MARY ELLEN COSTER WILLIAMS, Judge.
This vaccine injury case comes before the Court on Petitioner's Motion for Review of the Special Master's decision,
On October 11, 2012, Amanda Guerrero filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10 to 34 (2012) ("Vaccine Act"), along with 534 pages of medical records and an expert report, alleging that she developed Guillain-Barré syndrome ("GBS") after receiving an influenza vaccine on September 22, 2011.
Over a year after Petitioner's counsel began work on the case, and roughly six months after the petition was filed, the parties engaged in settlement discussions, and "conditionally resolved" the case on April 3, 2013.
Petitioner filed her application for fees and costs on November 26, 2013, seeking $38,114 in attorney and paralegal fees, $17,000 in expert costs, and $752.31 in costs. Respondent objected, arguing that the fees and costs were excessive.
The Special Master found that the amount of fees Petitioner sought was unreasonable, based on a comparison of Petitioner's claimed fees with his compilation of median fees and costs in Vaccine Act cases of similar procedural complexity.
In all, the Special Master awarded fees for 59.83 attorney hours at a rate of $355 per hour, and 34.37 paralegal hours at a rate of $125 per hour, along with reduced expert costs, expenses for the fee application, and other miscellaneous costs, for a total award of $48,779.61.
Petitioner sought review of the Special Master's reduced fee award in this Court on October 7, 2014, arguing that the Special Master applied a legally erroneous median test, and that his decision lacked sufficient specificity. Petitioner also sought additional attorney's fees and costs totaling $16,221.20, reflecting the time spent in preparing her Motion for Review.
On review, this Court found:
Finding that the Special Master's median fee comparison approach did not "provide a basis for this Court to assess whether the Special Master's reduction of fees was rational or an abuse of discretion," this Court remanded the matter to the Special Master for a "clear and concise explanation of the fee award."
On remand, the Special Master engaged in a detailed analysis of Petitioner's attorney's fees and costs request. The Special Master acknowledged that a line-by-line analysis was not required, but nonetheless chose "to adopt this method to communicate the reasons for each reduction." Second SM Op. *5. The Special Master stated:
In his decision, the Special Master identified what he viewed as unreasonable billing by Petitioner's attorney, such as billing time for creation and review of documents which were simply modified from use in earlier cases, charging at least 0.1 hour for every task, even if
The Special Master awarded Petitioner a total of $50,073.71, representing a reduction of $11,284 from Petitioner's request for $61,357.71.
Petitioner now seeks review of the Special Master's second fee decision, arguing that the Special Master abused his discretion in reducing fees and reassigning certain fees among attorney, paralegal, and clerical rates. Petitioner also seeks attorney's fees and costs for this second Motion for Review.
This Court exercises jurisdiction pursuant to Section 300aa-12(a) of the Vaccine Act. In reviewing a decision rendered by a special master, this Court may: (1) uphold the findings of fact and conclusions of law by sustaining the special master's decision; (2) set aside any findings of fact or conclusions of law "found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and issue its own findings of fact or conclusions of law; or (3) "remand the petition to the special master for further action in accordance with the court's direction." 42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012);
While legal conclusions of the special master are reviewed
Special masters are statutorily authorized to determine and award "reasonable attorneys' fees" under the Vaccine Act. 42 U.S.C. § 300aa-15(e)(1) (2012). To calculate such fees, the Federal Circuit has endorsed the lodestar method.
The United States Court of Appeals for the Federal Circuit found, in Saxton, that the Special Master has discretion in awarding fees and costs in Vaccine Act cases, explaining:
3 F.3d at 1521 (quoting
This discretion, however, is not unfettered. In order to permit the court to perform its review function and determine whether any abuse of discretion occurred, the special master must provide a description of the reasoning used to reach his conclusions.
In its first review of the Special Master's award of fees and costs, this Court found that the Special Master had "fail[ed] to provide adequate specificity to allow meaningful review," and remanded the matter to obtain a clearer explanation of why reductions in the fee award had been made.
Here, Petitioner contends that the Special Master committed legal error and abused his discretion by reducing the number of hours, recategorizing certain attorney billing entries as paralegal tasks and some paralegal billing entries as clerical tasks, consolidating
The Court recognizes the discretion granted to special masters in making fee award decisions.
The Special Master deducted 6.1 attorney hours, totaling $2,165.50, and 1.5 paralegal hours, totaling $187.50, from Petitioner's fee award for billing he deemed excessive. These deductions encompassed preparation of nine Notices of Filing for exhibits, when only one was necessary, review of the electronic notice of filing of the petition and case assignment notice, and drafting, revising, and finalizing a Notice of Intent to Continue, and settlement negotiations. In addition, with respect to settlement negotiations, the Special Master deducted 5.6 hours of attorney time out of a requested 25.6 hours, and 0.8 hour of paralegal time out of a requested 1.6 hours, because he found that Petitioner's attorney's practice during this period continued to show signs of excessive, duplicative, and unnecessary billing entries. Second SM Op. *21-25. The Special Master also found that "[i]n [his] experience, attorneys who are knowledgeable about the Vaccine Program have negotiated a settlement in similar cases in approximately 10-15 hours. Attorneys with much less experience than [Petitioner's attorney] negotiated a resolution in 22 hours."
Petitioner has not established that the above deductions were arbitrary, capricious, or an abuse of discretion. The deductions related to the Notices are matters within the Special Master's particular expertise and experience, and this Court will not second guess those determinations. Similarly, although settlement negotiations can vary based upon factual and legal issues and personal dynamics, the Court deems the Special Master's fee reduction for settlement negotiations to be reasonable because the Special Master pointed to "signs of excessive duplicative and unnecessary billing entries" that the Special Master was in a superior position to detect.
The Special Master deducted 1.4 attorney hours, totaling $497, and 1.3 paralegal hours, totaling $162.50, from Petitioner's fee award for billing entries that reflected unnecessary work. These deductions covered paralegal time for the creation of "fee summary monthly narratives," drafting a motion for electronic filing, attorney time spent "reviewing the new guidelines for any effect on this case," receiving and drafting an email regarding the routine 240-Day Notice, and prematurely drafting and revising a Joint Notice to Waive Review of Decision regarding Fees that was never filed and that was similar to notices filed by Petitioner's attorney in prior cases.
The Court affirms these deductions as the Special Master is in a superior position to understand the nature and necessity of the work performed and the propriety for charging for such work.
The Special Master deducted 0.4 attorney hour, totaling $142, from Petitioner's fee award for billing entries which reflected excessive billing practices regarding email communications. The Special Master determined that it was inappropriate for counsel to charge separately for receiving and responding to emails. In addition, the Special Master denied fees charged for receiving an email from Respondent's attorney authorizing filing of the Joint Notice Not to Seek Review and instructing the paralegal to file the Notice.
The Court affirms these deductions as the Special Master is in a superior position to understand the nature of the work performed and the propriety of the charges.
The Special Master deducted 2.2 attorney hours, totaling $781, and awarded 1.5 paralegal hours, totaling $187.50, from Petitioner's fee award for billing entries which he found reflected tasks more properly suited to a paralegal hourly rate than that of an attorney. The Special Master recharacterized the hours regarding email and telephonic communications about medical records, the expert's fees, costs, and invoice, litigation expenses, Petitioner's social security number, drafting an Election to Accept Judgment, and a Statement of Completion.
Recognizing that the Special Master is in a superior position to evaluate the nature of this work, the Court affirms the Special Master's recharacterization of tasks as a reasonable exercise of discretion.
The Special Master deducted 1.9 attorney hours, totaling $674.50, and 0.2 paralegal hour, totaling $25, from Petitioner's fee award for billing entries which he deemed duplicative, because the billing entries either duplicated tasks completed earlier in this litigation or documents prepared for previous litigation. The Special Master awarded 0.4 paralegal hour, totaling $50. These deductions concerned an email regarding a potential expert report which was duplicated in a telephone call billed the same day, drafting a declaration for Petitioner which duplicated much of the petition, reviewing and finalizing the statement of completion, and drafting a routine, two-sentence Joint Notice to Waive Review.
The Court finds these deductions reasonable as the Special Master is in a superior position to understand the nature of the work performed in this case and prior litigation.
The Special Master deducted 1.3 attorney hours, totaling $461, from Petitioner's fee award for the drafting and preparation of retention agreements with Petitioner and a medical expert, Dr. Steinman, and for drafting and preparation of a disbursement agreement which allowed for disbursement of fee awards to Petitioner's counsel without requiring Petitioner's endorsement. The Special Master reasonably found that these expenses are not commonly billed to the client, and awarded 0.4 paralegal hour, totaling $50, for editing and delivery of these documents to Petitioner and the expert.
The Court finds these deductions reasonable as the Special Master is in a superior position to understand the nature of the work performed in this case and prior litigation.
The Special Master deducted 0.4 attorney hour, totaling $142, and 6.8 paralegal hours, totaling $850, from Petitioner's fee award for billing entries which he reasonably deemed clerical or administrative in nature. This work encompassed conferring with paralegal on processing agreements, "scanning and Bates-stamping . . . exhibit[s], revising and finalizing the notice of filing, conducting the ECF entry, and updating the medical records binder," preparing correspondence to Respondent's attorney regarding signing and filing the Settlement Stipulation, inquiring about Respondent's attorney's physical address, filing the Joint Notice Not to Seek Review and Election to Accept Judgment, changing an address on a letter to the client, and filing the fee application and related exhibits with the Court.
The Court agrees with the Special Master's assessment of the nature of this work and affirms these deductions.
Petitioner's counsel billed 19.5 hours of attorney time and 23.5 hours of paralegal time for review and summarization of medical records. The Special Master deducted 8.3 attorney hours and all 23.5 paralegal hours related to this work.
When the medical records had initially been collected, counsel spent 9.1 hours over several days reviewing these records, which "comprised between 400 and 530 pages." Id. at *7. The Special Master noted that "[t]his amount of time seems relatively high" but nonetheless gave "Ms. Roquemore the benefit of the doubt."
The Special Master also deducted 5.5 hours of paralegal time spent revising the medical record summary and highlighting critical entries following the review by counsel, finding this activity redundant and unnecessary. Id. at *11. Finally, the Special Master deducted 2.0 hours of paralegal time spent summarizing additional medical records received later, because he found it duplicative of an earlier 1.2 hours of attorney time spent reviewing these records.
In making his deduction, the Special Master stated:
This Court finds the Special Master's approach to counsel and the paralegal's review and summarization of medical records to be unreasonable. This work is not duplicative, as it comprises three separate and discrete tasks: 1) attorney review of medical records, 2) paralegal summarization of such records, and 3) attorney review and revision of the paralegal's summarization. Because developing an accurate summary of medical records for reference and advocacy was proper preparation for litigation and/or settlement, these three categories of work were necessary. Given the quantity and nature of the medical records, the time billed was not excessive.
The Special Master's suggestion that counsel's chronological approach deviated from his experience of a common practice does not form a reasonable basis for denying fees. The practice of Petitioner's counsel here could be deemed equally reasonable to the Special Master's observed common practice, as counsel could guide the focus of the paralegal's review into key documents. Understanding some 500 pages of medical records is a critical undertaking for counsel in a vaccine case. The Special Master's deduction of 8.3 attorney hours and 23.5 paralegal hours of this effort, and award of only 11.2 attorney hours and zero paralegal hours, was arbitrary and capricious. The Court reverses the Special Master on these deductions, and finds that Petitioner is entitled to $5,884 for this work.
Petitioner seeks $22,593.35 in attorney's fees and costs incurred in the preparation of her Second Motion for Review. The requested amount represents 58.6 hours
The Vaccine Act empowers this Court to award compensation for reasonable attorney's fees and other costs incurred in a Vaccine Act case. 42 U.S.C. § 300aa-15(e)(1);
In determining whether Petitioner's counsel's requested fee award is reasonable, this Court uses the lodestar method, multiplying the number of hours reasonably expended by a reasonable hourly rate, and then assessing whether an upward or downward adjustment is warranted based on other specific findings.
Upon consideration of the detailed Special Master's Opinion, the research required for the Motion, and the arguments articulated by Petitioner, the Court finds that the number of hours Petitioner's attorney and paralegal expended on this Motion for Review were reasonable, and sufficiently similar to the number of hours awarded in previous cases.
As to Petitioner's counsel's hourly rate, the Court finds, as it did in Petitioner's first Motion for Review, that $365 is a reasonable hourly rate.
The Court awards fees and costs of $22,593.35 for the second Motion for Review. In the Court's view, there are no particular circumstances that warrant an upward or downward adjustment of the reasonable fees and costs.
The decision of the Special Master is
The Court determines that Petitioner's counsel is entitled to a fee award of $55,957.71. In addition, this Court awards Petitioner fees and costs totaling $22,593.35 related to this Motion for Review. Judgment shall be entered accordingly.
