NORA BETH DORSEY, Chief Special Master.
On April 20, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On August 26, 2016, petitioner filed a motion for attorneys' fees and costs. (ECF No. 31-33). Petitioner requests total attorneys' fees and costs amounting to $70,429.30,
The undersigned has reviewed the billing records submitted with petitioner's request. In the undersigned's experience, the request appears excessive for the reasons described below, and the undersigned awards total attorneys' fees and costs in the amount of $54,965.02 divided as follows:
Since the petition for compensation was successful, the undersigned will award reasonable attorneys' fees and costs to petitioner. § 15(e)(1). Reasonable attorneys' fees and costs in Vaccine Act cases are determined using the lodestar approach, which begins with an assessment of a reasonable hourly rate multiplied by a reasonable number of hours expended in the case. Avera v. HHS, 515 F.3d 1343,1347-48 (Fed. Cir. 2008.)
The determination of the amount of reasonable attorneys' fees is within the special master's discretion. See, e.g. Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special Masters have "wide latitude in determining the reasonableness of both attorneys' fees and costs." Hines v. HHS, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991).
Moreover, Special Masters are entitled to rely on their own experience and understanding of the issues raised. Wasson v. HHS, 24 Cl. Ct. 482, 483 (Fed. Cl. 1991) aff'd in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).
Petitioner "bears the burden of establishing the hours expended" and the reasonableness of the requested fee award. Wasson, 24 Cl.Ct. at 484. Notwithstanding respondent's failure to respond to petitioner's fee application, "the Special Master has an independent responsibility to satisfy [herself] that the fee award is appropriate and [is] not limited to endorsing or rejecting respondent's critique." Duncan v. HHS, No. 99-455V, 2008 WL 4743493 (Fed. Cl. 2008).
The appropriate hourly rate for counsel in Vaccine Act litigation is the forum rate, unless the "Davis exception" applies. Avera, 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755 (D.C.Cir.1999)); see also Rodriguez v. HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011) (affirming a determination of the forum rate in Vaccine Act cases). The Davis exception applies when the bulk of the work in a case is performed outside the forum (Washington, DC, in Vaccine Act cases), and there is a very significant difference between local and forum rates. Avera, 515 F.3d at 1349.
Whether looking at the local or forum rate, the undersigned must award "rates that are compatible with the prevailing market rate." Rupert v. HHS, 52 Fed. Cl. 684, 688 (2002); Avera, 515 F.3d at 1349. The prevailing rate is the rate "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Avera, 515 F.3d at 1348 (quoting Blum v. Stenson, 465 U.S. 886, 896, fn. 11 (1984).) In addition to the evidence in the record, a special master may use her experience in the Vaccine Program to determine an hourly rate. Id. at 1357; Saxton, 3 F.3d at 1521.
In the instant application, Mr. Kalinowki seeks an hourly rate of $361 for work performed from 2013 through 2015, but reduced his hourly rate to $349 for work performed in 2016. (ECF No. 32-2.) The undersigned recently issued a reasoned decision in McGrath v. HHS, No. 15-275V (Fed. Cl. Spec. Mstr. Oct. 27, 2016), finding that appropriate hourly rates for Mr. Kalinowski are $325 per hour for 2014-15
Mr. Segel requests an hourly rate of $340 for work performed in 2013 and $375 for work performed in 2014 through 2016. (ECF No. 33-1, 33-2.) Mr. Segel avers that these are his standard hourly rates for his practice in Albuquerque, New Mexico. (ECF No. 33-4.) Admitted to the bar in 1972, Mr. Segel has practiced tort litigation, including medical negligence cases, for over 40 years. (ECF No. 33-4, p. 1.) However, he acknowledged that the instant case was his first vaccine case and that he felt it necessary to engage more experienced counsel as co-counsel. (Id. at 2.) In support of his requested rates, Mr. Segel submitted a local district court decision from 2011 wherein he was awarded fees at an hourly rate of $325 per hour (ECF No. 33-9), a 2015 local district court decision in which another attorney was awarded an hourly rate of $469.87 (ECF No. 33-8), an affidavit from the chief executive officer of the Sutin firm confirming Mr. Segel's hourly rate at the firm and asserting that the rate is "fair, reasonable, and customary in this community" (ECF No. 33-5) and an affidavit by an attorney practicing at a different firm in the same community, averring that Mr. Segel's requested rates are customary for similarly experienced attorneys in Mr. Segel's legal community (ECF No. 33-6).
Since Mr. Segel has not requested forum rates, the undersigned need not reach the question of whether local rates in Albuquerque, New Mexico, are significantly lower than forum rates. Moreover, the undersigned is satisfied that Mr. Segel has substantiated his assertion that the requested rates are consistent with those charged locally by similarly experienced counsel. However, in light of Mr. Segel's lack of vaccine experience, his accompanying lack of efficiency, and his engagement of more experienced vaccine counsel to help him resolve this claim, the undersigned finds that a more appropriate rate increase for Mr. Segel's 2014-2016 work in this case results in an hourly rate of $350 per hour for those years.
As noted above, the undersigned finds that the overall amount of fees billed in this case is excessive. Counsel should not include in their fee requests hours that are "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Upon the undersigned's review, this is chiefly due to the co-counsel arrangement pursued by the attorneys in this case.
Although co-counsel relationships are not per se unreasonable, excessive billing due to work by multiple attorneys is disfavored and has resulted in fee reductions. See, e.g. Lord v. HHS, No. 12-255V, 2016 WL 3960445 (Fed. Cl. Spec. Mstr. June 30, 2016). The reasonableness of a referring attorney or co-counsel's fee is subject to the same standard that governs the counsel of record. Id. at *3; See also Farr v. HHS, No. 90-1167V, 1992 WL 33602, at *3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992); Haley v. HHS, No. 90-3842, 1992 WL 368003, at *4 (Fed. Cl. Spec. Mstr. Nov. 20, 1992).
Upon review of Mr. Kalinowski's billing records, the undersigned tabulates a total of 19 hours of attorney time spent conferring with Mr. Segel, reviewing his work, educating him, or otherwise coordinating efforts. (ECF No. 32-2.) This breaks down as follows: 1.4 hours during 2013; 3.8 hours during 2014, 12.9 hours during 2015, and .9 hours during 2016. Conversely, upon review of Mr. Segel's billing records, the undersigned finds that Mr. Segel spent 32 hours coordinating or conferring with or otherwise seeking guidance from Mr. Kalinowski.
Additionally, the undersigned further reduces Mr. Segel's billing from the Sutin firm by 2 hours during 2013 and 1.4 hours during 2014, for time spent researching regarding the Vaccine Program and the causal association between the influenza vaccine and GBS. (ECF No. 33-2.) It is well established that attorneys may not be compensated for professional development concerning the Vaccine Program. See, e.g. Lord, 2016 WL 3960445 at *4. Moreover, such research was rendered redundant by Mr. Segel's co-counsel relationship with more experienced Vaccine counsel.
Finally, to the extent that the undersigned has found, for reasons described below, that the retention of Deborah Witkin, R.N., as a consultant was excessive, the undersigned further finds that the 3.1 hours that the Ferguson firm has billed for Mr. Segel's time coordinating with her during September and October of 2014, are likewise excessive.
Thus, the undersigned reduces the hours billed by Mr. Kalinowski in this case as follows:
Additionally, the undersigned reduces the hours billed by Mr. Segel on behalf of the Sutin firm as follows:
Finally, the undersigned reduces the hours billed by Mr. Segel on behalf of the Ferguson firm as follows:
Upon review of the billing submissions, the undersigned has found no cause to reduce the costs requested by the Maglio firm. However, reductions must be made to the costs requested by Mr. Segel on behalf of both the Sutin and Ferguson firms.
Mr. Segel has sought reimbursement of $277.00 for costs to the Sutin firm associated with his admission to the bar of the U.S Court of Federal Claims (inclusive of both the bar admission fee and certificate of good standing necessary for application). Such expenses are not recoverable. See, e.g. Velting v. HHS, No. 90-1432, 1996 WL 937626, at *1-2 (Fed. Cl. Spec. Mstr. Sept. 24, 1996).
Additionally, in light of the reductions of Mr. Segel's billing in this case, the undersigned likewise reduces his request for reimbursement of the New Mexico Gross Receipts Tax ("NMGRT"). Using the tax rate of 7.1875% reflected in the tax schedule submitted with petitioner's application, the undersigned finds that the NMGRT for the Sutin firm should be reduced from $1,152.78 to $832.71, based on total fees amounting to $11,585.50. For the Ferguson firm, the NMGRT is reduced from $1,800.47 to $1,378.56, based on total fees amounting to $19,180.
Based on all of the above, the undersigned finds that petitioner's counsel is entitled to reasonable attorneys' fees in the total amount of $54,965.02 as follows:
The clerk of the court shall enter judgment in accordance herewith.
