1 

# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

No. 1 5

- 222 V

Filed: February 9 , 2017

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

MELVIN KEITH CASTLE

, *

* UNPUBLISHED

Petitioner, *

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

William E. Cochran, Jr. , Black McLaren, et al., PC, Memphis, TN, for petitioner

. Lara A. Englund , United States Department of Justice, Washington, DC, for r espondent.

DECISION ON ATTORNEY S ' FEES AND COSTS 1

On March 4, 2015, Melvin Keith Castle (“petitioner”) filed a petition pursuant to the

National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa

- 10 to 34 (2012).

Petitioner alleged that as a result of receiving a Tdap vaccine on January 24, 2014, he suffered

neuropathy, thrombocytopenia, lymphadenopathy, central vestibular system impairment, and

other injuries. Petition at Preamble. On December 1, 2016, the parties filed a stipulation in

which they state d that a decision should be entered awarding compensation. A decision

awarding compensation pursuant to the terms of the stipulation was issued December 2, 2016.

On February 6 , 2017, petitioner filed a motion for attorneys’ fees and costs, requesting

$ 49,261.50 in attorneys’ fee s

, $ 12,744.52 in attorneys’ costs , for a total of $ 62,006.02 in

attorneys’ fees and costs. Petitioner’s (“ Pet. ”) Motion (“ Mot

. ”) at 1 , 11

. Pursuant to General

order #9, petitioner states that he did not incur any litigation expenses pursing this case. Id. at 3;

Pet. Mot., Ex. 3. Respondent filed a response to petitioner’s application on February 7 , 2017,

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the

undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in

accordance with the E

- Government Act of 2002, 44 U .S.C. § 3501 note (2012) (Federal Management and

Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14

days within which to request redaction “of any information furnished by that party: (1) that is a trade se cret

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).2

stating that r espondent “ is satisfied the statutory requirements for an award of attorneys’ fees and

costs are met in this case, ” and that respondent “recommends that the special master exercise his

discretion and determine a reasonable award for attorneys’ fees and costs.” Respondent’s

Response at 2

- 3.

I. Reasonable Attorneys’ Fees and Costs

Under the Vaccine Act, the special ma ster shall award reasonable attorneys’ fees and

costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(e)(1). In

the present case, petitioner was awarded compensation pursuant to the terms of a joint

stipulation. Therefore , petitioner is entitled to an award of reasonable attorneys’ fees and costs.

The Federal Circuit has approved use of 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, 1349 (Fed. Cir. 2008) . Using the lodestar approach, a court first determines “an

initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably

expended on the litigation times a reasonable hourly rate.’” I d. at 1347

- 58 (quoting Blum v.

Stenson , 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward

departure from the initial calculation of the fee award based on other specific findings. Id. at

1348. Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate defined as

the rate prevailing in the community for similar services by lawyers of reasonably comparable

skill, experience, and reputation.” Avera , 515 F.3d at 1 347

– 48 . In determining an award of

attorneys' fees, a court should generally use the forum rate, i.e., the District of Columbia rate. Id.

at 1348 . However, an exception to the forum rule applies where the bulk of an attorney's work is

performed outside of the forum, and where there is a “very significant” difference in

compensation rates between the place where the work was performed and the forum. Id. at 1349

(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States

Envtl. Prot. Agency , 169 F.3d 755, 758 (D.C. Cir. 1999) ).

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 & Hum an 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 (quoting Hensley v. Eckerhart , 461 U. S. 424, 434 (1983)). The requirement

that attorneys’ fees be reasonable also applies to costs. McCulloch v. Sec’y of Health & Human

Servs. , No. 09

- 293V, 2015 WL 5634323

, at *5 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (citing

Perreira v. Sec’y of Health & Hum an Servs. , 27 Fed. Cl. 29, 34 (1992 ) ). The determination of

reasonable attorneys’ fees and costs is within the special master's discretion. Saxton , 3 F.3d at

1520 (Fed. Cir. 1993). Special masters may rely on their prior experience in reviewing fee

appl ications. See id. , 3 F.3d at 1521 (citing Farrar v. Sec’y of Health & Human Servs. , No. 90

- 1167V, 1992 WL 336502

, at *2

- 3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992)).

i. Hourly Rates

Petitioner requests the following rates:3

William Cochran (partner) :

$335 (2014)

$ 345 (2015)

$355 (2016)

$355 (2017)

Michael M cLaren (partner) : $395 (2014)

$ 4 10 (2015)

$ 425 (2016)

Rebecca Hinds (associate):

$285 (2014)

$295 (2015)

C hris W ebb (associate) :

$ 295 (2015)

$ 305 (2016)

$30 5 (2017)

Shelly Bloor (paralegal):

$130 (2014)

$135 (2015)

Vickie Caudle (paralegal):

$130 (2014)

$135 (2015)

Carmen Garcia (paralegal , 1.5 years of law school ):

$130 (2014)

$145 (2015)

$150 (2016 )

Laura Holford (paralegal):

$130 (2014)

Samantha Ward (paralegal , J.D. ):

$145 (2015)

$150 (2016)

$150 (2017)

Pet. Mot . at 1 1; Pet. Mot., Ex. 2 at 1

- 21

. 2

2 The rates liste d here are those actually billed in counsel’s billing statement. See Pet. Mot., Ex. 2 at 1

- 21.

The fee motion itself also contains two tables of rates. See Pet. Mot. at 10

- 11. The rates listed on the

page 11 table are consistent with the rates in the b illing statement. The rates listed in the page 10 table,4

The issue of whether Black Mc Laren attorneys are entitled to local or forum rates was

recently decided by Chief Special Master Dorsey. Henry v. Sec’y of Health & Human Servs.

, No. 15

- 545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov. 4, 2016

. In Henry , the Chief

Special Master held that the Black McLaren firm should receive attorneys’ fees at forum rates,

noting that “[t]he applicable 2016 local attorney rates identified within this decision ($350, $300,

$260) range from about 17

- 21% lower than the requested forum rates for the same attorney.

This difference is much closer to the 18.5% differential identified in Garrison than it is to any of

the fee differentials discussed in the applicable circuit precedents, which considered differentials

of 59% and upward.” Id. at *10 (referencing Garrison v. Sec’y of Health & Human Servs. , No.

14

- 762V, 2016 WL 3022076 (Fed. Cl. Spec. Mstr. Apr. 29, 201 6 )

, aff’d

, 2016 WL 4784054

(Fed. Cl. Aug. 17, 2016)

. S everal Special Masters have adopted the reasoning set forth in Henry

and have granted McLaren Black fees at the same hourly rates awarded therein. See e.g. Rowden v. Sec’y of Health & Human Servs. , No. 14

- 400V, 2016 WL 7785616 (Fed. Cl. Spec.

Mstr. Dec. 22, 2016) (Special Master Roth finding Black McLaren entitled to forum rates,

adopting reasoning in Henry ); Pancoast v. Sec’y of Health & Human Servs. , No. 15

- 718V, 2016

WL 7574815 (Fed. Cl. Spec. Ms tr. Nov. 16, 2016) (Special Master Corcoran finding Black

McLaren entitled to forum rates, adopting reasoning in Henry ). The undersigned likewise agrees

with Chief Special Master Dorsey’s analysis in Henry , and finds that petitioner has amply

demonstrated that the local rates in Memphis are not very significantly different than the forum

rates in Washington, D.C.

The rates requested in this case for 201 4 through 2016 are consistent with the rates

awarded in Henry

, with the ex ception of the request ed p aralegal rate of $150 per hour for 2016

, which the Chief Special Master in Henry reduced to $145 per hour

. 2016 WL 7189925 , at *11.

The undersigned will apply the same reduction here. Paralegals billed 16.70 hours of work in

2016, and the requested attorneys ’ fees will therefore be reduced by $ 83.50. The undersigned

also notes that associate Rebecca Hinds was not discussed in Henry or the cases award ing fees

pursuant to Henry

. Ms. Hinds ’ time is billed at the sa me rate as Mr. Webb ’ s. However, while

petitioner ’ s fee motion includes information about Mr. Webb ’ s experience , it does not discuss

Ms . Hinds

. See Pet. Mot. at 8

- 9. From a search of Black McLaren ’ s website, it appears that Ms.

H inds is no longer with the firm. S ee http://bmjrglaw.com/our

- team/

. In the absence of any

evidence regarding Ms. Hind s ’ years of experience , the undersigned will award Ms. Hinds fees

a t the lowest McCulloch r ate for attorneys, which is $150 for attorneys with less than 4 years ’

experience. 2015 WL 563432 3 , at *19. Ms. Hinds performed 1 .30 hours of work in 2014 and

2.90 hours of work in 2015. See Pet. Mot., Ex. 2 at 2

- 6. Accordingly, the requested attorneys ’

fees will be reduced by $596.00.

O nly Mr. Cochran, Mr. Webb, and Ms. Ward billed time in 2017 , and the time billed by

a ll three was minimal

. See P et. Mot., Ex. 2 at 20. Mr. Cochran and Mr. Webb billed the ir 2017

time at their 2016 rate, which the undersigned finds reasonable. Ms. Ward billed at a rate of

$150 per hour, which is t he same paralegal rate requ ested but reduced as set forth above for

2016. A rate increase to $150 per hour for 2017 from $145 per hour for 2016 represents

however, are not. The rates discussed herein are the rates actually billed, and the undersigned does not

opine on the reasonableness of the rates set forth in the page 10 table.5

approximately a 3.4% increase, which the u ndersigned finds reasonable. Accordingly, the 2017

rates will be awarded as requested.

ii. Hours Expended

Petitioner requests com pensation for 4.8 0 hours of work performed by Mr. McLaren,

112.40 hours of work performed by Mr. Cochran, 2.3 0 hours of work performed by associate

Chris Webb, 4.50 hours of work performed by associate Rebecca Hinds, and 45.50 hours of

paralegal work. See Pet. Mot.at 11. On review of petitioner’s billing record, the undersigned

finds the number of hours expended reasonable.

iii. Costs

Petitioner request s $12,744.52 in attorneys’ costs . Pet. Mot . at 1; Pet. Mot., Ex. 2 at 21

-

22

. The requested costs cons ist primarily of costs of obtaining medical record s , the filing fee,

FedEx costs, photocopies, travel expenses for a March 2015 client meeting, and the costs of

experts. See id. The undersigned finds the requested attorneys’ costs reasonable.

II. Conclusion

Upon review of the documentation of the requested attorneys’ fees and costs, and based

on his experience with the Vaccine Act and its attorneys, the undersigned finds a total attorneys’

fees and costs award of $ 6 1,326 .52 reasonable.

Pursuant to 42 U.S.C. § 300aa

- 15(e), t he undersigned awards attorneys’ fees and costs as

follows: 3

(1) A lump sum of $ 6 1,326 .52 in the form of a chec k payable jointly to p etitioner

and petition er ’ s attorney, William E. Cochran, Jr., of Black McLaren, et al.,

PC

, for attorneys’ fees and costs ; and

In the absence of a motion for review filed pu rsuant to RCFC Appendix B, the Clerk of

the C ourt is directed to enter judgment forthwith. 4

IT IS SO ORDERED.

s/ Thomas L. Gowen

3 This 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” 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. S ec’y of Health & Human

Servs.

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

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

renouncing the right to seek review.6 Thomas L. Gowen

Special Master