Opinion

Kahler v. Secretary of Health and Human Services

Court: United States Court of Federal Claims
Filed: Jan 28, 2025
Status: Unpublished
On the bench: Brian H. Corcoran
Cited by: 0 cases
Authority: More cited than 33.8%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-1938V

HOLLY F. KAHLER,

Chief Special Master Corcoran

Petitioner,

v. Filed: December 26, 2024

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Jessica Anne Olins, Maglio Christopher & Toale, (WA), Seattle. WA, for Petitioner.

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

DECISION ON ATTORNEY’S FEES AND COSTS1

On December 20, 2019, Holly F. Kahler 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 alleges that she suffered a shoulder injury related to vaccine

administration (“SIRVA”) caused by an influenza vaccine administered on October 4,

2018. Petition at 1. On March 28, 2024, I issued a ruling finding Petitioner entitled to

compensation and decision awarding damages following briefing by the parties. ECF No.

50.

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).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award

of $61,645.85 (representing $60,773.70 for attorney’s fees, $868.49 for attorney’s costs,

and $3.66 for Petitioner’s out-of-pocket litigation costs). Motion for Payment of Petitioner’s

Attorneys’ Fees and Reimbursement of Case Costs (“Motion”), filed June 24, 2024, ECF

No. 55. In accordance with General Order No. 9, Petitioner filed a signed statement

indicating that she incurred $3.66 in out-of-pocket expenses. ECF No. 55-4.

Respondent reacted to the motion on July 1, 2024, indicating 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 (“Response”) at 2-3, 3 n.2, ECF No. 56.

On July 2, 2024, Petitioner filed a reply, reiterating the arguments set forth in her

motion. Petitioner’s Reply to Response, ECF 57. One month later, on August 2, 2024,

she filed an amended motion providing the new address for the firm’s main office: 1515

Ringling Blvd., Suite 700, Sarasota FL 34236, where Petitioner requests that the check

be mailed.

I have reviewed the billing records submitted with Petitioner’s request and find

reductions in the amount of fees and costs to be awarded appropriate, for the reason

stated 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

& Human 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 & Human 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 & Human 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 & Human

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 & Human 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 are reasonable

and consistent with our prior determinations, and will therefore be adopted. However, a

few of the tasks performed by Ms. Olins 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 $53.60.4

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. See

Status Report, filed Apr. 29, 2022, ECF No. 37 (noting an impasse in settlement

discussions); Petitioner’s Motion for Ruling on Entitlement and Damages, filed Apr. 21,

2023, ECF No. 45; Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion

for Ruling on Entitlement and Damages, filed June 8, 2023, ECF No. 48. Petitioner’s

counsel expended approximately 24.8 hours drafting the motion for a ruling regarding

entitlement and damages and 11.6 hours drafting the reply, totaling 36.4 5 hours. ECF

3 These entries, drafting basic documents such as a notice of filing and exhibit list, are dated as follows:

6/8/23 (two entries). ECF No. 55-2 at 21.

4 This amount consists of ($320 - $186) x 0.4 hrs. = $53.60.

5 These totals are calculated as follows: 36.4 hours billed on 3/16/23 (three entries), 3/17/23 (two entries),

4/19/23 (four entries), 4/20/23 (two entries), 4/21/23 (four entries), 6/6/1/23, 6/7/21, 6/8/23 (three entries)

billed at a rate of $320 by Jessica Olins. ECF No. 55-2 at 20-21.

No. 55 at 20-21.

My above calculation does not include time spent communicating with Petitioner

and preparing additional supporting documentation such as affidavits or signed

declarations, which is being awarded in full. See, e.g., ECF No. 55-2 at 21 (entry dated

6/8/23 – 0.3 hours).

Given that briefing was required for both entitlement and damages in this case, I

would expect Petitioner’s counsel to expend additional time to finalize any briefing.

However, the time billed in this case still exceeds what that total would be. 6 Thus, I find

that a lower reduction of 20 percent (rather than the 30 percent I commonly apply) 7 is

warranted. Accordingly, I will reduce the sum to be awarded for damages briefing (a total

of 36.4 hours, or $11,648.00) by twenty percent. Such an across-the-board reduction

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