Florence v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

JANET FLORENCE, * No. 15-255V

* Special Master Christian J. Moran

Petitioner *

*

v. * Filed: October 6, 2016

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

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

Lawrence R. Cohan and David J. Carney, Anapol Weiss, Philadelphia, PA, for

Petitioner;

Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for

Respondent.

PUBLISHED DECISION ON ATTORNEYS’ FEES AND COSTS1

Petitioner Janet Florence filed her application for attorneys’ fees and costs

on June 3, 2016. The Secretary objects to the amount the petitioner has requested

and presents an alternative range of $35,000.00 to $45,000.00. The petitioner is

awarded $50,000.00.

* * *

Ms. Florence filed a petition under the National Childhood Vaccine Injury

Act, 42 U.S.C. § 300aa—10 through 34 (2012), on March 12, 2015. The petition

alleged that Ms. Florence suffered from lymphedema in her left arm after she

1

The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and

Promotion of Electronic Government Services), requires that the Court post this decision on its

website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing

redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).

Any redactions ordered by the special master will appear in the document posted on the website.

received the influenza vaccine on December 2, 2011. See Pet., filed Mar. 12,

2015.

In May 2015, the undersigned ruled, based upon the respondent’s

concession, see Respondent’s Report, filed May 19, 2015, that the petitioner is

entitled to compensation under the Vaccine Act. Between May 2015 and April

2016, the parties quantified the amount of compensation to which Ms. Florence

was entitled. The petitioner and the respondent retained separate life care planners

during this process. In April 2016, the petitioner received compensation consistent

with a proffer. Decision, issued Apr. 21, 2016, 2016 WL 2990608 (awarding

$258,381.93 plus an annuity).

In June 2016, the petitioner filed a motion for attorneys’ fees and costs

requesting $43,005.00 in fees and $11,448.78 in costs, for a total amount of

$54,453.78. The Secretary objected to the amount, stating that a reasonable

amount is between $35,000 and $45,000, and suggesting the undersigned award

attorneys’ fees and costs within that range. See Resp’t’s Resp., filed June 20,

2016, at 3. In support of her estimated range, the Secretary listed comparable

cases, and their associated fees and costs. Id. Petitioner replied on May 27, 2016,

listed her own comparable cases, and asked for an additional $725.00 in fees for

her reply. Pet’r’s Reply, filed June 20, 2016, at 7-8. Therefore, the petitioner now

requests $43,730 in fees and $11,448.78 in costs, for a total amount of $55,178.78.

At this point, the motion is ready for adjudication.

* * *

In this case, the petitioner received compensation, and thus is entitled to an

award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). The ensuing question

is the reasonable amount for attorneys’ fees and costs.

The Federal Circuit has approved the lodestar approach to determine

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.

Cir. 2008). First, a court determines an “initial estimate . . . by ‘multiplying the

number of hours reasonably expended on the litigation times a reasonable hourly

rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).

Second, the court may make an upward or downward departure from the initial

calculation of the fee award based on specific findings. Id. at 1348.

For attorneys’ fees, the petitioner has requested $43,730. Attorney David

Carney performed most of the work and seeks compensation at $290 per hour. Mr.

2

Carney, at times, consulted with attorney Larry Cohan, who seeks compensation at

$400 per hour. Paralegals also assisted, and their proposed rate of compensation is

$125 per hour.

The Secretary did not directly challenge any of the requested rates as

unreasonable. In the undersigned’s experience, these rates are reasonable.

The second factor in the lodestar formula is a reasonable number of hours.

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

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

Attorneys are expected to work efficiently by delegating appropriate

assignments to paralegals, who may be compensated separately, and to secretaries,

whose compensation is included in the attorney’s hourly rate. See Bennett v. Dep’t

of Navy, 699 F.2d 1140, 1145 n. 5 (Fed. Cir. 1983) (secretarial expenses are

covered by an attorney’s hourly rate); Guy v. Sec’y of Health & Human Servs., 38

Fed. Cl. 403, 407–08 (1997) (“secretarial support is included within an attorney’s

hourly rate and is not reimbursable”); Riggins v. Sec’y of Health & Human Servs.,

No. 99–382V, 2009 WL 3319818, at *25 (Fed. Cl. Spec. Mstr. June 15, 2009)

(“[T]he time spent by an attorney performing work that a paralegal can accomplish

should be billed at a paralegal’s hourly rate, not an attorney’s”), mot. for rev.

denied, (Dec. 10, 2009), aff’d, 406 Fed. Appx. 479 (Fed. Cir. 2011).

When attorneys fail to provide sufficient information in their billing

invoices, special masters may reduce the award. See Barclay v. Sec’y of Health &

Human Servs., No. 07-605V, 2014 WL 2925245, at *4 (Fed. Cl. Spec. Mstr. Feb.

7, 2014) (reducing an attorney’s requested time due to vague entries which made it

impossible to determine the reasonable amount of time, and reducing requested

time due to the attorney’s performing tasks reasonably delegated to a paralegal or

secretary).

The undersigned conducted a line-by-line analysis of all the entries

documented in the timesheets, despite the fact that when making reductions, a line-

by-line evaluation of the fee application is not required. McCulloch v. Sec’y of

Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *5 (Fed. Cl. Spec.

Mstr. Sept. 1, 2015) (quoting Wasson by Wasson v. Sec’y of Health & Human

Servs., 24 Cl. Ct. 482 (1991)). The attorneys’ timesheets are organized, and do not

contain block entries. However, there are two issues with the petitioner’s

timesheets: (1) excessive time is billed for very routine tasks; and (2) it is

impossible to determine whether certain activities are reasonable because of vague

entries. Each issue is discussed more specifically below.

3

First, the petitioner’s attorneys billed excessive time for routine tasks, or, in

the alternative, performed work that a paralegal or secretary could perform. A few

examples will suffice. On August 5, 2015, the undersigned’s law clerk coordinated

a date for a status conference to discuss the petitioner’s July 31, 2015 status report.

The petitioner’s counsel billed half an hour for this coordination. On September

14, 2015, the petitioner filed a five-sentence status report stating that she needed an

additional 45 days to work with her life care planner and provide a settlement

demand to the respondent. The petitioner’s counsel billed half an hour to prepare

the five-sentence status report.2 On April 21, 2016, the petitioner billed .8 hours to

review a page and a half boilerplate decision (with attachments that were reviewed

and billed previously) and file a joint notice not to seek review.3 Excessive billing

for routine tasks is unacceptable in the Vaccine Program. See Yang v. Sec’y of

Health & Human Servs., No. 10-33V, 2013 WL 4875120 (Fed. Cl. Aug. 22, 2013).

Second, the petitioner’s attorneys’ billing records are sometimes vague,

making it impossible to determine whether certain activities are necessary.

In November 2004, the Office of Special Masters issued revised Guidelines.

The Guidelines state “counsel are advised to maintain detailed contemporaneous

records of time and funds expended under the Program.” Office of Special

Masters, Guidelines for Practice under the National Vaccine Injury Compensation

Program (Rev. Nov. 2004) at § XIV. Detailed (or stated another way, non-vague)

contemporaneous records are the petitioner’s responsibility and allow the Office of

Special Masters to determine the reasonableness of attorneys’ fees requests. See

Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011) (stating that

requiring entries which permit effective review of the fees is in accord with cases

from the Federal Circuit and the Supreme Court).

Inconsistent with Avgoustis, the petitioner’s attorneys’ billing records are

sometimes vague. Almost half of the petitioner’s billing entries (approximately

2

Prior to filing this extension, the petitioner did not coordinate with the respondent, or

indicate in her motion whether an opposition to the motion would be filed, as required under

Vaccine Rule 19(b)(3). Subsequently, on September 16, 2015, the undersigned’s chambers

requested the petitioner coordinate with opposing counsel as required under Vaccine Rule

19(b)(3). The petitioner billed 24 minutes to coordinate with the respondent and send a five-

word reply email to chambers.

3

There are other examples of excessive time being billed for routine work, and work

being billed at attorney rates that is unreasonable. The undersigned, however, prefers not to

create a litany of complaints about the petitioner’s attorneys, after all, they helped their client

obtain a concession and significant award.

4

100 out of 212) do not provide enough detail for the undersigned to determine if

the activity was necessary (and therefore reasonable), or if the work was in fact

attorney work (as opposed to paralegal or secretarial work). These entries fall into

three main categories: file review, communications with the client, and emails to

and from the life care planner.

The petitioner’s attorneys recorded 25 “file review” entries, which total

$6,098 in fees, or over 14% of the attorneys’ fees portion of the bill.4 See Pet’r’s

Application for Attorneys’ Fees and Costs, filed June 3, 2016, at Exhibit “A”.

Every entry is identical: “File Review: reviewed case file, notes, t/c notes and

medical summaries; discussed next steps with staff.” Id. All file review took at

least half an hour, and five took an hour to complete. The entries occur almost

once every month, and the petitioner’s attorneys stated in a status conference that

they endeavor to review their cases on a monthly basis to make sure they are on

track. This amount of “file review,” without an explanation of the necessity for it,

is not reasonable. See Brown v. Sec’y of Health & Human Servs., No. 09-426V,

2013 WL 1790212, at *5 (Fed. Cl. Apr. 8, 2013), supplemented, No. 09-426V,

2013 WL 2350541 (Fed. Cl. May 6, 2013) (“It is difficult to comprehend why

counsel billed for a general review of the case file at the start of each month when

she was actively involved in the case.”). Of note, the deductions in Brown were

for much smaller increments of time for file review (no more than .4 hours) when

compared to the half hour and greater time increments billed in this case. See id.;

Pet’r’s Application for Attorneys’ Fees and Costs at Exhibit “A”.

The undersigned’s review of the billing entries indicate that over 40 entries

concerned attorney-client communication. These entries annotated either email

(“emails to and from client re case status, pictures and current condition”) or

teleconference (“t/c with client re case status, update on current condition”)

communication. Pet’r’s Application for Attorneys’ Fees and Costs at Exhibit “A”.

The remaining vague entries document communications between the

petitioner’s attorneys and the petitioner’s life care planner (“emails to and from

LCPer”). Id. Though not raised by the petitioner’s attorneys, perhaps these

communications could raise a work-product doctrine issue and, thus, explain the

brevity of the relevant entries.

4

The December 29, 2014, “reviewed file” entry is not included in the 25 total because the

petitioner’s entry explains that the detailed review was in preparation for writing their petition.

However, the December 29, 2014 detailed file review makes the subsequent January 6, 2015

“routine” file review unreasonable given that a thorough file review was done by the same

attorney only one week before.

5

In a September 9, 2016 status conference, the undersigned pointed to the

attorney-client communication entries as problematic billings. In response, the

petitioner’s attorneys asserted that the attorney-client privilege prevented

elaboration.

The Federal Circuit has rejected a similar argument. In a request for fees

made pursuant to the Equal Access to Justice Act, an attorney representing a

veteran submitted invoices containing descriptions such as “writing to client,

reviewing Court’s notice of docketing, reviewing litigation file, [t]elephone

conversations with VA counsel, and faxing materials to VA counsel.” Avgoustis,

639 F.3d at 1344-45 (Fed. Cir. 2011) (internal quotation marks omitted) (citing

McDonald v. Nicholson, 21 Vet. App. 257, 265 (2007)). The Federal Circuit

agreed with the Court of Appeals of Veterans Claims that requiring billing entries

“adequately identif[y] the purpose of the activities” does “not in most cases invade

the attorney-client privilege when applied to client communications.” Id. They

also stated generally that “requiring such disclosures does not violate the attorney-

client privilege absent unusual circumstances” and that “[c]ourts have also

frequently required disclosures of the general subject matter of communications

without any indication that they would implicate the attorney-client privilege or

that they would raise any conflict with the privilege.” Avgoustis, 639 F.3d at

1345.

Nevertheless, the undersigned understands and appreciates the petitioner’s

attorneys’ desire to protect their client’s privilege, and perhaps their own work-

product. Undoubtedly, however, there is ample space for more detail between the

petitioner’s attorneys’ repetitive and unenlightening billing entries in this case, and

a disclosure of information protected by the attorney-client privilege and/or work-

product doctrine. In future fee applications, the petitioner’s attorneys should

explore this space, and provide billing entries that adequately support the necessity

and appropriateness of their work.

Despite the issues outlined above, it is important to highlight some of the

billing entries that were examined by the undersigned and found reasonable. Mr.

Carney billed 7.9 hours, or more than $2,200, in researching lymphedema as a

vaccine injury.5 Pet’r’s Application for Attorneys’ Fees and Costs at Exhibit “A”.

5

A lymphedema is defined as a chronic unilateral or bilateral edema (swelling) of the

limbs due to accumulation of interstitial fluid as a result of stasis of lymph, secondary to

6

Mr. Carney billed 8.1 hours, and Mr. Cohan 1 hour, for a total of 9.1 hours, and

more than $2,700, in drafting the petitioner’s demand.6 Id. All billing entries by

the petitioner’s attorneys’ paralegal are also reasonable. See id. In short, entries

for work performed at the appropriate billing level, and with adequate description

to determine the reasonableness of the work, are reasonable.

In addition to the line-by-line evaluation, the undersigned has also

considered the petitioner’s counsel’s fees in the context of the overall case, and

experience with similar Vaccine Act litigation. In short, all factors point to a

finding that the petitioner’s counsel has billed approximately 10 percent too many

hours. Admittedly, this estimate is not precise. It is important to recall, however,

that “the essential goal in shifting fees (to either party) is to do rough justice, not to

achieve auditing perfection. So trial courts may take into account their overall

sense of a suit, and may use estimates in calculating and allocating an attorney's

time.” Fox v. Vice, 563 U.S. 826, 838 (2011). While not precise, the evidence

marshalled above is adequate to accomplish “rough justice.” Accordingly, the

undersigned finds an appropriate amount of attorneys’ fees to be $38,551.22. This

amount includes the additional $725.00 requested for the petitioner’s reply to the

Secretary’s response.

The above analysis is the basis for this decision. The undersigned, however,

has also examined the Secretary’s response to the petitioner’s motion for attorneys’

fees, as well as the petitioner’s reply.

The Secretary, in her response to the petitioner’s fees motion, cited three

cases supporting a fees and costs range between $35,000 and $45,000.7 The

petitioner, in reply, cited eight cases supporting her attorneys’ fees and costs

obstruction of lymph vessels or disorders of lymph nodes. Dorland’s Illustrated Medical

Dictionary 1084 (32d ed. 2012).

6

The late November 2015 entries regarding drafting the demand also include a detailed

file review which, again, as in footnote four, makes the subsequent December 4, 2015 “routine”

file review unreasonable.

7

The three cases cited by the Secretary are: Abdulla v. Sec’y of Health & Human Servs.,

No. 13-853V, 2015 WL 9920826 (Fed. Cl. Spec. Mstr. Dec. 23, 2015); Jenney v. Sec’y of Health

& Human Servs., No. 14-338V, 2015 WL 7068205 (Fed. Cl. Spec. Mstr. Oct. 23, 2015); George

v. Sec’y of Health & Human Servs., No. 13-621V, 2014 WL 3035514 (Fed. Cl. Spec. Mstr. June

13, 2014).

7

motion.8 In this case, the undersigned considered the following case characteristics

to determine if cases are comparable in nature and scope: similar legal market to

Anapol Weiss (the petitioner’s attorneys’ firm),9 settled or conceded case,

existence of an expert report, existence of a life care plan, presence of a Medicaid

lien, the size of the damages award, and the attorneys’ fees and costs broken out

separately.10

8

The eight cases cited by the petitioner are: Pierce v. Sec’y of Health & Human Servs.,

No. 14-0881V, 2016 WL 3208056 (Fed. Cl. Spec. Mstr. May 9, 2016); B.K. by Kelley v. Sec’y

of Health & Human Servs., No. 14-505V, 2016 WL 1594008 (Fed. Cl. Spec. Mstr. Mar. 29,

2016); Higgins v. Sec’y of Health & Human Servs., No. 13-497V, 2015 WL 3940852 (Fed. Cl.

Spec. Mstr. June 1, 2015); Lister v. Secy’y of Health & Human Servs., No. 13-492, 2015 WL

1577634 (Fed. Cl. Spec. Mstr. Mar. 13, 2015); Prevette v. Sec’y of Health & Human Servs., No.

12-662V, 2015 WL 2379339 (Fed. Cl. Spec. Mstr. Apr. 17, 2015); Behie v. Sec’y of Health &

Human Servs., No. 13-109V, 2014 WL 4628480 (Fed. Cl. Spec. Mstr. Aug. 27, 2014); Gooden

v. Sec’y of Health & Human Servs., No. 12-596V, 2014 WL 4328223 (Fed. Cl. Spec. Mstr. July

29, 2014); Dubin v. Sec’y of Health & Human Servs., No. 10-632V, 2014 WL 1093746 (Fed. Cl.

Spec. Mstr. Feb. 26, 2014).

9

In her attorneys’ fees reply, the petitioner states that the cases cited by the respondent

are not representative because they were not litigated by Anapol Weiss, the petitioner’s

attorneys’ law firm. Pet’r’s Reply, filed June 20, 2016, at 4. When comparing vaccine litigation

firms, it is not the specific firm and their hourly billing rates that are of primary concern, but that

they practice in comparable legal markets. This is especially true in the Vaccine Program, in

which attorneys are usually compensated at the rate prevailing in the forum. Avera, 515 F.3d at

1348. Therefore, the Secretary’s failure to provide comparable cases litigated by Anapol Weiss

does not matter, so long as the Secretary provides comparable (procedurally, factually, etc.)

Vaccine Program cases within a legal market similar to Anapol Weiss’s.

10

Both the petitioner and the respondent did not always break out attorneys’ fees and

costs separately (even when possible). Where possible, the distinction should be made when

citing comparable cases.

8

attorneys charge in Lake Charles, Louisiana, are likely not comparable to the

petitioner’s attorneys’ rates in Philadelphia, Pennsylvania. After removing

George, the average of the attorneys’ fees from the two cases the Secretary cited is

$30,835.50 (or ($33,184.29 + $28,486.70) / 2).

In examining the petitioner’s comparable cases, and similar to what the

petitioner did in her reply, the cases with causation experts should be excluded, as

this case did not require one. See Pet’r’s Reply at 5. Of note, however, Behie, 13-

109V, which the petitioner stated did not have an expert, actually did, and

therefore will be removed from the below calculation. Additionally, Lister, 13-

492, includes attorneys’ fees and costs as a lump sum, and the undersigned cannot

determine what portion of that is attorneys’ fees, and what portion is costs.

Therefore, it is excluded. That leaves Pierce, B.K., and Higgins (14-0881V, 14-

505V, and 13-497V) in the calculation, resulting in an attorneys’ fees average of

$46,310.86 (or ($46,692.50 + $44,120.00 + $48,120.07) / 3).

That creates an approximate range for attorneys’ fees of $31,000 to $46,000.

The midpoint of this range is $38,500. The lodestar calculation yielded a result of

$38,551.22. Thus, the parties’ analogous cases, viewed in total, are further

evidence supporting the separately calculated lodestar value.

In addition to the award of attorneys’ fees, the petitioner also requests an

award of costs. The undersigned considered costs associated with this case, and

found them to be reasonable. Accordingly, the undersigned finds an appropriate

amount of costs to be $11,448.78.

* * *

The Vaccine Act permits an award of reasonable attorneys’ fees and costs.

§15(e). The undersigned finds $50,000 ($38,551.22 in fees and $11,448.78 in

costs) to be a reasonable amount for all attorneys’ fees and costs incurred. The

undersigned GRANTS the petitioner’s motion and awards $50,000.00 in attorneys’

fees and costs. This shall be paid as follows:

A lump sum payment of $50,000.00, in the form of a check made

payable jointly to the petitioner and the petitioner’s attorney, Lawrence

R. Cohan, Anapol Weiss, for attorneys’ fees and other litigation costs

available under 42 U.S.C. § 300aa-15(e).

10

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

11