NORA BETH DORSEY, Chief Special Master.
On November 2, 2015, Lori McNeal ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On February 9, 2017, petitioner filed a motion for attorneys' fees and costs. Petitioner's Motion for Attorneys' Fees and Costs ("Pet. Motion") (ECF No. 28). Petitioner requests attorneys' fees in the amount of $11,177.50 and attorneys' costs in the amount of $632.03, for a total amount of $11,809.53. Pet. Motion, Tab A. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Pet. Motion, Tab G.
On February 10, 2017, respondent filed a response stating respondent has no objection to petitioner's motion. (ECF No. 29). Respondent cautions, however, that his lack of objection "should not be construed as admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs." Id. Petitioner has not filed a reply.
Since petitioner was awarded compensation for her injury, she is entitled to an award of
Although not explicitly stated in the statute, the requirement that only reasonable amounts be awarded applies to costs as well as fees. See Perriera v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable expert costs are calculated using the same lodestar method as is used when calculating attorneys' fees. Masias v. Sec'y of Health & Human Servs., No. 99-697V, 2009 WL 1838979, at *37 (Fed. Cl. Spec. Mstr. June 12, 2009).
Special masters have "wide latitude in determining the reasonableness of both attorneys' fees and costs." Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). They are entitled to rely on their prior experience and, based on experience and judgment, may reduce the number of hours to an amount reasonable for the work performed. Saxton, 3 F.3d at 1521. A line-by-line evaluation of the billing records is not required. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991) aff'd in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).
The petitioner "bears the burden of establishing the hours expended, the rates charged, and the expenses incurred." Wasson, 24 Cl. Ct. at 484. She "should present adequate proof [of the attorneys' fees and costs sought] at the time of the submission." Id. at 484 n.1. Petitioner's counsel "should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley v. Eckhart, 461 U.S. 424, 434 (1983).
Petitioner seeks attorneys' fees in the amount of $11,177.50 which reflects the following hourly rates:
These rates are within the ranges of forum rates in the schedules found on the court's website
Several of my colleagues, however, recently determined that attorneys at Mr. Gage's law firm in Cheyenne, Wyoming, are not entitled to forum rates. See Henderson v. Sec'y of Health & Human Servs., No. 14-1082V, 2017 WL 2628170 (Fed. Cl. Spec. Mstr. May 25, 2017); Auch v. Sec'y of Health & Human Servs., No. 12-0673V, 2017 WL 1718783 (Fed. Cl. Spec. Mstr. Apr. 5, 2017); Onikama v. Sec'y of Health & Human Servs., No. 15-1348V, 2017 WL 1718798 (Fed. Cl. Spec. Mstr. Apr. 3, 2017). The undersigned fully agrees with the reasoning set forth in these decisions.
Adopting the rates set for work performed by Mr. Gage in 2014-17 by Special Master Roth in Henderson, the undersigned finds petitioner should be awarded attorneys' fees for work performed by Mr. Gage at the following hourly rates: $300 for 2014-15, $311 for 2016, and $318 for 2017. 2017 WL 2628170, at *3. As in Henderson, Mr. Gage's hourly rate for 2016 is determined by increasing his 2014-15 rate by the 3.7% inflation rate utilized in McCulloch and for 2017 by increasing his 2016 rate by the increase in PPI-OL (the same method used to increase the ranges found on the court's website for 2017). See id., at *3, 3 n.7; see also McCulloch, 2015 WL 5634323, at *16; Office of Special Masters Attorneys' Forum Hourly Rate Fee Schedule: 2017 at 1-2, nn.3-4 which can be found at
The undersigned also agrees with the reasoning employed by Special Master Roth and another colleague, Special Master Millman, regarding the appropriate hourly rate for Mr. Gerstein. See Henderson, 2017 WL 2628170, at *3; McErlean v. Sec'y of Health & Human Servs., No. 13-543V, 2016 WL 4575583, at *5 (Fed. Cl. Spec. Mstr. July 28, 2016). Although Mr. Gerstein has been licensed for 30 years, he has only been practicing in the Vaccine Program since 2010. Mr. Gage has been practicing in the Vaccine Program for almost 30 years. Thus, Mr. Gerstein's hourly rate should be lower. Based on Mr. Gerstein's level of experience and quality of work in this case, like Special Master Roth in Henderson, the undersigned finds $250 to be an appropriate hourly rate for work performed by Mr. Gerstein in 2015. 2017 WL 2628170, at *3.
None of the decisions cited address the issue of an appropriate hourly rate for work performed by Mr. Mitchell. Like Mr. Gerstein, Mr. Mitchell has significant legal experience but is new to the Vaccine Program. Thus, attorneys' fees should be awarded for his work utilizing the same hourly rates as for Mr. Gerstein. Following the framework employed for increasing Mr. Gage's rate, Mr. Mitchel would be entitled to an hourly rate of $259 for 2016 (reflecting an increase of 3.7%) and of $265 for 2017 (reflecting an increase based on the increase in PPI-OL from 2016 to 2017). All work performed by Mr. Mitchell in this case occurred in 2016. Based on Mr. Mitchell's level of experience and quality of work in this case, the undersigned finds $259 to be an appropriate hourly rate for work performed by Mr. Mitchell in 2016.
In Onikama, Special Master Gowen determined that an hourly rate of $120 was appropriate for work performed by the two more experienced paralegals at Mr. Gage's law firm, Susan McNair and Brian Vance. 2017 WL 1718796, at *13. He set the rate for work performed by Anne Hess, a less experienced paralegal at $100 per hour. Id., at *14. In Henderson, Special Master Roth agreed and awarded the same hourly rates. 2017 WL 2628170, at *3. The undersigned fully agrees with the reasoning set forth in those two decisions and finds $120 to be an appropriate hourly rate for work performed by Ms. McNair and Mr. Vance and $100 to be an appropriate hourly rate for work performed by Ms. Hess in this case.
The undersigned recently awarded attorneys' fees in another SPU case, Kerridge No. 15-852V,
Petitioner has provided receipts which support the costs sought in this case. In the undersigned's experience, these costs appear reasonable. No reduction in costs is warranted.
The undersigned has determined the following hourly rates are appropriate in this case:
Adjusting the rates accordingly results in an overall deduction of
Additionally, the undersigned has determined an overall reduction of 5% in hours billed is warranted. Thus, the amount of attorneys' fees is further reduced by
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). The undersigned awards attorneys' fees in the amount of
The clerk of the court shall enter judgment in accordance herewith.
