# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: November 13, 2020

* * * * * * * * * * * * * *

PATRICIA MOORE on behalf of * her deceased Husband, Dr. Timothy *

Moore

, * No. 1 8

- 1629 V

* Special Master Sanders Petitioner, *

* UNPUBLISHED

v. *

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * *

Andrew D. Downing

, Van Cott & Talamante, PLLC, Phoenix, AZ

, for Petitioner ; Emilie Williams

, United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

On October 23, 2018

, Patricia Moore (“Petitioner”) filed a petition for compensation on behalf of her deceased husband, Dr. Timothy Moore, pursuant to the National V accine Injury Compensation Program. 2 42 U.S.C. §300aa

- 10 et seq. (2012). Petitioner alleged that the influenza

vaccine Dr. Moore received on December 2, 2016 , caused h im to de velop Guillain

- Barré syndrome

. On July 9, 2020, Petitioner filed an unopposed motion for a decision dismissing her

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This

means the R uling 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 ma terial 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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 Vacci ne Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).petition, and on July 16, 2020, the undersigned issued her decision dismissing the petition for

insufficient proof. ECF No. 32.

On July 22

, 2020 , Petitioner filed a motion for attorney s’ fees and costs. ECF No. 34 (“Fees App. ”). Petitioner requests total attorney s’ fee s and costs in the amount of $ 29,498.65 , representing $ 22,154.00 in attorney s’ fees and $ 7,344.65 in attorney s’ costs. Fees App

. at 1. 3 Pursuant to General Order No. 9, Petitioner has indicated that s he has not incurred any o ut of pocket costs

. Id.

at 6. Respondent responded to the motion on N ovember 10 , 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. 3 9

. 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, 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

m ake 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 perfo rmed 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 a t 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 t o prove that the requested hourly rate is reasonable. Id.

a

. Hourly Rate

3 On October 13, 2020, Petitioner filed a supplemental motion for attorneys’ fees and costs, requesting an additional $215.80 in costs which had been inadvertently omitted from the first fees motion. ECF No. 38.

The amounts stated here reflect the total requested by both pending motions.The decision in McCulloch provides a framework for consideration of appropriate ranges

for attorneys’ fees based upon the experience o f 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

. 4

Petitioner requests the following hourly rates for the work of her counsel: for Mr. Andrew Downing, $385.00 per hour for work performed in 201 7

- 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 Progr am work, and the undersigned finds them to be reasonable

herein. See, e.g.

, Olschansky v. Sec’y of Health & Human Servs. , No. 17

- 1096V, 2020 WL 1027681 (Fed. Cl. Spec. Mstr. Feb. 21, 2020).

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 oth erwise unnecessary.” Saxton, 3 F .3 d at 1521 (quoting Hensley v.

Eckerhar t

, 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. 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 admini strative tasks such as filing documents and handling payment s 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 V an 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, 201 9)

. Therefore, a reasonable reduction of $ 60 0.00 is being made for excessive billing for paralegal time.

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 $ 7,344.65 in attorneys’ costs, comprised of acquiring medical records, postage, the Court’s filing fee

, and work perfor med by petitioner ’ s medical expert in reviewing the records

. Fees App. at 3 4

- 36

. Petitioner has provided adequate documentation of all these expenses and they

4 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.appear reasonable for the work performed in this case. 5 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 o n the above analysis, the undersigned finds that it is reasonable to compensate Petitioner and h er counsel as follows:

Attorneys’ Fees Requested $ 22,154.00 (Reduction to Fees)

- ($ 600.00 ) Total Attorneys’ Fees Awarded $ 21,554.00

Attorneys’ Costs Requested $ 7,344.65 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 7,344.65

Total Attorneys’ Fees and Costs $ 28,898.65

Accordingly, the undersigned awards a lump sum in the amount of $ 28,898.65

, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and Petitioner’s counsel, M r

. Andrew Downing

.

I n the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

cou rt is directed to enter judgment herewith. 6

IT IS SO ORDERED

.

s/ Herbrina D. Sanders

Herbrina D. Sanders Special Master

5 In finding the requested costs reasonable, t he undersigned is not making any determination as to the reasonableness of the hourly rates of P etitioner ’ s medical experts. Rather, the undersi gned is ruling t hat

the re quested amount is reasonable in light of the work performed in this case

.

6 Pursuant to Vaccine Rule 1 1(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.