THOMAS L. GOWEN, Special Master.
On September 25, 2012, Grzegorz and Agnieszka Rus ("petitioners") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On June 7, 2017, petitioners filed a motion for attorneys' fees and costs ("Motion"). ECF No. 96. After a review of the motion, I identified several issues and asked petitioners to file a supplement to their motion in order to resolve those issues. Petitioners then filed an amended motion for attorneys' fees and costs ("Am. Motion") on July 18, 2017. ECF No. 98. I was still unable to determine how some of the expenses for which counsel was billing were related to the case and noted that appropriate receipts and invoices had not been attached for all of the expenses, so I ordered petitioners' counsel to file detailed invoices of her expenses, especially those related to travel for the hearing held on September 17, 2015. Petitioners filed a status report with an amended list of expenses on August 15, 2017, and explained that some expenses had accidentally been included which were not related to this case. Status Report dated Aug. 15, 2017 ("Status Report") (ECF No. 100).
Petitioners' request for attorneys' fees and costs was complicated by the fact that their counsel changed law firms during the pendency of this matter, and thus her billing logs and lists of expenses were split between two law firms.
Petitioners also made adjustments to their requests for reimbursement of costs over the course of their filings. In both their original motion and amended motion, petitioners requested $27,790.22 in costs, representing $27,764.03 incurred by counsel at Lommen Abdo, and $26.19 incurred by counsel at Larkin Hoffman.
The adjustments to the totals requested for attorneys' fees and costs are represented below:
After the numerous adjustments described above, petitioners' final request includes attorneys' fees in the amount of $99,047.50
On June 26, 2017, respondent filed a response to petitioners' motion. Respondent's Response (ECF No. 97). Respondent argues that "[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs." Id. at 1. Respondent adds, however, that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Id. at 2. Respondent "respectfully recommends that the Special Master exercise his discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
Petitioners have not filed a reply. This matter is now ripe for adjudication.
Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs for a petition that does not result in an award of compensation, but otherwise establishes that the petition was filed in good faith and with a reasonable basis. 42 U.S.C. § 300aa-15(e) (1). I find no cause to doubt the good faith or reasonable basis of bringing this claim, which, even though not successful, was supported by competent expert testimony at hearing. As respondent has also not objected to the good faith or reasonable basis of this claim, I find that petitioners are entitled to an award of reasonable attorneys' fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines "an initial estimate of a reasonable attorneys' fee by `multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348. Special Masters have "wide discretion in determining the reasonableness" of attorneys' fees and costs. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). Special masters may increase or reduce the initial fee award calculation based on specific findings. Avera, 515 F.3d at 1348.
In making reductions, a line-by-line evaluation of the fee application is not required. Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its attorneys to determine the reasonable number of hours expended. Id. Just as "[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications." Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). The special master may reduce a request sua sponte, apart from objections raised by respondent and without providing petitioner notice and opportunity to respond. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009).
Petitioners request compensation for their attorneys, Ms. Kate Westad and Ms. Sheila Bjorklund. Status Report at Exhibit A, 1-11, 17. In addition to their attorneys, petitioners also request compensation for work performed on their case by paralegals. Id.
Petitioners request the following hourly rates for their counsel
Petitioners' counsel has not provided in her original motion, her amended motion, or her status report any information regarding her or Ms. Bjorklund's experience or why they should be awarded the rates requested. Petitioners' counsel is reminded that according to the Vaccine Guidelines, she should include with her motion an affidavit that includes "information about the petitioning attorney (e.g., the year of graduation from law school, length of practice, specialties of practice, customary billing practices, and history of hourly rates charged) and a statement that the attached report of hours and costs expended is accurate."
According to information provided on Lommen Abdo's website, Ms. Bjorklund has 24 years of experience practicing law, as she was licensed in 1993.
Other special masters have previously found Ms. Westad's requested rates to be reasonable. Marsyla v. Sec'y of Health & Human Servs., No. 15-1172V, 2016 WL 8253021 (Fed. Cl. Spec. Mstr. Oct. 25, 2016); Larson v. Sec'y of Health & Human Servs., No. 15-1077V, 2016 WL 5799218 (Fed. Cl. Spec. Mstr. Jul. 15, 2016). I will keep in accord with my colleagues and award Ms. Westad's requested rates in full.
The second factor in the lodestar formula is a reasonable number hours expended. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Shorkey v. Sec'y of Health & Human Servs., No. 15-768V, 2017 WL 2119118 (Fed. Cl. Spec. Mstr. April 21, 2017); Saxton, 3 F.3d 1517, 1521. 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. See Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (Fed. Cl. 2008).
It is "well within the special master's discretion to reduce the hours to a number that, in [his] experience and judgment, [is] reasonable for the work done." Id. at 1522. A special master need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009).
I have reviewed the billing records submitted with petitioners' motion and subsequent filings. As I noted in a previous order, counsel's motion included various filing deficiencies which necessitated excessive work by me and my law clerk to try to determine what should have been made clear in the original motion or even the amended motion. See Order dated July 31, 2017 (ECF No. 99). As noted in that order, counsel will not be compensated for the 10.8 hours of time to prepare her deficient motion, nor will she be compensated for the 7.9 hours of time to prepare an amended motion that still had multiple issues, such as the inclusion of expenses not related to this case and the absence of adequate invoices for related expenses,
Petitioners' counsel is advised that her motions should follow the Guidelines for Practice under the National Vaccine Injury Compensation Program. In order to be compensated for attorneys' fees and costs, petitioners need to demonstrate that their fees and costs are reasonable and related to the case at hand. Inadequate motions and supporting documentation greatly increase the time and effort needed to review the motion, which in turn increases the amount of time before counsel can receive compensation.
In her original motion, petitioners' counsel block-billed in increments of five or more hours at a time, and in some instances of more than ten hours at a time.
Petitioners' counsel also billed 15.40 hours spent traveling at a full hourly rate.
Like attorneys' fees, a request for reimbursement of costs must be reasonable. Perreira, 27 Fed. Cl. 29, 34. Petitioners request a total of $25,262.61 in reimbursement for expenses incurred by their counsel. The majority of these expenses are related to expert fees and costs, collecting medical records, filing the claim, and travel expenses incurred by petitioners' counsel and expert. See generally Status Report, Exhibit A at 11-17; see also Am. Mot., Exhibit D at 3. I have reviewed the submitted costs and find them overall to be reasonable, with some exceptions.
In their original motion, petitioners requested reimbursement for their counsel's travel expenses, including flights to and from Washington, D.C. and New York, hotel expenses, and various other travel-related expenses, but they did not submit any supporting documentation for these expenses. I asked petitioners to file any receipts or invoices that documented their travel expenses, and many of the requested invoices were included in their amended motion, but several of the documents were simply counsel's bank statements confirming that she did in fact pay the amount she stated. Other special masters have declined to compensate for costs that were not adequately documented. See Sabella, 86 Fed. Cl. 201 at *225-26; Brown v. Sec'y of Health & Human Servs., No. 09-426V, 2012 WL 952263 (Feb. 29, 2012); Stone v. Sec'y of Health & Human Servs., No. 04-1041V, 2010 WL 3790297 (Sep. 9, 2010). I will reimburse the requested expenses for this motion, but counsel is cautioned that I will not reimburse expenses without adequate supporting documentation in the future.
Petitioners requested compensation for their counsel's travel expenses on three separate trips. Petitioners first requested reimbursement for their counsel's airfare to New York on August 28, 2015, as well as airport parking and a rental car. Petitioners have provided no additional information regarding this trip in any of their filings, but I assume counsel was visiting her clients and I will thus reimburse the expenses related to this trip. Petitioners' counsel is advised that she should provide details regarding the purpose of her travel in future motions, so as to expedite the review of her submitted expenses.
Petitioners also requested compensation for their counsel's airfare, hotel expenses, meals, baggage fees, and ground transportation from September 16-17, 2015, in relation to the hearing held on September 17, 2015, in Washington, D.C. There was some confusion regarding the dates of her stay and the specific hotel in which she stayed, which was not clarified even after I provided petitioners' counsel the opportunity to file an amended motion. I directed counsel to submit the actual invoices from her hotel stays, and she was finally able to produce an invoice from the Sofitel in her subsequent status report. See Status Report, Exhibit B. In that status report, petitioners' counsel also identified $83.48 in unrelated charges she incurred for snacks and movies during her stay at the Sofitel. Id. at 2. She withdrew those charges from her request and submitted an updated billing log reflecting that change. Id. at Exhibit A. Petitioners' counsel further explained that she reserved the hotel room through September 19, 2015, but changed her reservation to end early, on September 17, 2015, because the hearing concluded after one day instead of continuing into a second day as anticipated. Id. at 3. She incurred no charge for re-booking her flight, but the hotel charged $275.00 for the change in her reservation. Id. As this is less than the $495.00 charged for each night at the hotel, I will award these expenses.
In both their original and amended motions, petitioners requested reimbursement of their counsel's travel expenses related to a trip to Washington, D.C. from September 22-25, 2015, five days after the conclusion of the hearing. Petitioners requested reimbursement for $1,130.20 in round-trip airfare and $1,312.91
I have reviewed the remainder of counsel's submitted travel expenses and find them to be reasonable. I will thus award them in full.
In addition to their counsel's travel expenses, petitioners also requested reimbursement for travel expenses incurred by their expert. In their original motion, petitioners requested compensation for their expert's travel expenses totaling $3,814.78, with no further explanation of the specific expenses incurred. Motion, Exhibit A at 16. I asked petitioners to file invoices and receipts that detailed the expenses incurred. In their amended motion, the amount requested increased to $6,182.50,
Petitioners also requested reimbursement for the "re-booking" of their expert's flight, which was an additional $1,015.00 charge. Am. Motion at 2; Am. Motion, Exhibit B at 4. Like their counsel, petitioners' expert also changed his travel arrangements when the hearing concluded after only one day. Status Report at 3. However, after reviewing the invoice, it appears that petitioners' expert simply booked another flight with a fare of $1,015.00, which was charged in addition to the original and un-refunded $3,814.78 round-trip airfare. See Am. Motion, Exhibit B at 8. As this seems like an excessive expense on its face and petitioners have not provided an explanation for charging a third flight in addition to the round-trip airfare for which they are also requesting reimbursement, I will not award reimbursement for this flight,
Petitioners also requested compensation for $630.00 for their own stay in a short-term apartment rental for three nights during the hearing. Motion, Exhibit C at 1-4. I have reviewed the invoice submitted with this request and find it reasonable. I will thus award petitioners' out-of-pocket expenses in full.
Based on the foregoing, I find that petitioner is entitled to a reimbursement of attorneys' fees and costs as follows:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court
