NORA B. DORSEY, Chief Special Master.
On June 28, 2012, Mary Kate Wright and Garry Wright ("petitioners") filed a petition for compensation under the National Vaccine Injury Compensation Program
On October 1, 2018, petitioners filed a motion for attorneys' fees and costs, requesting compensation for the attorneys and law clerks who worked on their case. Motion for Attorney Fees and Expenses ("Fees App.") (ECF No. 141). Specifically, petitioners requested $124,532.60 in attorneys' fees to compensate their attorney of record, Mr. Michael McLaren, and others at Mr. McLaren's firm. Fees App. at 11. Petitioners also requested $26,454.43 in attorneys' costs and $7,257.77 in petitioners' costs. Fees App. at 12. Thus, petitioners request a total of $158,244.80. Respondent filed his response on October 5, 2018, indicating that he did not oppose petitioners' motion because he believed the statutory requirement for attorneys' fees had been met in the instant case.
For the reasons discussed below, the undersigned GRANTS petitioners' motion in part and awards $149,658.36 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."
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act.
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.
A special master need not engage in a line-by-line analysis of petitioners' fee application when reducing fees.
Petitioners request the following rates of compensation for their attorneys: for Mr. Michael McLaren, $410.00 per hour for work performed in 2015, $425.00 per hour for work performed in 2016, $440.00 per hour for work performed in 2017, and $456.00 per hour for work performed in 2018; for Mr. Chris Webb, $295.00 per hour for work performed in 2015, $305.00 per hour for work performed in 2016, $315.00 per hour for work performed in 2017, and $340.00 per hour for work performed in 2018; and for Mr. William Cochran, Jr., $345.00 per hour for work performed in 2015, $355.00 per hour for work performed in 2016, and $365.00 per hour for work performed in 2017. Fees App. at 11. Petitioners also request that paralegals and law clerks be compensated at rates ranging from $135.00 per hour to $153.00 per hour.
As the undersigned has noted in the past, Ms. Webb may only be awarded up to $326.00 for work performed in 2018.
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 reasons explored more thoroughly below, the undersigned reduces the requested fees by 5%, resulting in a further deduction of $6,183.65.
Block billing, or billing large amounts of time without sufficient detail as to what tasks were performed, is clearly disfavored.
In the present case, there are several examples of billing entries which constitute block billing. For example, one entry on February 9, 2016, billed for 2.3 hours, reads "Go back and read over old records, make travel arrangements, confer with Ginger Walton, confer with the Wrights, letter to the Wrights; Letter to life care planners; confer with clients again." Fees App. Ex. 2 at 6. Another entry on February 22, 2016, combines 10 hours of travel along with 5 hours of work into a single entry.
Additionally, the undersigned has noted numerous examples of excessive billing. Orders from the court, such as status conference orders, were routinely reviewed by both a paralegal and an attorney, with both billing time to review and update the case file.
It is well established that attorneys who bill for paralegal-level work must appropriately reduce their fee.
There are many examples of paralegals/law clerks billing for administrative/clerical tasks, such as filing documents, forwarding e-mails or documents to attorneys, and calendaring deadlines. The undersigned thus finds it reasonable to reduce petitioners' fees award due to the excessive amount of administrative work billed.
Petitioner requests a total of $26,454.43 in attorneys' costs. This amount includes $19,995.79 for expert work done of the case by two life care planners, an economic consultant, and a vocational assessment, and $6,458.64 for travel costs and other miscellaneous expenses.
Petitioners retained three experts to perform professional services on this case: economic consultant Dr. Parker Cashdollar and life care planning services from Ms. Roberta Hurley and Life Care Consultants, Inc. Starting with Dr. Cashdollar, he billed 15.5 hours at a rate of $200.00 per hour. Fees App. Ex. 2 at 94. The undersigned and other special masters have previously found Dr. Cashdollar's rate to be reasonable.
Next, petitioners request $1,400.00 in compensation for the work of Dr. C. Greg Cates. Dr. Cates has a doctorate in education, and performed a vocational assessment in this case. Dr. Cates billed 5.60 hours of work at $250.00 per hour. Fees App. Ex. 2 at 106. The undersigned has reviewed Dr. Cates' billing records and finds the hours worked and the rate charged to be reasonable and shall award the full amount requested.
Petitioners next request $5,432.75 for the services of Life Care Consultants, Inc. in preparing a life care plan for M.W. The billing records indicate that a total of 40.15 hours were billed on this matter by three individuals, "TKA" who billed $185.00 per hour and "AS" and "KH" who billed $85.00 per hour. The undersigned has reviewed the billing records and finds the work performed to be reasonable. This cost will also be reimbursed in full.
Finally, petitioners seek $10,063.04 for the services of another life care planner, Ms. Roberta Hurley. Ms. Hurley billed approximately 80 hours at $125.00 per hour. The undersigned has reviewed Ms. Hurley's billing records, and finds the work performed to be reasonable. Petitioners will thus be awarded the full amount for Ms. Hurley's work.
Petitioners seek $5,903.23 for travel expenses such as airfare, hotel, and food, and for other miscellaneous expenses such as postage. Upon review, the undersigned as noticed several issues which warrant reducing petitioners' award of costs.
Turning first to expenses billed by Mr. McLaren, the record indicates that Mr. McLaren charged $1,309.70 on first class roundtrip airfare on February 10, 2016. Fees App. Ex. 2 at 65. Mr. McLaren then again billed $924.70 on Delta Comfort + airfare on September 14, 2016. Id. at 82.
Turning next to expenses billed by Mr. Webb, it appears that Mr. Webb has also billed for first class airfare. Unlike his colleague, however, Mr. Webb has attempted to justify his purchase by noting that the first class ticket he purchased was actually slightly less money than a coach ticket at more desirable times would have been. Fees App. Ex. 2 at 113-115. The undersigned notes that airfare is subject to wide-ranging price differentials based upon, among other factors, the date on which the flight is booked, and that one curated data point cannot be extrapolated to show that a first class flight was the most reasonable option of travel. Because the Vaccine Program does not compensate for first class airfare, the undersigned shall reduce the amount of the ticket by half, resulting in a reduction of $473.25.
Also requiring reduction is a charge of $213.73 for Uber Black service from LaGuardia Airport to Manhattan and back. Fees App. Ex. 2 at 110-111. While Uber is certainly a compensable method of transportation, Uber Black is essentially a black car service provided by Uber and is therefore more luxurious and more expensive than traditional Uber service. The undersigned will also reduce this cost by half, resulting in a reduction of $106.86.
The undersigned finds the rest of the billed costs, which include other travel expenses, photocopies, and postage, to be reasonable. Accordingly, the total amount reduced from petitioners' award of attorneys' costs is $1,543.19.
Petitioners also request $7,257.77 in petitioners' costs. The majority of this amount ($6,082.77) is for the legal services of Mr. George Holland, Esq., in establishing a guardianship for petitioners. Ex. 106 at 3. The billing records indicate that Mr. Holland billed 16.8 hours in this matter at a rate of $350.00 per hour and incurred $202.77 in expenses for the filing fee and postage. Mr. Holland is an experienced attorney in disability law and has been barred since 1996. Upon review, the undersigned finds Mr. Holland's requested rate and hours billed to be reasonable in light of his overall experience and the work he performed on this case. The undersigned will therefore compensate petitioners fully for this cost.
The remaining costs, which are for medical visits with a psychologist to prepare a psychological report for M.W., have been fully documented and appear to be reasonable. Accordingly, petitioners are awarded the full amount of their requested costs, $7,257.77.
Based on the above analysis, 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
