Silverio v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-235V
Filed: June 6, 2018
* * * * * * * * * * * * * * *
KRISTEN SILVERIO, on Behalf of Her * UNPUBLISHED
Minor Child, G.L., *
*
Petitioner, *
v. * Decision on Interim Attorneys’ Fees and
* Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Andrew D. Downing, Esq., Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Daniel A. Principato, Esq., U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On March 6, 2015, Kristen Silverio (“petitioner”) filed a petition on behalf of her minor
daughter, G.L., pursuant to the National Vaccine Injury Compensation Program.2 Petitioner
alleges that G.L. suffers from complex, febrile seizures as a result of receiving a Varicella and
Pneumococcal vaccinations on April 16, 2012. Petition, ECF No. 1.
On May 16, 2018, petitioner filed a Motion for Interim Fees and Costs (“Motion for
Interim Fees”), requesting $86,126.00 in attorneys’ fees, and $50,676.48 in costs, for a total of
$136,802.48. ECF No. 72. On May 30, 2018, respondent filed a response to petitioner’s Motion
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the
E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and
move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that
provision, I will delete 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
for Interim Fees that contained no specific objection to the amount requested or hours worked,
but instead asked that the undersigned exercise her discretion in determining the proper amount
to be awarded. ECF No. 74. On June 4, 2018, petitioner filed a supplemental application for
interim fees and costs, improperly docketed as “Supplemental Brief,” to her Motion for Interim
Fees to include an invoice from petitioner’s expert, Dr. David Seigler, requesting an additional
$9,500.00 in costs for Dr. Seigler’s most recent supplemental expert report.3 ECF No. 76.
I. Applicable Legal Standards
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys’ fees
is automatic. Id.; see Sebelius v. Cloer, 569 U.S. 369, 373 (2013). However, a petitioner need
not prevail on entitlement to receive a fee award as long as the petition was brought in “good
faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Moreover, special
masters have discretion to award interim fees while the litigation is ongoing if “the cost of
litigation has imposed an undue hardship” and there is “a good faith basis for the claim.” Shaw
v. Sec’y of Health & Humans Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010); see Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). One instance in which interim
fees have been awarded is “where proceedings are protracted and costly experts must be
retained.” Avera, 515 F.3d at 1352.
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera, 515
F.3d at 1349. Under this approach, “[t]he initial estimate of a reasonable attorney’s fee” is
calculated by “multiplying the number of hours reasonably expended on the litigation times a
reasonable hourly rate.” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
That product is then adjusted upward or downward based on other specific findings. Id.
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 1348
(quoting Blum, 465 U.S. at 896 n.11). This rate is based on “the forum rate for the District of
Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.”
Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing
Avera, 515 F.3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be
awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec’y of Health &
Human Servs., 640 F.3d 1351, 1353 (Fed. Cir. 2011) (citing Davis Cty. Solid Waste Mgmt. &
Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For
cases in which forum rates apply, McCulloch provides the framework for determining the
appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
3
On June 4, 2018, respondent’s counsel advised the Court via email that the government’s position
is unchanged from its previous response and therefore he does not intend to file a response to petitioner’s
supplemental filing.
2
Mstr. Sept. 1, 2015). The Office of Special Masters has issued a fee schedule that updates the
McCulloch rates to account for inflation in subsequent years.4
Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. The application for fees and
costs must “sufficiently detail and explain the time billed so that a special master may determine
. . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be
reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No.
15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, counsel
should not include in their fee requests hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton ex rel. 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)). “Unreasonably duplicative
or excessive billing” includes “an attorney billing for a single task on multiple occasions,
multiple attorneys billing for a single task, attorneys billing excessively for intra office
communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing
entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016).
Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who
perform non-attorney-level work are compensated at a rate comparable to what would be paid to
a paralegal. See O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL 2399211,
at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Hours spent traveling are ordinarily compensated at
one-half of the normal hourly attorney rate. See Scott v. Sec’y of Health & Human Servs., No.
08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases).
Finally, some tasks are never compensable. For instance, “it is inappropriate for counsel to bill
time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y
of Health & Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr.
18, 2016). And clerical and secretarial tasks should not be billed at all, regardless of who
performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Non-compensable clerical and
secretarial tasks include making travel arrangements, reviewing and paying invoices, setting up
meetings, organizing files, scheduling conference calls, and reviewing files for consistency.
J.W., 2017 WL 877278, at *3; Barry v. Sec’y of Health & Human Servs., No. 12-039V, 2016 WL
6835542, at *4 (Fed. Cl. Spec. Mstr. Oct. 25, 2016).
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.” Saxton, 3 F.3d at 1522. In
exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 728-29 (2011) (affirming special master’s reduction of attorney and paralegal
hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Ultimately,
special masters have substantial discretion in awarding fees and costs, and may adjust a fee
request sua sponte, apart from objections raised by respondent and without providing petitioners
with notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed.
4
This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.
3
Cl. 201, 209 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. See Broekelschen, 102 Fed. Cl. at 729.
II. Discussion
A. Availability of Interim Fees
The court in Avera held that interim fees may be awarded “in appropriate circumstances.”
515 F.3d at 1351. The court then listed some circumstances—cases involving “protracted”
proceedings and “costly experts”—in which it would be “particularly appropriate” to award
interim fees. Id. at 1352. But “the Federal Circuit in Avera . . . did not enunciate the universe of
litigation circumstances which would warrant an award of interim attorney’s fees,” Woods, 105
Fed. Cl. at 154, and “special masters [retain] broad discretion in determining whether to award”
them, Al-Uffi ex rel. R.B. v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669,
at *5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). The inquiry is simply whether there is “a good faith
basis for the claim” and the denial of interim fees would “impose[] an undue hardship” based on
the circumstances of the case. Shaw, 609 F.3d at 1375. In making this determination, “the
special master may consider any of the unique facts of a case.” Rehn v. Sec’y of Health &
Human Servs., 126 Fed. Cl. 86, 94 (2016).
The circumstances of this case warrant interim fees. This case has been pending for three
years, which ordinarily “suffice[s] to constitute the type of ‘circumstances’ to warrant an interim
fee award.” Woods, 105 Fed. Cl. at 154; see also, e.g., Thompson v. Sec’y of Health & Human
Servs., No. 12-475V, 2018 WL 1559799, at *1 (Fed. Cl. Spec. Mstr. Feb. 28, 2018) (“[I]nterim
attorneys’ fees and costs are appropriate because waiting for the conclusion of the case would
place an undue hardship in petitioner”); Kottenstette v. Sec’y of Health & Human Servs., No. 15-
1016V, 2017 WL 5662780, at *3 (Fed. Cl. Spec. Mstr. Oct. 30, 2017) (finding two-year
proceeding constituted appropriate circumstances for interim fees). Petitioner has paid
substantial expert fees. Respondent does not dispute that there is “a good faith basis for
[petitioner’s] claim.” Shaw, 609 F.3d at 1375; see Sharp-Rountree, 2015 WL 12600336, at *3
(explaining that “petitioners are entitled to a presumption of good faith absent direct evidence of
bad faith” and finding a good faith basis when respondent “declined to challenge [it]”). Finally,
this case went to entitlement hearing on April 18, 2018. As a result of the testimony elicited
from respondent’s expert, the Court ordered petitioner to file a responsive expert report. See
Order, ECF No. 69. Petitioner has since filed a supplemental report from her expert along with a
multitude of articles in further support of her claims. The Court awaits further filing from
respondent before a post-trial briefing schedule can be issued. A decision in this case will take
some time thereafter. In sum, the circumstances of this case warrant an award of interim fees
and costs so as not to visit financial hardship on petitioner’s counsel.
B. Reasonable Rates and Time Expended
Petitioner requests $86,126.00 in attorneys’ fees. ECF No. 72-1. The requested hourly
rates, see id. at 63, are consistent with the rates previously found to be reasonable in cases
involving petitioner’s counsel. See, e.g., Carey v. Sec’y of Health & Human Servs., No. 16-
828V, 2018 WL 1559805, at *7 (Fed. Cl. Spec. Mstr. Feb. 26, 2018); Schultz v. Sec’y of Health
4
& Human Servs., No. 16-539V, 2018 WL 1835104, at *2 (Fed. Cl. Spec. Mstr. Feb. 16, 2018).
Moreover, the number of hours expended in this case by petitioner’s counsel appear to be
reasonable. Therefore, the undersigned awards the requested attorneys’ fees.
C. Reasonable Costs
Petitioner requests $60,176.48 in attorneys’ costs. ECF No. 72-1 at 63; ECF No. 76. The
requested costs consist of securing medical records, shipping costs, and expert fees. The
undersigned finds the requested costs to be reasonable.
III. Total Award Summary
Based on the foregoing, the undersigned GRANTS petitioner’s Motion for Interim
Attorneys’ Fees and Costs. Accordingly, the undersigned awards $146,302.48,5 representing
$86,126.00 in attorneys’ fees, and $60,176.48 in costs, in the form of a check payable jointly
to petitioner and petitioner’s counsel, Andrew D. Downing, Esq. The clerk shall enter
judgment accordingly.6
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special master
5
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” as well as fees for legal
services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees
(including costs) that would be in addition to the amount awarded herein. See Beck v. Sec’y of Health &
Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
6
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
5