Hudson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-114V

(Not to be Published)

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

* Filed: June 3, 2016

MICHAEL D. HUDSON, *

*

Petitioner, *

* Attorney’s Fees and Costs;

v. * Reasonable Fees; Case Settled

* Without Rule 4(c) Report.

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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Tyler G. Doyle, Smyser, Kaplan & Veselka, L.L.P., Houston, TX, for Petitioner.

Lynn E. Ricciardella, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEY’S FEES AND COSTS1

On February 4, 2015, Michael Hudson filed a petition seeking compensation under the

National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that he

developed Guillain–Barré syndrome (“GBS”) and chronic inflammatory demyelinating

polyneuropathy as a result of his November 1, 2012, receipt of the influenza (“flu”) vaccine and that

he experienced residual effects of this injury for more than six months. The case was settled in less

than one year, without Respondent ever filing a Rule 4(c) Report, and I issued a decision awarding

Petitioner compensation on January 20, 2016. ECF No. 21.

On March 31, 2016, Petitioner filed a Motion requesting an award of attorney’s fees in the

1

Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States

Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As

provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published decision’s inclusion of

certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within

which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial

in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which

would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be

available to the public. Id.

2

The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of

1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).

amount of $49,517.50, reflecting the work of both the attorney who appeared in this case (Mr. Tyler

Doyle), as well as another attorney who did not appear (Mr. Jacob Paschal). Fees Motion, dated March

31, 2016 (ECF No. 27) (“Mot.”) at 1-2. In addition, Mr. Hudson requested $10,735 in paralegal fees,

plus litigation costs of $7,486.25, a sum that included $6,000 in expert fees incurred in the case for

the services of Dr. Ahmet Höke, at a rate of $500 per hour. Id.; see also Pet’r’s Ex. 6, filed February

12, 2015 (ECF No. 7). In accordance with General Order No. 9, Petitioner’s counsel also represented

that Mr. Hudson incurred no out-of-pocket expenses.

On April 18, 2016, Respondent filed a brief in reaction to Petitioner’s Motion. ECF No. 28.

Respondent asserts that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for

Respondent in the resolution of a request by a Petitioner for an award of attorney’s fees and costs.”

Id. at 2. Respondent added that she “is satisfied the statutory requirements for an award of attorneys’

fees and costs are met in this case.” Id. at 2, n.2. However, she maintained that a reasonable amount

for fees and costs in the present case would fall between $22,000 and $33,000. Id. For substantiation,

she offered several cases involving the flu vaccine that were settled within a year of filing, and where

no expert report was ever filed. Id. (citations omitted).

Petitioner filed a reply on April 27, 2016. ECF No. 29. Petitioner argued that Respondent’s

proposed range was based on inapposite cases in which experts were never consulted with, and/or

where the total damages award was smaller. Reply at 1-2. He also stressed the fact that, to the extent

the requested fees seemed high for a case that settled so rapidly, it was due to the fact that the case

was developed for nearly a year before its actual filing – and thus the utility of the time devoted to it

was reflected in the successful outcome. Id. at 3. And he noted that the hours devoted to the matter

were not high when considered on a monthly basis rather than in the aggregate. Id. at 4.

ANALYSIS

I. Legal Standards for Fees Requests

Vaccine Program petitioners who receive compensation for their injuries are by statute entitled

to an award of attorney’s fees and costs. However, such fees and costs must be “reasonable.” Section

15(e)(1). It is for the special master to evaluate and decide whether this is the case. Perreira v. Sec’y

of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). To this

end, special masters have discretion in determining what a reasonable fees award is, and may reduce

hours 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,

208-09 (2009); Perreira, 27 Fed. Cl. at 34 (special master has “wide discretion in determining the

reasonableness” of attorney’s fees and costs).

The special master is not obligated to evaluate a fees petition on a line-by-line basis. Saxton

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v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993) (approving the special

master's elimination of 50 percent of the hours claimed); see also Broekelschen v. Sec’y of Health &

Human Servs., 102 Fed. Cl. 719, 728–29 (2011) (affirming the special master's reduction of attorney

and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (affirming

the special master's reduction in the number of hours from 515.3 hours to 240 hours); Edgar v. Sec’y

of Health & Human Servs., 32 Fed. Cl. 506 (1994) (affirming the special master's awarding only fifty-

eight percent of the numbers of hours for which compensation was sought). Rather (as the United

States Supreme Court instructs) when awarding attorney’s fees special masters may use estimates to

achieve “rough justice.” Fox v. Vice, 131 S.Ct. 2205, 2216 (2011).

Determining the appropriate amount of a fees award is a two-part process. The first part

involves application of the lodestar method – “multiplying the number of hours reasonably expended

on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Human Servs., 515 F.3d

1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part

involves adjusting the lodestar calculation up or down. Avera, 515 F.3d at 1348. This standard for

calculating a fee award is considered applicable in most cases where a fees award is authorized by

federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).

An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market

rate” in the relevant forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs.,

No. 06-559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. den’d, 91

Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011). That rate is in turn determined by the

“forum rule,” which bases the award rate on rates paid to similarly qualified attorneys in the forum in

which the relevant court sits (Washington, DC for Vaccine Act cases); except where an attorney’s

work was not performed in the forum and there is a substantial difference in rates. Avera, 515 F.3d at

1348. This is the Davis exception to the forum rule, which applies if the bulk of the attorney’s work

was performed outside of Washington, DC, in a location where prevailing rates are substantially lower

than the forum rate. Avera, 515 F.3d at 1349, (citing Davis Cty. Solid Waste Mgmt. & Energy

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

After the hourly rate is determined, the reasonableness of the total hours expended must be

considered. Sabella, 86 Fed. Cl. at 205-06. This inquiry mandates consideration of the work

performed on the matter, the skill and experience of the attorneys involved, and whether any waste

or duplication of effort is evident. Hensley, 461 U.S. at 434, 437.

Evaluating an attorney’s fees application involves more than the mere performance of a

mathematical calculation. In all stages of the lodestar calculation, I must determine if the fees

applicant has established the reasonableness of the billing rate and work performed. Mares v. Credit

Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986) (“[i]t remains counsel’s burden to prove and

3

establish the reasonableness of each dollar, each hour, above zero”).3

Petitioners bear the same reasonableness burden in seeking an award of costs. Perreira, 27

Fed. Cl. at 34; Presault v. United States, 52 Fed. Cl. 667, 670 (2002). When petitioners fail to carry

this burden, such as by not providing appropriate documentation to substantiate a requested cost,

special masters have refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec’y of

Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

This practice is consistent with how the Federal Circuit and the Court of Federal Claims (the courts

responsible for reviewing the decisions of special masters) have interpreted other federal fee-shifting

statutes. See Naporano Iron & Metal Co. v. United States, 825 F.2d 403, 404 (Fed. Cir. 1987)

(interpreting the Equal Access to Justice Act); Presault, 52 Fed. Cl. at 679 (interpreting the Uniform

Relocation Assistance and Land Acquisition Policies Act of 1970).

II. Petitioner’s Attorney’s Fees Request

A. Applicable Rates

Petitioner requests that the attorneys in this matter (Messrs. Doyle and Paschal) receive $400

per hour and $350 per hour, respectively, for their services. Other special masters have previously

found that lawyers practicing in large Texas cities such as Houston are entitled to the forum rate.

Garrett v. Sec’y of Health & Human Servs., No. 14-17V, 2014 WL 6237497, at *7 (Fed. Cl. Spec.

Mstr. Oct. 27, 2014) (Houston is a forum jurisdiction); Tieu Binh Le v. Sec’y of Health & Human

Servs., No. 07-895V, 2014 WL 4177331, at *3-4 (Fed. Cl. Spec. Mstr. July 31, 2014) (Dallas-Fort

Worth region is a forum jurisdiction). Although it is clear from the billing records that both lawyers

on this case performed their work outside of the actual forum for Vaccine cases (Washington, DC), I

find (relying on the well-reasoned logic of prior decisions like Garrett or Tieu Binh Le involving

similarly-situated counsel) that the Houston local rate is not substantially lower than the forum rate,

and thus the latter may be applied to counsel in this case.4

A recent decision—McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL

5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)—set forth forum hourly rate ranges for attorneys of

different levels of experience. McCulloch, 2015 WL 5634323, at *19. I have previously noted that

3

Although Mares did not interpret the Vaccine Act’s fees provisions, other fee-shifting statutes are interpreted similarly.

Avera, 515 F.3d at 1348.

4

Petitioner did not offer proof establishing that Huntsville, Texas should be afforded the same forum treatment as Houston

or Dallas. However, Respondent has not objected that Huntsville constitutes an out-of-forum location. Moreover, I find

that Huntsville is geographically close enough to Houston to merit a comparable billing rate. See, e.g., Gonzalez v. Sec’y

of Health & Human Servs., No. 14-1072, 2015 WL 10435023, at *11 (Fed. Cl. Spec. Mstr. Nov. 10, 2015) (attorneys

practicing outside of New York City in northeastern New Jersey cities entitled to forum rates, whereas attorneys hundreds

of miles away in southern New Jersey considered out-of-forum under Davis exception).

4

McCulloch is well-reasoned, and have accordingly embraced it in determining attorney’s fees rates

for other counsel. See, e.g., Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL

6181669, at *11 n.16 (Fed. Cl. Spec. Mstr. Sept. 30, 2015) (Arizona-based attorney entitled to forum

rate). I will similarly apply it herein.

Mr. Doyle graduated from law school in 2005, but began work after a one-year clerkship, and

therefore has approximately 10 years of direct litigation experience. He appears, however, to have no

Vaccine Program experience other than this case. See Mar. 30, 2016, Doyle Affidavit, attached to

Mot. (ECF 27-1). Accordingly, he falls somewhere in the upper end of the $275 to $350 rate scale for

like-situated attorneys with eight to ten years of experience. McCulloch, 2015 WL 5634342, at *19.

Mr. Paschal is a 2008 law school graduate, and similarly has litigation experience not derived from

representing petitioners in the Vaccine Program other than in this single instance. See Paschal

Affidavit, attached to Mot. as Ex. C (ECF No.27-3). He is therefore at the lower end of that same

scale.

In the exercise of my discretion, I find that Mr. Doyle should be compensated at a rate of $305

per hour for work performed in 2014 and 2015, adjusted upward in accordance with the Consumer

Price Index (“CPI”) Calculator to $308 in 2016.5 Hocraffer v. Sec’y of Health & Human Servs., No.

99-533V, 2011 WL 3705153, at *17-19 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for review den’d,

2011 WL 6292218 (Fed. Cl. Nov. 22, 2011) (applying CPI calculator in adjusting hourly rate to

account for inflation). This determination is consistent with my ruling in Scharfenberger v. Sec’y of

Health & Human Servs., No. 11-221V, 2015 WL 3526559 (Fed. Cl. Spec. Mstr. May 15, 2015), mot.

for review den’d, 124 Fed. Cl. 225 (2015), appeal dismissed (Feb. 9, 2016). There, I awarded a forum

practitioner with similar total experience, but greatly more Vaccine Act litigation experience, the

same rate. The fact that Mr. Doyle may command a higher rate in his usual practice in Houston or

elsewhere, as his affidavit maintains, does not alter my conclusion – for under the Vaccine Act, what

determines the sum to be paid to an attorney for representing a petitioner is what other comparable

Vaccine Program attorneys earn. Avera, 515 F.3d at 1348-49.

I will apply the same analysis in awarding Mr. Paschal $275 an hour for work on this case in

2014 and 2015, adjusted in accordance with the CPI to $278 in 2016. As with Mr. Doyle, this appears

to have been Mr. Paschal’s first Vaccine Program case, and while he appears to have provided useful

assistance in the result achieved, he should not receive a rate equivalent to Mr. Doyle, nor should he

be compensated on the higher end of the scale until he has demonstrated more Program experience.

This is especially so given that he did not actually appear in the case.

5

CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://data.bls.gov/cgi-bin/cpicalc.pl (last accessed May 13,

2016) (“CPI Calculator”). There was a negligible increase in inflation between 2014 and 2015, and therefore no

adjustment in the relevant hourly rate is appropriate for 2015.

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B. Hours Devoted to Matter

As noted above, special masters are not obligated to scrutinize each entry on a billing record

in search of inefficiency. Nor has Respondent identified any objectionable billing instance or category

for me. I credit Petitioner’s argument that his attorneys acted responsibly in preparing the matter (as

reflected in the positive result). The case was resolved in less than a year from its filing date, and

without Respondent ever deeming the filing of a Rule 4(c) Report necessary. Counsel unquestionably

played a role in the matter’s success.

However, I share with Respondent the general view that a case resolved within a year of its

filing should not cost tens of thousands of dollars. Indeed, as the billing records reveal, lead counsel

had possession of the matter for eleven months before filing, and billed eighty percent of all of his

work in the pre-filing period. My overall sense from review of the relevant records is that some of the

billing, while not excessive in every instance, was the product of counsel’s unfamiliarity with Vaccine

Program matters rather than due to the complexity of the issues presented. Indeed, claims that the flu

vaccine caused an individual to develop GBS are common – so much so that the Department of Health

and Human Services has proposed that the Vaccine Injury Table (42 C.F.R. § 100.3 (2011)) be

amended to include GBS as a Table Injury, thereby (where a petitioner can meet the factual

prerequisites) easing the burden of establishing entitlement. See “Revisions to the Vaccine Injury

Table Within the National Vaccine Injury Compensation Program,” 80 Fed. Reg. 45132 (proposed

July 29, 2015) (to be codified at 42 C.F.R. pt. 100).

Accordingly, I have reviewed the billing records submitted with Petitioner’s initial request.

Based on that review, I find the following entries as properly reduced or revised:

1. Doyle Reductions

a. Mr. Doyle billed 27.6 hours to unspecified research to Mr. Hudson’s

claim (5 hours on 3/19/14; 2 hours on 3/20/14; 1.3 hours on 4/7/14; 2.3

hours on 4/10/14; 4.5 hours on 5/6/14; 2.5 hours on 5/8/14; 4 hours on

5/9/14; 4 hours on 5/12/14; and 2 hours on 5/19/14). See Ex. A. to Mot.

(ECF No. 27-2) at 2-7. This is an excessive amount of time for a

flu/GBS claim, and seems to reflect counsel’s attempt to learn about

the Program generally rather than the specifics of Mr. Hudson’s claim.

I will therefore reduce this total sum by 30 percent, or 8.28, and

award only 19.32 hours for these billing entries;

b. On April 3, 2014, Mr. Doyle’s billing invoices reflect 5 hours of time

spent in travel to “Alabama,” without specifying how the travel related

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to the matter.6 Ex. A at 2. In addition, it is common practice in Program

proceedings to compensate hours spent traveling at one-half of the

normal hourly attorney rate. See, e.g., King v. Sec’y of Health & Human

Servs., No. 03–584V, 2009 WL 2524564, at *4 (Fed. Cl. Spec. Mstr.

July 27, 2009); Kuttner v. Sec’y of Health & Human Servs., No. 06–

195V, 2009 WL 256447, at *10 (Fed. Cl. Spec. Mstr. Jan. 16, 2009).

But I cannot even tell from this entry to what extent any travel to

Alabama was in fact required in the case, or how it relates to Mr.

Hudson (or if the Alabama reference was in error). I will therefore

reduce this entry by 2 hours, to account for all of the above, awarding

3hours; and

c. Mr. Doyle billed a total of 8.2 hours preparing the petition in this case

(.7 hours on 11/28/14, 4.5 hours on 1/13/15, and 3 hours on 1/14/15).

Ex. A to Mot. at 8. The actual petition, however, is two pages long, and

is supplemented by an affidavit from Mr. Hudson that is itself only two

pages long. See ECF No. 1; Pet’r’s Ex. 5. Given the amount of time

devoted to this matter before its filing, the drafting of the actual petition

itself in this matter should not have required nearly 10 hours of Mr.

Doyle’s time. I therefore reduce these entries by 50 percent, or 4.1

hours, awarding the remainder.

2. Paschal Reductions

a. Mr. Paschal’s time entries include three instances in which he appears

to bill for time devoted to determining procedures of ministerial matters

involving appearances in the Court of Federal Claims. See Ex. B. to

Mot. (ECF No. 27-3) at 5-6 (.25 hours on 3/4/14, .5 hours on 3/17/14,

1 hour on 4/9/14, and .25 hours on 5/1/15). This time was

inappropriately billed to this matter; a client would not pay an attorney

for becoming familiar with such fundamental matters. Accordingly, I

will deduct this time, 2 hours, entirely, but award all of the remainder

of Mr. Paschal’s time.

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The travel could not have been for the purposes of meeting with Mr. Hudson, for the very same entry indicates that Mr.

Doyle so met with his client in Hunstville. See Ex. A at 2 (4/3/14 entry). I infer that the Huntsville referenced is the city

in Texas rather than in Alabama, given that (a) the vaccine was by Petitioner’s own allegation administered in Huntsville,

Texas, and (b) the records filed in this case establish that the Petitioner was treated at Huntsville, Texas Hospitals. See,

e.g., Pet’r’s Ex. 10.

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C. Fees Award Summary

Based upon all of the above, I award the following attorney’s fees:

1. Tyler Doyle:

- 2014 and 2015: 66.02 hours x $305 = $20,136.10

- 2016: 3.8 hours x $308 = $1,170.40

Total: $21,306.50

2. Jacob Paschal:

- 2014 and 2015: 41.25 hours x $275 = $11,343.75

- 2016: 2 hours x $278 = $556.00

Total: $11,899.75

III. Litigation Costs

Petitioner requests costs in the amount of $1,486.25, for copying, filing fees, and similar

charges incurred solely by Mr. Doyle’s firm. ECF No. 27. Respondent does not object to these costs

as unreasonable, and upon review of the record I find that they are acceptable. I therefore award this

sum as a cost.

Petitioner also asks for $6,000 for his expert, Dr. Höke, who prepared a report that was filed

shortly after the case’s initiation. Pet’r’s Ex. 6. I find that Dr. Höke’s $500 hourly rate is consistent

with what I have previously awarded similarly-situated experts, and that the time spent on the matter

was reasonable under the circumstances (especially in convincing Respondent to resolve the case

promptly). Despite the fact that the claim was somewhat commonplace, it is my experience that

Respondent will sometimes require a petitioner to obtain an expert report even in such cases, and

therefore I will not second-guess whether an expert was or was not necessary herein (especially since

Respondent has not so argued). I award these expert costs in their entirety.

Finally, Petitioner seeks $10,735.00 for paralegal charges incurred in the case, billed at the

rate of $190 per hour, for 56.50 hours of work over the case’s lifetime. Ex. A to Mot. (ECF No. 27-

2) at 2-11. I find no particular paralegal time entries objectionable, nor did Respondent identify any.

8

Indeed, in a case like the present, where a petitioner took time to prepare the matter comprehensively

before filing, paralegal efforts at obtaining and organizing the relevant record are indispensable. I will

therefore award all paralegal hours requested.

However, the requested rate ($190 per hour) is considerably higher than what is considered a

top rate for forum paralegal work. See McCulloch, 2015 WL 5634323, at *21 (forum rate of $135 an

hour for paralegal work). Indeed, it is double what has been most recently awarded for similarly-

situated Texas paralegals. See, e.g., Tieu Binh Le, 2014 WL 4177331, at *3, 8 ($95 per hour awarded

for paralegal tasks performed by attorney); see also Whitener v. Sec’y of Health & Human Servs., No.

06-477V, 2011 WL 1467919, at *7 (Fed. Cl. Spec. Mstr. Mar. 25, 2011) (“in my previous experience,

the requested rates of $85 and $100 per hour are commensurate with negotiated rates for Houston,

Texas, attorneys practicing in the Program”), (citing Hughes v. Sec’y of Health & Human Servs., No.

04–115V, 2010 WL 5558441 (Fed. Cl. Spec. Mstr. Dec. 15, 2010)). Petitioner has not otherwise

established in his fee request why $195 per hour is appropriate in this case. Accordingly, I will instead

apply the rate of $100 per hour for all paralegal work time requested in this matter.

CONCLUSION

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

Based on the reasonableness of Petitioner’s request, as well as my reductions and hourly fee rate

decisions set forth above, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and costs,

as follows:

Contested Sum Amount Requested Reduction Total Awarded

Mr. Doyle’s Fees $33,680.00 $12,373.50 $21,306.50

Smyser Firm Costs $1,486.25 none $1,486.25

Mr. Paschal’s Fees $15,837.50 $3,937.75 $11,899.75

Dr. Höke’s Fees $6,000.00 none $6,000.00

Paralegal Costs $10,735.00 5,085.00 $5,650.00

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Accordingly, I award a total of $46,342.50 as a lump sum in the form of a check jointly

payable to Petitioner and Petitioner’s counsel, Mr. Tyler G. Doyle. In the absence of a motion for

review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment

herewith.7

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

7

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)

a notice renouncing their right to seek review.

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