Judges: Daniel T. Horner
Filed: Dec. 15, 2020
Latest Update: Dec. 16, 2020
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 2, 2020
* * * * * * * * * * * * * * UNPUBLISHED
CORINN McELERNEY, * No. 16-1540V
* Special Master Horner
Petitioners, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioners.
Kyle E. Pozza, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On November 17, 2016, petitioner filed a claim for compensation pursuant to the National
Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). The petition alleged
that petitioner suffered an adverse reaction, including autonomic nervous system dysregulation
and postural orthostatic tachycardia syndrome as a result of her Gardasil Human Papillomavirus
vaccines administered on November 21, 2013, and January 23, 2014, and her flu mist vaccination
administered on October 15, 2014. (ECF No. 1). On July 28, 2020, I issued my decision denying
compensation. (ECF No. 105).
On July 31, 2020, petitioners filed an application for final attorneys’ fees and costs. (ECF
No. 109) (“Fees App.”). Petitioners request total attorneys’ fees and costs in the amount of
1
I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling
will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner
has 14 days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am required to post it on the United States
Court of Federal Claims’ 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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
$57,311.61 (representing $19,910.50 in fees and $37,401.11 in costs). Fees App. at 2.3 Pursuant to
General Order No. 9, petitioner states that she did not personally incur any expenses associated
with this claim. Id. at 5. Respondent responded to the motion on August 12, 2020, stating that
“[s]hould the Special Master be satisfied that the reasonable basis standard is met in this case,
respondent respectfully recommends that the Special Master exercise his discretion and determine
a reasonable award for attorneys’ fees and costs”.4 Resp. at 4 (ECF No. 110). Petitioner did not
file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved 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, 1347 (Fed.
Cir. 2008). This is a two-step process.
Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’”
Id. (quoting Blum v. Stenson,
465 U.S. 886, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings.
Id. at 1348.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs.,
22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs.,
85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’”
Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart,
461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
3
Petitioner was previously awarded interim attorneys’ fees on November 20, 2018. (ECF No. 76).
4
Respondent notes that “[i]n regard to reasonable basis, respondent highlights this Court’s Decision of July
28, 2020, stating that petitioner did not ‘present a reliable medical theory casually connecting petitioner’s
HPV vaccination to autonomic nervous system dysregulation or POTS” and further noting that petitioner’s
expert in this case, Dr. Miglis, presented an identical theory which was rejected as unpersuasive in a similar
case.” Response at 3 n.3 (citing Balasco v. Sec’y of Health & Human Servs., No. 17-215V, 2020 WL
1240917 (Fed. Cl. Spec. Mstr. Feb. 14, 2020). I was the special master who decided the Balasco case, and
although I ruled in Balasco that Dr. Miglis’ opinion did not provide preponderant evidence to support the
petitioner’s claim, I did ultimately award attorneys’ fees and costs. Moreover, this case was filed long before
Balasco was decided. Accordingly, I find that this case maintained reasonable basis throughout its duration.
2
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable.
Id.
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs.,
86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs.,
102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs.,
24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part,
988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.”
Saxton,
3 F.3d at 1521.
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied,
2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.5
Petitioners request compensation for their counsel at the following rates: for Mr. Andrew
Downing, $385.00 per hour for work performed in 2018-2020, and for Ms. Courtney Van Cott,
$205.00 per hour for work performed in 2018-2019, and $275.00 per hour for work performed in
2020. These rates are consistent with what Mr. Downing and Ms. Van Cott have previously been
awarded for their Vaccine Program work, and I find them to be reasonable for the instant case.
b. Hours Expended
Attorneys’ fees are awarded for 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, 3 F.3d at 1521. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V,
2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch,
2015 WL 5634323, at *26.
Upon review of the submitted billing records, I find the majority of the time billed to be
reasonable. The timesheet entries are sufficiently detailed for an assessment to be made of the
entries’ reasonableness. However, a small reduction is necessary due to excessive paralegal time
billed. Paralegals billed time on administrative tasks such as filing documents and handling
5
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
3
payments for medical records. Paralegal time was also excessive for review of filings (e.g., 0.2
hours to review status reports and scheduling orders). These issues have previously been raised
with the Van Cott & Talamante firm. Sheridan v. Sec’y of Health & Human Servs., No. 17-669V,
2019 WL 948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human
Servs., No. 16-538V,
2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Therefore, a
reasonable reduction of $553.50 is being made for excessive billing for paralegal time.
Accordingly, petitioner is awarded final attorneys’ fees of $19,357.00.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $37,401.11 in attorneys’ costs. The majority of this amount is for work performed by
petitioner’s medical experts, Dr. Thomas Zizic and Dr. Mitchell Miglis, with the remainder for
medical records and postage. Fees App. Ex. 1 at 17-18. The costs associated with Dr. Miglis and
for medical records and postage are reasonable and shall be fully reimbursed. The amount
requested for Dr. Zizic’s work requires further discussion.
Dr. Zizic’s billing records reflect that he spent one hour reviewing witness statements in
this case, 30 hours reviewing over 10,000 pages of petitioner’s medical records, and six hours
drafting petitioner’s complete medical history for his report. Fees App. Ex. 1 at 26. However, Dr.
Zizic’s report filed in this case contained no discussion of petitioner’s own medical history and
instead included only a discussion of general medicine related to vaccinations and POTS. Dr. Zizic
offered no conclusion or opinion applying this general medicine to the facts of petitioner’s medical
history and instead deferred to Dr. Miglis for all case specific conclusions. Ex. 81 at 14 (ECF No.
96). Accordingly, the 37 hours devoted by Dr. Zizic to exploring petitioner’s own medical history
were not reasonably billed. Additionally, much of Dr. Zizic’s 14-page report is devoted to simply
summarizing the cited medical literature with minimal additional analysis. Moreover, much of the
cited literature is well-known and has been cited in prior similar cases. Accordingly, it appears that
Dr. Zizic’s additional ten hours of drafting time and 30 hours of research time were excessive and
warrant a further reduction of 25%. In sum, I will reimburse only 38.8 hours out of the 85.8 hours
billed by Dr. Zizic. This results in a reduction of $18,800.00.
Petitioner is therefore awarded final attorneys’ costs of $18,601.11.
II. Conclusion
Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:
Attorneys’ Fees Requested $19,910.50
(Reduction to Fees) - ($553.50)
Total Attorneys’ Fees Awarded $19,357.00
Attorneys’ Costs Requested $37,401.11
4
(Reduction of Costs) - ($18,800.00)
Total Attorneys’ Costs Awarded $18,601.11
Total Attorneys’ Fees and Costs $37,958.11
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs, other
than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the
amount of $37,958.11, representing reimbursement for petitioner’s attorneys’ fees and costs,
in the form of a check payable to petitioner and her attorney, Mr. Andrew Downing.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
6
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
5
