1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

Filed: July 2, 2018

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

ANNEMONE MOHLER

, * UNPUBLISHED

*

Petitioner, * No. 16

- 1404 V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Special

AND HUMAN SERVICES, * Master’s Discretion; Adjusted

* Hourly Rate; Excessive Time

Respondent. * Expended; Vague Billing Entries.

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

Amy A. Senerth , M uller Brazil, LLP

, Dresher, PA , for petitioner.

Mallory Browne Openchowski , United States Department of Justice, Washington, DC, for

respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On October 26, 2016, Annemone Mohler (“petitioner”)

, filed a petition for compensation

pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner allege d that she

suffered from polymyalgia rheumatica (“PMR”) as a result of an influenza vaccine administered

on November 12, 2013. Petition at Preamble

. O n March 1 , 2018, I issued a decision awarding

petitioner compensation based on the parties’ stipulation. Decision on Stipulation ( ECF No. 35 )

.

On May 1 7, 2018, petitioner filed a n application for final attorneys’ fees and costs. “ Pet.

App. ” ( ECF No. 41 ) . Petitioner requested a total of $ 17,746.50 as reimbursement for attorneys’

fees and $ 4

, 976.55 as reimbursement for costs. Pet. App. at ¶¶ 3, 4 . Thus, petitioner requests a

total of $ 22,723.05 as reimbursement for attorneys’ fees and costs. Id

. at ¶ 4

. In accordance

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause this unpublished decision

contains a reasoned explanation for the action in this case, I intend to post it on the website of the United

States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7.

Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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 invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the

court with a proposed redacted version” of the decision. Id. If neither party files a motion for redaction within 14

days, the decision will be posted on the court’s website without any changes. Id.

2 The Na tional Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine

Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2012)

(Vaccine Act or the Act). All citations in t his decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §

300aa.2

with General Order #9, petitioner’s counsel represented that petitioner did not incur any c osts in

pursuit of this claim. Id.

On May 23 , 2018, respondent filed a response to pe t itioner’s motion. Respondent ’ s

Response ( ECF No. 4 2 ) . Respondent argued that “[n]either the Vaccine 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. Further, respondent “is satisfied the statutory

requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2.

Respondent “respectfully recommends that the Special Master exercise his discretion and

determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner did not file a

reply. T his matter is now ripe for adjudication.

I. Discussion

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and

costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(3) (1).

Petitioner in this case was awarded compensation pursuant to a stipulation , and therefo re s he is

entitled to an award of reasonable attorneys’ fees and costs.

A. Reasonable Attorneys’ Fees

The Fed eral 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 dete rmines “an

initial estimate of a reasonable attorneys’ 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. Special masters have “wide discretion in determining the reasonableness” o f attorneys’

fees and costs, Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (1992), aff’d , 33

F.3d 1375 (Fed. Cir. 1994), and may increase or reduce the initial fee award calculation based on

specific findings. Avera , 515 F.3d at 1348.

In making reductions, a line

- by

- line evaluation of the fee application is not required.

Wasson , 24 Cl. Ct. at 484, rev’d on other grounds and aff’d in relevant part , 988 F.2d 131 (Fed.

Cir. 1993). Special masters may rely on their experience with the Vacc ine Act and its attorneys

to determine the reasonable number of hours expended. Id. Just as “[t]rial courts routinely use

their prior experience to reduce hourly rates and the number of hours claimed in attorney fee

requests . . . [v]accine program speci al masters are also entitled to use their prior experience in

reviewing fee applications.” Saxton v. Sec’y of Health & Human Servs. , 3 F.3d 1517, 1521

(Fed. Cir. 1993).3 i. Reasonable Hourly Rate

Petitioner request ed the following hourly rates for her counsel :

2015 2016 2017 2018

Amy Senerth N/A N/A $225 $225

Clark Hodgson N/A $225 $225 N/A

Max Muller N/A $255 N/A N/A

Paul Brazil $255 $255

- 275 $ 255 $300

Paralegals N/A $125 $125 $125

Pet. App. , Exhibit ( “ Ex. ” ) A.

The requested hourly rates appear overall to be reasonable with the exception of Mr.

Hodgson ’ s requested 2016 hourly rate of $225 per hour

. Chief Special Master Dorsey has

previously awarded Mr. Hodgson a rate of $200 per hour for work performed in 2016

. See

Peterson v. Sec’y of Health & Human Servs.

, N o. 16

- 1166V, 2018 WL 2772317 ( Fed. Cl. Spec.

Mst r . Feb. 26, 2017); see also Clark v. Sec’y of Health & Human Servs.

, No. 16

- 1179V

, 2018

WL 3031032 (Fed. Cl. Spec. Mst r . April 3, 2018) ; Stevenson v. Sec’y of Health & Human Servs.

, No. 16

- 1179V, 2018 WL 3097723 (Fed. Cl. Spec. Mst r . March 28, 2018)

. Thus, I will reduce

Mr. Hodgson’ s rate to $200 per hour for the hours he billed in 2016 , resulting in a deduction

of $112.50

.

The requested hourly rates for the rest of petitioner’s counsel and paralegals are within

the range of hourly rates I found reasonable in McCulloch v. Sec'y of Health & Human Servs.

,

N o. 0 9

- 239V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), and I have p reviously

found the requested hourly rates for 2017 to be reasonable

. See Proctor v. Sec’y of Health &

Human Servs.

, N o. 16

- 1412V, 2018 WL 945858 (Fed. Cl. Spec. Mstr. Jan. 26, 2018). As the

hourly rate s requested by petitioner’s counsel and paralegals for 2018 are also within the

appropriate McCulloch range for paralegals and attorneys with similar experience , I also find the

2018 requested rate s to be reasonable and award them in full.

ii. Reasonable Hours Expended

The second factor in the lodestar formula is a reasonable number of hours expended.

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y of

Health and Human Servs. , 3 F.3 d 1517, 1521 (Fed. Cir. 1993) ; see also, e.g.

, Shorkey v. Sec’y of

Health and Human Servs.

, N o. 15

- 768V, 2017 WL 2119118 (Fed. Cl. Spec. Mstr. April 21,

2017)

. Counsel must submit fee requests that include contemporaneous and spe cific 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 (Fed. Cl. 2008).4

It is “well within the special master’s discretion to reduce t he hours to a number that, in

his experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the

special master may reduce a fee request sua sponte , apart from objections rai sed by respondent

and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of

Health & Human Servs. , 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). A special master need not engage

in a line

- by

- line analysis of petitioner’s fee application when reducing fees. Broekelschen v.

Sec’y of Health & Human Servs. , 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).

a. Excessive Bi lling

Excessive billing ha s previously resulted in a reasonable reduction of attorneys’ fees. See

Tetlock v. Sec’y of Health & Human Servs.

, N o. 1 0

- 56V, 2017 WL 5664257 (Fed. Cl. Spec.

Mstr. Nov

. 1 , 2017) (reduc ing the overal l attorneys ’ fee award by 30 percent due to excessive,

duplicative, and vague billing entries ); s ee also Ericzon v. Sec’y of Health & Human Servs.

, N o.

10

- 103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan 15, 2016) (reducing the overall attorneys ’

fee award by 10 percent due to excessive and duplicative billing).

I have reviewed the billing records and invoices submitted with petitioner’s motion. The

billing entries reflect the nature of each task performed, the amount of time expended, and th e

person performing each task. However, there are some instances of unreasonable or excessive

billing for which I will reduce the amount of fees awarded

.

First, on December 29, 2016, counsel billed 0.20 hours for filing a notice of c hange of

address , which I find excessive for such a simple and uncomplicated task. Pet. App. at 5. I will

thus reduce the amount of time expended to a more reasonable 0.10 hours. Additionally,

petitioner’s counsel billed this task at the attorney rate of $225 per hour

. Such a task does not

require the legal expertise of an attorney and is typically performed by a paralegal. Thus, I will

award the requested paralegal rate of $125 per hour for this task

. These adjustments result in a

reduction of $32.50.

Also on December 29, 2016, Ms. Moyers , a paralegal, billed a total of 0.50 hours to draft

and file a state ment o f completion. I will similarly reduce the hours expended on this task to

0. 2 0 hours

, resulting in a reduction of $37.5 0.

Finally, counsel billed exce ssive time for the Joint Notice Not to Seek Review

(“JNNSR”) in March 2018. Pet. App

. at 9. I am skeptical that the wo rk for a simple, two

sentence JNNSR requires five different entries for 1.2 hours of attorney and paralegal time, and a

total cost of $180. 0 0. As this is an unreasonable amount of time associated with the JNNSR

, I will only award 0.2 hours at the attorney ’ s rate, which results in a reduction of $13 5 .0 0

.

b. Vague Billing Entries

Special m asters have previously found it reasonable to decrease an award of attorneys’

fees for vagueness. See , e.g.

, Barry v. Sec’y of Health and Human Servs.

, No. 12

- 39V, 2016

WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) ; Bondi v. Sec’y of Health & Human S ervs.

, No. 15

- 749V, 2016 WL 1212890 (Fed. Cl. Spec. Mstr. Mar. 4, 2016)

. After reviewing the

billing records, I find that counsel included unreasonably vague billing entries

. See Pet. App. at5

5

- 7. For instance, on February 29, 2016 , p etitioner requests $739.50 for a task simply labeled

“Davies

. ” Pet. App. at 5. The billing entry provides no information about the task or why it took

nearly three hours to complete. Similarly

, a n August 12, 2016 entry is simply labeled “ Byers ”

with no further explanation

. Id. Other vague entries include “to associate re claim prep” on

October 1, 2016, and “completeness ” on December 12, 2016. Id. Such vague entries make it

difficult to determine whether some of these task s are even compensable. The Muller Brazil firm

is cautioned that it may not be compensated for vague billing entries in future motions for

attorneys’ fees and costs.

B. Reasonable Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.

Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner request ed a total

of $4 ,976.55 in out

- of

- pocket expenses. Pet. App

. at 12

. Petitioner’s costs include: the filing

fee; obtaining medical records ; obtaining expert opinions; and a courier service

. Se e Pet. App

. at

13

. The most significant cost is Dr. Gershwin’s expert report, totaling $4,250.00. I have

review ed the submitted invoices, and I find p etitioner’s costs are sufficiently documented and

appear reasonable. Thus, I will award petitioner’s requested costs of $4,976.55 in full.

II. Conclusion

In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is

GRANTED

. I find that she is entitled to the follow ing reasonable attorneys ’ fees and costs:

Attorneys ’ Fees Requested : $ 17,746.50

Reduction to hourly rate:

- $112.50

Reductions for excessive billing :

- $20 5

. 0 0

A ttorneys ’ Fees Awarded : $ 17, 429 .0 0

Attorneys ’ Costs Awarded $ 4,9 76.55

Total Attorneys’ Fees and Costs Awarded: $22, 4 0 5

. 0 5

Accordingly, I award the following:

1) A lump sum in the amount of $ 2 2

, 4 0 5

. 0 5 representing reimbursement for

petitioner’s a ttorneys’ fees and costs, in the form of a check payable jointly to

petitioner and her attorney, Amy A. Senerth, of Muller Brazil, LLP

. 3

3 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,” and fees for legal services rendered. Furthermore, Section 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. Sec’y of Health & Human Servs. , 924 F.2d 1029 (Fed. Cir. 1991).6

In the absence of a motion for reconsideration or a motion for review filed pursuant to

RCFC Appendix B, the Cl erk of the Court SHALL ENTER JUDGMENT herewith. 4

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

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

right to seek review.