Judges: Laura D. Millman
Filed: Oct. 02, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-254V Filed: September 7, 2018 Not for Publication ************************************* MARK MILES, Legal Representative of * a Minor Child, J.M., * * Interim attorneys’ fees and costs * decision; respondent defers to Petitioner, * Special Master’s discretion v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* John F. McHugh, New York, NY, for petitioner. Darryl R.
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-254V Filed: September 7, 2018 Not for Publication ************************************* MARK MILES, Legal Representative of * a Minor Child, J.M., * * Interim attorneys’ fees and costs * decision; respondent defers to Petitioner, * Special Master’s discretion v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* John F. McHugh, New York, NY, for petitioner. Darryl R. ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-254V
Filed: September 7, 2018
Not for Publication
*************************************
MARK MILES, Legal Representative of *
a Minor Child, J.M., *
* Interim attorneys’ fees and costs
* decision; respondent defers to
Petitioner, * Special Master’s discretion
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
John F. McHugh, New York, NY, for petitioner.
Darryl R. Wishard, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On August 21, 2018, petitioner filed an Application for Interim Fees and Expenses,
requesting $152,793.63 in interim attorneys’ fees incurred by Mr. John F. McHugh, $23,916.50
in interim attorneys’ fees incurred by Ms. Helen Sturm, $7,429.55 in attorneys’ interim costs,
$4,092.57 in petitioner’s personal costs, and a $29,775.00 unpaid balance of expert’s fees and
costs incurred by Dr. Joseph A. Bellanti.
On August 22, 2018, respondent filed his response.
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Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
For the reasons set forth below, the undersigned awards petitioner $134,334.53 in interim
attorneys’ fees incurred by Mr. McHugh, $21,154.00 in interim attorneys’ fees incurred by Ms.
Sturm, $7,429.55 in attorneys’ interim costs, $26,130.00 in expert’s fees and costs incurred by
Dr. Bellanti, and $4,092.57 in petitioner’s personal costs.
PROCEDURAL HISTORY
On April 18, 2012, petitioner Mark Miles filed a petition on behalf of his son, J.M., under
the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) (“Vaccine Act”).
Petitioner alleged that the influenza (“flu”) vaccine his son received on October 1, 2009 triggered
a sudden relapse of his nephrotic syndrome. Pet. Preamble and ¶ 2.
On August 30, 2017, petitioner filed an application for attorney’s [sic] interim costs. On
October 4, 2017, the undersigned issued a decision awarding petitioner $58,144.84 for attorneys’
interim costs and $21,216.65 for petitioner’s personal costs.
On October 17 and 18, 2017, the undersigned held an entitlement hearing.
On June 28, 2018, the undersigned dismissed the petition.
On July 30, 2018, petitioner filed a motion for review. The case was assigned to Senior
Judge Loren A. Smith.
On August 21, 2018, petitioner filed an Application for Interim Fees and Expenses.
Respondent filed his response to petitioner’s motion on August 22, 2018. Respondent
did not raise any specific objections to petitioner’s fee application in his response to petitioner’s
Application for Interim Fees and Expenses. Instead, respondent said he “defers to the
[undersigned] to determine whether the statutory requirements for an award of attorneys’ fees
and costs (including the reasonable basis requirement) are met in this case.” Resp. at 2.
DISCUSSION
I. Entitlement to Fees and Costs Under the Vaccine Act
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). The Federal Circuit ruled that interim fee awards are permissible
under the Vaccine Act in Avera v. Secretary of Health and Human Services, 515 F.3d 1343,
1352 (Fed. Cir. 2008). The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS,
27 Fed. Cl. 29, 34
(1992), aff’d,
33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS,
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F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”).
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II. Reasonableness of Interim Attorneys’ Fees
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.” Avera, 515
F.3d 1343, 1348. This rate is based on “the forum rate for the District of Columbia” rather than
“the rate in the geographic area of the practice of petitioner’s attorney.” Rodriguez v. Sec’y of
HHS,
632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing
Avera, 515 F.3d at 1349). For cases in
which forum rates apply, McCulloch provides the framework for determining the appropriate
hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch
v.Sec’y of HHS, No. 09-293V,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include
in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of HHS,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart,
461 U.S. 424,
434 (1983)). Counsel must submit fee requests that include contemporaneous and specific
billing entries indicating the task performed, the number of hours expended on the task, and who
performed the task. See Savin v. Sec’y of HHS,
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 [her]
experience and judgment, [is] reasonable for the work done.”
Id. 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 HHS,
102 Fed. Cl. 719, 729 (Fed. Cl. 2011).
1. Reasonable Hourly Rates
Petitioner requests the following hourly rates:
2013 2014 2015 2016 2017 2018
John F. McHugh N/A $420 $425 $430 $435 $440
Helen Sturm $415 $420 N/A N/A N/A N/A
Paralegal N/A N/A N/A N/A $125 N/A
While Mr. McHugh and Ms. Sturm are located in New York City, they are entitled to
forum rates. Rodriguez v. Sec’y of HHS, 91 Fed. Cl. 453, 479 (2010), aff’d,
632 F.3d 1381
(Fed. Cir. 2011) (affirming the Special Master’s decision of rejecting Mr. McHugh’s requested
New York City hourly rate in favor of the Washington D.C. “forum rate.”). The undersigned
finds petitioner’s requested hourly rates for Mr. McHugh and Ms. Sturm excessive.
The following factors are paramount in deciding a reasonable forum hourly rate:
experience in the Vaccine Program, overall legal experience, the quality of work performed, and
the reputation in the legal community and community at large. McCulloch v. Sec’y of HHS,
No. 09-293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). McCulloch
suggests the range of $350.00 to $425.00 an hour for attorneys with more than 20 years of
experience is a reasonable forum rate.
Id. at *19. Applying that standard, McCulloch awarded
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hourly rates for two of the most experienced attorneys who practice in the Vaccine Program, of
$415/hour and $400/hour, respectively, for work performed in 2014 and 2015. Mr. McHugh
has a level of experience that is similar to the two lawyers in McCulloch.
In Mostovoy, Chief Special Master Dorsey determined Mr. McHugh was entitled to
hourly rates of $330.00 in 2009, $340.00 in 2011, $345.00 in 2012, $350.00 in 2013, and
$400.00 in 2014. Mostovoy v. Sec’y of HHS, No. 02-10V, 2016 WL 720969, at *4 (Fed. Cl.
Spec. Mstr. Feb. 4, 2016). In Hirmiz, a former Special Master reviewed the hourly rates
awarded for Mr. McHugh’s work in Mostovoy and determined that Mr. McHugh was entitled to
hourly rates of $400.00 in 2015 and $415.00 in 2016 because “there is no evidence . . .
suggesting that Mr. McHugh’s level of experience and competence is somehow significantly
greater than what has been previously recognized in Mostovoy.” Hirmiz v. Sec’y of HHS, No.
06-371V,
2017 WL 4277433, at *5 (Fed. Cl. Spec. Mstr. Aug. 29, 2017).
The undersigned finds that the analysis of Mr. McHugh’s hourly rates in Hirmiz is
persuasive. Therefore, in consideration of Mr. McHugh’s skill, experience, reputation, and
quality of work, the undersigned finds that the appropriate hourly rate for Mr. McHugh’s work
performed in 2014 and 2015 is $400.00, in 2016 is $415.00, in 2017 is $430.00, and in 2018 is
$435.00. Based on the same standard, the undersigned finds that the appropriate hourly rate for
Ms. Sturm’s work performed in 2013 is $350.00 and in 2014 is $385.00.2 As Mr. McHugh
billed 19.50 hours of time for work on the case in 2014 at a rate of $420.00, 53.00 hours in 2015
at a rate of $425.00, 56.20 hours in 2016 at a rate of $430.00, 198.30 hours in 2017 at a rate of
$435.00, and 25.22 hours in 2018 at a rate of $440.00, and Ms. Sturm billed 21.50 hours in 2013
at a rate of $415.00 and 35.70 hours in 2014 at a rate of $420.00, the undersigned reduces
petitioner’s interim attorneys’ fees for Mr. McHugh’s work by $3,675.60 and for Ms.
Sturm’s work by $2,647.00.
The undersigned finds petitioner’s requested hourly rates for Mr. McHugh’s paralegal
reasonable.
2. Reduction of Billable Hours
a. Vague Entries and Research
The undersigned has previously decreased an award of attorneys’ fees for vagueness.
Barry v. Sec’y of HHS, 12-39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016)
(reduced a fee award by 10 percent due to vague billing entries). An application for fees and
costs must sufficiently detail and explain the time billed so that a special master may determine,
from the application and the case file whether the amount requested is reasonable. Bell v. Sec’y
of HHS, 18 Cl.Ct. 751, 760 (1989); Rodriguez v. Sec’y of HHS,
2009 WL 2568468 (Fed. Cl.
Spec. Mstr. June 27, 2009).
2
According to Ms. Sturm’s resume, she was admitted to New York Bar in 1977. Doc 136-2, at 2.
Thus, she had 36 years of experience in 2013 and 37 years of experience in 2014.
4
Mr. McHugh billed 1 hour in 2015 for time spent researching “articles needed” and 2
hours in 2017 for “researching re: client’s concern.” Doc 136-3, at 3, 11 (entries dated:
1/21/2015 and 10/27/2017). Without additional information about what Mr. McHugh was
researching, these hours are not compensable. If Mr. McHugh’s research was for medical
articles, it is unreasonable since petitioner hired medical experts. Therefore, the undersigned
finds the 3 hours of research is not compensable and the nonpayment results in a deduction of
$1,260.00.
b. Excessive Billing
Special masters have previously reduced the fees paid to petitioners due to excessive and
duplicative billing. See Ericzon v. Sec’y of HHS, No. 10-103V, 2016 WL 447770 (Fed. Cl.
Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and
duplicative billing); Raymo v. Sec’y of HHS, No. 11-654V,
2016 WL 7212323 (Fed. Cl. Spec.
Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied,
129 Fed. Cl.
691 (2016). Special masters have previously noted the inefficiency that results when cases are
staffed by multiple individuals and have reduced fees accordingly. See
Sabella, 86 Fed. Cl. at
209.
Mr. McHugh billed a combined 91.45 hours for drafting and editing petitioner’s 47-page
post-hearing brief. Doc 136-3, at 11-13. The undersigned finds a total of 60 hours for Mr.
McHugh’s work reasonable. This adjustment results in a further deduction of $13,523.50.
c. Duplicative Billing
The undersigned has previously found it reasonable to reduce the fees paid to petitioners
due to duplicative billing and billing for intra-office communication. Soto v. Sec’y of HHS, No.
09-897V, 2011 WL 2269423, at *6 (Fed. Cl. Spec. Mstr. June 7, 2011); Carcamo v. Sec’y of
HHS, No. 97-483V,
2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May 20, 2011). Special
masters have previously noted the inefficiency that results when cases are staffed by multiple
individuals and have reduced fees accordingly. Sabella v. Sec’y of HHS,
86 Fed. Cl. 201, 209
(2009).
After reviewing the billing records, the undersigned finds that Mr. McHugh and Ms. Sturm
included an entry that is duplicative due to both attorneys billing for a conference with petitioner
on June 25, 2014. Doc. 136-3, at 1 and Doc. 136-4, at 2. The undersigned recognizes the time
Mr. McHugh spent on the conference. This adjustment results in a deduction of $115.50 for Ms.
Sturm’s work.
Therefore, the total amount of attorneys’ fees billed by Mr. McHugh is reduced by
$18,459.10 and $134,334.53 is awarded. The amount of attorneys’ fees billed by Ms. Sturm is
reduced by $2,762.50 and $21,154.00 is awarded.
5
III. Reasonableness of Requested Attorneys’ and Petitioner’s Personal Costs
Petitioner requests $7,429.55 in attorneys’ interim costs, $4,092.57 in petitioner’s personal
costs, and a $29,775.00 unpaid balance of expert’s fees and costs incurred by Dr. Joseph A.
Bellanti. Attorneys’ costs must be reasonable. See Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(Fed. Cl. 1992) (“The conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the
word ‘reasonable’ necessarily modifies both. Not only must any request for reimbursement of
attorneys’ fees be reasonable, so also must any request for reimbursement of costs.”). The
undersigned finds the majority of petitioner’s attorneys’ and personal costs request reasonable.
However, the rates requested for petitioner’s immunological expert Dr. Bellanti are excessive.
Petitioner asks for a $29,775.00 balance for Dr. Bellanti’s expert fees and costs of
$34,775.00. Doc 136-7, at 2. Dr. Bellanti expended a total of 69.55 hours from August 11,
2013 to December 14, 2017 on the case and charged an hourly rate of $500.00. Id. The
undersigned finds the hourly rate requested for Dr. Bellanti is excessive.
1. Hourly Rate
In her Decision of October 4, 2017, the undersigned compensated Dr. Bellanti at an
hourly rate of $400.00 for his work performed in 2014. The undersigned finds the appropriate
hourly rate for Dr. Bellanti’s work performed in 2013 is $400.00 and in 2017 is $500.00.
Because Dr. Bellanti billed a total of 33.25 hours in 2013 at an hourly rate of $500.00, the
undersigned reduces Dr. Bellanti’s expert fees and costs by $3,325.00.
2. Received Expert Fees
According to Dr. Bellanti’s invoice, he received $5,000.00 from petitioner’s attorney.
Id. It left petitioner a $29,775.00 balance of expert’s fees and costs. However, in her Decision
of October 4, 2017, the undersigned awarded Dr. Bellanti $5,320.00 rather than $5,000.00. This
adjustment results in a further deduction of $320.00. Therefore, the undersigned awards a
balance of $26,130.00 for Dr. Bellanti’s expert fees and costs.
The undersigned does not have any problem with the other petitioner’s attorneys’ and
personal expenses.
CONCLUSION
The undersigned finds an award of interim attorneys’ fees and costs appropriate. She also
finds that the majority of the amount petitioner asks for in his application for interim fees and
expenses is reasonable. Accordingly, the court awards:
a. $155,488.53, representing interim attorneys’ fees. The award shall be in the form of
a check made payable jointly to petitioner and Law Office of John McHugh in the
amount of $155,488.53;
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b. $7,429.55, representing attorneys’ interim costs. The award shall be in the form of a
check made payable jointly to petitioner and Law Office of John McHugh in the
amount of $7,429.55;
c. $26,130.00, representing an unpaid balance of expert’s fees and costs incurred by Dr.
Joseph A. Bellanti. The award shall be in the form of a check made payable jointly to
petitioner and Law Office of John McHugh in the amount of $26,130.00; and
d. $4,092.57, representing petitioner’s personal costs. The award shall be in the form of
a check made payable to petitioner in the amount of $4,092.57.
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.3
IT IS SO ORDERED.
Dated: September 7, 2018 /s/ Laura D. Millman
Laura D. Millman
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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