# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 6, 2019

* * * * * * * * * * * * * * * * * * * UN PUBLISHED

SCOTT CIPA

, *

* No. 1 6

- 462 V Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs ; AND HUMAN SERVICES * Joint Stipulatio n; Vagueness;

* Duplicative Billing; Expert Respondent. * Rate.

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

Clifford J. Shoemaker

, Shoemaker, Gentry, and Knickelbein

, Vienna

, V A

, for petitioner. Debra A. Begley , United S tates Department of Justice, Washington, DC

, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On March 5 , 2019, Scott Cipa (“ p etitioner ”) filed a motion for attorneys ’ fees and costs. Petitioner’s Motion for Attorney Fees ( “Pet. Fee s App.”) (ECF No. 90 ). For the reasons discussed below, I hereby GRANT the m otion and award a total of $84,573. 71 in attorneys ’ fees

and cos ts and $2,10 7.05 in petitioner ’ s costs.

I. Procedural History

On April 12, 2016

, p etitioner filed a petition for compensation in the National Vaccine Injury Compensation Program. 2 Petition (ECF No. 1 )

. Petitioner alleged that he suffered from Guillain Barré Syndrome (“GBS”), Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”), and/or Bell’s Palsy as a result of a tetanus

- diphtheria

- acellular pertussis (“Tdap”)

vaccination on April 10, 2014

. Id

. at ¶ 1.

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause this opinion contains a reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. This means the opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, eac h party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that

includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the opinion

. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website without any changes. Id.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et

seq. ( hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa

of the Act.2

On May 30, 2018, at the parties ’ request, the case was referred to Alternative Dispute Resolution (“ADR”). Status Report (ECF No. 79), Order (ECF No. 80). Afte r a successful mediation, the case was removed from ADR on October 10, 2018. Order (ECF No. 8 3). On February 27, 2019

, the parties filed a joint stipulation in which they stated that a decision should be entered awarding compensation to p etitioner. Stip ulation for Award (ECF No. 88 ). Respondent denied that p etitioner’s alleged injur ies and residual effects w ere caused

- in

- fact by

the T dap vaccination. Id . at ¶ 6. Nevertheless, the parties agreed that the issues between them should be settled and a decision should be entered awarding compensation to p etitioner. I adopted the Stipulation for Award as my Decision awarding compensation on February 27 , 201 9

. (ECF No. 89 ).

On March 5 , 2019, p etitioner filed a motion for attorneys’ fees and costs. Pet. Fee s App. (ECF No. 90 ). Petitioner requests compensation for his attorney, Mr. Clifford J. Shoemaker

, in the total amount of $ 89,546.81 . This represents $ 70,001.40 in attorneys ’ fees and $ 19,545.41 in

costs

. Pet. Fee s App. at 1

- 2. Petitioner also requests reimbursement for costs which he personally incurred in association with pursuing this claim in the amount of $2,107.05. Id

.

On March 25, 2019, r espondent file d a respon se to petitioner’s motion which provides that “[r]espondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and recommending that “the special master exercise his discretion and

determine a reasonable award for attorneys’ fees and costs.” Response at 2

- 3 (ECF No. 92 ). Petitioner did not file a reply. The matter is now ripe for adjudication.

II. Legal Standard

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(3)(1). Petitioner in this case was awarded compensation pursuant to a Stipulation and therefore he shall

be awarded reasonable attorneys’ fees and costs.

The Vaccin e Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. §

300aa

- 15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of He alth & Human

Servs. , 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines the reasonable hourly rate, which is then applied to the number of hours reasonably expended on the litigation. Id

. a t 1347

- 58 (citing Blum v . Stenson , 465 U.S. 886, 888 (1984)).

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable

. Wasson v. Sec’y of Health & Human Servs. , 24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the

motion is filed

. Id

. a t 484 n.1. The special master has the discretion to reduce awards sua sponte , independent of enumerated objections from the respondent. Sabella v. Sec’y of Health &

Human S ervs. , 86 Fed. Cl. 201, 208

- 09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human

Servs. , 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99

- 537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008). Special masters may look to their experience and judgment to reduce the number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of3

Health & Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line

- by

- line evaluation of the billing records is not required. Wasson , 24 Cl. Ct.

, aff’d in relevant part , 988 F.2d 131 (Fed Cir. 1993) (per curiam).

III. Reasonable Attorneys’ Fees and Costs

a. Hourly Rate

Petitioner requests compensation for his attorneys Mr. Clifford Shoemaker, Ms. Renee Gentry, and Ms. Sabrina Knickelbein. Pet. Fee s App. at 29

- 52.

The rates requested generally conform with what other special masters and I have consistently awarded Mr. Shoemaker, Ms. Gentry, and Ms. Knickelbein. Price v. Sec’y of

Health & Human Servs. , No. 11

- 442V, 2019 WL 1796100, at *2

- 3 (Fed. Cl. Spec. Mstr. Mar. 22, 2019); Nixon v. Sec’y of Health & Human Servs. , No. 13

- 738V, 2019 WL 1149942, at *2 (Fed. Cl. Spec. Mstr. Feb. 6, 2019) ; McCulloch v. Sec’y of Health & Human Servs. , No. 09

- 293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)

.

However, petitioner requests that Ms. Knickelbein receive an increased rate of $ 396.00

for work in 2019. This is a rate not yet awarded to Ms. Knickelbein for work done in 2019. However, the requested rate appears reasonable as an increase of $5.00 for an additional year of experience in the Vaccine Program . It is also within the range for an attorney of Ms. Knickelbein’s experience in the Attorneys’ Forum Hourly Rate Fee Schedule for 2019

. 3
Accordingly, no adjustment s to the requested rates are required.

b. Hours Expended

As noted previously, a line

- by

- line evaluation of the invoiced hours is not required; instead, I may rely on my experience to evaluate the reasonableness of the hours expended.

Wasson , 24 Cl. Ct. at 484. Accordingly, I may red uce the number of hours claimed based on past experience. Saxton , 3 F.3d at 1521. Petitioner requests $70,001.40 in attorneys’ fees. After review of the hours billed, I find that some reductions need to be made.

Mr. Shoemaker’s billing entries suffer fr om vagueness, an issue that I have already expressed previously. Price , 2019 WL 17961 00 , at *3; Nixon , 2019 WL 1149942, at *2. Entries by Mr. Shoemaker for correspondence often state “[e]mail from Henry,” “[e]mail to Dr. Carels,” or “[e]mail from Scott” without referring to the topic of the email. Additionally, multiple entries state “[r]eview order” without describing the order being reviewed. Pet. Fee s App. at 29

- 35. The majority of Mr. Shoemaker’s billing entries for correspondence and order review are similarly vague. As noted in Price , Mr. Shoemaker’s colleagues’ entries have a more appropriate level of specificity. Price , 2019 WL 1796100, at *3. For example, Ms. Gentry’s

entries will read “email to client re settlement.” Pet. Fee s App. at 39.

3 United States Court of Federal Claims

– OSM Attorneys’ Forum Hourly Rate Fee Schedules, available at http://www.cofc.uscourts.gov/ node/2914

.4

Of greater concern is the apparent duplicative billing between Mr. Shoemaker and Ms. Knickelbein. Almost all of Ms. Knickelbein’s billing entries are rel ated to the review of records and the review of correspondence in what appears to a predominately paralegal context. Pet.

Fee s App. at 47

- 52. The billing entries of Mr. Shoemaker and Ms. Knickelbein appear to have reviewed many of the same records on sim ilar dates. Pet. Fee s App. at 29

- 52. Additionally, given that Ms. Knickelbein appears to not have had a role in this case until June 22, 2015 at which time her entries consist almost exclusively of review of filed documents, I find the work performed by Ms. Knickelbein to be duplicative. I have already raised these same concerns in previous cases involving Mr. Shoemaker. Price , 2019 WL 1796100, at *3; Nixon , 2019 WL 1149942, at *2.

Accordingly, I find that a 10% reduction of Mr. Shoemaker’s hours is a ppropriate to account for the issues of vagueness and duplicative billing and encourage the firm to better describe Ms. Knickelbein’s role in future litigation within billing entries to show the value of her

work. The billing records indicate that Mr. Sho emaker billed 72.15 hours for a total of $30,731.00. This results in a reduction in attorneys’ fees by $ 3

, 073

. 10

. Petitioner is awarded attorneys’ fees in the amount of $6 6

, 928

. 3 0

.

c. Attorneys ’ Costs

Like attorneys’ fees, a request for reimbursement for 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 $ 19,545.41 in attorneys’ costs . These include the costs of obtaining medical records, which is required in the Vaccin e Program. The amounts are reasonable and adequately documented.

Petitioner also requests the costs associated with a mediation with former Chief Special

Master Golkiewicz in Detroit, Michigan, totaling $8,582.98. I have previously granted attorneys’ costs related to a successful mediation. Jones v. Sec’y of Health & Human Servs. , No.

11

- 70V, 2014 WL 7508006, at *7

- 8 (Fed. Cl. Spec. Mstr. Dec. 4, 2014). In the mediation in

Jones , the parties requested the services of a mediator, petitioner and both parties’ counsel travelled to the mediation location, and the mediation was successful in resolving the matter. Id

. The same features are present in this case. Additionally, petitioner has provided adequate

documentation of the costs.

Finally, petitioner requests $9,500.00 to pay the invoice of his expert Dr. Carlo

Tornatore. He requests $500.00 an hour for work on this matter. Dr. Tornatore has been compensated at a rate of $400.00 an hour in previous cases. Nixon , 2019 WL 1149942, at *3; Averitt v. Sec’y of Health & Human Servs. , No. 16

- 938V, 2018 WL 4907991, at *3 (Fed. Cl. Spec. Mstr. Sept. 4, 2018); Morgan v. Sec’y of Health & Human Ser vs. , No, 15

- 1137V, 2017 WL 1034399 (Fed. Cl. Spec. Mstr. Jan. 23, 2017). Dr. Tornatore is the Chair of the Department of Neurology at Georgetown University, has published numerous articles in medical journals

, has previous experience providing expert repo rts and testimony in the Vaccine Program, and provided a strong expert report in this case. In Nixon , I found that although Dr. Tornatore has impressive credentials and overall experience in the Vaccine Program, a rate of $400.00 was appropriate since alm ost all his work was done in 2015 and 2016. Nixon , 2019 WL 1149942, at

*3 n.4. The same occurred in this case. Dr. Tornatore billed all of his time in 2015 and 2016 with only 0.5 hours billed in 2017. Pet. Fees App. at 98. While I would be open in fut ure cases5

to award Dr. Tornatore a higher rate, I find that rate of $400.00 per hour is appropriate in this

case.

Dr. Tornatore ’s invoice reflects 19 hours of work performed in this matter . I find the

number of hours Dr. Tornatore billed to be reasonabl e. However, like the special master in Hodge , I encourage Dr. Tornatore to provide more detailed descriptions of his work. Hodge v. Sec’y of Health & Human Servs. , No. 09

- 453V, 2017 WL 1315716, at *5 (Fed. Cl. Spec. Mstr. Mar. 9, 2017). For example, man y of Dr. Tornatore’s entries state “[m]eet with attorney” and “review [additional] records.” Pet. Fee s App. at 98. Thus, petitioner’s motion for attorneys’ fees and costs is reduced by $1,900 to account for Dr. Tornatore’s reduced rate.

Therefore, I wil l award the requested attorneys’ costs of $1 9

, 5 45

. 41 without adjustment

.

d. Petitioner ’s Costs

Similar to attorneys’ costs , a request for reimbursement for p etit i oner’s 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 $ 2,107.05 in costs personally by p etitioner. Pet. Fee s App. at 3. This amount consists of costs associated with the mediation in Detroit, M ichigan and traveling to Washington, DC to meet with Mr. Shoemaker and Dr. Tornatore. Id

. As previously discussed,

the costs associated with the mediation are reasonable. The costs of p etitioner traveling to meet with Mr. Shoemaker and Dr. Tornatore represent t he cost of Mr. Shoemaker meeting with his

clien t

. I find these costs to be reasonable. Petitioner has provided adequate documentation for

all personally incurred expenses and I will award p etitioner’s costs in full. Therefore, I will award p etitioner co sts in the amount of $ 2,107.05

.

IV. Conclusion

In accordance with the foregoing, p etitioner’s application for attorney s ’ fees and costs is

GRANTED

. I will award petitioner attorney s’ fees and costs as follows:

Attorney s’ Fees Requested $ 70,001.40 ( Total Reduction of F ees) $ 3

, 073

. 10 Attorneys ’ Fees Awarded $6 6

, 928

. 3 0

Attorneys ’ Costs Requested $1 9

, 545

. 41 (Reduction of Costs) $1,900

Attorne y s ’ Costs Awarded $ 1 7

, 6 45.41

Total Amount of Attorneys’ Fees and Costs $8 4

, 573

. 7 1

Total Amount of Petitioner’s Costs $2,107.056

Accordingly, I award the following:

1) A lump sum in the amount of $ 84,573.71 , representing reimbursement for

p etitioner’s attorney s’ fees and costs, in the form of a check payable jointly to

p etitioner and h is counsel

, Mr. Clifford J. Shoemaker; 4 and

2) A lump sum in the amount of $ 2,107.05 , representing reimbursement for

p etitioner’s costs, in the form of a check payable to p etitioner.

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

the court shall enter judgment in accordance herewith. 5

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen Special Maste r

4 Th is amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 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).

5 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).