Brown v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 13-766V Filed: December 16, 2016

* * * * * * * * * * * * * * * I.H., a minor, by his mother * UNPUBLISHED ALESKIS BROWN, *

* Chief Special Master Dorsey Petitioner, *

*

v. * Attorneys’ Fees and Costs;

* Reasonable Hourly Rates.

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * * * * Michael G. McLaren, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for petitioner.

Darryl R. Wishard, United States Department of Justice, Washington, D.C., for respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On October 2, 2013, Aleskis Brown (“petitioner”) filed a petition on behalf of her minor son, I.H., under the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to - 34 (2012). Petitioner alleged that I.H. suffered narcolepsy, cataplexy, hypersomnia, lack of coordination/ataxia, and other neurologic and physical impairments as a result of receiving the influenza (“flu”) vaccination on December 10, 2012. Petition at 1.

A fact hearing was held on April 7, 2015, in Memphis, Tennessee. On March 4, 2016, the parties filed a joint stipulation in which they stated that a decision should be entered awarding compensation in the amount of $550,000.00. See Stipulation dated March 4, 2016 (ECF No. 58) at ¶ 8. The undersigned approved the requested amount for petitioner’s compensation. See Decision dated March 4, 2016 (ECF No. 59) at 2.

On June 28, 2016, petitioner’s counsel, Black McLaren Jones Ryland & Griffee, P.C., of Memphis, Tennessee (“the McLaren firm”), filed a motion for attorneys’ fees and costs. See Petitioner’s Application (“Pet’r’s App.”) (ECF No. 64) at 1. Petitioner’s motion requested $60,134.81 in attorneys’ fees and $27,365.87 in attorneys’ costs, for a total of $87,500.68. See Pet’r’s App. Ex. 2 at 33. In accordance with General Order #9, petitioner filed a sworn declaration stating that she incurred no personal costs in pursuit of this claim. See Pet’r’s App., Ex. 3 at 1.

Citing McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), petitioner’s counsel requests forum rates comparable to those paid in McCulloch to the firm of Conway Homer & Chin-Caplan (“the Homer firm”), arguing that “petitioner’s counsel is highly qualified, has significant experience handling vaccine cases, and has a strong reputation through the program for performing quality work.” Pet’r’s App. at ¶ 16.

On July 5, 2016, respondent filed a response to petitioner’s motion. Respondent’s Response (“Resp’s Resp.”) dated July 5, 2016 (ECF No. 65). Respondent argued that petitioner’s counsel is not entitled to forum rates and described the payment of Dr. Gershwin as “troubling,” but otherwise declined to further address the specifics of petitioner’s request. Respondent deferred to the Chief Special Master’s discretion with regard to the reasonableness of the requested hours and expenses. Id. at 12. Respondent proposed that a reasonable amount for fees and costs in the present case would fall between $52,000.00 and $61,000.00. Id. at 13.

In a reply filed on July 7, 2016, petitioner contended that respondent’s proposed range is arbitrary and should be considered to “carry no persuasive value.” See Petitioner’s Reply (“Pet’r’s Reply”) dated July 7, 2016 (ECF No. 66) at 1. Petitioner further contended that respondent’s response was limited to disputing the application of a forum rate and urged that respondent be deemed to have waived any specific objections to the remainder of petitioner’s fee application. Id. at 4 n.2. Petitioner also submitted supplemental billing records requesting $884.50 in additional fees and $8.20 in additional costs incurred in preparing petitioner’s fee application, bringing the total requested amount of attorneys’ fees and costs to $88,393.38. Id., Ex. 2 at 1.

This matter is now ripe for adjudication. For the reasons set forth below, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs and awards a total of $88,375.38.

On November 4, 2016, the undersigned issued a reasoned decision in Henry v. Sec’y of Health & Human Servs., 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov. 4, 2016), addressing the parties’ respective arguments regarding the appropriateness of forum versus local hourly rates for the McLaren firm. The undersigned concluded that petitioner’s counsel should be compensated at forum rates, which are consistent with the rates requested in the instant application. The undersigned adopts the reasoning in the Henry decision for the instant analysis.

The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned will not reduce the requested hours or costs. 3 However, consistent with Henry, the undersigned reduces the award to reflect an hourly rate reduction for 2016 paralegal rates. The undersigned further notes that the instant application for fees and costs states that petitioner requests $140.00 per hour for paralegal work performed in 2016. See Pet’r’s App. at 24, n. 10. However, the billing records reveal that some of the firm’s paralegals were billing $140.00 per hour in 2016, while others were billing $150.00 per hour. Compare Pet’r’s App., Ex. 2 at 28, with id. at 29. In accordance with her previous decision in Henry, the undersigned reduces the entries billed at the $150.00 per hour rate to $145.00 per hour, thus reducing petitioner’s fees in this case by $18.00. 4

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 requests a total of $27,374.07 in attorneys’ costs. See Pet’r’s App., Ex. 2 at 33; Pet’r’s Reply Ex. 2 at 1. The requested attorneys’ costs include filing fees, medical record fees, postage, photocopies, travel expenses, court reporter fees, guardianship services, and expert fees charged by Dr. Merrill Eric Gershwin, Dr. C. Greg Cates, Dr. Robert A. Schoumacher, and Dr. Parker Cashdollar. See Pet’r’s Ex. 38 at 29-32, 77-79. In accordance with General Order #9, petitioner states that she did not incur personal costs in pursuit of the claim. See Pet’r’s App., Ex. 3 at 1. The undersigned finds the requested attorneys’ costs to be reasonable and will pay them in full.

I. Conclusion

Based on all of the above, the undersigned finds that petitioner’s counsel is entitled to reasonable attorneys’ fees and costs as follows:

Requested attorneys’ fees: $61,019.31 2016 Paralegal Rate adjustment - $18.00 Adjusted total: $61,001.31 Requested Costs: $27,374.07 Total Attorneys’ Fees and Costs Awarded: $88,375.38

Accordingly, the undersigned awards a lump sum of $88,375.38, representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Black McLaren Jones Ryland & Griffee, P.C.

In the absence of a motion for review filed pursuant to the RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith. 5

IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master