# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 0789 V

Filed: March 4, 2019

UNPUBLISHED

JASON KAHN

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Attorneys’ Fees and Costs

Franklin John Caldwell, Maglio Christopher & Toale, PA, Sarasota, FL , for petitioner.

Sarah Christina Duncan , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On June 13, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq.

, 2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on November 5, 2016. Petition at 1-3. On November 9, 2018, the undersigned issued a decision awarding compensation to petitioner based on the respondent’s proffer

. ECF

No. 54

.

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision 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 Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims'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).2 On January 8, 2019 , petitioner filed a motion f or attorneys’ fees and costs. ECF

No. 59 . Petitioner requests attorneys’ fees in the amount of $ 22,632.50 and attorneys’ costs in the amount of $ 1,338.45

. Id. at 1

. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out

- of -pocket

expenses. Id. at 2. Thus, the total amount requested is $ 23,970.95

.

On February 8, 2019, respondent filed a response to petitioner’s motion. ECF

No. 60

. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is

satisfie d the statutory requirements for an award of attorneys’ fees and costs are met in

this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees

and cos ts.” Id. at 3.

On February 8, 2019, petitioner filed a reply. ECF No. 61

. Petitioner disputes respondent’s position that he has no role in resolving attorneys’ fees and costs and further reiterates his view that his attorneys’ fees and costs in this case are reasonable.

The undersigned has reviewed the billing records submitted with petitioner’s request and finds a reduction in the amount of fees to be awarded appropriate for the

reasons listed below.

I. Legal Standard

The Vaccine Act permits an award of reasonable attorneys’ fees and costs

. § 15(e). 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. Cir. 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). A special master need not engaged in a line

- by

- line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs. , 102 Fed. Cl. 719, 729 (2011).

The p etitioner “bears the burden of establishing the hours expended , the rates charged, and the expenses incu rred.” Wasson v. Sec’y of Health & Human Servs., 24

Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel3 “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley , 461 U.S. , at 434.

II. Attorney Fees

A. Hourly Rates

i. Franklin J. Caldwell

With regard to Mr. Caldwell’s requested hourly rate of $404 for work performed in

2019 , the undersigned finds the proposed rate excessive based on his overall legal experience, the quality of work performed, his experience in the Vaccine Program, and

his reputation in the legal community and the community at large. See McCullo ch v.

Health and Human Services , No. 09

– 293V, 2015 WL 5634323 at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large). The determination of the amount of reasonable attorneys' fees is within the special master's discretion. See, e.g., Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters have “wide latitude in determining the reasonableness of both attorneys’ fees and costs.” Hines v. HHS , 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover, special masters are entitled to rely on their own experience

and understandi ng of the issues raised. Wasson v. HHS , 24 Cl. Ct. 482, 483 (Fed. Cl. 1991), aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam)

. Under the Court’s Fee Schedule, an attorney in the range of 20

- 30 years of experience are entitled to hourly rates between $37 8 - $448 for work performed in 2019

. 3

Mr. Caldwell was awarded a rate of $ 385 per hour for work performed in 2018

. An increa se for 201 9 , based on the Producer Price Index for the “Office of Lawyers” (PPI

- OL), provided by the Department of Labor Bureau of Labor Statistics, would result in a rate of $ 400 per hour, which is a more appropriate rate given the undersigned’s experienc e and analysis of the McCulloch factors as applied to Mr. Caldwell . Therefore, the undersigned reduces the fee request by $ 3.60

.

ii. Anne Toale

Petitioner requests the rates for attorney Anne Toale; $378 for work performed in 2017, $402 for work performed in 2018 . These rates have been previously awarded to Ms. Toale and are awarded herein. For 2019, petitioner is requesting an hourly rate of $420 for work performed by Ms. Toale. The undersigned finds the rate increase

3 The Attorneys’ Fee Schedule for 201 9 is available at http://www.uscfc.uscourts.gov/node/29144 reasonable given the undersigned’s experience and analysis of the McCulloch factors as applied to Ms. Toale and awards the rate in full.

C. Excessive and Duplicative Billing

The undersigned has previously reduced the fees paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs. , No.

10

- 103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health

& Human Servs. , No. 11

- 654V, 2016 W L 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied , 129 Fed. Cl. 691 (2016). The undersigned and other special masters have previously noted the inefficiency that results when cases are staffed by multiple individuals and have reduced fees accordingly. See Sabella , 86 Fed. Cl. at 209.

Billing records show that 4 attorneys and 5 paralegals billed for work on this case, with some billing less than one hour. This resulted in multiple reviews of the same records, orders and updating the same entries on files. For example, the attorney’s and the paralegals list 19 separate entries as reviewing court notifications of filings and updating file entries and deadlines, for a total of 2.6 hours of time. 4 The undersigned reduces the request for attorney’s fees by $ 161.00 5 , the total of the duplicated entries at the paralegal rates.

D. Administrative Time

Upon review of the billing records submitted, it appears that a number of entries

are for tasks co nsidered clerical or administrative. In the Vaccine Program, secretarial

work “should be considered as normal overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S. , 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of

Health & Human Servs. , No. 08

- 579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B] illing for clerical and other secretarial work is not permitted in the Vaccine Program. ” Mostovoy , 2016 WL 720969, at *5 (citing Rochester , 18 Cl. Ct. at 387). A total of 1. 9 hours was billed by paralegals on tasks considered administrative including, receiving documents, forwarding correspondence, reviewing, organizing and

4 Examples these entries include; August 18, 2017 (0.10 hrs KAG ) “ Review and analyze Court order for action needed, update case file”; August 22, 2017 (0.10 hrs ACT) “Review order” ; April 9, 2018 (0.20 hrs

FJC ) “ Receipt and review of scheduling order; review file briefly for completeness” (0.10 hrs JDE )

“ Review and process Scheduling Order from the court. Update case notes and deadlines ”, November 9, 2018 (0.10 hrs MSP) “Review and analyze filed P roffer for action needed, update case file ”, (0. 2 0 hrs

FJC ) “ Receipt and review of filed Proffer and Dec i sion on Entitlement”. ECF No 59

- 1 at 5, 11 and 15

. These entries are mealy examples and not an exhaustive list.

5 This amount consists of ( 0. 60 hrs x $145 = $ 87 ) + ( 0.50 hrs x $148 = $ 74 ) = $ 161.00

.5 finalizing documents. The undersigned reduces the request for attorney fees by $279.10 6 , the total amount of entries considered administrative.

III. Attorney Costs

Petitioner requests reimbursement for attorney costs in the amount of $1, 338.45

. After reviewing petitioner’s invoices, the undersigned finds no cause to reduce petitioner’s’ request and awards the full amount of attorney costs sought.

IV. Conclusion

Based on the reasonableness of petitioner’s request, the undersigned GRANTS

IN PART petitioner’s motion for attorneys’ fees and costs.

Accordingly , the undersigned awards the total of $ 23,527.25 7 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel

Franklin J. Caldwell

. Petitioner requests check be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 3423 6.

The clerk of the court shall enter judgment in accordance herewith. 8

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

6 This amount consists of ( 0.70 hrs x $145 = $101.50) + (1.20 hrs x $148 = $ 177.60 ) = $ 279.10.

7 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses a ll charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would

be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.

, 924 F.2d 1029 (Fed. Cir.1991).

8 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.