NORA BETH DORSEY, Chief Special Master.
On September 3, 2015, Sara Dashty ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.,
On October 5, 2018, petitioner filed a motion for attorneys' fees and costs. ECF No. 82. Petitioner requests attorneys' fees in the amount of $29,470.10 and attorneys' costs in the amount of $9,728.53. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at 1. Thus, the total amount requested is $39,198.63.
On October 12, 2018, respondent filed a response to petitioner's motion. ECF No. 83. Respondent argues 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 attorneys' fees and costs." Id. at 1. Respondent adds, however, that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Id. at 2. Respondent "respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
Petitioner has filed no reply.
The undersigned has reviewed the billing records submitted with petitioner's request and finds a reduction in the amount of fees to be awarded appropriate for the reasons listed below.
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 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 engaged 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). She "should present adequate proof [of the attorneys' 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.
This is the first case in the Vaccine Program for both attorney Kevin Liebeck and attorney Lee Weiss. Further, there are currently no additional Vaccine Program cases pending for either Mr. Liebeck or Mr. Weiss. Upon review of the billing records the undersigned reduces the request for attorney fees due to excessive hourly rates, attorneys billing for paralegal tasks, travel time, administrative charges, and vague and duplicative entries.
Petitioner requests compensation for attorney Kevin Liebeck at the following rates;
ECF No. 82-1 at 1-8.
Petitioner requests compensation for attorney Lee M. Weiss at the following rates:
ECF No. 82-1 at 1-8.
The undersigned finds the requested rates excessive based on their overall legal experience, the quality of work performed, and their lack of experience in the Vaccine Program. See McCulloch v. Health and Human Services, No. 09-293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). These rates are derived from the OSM Attorneys' Forum Hourly Rate Schedules for years 2015 — 2018 available on the U.S. Court of Federal Claims website at
Mr. Liebeck attests he has been practicing law since February 2003, which places him in the range of attorneys with 11 — 19 years of experience for the duration of this case. Id at 8. Given Mr. Liebeck's inexperience in the Vaccine Program, a reduction of his requested rates is deemed appropriate. See McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). Mr. Liebeck has requested a rate at the highest end of the appropriate experience ranges, however he lacks the experience in the Vaccine Program to support the requested rates. Based on the undersigned's experience and application of the factors discussed in McCulloch, Mr. Liebeck's requested hourly rates are reduced to the following:
Therefore,
Mr. Liebeck submitted documentation from The State Bar of California showing Mr. Weiss has been admitted since December 2012, which places him in the range of attorneys with under 4 years of experience through 2016 and in the range of attorneys with 4-7 years of experience from 2017 — 2018. Id at 13. In regards to the requested rates for 2014-2016 the undersigned finds the requested rates appropriate based on the OSM Attorneys' Forum Hourly Rate Schedules and awards them herein. However, given Mr. Weiss' inexperience in the Vaccine Program, a reduction of his requested rates in 2017 and 2018 is deemed appropriate. See McCulloch, 2015 WL 5634323, at *17 (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). Based on the undersigned's experience and application of the factors discussed in McCulloch, Mr. Weiss' requested hourly rates are reduced to the following:
Therefore,
Mr. Liebeck and Mr. Weiss billed 2.5 hours on tasks that are considered paralegal work. "Tasks 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). "[T]he 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 these entries include:
ECF No. 82-1 at 2-7.
The undersigned reduces the hourly rate on the entries that are considered paralegal to $140.00 per hour. This reduces
In the Vaccine Program, special masters traditionally have compensated time spent traveling when no case work was being performed at one-half an attorney's hourly rate. See Hocraffer v. Sec'y of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec'y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use this rule as standard practice but rather "[e]ach case should be assessed on its own merits." Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). "Even an automatic 50% award may be too high for an undocumented claim, given the possibility that an attorney may use the travel time to work on another matter or not to work at all while traveling." Id.
Mr. Weiss billed 2.5 hours of travel time in March 2016 at the full hourly rate of $200.00. ECF No. 82-1 at 3. Petitioner's application for attorneys' fees does not indicate whether Mr. Weiss performed work while traveling. At a 50% reduction, the hourly rate for travel will be $100.00 per hour. This reduces,
The undersigned has previously reduced attorneys' fees due to excessive and duplicative billing. See Ericzon v. Sec'y of Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and duplicative billing); Raymo v. Sec'y of Health & Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). The undersigned and other special masters have previously noted the inefficiency that results when cases are staffed by multiple individuals and have reduced fees accordingly. See Sabella, 86 Fed. Cl. at 209.
As both a senior and junior attorney billed on this case, duplicative charges were incurred for status conferences, record reviews, meetings, and routine case management. Duncan v. Sec'y of Health and Human Servs., No. 99-0455V, 2008 WL 2465811, (Fed. Cl. Spec. Mstr. May 30, 2008) mot. for rev. denied, 2008 WL 4743493 (2008). In Duncan, the special master reduced the attorney's fee award for duplicate work done by both a senior and junior attorney.
The entries billed by both Mr. Liebeck and Mr. Weiss include:
ECF No. 82-1 at 2-6.
The total time spent on the same task performed by both Mr. Liebeck and Mr. Weiss totals 9.6 hours billed.
An application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell, 18 Cl.Ct. 751 at 760; Rodriguez, 2009 WL 2568468. Petitioners bear the burden of documenting the fees and costs claimed. Id. at *8. Multiple line entries are vague, such that it is unclear what were tasks performed. The undersigned has previously decreased an award of attorneys' fees for vagueness. Mostovoy, 2016 WL 720969; Barry v. Sec'y of Health and Human Servs., 12-39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reduced a fee award by 10 percent due to vague billing entries).
Examples of these entries include:
ECF No. 82-1 at 2-6.
Numerous vague entries are also duplicated. For example, on February 17, 2016 4 entries are listed as "Reviewed email from Gordon Shermin" and billed at 0.10 hours each. Likewise on February 18, 2016, there are three entries listed as "Sent email to Gordon Shermin re: teleconference w/life care planner" and are billed at 0.10 hours each. As the billing records show no additional work performed in between these entries it is unclear if these are for multiple emails or if the entries were duplicated.
Thus for the reasons listed above, the undersigned shall reduce the overall request for attorney's fees by 5 percent. This is a reduction of
Petitioner requests compensation for attorneys' costs in the amount of $9,728.53. These costs include medical records, filing fees, and expenses regarding the life care plan. ECF No. 82-2 at 2. The undersigned finds a majority of these expenses to be reasonable. However, the undersigned reduces several requested costs as administrative expenses, such as costs associated with "scanning records" and "faxes". Id. at 2. In the undersigned's view, these claimed costs are better categorized as overheard expenses inherent to operating a law firm, and thus not compensable. See Bourche v. Sec'y of Health & Human Servs., No. 15-232V, 2017 WL 2480936, at *5 (Fed. Cl. May 11, 2017). The undersigned also reduces the rate for "color printing" from $0.50 per page to $0.20 per page for in-house printing. Fragoso v. Sec'y of Health & Human Servs., No. 08-236V, 2011 WL 300139 (Fed.Cl. Spec. Mstr. Jan. 6, 2011).
In addition, Mr. Liebeck seeks reimbursement of $277.00 for costs associated with his admission to the bar for the U.S. Court of Federal Claims. Id. Costs associated with admission to the bar are not reimbursable. See Velting v. Sec'y of Health & Human Servs., No. 90-1432, 1996 WL 937626, at *2 (Fed. Cl. Spec. Mstr. Sept. 24, 1996).
This results in a total reduction of attorneys' costs in the amount of
Based on the reasonableness of petitioner's request, the undersigned
The clerk of the court shall enter judgment in accordance herewith.
