# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-0544V Filed: October 6, 2017

UNPUBLISHED

DIANE M. SPHAR,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Attorneys’ Fees and Costs; Reasonable Hourly Rate, Improperly Billed Items; Supplemental Fees

Wesly Matthew Nakajima, OConnor Acci ani and Levy, LPA, Cincinnati, OH, for petitioner. Linda Sara Renzi, U.S. Department of Ju stice, Washington, DC, for respondent.

DECISION ON ATTORNE YS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On May 28, 2015, Diane Sphar (“petiti oner”) filed a petition for compensation under the National Vaccine Injury Com pensation Program, 42 U.S.C. §300aa-10, et

seq., 2 (the “Vaccine Act”). Petitioner alleged t hat she suffered a radial nerve injury in her right arm as a result of an influenza (“f lu”) vaccine she received on November 18, 2013. On July 25, 2016, the undersigned iss ued a decision awarding compensation to petitioner based on respondent’s pr offer. (ECF No. 35.)

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Cour t of Federal Claims'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).2 A. Procedural History of Request for Attorneys’ Fees and Costs

On January 10, 2017, petitioner filed her first motion requesting an award of attorneys’ fees and costs. (ECF No. 41). On January 23, 2017, respondent filed his standard response to petitioner’s motion. (ECF No. 43.) In the response, respondent states “[n]either the Vacci ne Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees

and costs.” Id. at 1. Respondent added, however, that he “is satisfied the statutory requirements for an award of attorneys’ f ees and costs are met in this case.” Id. at 2. Respondent “respectfully recommends that t he Chief Special Master exercise her

discretion and determine a reasonable awar d for attorneys’ fees and costs.” Id. at 3.

Because of a number of issues that were identified in petitioner’s application for attorneys’ fees and costs, the OSM staff attorney managing this case held a status conference with the parties. Among the iss ues discussed were clarification of a contingency fee agreement bet ween petitioner and her couns el, the costs billed by petitioner’s counsel for a prior civil court ac tion, the hourly rates claimed by all of her attorneys (which were all higher than the Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule), 3 and specific time entries which are not typically compensated in the Vaccine Program. See Scheduling Order dated April, 21, 2017 (ECF No. 45). Petitioner was offered the opportunity to file an amended application for attorneys’ fees and costs addressing the issu es raised during the status conference or to file a status report confirming that the motion for attorney’s fees and costs was ripe for ruling as is. Id . at 3-4.

On June 21, 2017, petitioner filed an amended motion for attorneys’ fees and costs (“Amended Motion”) (ECF No . 46). Petitioner revised her request to now request attorneys’ fees in the am ount of $33,869.00, an additional $3, 210.50 in attorneys’ fees for additional time spent revising the fee appl ication and attorneys’ costs in the amount of $1,633.98. Id. at 1-2. In accordance with General Order #9, petitioner's counsel has confirmed that petitioner incu rred no out-of-pocket expenses. See Affidavit filed April 14, 2017 (ECF No. 44.) Thus, the total amount requested is $38, 713.48. Respondent did not file an additional response.

The undersigned has reviewed the billing records submitted with petitioner’s amended request. In the undersigned’s expe rience, the revised request appears reasonable overall, however, the requested billing rates will need to be revised to account for the years of experience for Mr . Mueller and Mr. Na kajima in 2014-2017.

3 Schedule for 2015-2016 is available at: http://www.cofc.uscourts.gov/site s/default/files/Attorneys-ForumRate-Fee-Schedule-2015-2016.pdf , and for 2017 at: http://www.cofc.uscourts.gov/sites/default/file s/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf

.3 B. Evaluation of Petitioner’s Attorn eys’ Fees and Costs Application

Attorneys’ fees in the Vaccine Program are calculated using the lodestar method, which involves multiplying a reasonable hourl y rate by a reasonable number of billed

hours. Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1347-48 (Fed. Cir. 2008). An attorney representi ng a petitioner in the Vaccine Program is paid the forum rate unless the bulk of the work was perform ed in a locale other than the forum (i.e., District of Columbia), and the local rate is ve ry significantly lower than the forum rate.

Id. at 1349. If these two requirements are met, the Davis exception applies, and the attorney is paid according to the local rate. Id. (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)).

Although not explicitly stated in the statut e, the requirement t hat only reasonable amounts be awarded applies to co sts as well as fees. See Perriera v. Sec’y of Health &

Human Servs. , 27 Fed. Cl. 29, 34 (1992), aff’d , 33 F.3d 1375 (Fed. Cir. 1994).

Special masters have “wide latitude in determining the reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs. , 22 Cl.Ct. 750, 753 (1991). They may look to their experi ence and judgment to r educe the number of hours billed to a level they find r easonable for the work performed. Saxton ex rel. v. Sec’y of Health & Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required. Wasson v. Sec’y of Health & Human

Servs. , 24 Cl.Ct. 482, 483 (1991) aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam).

Petitioners “bear[] the bur den of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson , 24 Cl.Ct. at 484. A dequate proof of the claimed fees and costs should be pres ented when the motion is filed. Id. at 484 n.1. Counsel “should make a good faith effort to exclude from a fee r equest hours that are excessive, redundant, or otherwise unnecessary, ju st as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley v.

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

I. Hourly Rates

a. Paul D. Mueller

In support of her fee applic ation, petitioner states that Mr. Mueller “has been in practice for eleven years with a focus on medi cal malpractice” and requests an hourly rate of $350 “in light of his skill, experienc e, reputation and the Offic e of Special Masters Attorney Fee Schedule.” Amended Motion at 8-9. For an attorney practicing in the forum with 11 years of experie nce, the Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule for 2015-2016 permits an attorney to bill in a range from $300 to $375 an hour. However, the fee applicat ion fails to take into account the4 number of years of experience Mr. Mueller had in 2014. The first billing entry by Mr. Mueller is dated January 23, 2014. As a Ma y 2006 law school graduate, Mr. Mueller, at most, would have had 7 years of experienc e from January to May 2014 and 8 years of experience from May 2014 to May 2015. Mr. M ueller had only one billing entry in 2015 (January 23, 2015) and did not bill in 2016-2017. The hourly rate range for an attorney with 4-7 years of experience is $225-$300 and for 8-10 years of experience, that range is $275-$350. Thus, for all ti me entries billed by Mr. Mu eller up until May 1, 2014 (5.3 hours), he will be awarded an hourly rate of $300. For time b illed after May 1, 2014 (6.7 hours), Mr. Mueller is awarded an hourly rate of $350. This results in a total reduction of $265.00.

b. W. Matthew Nakajima

Petitioner also requests an hourly rate of $350 for Mr. Nakaji ma. In support of her application, petitioner stat es that Mr. Nakajima “has been practicing law for eight years with extensive experience in pers onal injury cases ranging from medical malpractice, wrongful death, tr uck wrecks, train wrecks, in surance bad faith and product liability claims...” Amended Moti on at 9. For an attorney pr acticing in the forum with 8 to 10 years of experience, t he Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule for 2015-2016 permits an attorney to bill in a range from $300 to $375 an hour. Petitioner’s fee application again fails to take into account the number of years of experience Mr. Nakajima had in 2014-2016. The first billing entry by Mr. Nakajima is dated December 3, 2014. As a May 2008 law school graduate, Mr. Nakajima had 6 years of experience from October 2014 to May 2015, 7 years of experience from May 2015 to May 2016, and 8 years of experience from May 2016-May 2017. As previously stated, the hourly rate range fo r an attorney with 4-7 year s of experience is $225-$300 and $275-$350 for attorneys with 8- 10 years of experience. T hus, for all time entries billed by Mr. Nakajima from October 2014 up until May 1, 2016 (41. 9 hours), he will be awarded an hourly rate of $300. For time billed after May 1, 2016 (21.4 hours), Mr. Nakajima is awarded an hourly rate of $350. This results in a total reduction of $2,095.00.

II. Improperly Billed Entries

As was stated in the April 12, 2017 Sc heduling Order, time spent learning the Vaccine Program and time related to seeking admission to the U.S. Court of Federal Claim is not compensable. While most of the entries in the revised fee application were
removed, there are several that remained. Time billed by Mr. Nakajima on December 17, 2014 for researching the “Vaccine In jury Compensation Program” (0.7 hours) 4 and on February 11, 2015 for researching “Vacci ne Injury Claims” (0.8 hours) is not compensable. In addition, time billed by Mr. Nakajima on March 29, 2015 for completing his application for admission to the Court of Federal Claims (1.2 hours) and

4 This particular billing entry contains a mathematic al error. Mr. Nakajima billed 0.7 hours at $400/hr which should have totaled $280. The billing entry on the timesheet totaled $400 instead of $280.5 for taking the E-filing test on May 4, 2015 (0 .4 hours) is not compensable. Likewise, time billed by the paralegal on March 31, 2015 to complete the E-f iling tutorial (0.5 hours) will not be compensated. All of t hese time entries have been removed and results in a reduction of $1,002.50.

The undersigned notes that the paralegal billed for work that would be considered secretarial work such as copyi ng, scanning, saving records, filing exhibits, preparing invoices and scheduling appointments. It is well established that billing for

clerical and other secretarial work is not permitted in the Vaccine Program. Rochester

v. United States , 18 Cl.Ct. 379, 387 (1989) (denying an aw ard of fees for time billed by a secretary and finding that “[these] se rvices ... should be considered as normal

overhead office costs included within the atto rneys’ fee rates”). The undersigned will not deduct these entries in this particular ca se. However, should petitioner’s counsel participate in the Vaccine Program in the fu ture, these items will be deducted from any future fee applications.

III. Time Billed for Revising the Fee Application

Petitioner billed an additi onal $3,210.50 for time spent during the status conference on April 12, 2017, to discuss her fee application as well as time spent revising and filing the amended fee applicati on. While petitioner’s attorneys will be compensated for this time in this particula r case only, the undersigned emphasizes that information regarding attorney fee applicat ions and hourly rates is found in the

Guidelines for Practice U nder the National Vaccine Injury Compensation Program, the Vaccine Rules and in the Office of Special Ma sters Attorneys’ Forum Hourly Rate Fee

Schedules all of which are ava ilable on the Court’s website. The status conference to discuss the deficiencies in the fee application and the time petitioner spent revising her fee request should not have been necessary, es pecially since petitioner is requesting the maximum hourly forum rates fo r each of her attorneys.

IV. Conclusion

The Vaccine Act permits an award of reasonable a ttorneys’ fees and cost s. § 15(e). Based on the reas onableness of petitioner’s revised request and the adjustments made in this decision, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs as follows:

Requested attorneys’ fees: $33869.00 Less reduction of hourly rates for Paul Mueller: - $ 265.00 Less reduction of hourly rates for W. Matt Nakajima: - $2,095.00 Less reduction of improperly bi lled hours: - $1,002.00

Supplemental Attorney Fees Requested: $3,210.50

Costs: $1,633.986 Total Attorneys’ Fees and Co sts Awarded: $35,351.48

Accordingly, the undersigned awards the total of $35,351.48, 5 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel, O’Connor, Acciani, & Levy.

The clerk of the court shall ent er judgment in accordance herewith. 6

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

5 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. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991).

6 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.