NORA BETH DORSEY, Chief Special Master.
Having resolved this case via stipulation awarding petitioner $150,000.00 for her SIRVA, petitioner's counsel has filed a motion for attorneys' fees and costs which included $43,548.75 in attorneys' fees and cost of $584.86 for a total of $44,097.61. (ECF No. 37). For the reasons discussed below, petitioner's attorneys' fees are reduced to $30,366.25 and petitioner's costs are awarded in the amount requested for a total award of $30,951.11.
On August 22, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,
On July 13, 2017 the parties filed a joint stipulation stating that the petitioner should be awarded $150,000.00. (ECF No. 24). A decision awarding petitioner damages based on the parties' stipulation was issued on July 14, 2017. (ECF No. 25).
On November 1, 2017, petitioner filed a motion for attorneys' fees and costs. (ECF No. 30). On November 8, 2017 petitioner was ordered to file an amended application for fees and costs due to incomplete billing entries and the lack of supporting documentation relating to petitioner's claim for costs. (ECF No. 31). The undersigned also provided guidance to petitioner's counsel for the purpose of promoting the expeditious evaluation of attorney's application, including suggesting that petitioner's counsel review Section X of the Guidelines for Practice Under the National Vaccine Injury Compensation Program. (Id. at 1). The Order set forth specific guidance, including that recovery for time spent researching the Vaccine program is not recoverable, advising against grouping multiple activities into single time entries, and explaining that tasks that can be completed by a paralegal should not be billed at an attorney's rate. (Id. at 1-3). Between December 8, 2017 and January 17, 2018, petitioner filed four motions for extension of time to file her amended motion for attorneys' fees and costs. (ECF Nos. 32-35). On January 31, 2018, petitioner filed the amended motion for attorneys' fees and costs. (ECF No. 37). Petitioner requests attorneys' fees in the amount of $43,548.75 and attorneys' costs in the amount of $548.86. (Id. at 1). In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Thus, the total amount requested is $44,097.61.
Respondent did not file a timely response.
Under the Vaccine Act, the special master shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). Petitioner in this case was awarded compensation; she is therefore 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).
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 (2008). Counsel should not include in their fee requests hours that are "excessive, redundant, or otherwise unnecessary." Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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. at 1522). Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
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 Health & Human Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed. Rodriguez, 2009 WL 2568468, at *8. Block billing, or billing large amounts of time without sufficient detail as to what tasks were performed, is clearly disfavored. See, e.g., Broekelschen v. Sec'y of Health & Human Servs., No. 07-137V, 2008 WL 5456319, at *4-5 (Fed. Cl. Spec. Mstr. Dec. 17, 2008).
In determining a reasonable number of hours expended, a line-by-line evaluation of the fee application is not required. Wasson v. Sec'y of Health & Human Servs., 24 Cl.Ct. 482, 484, aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993). 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, 3 F.3d at 1521.
The undersigned has reviewed the billing records submitted with petitioner's request. Petitioner requests compensation for her attorney, Mr. Fletcher, at a rate of $225.00 per hour for time billed from 2015-2017. Mr. Fletcher graduated from Suffolk University Law School in 2014 and has been practicing in the Commonwealth of Massachusetts since 2014. The undersigned finds the requested rate reasonable.
Mr. Fletcher billed a total of 193.55 hours in this matter. This case was a straight-forward SIRVA case and no hearings were required. In the undersigned's experience, the 193.55 hours billed is unreasonable and excessive and shall be reduced. The undersigned finds it necessary to reduce Mr. Fletcher's requested hours for excessive billing for calls with petitioner, billing at the attorney rate for tasks considered paralegal in nature, time spent on unauthorized tasks, and billing for tasks that are non-compensable.
The undersigned finds that petitioners' award should be reduced for excessive billing for calls with petitioner. Mr. Fletcher billed 46 hours for calls updating or speaking with petitioner, resulting in $10,350.00 in requested fees.
For these reasons the undersigned finds the 46 hours of phone calls excessive and reduces the time billed in regards to phone calls by 20%. This results in a
The undersigned also finds it necessary to reduce Mr. Fletcher's requested hours for time billed on paralegal tasks. Attorneys may be compensated for paralegal-level work, but at a rate that is comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec'y of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec'y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. HHS., 99-382V, 2009 WL 3319818, *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec'y of Health & Human Servs., No. 99-535, 2008 WL 5747914, *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008).
Petitioner requests compensation for 34 hours of work for what is more appropriately categorized as paralegal tasks. For example, On August 28, 2015, Mr. Fletcher billed 1.3 hours for "Sent bills and records requests for all providers. 12 requests total, 6 for records, 6 for bills. Copied to file the 6 requests I mailed. Faxed the other 6 requests and cross checked all fax confirmation sheets to ensure everything went through." (ECF No. 37-1 at 2). On February 8, 2016, Mr. Fletcher billed 1 hour for "Followed up with St. Catherine's to confirm my request received for the bills and records. Asked if they had anesthesia department for separate billing, they confirmed and gave me mailing address and fax. Mailed and faxed request for Anesthesiologist bills." (Id. at 5). On October 18, 2016, Mr. Fletcher billed 1.2 hours for "Forwarded 2 more letters of protection to creditor's of providers." (Id. at 11).
The undersigned also find it necessary to reduce Mr. Fletcher's requested hours for unauthorized time spent with regard to researching and obtaining experts. Petitioner was advised in an October 19, 2016 order not to acquire an expert in this case without prior authorization. (ECF No. 11 at 2). The billing records submitted indicate that between December 20, 2016 and January 16, 2017, Mr. Fletcher billed 14.7 hours for research and communications with Dr. Ianotti for the purpose of retaining Dr. Ianotti as an expert witness.
The undersigned also find it necessary to reduce Mr. Fletcher's requested hours for tasks that are not compensable, including time spent gaining admission to the bar of the U.S. Court of Federal Claims, internal communications partners in Mr. Fletcher's law firm, and duplicative billing entries.
Mr. Fletcher billed 11.7 hours investigating vaccine injuries, researching shoulder injuries related to vaccine administration ("SIRVA"), securing entry to the Federal Bar, and interviewing multiple attorneys for recommendations of good standing.
Mr. Fletcher also requests compensation for internal communications with "partners" that are not compensable. These communications are described as Mr. Fletcher informing "partners" of billing invoice issues and how they affected the case.
Petitioner's billing records also contain several entries that are duplicative, including:
Totaled, together the duplicated entries total 2.8 hours of time and therefore the undersigned will
On November 8, 2017 an order was filed informing Mr. Fletcher that his application for fees and costs contained multiple defects, including incomplete billing records, and missing invoices. (ECF No. 31). The scheduling order also set forth detailed instructions on where to find resources to complete the application for fees, along with guidance for attorneys in the vaccine program. This guidance included, but was not limited to, advising against excessive billing and group billing, requesting fees for administrative tasks, and billing paralegal work at an attorney rate. (Id at 2-3). It was ordered that an amended application for fees and costs, including any necessary revisions, be filed by no later than December 8, 2017. Between December 8, 2017 and January 17, 2018, petitioner filed four motions for extension of time to file her amended motion for attorneys' fees and costs. (ECF No. 32-35).
The amended application for fees and costs did not follow the guidance provided by the scheduling order of November 8, 2018. (ECF No. 31). Therefore, the 11.8 hours of time billed after the November 8, 2018 scheduling order
Petitioner requests reimbursement for attorney costs in the amount of $584.86. After reviewing petitioner's invoices, the undersigned finds no cause to reduce petitioner's' request and awards the full amount of attorney costs sought.
Based on all of the above, the undersigned finds that petitioner's counsel is entitled to reasonable attorneys' fees and costs as follows:
The clerk of the court shall enter judgment in accordance herewith.
