# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 30 , 2020

* * * * * * * * * * * * * * * THOMAS P. KELLEHER, * No. 16

- 1307V

* Petitioner, *

* Special Master Sanders

v. *

*

SECRETARY OF HEALTH * Decision; Interim Attorneys’ Fees ; AND HUMAN SERVICES, * Reduction for Administrative Tas k s

* Respondent. *

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

Nancy Routh Meyers

, Ward Black Law

, Greensboro, NC , for Petitioner.

Ronalda Elnetta Kosh , United States Department of Justice

, Washington, D

. C ., for Respondent.

DECI S ION AWARDING INTERIM ATTORNEYS ’ F EES 1

On November 5, 2019

, Thomas P. Kelleher (“Petitioner”) filed a motion for interim

at t orneys ’ fees , requesting $ 26,203.50 in interim attorneys ’ fees for his counsel, Ms. Nancy Routh Meyers

. Pet’r’s Mot. for Int. Att ’ y s ’ Fees , ECF No. 50 [hereinafter Pet ’ r ’ s Mot. for IAF]

. On November 18 , 201 9 , Respondent filed a response to Petitioner’s motion in which he indicate d

a desire for “the Court [to] exercise its discretion and determine a reasonable award for attorneys’ fe e s and costs

. ” Resp’t’s Resp. at 3, ECF No. 52

. For the reasons stated below, I will

award interim attorneys ’ fees to Petitioner at th is time

.

I. Procedural History

This is Petitioner ’s second motion for an interim award

. See Pet ’r ’s Mot. for Int. Costs, ECF No. 39. On April 30, 201 9, I issued a decision granting Petitioner ’s first motion and awarding hi m $9,923.42 in interim costs. See Dec., ECF No. 44. I will dispense with a full recitation of the procedural history here, as I provided an in

- depth re v iew in my previous fee

1 This decision shall be po sted 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). This me ans the d e cision will be available to any one with access to

the Internet . In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consisten t with the rule requirement, a m otion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material

will be deleted from public a c cess.2 decisi on. See Kelleher v. Sec ’y of Health and Human Servs. , No. 16

- 1307V, 2019 WL 3036538,

at *1

– 2 (Fed. Cl. Spec. Mstr. Apr. 30, 2019).

Following the issuing of my decision, the parties have submitted further filings to the

Cou r t

. Petitioner filed a seco nd supplemental expert report from Lawrence Steinman, M.D., on November 18, 2019. Pet ’ r ’ s Ex. 40, ECF No. 53

- 1. On November 19, 2019, Respondent filed a second supplemental expert report b y Thomas Liest, M.D., Ph.D. Resp ’ t ’ s E x. K, ECF No. 54

- 1.

Petiti oner filed medical li terature in support of Dr. Steinman ’ s second supplemental report on November 25, 2019. Pet ’ r ’ s Ex s. 41

– 43, ECF N os. 55

- 1

– 55

- 4.

On December 11, 2019, Petitioner filed a status repor t indicating that he di d “ not intend to file any ad ditional expert reports at this time

. ” ECF No. 5 6. Neither party has submitted any additional filings to date.

This matter is now rip e for consideration.

II. Availability of Interim Attorneys’ Fees and Costs

A. Good Faith and Re a sonable Basis

Under the Va ccine Act, petitioners may recover reasonable attorneys’ fees and costs only if “the petition was brought in good faith and there was a re asonable basis for which the petition was brought.” 42 U.S.C. § 300aa

- 15(e)(1). Responde n t does not object to Petiti oner’s motion on the basis of good faith or reasonable basis, and I find that the statutory criteria for an award of

interi m attorn eys ’ fees are met.

B. Justification for an Interim Award

In Avera , the Federal Circuit stated that a special master may award attorneys’ fees and

costs on an interim basis. Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 2008). The c ourt noted that such awards “are particularly appropriate in cases where proceedings are protra c ted and costly experts must be retain ed.” Id. Similarly, the Federal Circuit held in Shaw that it is proper for a special master to award interim attorneys’ f ees “[w]here the claimant establishes that the cost of litigation has imposed an undue hardship and that there exists a good faith ba sis for the claim[.]” Shaw v. Sec’y of Health & Human Servs.

, 609 F.3d 1372, 1375 (Fed. Cir. 2010).

Applying these standa rds, an award of interim costs is reasonable and appropriate in this

case. This case has been p ending for over three

- a nd

- a

- half year s

. To date, Petitioner has

submitted four expert reports and numerous exhibits in support of his petitio n. See Pet’r’s Exs.

1

– 40

. Additionally , due to a multitude of factors, many cases in the Program are not procee d ing

to an entitlement hearing as quic kly as they may have in the past. See Abbott v. Sec’y of Health

& Human Servs. , No. 14

- 907V, 2016 WL 415 1689, at *4 (Fed. Cl. Spec. Mstr. July 15, 2016) (“The delay in adjudication, to date, is due to a steady increas e in the number of petitions filed

eac h year.”). Based on the number and nature of cases currently waiting for available hearing dates, a hear ing is not currently scheduled for this case in the coming months

. Petitioner’s counsel has requested over $ 26,0 0 0 in fees , and “[i]t cannot be seri ously argued that in essence3 loaning cases thousands of dollars for years is not a hardship.” Kirk v. S ec’y of Health & Human

Servs. , No. 08

- 241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009). Therefore, I

find an award of interim attorneys ’ fees reasonable and appropriate in this case.

III. Reasonable Attorneys ’ Fees

Only reasonable attorneys’ fees may be awarded, and it is “well within the special

master’s discretion” to determine the reasonableness of fees

. Saxton v. Sec’y of Healt h & Human

Servs ., 3 F.3d 1517, 1521 (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 reasonablene s s of both attorneys’ fees and costs.”). In making a determination, applications for attorneys’ fees must includ e 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).

The Federal Circuit has approved the lodestar formul a to determine reasonable attorneys’

fees under the Vaccine Act. Avera , 515 F.3d at 1348. This is a two

- step approach. Id . First, a

court deter m ines 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 downwar d departure from the initi al calculation of the fee award based on specific findings. Id. at 1348.

A. Reasonable R ates

Forum rates are used in the lodestar formula, except when the rates in an attorney’s local area are significantly lower than forum rates. Id. at 1348

– 49. In a 201 5 decision, Special Master Gowen determined the reasonable forum rate ranges for attorn eys with varying years of experience. See McCulloch v. Sec’y of Health & Human Servs ., No. 09

- 293V, 2015 WL 5634323, at *18

- 19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot . for recons. denied , 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). When consi dering whether a requested rate is reasonable, special masters may consider an attorney’s overall legal experience and experience

in the Vaccin e Program, as well as the quality of the work performed. Id . at *17. The

McCulloch rates have been updated for subsequent years and are accessible on the court’s

website at http://www.uscfc.us courts.gov/vaccine

- programoffice

- special

- masters

.

i. Reasonable H ourly Rates

Petitioner r equests the following hourly rates for the attorneys and paralegals who have

worked on this matter to d ate:

Attorneys :

- Na nc y Routh Meyers:

o 2016: $350.00

o 2017 : $350.00

o 2018: $375.004 o 2019: $390.00

Paralegals :

o 2016: $145.00

o 2017: $145.00

o 2018: $145.00

o 201 9: $145.00

These rates are consistent with what Ms. Meyers has been previously awarded in Vaccine Program. See Cook v. Sec’y of Health and Human Servs. , No. 18

- 255V, 2019 WL 4256285, at *2 (Fed. Cl. Spec. Mstr. Aug. 26, 2019); W a de v. Sec’y of Health and Human Servs. , No. 17

- 1039V, 2019 WL 4256263, at *2 (Fed. Cl. Spec. Mstr. Aug. 16, 2019) ; Trollinger v. Sec ’ y of

Health and Human Servs. , No. 16

- 170V, 2019 WL 7565466 , at *2 (Fed. Cl. Spec . Mstr. O c t. 31, 2019). I find these rate s reasonable. Accordingly , no adjustment is required.

ii. Hours Expended

The second step in Avera is for the court to make an upward or downward modification based upon specific findings. Avera , 515 F.3d at 1348. As outlined below, I have determined

that a reduction in the number o f hours requested is appropriate.

While clerical and other administrative work is necessary in every case, billing separately for such work is not permitted in the Vaccine Program. Rochester v. United States , 18 Cl. Ct. 379, 38 7 (1989) (tasks that were “primarily of a secretarial and clerical nature . .

. should be considered as normal overhead office costs included with the attorneys’ fees rates”). Clerical and administrative work includes tasks such as making travel arrangeme n ts, setting up meetings, and reviewing invoices. See Mostovoy v. Sec’y of Health & Human Servs

., No. 02

- 10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). It also includes organizing exhibits, preparing compact discs, and filing records. F l oyd v. Sec’y of Health & Human Servs

., No. 13

- 556V, 2017 WL 1344623, at *5 (Fed. Cl. Spec. Mstr. Mar. 2, 2017); Hoskins v. Sec’y of Health

& Human Servs

., No. 15

- 071V, 2017 WL 3379270, at *3 (Fed. Cl. Spec. Mstr. July 12, 2017); Kerridge v. Sec’y of Healt h & Human Servs

., No. 15

- 8 52V, 2017 WL 4020523, at *3 (Fed. Cl. Spec. Mstr. July 28, 2017). It is the nature of the tasks performed, not a person’s professional title, which determines whether the work is legal, paralegal, or clerical in nature. Doe 11 v

. Sec’y of Health & Human Servs

., No. XX

– XXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)).

The paralegal billing records contain entries for cler ical and administrative tasks that are

n ot compensable in th e Va ccine Program. For example, on October 12, 2016, a paralegal billed

.2 hours to “ [f]ile [n]otice of [i]ntent to[ f]ile on CD with Vaccine Court. ” Pet ’ r ’ s Mot. for IAF,

Attach. 1 , at 7, ECF No. 50

- 1. The re are numerous other inst a nces of billing time for preparing and filing exhibits with the Court. See, e.g.

, id. (a .5

- hour entry on 10/10/2016, to “ [p]repare

CDs of [e]xhibits to be served on Vaccine Court Clerk and defense attorney. ” ); id. at 11 (a 1.9

- hour entry on 1/20/2017

, r e flecting the following ta sks : “ [f]iled [n ] otice of [f]iling of [e]xhibit 9, parts 1

– 8. Downloaded file

- stam ped copy. (1.2 [hours]). Filed updated exhibit list per Court ’ s5 requirement. P repared and filed [s]tatus [r]ep ort requesting an extension to submi t client ’ s records from [m edical provider]. (.7 [hours]). ” ); id. at 15 ( a .3

- hour entry to “ [f]in alize [m]otion for [e ]xtension of [t]ime to [f]ile [e]xpert [r]eport and file with the Court. ” ); id. at 15

– 16 (a 6.1

- hour entry reflecting the following tasks: “ Review and finalize expe rt report from Dr. Steinman for filing with the Court (.9 [hours] ); compile all references cited in rep ort and prepare as exhibits, including pagination, in preparation for filing (3.2 [hours] );

. . . Prepare additional

references for filing with the Court (.9); Prepare and file [n] otice of [f] iling [e] xpert [r] eport (Exhibit 11 ), updated [e] xhibit [l] ist and [n] otice of [i] ntent to [f] ile on CD (1.1 [hours] ). ” ); id. at 21 (a .6

- hour entry to “ [f]ile Dr . Steinman's supplemental re s ponsive expert report wit h cited literature. File updated [e] xhibit [l] ist. Receipt and download file

- stamped copies for our file. ” ). Preparing

, filing , and downloading exhibits and other documents with the Court are not compensable tasks in the Program

. By my review, there are at least seventeen instances of this type of billi ng entry . Based on the number of hours spent on these tasks as ind icated in the billing records, the paralegals billed roughly 1 4 .6 hours for this work. 2 Accordingly, I will

red u c e Petitioner ’ s fee award by $2,117.00

. 3

I find the remainder of Petitioner ’ s billing entries to be reasonable. T herefore, no further reductions are necessary

.

IV. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), I award Ms. M yers $ 2 4 ,086.50 in interi m attorneys ’ fees

. Accordingly, I award the total of $ 2 4 ,086.50 to be issued in the form of a check payable jointly to Petitioner and Pet itioner’s counsel, Ms. Nancy M eyers, of Ward Black Law, for interim attorneys ’ fees

.

2 In some instances, Ms. Meyers grouped multiple tasks together in one billing entry withou t indicating how much time was spent on each individual task. See, e.g. , Pet ’ r ’ s Mot. for I AF, Att ach . 1, at 5 (a .4

- hour entry for the following tasks: “ Rec e ived client's vaccination record from Sam's C lub Pharmacy. Reviewed and prepared as exhibit for refe rencing in petition

. Revised SOL in case files and in database

to reflect correct date. Sent client e

- mail forwarding copy of vaccination records via e

- ma i l attachment. ” ) (emphasis added) ; id. (a .3

- h our entry for the following tasks: “ Received records from Jenner's Pond

Preston Residence. Prepared as exhibit for referencing in petition . E

- mailed copy of records to client. ” ) (e mp hasis added); id. at 7

– 8 ( a

. 3

- hour entry for the following tasks: “ Review case notes to confirm there

were no outstanding records requests and e

- mail to Attorney Meyers regarding sa me. Prepare [s] tatement
of [c] ompletion and filed same with the Court

. ” ) (emphas is added). This type o f billing practice , known

as “ block billing, ” is discouraged in the Program. See Mostovoy v. Sec ’ y of Health and Human Servs.

, No. 02

- 010V, 2016 WL 720969, at *6 (Fed. Cl. Spec. Mstr. Feb 4, 2016) ( “ Block billing, or billing large

amounts of time without sufficient detail as to what tasks were performed, is clearly disfavore d [ in the Vaccine Program]

. ” ); see also Guidelines for Practice Under the National Vaccine Injury Compensation Program at 72 (revised Apr. 24, 2020), retrieved from http://www.uscfc.u s courts.gov/sites/default/files/

Guidelines

- 4.24.2020.pdf (last visited May 14, 2020) ( “ Each task should have its own line entry indicating the amount of time spent on that task. Lumping together several unrelated tasks in the same time entry frustrates th e [C] ourt’s ability to assess the reasonableness of the request. ” ). This type of billing practice also makes calculating the amount of time spe nt on each task difficult. Therefo re, I will

value non

- compensable tasks included in billing entries such as tho s e listed above at . 2 hour s of time in calculating my deductions to Petitioner ’ s fee request.

3 14.6 hours x $145

. 00 per hour = $2,117.00.6 In the absence of a motion for review filed pu rsuant to RCFC Appendix B, the Clerk of

the C ourt SHALL ENTER JUDGMENT in accordance with the terms of the above decision. 4

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders

S pecial Ma s ter

4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review.