Opinion

Matzner v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
May 20, 2025
Status
Unpublished
On the bench
Thomas L. Gowen
Cited by
0 cases
Authority
More cited than 35.5%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: March 27, 2025

* * * * * * * * * * * * * *

BRUCE MATZNER, *

*

Petitioner, * No. 22-323V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * *

Jessica Wallace, Siri & Glimstad, LLP, Aventura, FL, for Petitioner.

Mallori Browne Openchowski, United States Department of Justice, Washington, DC, for

Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On September 12, 2024, Bruce Matzner, (“Petitioner”) filed a motion for attorneys’ fees

and costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 62). For the reasons

discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of

$145,676.88.

I. Procedural History

On March 24, 2022, Bruce Matzner (“Petitioner”), filed a petition for compensation under

the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that

he suffered from Guillain-Barre Syndrome (“GBS”) resulting from an influenza (“flu”)

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

The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Act of

1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018) (Vaccine Act or

the Act. All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

vaccination he received on September 11, 2020. Id. On September 9, 2024, the parties filed a

proffer, which I adopted as my decision awarding compensation on the same day. (ECF No. 57).

On September 12, 2024, Petitioner filed a motion for attorneys’ fees and costs. Fees App.

at 1. (ECF No. 62). Petitioner requests compensation in the total amount of $152,330.94,

representing $129,081.20 in attorneys’ fees and $23,249.74 in costs. Id. at 5. Pursuant to General

Order No. 9, Petitioner warrants he did not incur personal costs in pursuit of his claim. Id. at 1.

Respondent reacted to the fees motion on September 24, 2024, stating that “Respondent is satisfied

the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response

at 2 (ECF No. 64). Petitioner filed a reply on September 27, 2024. ECF No. 65.

The matter is now ripe for adjudication.

II. Analysis

Under the Vaccine Act, the special master may award reasonable attorneys’ fees and costs

for a petition that does not result in an award of compensation but was filed in good faith and

supported by a reasonable basis. § 300aa–15(e)(1). Here, because Petitioner was awarded

compensation pursuant to a proffer, he is entitled to an award of reasonable attorneys’ fees and

costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and

the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,

484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is

filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent

of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.

Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.

Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees

A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d

at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for

the District of Columbia” rather than “the rate in the geographic area of the practice of Petitioner's

attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)

(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees

to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum

jurisdiction” and “there is a very significant difference” between the local hourly rate and forum

hourly rate. Id. This is known as the Davis County exception. Hall v. Sec'y of Health & Human

Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery

Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

For cases in which forum rates apply, McCulloch provides a framework for consideration

of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney.

McCulloch v. Sec'y of Health & Human Servs., No 09-293V, 2015 WL 5634323, at *19 (Fed. Cl.

2

Spec. Mstr. Sept. 1, 2015) motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr.

Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum

Hourly Rate Fee Schedules for 2015-2016 and from 2017-2022, which can be accessed online.

Petitioner requests the following rates of compensation for her attorneys: for Ms. Debra

Gambella, $380.00 per hour for work performed from 2021-2023, and $424.00 per hour for work

performed in 2024; and for Ms. Jessica Wallace, $231.00 per hour for work performed in 2020,

$241.00 per hour for work performed in 2021, $275.00 per hour for work performed in 2022,

$285.00 per hour for work performed in 2023, and $320.00 per hour for work performed in 2024.

Petitioner also requests between $162.00 per hour and $187.00 per hour for worked performed by

paralegals between from 2021-2024. These rates are consistent with what counsel and paralegals

have previously been awarded for their Vaccine Program work and the undersigned finds them to

be reasonable herein.

Turning next to review of the submitted billing statement, I have noted a few issues, when

taken together, warrant a reduction to the overall billed hours. First, there are multiple entries in

the submitted billing records which are for clerical or administrative tasks. For instance, there are

entries for preparing exhibits for filing, preparing notices of filing, organizing files, updating the

file, filing documents in CM/ECF, reviewing ECF notifications, calendaring deadlines, case file

management, adding tasks to the file, and preparing a USB. Such administrative tasks comprise

nearly 60 entries on the fees invoice. See Ex. 35 at 18, 26, 31, 36, 38-44, 47, 49, 56-58, 66, 67, 69,

70, 72, 78-80. While these tasks were mostly completed by paralegals, some attorneys also billed

for these tasks. In the Vaccine Program, this type of administrative work “should be considered as

normal overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S., 18 Cl.

Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL 630473,

at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not

permitted in the Vaccine Program.” Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V,

2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387).

Besides the above, the fees award must also be reduced for excessive billing related to

inter-office communications and redundant billing entries where multiple attorneys and paralegals

performed work on the same tasks. On multiple occasions, several individuals entered time for

internally discussing case matters, participating in the same inter-office telephone calls and emails,

and for the same telephone conferences with the petitioner and the experts consulted in the case.

Such interoffice communications and duplicative billing comprise more than 130 entries on the

fees invoice. See Ex. 35 at 32-48, 50-77, 79-80. Special Masters have previously reduced attorney

fees awarded due to excessive and duplicative billing. See W.R. v. Sec’y of Health & Human Servs.,

No. 20-1401V, 2023 WL 8187303 (Fed. Cl. Spec. Mstr. Oct. 23, 2023); Dreyer v. Sec’y of Health

& Human Servs., No. 18-764V, 2019 WL 6138132 (Fed. Cl. Spec. Mstr. Oct. 29, 2019). Special

masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity

to respond. See Sabella v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

The quantity of internal emails and double tasks billed in this matter is deemed excessive.

While a firm is free to utilize its staff in the way it feels they are best suited to aid the case, billing

judgment must also be exercised to make sure that overbilling does not occur. In this case, the

work billed by counsel reflects excessive, duplicative, and disallowed billing for administrative

3

tasks, warranting an overall reduction of 5% to counsel’s fees. This results in a reduction of

$6,454.06.

Accordingly, Petitioner is entitled to final attorneys’ fees of $129,081.20.

b. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.

Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests attorneys’

costs in the amount of $23,249.74. This amount is comprised the acquisition of medical records,

postage, and the Court’s filing fee. See Ex. 35 at 80-82, 84-168. These costs incurred by

Petitioner’s counsel are typical costs incurred in the Vaccine Program, and I find them to be

reasonable herein.

Petitioner’s vocational expert services were provided by Labor Market Consulting Services

at a rate of $200.00 per hour, totaling $4,780.00. I find this cost to be largely reasonable; however,

there is a charge for “Open File” which has not been substantiated. Ex. 35 at 125. Like attorneys’

fees, expert billing for clerical and other secretarial work is also not permitted. Special Masters

have previously deducted from attorneys’ costs for expert billing entries deemed to be

unsubstantiated or administrative in nature. See, e.g., Schettl v. Sec’y of Health & Human Servs.,

No. 14-422V, 2022 WL 2912666, at * 4 (Fed. Cl. Spec. Mstr. June 30, 2022) (deducting a $400.00

“File set up fee” from the life care planner’s costs); Nosches v. Sec’y of Health & Human Servs.,

No. 16-1657V, 2019 WL 1149944, at * 3 (Fed. Cl. Spec. Mstr. Feb. 26, 2019) (declining to

compensate $400.00 for a “File set up fee” without further information to ascertain the purpose of

this costs nor its reasonableness). This results in a reduction of $200.00.

Petitioner also requests reimbursement for life care planning services provided by Ms.

Tresa Johnson and Life Care Consultants, Inc. totaling $12,948.38. Ex. 35 at 128-134. This amount

includes 84.05 hours at rates between $110.00 per hour and $195.00 per hour, and travel costs

related to the life care planning visit including airfare, car rental, Uber, meals, and hotel costs. Id.

at 135-141. Petitioner has provided adequate documentation supporting all of these costs, and they

all appear to be reasonable.

Finally, Petitioner requests reimbursement for expert services performed by economist Dr.

Robert W. Cook, at $300.00 per hour for 9 hours totaling $2,700.00. Ex. 35 at 167-168. These

services have also been supported with the necessary documentation and are reasonable.

Accordingly, Petitioner is entitled to final attorneys’ costs of $23,049.74.

III. Conclusion

In accordance with the foregoing, I hereby GRANT Petitioner’s motion for attorneys’ fees

and costs and find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

4

Attorneys’ Fees Requested $129,081.20

(Reduction of Fees) ($6,454.06)

Total Attorneys’ Fees Awarded $122,627.14

Attorneys’ Costs Requested $23,249.74

(Reduction of Costs) ($200.00)

Total Attorneys’ Costs Awarded $23,049.74

Total Attorneys’ Fees and Costs $145,676.88

Accordingly, I award the following: A lump sum in the amount of $145,676.88,

representing reimbursement for Petitioner’s attorneys’ fees and costs, to be paid through an

ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the

Court SHALL ENTER JUDGMENT in accordance herewith.3

IT IS SO ORDERED.

/s/Thomas L. Gowen

Thomas L. Gowen

Special Master

3

Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine

Rule 11(a).

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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