] the injury of GBS after receiving the influenza vaccine includes a
timeframe for onset between 3 and 42 days”). I also take into account the fact that the matter was
not successfully prosecuted. I have cut back fees awarded to attorneys even where they prevailed,
when it was evident that more work was devoted to the matter than necessary. See, e.g., Hudson,
2016 WL 3571709, at *4-5 (reducing sum awarded to attorneys who over-prepared in litigating
flu-GBS claim; case was successfully resolved in claimant’s favor, but attorneys spent inordinate
time preparing for case’s filing despite non-complex nature of issues presented). The case for doing
so here is even stronger.
I also give some credence to Respondent’s proposed ranges. Petitioner correctly notes that
the two cases Respondent cites involved stipulated fees awards, reducing their probative value
somewhat. But they nevertheless stand as representative examples of what might be reasonable to
bill in similar cases that are unsuccessful, and which involved experts but did not go to trial. Thus,
although I do not accept the ranges as a yardstick for evaluating the proper magnitude of the award,
they do support the decision to greatly reduce what counsel will receive, given my sense that more
work was devoted to this matter than necessary.
For the reasons stated above, I will reduce the time billed to this matter as follows:
(a) Mr. Srenaski’s time will be reduced by 30 percent (.3 x 59.7 hours = 17.91), or
to 41.8 hours, for an award for his services of $11,495.00 in total (41.8 hours x
$275);
(b) Mr. Bhalla’s time will be reduced by 50 percent (.5 x 76.9 hours = 38.45), for a
total award of $13,457.50 for his time (38.45 hours x $350); and
(c) Associate time will be reduced by ten percent (.1 x 28.6 hours = 2.86), or to
25.74 hours, for a total award of $5,791.50 (25.74 hours x $225).
Thus, the total fees awarded to Petitioner are $30,744.00.
The above calculations are designed to achieve the “rough justice” of balancing the need
to compensate counsel for taking on Vaccine Act cases, against my own determination, based on
6
my experience and review of comparable cases, of what is just to award counsel who are
unsuccessful and who also appear to have allowed costs to grow a bit more than necessary. I reduce
Mr. Srenaski’s time less than Mr. Bhalla’s, to reflect that some initial work might have been needed
to get the case ready to be filed.
III. Costs
There are three categories of costs requested herein: paralegal costs, litigation-related costs,
and expert costs.
First, Petitioner asks for an award of $5,871.00 in paralegal costs incurred by two
paralegals who performed 61.8 hours of work on the case between 2014 and the matter’s dismissal,
based on the rate of $95.00 per hour. See Fees App. Ex. 2 at 14. Respondent makes no objection
to the proposed paralegal rates, and I find them to be reasonable. I will therefore award the
requested paralegal costs of $5,871 in full.
Second, Mr. Michel’s counsel incurred $4,305.39 in litigation costs for copying, the filing
fee, and related items. Id. at 14-15. These costs as well are not opposed by Respondent, and I
discern no independent reason not to award them in full.
Third are Dr. Kinsbourne’s costs. Petitioner requests $9,700.00, inclusive of his retainer
and work performed, for 19.4 hours of work billed at the rate of $500 per hour. Both figures,
however, are objectionable. Although Dr. Kinsbourne has received the sum of $500 per hour in
some instances, special masters have also noted in other cases that it would be appropriate to award
him a lesser sum depending on the circumstances. Dingle v. Sec'y of Health & Human Servs., No.
08-579V, 2014 WL 630473, at *7-9 (Fed. Cl. Spec. Mstr. Jan. 24, 2014) (awarding $400 per hour).
In addition, and with Dingle in mind, in this case I do not find that the complexity of issues
presented by Petitioner’s claim warranted nearly 20 hours of Dr. Kinsbourne’s time. In effect, the
opinion he offered attempted to dispute the findings of the medical records as to the proper
diagnosis for Mr. Michel, without any showing as to why. And the invoices submitted in support
of this expense show that Dr. Kinsbourne did less work on the matter after the deficiencies in his
opinion (problems the opinion itself admitted) were revealed – precisely when additional work
might have been warranted, in order to meet Respondent’s objections. Here, Dr. Kinsbourne’s
report did more to suggest that the claim lacked viability than the opposite.
Accordingly, I will compensate Dr. Kinsbourne at the rate of $400 per hour, for 12, rather
than nearly 20, hours of work, for a total sum of $4,800.00, with $1,000.00 of that sum being paid
to counsel as reimbursement for the retainer cost.
7
Finally, Petitioner asks for $2,000.00 as reimbursement for a retainer paid to Dr. Morgan.
Petitioners have in the past been awarded costs associated with retaining an expert solely for the
purpose of reviewing medical records. See, e.g., Yang v. Sec’y of Health & Human Servs., No. 10-
33V, 2013 WL 4875120, at *10 (Fed. Cl. Spec. Mstr. Aug. 22, 2013) (review expert received
$2,550.00); Estate of Oswalt v. Sec’y of Dep't of Health & Human Servs., No. 03-2153V, 2011
WL 2149932, at *14 (Fed. Cl. Spec. Mstr. May 2, 2011) (review expert received $1,250.00).
Based on the above, the total sum requested is not facially unreasonable. However,
Petitioner has not offered an actual invoice from Dr. Morgan, filing instead a fee schedule, and it
is therefore impossible to tell how much work he actually performed, nor has Petitioner made a
case for why his services were necessary. The need to retain a reviewing expert seems even less
compelling here, when the sole expert to offer a written opinion billed nearly $10,000, only to
opine that he could not offer an opinion unless the facts were other than what the records indicated.
I will thus reimburse counsel only half of this expert expense, or $1,000.00.
CONCLUSION
Based on all of the above, the following chart sets forth the total calculation of Petitioner’s
interim fees award:
Contested Sum Amount Requested Reduction Total Awarded
Mr. Bhalla’s Fees $26,915.00 $13,457.50 $13,457.50
Mr. Srenaski’s Fees $16,417.50 $4,922.50 $11,495.00
Associate Fees $6,435.00 $643.50 $5,791.50
Dr. Kinsbourne’s Fees5 $8,700.00 $4,900.00 $3,800.00
Expert retainers $3,000.00 $1,000.00 $2,000.00
Paralegal Costs $5,871.00 None $5,871.00
Litigation Costs $4,305.39 None $4,305.39
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
attorney’s fees and costs awards, and based on the foregoing, I GRANT IN PART Petitioner’s
Motion for Attorney’s Fees and Costs, awarding $46,720.39 in fees and costs. In the absence of a
motion for review filed pursuant to RCFC Appendix B, the clerk of the Court SHALL ENTER
JUDGMENT in accordance with the terms of this decision.6
5
Dr. Kinsbourne’s bill reflects that he charged a total of $9,700, however $1,000 of that total is the retainer, which is
reflected in the chart as “expert retainers” along with Dr. Morgan’s $2,000 retainer.
6
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
8
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
9