# Voeller v. Secretary of Health and Human Services

> United States Court of Federal Claims · May 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10735417

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** May 3, 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- **Precedential status:** Unpublished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. 20-1526V

SARAH VOELLER, natural parent and
legal guardian, on behalf of N.V., a Chief Special Master Corcoran
minor,
Filed: April 1, 2024
Petitioner,
v.

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

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

Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On November 4, 2020, Sarah Voeller, as natural parent and legal guardian, filed a
petition on behalf of her minor child, N.V., for compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”).
Petitioner alleged that that N.V. suffered from Guillain-Barré syndrome as a result of an

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).
influenza and varicella vaccines received on January 23, 2018. Petition at 1. On July 6,
2023, I issued a decision awarding damages to Petitioner, following briefing by the
parties. ECF No. 41.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $77,308.57 as follows:

1. $73,373.81 (representing $63,219.50 for fees and $10,154.31 for costs) for her
current Petitioner’s counsel, David Carney (Green & Schafle, LLC);
2. $1,122.50 for fees for her prior Petitioner’s counsel, Kate Westad, while at her
current law firm (SiebenCarey P.A.); and
3. $2,812.26 (representing $2,785.00 for fees and $27.26 for costs) for her prior
Petitioner’s counsel, Kate Westad while at her former law firm (Larkin Hoffman
Law Firm).

Petitioner’s First Application for Fees and Costs, filed Feb. 4, 2024, at 1-4, 13, ECF No.
46. In accordance with General Order No. 9, Petitioner filed a signed statement indicating
that she incurred no out-of-pocket expenses. Id. at 87.

Respondent reacted to the motion on February 15, 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. 47. Petitioner did not file a reply.

Having considered the motion along with the invoices and other proof filed in
connection, I find reductions in the amount of fees 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
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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

A. Hourly Rates

Petitioner requests hourly rates for attorneys and paralegals at performing work in
this matter as follows:

2018 2019 2020 2021 2022 2023 2024
David J. Carney, Esq. $350 $375 $400 $425 $450
Adam M. Green, Esq. X X $425 X X
Evan R. Baker - Law X $150 X X X
Student
Paralegals – Green & $145 $145 $145 X X
Schafle, LLC
Kate Westad, Esq. $350 $350 $350
Paralegal – Larkin $140 $140
Hoffman

ECF No. 46 at 2-3, 15-35. The hourly rates requested for Mr. Carney, Mr. Green, Ms.
Baker (as law student), the paralegals at Green & Schafle, LLC, Ms. Westad, and the
paralegal at Larkin Hoffaman Law Firm for all time billed in the 2018-2023 period are
reasonable and consistent with prior determinations. Additionally, Petitioner has also

3
requested a 2024 attorney hourly rate of $450 for work performed by David Carney -
representing a rate increase of $25, which I also find to be reasonable. Id. at 34-35.

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 $823.50.4

B. Billed Hours

Regarding the number of hours billed, some adjustments also are merited. First,
attorney Adam Green billed 1.1 hours on April 14, 2022, for researching and drafting the
“Legal Standard” section of the damages brief. ECF No. 46 at 28. 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. For example, the briefing
in this case is strikingly similar to what counsel filed in 2021 (the year prior to the briefing
in this case) in Boyd v. Sec’y of Health & Hum. Servs., No. 19-1107V at ECF No. 29;
McCabe v. Sec’y of Health & Hum. Servs., No. 19-1916V at ECF No. 26; Hartman v.
Sec’y of Health & Hum. Servs., No. 19-1106V at ECF No. 32; Niemi v. Sec’y of Health &
Hum. Servs., No. 19-1535V at ECF No. 31; Morrison-Langehough v. Sec’y of Health &
Hum. Servs., No. 19-1103V at ECF No. 42; Carlow v. Sec’y of Health & Hum. Servs., No.
19-1449V at ECF No. 25; Buckley v. Sec’y of Health & Hum. Servs., No. 19-1602V at
ECF No. 23; Guerrero v. Sec’y of Health & Hum. Servs., No. 20-0851V at ECF No. 30;
Clappe-Mixell v. Sec’y of Health & Hum. Servs., No. 19-1538V at ECF No. 36; Black v.
Sec’y of Health & Hum. Servs., No. 20-0777V at ECF No. 24; Miller v. Sec’y of Health &

3 These entries describing the preparation of a notice of filing, the bates stamping medical records, and

filing both documents are dated as follows: 11/3/20, 11/18/20 (two entries), 4/14/21, 4/21/22, 7/6/22, and
11/17/22. ECF No. 46 at 22-23, 29-30, 32.

4 This amount consists of ($350 - $145) x 2.2 hrs. + ($375 - $145) x 0.4 hrs. + ($400 - $145) x 1.1 hrs. =

$823.50.

4
Hum. Servs., No. 20-0604V at ECF No. 31; Klausen v. Sec’y of Health & Hum. Servs.,
No. 19-1977V at ECF No. 44 (in chronological order). Attorney’s fees which included 1.4
to 1.8 hours, respectively, for work by Mr. Green, have already been awarded in those
cases.

“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 0.6
hours. This results in a reduction of $255.00.5

Second, I deem the total amount of time devoted to briefing entitlement and
damages to be excessive. See Status Report, filed Feb. 22, 2022, ECF No. 27 (reporting
an impasse in damages discussions); Petitioner’s Motion on Damages, filed Apr. 25,
2022, ECF No. 29; Petitioner’s Reply Brief in Support of Petitioner’s Motion for Ruling on
the Record and Brief in Support of Damages, filed Sept. 2, 2022, ECF No. 37. After
accounting for the reduction already mentioned, Petitioner’s counsel expended
approximately 22.3 hours drafting the damages brief and 16.8 hours drafting the reply
damages brief, totaling 39.16 hours. ECF No. 46 at 28-32.

My above calculation does not include time spent preparing the initial demand
which would have informed this later work – 15.4 hours – and I am therefore awarding
fees associated with that task in full.7 Nor am I counting time spent communicating with
Petitioner and preparing additional supporting documentation such as affidavits or signed
declarations or preparing for or participating in the Expedited Motions Day hearing, which
is also being awarded in full. See, e.g., ECF No. 46 at 31 (8/25/22 entry).

It is unreasonable for counsel to spend so much time briefing the issue of damages
in this case, 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

5 This amount is calculated as follows: 0.6 hrs. x $425 = $255.00.

6 This total is calculated as follows: 29.2 hours billed on: 9/15/22, 9/16/22, 9/17/22, 9/18/22, 9/26/22,
9/27/22, 9/28/22, 10/21/22, 10/22/22, 10/24/22, and 10/25/22, by Adam Green at a rate of $425; and 9.9
hours billed on: 11/17/23 and 12/1/23, by David Carney at a rate of $400.

7 This time was billed by Evan Baker, using an hourly rate of $150 and Dave Carney, using an hourly rate

of $375, and results in $4,380.00 in attorney’s fees. ECF No. 46 at 25-26.

5
time spent in this matter),8 in which attorneys have accomplished this task in about half
the time.9 See, e.g., Staffaroni v. Sec’y of Health & Hum. Servs., No. 21-1951V (Nov. 2,
2023) (19.2 and 5.4 hours billed for drafting a damages brief and responsive damages
brief, respectively); Granville v. Sec’y of Health & Hum. Servs., No. 21-2098V (Oct. 25,
2023) (16.4 and 6.2 hours billed for drafting a damages brief and responsive damages
brief, respectively); Schenck v. Sec’y of Health & Hum. Servs., No. 21-1768V (Oct. 20,
2023) (8.0 and 3.2 hours billed for drafting a damages brief and responsive damages
brief, respectively); Weil v. Sec’y of Health & Hum. Servs., No. 21-0831V (Oct. 20, 2023)
(14.5 and 1.5 hours billed for drafting a damages brief and reviewing Respondent’s
responsive damages brief, respectively); Hernandez v. Sec’y of Health & Hum. Servs.,
No. 21-1572V (July 21, 2023) (14.7 hours billed for drafting a damages brief); Miles v.
Sec’y of Health & Hum. Servs., No. 20-0146V (July 20, 2023) (16.4 and 7.2 hours billed
for drafting a damages brief and responsive damages brief, respectively); Merchant v.
Sec’y of Health & Hum. Servs., No. 20-0450V (July 12, 2023) (15.5 and 2.7 hours billed
for drafting a damages brief and responsive damages brief, respectively); Elenteny v.
Sec’y of Health & Hum. Servs., No. 19-1972V (May 31, 2023) (16.7 hours billed for
drafting a damages brief); Miller v. Sec’y of Health & Hum. Servs., No. 21-1559V (May
30, 2023) (17.5 and 4.5 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. The only areas of dispute involved the appropriate amount of
compensation for Petitioner’s past pain and suffering and whether annuity for future
medical expenses is needed. See Voeller v. Sec’y of Health & Hum. Servs., No. 20-
1526V, 2023 WL 5019830, at *1 (Fed. Cl. Spec. Mstr. July 6, 2023). The parties’ views
differed by $102,000.00 - Petitioner sought $190,000.00, and Respondent countered with
$88,000.00. Although I denied Petitioner’s request for future medical expenses, I
ultimately awarded was close to that proposed by Petitioner($185,000.00) – supporting
the need for damages briefing. Id. However, I still find the amount of time expended to be
excessive, but 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).

Of course, having prevailed in this case, a fees award is generally appropriate. 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 39.1 hours, or

8 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).

9 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 March 24, 2024).

6
$16,370.00) by twenty percent. 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 case. This
results in a reduction of $3,274.00.11

ATTORNEY COSTS

Petitioner requests $10,154.31 in costs to Mr. Carney’s firm and $27.26 in costs to
Larkins Hoffman Attorneys. ECF No. 46 at 2. She has provided receipts for all except
$9.87 in postage costs, which I will nevertheless allow. Id. at 37-85; 94-95. And
Respondent offered no specific objection to the rates or amounts sought. I have reviewed
the requested costs and find them to be reasonable.

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. Petitioner is awarded the total amount of $72,956.0712 as
follows:

• A lump sum of $69,021.31, representing reimbursement in the amount
of $58,867.00 for attorney’s fees and in the amount of $10,154.31 for
attorney’s costs, in the form of a check payable jointly to Petitioner
and Petitioner’s counsel, David J. Carney; and

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).

11 This amount is calculated as follows: (29.2 hrs. x $425 x .20) + (9.9 hrs. x $400 x .20) = $3,274.00.

12 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 & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).

7
• A lump sum of $1,122.50, representing reimbursement for attorney’s
fees, in the form of a check payable jointly to Petitioner and
Petitioner’s former counsel’s current law firm, SiebenCarey, P.A.; and

• A lump sum of $2,812.26, representing reimbursement in the amount
of $2,785.00 for attorney’s fees and in the amount of $27.26 for
attorney’s costs, in the form of a check payable to Petitioner and
Petitioner’s former counsel’s prior law firm, Larkin Hoffman Law Firm.

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.13

IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

13 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/10735417. Public record. Not legal advice.