# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 8, 2021

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

CHRISTOPHER HARRELSON

, *

* No. 1 5

- 1308 V

* Special Master Sanders Petitioner, *

* UNPUBLISHED

v. *

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *

* Responde nt. *

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

Leah V. Durant

, Law Offices of Leah V. Durant, PLLC, Washington, DC

, for Petitioner ; Adriana R. Teitel , United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

On November 2, 2015

, Christopher Harrelson (“Petitioner”) filed a petition for compensation pursuant to the National V accine Injury Compensation Program. 2 42 U.S.C. §300aa

10 et seq. (2012). Petitioner alleged that the influenza vaccine he received on October 31, 2021

, caused h im to develop Guillain

- Barré syndrome

. On May 5 , 2020, the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on July 21, 2020 . ECF No.

52

.

1 The undersigned intends 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such ma terial from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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).

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 Vacci ne Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).On February 21, 2021 , Petitioner filed a motion for attorney s’ fees and costs. ECF No. 5 7

(“Fees App. ”). Petitioner r equests total attorney s’ fee s and costs in the amount of $ 102,435.88

, representing $ 76,724.80 in attorney s’ fees and $ 25,711.08 in attorney s’ costs. Fees App. at 1. Pursuant to General Order No. 9, Petitioner has indicated that he has not incurred any o ut of pocket

costs

. Id. Respondent responded to the motion on February 21, 2021 , stating that Respondent “ is

satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this

case ” and asking the Court to “exercise its dis cretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2, ECF No. 5 8

. Petitioner filed a reply on February

17 , 202 1 , reiterating h is belief that the requested amount for attorneys’ fees and costs is reasonable.

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 reasonable attorneys ’ f ees and

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two

- step process. Id. First, a court determines 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 downward departure from the initial calculation of 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 (2008). Such applications, however,

should not incl ude 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 commun ity. See Blum , 465 U.S. at 895. 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. Petitioners bear the burden of providing adequa te evidence to prove that the requested hourly rate is reasonable. Id.

a

. Hourly Rate

The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience o f the practicing attorney. McCull och 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). TheCourt 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

Petitioner requests the following hourly rates for the work of h is counsel: for M s. Leah

Durant

, $350.00 per hour for work performed in 2015

- 201 6, $3 6 5.00 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 , and $420.00 per hour for work performed in 2021 ; and for M r. Mi chael Milm o , $ 484 .00 per hour for work performed in

2020. These rates are consistent with what Ms. Durant and Mr. Milmo have previously been awarded for their Vaccine Program work, and the undersigned finds them to be reasonable

herein.

b . Reasonable Number of Hours

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 unnecess ary.” Saxton, 3 F .3 d at 1521 (quoting Hensley v.

Eckerhar t

, 461 U.S. 424, 434 (1983)).

Upon review of the submitted billing records, the undersigned finds the majority of the

time billed to be reasonable. However, the undersigned notes a general issue of vagueness in the description of many of the billing entries, particularly those for communication with 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, the majority of 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”) makin g it difficult for the undersigned to determine whether such communication was necessary and reasonable.

Also vague are billing entries for review of medical records, where most entries simply state “evaluate evidence” or “analyze evidence” without any ind ication of what that evidence is. This is particularly important where, as here, counsel has retained the services of a professional to review medical records. A more detailed billing description would help the undersigned to ensure there was no duplicatio n of efforts in review of medical records.

For these reasons, the undersigned finds that a two percent reduction is appropriate to offset the noted billing issues. This results in a reduction of $ 1,534.49 . Petitioner is therefore awarded final attorneys’ fees of $ 7 5,190.3 1

.

c. Attorney 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 requests

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

. The hourly rates contained within the schedules are updated from the decision in McCulloch , 2015 WL 5634323.a total of $ 25,711.08 in attorneys’ costs, comprised of acquiring medical records, postage, the

Court’s filing fee

, work performed by Dr. Catherine Shaer for review of medical records , and work from Petitioner’s medical expert, Dr. Lawrence Steinman . Fees App. at Ex. 2 at 2

. Petitioner has provided adequate documentation of all these expenses and they appear reasonable for the work performed in this case. Petitioner is therefore awarded the full amount of costs sought.

II. Conclusion

In accordance with the Vaccine Act , 42 U.S.C. §15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and

costs , other than the reductions delineated above, is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to compensate Petitioner and h is counsel as follows:

Attorneys’ Fees Requested $ 76,724.80 (Reduction to Fees)

- ($ 1,534.49 )

Total Attorneys’ Fees Awarded $ 75,190.31

Attorneys’ Costs Requested $ 25,711.08 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 25,711.08

Total Attorneys’ Fees and Costs $ 100,901.39

Accordingly, the undersigned awards a lump sum in the amount of $ 100,901.39

, 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

.

I n the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 4

IT IS SO ORDERED

.

s/ Herbrina D. Sanders

Herbrina D. Sanders Special Master

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