# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 4 , 2022

* * * * * * * * * * * * * * UNPUBLISHED

CHRISTOPHER O’HERN

, * No. 17

- 818 V

* Special Master Horner Petitioner, *

*

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.

Alexis B. Babcock , United States Department of Justice, Washington, D C , for Respondent.

DECISION ON ATTORNEYS ’ FEES AND COSTS 1

On June 19, 2017

, Christopher O’Hern (“ petitioner ”), filed a claim under the National

Childhood Vaccine Injury Act, 42 U.S.C. § 300aa

- 10

- 34 (2012)

. 2 Petitioner alleged he suffered

from b rachial neuritis following h is receipt of a Hepatitis A vaccination on February 23, 2016

. (ECF No. 1)

. On August 10 , 2021 , the parties filed a stipulation , which I adopted as my decision awarding compensation on August 11, 2021 . (ECF No. 56 ).

On February 2 8, 2022

, p etitioner filed an application for attorneys’ fees and costs. ( ECF

No. 61 ) (“Fees App.”). Petitioner request s total attorneys’ fees and c ost s in the amount of $ 73,793.27 , representing $ 55,945.90 in attorneys’ fees and $ 17,847.37 in costs

. Fees App

. at 1

. P ursuant to General Order No. 9, petitioner certifies that he has not incurred any fees or costs related to the prosecution of h is petition. Id

. Respondent responded to the motion on February 2 2

,

1 I intend 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, 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States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 ac cordance 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 c itation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

2022 , indicating that “ Respondent is satisfied the statutory requirements for an award of attorneys’

fees and costs are met in this case. ” Resp. at 2 (ECF No. 63 ). Petitioner filed a reply on February

2 3, 2022

, reiterating h is belief that the requested attorneys’ fees and costs are reasonable . (ECF

No. 63 ).

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 reaso nable attorneys ’ fees and

costs under the Vaccine Act. Avera v. Sec ’ y of Health & Human Servs. , 515 F.3d 1343, 134 7 (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 o f 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 (200 8). 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 89 4

- 95

. 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. P etitioner s 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 & Huma n 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 a re also entitled to use their prior experience in reviewing fee applications.” Saxton

, 3 F.3d at 1521.3

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. 3

Petit ioner requests t he following hourly rates for the work of h is counsel

, Ms. Leah Durant, $350.00 per hour for work performed in 2016, $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, $ 395 .00 per hour for work performed in 2020 , $420.00 per hour for work perfo rmed in 2021 , and $441.00 per hour for work performed in 2022

. These rates are consistent with what counsel has previously been awarded for her Vaccine Program work, and I find them to be reasonable for work performed in the instant case.

b. Hours E xpended

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. S pec. 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 statement, I find that the overall hours spent on this matter appear to be largely reasonable. However, there is a general issue of vagueness in the description of many of the billing entries, particularly those for communication w ith 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, several 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 me to determine whether such communication was necessary and reasonable. Other communication entries contain slightly more information but still are still vague overall (e.g., “Client call. Provide litigation update” or “Client call. Respond to questions.”). All those descriptions provide is an indication that case work was the subject to the communication, which should be a given. Entries describing with greater specificity th e topic of discussion would make it easier for me to assess whether the amount of time spent on the topic of the communication was reasonable and necessary. Taken as a whole, I find that the amount of communication with petitioner appears slightly excessiv e and insufficiently documented.

3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914

.4

Accordingly, I shall reduce the final award of attorneys’ fees by two percent, resulting in a reduction of $ 1,118.91 . Petitioner is therefore awarded final attorneys’ fees of $ 54,826.99

.

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 request s a total of $ 17,847.37 in attorneys’ costs

. This amount is comprised of acquiring medical records, professional review of those records, the Court’s filing fee, postage , and work performed by petitioner’s medical expert, Dr. Lawrence Steinman

. Fees App. Ex. 2 at 2

. Petitioner has provided adequate d ocumentation of the requested costs and they appear to be reasonable in my experience. Petitioner is therefore awarded the full amount of costs sought.

II. Conclusion

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

- 15(e) (2012), I have rev iewed the billing records and costs in this case and finds that p etitioner ’s request f or fees and costs is

reasonable. I find it reasonable to compensate petitioner and h is couns el as f ollows: a lump sum in the amount of $ 72,674.36 , 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 fi led pursuant to RCFC Appendix B, the C lerk of the

C ourt shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

s/ Daniel T. Horner

Daniel T. Horner Special Master

4 Entry of judgment can be expedited by each party’s filin g of a notice renouncing the right to seek

review. Vaccine Rule 11(a).