BRIAN H. CORCORAN, Special Master.
On September 16, 2016, Lloyd Makstell and Nadine Makstell Whitsett filed a petition on behalf of Edward Makstell, deceased, seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").
Petitioners have now filed a motion requesting final attorney's fees and costs, dated July 31, 2018 (ECF No. 31 ("Fees App.")), requesting reimbursement in the total amount of $44,529.48 (representing $43,054.68 in attorney's fees, plus $1,474.80 in costs). Fees App. at 2. Respondent reacted to the motion on July 31, 2018, indicating that he believes Petitioners have satisfied the statutory requirements for an award of attorney's fees and costs and deferring to my discretion to determine the amount to be awarded. Resp. Fees. App. at 2-3, ECF No. 32. Petitioners filed no reply.
For the reasons set forth below, I hereby
Petitioners' attorneys, Ms. Barbara Bonar and Mr. Otwell Rankin, began working on this matter on January 22, 2015, nearly twenty-one months before litigation formally commenced. Fees App. Ex. 1 at 1, ECF No. 31-1. Both attorneys spent many hours reviewing medical records, communicating with Petitioners, and preparing materials for the initial filing. See generally id. at 1-4. Petitioners filed their initial claim on September 16, 2016, accompanied by extensive medical records and other documentation. See generally Pet., ECF No. 1. The Joint Statement of Completion was submitted on December 12, 2016. ECF No. 10. The parties thereafter engaged in settlement negotiations throughout early 2017, and Respondent filed its Rule 4(c) Report on July 28, 2017. ECF No. 18. By early 2018, the parties had reached a settlement agreement. See generally Stipulation, ECF No. 25.
Vaccine Program attorneys are entitled to a fees award in successful cases such as this one. § 15(e)(1); Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Determining the appropriate award amount requires the special master to calculate a base figure using the lodestar method, i.e., "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). In arriving at this number, the special master may adjust the number of hours reasonably expended on the basis of certain specific findings. McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *5 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (citing Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991)). This standard for calculating a fee award is applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).
An attorney's reasonable hourly rate is more precisely understood to be the "prevailing market rate" in the appropriate forum. Avera, 515 F.3d at 1348. That rate is in turn determined by the "forum rule," which bases the award on rates paid to similarly qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Id. However, when the majority of counsel's work is done outside the forum jurisdiction and when counsel's local rate would be "substantially lower" than District of Columbia rates, a local rate may be used instead. Id. at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Petitioners have requested compensation for their counsel at the following rates, which they assert are appropriate in light of Ms. Bonar and Mr. Rankin's respective years of experience:
Fees App. at 4. The majority of Ms. Bonar and Mr. Rankin's work in this case was done outside the District of Columbia. See id. at 3. Their offices are located in the Cincinnati, Ohio metropolitan area. Id. Accordingly, it is appropriate to compare Cincinnati rates and District of Columbia rates to ascertain whether the two differ significantly. See Avera, 515 F.3d at 1349.
Special Masters Gowen and Roth addressed reasonable hourly rates for Ms. Bonar and Mr. Rankin in Jones v. Sec'y of Health & Human Servs., No. 09-293V, 2016 WL 7233938 (Fed. Cl. Spec. Mstr. Nov. 18, 2016) and Windhorst v. Sec'y of Health & Human Servs., 2017 WL 4768125 (Fed. Cl. Spec. Mstr. Sept. 27, 2017), respectively. In those cases, as here, the majority of Ms. Bonar and Mr. Rankin's work was performed in the Cincinnati metropolitan area. Jones, 2016 WL 7233938, at *2; Windhorst, 2017 WL 4768125, at *2. To determine whether Cincinnati rates differed significantly from District of Columbia rates, Special Masters Gowen and Roth looked to the "Rubin Committee" rates, an index of attorney's fee rates often used in Cincinnati-area attorney's fee calculations. Jones, 2016 WL 7233938, at *3; Windhorst, 2017 WL 4768125, at *2.
The Rubin Committee rates were set in 1983 when, "in response to the growing number of statutes that required the trial court to determine a reasonable fee to award the prevailing party, former Chief Judge Carl Rubin of the Southern District of Ohio formed a committee to determine a reasonable fee for attorneys in the Cincinnati area." Kindel v. Cont'l Cas. Co., No. 1:02CV879, 2005 WL 1241975, at *4 (S.D. Ohio May 25, 2005). The rates are increased by 4 percent annually for cost of living, Jones, 2016 WL 7233938, at *3, and decisions from the Southern District of Ohio continue to reference the adjusted rates when determining appropriate attorney's fee awards. See, e.g., Concepta Bus. Sols., LLC v. Cogent Analytics, LLC, No. 1:16-cv-438, 2017 WL 1881341, *10 (S.D. Ohio May 9, 2017); Vigna v. Emery Fed. Credit Union, No. 1:15-cv-51, 2016 WL 7034237, *5 (S.D. Ohio Dec. 2, 2016). Adjusted for cost of living, the Rubin Committee rates for 2015-18 are:
Gutter Topper, Ltd. v. Sigman & Sigman Gutters, Inc., No. 1:05-CV-149, 2015 WL 5016503, at *4 (S.D. Ohio Aug. 25, 2015).
Ms. Bonar was first admitted to the bar in 1984, giving her thirty-four years of experience. Fees App. at 4. She thus falls in the "20+ years of experience" category. Mr. Rankin began practicing law in 2009, meaning he has nine years of experience, and therefore falls in the "6-10 years of experience" category. Id. However, as indicated by Special Master Gowen, Rubin Committee rates should be reduced by 18.3 percent in Program cases in order to eliminate the risk premium.
As indicated by Special Masters Gowen and Roth, these rates are not substantially different from the District of Columbia rates enumerated in McCulloch and subsequently embraced by the Office of Special Masters.
Applying forum ranges and adhering to the rates set out for Ms. Bonar and Mr. Rankin in Jones and Windhorst, I will employ the following rates:
After determining appropriate hourly rates, special masters must consider the reasonableness of the total hours expended. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 205-06 (2009). This reasonableness inquiry involves consideration of the work performed on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is evident. Hensley, 461 U.S. at 434, 437. Pursuant to their skill and experience, special masters may modify the hours expended in the lodestar calculation as they see fit. McCulloch, 2015 WL 5634323, at *5 (citing Wasson, 24 Cl. Ct. at 484). They need not engage in a line-by-line analysis of billing records when determining whether an overall hour reduction is proper. Id. Indeed, when appropriate, special masters may reduce attorneys' hours by a percentage rather than proceeding line by line. Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 702 (2016). The Court of Federal Claims has indicated that "percentage reductions `are subject to heightened scrutiny'" and that special masters employing them "must provide a `concise but clear' explanation as to why the fee reduction is justified." Id. (citations omitted).
Upon review of Petitioners' counsel's billing statements, I will reduce their total enumerated hours on the basis of certain billing log entries containing activities that should have been billed at lower rates or should not have been billed at all. As discussed in greater detail below, I have chosen to employ a percentage reduction because bulk billing log entries make it impossible to determine precisely how much time should have been billed at a lower rate or not billed at all.
First, I note that time spent traveling is generally compensated at one-half of the attorney's hourly rate. Scott v. Sec'y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (citations omitted). Petitioners' counsel's billing records, however, reflect that Mr. Rankin billed full hourly rates for round-trip travel to Cincinnati, Ohio, on two occasions. Fees App. Ex. 1 at 3, 7. These entries both lump the travel time in with other activity, id., so it cannot be said exactly how many hours should be billed at a reduced rate. See, e.g., id. at 3 ("Traveled to 1050 Mehring Way; met with Nadine Whitsett (Injured's daughter); returned from 1050 Mehring Way, Cincinnati, OH—2.50 hours"). While special masters routinely halve the rate for improperly-billed travel time, see, e.g., McCulloch, 2015 WL 5634323, at *26, I am unable to do so here, because Mr. Rankin did not indicate how much time out of each of these entries was spent in transit.
Second, work that could be done by a paralegal, such as organizing exhibits, should be billed at an appropriate paralegal rate.
Finally, work that is clerical or secretarial in nature, such as arranging meetings, should not be billed at all. Mostovoy, 2016 WL 720969, at *5. Yet several of the entries in counsel's billing log are of such an administrative nature. See, e.g., Fees App. Ex. 1 at 6 ("Receipt and review Non-PDF Scheduling Order re: Status Conference held on May 2, 2017, calendar dates—0.20 hours"), 7 ("Emailed Nadine to schedule time to meet at her office—0.10 hours"). Because several of these entries also include a combination of attorney work and clerical work, I will not strike specific time entries altogether, but rather factor them in when determining an overall hour reduction.
Upon consideration of the travel and the paralegal-level and clerical work scattered throughout Petitioners' counsel's billing logs, I will reduce the overall hours total by 10%. As a result, the final attorney's fees award shall be
Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Reasonable costs include, for example, expenses incurred to obtain medical records and expert reports, as well as filing fees, postage, and photocopying. See, e.g., Sabella, 86 Fed. Cl. at 224. Petitioners may fail to carry their burden of demonstrating that requested costs are reasonable if they do not provide appropriate documentation to substantiate a requested cost. See Gardner-Cook v. Sec'y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). In such instances, special masters have refrained from awarding compensation. See, e.g., id.
Petitioners request $1,474.80 in costs associated with this matter. Fees App. at 7. The requested costs are for obtaining medical records, photocopies, and the filing fee in this matter. Fees App. Ex. 1 at 10-11. However, although counsel has recorded these costs as part of a larger invoice, documentation was provided for only four of the twenty-one requested line item expenses. See Substantiating Documents for Costs, filed Sept. 11, 2018, ECF No. 33. Specifically, Petitioner's counsel provided substantiation for the cost of obtaining copies of medical records on August 9, 2016 ($17.80, Ex. 8) and September 1, 2016 ($106.85, Ex. 9); the filing fee ($400.00, Ex. 10); and the postage receipt for mailing a copy of the petition to Respondent ($17.45, Ex. 11). While I find the substantiated costs to be reasonable, I cannot determine the reasonableness of all other requested costs without proper documentation. Accordingly, Petitioners shall receive
The Vaccine Act permits an award of reasonable attorney's fees and costs. § 15(e). Accordingly, I award a total of
Subtotal for Mr. Rankin: $23,830.16
