McLoughlin v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 2, 2020 * * * * * * * * * * * * * * SEAN MCLOUGHLIN, Executor * of the Estate of JOHN * MCLOUGHLIN, * No. 17-1478V * Special Master Sanders Petitioner, * * UNPUBLISHED v. * * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington, DC, for Petitioner; Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On October 10, 2017, Sean McLoughlin (“Petitioner”) filed a petition for compensation as executor of the estate of John McLoughlin pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq. (2012). Petitioner alleged that the influenza vaccine Mr. McLoughlin received on October 24, 2014, caused him to develop Guillain-Barré syndrome. On

The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the Ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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).

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 Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

September 3, 2019, the parties filed a stipulation for award, which the undersigned adopted as her decision awarding compensation on September 9, 2019. ECF No. 38.

On March 9, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 44 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $33,394.06, representing $28,523.10 in attorneys’ fees and $4,870.96 in attorneys’ costs. Pursuant to General Order No. 9, Petitioner has indicated that he has incurred out of pocket costs of $400.00.

Respondent responded to the motion on March 18, 2020, stating that Respondent “is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this case” and asking the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 45. Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The Federal Circuit has approved 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, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348.

It is “well within the special master’s discretion” to determine the reasonableness of fees.

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in a line-by-line analysis of petitioners' fee application. Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec'y of Dep't of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev'd on other grounds and aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests ... Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.

a. Hourly Rate The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3 Petitioner requests the following hourly rates for the work of his counsel: for Mr. Clifford Shoemaker, $415.00 per hour for work performed in 2015, $430.00 per hour for work performed in 2016, $440.00 per hour for work performed in 2017, $450.00 per hour for work performed in 2018, and $460.00 per hour for work performed in 2019; and for Ms. Renee Gentry, $415.00 per hour for work performed in 2016, $424.00 per hour for work performed in 2017, $435.00 per hour for work performed in 2018, and $445.00 per hour for work performed in 2019. Petitioner also requests that work performed by students at the George Washington University Law School Vaccine Injury Clinic be compensated at $145.00 per hour for their work. These hourly rates are consistent with what the work of Mr. Shoemaker, Ms. Gentry, and GWU Law School students has previously been compensated at, and the undersigned finds them to be reasonable herein.

b. Reasonable Number of Hours Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee 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 undersigned and other special masters have previously noted some of the inherent billing issues which arise from the arrangement Ms. Gentry and Mr. Shoemaker have with The George Washington University Law School. See, e.g., Clubb v. Sec’y of Health & Human Servs., No. 15-891V, 2019 WL 1040384 (Fed. Cl. Spec. Mstr. Feb. 4, 2019); Parker v. Sec’y of Health & Human Servs., No. 02-1553V, 2018 WL 3433739 (Fed. Cl. Spec. Mstr. Jun. 19, 2018). In short, because Ms. Gentry and Mr. Shoemaker serve both as attorneys and professors in these cases, there is an inherent element of teaching the students which leads to an increased number of hours billed, both by the attorneys and the students, who fill the role traditionally filled by paralegals in Vaccine Program cases. This leads to overbilling because Ms. Gentry and Mr. Shoemaker must expend more time to provide guidance to the students than would typically be expected between an The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. attorney and experienced paralegal. Additionally, the students bill more time than would be expected to complete routine tasks because they have much less experience handling casework than the average paralegal.

These issues are present in the instant case. The undersigned notes that a large amount of time was billed on communication with students, which is not typically present in non-GWU cases handled by counsel. Furthermore, the GWU students billed a generally excessive amount of time to complete routine work, and also billed for clerical tasks (examples include one student billing one hour to prepare a motion for enlargement of time and two hours to prepare a notice of filing, an updated exhibit list, and the statement of completion, and another student billing over six hours to print hard copies of correspondence and court filings and organize them).

Overall, upon review of the submitted billing entries the undersigned finds that a twenty percent overall reduction is warranted. This results in a reduction of $5,704.62. Petitioner is therefore awarded final attorneys’ fees in the amount of $22,818.48.

c. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of attorneys’ 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 $4,870.96 in attorneys’ costs, comprised of acquiring medical records, postage, and work performed by Petitioner’s expert, Dr. Carlo Tornatore. Fees App. at 13. Petitioner has provided adequate documentation of all these expenses and they appear reasonable for the work performed in this case. Petitioner is therefore awarded the full amount of costs sought.

d. Petitioner’s Costs Pursuant to General Order No. 9, Petitioner states that he has incurred $400.00 in out of pocket costs for the filing fee. This cost is reasonable and petitioner has provided documentation supporting it, and the undersigned shall fully reimburse Petitioner.

II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows: Attorneys’ Fees Requested $28,523.10 (Reduction to Fees) - ($5,704.62) Total Attorneys’ Fees Awarded $22,818.48 Attorneys’ Costs Requested $4,870.96 (Reduction of Costs) - Total Attorneys’ Costs Awarded $4,870.96 Total Attorneys’ Fees and Costs $27,689.44 Petitioner’s Costs $400.00 Total Amount Awarded $28,089.44

Accordingly, the undersigned awards the following: 1) a lump sum in the amount of $27,689.44, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and Petitioner’s counsel, Ms. Renee Gentry/The George Washington University Law School; and 2) a lump sum in the amount of $400.00, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.4 IT IS SO ORDERED.

s/Herbrina D. Sanders Herbrina D. Sanders Special Master

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