Opinion

Crawford v. Secretary of Health and Human Services

Court: United States Court of Federal Claims
Filed: Jan 13, 2025
Status: Unpublished
On the bench: Brian H. Corcoran
Cited by: 0 cases
Authority: More cited than 33.6%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-0544V

EDLIN M. CRAWFORD,

Chief Special Master Corcoran

Petitioner,

v. Filed: December 9, 2024

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN , for

Petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On April 12, 2019, Edlin M. Crawford 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 as a result of an influenza vaccine she received on

September 4, 2017, she suffered a shoulder injury related to vaccine administration

(“SIRVA”) as defined by the Vaccine Injury Table. Petition ECF No. 1 at Preamble. On

February 5, 2024, I issued a decision determining entitlement and awarding

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 .

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).

compensation to Petitioner in the amount of $105,045.57, following briefing by the parties.

ECF No. 45.

On March 21, 2024, Petitioner filed a motion for attorney’s fees and costs,

requesting an award of $94,290.66 (representing $76,732.00 in fees, plus $17,558.66 in

costs). ECF No. 50. She also filed additional argument and evidence regarding the hourly

rate used to calculate costs related to her expert, Dr. Uma Srikumaran: an affidavit,

updated curriculum vitae, and the expert’s fee schedule, and supporting affidavits from

other orthopedists and an individual working for a firm that specializes in procuring

experts to testify in legal proceedings. Petitioner’s Brief in Support of Expert’s Hourly

Rate, ECF No. 51; Exhibits 42-48, ECF No. 52. In accordance with General Order No. 9,

Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses.

ECF No. 50-3.

Respondent reacted to the motion on April 3, 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, 4 n.2, ECF No. 53. Regarding the hourly rate requested for

Petitioner’s expert, Respondent notes that “[t]o the extent petitioner is requesting higher

expert hourly rates than what has typically been awarded in the past, [R]espondent

submits that the Court should reserve the highest rates for the most qualified experts

opining on the most complex medical issues.” Id. at 3. Petitioner did not file a reply.

Because the expert rate requested for the work performed by Dr. Srikumaran was

greater than that usually paid in vaccine cases, I delayed acting on Petitioner’s motion in

this case so the issue could be more thoroughly briefed in a lead case being adjudicated

by another special master. After approximately one year, 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).

Having considered the motion along with the invoices and other proof filed in

connection, I find reductions in the amount of fees and costs to be awarded appropriate,

for the reasons set forth below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section

15(e). Counsel must submit fee requests that include contemporaneous and specific

billing records indicating the service performed, the number of hours expended on the

service, and the name of the person performing the service. See Savin v. Sec’y of Health

& Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee

requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.

Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to

reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for

the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request

sua sponte, apart from objections raised by respondent and without providing a petitioner

notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed.

Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of

petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.

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

The petitioner “bears the burden of establishing the hours expended, the rates

charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl.

Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees

and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.

Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours

that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private

practice ethically is obligated to exclude such hours from his fee submission.” Hensley,

461 U.S. at 434.

ATTORNEY FEES

The rates requested for work performed through the end of 2024 by Petitioner’s

attorneys are reasonable and consistent with our prior determinations, and will therefore

be adopted. ECF No. 50 at 8-9.

Regarding the number of hours billed, I deem the total amount of time devoted to

briefing entitlement and damages to be excessive - although not egregiously so,

considering the more complicated issues related to entitlement that required expert

evidence. See Petitioner’s Motion for Ruling on the Record, filed Aug. 6, 2021, ECF No.

36; Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for Ruling on the

Record, filed Sept. 27, 2021, ECF No. 40. Petitioner’s counsel expended approximately

44.5 hours drafting the entitlement and damages brief, and 19.9 hours drafting the

responsive entitlement and damages brief, totaling 62.43 hours. ECF No. 50-2 at 21-26.

3 These totals are calculated as follows: 54.4 hours billed on 4/14/21, 5/18/21, 6/7/21, 7/15/21, 8/2/21,

8/3/21, 8/4/21, 8/5/21, 8/6/21, 9/17/21, 9/20/21, 9/21/21, 9/22/21, 9/23/21, 9/24/21, and 9/27/21 billed at a

rate of $420 by William Cochran and 8.0 hours billed on 8/5/21 at a rate of $161 by paralegal Stan Medlin.

My above calculation does not include time spent communicating with Petitioner

and her expert Dr. Srikumaran, reviewing the expert evidence in this case, and preparing

additional supporting documentation such as affidavits or signed declarations, which is

being awarded in full. See, e.g., ECF No. 50-2 at 21-23 (entries dated 4/14/21, 4/21/21,

4/23/21, and 5/20/21). Nor am I including 2.0 hours of time spent reviewing recent SIRVA

damages decisions in 2023, while awaiting my decision. ECF No. 50-2 at 27 (entry dated

7/13/23).

Given the additional time required to address the expert evidence in this case, I

would expect Petitioner’s counsel to expend up to twice the time usually needed to finalize

any briefing. However, the time billed in this case still exceeds what that total would be. 4

Thus, I find that a modest reduction of 10 percent (rather than the 30 percent I commonly

ECF No. 50-2 at 21-26.

4 See, e.g., Schwalm v. Sec’y of Health & Hum. Servs., No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours