Judges: Herbrina Sanders
Filed: Dec. 15, 2020
Latest Update: Dec. 16, 2020
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 17, 2020
* * * * * * * * * * * * * *
PATRICIA KELLEY, *
* No. 18-466V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner;
Christine M. Becer, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On March 30, 2018, Patricia Kelley (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq.
(2012). Petitioner alleged that the influenza vaccine she received on October 5, 2016, caused her
to develop Guillain-Barré syndrome. On February 11, 2020, the parties filed a stipulation, which
the undersigned adopted as her decision awarding compensation on the same day. ECF No. 31.
1
The undersigned intends 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is 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).
On August 10, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 37
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $47,887.22,
representing $43,044.40 in attorneys’ fees and $4,842.82 in attorneys’ costs. Fees App. at 1.
Pursuant to General Order No. 9, Petitioner has indicated that she has not incurred any out of
pocket costs. Id. Respondent responded to the motion on August 24, 2020, stating that Respondent
“is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this
case” and asking the Court to “exercise its discretion and determine a reasonable award for
attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 38. Petitioner filed a reply on August
25, 2020, reiterating her belief that the requested amount for attorneys’ fees and costs is reasonable.
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, 1348 (Fed.
Cir. 2008). This is a two-step process.
Id. First, a court determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’”
Id. at 1347–48 (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 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.”
Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable.
Id.
a. Hourly Rate
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.3
Petitioner requests the following hourly rates for the work of her counsel: for Ms. Leah
Durant, $365.00 per hour for work performed in 2017, $377.00 per hour for work performed in
2018, $380.00 per hour for work performed in 2019, and $395.00 per hour for work performed
in 2020; and for Mr. Michael Milmo, $455.00 per hour for work performed in 2018, $464.00 per
hour for work performed in 2019, and $484.00 per hour for work performed in 2020. These rates
are consistent with what Ms. Durant and Mr. Milmo have previously been awarded for their
Vaccine Program work, and the undersigned finds them to be reasonable herein.
b. Reasonable Number of Hours
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 (quoting Hensley v.
Eckerhart,
461 U.S. 424, 434 (1983)).
Upon review of the submitted billing records, the undersigned finds the majority of the
time billed to be reasonable. However, the undersigned notes a general issue of vagueness in the
description of many of the billing entries, particularly those for communication with petitioner. As
the Federal Circuit has previously ruled, disclosure of the general subject matter of billing
statements does not violate attorney-client privilege and billing entries for communication should
contain some indication as to the nature and purpose of the communication. See Avgoustis v.
Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011). In the instant case, the majority of billing
entries concerning communication do not contain any indication of the topic of that
communication, (e.g., multiple entries billed for 0.4 hours for “client call”) making it difficult for
the undersigned to determine whether such communication was necessary and reasonable.
Also vague are billing entries for review of medical records, where most entries simply
state “evaluate evidence” or “analyze evidence” without any indication of what that evidence is.
This is particularly important where, as here, counsel has retained the services of a professional to
review medical records. A more detailed billing description would help the undersigned to ensure
there was no duplication of efforts in review of medical records.
For these reasons, the undersigned finds that a two percent reduction is appropriate to offset
the noted billing issues. This results in a reduction of $860.88. Petitioner is therefore awarded final
attorneys’ costs of $42,183.52.
c. Attorney 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 $4,842.82 in attorneys’ costs, comprised of acquiring medical records, postage, the
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch,
2015 WL 5634323.
Court’s filing fee, and work performed by Dr. Catherine Shaer for review of medical records. Fees
App. at Ex. 2 at 2. Petitioner has provided adequate documentation of all these expenses and they
appear reasonable for the work performed in this case. Petitioner is therefore awarded the full
amount of costs sought.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
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. Based on the above analysis, the
undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $43,044.40
(Reduction to Fees) - ($860.88)
Total Attorneys’ Fees Awarded $42,183.52
Attorneys’ Costs Requested $4,842.82
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $4,842.82
Total Attorneys’ Fees and Costs $47,026.34
Accordingly, the undersigned awards a lump sum in the amount of $47,026.34,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and Petitioner’s counsel, Ms. Leah Durant.
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.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
