# McKENNA v. SECRETARY OF HEALTH AND HUMAN SERVICES

> United States Court of Federal Claims · November 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10736910

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** November 27, 2023
- **Precedential status:** Unpublished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. 21-0030V

SHAWN MCKENNA,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 24, 2023

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

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

Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On January 4, 2021, Shawn McKenna 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table injury, after receiving an influenza (“flu”)
vaccine administered on December 24, 2019. Petition at 1, ¶¶ 3, 19. On July 7, 2023, I
issued a decision awarding damages to Petitioner, following briefing by the parties. ECF
No. 44.

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
inf ormation, 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 f rom 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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $56,589.41 (representing $54,172.50 for fees and $2,416.91 for costs). Petitioner’s
Application for Fees and Costs, filed July 20, 2023, ECF No. 48. In accordance with
General Order No. 9, Petitioner filed a signed statement indicating that she incurred no
out-of-pocket expenses. Id. at 63. Respondent did not file a response.

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.

2
ATTORNEY FEES

A. Hourly Rates

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

2019 2020 2021 2022 2023
David J. Carney, Esq. X $350 $375 $400 $425
Adam M. Green, Esq. X X X $425 $425
Paralegals $145 $145 $145 $145 X

The hourly rates requested for Mr. Carney, Mr. Green and paralegals for all time
billed in the 2019-2023 period are reasonable and consistent with prior determinations
and shall therefore be awarded herein.

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 $758.00. 4

B. Billed Hours

Regarding the number of hours billed, some adjustments also are merited. First,
attorney Adam Green billed 2.1 hours on October 11, 2022, for researching and drafting
the “Legal Standard” section of the damages brief. ECF No. 48 at 22. 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

3
These entries describing the preparation of a notice of f iling, the bates stamping medical records, and
f iling both documents are dated as f ollows: 3/8/21, 12/6/21, 2/2/22, 10/5/22, 10/18/22, 10/21/22, and
12/14/22. ECF No. 48 at 17-19, 22-25.
4
This amount consists of ($375 - $145) x 1.3 hrs + ($400 - $145) x 1.8 hrs = $758.00.

3
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 &
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 1.6
hours. This results in a reduction of $680.00. 5

Second, I deem the total amount of time devoted to briefing entitlement and
damages to be excessive. See Status Report, filed Aug. 29, 2022, ECF No. 28 (reporting
an impasse in settlement discussions); Petitioner’s Motion for a Ruling on the Record and
Brief on Damages, filed Oct. 18, 2022, ECF No. 33; Petitioner’s Reply Brief on Damages, 6
filed Feb. 13, 2023, ECF No. 43. After accounting for the reduction already mentioned,
Petitioner’s counsel expended approximately 27.5 hours drafting the entitlement and
damages brief and 19.2 hours drafting the reply damages brief, totaling 46.7 7 hours. ECF

5
This amount is calculated as f ollows: 1.6 hrs x $425 = $680.00.
6
Between Petitioner’s motion and reply, Respondent conceded entitlement, and I issued a ruling f inding
Petitioner entitled to compensation. ECF Nos. 34, 36.
7
This total is calculated as f ollows: 24.5 hours billed on: 10/6/22, 10/7/22, 10/8/22, 10/9/22, 10/11/22 (the
remaining .5 hours), 10/12/22, and 10/14/22 (two entries), by Adam Green at a rate of $425; 3.0 hours billed
on: 10/15/22 and 10/18/22, by David Carney at a rate of $400; and 19.2 hours billed on: 2/1/23, 2/3/23,
2/9/23, 2/10/23, 2/12/23, and 2/13/23, by David Carney at a rate of $425.
4
No. 48 at 22-26.

My above calculation does not include time spent preparing the initial demand
which would have informed this later work – 7.6 hours – and I am therefore awarding fees
associated with that task in full. 8 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., ECF No. 48 at 22 (second
entry on 10/9/22, 10/10/22, and second entry on 10/11/22)).

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
time spent in this matter), 9 in which attorneys have accomplished this task in about half
the time. 10 See, e.g., Kestner v. Sec’y of Health & Hum. Servs., No. 20-0025V (June 22,
2023) (6.00 and 4.10 hours billed for drafting a damages brief and responsive damages
brief, respectively); Juno v. Sec’y of Health & Hum. Servs., No. 18-0643V (June 14, 2023)
(5.8 hours billed for drafting a damages brief); Deutsch v. Sec’y of Health & Hum. Servs.,
No. 18-0527V (June 12, 2023) (7.4 and 4.4 hours billed for drafting a damages brief and
responsive 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 a damages brief and
responsive damages brief, respectively); Edminister v. Sec’y of Health & Hum. Servs.,
No. 19-0184V (May 30, 2023) (15.3 and 3.5 hours billed for drafting a damages brief and
responsive damages brief, respectively); Aponte v. Sec’y of Health & Hum. Servs., No.
20-1031V (May 18, 2023) (6.9 hours billed for drafting a damages brief); Gray v. Sec’y of
Health & Hum. Servs., No. 20-1708V (May 18, 2023) (5 hours billed for drafting a
damages brief); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023)
(9.8 hours billed for drafting a damages brief); Rice-Hansen v. Sec’y of Health & Hum.
Servs., No. 20-1338V (May 17, 2023) (12.9 and 6.1 hours billed for drafting a damages
brief and responsive damages brief, respectively); Horky v. Sec’y of Health & Hum.
Servs., No. 20-0239V (May 18, 2023) (5.8 hours billed for drafting a damages brief);
Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V (May 4, 2023) (9.5 and 2.5
hours billed for drafting a damages brief and responsive damages brief, respectively).

8
This time was billed by David Carney at a rate of $400. See ECF No. 48 at 19-20.
9
Special masters may use comparisons to attorneys perf orming 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).
10
These decisions can be f ound on the United States Court of Federal Claims website, and/or
at https://www.govinf o.gov/app/collection/uscourts/national/cof c (last visited July 21, 2023).

5
The circumstances of this case did not warrant devoting so much time to briefing.
The only primary area of dispute involved the appropriate amount of compensation for
Petitioner’s past pain and suffering. See McKenna v. Sec’y of Health & Hum. Servs., No.
21-0030V, 2023 WL 5045121 (Fed. Cl. Spec. Mstr. July 7, 2023). Regarding damages,
the parties’ views differed by $20,000.00 - Petitioner sought $85,000.00, and Respondent
countered with $65,000.00. Id. at *5-6. I ultimately awarded the amount for pain and
suffering proposed by Respondent ($65,000.00) – further underscoring the extent to
which Petitioner’s efforts in this behalf had a futile quality (since I ultimately found the
higher figure was not adequately defended).

Of course, having prevailed in this case, a fees award is generally appropriate.
ECF No. 36. 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 46.7
hours, or $19,772.50) by thirty percent. Such an across-the-board reduction (which I am
empowered to adopt) 11 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 $5,931.75. 12

ATTORNEY COSTS

Petitioner requests $2,416.91 in overall costs. ECF No. 48 at 30-61. I find the
majority of these costs reasonable with the exception of $146.85 in costs incurred for
“[s]canning charges throughout case for intake documents, envelopes, medical records,
invoices, medical expenses, client documents and letters.” Id. at 35-36. Such overhead
expenses inherent in operating a law firm, and thus not compensable. Accordingly, the
attorney’s costs are reduced by $146.85.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e).

11
Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is
suf ficiently 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).
12
This amount is calculated as f ollows: (43.7 hrs x $425 x .30) + (3.0 hrs x $400 x .30) = $5,931.75

6
Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $49,072.81 (representing $46,802.75 for fees and $2,270.06 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. 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 f iling a joint notice
renouncing their right to seek review.
7

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10736910. Public record. Not legal advice.