LAURA D. MILLMAN, Special Master.
On September 19, 2012, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2012) alleging that tetanus-diphtheria-acellular pertussis ("Tdap") vaccine he received on October 1, 2009 caused him neurological injury. Pet. at ¶¶ 1, 2.
On December 18, 2012, respondent filed his Rule 4(c) Report conceding entitlement, i.e., that the Tdap vaccine caused petitioner's left brachial neuritis, a Table injury. Respt's Rep. at 6, 7.
On September 24, 2013, the undersigned awarded petitioner and his former counsel Mr. Ronald C. Homer interim attorneys' fees and costs in the amount of $42,170.12. On October 7, 2013, petitioner's motion to substitute attorney Ms. Lisa A. Roquemore in place of Mr. Homer was granted.
The main barrier to settlement was the calculation of petitioner's earning loss. While respondent calculated the lost earnings to be less than $1 million, petitioner calculated his lost earnings to be approximately $11 million based on both his past income and the estimated economic value of two anticipated future business ventures. On May 21, 2015, respondent filed a motion for a ruling on the basis for calculating petitioner's lost earnings award ("motion for calculating lost earnings"). On July 23, 2015, petitioner responded to respondent's motion for calculating lost earnings. On September 17, 2015, the undersigned issued a Ruling on Calculating Wage Loss ("Ruling" or "Ruling of September 17, 2015") against petitioner concluding petitioner's calculation was based on speculation.
On October 16, 2015, petitioner filed a motion for interlocutory review of the undersigned's Ruling. On October 26, 2015, respondent filed his response to the motion for review, contending that petitioner's motion for review was premature since the undersigned had not rendered a decision on compensation.
On February 1, 2016, Senior Judge Eric Bruggink denied petitioner's motion for review concluding the undersigned's Ruling of September 17, 2015 was not a decision on compensation within the meaning of 42 U.S.C. § 300aa-12(d)(3)(A) and a motion for interlocutory review did not trigger the court's jurisdiction under subsection 12(e)(1).
On August 10, 2017, respondent informally requested by e-mail to the undersigned's law clerk that the undersigned issue a ruling on entitlement. The undersigned filed a Ruling on Entitlement and a damages decision that same day.
On August 23, 2017, judgment issued on damages.
On December 22, 2017, petitioner filed a motion for attorneys' fees and costs ("motion"). In his motion, petitioner requests a total of $417,478.53, comprised of (1) $265,954.50 for attorneys' fees and costs incurred by Law Office of Lisa A. Roquemore; (2) a $66,752.79 balance for petitioner's life care planner Ms. Liz Holakiewicz's expert fees and costs of $68,752.79;
On December 27, 2017, respondent filed a response to petitioner's motion explaining he is satisfied that this case meets the statutory requirements for an award of attorneys' fees and costs under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent "respectfully recommends that the [undersigned] exercise her discretion and determine a reasonable award for attorneys' fees and costs."
On March 27, 2018, the undersigned issued a Decision awarding attorneys' fees and costs. On April 11, 2018, petitioner filed a "motion for reconsideration of court's decision awarding attorney's [sic] fees and costs filed March 27, 2018; request for hearing." In the motion for reconsideration, petitioner requested additional attorneys' fees and costs in the amount of $6,983.70 for working on the motion for reconsideration. Thus, the attorneys' fees and costs incurred by Law Office of Lisa A. Roquemore are now $272,938.20.
On April 17, 2018, the undersigned issued an Order granting in part and denying in part petitioner's motion for reconsideration. The undersigned denied petitioner's request for hearing. Based upon the new evidence regarding petitioner's life care planner's hours expended on the case as well as petitioner's explanation of his intransigence, the undersigned vacated the award amount totals in the prior Decision on attorneys' fees and costs. The undersigned increases compensation in this Decision to Ms. Holakievicz by $31,647.44 and to Ms. Roquemore by $6,983.70.
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."
Petitioner requests the following hourly rates:
Because these rates are consistent with the ranges provided in
It is firmly established that billing for clerical and other secretarial work is not permitted in the Vaccine Program.
Ms. Roquemore and her paralegal's billing records contain multiple entries that are best characterized as administrative tasks, such as troubleshooting issues with technology, scheduling telephonic conferences, and downloading and uploading documents. Ms. Roquemore billed a combined 0.5 hours and her paralegal billed a combined 1.1 hours for troubleshooting issues with technology.
Ms. Roquemore billed a total of 13.3 hours for scheduling conferences with the court, petitioner, economist, and life care planner, and her paralegal billed 1.9 hours for scheduling, reviewing, and downloading scheduling orders.
In addition, Ms. Roquemore's paralegal billed a combined 14.3 hours for downloading photos or documents from either a dropbox, petitioner's google account, or the CM/ECF system, converting photos to pdf., uploading a worksheet to the dropbox, and scanning documents.
These types of entries are clerical in nature and do not constitute billable time. Accordingly such entries will be deducted from the fee award, amounting to a
Throughout the billing invoices, Ms. Roquemore billed: (1) 1 hour for researching "Restatement Torts and cases regarding damages;"
Moreover, while petitioner's economist Mr. Brad Johnson billed a total of 55 hours for "lost earnings analysis," Doc. 124-6, at 20-29, Ms. Roquemore billed a combined 20.2 hours for researching the issues of lost wages calculations and career paths before the undersigned issued the Ruling on Calculating Wage Loss.
After the undersigned issued the Ruling of September 17, 2015, petitioner filed a motion for review on October 16, 2015. Senior Judge Bruggink denied the motion for review on February 1, 2016 concluding the undersigned's Ruling was not a decision on compensation within the meaning of 42 U.S.C. § 300aa-12(d)(3)(A) that can be reviewed under subsection 12(e)(1).
Because an interlocutory appeal is not permissible under 42 U.S.C. § 300aa-12(d)(3) when there is no final decision, the undersigned will not compensate petitioner any attorneys' fees and costs associated with the interlocutory appeal since petitioner had no reasonable basis to do so. During a status conference held on October 19, 2015, the undersigned explained the same to Ms. Roquemore and suggested that she should withdraw the appeal. Ms. Roquemore did not withdraw the motion to review. From September 17, 2015 to February 2, 2016, Ms. Roquemore billed a combined 53.9 hours
Special masters have previously reduced the fees paid to petitioners due to excessive and duplicative billing.
After carefully reviewing the billing records, the undersigned finds that counsel billed for an excessive amount of time to complete various tasks. For example, Ms. Roquemore filed a response to respondent's motion for determining lost earnings with supporting documents and she billed: (1) a combined 26.1 hours for drafting, reviewing, and revising the response;
Ms. Roquemore billed a combined 3.9 hours for reviewing the undersigned's Ruling of September 17, 2015 and 3.3 hours for drafting a memorandum of various issues within the Ruling. Doc. 124-2, at 107 and 110. The undersigned finds it should not take an experienced attorney more than 90 minutes to read and analyze a 16-page Ruling. This adjustment results in a
Ms. Roquemore billed 3.9 hours for drafting and revising an 8-page motion for redaction.
From September 18, 2017 to December 22, 2017, Ms. Roquemore billed 14.6 hours and her paralegal billed 35.7 hours for their work on the motion for attorneys' fees and costs. Doc. 124-2, at 182-193. The undersigned finds that 20 hours for the paralegal and 10 hours for Ms. Roquemore are sufficient for the motion for attorneys' fees and costs. This adjustment results in
Thus, the total amount of attorneys' fees for Law Office of Lisa A. Roquemore is reduced by $51,388.00 and $220,602.10 is awarded. The undersigned finds the attorneys' costs reasonable. Therefore, the total amount paid for attorneys' fees and costs incurred by Law Office of Lisa A. Roquemore is
Petitioner requested the reimbursement of fees and expenses for his life care planner, Ms. Liz Holakiewicz, RN. Doc. 124-7, at 4. Fees for experts are subject to the same reasonableness standards as fees for attorneys.
Ms. Holakiewicz requests an hourly rate of $225.00 for work she performed in 2013 and 2014 and an hourly rate of $250.00 for her work performed in 2015, 2016, and 2017 on the case.
Ms. Holakiewicz billed 8.2 hours for performing administrative tasks such as scheduling appointments and telephonic conferences.
Ms. Holakiewicz billed for an excessive amount of time to complete various tasks, including an excessive amount of communication with Ms. Roquemore and others. She billed a combined 13.9 hours for research (mainly is for researching costs of providers' services); 37.7 hours for reviewing medical records; 59.8 hours for correspondence with counsel; 72.1 hours for correspondence with petitioner; 40.1 hours for correspondence with others; 52.6 hours for life care plan preparation; and 8.2 hours for home visit.
The undersigned finds Ms. Holakiewicz's 14.9 hours of traveling in 2013 billed at one-half of her hourly rate
Petitioner's economist Mr. Brad Johnson billed a total of 154.25 hours at an hourly rate of $525.00 for his work on the case from March 2014 to April 2017. The undersigned finds Mr. Johnson's hourly rate and number of hours expended on the case reasonable. Because Mr. Johnson previously received a $15,000.00 retainer and payments of $67,320.00, which are being sought by petitioner as part of his personal costs, the court awards Mr. Johnson
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.
