Elijah Yang, by and Through His Next Friend and Mother, Julie Fang v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 10-33V

Filed: August 22, 2013

To be Published

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

ELIJAH YANG, by and through his next *

Friend and Mother, JULIE FANG, *

*

Petitioner, *

* Attorneys’ Fees and Costs Decision;

v. * Reasonable Hourly Rate; Reasonable Hours

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Elaine W. Sharp, Marblehead, MA, for petitioner.

Alexis B. Babcock, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On January 15, 2010, petitioner filed a petition under the National Childhood Vaccine

Injury Act, 42 U.S.C. § 300aa–10-34, alleging that RotaTeq vaccine caused Elijah Yang’s

Pseudomonas aeruginosa. After the filing of petitioner’s expert report and multiple medical

records, and respondent’s filing of her Rule 4(c) Report, the parties engaged in settlement

negotiations which ultimately were successful. On March 29, 2013, the undersigned issued a

decision awarding damages based on the parties’ stipulation. Judgment entered on April 23,

2013.

1

Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public

unless they contain trade secrets or commercial or financial information that is privileged and confidential,

or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of

privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such

information prior to the document’s disclosure. If the special master, upon review, agrees that the

identified material fits within the banned categories listed above, the special master shall redact such

material from public access.

On February 1, 2013, petitioner filed an application for attorneys’ fees and costs (“Fee

App.”).2 On February 12, 2013, respondent filed her response to petitioner’s application for

attorneys’ fees and costs (“Opp’n”). On July 22, 2013, petitioner filed a reply to respondent’s

response to petitioner’s application for attorneys’ fees and costs (“Reply”).3 Petitioner filed a

supplemental application for attorneys’ fees and costs (“Supp. App.”) on July 29, 2013.4 On July

31, 2013, respondent filed a response to petitioner’s supplemental application for attorneys’ fees

and costs (“Supp. Opp’n”).

In her February 1, 2013 application for attorneys’ fees and costs, petitioner requested

$73,522.98, comprised of $57,760.38 in attorneys’ fees and $15,762.60 in costs.5 Petitioner also

requested her own unreimbursed costs of $500.00. Fee App. 1-2.

2

With her fee application, petitioner filed fourteen exhibits in support of her request. See Fee App., Ex. 1

(petitioner’s counsel’s billing invoices); Fee App., Ex. 2 (counsel’s affidavit); Fee App., Ex. 3 (counsel’s

CV); Fee App., Ex. 4 (affidavit of Kevin Conway); Fee App., Ex. 5 (counsel’s costs); Fee App., Ex. 6

(petitioner’s statement pursuant to General Order #9 and a copy of a $500.00 check); Fee App., Ex. 7 (Dr.

Leonard Worden’s invoice); Fee App., Ex. 8 (Dr. Leonard Worden’s CV); Fee App., Ex. 9 (James

McCallion’s invoice); Fee App., Ex. 10 (James McCallion’s CV); Fee App., Ex. 11 (Patrick Ballard’s

invoice); Fee App., Ex. 12 (Patrick Ballard’s CV); Fee App., Ex. 13 (Roberta Hurley’s invoice); Fee App.,

Ex. 14 (Roberta Hurley’s CV); Fee App., Ex. 15 (Ellen Econs’s CV).

3

With her Reply, petitioner filed four additional exhibits in support of her fee request. See Reply, Ex. 1 (a

letter to petitioner’s counsel notifying her that she was promoted to the status of member in the

Jurisprudence Section of the American Academy of Forensic Sciences); Reply, Ex. 2 (a book chapter

authored by petitioner’s counsel); Reply, Ex. 3 (a newspaper article referring to petitioner’s counsel as an

expert in shaken baby cases); Reply, Ex. 4 (petitioner’s affidavit regarding petitioner’s counsel).

4

With her supplemental fee application, petitioner filed seventeen exhibits in support of her request. See

Fee App., Ex. 37 (petitioner’s counsel’s billing invoices); Fee App., Ex. 38 (counsel’s affidavit); Fee App.,

Ex. 39 (counsel’s CV); Fee App., Ex. 40 (affidavit of Kevin Conway); Fee App., Ex. 41 (counsel’s costs);

Fee App., Ex. 42 (petitioner’s amended statement pursuant to General Order #9); Fee App., Ex. 42-1

(petitioner’s check for Dr. Ray’s report); Fee App., Ex. 42-2 (petitioner’s check to Hershel D. Wilson); Fee

App., Ex. 42-3 (petitioner’s check for court fees); Fee App., Ex. 43 (Shawn Patterson’s invoice); Fee App.,

Ex. 44 (Dr. Leonard Worden’s invoice); Fee App., Ex. 45 (Dr. Leonard Worden’s CV); Fee App., Ex. 46

(James McCallion’s invoice); Fee App., Ex. 47 (James McCallion’s CV); Fee App., Ex. 48 (Patrick

Ballard’s invoice); Fee App., Ex. 49 (Patrick Ballard’s CV); Fee App., Ex. 50 (Roberta Hurley’s invoice);

Fee App., Ex. 51 (Roberta Hurley’s CV); Fee App., Ex. 52 (Ellen Econs’s CV).

5

Petitioner’s application for attorneys’ fees and costs contains two mistakes. First, petitioner incorrectly

writes that Exhibit 5 reflects that petitioner’s counsel incurred $655.87 in out-of-pocket costs. Fee App. 1.

In fact, Exhibit 5 shows that petitioner’s counsel requests reimbursement for $644.87 in out-of-pocket

costs. Fee App., Ex. 5. Petitioner requests $644.87 for out-of-pocket costs by counsel on the second page

of the application for attorneys’ fees and costs. Fee App. 2. Second, petitioner incorrectly requests

$7,800.00 for attorney James McCallion on bottom of the second page of the application for attorneys’ fees

and costs. Id. Mr. McCallion’s invoice is for $3,500.00. Fee App., Ex. 9. Petitioner requests the

proper amount for Mr. McCallion on the top of the second page of the application for attorneys’ fees and

costs. Fee. App. 2.

2

In petitioner’s July 29, 2013 supplemental application for attorneys’ fees and costs,

petitioner amends her original request and requests $63,945.38 in attorneys’ fees for petitioner’s

counsel, $19,448.60 in attorneys’ costs,6 and $2,200.00 in petitioner’s costs.7 Supp. App. 1-2.

Petitioner requests a total of $85,593.98 for fees and costs.

Petitioner filed a Chart of Attorney and Paralegal Fees per Year (“Chart”) on August 13,

2013.8 Petitioner’s Chart provides the fee amounts and numbers of hours petitioner’s counsel and

petitioner’s counsel’s paralegal billed in total and per year. Chart 1. Petitioner’s counsel billed a

total of 125.75 hours and petitioner’s counsel’s paralegal billed a total of 81 hours.

I. Awarding Attorneys’ Fees and Costs

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”

42 U.S.C. § 300aa–15(e)(1). The special master has “wide discretion in determining the

reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992),

aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519

(Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their prior experience

6

Petitioner’s supplemental application for attorneys’ fees and costs contains two errors. First, petitioner

incorrectly writes that Exhibit 41 reflects that petitioner’s counsel incurred $655.87 in out-of-pocket costs.

Supp. App. 1. Exhibit 41 shows that petitioner’s counsel requests reimbursement for $644.87 in

out-of-pocket costs. Fee App., Ex. 41. Petitioner requests $644.87 for out-of-pocket costs by counsel on

the second page of the supplemental application for attorneys’ fees and costs. Supp. App. 2. The $644.87

request for counsel’s out-of-pocket costs is a component of petitioner’s request for $19,448.60 in attorneys’

costs. Second, petitioner requests $5,902.73 for work done by life care planner Roberta Hurley on the top

of the second page of the supplemental application for attorneys’ fees and costs. Id. However, petitioner

does not request any relief on behalf of Ms. Hurley on the bottom of the second page of the supplemental

application for attorneys’ fees and costs. See id. The $5,902.73 request for Ms. Hurley’s work is a

component of petitioner’s request for $19,448.60 in attorneys’ costs.

7

Petitioner lists many expenses individually. The undersigned combines them into three categories for

the sake of clarity.

8

Petitioner’s Chart contained multiple errors. Petitioner’s counsel incorrectly added the total amount

requested for petitioner’s paralegal. The amounts billed by the paralegal in the Chart come to $9,411.63,

not the $9,605.38 requested by petitioner. In addition, in 2012, petitioner’s paralegal billed eighteen hours

at an hourly rate of $125.00. According to the Chart, petitioner’s paralegal billed $2,227.88 rather than

$2,250.00 (18x125.00). The paralegal’s total without petitioner’s counsel’s 2012 multiplication error and

inadvertent 2013 billing mistake is $9,446.25. Petitioner’s counsel also billed $11,777.50 for 27.5 hours

of work at her 2011 requested hourly rate of $430.00. $11,825.00 is the appropriate bill for 27.5 hours of

work at the hourly rate of $430.00. In 2012, petitioner’s counsel billed a total of $20,837.50 for 43.5 hours

of work at $450.00 per hour and 2.5 hours of work at $415.00 per hour. Petitioner’s counsel’s 2012 bill

should have been for $20,612.50, which makes $54,360.00 the total billed by petitioner’s counsel for

125.75 hours of work.

3

in reviewing fee applications.”).

II. Analysis

A. Reasonable Attorneys’ Fees

The Federal Circuit has approved the lodestar approach to determine “reasonable

attorneys’ fees” and costs under the Vaccine Act. Avera v. Sec’y of HHS, 515 F.3d 1343, 1347

(Fed. Cir. 2008). The lodestar approach involves a two-step process. 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.

1. Ms. Sharp’s Hourly Rate

A reasonable hourly rate is “the prevailing market rate defined as the rate prevailing in the

community for similar services by lawyers of reasonably comparable skill, experience, and

reputation.” Id. (citation and quotation omitted). In Avera, the Federal Circuit found that in

Vaccine Act cases, a court should use the forum rate, i.e., the District of Columbia rate, in

determining an award of attorneys’ fees. Id. at 1349. At the same time, the court adopted the

Davis County exception to prevent windfalls to attorneys who work in less expensive legal

markets. Id. (citing Davis County Solid Waste Mgmt. & Energy Recovery Spec. Serv. Dist. v.

U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir. 1999)). In cases where the bulk of the work is

completed outside the District of Columbia and there is a “very significant difference” between the

forum hourly rate and the local hourly rate, the court should calculate an award based on local

hourly rates. Id. (finding the market rate in Cheyenne, Wyoming to be very significantly lower

than the market rate in Washington, DC).

Petitioner submits that her counsel should be compensated at hourly rates of $370.00 in

2008, $390.00 in 2009, $410.00 in 2010, $430.00 in 2011, and $450.00 in 2012 and 2013. Fee

App., Ex. 37. Respondent objects to petitioner’s counsel’s hourly rates as excessive. Opp’n 5;

Supp. Opp’n 2-3.

Petitioner’s counsel requests local market rates for the Boston, Massachusetts area. Fee

App., Ex. 2, at 2. Respondent contends that attorneys’ fees should be calculated using the forum

rate for the District of Columbia rather than the geographic area where petitioner’s counsel’s

practice is located. Opp’n 4. Respondent also argues that petitioner’s counsel has not provided

sufficient evidence to substantiate her requested hourly rates for the Boston market. Id. Under

the Federal Circuit’s holding in Avera, petitioner’s counsel receives the forum rate rather than the

local geographic rate. Avera, 515 F.3d at 1348-49. The forum is the District of Columbia. The

forum rate applies whenever the counsel’s geographic hourly rate is not very significantly below

the forum hourly rate. See id. at 1349 (citing Davis County, 169 F.3d at 758). The hourly rate

for attorneys working in the Boston, Massachusetts area is not very significantly below the forum

rate. The undersigned previously found that Ms. Sharp was entitled to fees at the District of

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Columbia forum rate. See Estate of Oswalt v. Sec’y of HHS, No. 03-2153V, 2011 WL 2149932,

at *3-4 (Fed. Cl. Spec. Mstr. May 2, 2011). As such, the forum rate applies in this case.

In Rodriguez v. Secretary of Health and Human Services, 632 F.3d 1381, 1383 (Fed. Cir.

2011), the Federal Circuit affirmed the special master’s awarding petitioners’ counsel an hourly

rate of $335.00 for attorneys’ fees in 2009. In Oswalt, the undersigned awarded petitioner’s

counsel in the above-captioned case $350.00 per hour for work done in 2008 and 2009. Oswalt,

2011 WL 2149932, at *8, *12. The rate used in Oswalt is the reasonable District of Columbia

forum rate in the instant case for petitioner’s counsel in 2008 and 2009. Petitioner’s counsel

requested $340.00 per hour for work completed in 2007 in Oswalt. Id. at *7. The undersigned

found petitioner’s counsel’s $10.00 per hour increase from $340.00 per hour in 2007 to $350.00

per hour in 2008 and 2009 to be reasonable. Similarly, petitioner’s counsel is entitled to rate

increases over time in the above-captioned case. Following Rodriguez and Oswalt, petitioner’s

counsel’s hourly rates are reduced to $350.00 for work completed in 2008 and 2009, $360.00 for

work completed in 2010 and 2011, and $370.00 for work completed in 2012 and 2013.

Petitioner’s counsel’s fee request for 125.75 hours is reduced to $45,840.00.9

Petitioner’s counsel’s paralegal’s hourly rates, which range from $95.00 per hour in 2008

to $125.00 per hour in 2012 and 2013, are reasonable. Respondent does not object to the initial

$95.00 hourly rate but does object to the rate increases. Opp’n 10. The undersigned previously

found a forum paralegal rate of $125.00 per hour reasonable in Brown v. Secretary of Health and

Human Services. Brown, No. 09-426V, 2012 WL 952268, at *3 (Fed. Cl. Spec. Mstr. Feb. 29,

2012); see also Broekelschen v. Sec’y of HHS, 102 Fed. Cl. 719, 723 (2011) (affirming, inter alia,

an award of $340.00 per hour to another petitioner’s counsel and $125.00 per hour to counsel’s

paralegal). The undersigned finds petitioner’s counsel’s paralegal’s hourly rates reasonable.

Petitioner’s counsel’s paralegal’s fee request for 81 hours is $9,446.25.

After reducing petitioner’s counsel’s hourly rates to reasonable forum rates, petitioner’s

counsel’s fee request is $55,286.25, which consists of $45,840.00 for 125.75 hours of petitioner’s

counsel’s fees and $9,446.25 for 81 hours of counsel’s paralegal’s fees. The undersigned now

addresses the reasonableness of the amount of hours petitioner’s counsel and paralegal billed.

Any further reduction shall be reflected in the discussion of the number of hours.

2. Reasonable Hours Expended

The lodestar approach requires that the reasonable hourly rate be multiplied by the number

of hours “reasonably expended on the litigation.” Avera, 515 F.3d at 1347-48 (quotation and

citation omitted). Counsel must submit fee requests that include contemporaneous and specific

billing entries indicating the task performed, the number of hours expended on the task, and who

performed the task. See Savin ex rel. Savin v. Sec’y of HHS, 85 Fed. Cl. 313, 315-18 (Fed. Cl.

2008). Counsel must not include in their fee requests hours that are “excessive, redundant, or

9

The undersigned multiplied the number of hours petitioner’s counsel billed in a given year, based on

petitioner’s counsel’s Table, by the appropriate hourly rates and added those totals to get $45,840.00.

5

otherwise unnecessary.” Saxton, 3 F.3d at 1521 (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. Furthermore, the

special master may reduce hours sua sponte, apart from objections raised by respondent and

without providing petitioner notice and opportunity to respond. See Sabella v. Sec’y of HHS, 86

Fed. Cl. 201, 208-09 (Fed. Cl. 2009).

Respondent objects to petitioner’s counsel’s practice of billing in fifteen-minute

increments, the number of hours petitioner’s counsel billed, and some particular invoice entries.

After reviewing petitioner’s counsel’s billing entries, the undersigned finds that the hours

petitioner’s counsel billed in some instances are excessive and unreasonable. The undersigned

will address respondent’s objections sequentially.

a. Billing in Fifteen-Minute Increments

Respondent objects to petitioner’s counsel’s practice of billing in fifteen-minute

increments. Opp’n 10. Respondent claims that petitioner’s counsel billed for fifteen minutes

when “many of the tasks billed in that increment took far less time to complete.” Id. “Special

Masters have traditionally been critical of billing in large increments, including 15-minute

blocks.” Carcamo v. Sec’y of HHS, No. 07-483V, 2011 WL 2413345, at *6 (Fed. Cl. Spec. Mstr.

May 20, 2011); see also Isom v. Sec’y of HHS, No. 94-770V, 2001 WL 101459, at *2 (Fed. Cl.

Spec. Mstr. Jan. 17, 2001); Winters v. Sec’y of HHS, No. 91-4V, 1993 WL 114646, at *1 (Fed. Cl.

Spec. Mstr. Apr. 1, 1993). The undersigned finds that billing in fifteen-minute increments is

unreasonable “when it is customary to bill in .1 hour (six-minute) intervals, not only in the Vaccine

Program, but in private practice in general.” Carcamo, 2011 WL 2413345, at *6. The

undersigned will address respondent’s objections to specific billing entries.

b. Billing for Time Spent Correcting Errors

Respondent objects to petitioner’s counsel and paralegal billing for time spent correcting

filing mistakes when the initial time spent on the tasks was also billed. Opp’n 12-13.

Respondent lists several instances where petitioner’s counsel made a mistake and then billed for

the time spent remedying the error. Id. Petitioner’s counsel and paralegal billed fifteen minutes

each on June 22, 2010 to correct petitioner’s incorrectly numbered exhibits. On June 23, 2010,

petitioner’s counsel billed one hour to “review the exhibits” and speak with the undersigned’s law

clerk regarding the proper re-numbering of the exhibits. Fee App., Ex. 37, at 12-13. On August

23, 2010, petitioner’s counsel’s paralegal billed two hours to fix incorrectly filed exhibits and an

additional thirty minutes to save all of the correctly refiled exhibits in the client’s folder.

Petitioner’s counsel billed thirty minutes to file the corrected exhibits. Id. at 15. On August 25,

2010, petitioner’s counsel’s paralegal billed fifteen minutes to email the undersigned’s law clerk to

ask if the refiled exhibits were properly numbered. Id. at 16. Counsel also billed fifteen minutes

on May 20, 2011 to refile exhibits after forgetting to attach them. Petitioner’s counsel’s paralegal

then billed fifteen minutes to download the corrected filings and place hard copies in the client’s

file. Id. at 32. Finally, on July 21, 2012, petitioner’s counsel billed fifteen minutes to file an

6

attachment that was not included, due to a mistake, in an earlier status report. Id. at 58.

Petitioner’s counsel’s requests for attorneys’ fees for work that was created by counsel’s mistakes

are unreasonable. As such, the undersigned reduces petitioner’s fee award by $1,172.50.10

c. Additional Billing Entries

Respondent objects to several of petitioner’s counsel’s individual billing entries. The

undersigned addresses each of respondent’s objections that were not corrected by petitioner’s

supplemental application for attorneys’ fees and costs.

Respondent objects to petitioner’s counsel billing fifteen minutes on January 16, 2010,

April 12, 2010, April 13, 2010, September 8, 2010, November 1, 2011, November 21, 2012, and

December 7, 2012 to review an order, and petitioner’s counsel’s paralegal billing an additional

fifteen minutes to scan and save the order, print it out, and file the order as a hard copy. Opp’n 11.

Petitioner responds that counsel reviews all of the orders filed in a case and her paralegal saves all

orders to the server and keeps a hard copy in the file “for the protection of the client.” Reply 8.

The January 16, 2010 Notice of Assignment and April 12, 2010 Initial Status Conference Order are

both shorter than two pages and are largely boilerplate. The orders dated April 13, 2010,

September 8, 2010, November 1, 2011, November 21, 2012, and December 7, 2012 are all routine

scheduling orders that are shorter than one page. Petitioner’s counsel, as an experienced Vaccine

Program attorney, should not need fifteen minutes to review these orders. Based on the

undersigned’s experience, the undersigned finds that it is reasonable for petitioner’s counsel to bill

six minutes (0.1 hour) to review routine orders. Respondent also objects to a paralegal billing

fifteen minutes to save and file the orders in electronic and physical files. Respondent argues that

these tasks are secretarial in nature and are unreimbursable overhead costs. Opp’n 11. The

undersigned finds that saving and filing orders is secretarial in nature and not compensable. See

Lawrence v. Sec’y of HHS, No. 09-435V, 2013 WL 3146775, at *3 (Fed. Cl. Spec. Mstr. May 28,

2013) (finding secretarial tasks performed by a paralegal are not compensable); Vickery v. Sec’y

of HHS, No. 90-997V, 1992 WL 281073, at *1 (Fed. Cl. Spec. Mstr. Sept. 14, 1992) (finding that

filing records in a drawer is not a compensable paralegal task). As such, the undersigned reduces

petitioner’s fee award by $583.50.11

Respondent objects to petitioner’s counsel billing fifteen minutes on June 3, 2010, June 22,

2010, August 31, 2010, September 13, 2010, February 23, 2011, May 26, 2011, June 8, 2011, July

20, 2011, September 12, 2011, December 2, 2011, February 29, 2012, April 13, 2012, May 11,

2012, July 19, 2012, September 10, 2012, and November 6, 2012 to review an order, and

petitioner’s counsel’s paralegal billing an additional thirty minutes to scan and save the order, print

10

All fee reductions use the adjusted rates between $350.00 per hour and $370.00 per hour for petitioner’s

counsel and between $95.00 per hour and $125.00 per hour for petitioner’s counsel’s paralegal.

11

Petitioner’s fee award is reduced by $381.00 for time billed by petitioner’s counsel and $202.50 for time

billed by counsel’s paralegal.

7

it out, file the order as a hard copy, and, in some instances, put deadlines on the calendar.12 Opp’n

12. Petitioner responds by reiterating the importance of reviewing orders and ensuring proper

scheduling. Petitioner’s counsel also stresses that maintaining hard copies and electronic copies

of files protects the client. See, e.g., Reply 10. The orders dated June 3, 2010, June 22, 2010,

August 31, 2010, February 23, 2011, May 26, 2011, June 8, 2011, July 20, 2011, September 12,

2011, December 2, 2011, February 29, 2012, April 13, 2012, May 11, 2012, July 19, 2012,

September 10, 2012, and November 6, 2012 are all routine scheduling orders that are shorter than

one page. The September 13, 2010 240-Day Notice is a common Vaccine Program filing that is

largely boilerplate. Based on the undersigned’s experience, the undersigned finds that it is

reasonable for an experienced Vaccine Program attorney like petitioner’s counsel to bill six

minutes (0.1 hour) to review routine orders. Respondent also objects to a paralegal billing thirty

minutes to save the orders, file them in both electronic and physical files, and set any electronic

reminders. Respondent argues that these tasks are secretarial in nature and are unreimbursable

overhead costs. Opp’n 11. The undersigned finds that saving and filing orders and setting

electronic reminders are secretarial tasks that are not compensable. See Lawrence, 2013 WL

3146775, at *3 (finding secretarial tasks performed by a paralegal are not compensable); Vickery,

1992 WL 281073, at *1 (finding that filing records in a drawer is not a compensable paralegal

task). As such, the undersigned reduces petitioner’s fee award by $1,798.00.13

Respondent objects to the thirty minutes a paralegal billed on March 22, 2010 to scan and

save an order, print out and file a hard copy, and put a status conference on the calendar. Opp’n

11. Petitioner responds that petitioner’s counsel oversaw the paralegal and reviewed this order.

Reply 9. Petitioner’s counsel also billed for her time reviewing the order as part of a separate

billing entry. See Fee App., Ex. 37, at 6. The undersigned finds it is unreasonable to bill thirty

minutes for a paralegal to scan and save an article, print it out, file a hard copy, and calendar a

status conference. The undersigned finds that saving and filing orders and placing an event on the

calendar are secretarial tasks that are not compensable. See Lawrence, 2013 WL 3146775, at *3

(finding secretarial tasks performed by a paralegal are not compensable); Vickery, 1992 WL

281073, at *1 (finding that filing records in a drawer is not a compensable paralegal task).

Accordingly, petitioner’s fee award is reduced by $55.00.

Respondent objects to the fifteen minutes petitioner’s counsel billed to reschedule a status

conference on August 16, 2010. Opp’n 12. Petitioner responds that coordinating the next status

conference required several emails and also included client communication. Reply 11. The

undersigned finds that it is reasonable for petitioner’s counsel to bill fifteen minutes to complete

this task and communicate with petitioner.

12

On June 8, 2011, petitioner’s counsel’s invoice description indicates she intended to bill 0.5 paralegal

hours but actually billed only 0.25 paralegal hours. Fee App. Ex. 37, at 35.

13

Petitioner’s fee award is reduced by $873.00 for time billed by petitioner’s counsel and $925.00 for time

billed by counsel’s paralegal.

8

Respondent objects to the fifteen minutes a paralegal billed on August 25, 2010 to email

Mr. Ballard and ask how he would prefer to receive updated medical records. Opp’n 12.

Petitioner’s counsel responds that she had a phone conversation with Mr. Ballard as well, though it

was not originally logged as it should have been. Reply 11-12. The undersigned finds that this

billing entry is reasonable given the emailing task and petitioner’s counsel’s statement that a phone

call with Mr. Ballard also took place.

Respondent objects to the fifteen minutes petitioner’s counsel billed on September 4, 2010

to read an email from petitioner. Opp’n 12. Petitioner responds that petitioner’s counsel read an

email from petitioner and also sent a confidential reply email. Reply 12. The undersigned finds

that it is reasonable for petitioner’s counsel to bill fifteen minutes to communicate with petitioner

via email.

Respondent objects to the fifteen minutes petitioner’s counsel billed on November 15,

2011 to leave a voicemail for attorney Kevin Conway. Opp’n 12. Petitioner responds that

petitioner’s counsel conducted online research regarding life care planners and contacted

petitioner just prior to reaching out to Mr. Conway. Reply 12. The undersigned finds that fifteen

minutes to do nothing but leave a voice message is not reasonable; however, because petitioner’s

counsel also conducted research and contacted petitioner during the same billing period, see Fee

App., Ex. 37, at 43, the undersigned finds that petitioner’s counsel’s fifteen minute billing entry is

reasonable.

Respondent objects to the fifteen minutes a paralegal billed on December 7, 2012 to update

the calendar after a status conference was rescheduled. Opp’n 12. Petitioner responds that

petitioner’s counsel oversaw the paralegal’s rescheduling of the status conference and

communicated with petitioner regarding the scheduling change. Reply 12. The undersigned

finds that it is reasonable for a paralegal to bill fifteen minutes to contact petitioner and update the

calendar.

Respondent objects to the fifteen minutes petitioner’s counsel billed on December 13, 2012

to review the 15-Week Stipulation Order and to the thirty minutes a paralegal billed to review the

same order, print it out, and save the deadline to the calendar. Opp’n 12. Petitioner responds

that there were actually three important deadlines in the 15-Week Stipulation Order to coordinate.

Reply 12. The undersigned finds that it is reasonable for petitioner’s counsel to bill fifteen

minutes to review the 15-Week Stipulation Order. However, it is not reasonable for the paralegal

to bill thirty minutes to review the order, print the order, and save three deadlines to the calendar.

Petitioner’s counsel reviewed the order, so there was no reason for the paralegal to bill to review it.

The paralegal’s other tasks are secretarial tasks that are not compensable. See Lawrence, 2013

WL 3146775, at *3 (finding secretarial tasks performed by a paralegal are not compensable);

Vickery, 1992 WL 281073, at *1 (finding that filing records in a drawer is not a compensable

paralegal task). Accordingly, petitioner’s fee award is reduced by $62.50.

Respondent objects to the thirty minutes petitioner’s counsel billed on September 21, 2010

to draft a notice of intent to remain in the Vaccine Program. Opp’n 13. Petitioner responds that

9

petitioner’s counsel prepared the notice, filed it, and communicated with the client regarding the

notice. Reply 12. Petitioner’s notice of intent to remain in the Vaccine Program contains one

substantive sentence. In addition, the document is almost entirely boilerplate for all Vaccine Act

cases. The undersigned finds that it is unreasonable for petitioner’s counsel to bill thirty minutes

to draft and file a notice of intent to remain in the Vaccine Program and communicate with

petitioner. Fifteen minutes is a reasonable amount of time to complete these tasks. Accordingly,

petitioner’s fee award is reduced by $90.00.

Respondent objects to the 1.25 hours petitioner’s counsel billed on April 27, 2011 to read

respondent’s Rule 4(c) Report. Opp’n 13. Petitioner responds that petitioner’s counsel read the

report twice and took notes on whether or not petitioner needed an expert report. Reply 13.

Respondent’s Rule 4(c) Report is only nine pages long and was filed before petitioner filed an

expert report. Resp’t’s Rule 4(c) Report. The undersigned finds that it is unreasonable for

petitioner’s counsel to bill 1.25 hours to read and take notes on respondent’s Rule 4(c) Report.

Based on the undersigned’s experience, forty-five minutes is a reasonable amount of time to read

and take notes on such a report. Accordingly, petitioner’s fee award is reduced by $180.00.

Respondent objects to the thirty minutes a paralegal billed on April 27, 2011 to download

respondent’s Rule 4(c) Report, place a hard copy in the file, and email a copy to petitioner’s expert.

Opp’n 13. Petitioner responds that the paralegal also sent a cover email explaining the issues that

petitioner needed the expert to address. Petitioner contends that these tasks took longer than

thirty minutes. Reply 13. Although filing respondent’s Rule 4(c) Report is secretarial, the

undersigned finds that it is reasonable for petitioner’s counsel’s paralegal to bill thirty minutes to

download respondent’s Rule 4(c) Report and email a copy to petitioner’s expert along with a

substantive cover email.

Respondent objects to the fifteen minutes petitioner’s counsel billed on May 24, 2011 to

send an email about faxing medical records. Opp’n 13. Petitioner responds that petitioner’s

counsel wrote an email to a physician that required counsel to make references to case file

materials. Reply 13. The undersigned finds that it is reasonable for petitioner’s counsel to bill

fifteen minutes to send an email that required counsel to reference particular sections of the case

file.

Respondent objects to the fifteen minutes petitioner’s counsel billed on February 15, 2012

to email a medical report to two individuals. Opp’n 13. Petitioner responds that petitioner’s

counsel billed this task at a paralegal’s rate. Petitioner’s counsel drafted an email, attached the

medical report, and sent the email to two individuals. Reply 13. The undersigned finds that it is

reasonable for petitioner’s counsel to bill fifteen minutes at a paralegal’s rate to send two emails

that included a medical report as an attachment.

Respondent objects to the five hours a paralegal billed on July 25, 2012 to conduct research

and write summaries of two Vaccine Act cases. Opp’n 13. Petitioner responds that the paralegal

researched cases that involved scarring and damages for pain and suffering. Reply 13. The

paralegal’s two case summaries were detailed and relevant to the above-captioned case. Id. The

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undersigned finds that it is reasonable for petitioner’s counsel’s paralegal to bill five hours to

conduct legal research and write detailed summaries of relevant cases.

Respondent objects to petitioner billing an additional 15.25 hours for work preparing the

application for attorneys’ fees and costs. Opp’n 13. Petitioner’s counsel responds that “15.25

hours to prepare the invoices for Attorney’s fees and costs may seem excessive but we kept track

of time while preparing them.” Reply 13. The undersigned finds that 15.25 hours to prepare a

fee application in this case, which did not go to hearing, is excessive. Based on the undersigned’s

experience, ten hours is a reasonable amount of time for petitioner’s counsel to spend collecting

invoices and preparing petitioner’s application for attorneys’ fees and costs. Accordingly,

petitioner’s fee award is reduced by $1,942.50.

d. Fees for Fees

Respondent objects to petitioner’s counsel billing an additional eight hours for work on

petitioner’s reply to respondent’s response to petitioner’s application for attorneys’ fees and costs.

Respondent argues that counsel should not be awarded “fees for fees.” Supp. Opp’n 3. The

undersigned previously found that twenty-four hours was a reasonable amount of time for a

petitioner’s counsel to respond to respondent’s multiple objections to fees and costs in a complex

Vaccine Program case. See Brown v. Sec’y of HHS, No. 09-426V, 2013 WL 1790212, at *4

(Fed. Cl. Spec. Mstr. Apr. 8, 2013). In Brown, respondent objected to petitioner’s counsel’s and

petitioner’s expert’s hourly rates and numbers of hours billed in addition to objecting to individual

billing entries. See Brown, 2012 WL 952268. Petitioner’s reply to respondent’s response to

petitioner’s application for interim attorneys’ fees and costs in Brown was twenty-eight pages. In

the above-captioned case, petitioner’s Reply is nineteen pages and is almost entirely devoted to

responses regarding petitioner’s counsel’s own invoices. See Reply. The additional complexity

of Brown merited a higher number of hours than is appropriate in the instant case. Given

respondent’s objections to petitioner’s application for fees and costs in the above-captioned case,

the undersigned finds, based on her experience, that eight hours is a reasonable amount of time for

petitioner’s counsel to reply to respondent’s objections to attorneys’ fees and costs.

B. Reasonable Costs

Both attorneys’ fees and costs must be reasonable. See Perreira, 27 Fed. Cl. at 34 (“The

conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’

necessarily modifies both. Not only must any request for reimbursement of attorneys’ fees be

reasonable, so also must any request for reimbursement of costs.”). Using reasonableness as the

standard, the undersigned will address respondent’s objections to costs incurred by petitioner and

petitioner’s counsel.

1. Costs for Additional Attorneys

Respondent objects to the hourly rate of attorneys Patrick Ballard and James McCallion.

Opp’n 9. Mr. Ballard, who practices law in Birmingham, Alabama, seeks $300.00 per hour for

work he completed in 2009 and 2010. Fee App., Ex. 48. Mr. Ballard was responsible for

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drafting and editing the petition. Id. Respondent argues that Mr. Ballard did not offer any

support for his proposed hourly rate. Opp’n 9. Petitioner responds that Mr. Ballard’s rates are

supported by his invoice and CV. Reply 18. Mr. Ballard graduated from law school in 1996 and

has been a solo practitioner since 2000. Fee App., Ex. 49. He previously worked with

petitioner’s counsel in Oswalt. The undersigned awarded Mr. Ballard $200.00 per hour for work

he completed in 2008 in Oswalt. Oswalt, 2011 WL 2149932, at *12. The undersigned found

that the Davis Country exception applied to Mr. Ballard because the Birmingham, Alabama hourly

rate of $180.00-$200.00 was very significantly lower than the Washington, DC forum rate. Id.

Respondent asserts that Mr. Ballard should not receive a $100.00 per hour increase over his Oswalt

rates in the above-captioned case for work done in 2009 and 2010. Opp’n 9. The undersigned

finds that petitioner’s request for $300.00 per hour for Mr. Ballard’s work is unreasonable. Using

the $200.00 per hour rate that the undersigned awarded Mr. Ballard in Oswalt for work done in

2008 as the starting point, the undersigned reduces Mr. Ballard’s hourly rate for 2009 and 2010 to

$210.00 per hour. Mr. Ballard billed for 10.55 hours of work. Fee App., Ex. 48. The

undersigned awards petitioner $2,215.50 in attorneys’ fees for Mr. Ballard.

Mr. McCallion, who practices law in Ontario, California, seeks $400.00 per hour for work

he completed in 2007 and 2008. Fee App., Ex. 46. Mr. McCallion had an initial consultation

with petitioner and referred her to Ms. Sharp. Id. Respondent argues that Mr. McCallion does

not offer any support for his proposed hourly rate. Opp’n 9. Petitioner responds that Mr.

McCallion’s rates are supported by his invoice and CV. Reply 18. Mr. McCallion has been

practicing law in California since 1979. Fee App., Ex. 47. He has been president of his local bar

association and graduated from the Trial Lawyers College. Id. Mr. McCallion is not admitted to

practice before the U.S. Court of Federal Claims. He does not have any Vaccine Act experience.

The undersigned awarded Dale K. Galipo, a Los Angeles area attorney with over twenty years of

legal experience but no Vaccine Program experience, District of Columbia forum rates of $316.00

per hour for work completed in 2007 and $327.00 per hour for work completed in 2008.

Carcamo, 2011 WL 2413345, at *5. The undersigned finds petitioner’s request for $400.00 per

hour for Mr. McCallion’s work unreasonable. Based on Mr. McCallion’s experience, the

undersigned finds that he, like Mr. Galipo, should be awarded hourly rates of $316.00 for work

completed in 2007 and $327.00 for work completed in 2008. Mr. McCallion billed for 5.5 hours

of work in 2007 and 2.25 hours of work in 2008. He also billed for four hours of paralegal work at

a reasonable rate of $100.00 per hour in 2008. Fee App., Ex. 46. The undersigned awards

petitioner $2,873.75 in attorneys’ fees for Mr. McCallion.

Respondent’s counsel does not object to the guardianship costs charged by attorney Shawn

Patterson. Supp. Opp’n 1-2. Based on the undersigned’s experience, the undersigned finds

$3,686.00 to be a reasonable amount for establishing guardianship. See Torres v. Sec’y of HHS,

No. 09-867V, 2013 WL 2256136, at *1 (Fed. Cl. Spec. Mstr. April 30, 2013) (awarding $4,379.40

for reimbursement of costs to establish guardianship); Parmley v. Sec’y of HHS, No. 09-698V,

2013 WL 1459709 (Fed. Cl. Spec. Mstr. Mar. 18, 2013) (awarding $5,853.50 for reimbursement

of costs to establish guardianship); Myers v. Sec’y of HHS, No. 11-434V, 2012 WL 6176474 (Fed.

Cl. Spec. Mstr. Nov. 13, 2012) (awarding $4,259.25 for reimbursement of costs to establish

guardianship); Kenney v. Sec’y of HHS, No. 09-738V, 2012 WL 6013214 (Fed. Cl. Spec. Mstr.

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Oct. 24, 2012) (awarding $6,214.00 for reimbursement of costs to establish guardianship);

Ramsey v. Sec’y of HHS, No. 09-896V, 2012 WL 5205835 (Fed. Cl. Spec. Mstr. Sep. 24, 2012)

(awarding $4,528.00 for reimbursement of costs to establish guardianship); Dow v. Sec’y of HHS,

No. 09-801V, 2012 WL 2914818 (Fed. Cl. Spec. Mstr. June 26, 2012) (awarding $2,557.68 for

reimbursement of costs to establish guardianship); Amar v. Sec’y of HHS, No. 06-221V, 2011 WL

6077558, at *24 (Fed. Cl. Spec. Mstr. Nov. 10, 2011) (awarding $3,520.50 for reimbursement of

costs to establish guardianship); Doe 21 v. Sec’y of HHS, No. 02-411V, 2011 WL 6941671, at *10

(Fed. Cl. Spec. Mstr. Oct. 26, 2011) (awarding $3,590.00 for reimbursement of costs to establish

guardianship); Finet v. Sec’y of HHS, No. 03-348V, 2011 WL 597792, at *3 (Fed. Cl. Spec. Mstr.

Jan. 31, 2011) (awarding $7,440.00 for reimbursement of costs to establish guardianship); Gruber

v. Sec’y of HHS, No. 00-749V, 2009 WL 2135739, at *11 (Fed. Cl. Spec. Mstr. June 24, 2009)

(awarding $4,027.00 for reimbursement of costs to establish guardianship). The undersigned

awards petitioner $3,686.00 in attorneys’ fees and costs for Mr. Patterson.

2. Additional Costs

Petitioner requests reimbursement for $2,550.00 paid to expert Dr. Leonard R. Worden and

$5,902.73 paid to life care planner Roberta Hurley. Supp. Fee App. 2. Respondent did not raise

objections to these costs. The undersigned finds the costs for Dr. Worden and Ms. Hurley to be

reasonable.

3. Petitioner’s Costs

Petitioner requests reimbursement for her own unreimbursed costs in the amount of

$2,200.00. Id. Respondent has no objection to any of petitioner’s unreimbursed costs. Opp’n

2; Supp. Opp’n 1. The undersigned finds petitioner’s $2,200.00 in unreimbursed costs to be

reasonable.

4. Petitioner’s Counsel’s Out-of-Pocket Costs

Petitioner requests reimbursement for $644.87 in out-of-pocket costs incurred by

petitioner’s counsel. Supp. Fee App. 2; see Fee App., Ex. 41 (listing petitioner’s counsel’s costs

in this case). Respondent did not raise objections to any of petitioner’s counsel’s unreimbursed

costs. The undersigned finds petitioner’s counsel’s $644.87 in costs to be reasonable.

III. Conclusion

In sum, the following tables contain the amounts of attorneys’ fees and costs and petitioner’s

costs that the undersigned awards petitioner:

Table A: Attorneys’ Fees and Costs

Attorneys’ Fees Requested $63,945.38

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Attorneys’ Fees Awarded $49,402.25

Attorneys’ Out-of-Pocket Costs

$644.87

Awarded

Additional Costs

Fees Requested for Attorney Patrick

$3,165.00

Ballard

Fees Awarded for Attorney Patrick

$2,215.50

Ballard

Fees Requested for Attorney James

$3,500.00

McCallion

Fees Awarded for Attorney James

$2,873.75

McCallion

Fees & Costs Awarded for Attorney

$3,686.00

Shawn Patterson

Amount Awarded for Dr. Leonard

$2,550.00

Worden

Amount Awarded for Life Care

$5,902.73

Planner Roberta Hurley

Total Attorneys’ Fees and Costs

$67,275.10

Awarded

Table B: Petitioner’s Costs

Petitioner’s Costs Awarded $2,200.00

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The undersigned finds the amounts to be reasonable and awards petitioner the following

for attorneys’ fees and costs:

a. $67,275.10, representing reimbursement for attorneys’ fees and costs. The award

shall be in the form of a check made payable jointly to petitioner and Whitfield, Sharp

& Sharp, in the amount of $67,275.10; and

b. $2,200.00, representing reimbursement for petitioner’s costs. The award shall be in

the form of a check for $2,200.00 made 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.14

IT IS SO ORDERED.

Dated: August 22, 2013 s/ Laura D. Millman

Laura D. Millman

Special Master

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Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or

jointly, filing a notice renouncing the right to seek review.

15