NORA BETH DORSEY, Chief Special Master.
On November 14, 2002, Steven and Elizabeth Parker ("petitioners") filed a petition for compensation under the National Vaccine Injury Compensation Program
The undersigned dismissed petitioners' case on April 14, 2017. Petitioners had moved for a decision dismissing their petition, stating that "[f]ollowing the Rule 5 Conference on March 7, 2017, Petitioners understand that their claim will not succeed in the Program." Petitioners' Motion for Decision Dismissing Their Petition at ¶ 1. Accordingly, the undersigned determined that petitioners had failed to demonstrate either that K.C.P. suffered a "Table Injury" or that the injuries were "actually caused" by her February 10, 2000, vaccinations and dismissed the petition due to insufficient proof.
On October 20, 2017, petitioners filed a motion for attorneys' fees and costs, requesting compensation for the attorneys and law students who worked on their case, which was part of the George Washington University Law School Vaccine Injury Clinic ("GW Vaccine Injury Clinic"). Petitioners' Application ("Pet. App.") dated October 20, 2017 (ECF No. 131). Specifically, petitioners requested $22,841.50 in attorneys' fees to compensate their attorneys of record, Ms. Renée J. Gentry and Mr. Clifford Shoemaker, $16,352.90 for work performed by law students at the GW Vaccine Injury Clinic, and $62.00 in costs, for a total of $39,256.40. Pet. App. at 1. Petitioners did not request any costs in this case.
Respondent filed his response on October 26, 2017, indicating that he did not oppose petitioners' motion because he believed the statutory requirement for attorneys' fees had been met in the instant case. On April 17, 2018, the undersigned issued an order requesting from petitioners additional information concerning the relationship between the GW Vaccine Injury Clinic and the law firm Shoemaker, Gentry & Knickelbein along with documents regarding attorneys' fees and costs and/or billing practices for the GW Law School Vaccine Injury Clinic. ECF No. 133. In response, petitioners filed an affidavit from Renée Gentry providing the requested information.
For the reasons discussed below, the undersigned GRANTS petitioners' motion in part, and awards $30,758.92 in attorneys' fees and costs.
Under the Vaccine Act, the special master shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). When compensation is not awarded, the special master "may" award reasonable attorneys' fees and costs "if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought."
Respondent has not objected to petitioners' application for fees and costs on the basis of a lack of good faith or reasonable basis. The undersigned finds that petitioners brought their petition in good faith and that a reasonable basis existed up to and including the Rule 5 conference, which was held on June 7, 2016. As a result, the undersigned will pay all reasonable costs incurred from the start of the case until and including the Rule 5 conference on June 8, 2016, and for winding up the case. The fact that petitioners' attorneys' billing records contain numerous entries for student meetings, conferences, and record reviews after June 7, 2016, is taken into consideration in the reduction of petitioners' attorneys' hours, discussed below.
For attorney Cliff Shoemaker, petitioners request the following amounts: $415.00 per hour for work performed in 2015, $430.00 per hour for work performed in 2016, and $440.00 per hour for work performed in 2017. For attorney Renée Gentry, petitioners request the following amounts: $400.00 for work performed in 2015, $415.00 per hour for work performed in 2016, and $430.00 per hour for work performed in 2017. For work performed by law students at the GW Vaccine Injury Clinic, petitioners request a paralegal rate of $145.00 irrespective of year.
On April 12, 2016, the undersigned issued a reasoned decision in
More recently, in
While petitioners are entitled to an award of attorneys' fees and costs, the undersigned finds that a reduction in the number of hours billed by petitioners' counsel is appropriate for three reasons. First, the undersigned finds that the billing records are replete with excessive intra-office communications, and there are numerous instances of vague billing entries. Second, seven different law students at the GW Vaccine Injury Clinic billed time on this case over a time period of approximately two years (September 9, 2015 to October 17, 2017) and many of their billing entries reflect duplicative and vague billing entries, intra-office communications, and an excessive amount of staff attending meetings and status conferences. Finally, Mr. Shoemaker has improperly billed some of his time through the GW Vaccine Injury Clinic (as opposed to through Shoemaker, Gentry & Knickelbein).
For these reasons, and after carefully reviewing petitioners' application, the undersigned reduces petitioners' attorneys' fees award. In making reductions, a line-by-line evaluation of the fee application is not required.
The undersigned has previously found it reasonable to decrease an award of attorneys' fees for vagueness.
After carefully reviewing the billing records, the undersigned finds the number of vague billing entries in this case to be particularly troubling. Mr. Shoemaker's billing records contain numerous entries for "review corr," but petitioners provide no indication of what he was reviewing or why. Pet. App. at 5, 8, 9, 10. Mr. Shoemaker also billed almost two hours (1.9) in attempts to call various parties, such as petitioners and their expert.
In addition, the law students' time records also reflect a number of vague entries, including nearly four hours billed for "file review," "document review", "case review," and exhibit review.
The undersigned has previously found it reasonable to reduce attorneys' fees awards due to duplicative billing.
The undersigned finds some of petitioners' requested fees unreasonable, unnecessary, and duplicative. Two partners worked on petitioners' case, as well as seven law students. Pet. App., Exs. 2, 3. Petitioners have not provided a sufficient explanation as to why the involvement of this many attorneys and law students in a single case was necessary.
The undersigned has previously found that the reviewing of documents by multiple attorneys leads to excessive billing.
The amount of time billed for intra-office communications, including emails, intra-office discussions, and numerous meetings with law students, is also excessive. All of the attorneys and law students who billed time in this case have multiple entries on their time sheets for attending case meetings, engaging in case discussions, and reviewing internal emails. The undersigned finds the amount of time billed for the same meetings with each other to be particularly problematic.
Other special masters as well as the undersigned have reduced fee awards for excessive and duplicative intra-office communication.
For all of these reasons, the undersigned finds the billing in this case so excessive and duplicative as to warrant a reduction of the attorneys' fees by 20 percent and the law students' fees by 20 percent.
Under the billing invoice submitted for the work performed by the GW Vaccine Injury Clinic, there are five entries for work billed by Mr. Shoemaker and three entries for work billed by Ms. Gentry. Both attorneys (as well as multiple law students) billed for time on November 9, 2016, related to a meeting, two of these entries are dated March 7, 2017, and relate to a telephonic status conference held by the undersigned on that date, while a third entry is on March 15, 2017, and appears to be a phone conference with petitioner as well as a meeting with GW Vaccine Injury Clinic Students. Pet. App. at 26. Overall, these eight entries account for a combined 1.9 billed hours. Mr. Shoemaker also billed for the status conference with the undersigned on March 7, 2017, on the Shoemaker, Gentry & Knickelbein labeled sheet.
It is unclear why petitioners' counsel would choose to bill any of their time under the GW Vaccine Injury Clinic as opposed to their own law firm. In order to better ascertain the relationship between Shoemaker, Gentry & Knickelbein and the GW Vaccine Injury Clinic, the undersigned ordered petitioners to file documentation, which petitioners did in the form of an affidavit of Renée Gentry. ECF No. 134. In the affidavit, Ms. Gentry states that there is no contract between the GW Vaccine Injury Clinic and the law firm of Shoemaker, Gentry & Knickelbein, nor is there a contract between the GW Vaccine Injury Clinic and Mr. Shoemaker or Ms. Gentry personally. Affidavit at ¶¶ 3-4.
Given this established billing framework, the undersigned finds it unacceptable that counsel billed time in the instant case to the GW Vaccine Injury Clinic, rather than solely to their own firm. As previously noted in the affidavit, it is not difficult for counsel to access their firm's time-keeping system remotely, and the billed entries go well beyond what could be considered "demonstrating the program" to law students. There is simply no legitimate reason that counsel should be billing for this case both through their law firm and through the GW Vaccine Injury Clinic. Given that Ms. Gentry stated in the affidavit that "a separate account was created so as to not mingle Clinic payments and payments from Shoemaker, Gentry & Knickelbein" it is clear that petitioners' counsel are aware of the potential perils associated with billing from multiple accounts. Affidavit at ¶ 12. Accordingly, the undersigned will disallow the 1.9 hours of work that counsel billed through the GW Vaccine Injury Clinic, resulting in a reduction of $813.25. The undersigned also cautions that petitioners' counsel should exercise greater care in creating proper billing records, and that future occurrences of improper billing will not be compensated.
Petitioners request a total of $62.00 in attorneys' costs. Petitioners included documentation which indicates these costs are to reimburse Mr. Shoemaker for purchasing two audio recordings from the Court of Federal Claims. Pet. App. at 14. The undersigned finds these costs reasonable and reimburses them in full.
Based on all of the above, the undersigned finds that it is reasonable to compensate petitioners and their counsel as follows:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court
