# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-602V Filed: June 26, 2017

UNPUBLISHED

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ELIZABETH JOHNSON, *

* Petitioner, *

v. * * Attorneys’ Fees and Costs; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

* Respondent. *

*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * Gary Krochmal, Law Offices of Gary A. Kr ochmal, PLLC, Farmi ngton Hills, MI, for petitioner. Douglas Ross, U.S. Department of Just ice, Washington, DC, for respondent.

DECISION ON ATTORNE YS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On June 15, 2015, petitioner filed a petit ion for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleged that she suffe red from Guillain-Barre Syndrome and chronic inflammatory demyelinating polyneuropathy following an influenza vaccination on January 16, 2014. On April 10, 2017, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 50).

On April 20, 2017, petitioner filed a moti on for attorneys’ fees and costs. (ECF No. 53). Following a status conference discu ssing petitioner’s Petition for Attorney Fees

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Cour t of Federal Claims'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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

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 Vaccine Ac t will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:15-vv-00602-UNJ Document 59 Filed 06/26/17 Page 1 of 32 and Costs, petitioner submi tted an Amended Petition for Attorney Fees and Costs on June 14, 2017. (ECF No. 58.) Petitioner r equests attorneys’ fees in the amount of $29,431.80, and attorneys’ costs in the amount of $17,111.88. Id. at 3. 3 In compliance with General Order #9, petit ioner has filed a signed stat ement indicating petitioner incurred no out-of-pocket expenses.

On April 24, 2017, respondent filed a respons e to petitioner’s motion. (ECF No. 54). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the re solution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attor neys’ fees and costs are met in

this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special

Master exercise her discretion and determi ne a reasonable award for attorneys’ fees

and costs.” Id. at 3.

The undersigned has reviewed the billing records submitted with petitioner’s request. Petitioner requests compensati on for 70.92 hours for her attorney, Mr. Krochmal, at a rate of $415.00 pe r hour for time billed from 2014-2017. 4 (ECF No. 53 at 2.) Mr. Krochmal has been a member of the State Bar of Mi chigan and the United

States District Court of the Eastern District of Michigan, Southern Division, since 1972.

Id. The undersigned finds no cause to reduc e the requested hours. However, the undersigned notes that the requested rate is towards the high end of this Court’s Attorneys’ Hourly Rate Fee Schedule fo r attorneys with more than 31 years of experience. Under the Court’s Fee Schedu le, an attorney with over 31 years of experience is entitled to hourly rates between $385-$430 for work performed in 2015
and 2016, 5 and $394-$440 for work performed in 2017. 6 However, Mr. Krochmal has limited experience with Vaccine Program cases. 7 Based on Mr. Krochmal’s minimal experience in the Vaccine Program, the undersigned finds a rate of $385.00 per hour is appropriate for work performed prior to 2017, and $395 for work performed in 2017. This amounts to a total of $27,385.20 ( $24,185.70 for 62.82 hours billed prior to 2017, and $3,199.50 for 8.1 hours billed in 2017). This results in a reduction of $2,046.60.

3 Petitioner’s attorney requested costs in the amount of $1 7,028.78, however review of the invoices provided by petitioner indicate the actual costs petitioner is entitled to is $1 7,111.88. (See ECF No. 56 at 5-15.) This includes costs of $1,051.38 for medical records, which petitioner incorrectly listed as $968.28.

4 Mr. Krochmal also st ated that, on occasions when he charges an hourly rate, he customarily char ges $375.00 per
hour. (ECF No. 53 at 2.)

5 The Attorneys’ Fee Schedule for 2015-2016 is available at http://www.cofc.uscourts.gov/sites/default/files/A ttorneys-Forum-Rate-Fee- Schedule2015-2016.pdf.

6 The Attorneys’ Fee Schedule for 2017 is available at http://www.cofc.uscourts.gov /sites/default/files/AttorneysForum-Rate-Fee-Schedule-2017.pdf

7 Other than the instant case, Mr. Krochm al is counsel of record in three co mpleted Vaccine Cases (Case Nos. 1:08- vv-00289; 1:12-vv-00110; 1:14-vv-00264); and one pending case (Case No. 1:17-vv-00819). Case 1:15-vv-00602-UNJ Document 59 Filed 06/26/17 Page 2 of 33 The undersigned also finds that a reduction in petitioner’s costs is necessary. In June of 2016, petitioner’s life ca re planner billed a total of 21.3 hours for travel time at a rate of $165.00 per hour for a total of $3,514. 50. (ECF No. 56 at 23.) As is the consistent practice in the Vaccine Program , the undersigned reduces the hourly rate for these hours by 50%. See, e.g., Hocraffer v. HHS, No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. July 25, 2011) (noting that “Special masters consistently award compensation for travel time at 50% of t he billing rate in the Vaccine Program.”); Stone

v. HHS , No. 04-1041V, 2010 WL 3790297, at *8 (F ed. Cl. Sept. 9, 2010) (reducing an expert’s hourly rate by 50% fo r travel time). This result s in a reduction of $1,757.25.

Based on all of the above, the undersigned finds that petitioner’s counsel is

entitled to reasonable attorne ys’ fees and costs as follows:

Requested attorneys’ fees (bas ed on 70.92 total hours): $29,431.80 Less attorney rate reduction: -$2,046.60 Adjusted total: $27,385.20

Requested costs: +$ 17,111.88

Less 50% rate reduction for 21.3 trav el hours: -$1,757.25 Adjusted total: $15,354.63

Total Attorneys’ Fees and Costs Awarded: $42,739.83

Accordingly, the undersigned awards the total of $42,739.83 8 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Gary A. Krochmal.

The clerk of the court shall ent er judgment in accordance herewith. 9

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

8 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 co sts” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from char ging or collecting fees (including costs) that would

be in addition to the amount awarded herein. See generally Beck v. HHS, 924 F.2d 1029 (Fed. Cir.1991).

9 Pursuant to Vaccine Rule 11(a), entry of judgment c an be expedited by the parties’ joint filing of notice renouncing the right to seek review. Case 1:15-vv-00602-UNJ Document 59 Filed 06/26/17 Page 3 of 3