1 

# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

No. 1 5

- 623 V

Filed: Febr uary 1 , 2017

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

SAMUEL V. DARROCH

, *

* UNPUBLISHED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

. Althea W. Davis , United States Department of Justice, Washington, DC, for r espondent.

DECISION ON ATTORNEY S ' FEES AND COSTS 1

On June 18, 2015

, Samuel Darroch (“petitioner”) filed a petition pursuant to the National

Vaccine Injury Compensation Program

. 42 U.S.C. §§ 300aa

- 1 0 to 34 (2012). Petitioner alleged

that he suffered seizures as a result of receiving a t etanus vaccination. Petition at 1

- 2. On

Novembe r 1, 2016

, petitioner moved for a decision dismissing his petition, and a decision

dismissing the petition for insufficient proof was issued November 3, 2016.

On January 11 , 2017, petitioner filed a n application for attorneys’ fees and costs,

requesting $ 19,766.50 in attorneys’ fee s

, $ 3,867.16 in attorneys’ costs

, and $604.10 in

petitioner’s costs, for a total of $ 24,237.76 in attorneys’ fees and costs. Petitioner’s (“ Pet. ”)

Application (“ App

. ”) at 1 ; Pet. App., Ex. 3. Respondent filed a response to petitioner ’ s application on January 26, 2017, 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

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

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

Section 15(e) of the Vaccine Act governs attorneys’ fees. 42 U.S.C. § 300aa

- 15 (e).

When awarding compensation on a petition, the special master “shall also award” reasonable

attorney s ’ fees and costs. Id. at §15(e)(1)(A)

- (B). Even when compensation is not awarded, the

special master “may award” reasonable attorneys’ fees and cost s “if the special master or court

determines that the petition was brought in good faith and there was a reasonable basis for the

claim for which the petition was brought.” Id. at § 15(e)(1). Respondent states that she “i s satisfied the statutory require ments for an award of attorneys’ fees and costs are met in this

case ,” and the undersigned finds that the case was brought in good faith and with a reasonable

basis, and will award attorneys’ fees and costs. Respondent’s Response at 2.

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 att orneys’ fee by ‘multiplying the number of hours reasonably

expended on the litigation times a reasonable hourly rate.’” Id. 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 reasonab ly comparable

skill, experience, and reputation.” Avera , 515 F.3d at 1347

– 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 r ates 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 & Human Servs. , 85

Fed. Cl. 313, 316

- 18 (2008). Counsel should not include in their fe e requests hours that are

“excessive, redundant, or otherwise unnecessary.” Saxton , 3 F.3d at 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 & Human

Servs. , 27 Fed. Cl. 29, 34 (1992 ) ). The determination of reasonable attorneys’ fees and costs is

within the special mas ter's discretion. Saxton v. Sec’y of Health & Human Servs. , 3 F.3d 1517,

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

applications. See id. , 3 F.3d at 1521 (citing Farrar v. Sec’y of Health & Human Servs. , N o. 90

- 1167V, 1992 WL 336502

, at *2

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

Petitioner requests the following rates:

Michael M cLaren :

$ 410 (2015)

$ 425 (2016)

William Cochran:

$ 345 (2015)

$ 355 (2016)

C hris W ebb :

$ 295 (2015)

$ 305 (2016)

Law Clerks:

$ 145 (2015)

$ 150 (2016)

Paralegals:

$ 135 (2015)

$ 140 (2016)

Pet. App. at 9.

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. Mstr. N ov. 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 forum4

rates in Washington, D.C. The rates requested in this case are consistent with the rates awarded

in Henry , and the undersigned will award them as requested.

ii. Hours Expended

Petitioner requests compensation for 9.70 hours of work performed by Mr. McLaren,

26.10 hours of work performed by Mr. Cochran, 2.10 hours of work performed by associate

Chris Webb, 7.20 hours of work performed by paralegal Carmen Garcia, and 31.30 hours of

work performed by paralegal Samantha Ward. Pet. App., Ex. 2, a t 12. On review of petitioner’s

billing record, the undersigned finds the number of hours expended reasonable.

iii. Costs

Petitioner request s $3,867.16 in attorneys ’ cost s. Pet. App. at 1; Pet. App., Ex. 2 at 13

. The requested costs cons ist primarily of costs of obtaining medical record s and the cost of an

expert report. Pet. App., Ex. 2 at 13

- 32. The undersigned finds the requested attorneys’ costs

reasonable.

Petitioner requests $604.10 in petitioner’s costs. See Pet . App., Ex. 3 at 1. These costs

include the cost of ordering the transcript of the initial status conference, held while petitioner

was proceeding pro se at the outset of his case. Id. at 2. The remaining $400 requested appears

to be the filing fee incurred during petitioner’s pro se period

, a s docket entry number one

indicates the filing fee of $400 was paid at the time the petition was filed , receipt number CFC

1 00000950 . The undersigned finds the requested petitioner’s 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 $24,237. 76 reasonable.

Pursuant to 42 U.S.C. § 300aa

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

follows: 2

(1) A lump sum of $ 23,633.66 in the form of a chec k payable jointly to p etitioner

and petitioner ’ s attorney, William E. Cochran, Jr., Black McLaren, et al.,

PC

, for attorneys’ fees and costs ; and

(2) A lump sum of $604.10 payable to petitioner for petitioner’s costs.

2 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).5

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. 3

IT IS SO ORDERED.

s/ Thomas L. Gowen

Thomas L. Gowen

Special Master

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

renouncing the right to seek review.