# Elmakky v. Secretary of Health and Human Services

> United States Court of Federal Claims · June 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10734936

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** June 25, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-2032V

MARIA ELMAKKY,
Chief Special Master Corcoran
Petitioner,
v. Filed: May 22, 2024

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On December 26, 2017, Maria Elmakky 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 alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) after receiving the influenza vaccine on November 30, 2016.
Petition at 1, ¶ 2. On December 3, 2021, I issued a decision determining entitlement and
awarding compensation to Petitioner. ECF No. 86.

1 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.

2
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).
On August 15, 2022, Petitioner filed a motion for attorney’s fees and costs (ECF
No. 93), requesting an award of $138,490.14 (representing $125,587.90 in attorney’s
fees, $12,805.49 in litigation costs, and $96.75 in Petitioner’s out-of-pocket costs). ECF
No. 93 at 2.

Respondent reacted to the motion on August 18, 2022, 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 at the Court’s discretion.
ECF No. 94. On August 19, 2022, Petitioner filed a reply requesting the attorney’s fees
and costs be awarded in full. ECF No. 95.

On October 12, 2022, Petitioner filed an amended motion, requesting an additional
$18,680.00 in costs for work performed by Petitioner’s Hungarian translator, bringing the
total of attorney’s fees and costs sought to $157,170.14. ECF No. 96. The invoice, filed
as an attachment to this motion, reflects only a total of 233.5 hours billed at an hourly rate
of $80.00 during the period of February 2017 through March 2022, but no individual
entries for the performed work. ECF No. 96-2 at 2.

Respondent reacted to the amended motion one week later, on October 19, 2022,
reiterating his stance to defer the resolution of the amount to the Court. ECF No. 97. In
an additional footnote, he asserted that the translator’s “invoice d[id] not provide sufficient
information to assess whether the time expended was reasonable.” Id. at 1 n.1.

On October 21, 2022, Petitioner filed a reply again requesting fees and costs be
awarded in full. ECF No. 98. She also provided additional documentation regarding the
time billed for Petitioner’s translator on November 15, 2022. Exhibit 30, ECF No. 99. The
translator still, however, did not provide dated billing records, but did offer some
substantiation of approximate activity and time expenditures related to emails, calls, and
document preparation and submission. Id. at 1-2.

Because the expert rate requested for the work performed by Petitioner’s
orthopedic expert, Dr. Uma Srikumaran, was greater than that usually paid in vaccine
cases, I delayed acting on Petitioner’s motion so the issue could be more thoroughly
briefed in a lead case (in which Leah Durant was also attorney of record) being
adjudicated by another special master. Approximately one year later, in November 2023,
a fees decision was issued in that case. See Aycock v. Sec’y of Health & Hum. Servs.,
No. 19-0235V, 2023 WL 8869423 (Fed. Cl. Spec. Mstr. Nov. 8, 2023).

2
On January 22, 2024, Respondent filed a third response reiterating his prior
position but adding cursory language urging me to consider “the hourly rates paid to
experts who appear on behalf of [R]espondent ($375.00).” Respondent’s Response to
Petitioner’s Application for Attorney’s Fees and Costs and Request for Higher Expert
Hourly Rates (“Res. Last Response”) at 4, ECF No. 100. The likely intent of this reference
is to compare the sum to Dr. Srikumaran’s requested hourly rate ($1,000.00).

Less than one month later, on February 12, 2024, Petitioner filed additional
argument on that issue, an affidavit, updated curriculum vitae, and fee schedule from Dr.
Srikumaran, and supporting affidavits from other orthopedists and an individual working
for a firm that specializes in procuring experts to testify in legal proceedings. Exhibits 31-
37, ECF No. 102; Petitioner’s Reply to Res. Last Response (“Pet. Last Reply”), ECF No.
103. Petitioner also requests that I strike the response filed by Respondent due to its
untimely nature. Reply at 3-4.

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.
3
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 2022 are reasonable
and consistent with our prior determinations, and will therefore be adopted. ECF No. 93-
1. Regarding the number of hours billed, however, I deem the total amount of time
devoted to briefing damages to be excessive. See Status Report, filed Aug. 19, 2020,
ECF No. 46 (reporting an impasse in damages discussions); Petitioner’s Brief on
Damages, filed Mar. 17, 2021, ECF No. 57; Petitioner’s Final Brief on Damages, filed Oct.
15, 2021, ECF No. 78; Hearing Minute Entry, dated Oct. 29, 2021 (regarding the Oct. 29,
2021 hearing). Petitioner’s counsel expended approximately 56.2 hours drafting the
damages brief, plus 37.0 hours drafting the responsive damages brief, totaling 93.23
hours. ECF No. 93-1 at 14-15, 17, 20-22. In addition, drafting of the damages briefs
involved the work of four attorneys, billing between $266 to $509 per hour, and thus
suggests some degree of unnecessary overlap/inefficiency compounding the excessive
cost associated with this task.

My above calculation does not include time spent preparing the initial demand
which would have informed this later work – 11.8 hours – and I am therefore awarding
fees associated with that task in full.4 Nor am I counting time spent communicating with
Petitioner; preparing additional supporting documentation such as affidavits, signed
declarations, or lost wages documentation; or preparing for or participating in the
Expedited Motions Day hearing, which is also being awarded in full. See, e.g., ECF No.
93-1 at 15, 22 (entries dated 10/13/20 (third entry), 10/6/21, and 10/14/21).

3 These totals are calculated as follows: 23.7 hours billed on 8/24/20, 8/27/20 (third entry), 8/28/20, 9/15/20,

and 11/11/20 at a rate of $395 and 13.5 hours billed on 3/17/21, 5/3/21, and 6/11/21 at a rate of $420 by
Leah Durant; 14.5 hours billed on 8/25/20, and 8/26/20 at a rate of $484 and 21.0 hours billed on 5/13/21,
5/14/21, and 10/15/21 at a rate of $509 for Michael Milmoe; 13.0 hours billed on 6/3/21 and 6/8/21 at a rate
of $325 by Christopher Williams; and 7.5 hours billed on 3/11/21 and 3/12/21 at a rate of $266 by Lindsay
Bainbridge. ECF No. 93-1 at 14, 17, 20-22.

4 This time was billed in late 2018 through early 2020, using hourly rates of $377 and $380 for Leah Durant

and $150 and $160 for the paralegal, and results in $3,921.50 in attorney’s fees. ECF No. 93-1 at 6, 8-10,
12.

4
It is, however, otherwise unreasonable for counsel to spend so much time briefing
the issue of damages once the sum in question is calculated, and where the issues
presented are not complex. I have identified numerous cases (which may reasonably be
compared to time spent in this matter),5 in which attorneys have accomplished this task
in about half the time.6 See, e.g., M.F. v. Sec’y of Health & Hum. Servs., No. 21-0970V
(Apr. 9, 2024) (13.0 and 7.8 hours billed for drafting a damages brief and responsive
damages brief, respectively); Axelrod v. Sec’y of Health & Hum. Servs., No. 21-0980V
(Mar. 29, 2024) (11.9 and 12.5 hours billed for drafting a damages brief and responsive
damages brief, respectively); Benz v. Sec’y of Health & Hum. Servs., No. 21-1197V (Mar.
26, 2024) (19.5 and 6.6 hours billed for drafting a damages brief and responsive damages
brief, respectively); Hansler-Point v. Sec’y of Health & Hum. Servs., No. 21-0045V (Mar.
26, 2024) (9.6 and 4.9 hours billed for drafting a damages brief and responsive damages
brief, respectively); Dulaney v. Sec’y of Health & Hum. Servs., No. 20-1488V (Mar. 26,
2024) (6.6 and 0.5 hours billed for drafting a damages brief and responsive damages
brief, respectively); Glanville v. Sec’y of Health & Hum. Servs., No. 19-1973V (Mar. 26,
2024) (8.7 hours billed for drafting a damages brief); Stokes v. Sec’y of Health & Hum.
Servs., No. 19-0752V (Feb. 29, 2024) (15.3 and 8.1 hours billed for drafting a damages
brief and responsive damages brief, respectively).

The circumstances of this case did not warrant devoting so much time to the
damages briefing, even considering the parties’ multiple disputed fact issues. See
Elmakky v. Sec’y of Health & Hum. Servs., No. 17-2032V, 2021 WL 6285619, at *4-5
(Fed. Cl. Spec. Mstr. Dec. 3, 2022). The parties’ views on past pain and suffering differed
by $160,000.00. But they resolved the lost wages issue after the initial briefing, with
Petitioner acquiescing to Respondent’s proposed sum. And other aspects of the demand,
such as a future pain and suffering component, turned out not to be well-founded.

Of course, having prevailed in this case, a fees award is appropriate. See Elmakky,
2021 WL 6285619, at *7. 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 damages briefing (a
total of 93.2 hours, or $38,958.50) by thirty percent. Such an across-the-board reduction

5 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).

6 These decisions can 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 July 21, 2023).

5
(which I am empowered to adopt)7 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
case. This results in a reduction of $11,687.55.8

ATTORNEY COSTS

Petitioner requests $31,582.24 for costs ($31,485.49 in attorney’s costs and
$96.75 in Petitioner’s out-of-pocket costs). ECF Nos. 93-2, 96, 99. This total includes
$18,680.00 for translation from English to Hungarian (Petitioner’s primary language);
$2,061.67 for a medical records review (hourly rate of $250); $6,050.00 for an expert
report regarding the sequela of Petitioner’s SIRVA injury (hourly rate of $1,000); and
$2,750.00 for an economist’s review (hourly rate of $275). Petitioner has provided
adequate supporting documentation for all non-expert related claimed costs. ECF No. 93-
2 at 1-11, 14-24, 27-29. Thus, I will award these costs (totaling $1,943.82).

Although dates for the work described were not provided, the doctor performing
the medical review and the economist calculating Petitioner’s lost wages provided the
exact number of hours billed at hourly rates of $250 and $275, respectively. ECF No. 93-
2 at 12-13, 26. I find these rates and the hours billed to be reasonable. And the work
performed by these experts was helpful in resolving this case. Therefore, I also will
reimburse these costs ($2,061.67 and $2,750.00) in full.

In his invoice, Dr. Srikumaran provided a detailed description of the hours he
expended with accompanying dates showing when the work was performed. ECF No. 93-
2 at 25. I am not endorsing Dr. Srikumaran’s hourly rate for all future cases as set forth in
the recent Aycock decision (which otherwise does not bind my determination).
Nevertheless, I find the overall amount sought for his work in this case ($6,050.00) to be
reasonable. And his expert opinion was invaluable when reaching an appropriate
resolution. Thus, I also will award the full amount of costs sought for Dr. Srikumaran’s
work.

7 Specia l 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).

8 This amount is calculated as follows: (14.5 x $484 x .30) + (21.0 x $509 x .30) + (23.7 x $395 x .30) +

(13.5 x $420 x .30) + (13.0 x $325 x .30) + (7.5 x $266 x .30) = $11,687.55.

6
Regarding the costs sought for the work performed by the Hungarian translator
(Richard Mara), it appears that Petitioner did not obtain prior approval as required in all
SPU cases.9 Despite Petitioner’s failure in this regard, I find the cost to be warranted in
this case. And the translator’s proposed hourly rate is appropriate, given his expertise in
a language not commonly spoken in the United States. However, a reduction in the
amount of hours billed is necessary.

According to the documentation submitted in this case, Mr. Mara provided
translation of 641 emails (approximately one-third of which included attachments) and
participated in 558 calls (18 of which were conference calls). Exhibit 30 at 1-2. Mr. Mara
based the total number of calls upon an average of three calls per month with a paralegal
at Ms. Durant’s law firm and six calls per month with Petitioner, estimating the former to
have lasted seven minutes each and the later to have lasted ten minutes each. Id. at 2.
Mr. Mara also estimated that he expended an average of ten minutes for each email and
thirty minutes for each conference call. Id. at 1-2. He attributed the remaining 37.5 hours
to translating and helping Petitioner understand, complete, and send certain documents.
Id. at 2.

An examination of the billing records provided by Petitioner’s counsel establishes
that the total of time spent by all members of Ms. Durant’s law firm interacting with
Petitioner totals less than 50 percent of the time billed by Mr. Mara, even when including
the full time allotted for multiple entries involving activities which did not involve Petitioner
such as attorney preparation, medical records review, document preparation, and
updates to the internal file. See, e.g., ECF No. 93-1 at 4 (second entry dated 2/15/18), 7
(entry dated 3/12/19), 12 (first entry dated 5/27/20), 18 (first entry dated 3/29/21). And the
documentation submitted by Petitioner lacks the details needed to substantiate the
amounts claimed. Therefore, I will award only one-half of these costs. This results in a
reduction of $9,340.00.

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

9 SPU stands for Special Processing Unit. All such cases receive an initial order which states that they

should not retain an expert without first consulting me and the opposing party. See SPU Initial Order, filed
Jan. 2, 2018, at 1, ECF No. 6.
7
attorney’s fees and costs. Petitioner is awarded the total amount of $136,142.5910 as
follows:

• A lump sum of $136,045.84, representing reimbursement in the
amount of $113,900.35 for attorney’s fees and in the amount of
$22,145.49 for attorney’s costs, in the form of a check payable jointly
to Petitioner and Petitioner’s counsel, Leah VaSahnja Durant; and

• A lump sum of $96.75, representing reimbursement for Petitioner’s
costs, in the form of a check payable to Petitioner.

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.11

IT IS SO ORDERED.

s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

10 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” as well as 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 & Hum. Servs.,
924 F.2d 1029 (Fed. Cir.1991).

11 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice

renouncing their right to seek review.
8

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10734936. Public record. Not legal advice.