LAURA D. MILLMAN, Special Master.
On October 1, 2015, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2012) alleging that her daughter, N.S., suffered from transverse myelitis ("TM") as a result of her March 1, 2013 receipt of DTaP and pneumococcal conjugate ("PC") vaccines. Pet. at ¶¶ 3, 5. Petitioner further alleges that N.S. suffered the residual effects of this injury for more than six months.
On January 5, 2017, the undersigned issued a decision awarding damages to petitioner based on the parties' stipulation filed on January 3, 2017. On February 3, 2017, petitioner filed a motion to amend the decision to remove petitioner as the guardian of N.S.'s estate and to include a footnote directing the payment be paid to the party appointed by a court of competent jurisdiction to serve as guardian of the estate.
On September 8, 2017, petitioner filed a motion for attorneys' fees and costs ("motion"). In her motion, petitioner requests a total of $77,158.47, comprised of (1) $40,387.48 for attorneys' fees and costs incurred by Maglio Christopher & Toale, PA; (2) $10,343.49 for attorneys' fees and costs incurred by Ms. Rose Romero for the establishment of a guardianship for N.S.'s vaccine injury award; (3) $24,430.00 for future attorneys' fees and costs to maintain the guardianship; and (4) $1,997.50 for attorneys' fees and costs incurred by Ms. Debra J. Slater whom the Florida court appointed as guardian ad litem. In accordance with General Order #9, petitioner's counsel noted in the fee application that petitioner has not advanced any funds in the prosecution of her claim.
On October 13, 2017, respondent filed a response to petitioner's motion objecting to any attorneys' fees and costs related to a proceeding to establish the guardianship in a Florida state court. Resp. at 4. Respondent also objects to paying any future attorneys' fees and costs to maintain N.S.'s guardianship.
The Vaccine Act permits an award of "reasonable attorneys' fees" and "other costs." 42 U.S.C. § 300aa-15(e)(1). The special master has "wide discretion in determining the reasonableness" of attorneys' fees and costs.
A "reasonable hourly rate" is defined as the rate "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation."
Once the applicable hourly rate is determined, it is applied to the "number of hours reasonably expended on the litigation."
In her motion and supplemental fees motion, petitioner requests a total of $50,651.28, comprised of $48,795.40 for attorneys' fees and $1,855.88 for attorneys' costs, incurred by Maglio Christopher & Toale, PA.
The undersigned find that the hourly rates requested for petitioner's counsel, Ms. Amber Wilson, are excessive. Petitioner requests the following hourly rates: $295.00 for Ms. Wilson's work performed in 2015, $301.00 for her work performed in 2016, and $308.00 for her work performed in 2017. Ex. 24, at 1-20; Docket #41, at 2-3.
Therefore, in consideration of Ms. Wilson's skill, experience, and quality of work, the undersigned finds that the appropriate hourly rate for Ms. Wilson's work performed in 2015 is $225.00, in 2016 is $275.00, and in 2017 is $290.00. As Ms. Wilson billed 29.40 hours for work on the case in 2015 at a rate of $295.00, 40.70 hours in 2016 at a rate of $301.00, and 48.90 hours in 2017 at a rate of $308.00,
Petitioner seeks Ms. Wilson's full hourly rate for her travel time expended to meet petitioner. Ex. 18, at 7 (entries dated 10/8/2015, 10/12/2015, 10/13/2015). The undersigned finds that she should be awarded one-half of her normal rate for these hours.
In the Vaccine Program, special masters traditionally have compensated time spent traveling when no other work was being performed at one-half an attorney's hourly rate. See Hocraffer v. Sec'y of HHS, No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011);
Since all travel occurred in 2015, petitioner will be awarded fees at a rate of $112.50, representing one-half of Ms. Wilson's appropriate hourly rate in 2015, $225. Petitioner billed for 6.5 hours of travel in total. Thus, petitioner's award is
In her supplemental fees motion, petitioner seeks a $150 hourly rate for law clerk's work. The undersigned concludes that the hourly rate for a law clerk should be reduced from $150 to $145, which results in a
It is firmly rooted that billing for clerical and other secretarial work is not permitted in the Vaccine Program.
Petitioner's counsel's billing records contain multiple entries that are best characterized as administrative time. For instance, Ms. Wilson billed 0.2 hours for organizing and coordinating scanning to file and reimbursement of travel receipts. Ex. 18, at 8 (entry dated 10/27/2015). Additionally, throughout the billing invoices, Ms. Wilson billed 0.1 hours for "read court order; update case management" after reviewing a one-page court order or scheduling a conference. Ex. 18 (entries dated 10/14/2015; 11/17/2015; 1/13/2016; 2/25/2016; 4/7/2016; 6/6/2016; 7/21/2016; 9/14/2016; 2/6/2017). Beyond the fact that this is clerical work billed at an attorney's rate, the undersigned cannot imagine how it takes 0.1 hours or six minutes to enter a date, or even three dates, on one's calendar. These types of entries are clerical in nature and are not billable time. Accordingly such entries will be deducted from the fee award, amount to a
The undersigned considers the generalized entries in which Ms. Wilson billed for "Review case for direction; update file accordingly,"
Respondent does not object to the hours expended by Ms. Wilson pursuing the case. After a review of petitioner's fee application, the undersigned considers most of the hours included on the billing entry to be reasonable. However, numerous entries claimed by Ms. Wilson for research on Florida Guardianship Law and future guardianship expenses in petitioner's motion, as well as legal research claimed in petitioner's supplemental fees motion, are uncompensable.
Petitioner's counsel may not bill for educating herself in the law. She would not be able to bill her client for keeping herself professionally current, and she is similarly not entitled under the Vaccine Program to compensation for educating herself.
Additionally, the billing records contain numerous entries which constitute block billing, where Ms. Wilson has billed for multiple tasks, including legal research, in a single entry. This type of "block billing" is not appropriate in vaccine cases.
In many instances, Ms. Wilson billed large amounts of time without sufficient detail as to how long each task was performed and made it impossible for the undersigned to determine the amount of time each task took. For example, on January 5, 2016, Ms. Wilson billed 4 hours on reviewing file and drafting initial demand letter, reviewing documents from client, beginning damages calculations, researching incontinence and future treatment, researching orthotics, calling client to discuss, and leaving voicemail. Ex. 18, at 11. On February 11, 2016, Ms. Wilson billed another 4 hours for reviewing and editing demand letter, determining and beginning calculation of costs for counseling, researching psychosocial impact of urinary incontinence and other disabilities, and continue drafting estimations and calculations of future medical needs.
Due to uncompensable research tasks and block billing, the undersigned further reduces the attorneys' fees incurred by Maglio Christopher & Toale, PA by 10 percent.
Thus, the total amount of attorneys' fees for Maglio Christopher & Toale, PA is reduced by $9,726.63 and $39,068.77 is awarded. The undersigned finds the attorneys' costs reasonable. Therefore, the total amount paid for attorneys' fees and costs incurred by Maglio Christopher & Toale, PA is
Petitioner seeks a total of $10,343.49 charged by Ms. Romero for the establishment of a guardianship for N.S.'s vaccine injury award. Respondent objects to paying for the establishment of a guardianship in a state court because it is a separate ancillary state action that is not a proceeding for compensation for a vaccine-related injury or death under Section 300aa-11. Resp. at 4. Petitioner argues that special masters routinely award costs for state court proceedings to establish guardianship of a minor's property when those proceedings are required for receipt of a vaccine injury award. Reply at 5.
The issue involved here is whether the costs of such guardianship proceedings are properly compensable. As respondent notes, some opinions have answered that question in the negative.
The undersigned agrees with the recent decisions issued by special masters and finds attorneys' fees and costs of establishing the guardianship are compensable under the Vaccine Act when they are incurred as a condition of receipt of the damages award. The Vaccine Act requires a petition be filed by a minor's legal representative. 42 U.S.C. § 300aa-11(b)(1)(A). The Act defined "legal representative" as "a parent or an individual who qualifies as a legal guardian under State law." 42 U.S.C. § 300aa-33(2). The parties' stipulation filed on January 3, 2017 requires the establishment of a guardianship in a state court to receive payment pursuant to the stipulation. Stip. ¶ 16. After the undersigned issued her decision awarding damages on January 5, 2017, petitioner filed an unopposed motion to amend the decision to include paragraph 16 of the joint stipulation in order to assist petitioner's guardianship attorney in completing the guardianship process. The motion was granted. In her amended decision awarding damages issued on February 9, 2017, the undersigned included paragraph 16 as footnote 2 and awarded damages according to the stipulation's terms, including the provision requiring the establishment of a guardianship. Thus, the fees and costs incurred to establish the guardianship in a state court are within "proceedings on the petition" and reimbursable under § 300aa-15(e)(1).
The amount of attorneys' fees and costs incurred in connection with a guardianship/conservatorship proceeding must be reasonable. 42 U.S.C. § 300aa-15(e)(1)(A)-(B);
The undersigned finds the $24,430.00 in future attorneys' fees and costs billed by Ms. Romero to maintain N.S.'s guardianship uncompensable. Respondent objects to these fees and states that Section 15(e) of the Vaccine Act allows compensation only for reasonable attorneys' fees and other costs "incurred," but does not provide for fees and costs that "will be incurred." Resp. at 6. Respondent cites the U.S. Court of Federal Claims in Black v. Sec'y of HHS, 33 Fed. Cl. 546, 550 (Fed.Cl. 1995): "One incurs an expense. . .at the moment one becomes legally liable, not at the moment when one pays off the debt, nor at the moment when one decides that an expense will become necessary one day in the future." Resp. at 7. In her reply to respondent's response, petitioner argues that the fees and costs to maintain a guardianship should be compensable because they would not have been incurred "but for" petitioner's vaccine injury claim. Reply at 6, 9. Petitioner further argues that these fees are not speculative.
The Vaccine Act limits the amount of "compensation to cover petitioner's . . . costs" to those "incurred in any proceeding on [a Vaccine Act] petition." 42 U.S.C. § 300aa-15(e)(1). The costs of a "service" performed by another court, provider or other professional were incurred `on a petition' and `in prosecuting the petition' if the service was ordered by this court and accomplished as part of the process of providing reasonable compensation to petitioner.
Even if the Act permitted a prepayment of attorneys' fees and costs, the amount is speculative. The vaccinee in this case is now six years old, having been born on November 29, 2011. Pet. at ¶ 2. N.S. will reach her majority in 2029. Ms. Romero mistakenly billed petitioner in advance for fourteen (from 2018 through 2032) instead of eleven (from 2018 through 2029) years of work. Ex. 22 at 3. Even if a correct number of years is billed, it is speculative for Ms. Romero to bill petitioner in advance for eleven years of work and estimate 4.5 hours to prepare and file each annual accounting form. Not only has this $24,430.00 cost not been incurred, it may never be incurred. Therefore, the undersigned finds petitioner's future attorneys' fees and costs to maintain the guardianship under Florida law not compensable under the Vaccine Act.
Ms. Debra Slater served as guardian ad litem in the Florida state court proceeding to facilitate the appointment of a guardianship process, and billed petitioner a total of $1,997.50. The undersigned finds fees and costs associated with the appointment of a guardian ad litem under Florida law not compensable. Although the Florida Guardianship Law requires the appointment of a guardian ad litem to protect a minor's interests, it was unrelated to the vaccine petition and establishing the biological father as a legal representative of N.S. None of the services rendered by Ms. Slater had anything to do with the proceedings in the Vaccine Program. Because the fees associated with these services were incurred "without court or respondent involvement," they were not incurred as part of a "proceeding on [a Vaccine Act] petition" as the statute requires.
Based on her experience and review of the billing records submitted by petitioner, the undersigned finds the majority of petitioner's attorneys' fees and costs request reasonable.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.
