# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-718V (Not to be Published)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * STEVEN PANCOAST, * Special Master Corcoran * Petitioner, * Filed: November 16, 2016 * v. * Decision; Attorney’s Fees and Costs. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

William E. Cochran, Jr. , Black McLaren Jones Ryland & Griffee, PC, Memphis, TN, for Petitioner.

Sarah C. Duncan , U. S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTO RNEY’S FEES AND COSTS 1

On July 10, 2015, Steven Pancoast filed a pe tition seeking compensation under the National Vaccine Injury Compensation Program, alleging, among other things, that the influenza (“flu”) and Tetanus-diphtheria-acellular pertussis (“Tdap ”) vaccines he received on November 20, 2012, caused his subsequent development of brachial neuritis. 2 ECF No. 1.

1 Because this decision contains a reasoned explanation fo r my action in this case, I will post this decision on the United States Court of Federal Claims’ website, in accordan ce with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of confidentia l information. Specifically, under 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 secret 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 i nvasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public. Id.

2 The Vaccine Program comprises Part 2 of the National Chil dhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Ac t” or “the Act”). Individual section references hereafter will be to § 30 0aa of the Act (but will omit that statutory prefix).2 Thereafter, the parties entered into inform al settlement negotiations, and requested issuance of a “15 Week” Order, and I did so. ECF No. 17. The parties then filed their stipulation for an award of $172,667.50 in damages, as well as an amount sufficient to purchase an annuity contract, on August 17, 2016 (ECF No. 20), which I adopted as my decisi on granting damages on August 19, 2016. ECF No. 21.

Petitioner has now filed a motion for a final aw ard of attorney’s fees and costs, dated September 14, 2016. See ECF No. 25 (“Fees App.”). Petiti oner requests reimbursement of attorney’s fees and cost s in the amount of $46,045.76 3 (representing attorney’s fees in the amount of $39,281.50, plus costs in the amount of $6,764.26). Id . In addition, and in compliance with General Order No. 9, Petitioner re presents that he incurred no li tigation-related expenses in conjunction with this proceeding. Id.

Respondent filed a brief reacti ng to Petitioner’s fees reques t on October 3, 2016. ECF No. 27 (“Response”). Respondent assert ed that the requested hourly ra tes for Petitioner’s counsel reflect forum rates, to which Petitioner’s counsel , the law firm of Black McLaren Jones Ryland & Griffee (“Black McLaren”), is not entitled. Id. at 1. Instead, Respondent argued that Petitioner’s counsel should receive the hourly rate awarded to attorneys in Memphis, Tennessee, because all of counsel’s work was performed outside the forum of Washington, DC, and because the hourly rate in Memphis is substantially lower than the forum rate. 4 Id. at 2-3. As proof of the local hourly rate, Respondent relied on the lower hourly rates Black McLaren attorneys have accepted in past cases, several cases awarding lower hourly rates fr om the Western District of Tennessee (in which Memphis is located), and the 2014 Real Rate Re port which suggests atto rney rates based on location, experience, practi ce area, and firm size. Id. at 4-5. Respondent argued that these lower rates were more appropriate than the forum rates Petitioner requests.

Aside from the appropriate hourly rate, Re spondent also noted that the amount of reasonable attorney’s fees is with in the special master’s discretion. Id. at 12. Though she did not take issue with the majority of the billing entries, she specifically alleged that Petitioner’s request for full compensation of travel time to and from a client meeting was overbilled and should be
reduced. Id . Respondent ultimately maintained that a r easonable amount for fees and costs in the

3 This sum includes the additional $1,063.88 requested in Petitioner’s Reply to the Response, incurred in connection with filing the reply brief, plus additional work perfor med after filing the initial fees request. ECF No. 28 at 5.

4 Respondent relied on the Davis County exception set forth in Avera to support this argument. Avera established the “forum rule,” which awards Vaccine Prog ram attorneys the same hourly rates paid to attorneys with similar experience in the forum (here, Washington, DC). Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1348 (Fed. Cir. 2008). The Davis County exception to the forum rule applies if the bulk of the attorney’s work was performed outside of Washington, DC, in a location where prevailing hourly rates are substantially lower than the forum rate. Id . at 1349 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency , 169 F.3d 755, 758 (D.C. Cir. 1999)).3 present case would fall between $25,000.00 and $39,000.00, but provided no cases or support for this range. Id

.

On October 13, 2016, Petitioner filed a reply. ECF No. 28 (“Reply”). Petitioner argued that counsel is in fact entitled to the forum rate, becau se the local rate is not very significantly different
from the forum rate. Id. at 1-2. He also noted that any hourly rates Petitioner’s counsel had agreed to in the past were mostly the result of sti pulation, and were therefor e not a concession as to counsel’s reasonable hourly rate. Id. Petitioner took issue with the Western District of Tennessee cases, as well as the 2014 Real Ra te Report, because the rates cont ained therein were not adjusted for inflation before comparing them to the 2015 forum rates, and thus were not an accurate
reference for the local rate. Id. at 2-3. Further, Petitioner noted that Respondent made no attempt to show how the cited cases comp ared to the type of litigation and attorney experience in this

matter. Id.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). An attorney’s reasonable hourly rate is determin ed by the “forum rule,” which bases the award on rates paid to similarly qualified attorneys in the forum in which th e relevant court sits (Washington, DC, for Vaccine Act cases), except where an attorney’s work was not performed in the forum and
there is a substantial difference in rates. Avera

, 515 F.3d at 1348 (citing Davis Cty. , 169 F.3d at 758) (creating the Davis Cty. exception that determines when an attorney should receive local hourly rates instead of forum rate s). The hourly rate ranges for atto rneys of different levels of experience who are entitled to the forum rate in Vaccine Program cases are set forth in McCulloch v. Sec’y of Health & Human Servs. , No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). 5

This matter was handled by several Black McLa ren attorneys. For Mr. Michael McLaren’s work on this matter, Petitioner requests $395 pe r hour for work performed in 2014; $410 per hour for 2015 work; and $425 per hour for 2016 work. Fees App. at 9. For Mr. William Cochran Jr., Petitioner requests $335 per hour for 2014 work; $345 per hour for work performed in 2015; and $355 per hour for 2016. Id. For Mr. Chris Webb, Petitioner requests $285 per hour for 2014 work; $295 per hour for 2015; a nd $305 per hour for 2016. Id. Petitioner requests reimbursement for work performed by law clerks at the rate of $140 per hour for 2014; $1 45 per hour for 2015; and $150 per hour for 2016. Id. Finally, for paralegal work, Peti tioner requests $130 per hour for 2014; $135 per hour for 2015; and $140 per hour for 2016. Id.

5 The McCulloch forum rate ranges have recently been compiled into a list and posted to the Vaccine Claims section of the United States Court of Federal Claims website. The forum hourly rate fee schedule can be accessed at: http://www.uscfc.u scourts.gov/vaccine-programoffice-special-masters.4 Attorneys located at Black McLaren have r ecently been found by other special masters to be entitled to forum hourly rates. See Henry v. Sec’y of Health & Human Servs. , No. 15-545V, slip op. (Fed. Cl. Spec. Mstr. Nov. 4, 2016). In Henry , Chief Special Master Dorsey examined cases
from the Western District of Tennessee to determin e the appropriate local h ourly rate for Memphis,
as well as Black McLaren’s current local hourly rates for non-complex general litigation. See id. at 8-9. Those rates were then adjusted before comparing the Memphis hourly rates to the forum
rates in DC. Id. at 8. Based on this examination, the specia l master found that th e local rates were consistent with the forum rate ranges for 2015, a nd Black McLaren attorney s should receive forum

rates. Id. at 12.

I find the reasoning of Henry persuasive, and I will therefor e adopt it herein in my fee award. It is thus appr opriate to apply the McCulloch forum rate ranges to the work performed by Mr. McLaren, Mr. Cochran, Mr. Webb, a nd the law clerks and paralegals.

According to Petitioner’s fees request, Mr. McLaren has over 40 years of experience. Fees App. at 16. The forum rate range for an attorney with more than 31 years of experience in practice for 2015-2016 is $385-$430. McCulloch , 2015 WL 5634323, at *19. Mr . Cochran has over 14 years’ experience. Fees App. at 18. The forum rate range for an a ttorney with sim ilar experience is $300-$375 per hour. McCulloch , 2015 WL 5634323, at *19. Mr. Webb has almost 9 years of experience. Fees App. at 21. The forum rate range fo r an attorney with 8 to 10 years’ experience is $275-$350 per hour. McCulloch , 2015 WL 5634323, at *19. The requested hourly rates above are thus within these applicable ranges, and will therefore be awarded. The requested rates are also in line with those recently awar ded to Black McLaren attorneys. See Henry , No. 15-545V, at 12 (awarding 2016 hourly rates of $425 to Mr. McLa ren; $355 to Mr. Cochran; $305 to Mr. Webb; and $150 to paralegals). The requested rates for law clerks an d paralegals are likewise consistent
with McCulloch rates, and will not be adjusted. Id. at *21.

The majority of the hours expended on this matter (123.5 hours in total) were also
reasonable. The time it took to resolve the case wa s not unusually long, and was largely a result of the parties’ damages negotiations. Fees and co sts associated with settlement are properly
reimbursable. Thomas v. Sec’y of Health & Human Servs ., No. 92-46V, 1997 WL 74664, at *7 (Fed. Cl. Spec. Mstr. Feb. 3, 1997) (rejecting Respondent ’s assertion that the fees and costs should necessarily be lower when a case settles without hearing).

In addition, Respondent’s suggested range is not persuasive under these circumstances. Petitioner’s counsel promptly collected the majority of the n ecessary record s in the year prior to filing the case, and after filing a few additiona l records that Respondent deemed necessary, Petitioner and Respondent agreed to enter into informal settle ment negotiations. The overall5 amount of hours spent on this case appears reas onable, and will not be re duced solely to fit a suggested range, especially abse nt other grounds for a reduction.

Respondent’s only specific objection to any of th e billing entries relates to counsel’s travel from Memphis to Virginia Beach to meet with Petitioner. Response at 12 n.13. Respondent alleged that the common practice in the Pr ogram is to compensate hours sp ent traveling at one-half the normal hourly rate. However, the fact that an attorney is traveling is not dispositive of how to treat such attorney time. See, e.g.

, King v. Sec’y of Health & Human Servs. , No. 03-584V, 2009 WL 2524564, at *4 (Fed. Cl. Spec. Mstr. July 27, 2009); Kuttner v. Sec’y of Health & Human Servs.

, No. 06-195V, 2009 WL 256447, at *10 (Fed. Cl. Spec. Mstr. Jan. 16, 2009). In some situations, an award of full attorney’s fees for travel is appropriate if sufficient documentation exists specifying the work performed while traveling. Gruber v. Sec’y of Health & Human Servs. , 91 Fed. Cl. 773, 791 (2010).

Here, the billing invoices list two entries for traveling to and from a meeting with Petitioner, and one entry reflecting the actual tim e spent meeting with Petitioner on October 15, 2015. ECF No. 25-2 at 6. While the common practice is to compensate this time at one-half the normal rate, these entries, along with Petitioner’s fees application, give sufficient documentation of the work perfor med while traveling. See id. ; Fees App. at 10

. The billing entries show that Petitioner’s counsel prepared for the meeting during the flight to Virginia Beach, and reviewed the meeting notes and developed a plan for completi ng damages valuation on the return flight. ECF No. 25-2 at 6. Further, Petitione r’s counsel affirmed that he habitually works on a case while traveling by plane, and did so in this matter. Fees App. at 10. Thus, the time entries sufficiently reflect work performed during the travel ti me and merit full compensation under Program
standards.

As noted above, Petitioner additionally requests an award of litigation costs for counsel of $6,764.26, reflecting payments for medical records, f iling fees, and travel-related costs. ECF No. 25-2 at 14; ECF No. 28-2 at 1-2. Respondent has o ffered no specific objections to these costs, and upon review of the record I fi nd that they are reasonable.

Accordingly, based on the reasonableness of Petitioner’s reque st, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $46,045.76 as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. William E. Cochran, Jr., Esq., representing $39,281.50 in attorney’s fees and $6,764.26 in costs.6 The clerk of the Court shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran Special Master

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