Schauffler v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0033V

KIMBERLY SCHAUFFLER, Chief Special Master Corcoran Petitioner, v. Filed: December 30, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1 On January 4, 2021, Kimberly Schauffler filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) caused by an influenza vaccine administered on October 28, 2019. Petition at 1. On August 9, 2024, I issued a decision awarding damages to Petitioner, based on Respondent’s proffer. ECF No. 46.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision 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, I agree that the identified material fits within this definition, I will redact such material from public access .

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). of $44,908.40 (representing $43,866.75 for fees and $1,041.65 for costs). Petitioner’s Application for Fees and Costs filed Aug. 15, 2024, ECF No. 50. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. Id. at 45-46.

Respondent reacted to the motion on August 16, 2024, representing that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion.

Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 51. Petitioner did not file a reply thereafter.

Having considered the motion along with the invoices and other proof filed in connection, I find reductions in the amount of fees and costs to be awarded appropriate, for the reasons set forth below.

ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). 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 & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] 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 raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (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 & Hum.

Servs., 102 Fed. Cl. 719, 729 (2011).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.

Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.

ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. However, a few of the tasks performed by Mr. Carney are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $490.40.4 Regarding the number of hours billed, some adjustments also are merited. First, attorney Adam Green billed 1.0 hours on October 9, 2022, for researching and drafting the “Legal Standard” section of the entitlement and damages brief. ECF No. 50 at 23.

However, the resulting section is virtually identical to the content of previous briefs filed by Petitioner’s counsel in other cases. Review of the damages briefing from the same counsel from 2021 to the present, and filed in 29 other SPU SIRVA cases requiring a substantive damages decision, reveals multiple similarities related to the “Legal Standard” sections containing discussions of authority existing for at least ten years - with only minor changes, or slight, non-substantive differences in how paragraphs were ordered.

“If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of Health & Hum. Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007). While I do not fault counsel for recycling “boilerplate” in briefs that is relevant in different cases, it is not appropriate to bill fully for such work either when it is not novel (or only requires minor updating).

Accordingly, I will award only .5 hours of time for this task, reducing the time billed by 0.5

3 These entries, drafting basic documents such as an exhibit list, PAR Questionnaire, cover sheet, and statement of completion, are dated as follows: 12/31/20 (two entries), 3/29/21 (two entries), 6/24/21 (two entries), and 12/16/22. ECF No. 50 at 16-19, 24.

4 This amount consists of ($350 - $168) x 1.1 hrs. + ($375 - $172) x 1.1 hrs.+ ($400 - $177) x 0.3 hrs. = $490.40. hours. This results in a reduction of $212.50.5 Second, I deem the total amount of time devoted to briefing entitlement and damages to be excessive – although not egregiously so. See Petitioner’s Motion for Ruling on the Record and Brief in Support of Damages, filed October 18, 2022, ECF No. 33; Petitioner’s Reply Brief in Support of Petitioner’s Motion for Ruling on the Record and Brief in Support of Damages, filed Dec. 16, 2022, ECF No. 37; After accounting for the reduction already mentioned, Petitioner’s counsel expended approximately 20.7 hours drafting the entitlement and damages briefing and 13.6 hours drafting a reply, totaling 34.36 hours. ECF No. 50 at 22-24.

My above calculation does not include time spent preparing the initial demand which would have informed this later work – 16.6 hours – and I am therefore awarding fees associated with that task in full. ECF No. 50 at 20-21. Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., id. at 22 (entry dated 10/8/22)).

It is unreasonable for counsel to spend so much time briefing, even the matter of both entitlement and damages in this case, where the issues presented are not complex.

I have identified numerous cases (which may reasonably be compared to time spent in this matter), 7 in which attorneys have accomplished this task in about half the time. 8 This amount is calculated as follows: 0.5 hrs. x $425 = $212.50.

6 This total is calculated as follows: 14.9 hours billed on 10/4/22, 10/5/22, 10/7/22 (two entries), 10/9/22, (two entries – one being the remaining 0.5 hours), 10/12/22, by Adam Green at a rate of $425; 16.3 hours billed on10/17/22, 10/18/22, 12/2/22 (two entries), 12/10/22 (two entries), 12/11/22, 12/13/22, 12/15/22, 12/16/22, by David Carney at a rate of $400; and 3.1 hours billed on10/13/22 by Evan Baker at a rate of $157.50.

7 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993).

8 See, e.g., Schwalm v. Sec’y of Health & Hum. Servs., No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Stanton v. Sec’y of Health & Hum. Servs., No. 21-0360V (Nov. 25, 2024) (15.9 and 4.5 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Hirsch v. Sec’y of Health & Hum. Servs., No. 20-1110V (Nov. 25, 2024) (16.0 and 4.1 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Templin v. Sec’y of Health & Hum. Servs., No. 21-1446V (Nov. 25, 2024) (12.0 and 0.4 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively) Kleinschmidt v. Sec’y of Health & Hum. Servs., No. 20-0680V (Apr. 9, 2024) (13.9 and 4.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Amor v. Sec’y of Health & Hum. Servs., No. 20-0978V (Apr. 10, 2024) (11.9 and 2.7 hours The circumstances of this case did not warrant devoting so much time to briefing.

The primary areas of dispute involved severity and the appropriate amount of compensation for Petitioner’s past pain and suffering. See Section 11(c)(1)(D)(i) (the Vaccine Act’s six-month severity requirement). Although I determined Petitioner was entitled to compensation, I instructed that, according to my preliminary assessment, “the proper sum to be awarded is likely less than half the demanded sum.” Ruling on Entitlement, issued Apr. 29, 202, at 7, ECF No. 39. And Petitioner also billed a significant amount of hours for work performed finalizing his demand in this case which I am reimbursing in full.

Of course, having prevailed in this case, a fees award is generally appropriate.

ECF No. 39. But the Act permits only an award of a reasonable amount of attorney’s fees.

Accordingly, I will reduce the sum to be awarded for entitlement damages briefing (a total of 34.3 hours, or $13,340.75) by twenty percent.9 Such an across-the-board reduction (which I am empowered to adopt) 10 fairly captures the overbilling evidenced by this work, without requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); McGraw v. Sec’y of Health & Hum. Servs., No. 21-0072V (Apr. 1, 2024) (17.4 and 9.6 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Wilson-Blount v. Sec’y of Health & Hum. Servs., No. 21-1400V (Oct. 25, 2023) (14.2 and 7.4 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Bidlack v. Sec’y of Health & Hum. Servs., No. 20-0093V (Oct. 25, 2023) (9.4 and 6.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Johnson v. Sec’y of Health & Hum. Servs., No. 19-1543V (Aug. 17, 2023) (17.8 and 9.7 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Piccolotti v. Sec’y of Health & Hum. Servs., No. 20-0135V (June 8, 2023) (11.6 and 3.8 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023) (9.8 hours billed for drafting an entitlement and damages brief – although some time was doubtlessly saved by my March 9, 2020 factual ruling finding an appropriate pain onset); C.H. v. Sec’y of Health & Hum. Servs., No. 20-0249V (May 16, 2023) (12.9 and 6.1 hours billed for drafting an entitlement and damages brief and responsive entitlement and damages brief, respectively). These decisions can (or will) be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Dec. 6, 2024).

9 Because the amount of excessive hours was not as egregious as in previous cases, I will reduce the hours billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs., No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023).

10 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). case. This results in a reduction of $2,668.15.11 ATTORNEY COSTS Petitioner requests $1,041.65 in overall costs and has provided receipts for all expenses. ECF No. 50 at 29-44. I have reviewed the requested costs and find them to be reasonable. And Respondent offered no specific objection to the rates or amounts sought.

ECF No. 51.

CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $41,537.35 (representing $40,495.70 for fees and $1,041.65 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, David J. Carney. In the absence of a timely- filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.12 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

11 This amount is calculated as follows: (14.9 hrs. x $425 x .20) + (16.3 hrs. x $400 x .20) + (3.1 hrs. x $157.50 x .20) = $2,668.15.

12 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.