# Horner v. Secretary of Health and Human Services

> United States Court of Federal Claims · April 20, 2017

URL: https://www.frixlaw.com/law-library/cases/4162147

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 20, 2017
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Nora Beth Dorsey
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4162147

## How later opinions describe it (automated extraction)

- noting that the lodestar analysis allows the fact finder to make upward or downward adjustments based on specific findings.
- affirming a determination of the forum rate in Vaccine Act cases
- affirming a determination of the forum rate in Vaccine Act cases

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-395V
Filed: December 15, 2016
UNPUBLISHED
*********************************
ROBERT HORNER, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On April 20, 2015, petitioner 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 he suffered Guillain-Barre Syndrome (“GBS”) caused by
his September 24, 2013 influenza vaccination. On March 21, 2016, the undersigned
issued a decision awarding compensation to petitioner based on the parties’ stipulation.
(ECF No. 27).

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to 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 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On August 26, 2016, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 31-33). Petitioner requests total attorneys’ fees and costs amounting to
$70,429.30, 3 which includes $16,490.10 in fees and $455.46 in costs to counsel of
record, Isaiah Kalinowski of Maglio Christopher & Toale (hereinafter “Maglio firm”), and
$44,039.75 in fees and $9,443.99 in costs to local co-counsel, Ronald Segel, of
Albuquerque, New Mexico, divided between two firms. Id. at 1-2. Mr. Segel’s fees and
costs are divided as follows: $17,189.28 in fees and $1,542.56 in costs incurred at the
firm of Sutin, Thayer & Browne (hereinafter “Sutin firm”), and $26,850.47 in fees and
$7,901.43 in costs at the firm of Will Ferguson & Associates (hereinafter “Ferguson
firm”). 4 Id. at 2. In compliance with General Order #9, petitioner filed a signed
statement indicating petitioner incurred no out-of-pocket expenses. Respondent filed no
response.

The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears excessive for the
reasons described below, and the undersigned awards total attorneys’ fees and costs in
the amount of $54,965.02 divided as follows:

• $12,821.26 (reduced from $16,945.56) for fees and costs incurred by Maglio
Christopher & Toale; and

• $13,683.77 (reduced from $18,731.84) for fees and costs incurred by Sutin,
Thayer & Browne; and

• $28,459.99 (reduced from $34,751.90) for fees and costs incurred by Will
Ferguson & Associates.

I. The Special Master’s Authority to Determine the Amount of Fees and
Costs:

Since the petition for compensation was successful, the undersigned will award
reasonable attorneys’ fees and costs to petitioner. § 15(e)(1). Reasonable attorneys’
fees and costs in Vaccine Act cases are determined using the lodestar approach, which
begins with an assessment of a reasonable hourly rate multiplied by a reasonable
number of hours expended in the case. Avera v. HHS, 515 F.3d 1343,1347-48 (Fed.
Cir. 2008.)

The determination of the amount of reasonable attorneys' fees is within the
special master's discretion. See, e.g. Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir.
3
This total and the underlying figures cited herein are based on the undersigned’s calculations following
review of the billing records. The undersigned found that the totals cited in petitioner’s application (ECF
No. 31) included minor math errors, resulting in slightly different figures than those cited here.

4Mr. Segel explained that he left the Sutin firm and began working at the Ferguson firm in September of
2014. (ECF No. 33-4, pp. 1-2.)
2
1993). Special Masters have “wide latitude in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. HHS, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991).
Moreover, Special Masters are entitled to rely on their own experience and
understanding of the issues raised. Wasson v. HHS, 24 Cl. Ct. 482, 483 (Fed. Cl. 1991)
aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).

Petitioner “bears the burden of establishing the hours expended” and the
reasonableness of the requested fee award. Wasson, 24 Cl.Ct. at 484. Notwithstanding
respondent’s failure to respond to petitioner’s fee application, “the Special Master has
an independent responsibility to satisfy [herself] that the fee award is appropriate and
[is] not limited to endorsing or rejecting respondent’s critique.” Duncan v. HHS, No. 99-
455V, 2008 WL 4743493 (Fed. Cl. 2008).

II. Determining Counsel’s Hourly Rates

The appropriate hourly rate for counsel in Vaccine Act litigation is the forum rate,
unless the “Davis exception” applies. Avera, 515 F.3d at 1349 (citing Davis County Solid
Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755
(D.C.Cir.1999)); see also Rodriguez v. HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(affirming a determination of the forum rate in Vaccine Act cases). The Davis exception
applies when the bulk of the work in a case is performed outside the forum
(Washington, DC, in Vaccine Act cases), and there is a very significant difference
between local and forum rates. Avera, 515 F.3d at 1349.

Whether looking at the local or forum rate, the undersigned must award “rates
that are compatible with the prevailing market rate.” Rupert v. HHS, 52 Fed. Cl. 684,
688 (2002); Avera, 515 F.3d at 1349. The prevailing rate is 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 v. Stenson, 465 U.S. 886, 896,
fn. 11 (1984).) In addition to the evidence in the record, a special master may use her
experience in the Vaccine Program to determine an hourly rate. Id. at 1357; Saxton, 3
F.3d at 1521.

In the instant application, Mr. Kalinowki seeks an hourly rate of $361 for work
performed from 2013 through 2015, but reduced his hourly rate to $349 for work
performed in 2016. (ECF No. 32-2.) The undersigned recently issued a reasoned
decision in McGrath v. HHS, No. 15-275V (Fed. Cl. Spec. Mstr. Oct. 27, 2016), finding
that appropriate hourly rates for Mr. Kalinowski are $325 per hour for 2014-15 5 and
$349 per hour for 2016. The undersigned adopts the reasoning and rates in the
McGrath decision for the instant analysis. By the undersigned’s tabulation, Mr.

5
Although McGrath did not specifically address Mr. Kalinowski’s rates for 2013, it did cite approvingly to
O’Neil v. HHS, No. 08-243, 2015 WL 2399211 (Fed. Cl. Spec. Mstr. Apr. 28, 2015), which awarded the
same $325 rate for work performed in 2012 and 2013.
3
Kalinowski billed 28.5 hours at an hourly rate of $361, thus the undersigned’s
determination of his appropriate hourly rate results in a reduction of $1,026.00.

Mr. Segel requests an hourly rate of $340 for work performed in 2013 and $375
for work performed in 2014 through 2016. (ECF No. 33-1, 33-2.) Mr. Segel avers that
these are his standard hourly rates for his practice in Albuquerque, New Mexico. (ECF
No. 33-4.) Admitted to the bar in 1972, Mr. Segel has practiced tort litigation, including
medical negligence cases, for over 40 years. (ECF No. 33-4, p. 1.) However, he
acknowledged that the instant case was his first vaccine case and that he felt it
necessary to engage more experienced counsel as co-counsel. (Id. at 2.) In support of
his requested rates, Mr. Segel submitted a local district court decision from 2011
wherein he was awarded fees at an hourly rate of $325 per hour (ECF No. 33-9), a
2015 local district court decision in which another attorney was awarded an hourly rate
of $469.87 (ECF No. 33-8), an affidavit from the chief executive officer of the Sutin firm
confirming Mr. Segel’s hourly rate at the firm and asserting that the rate is “fair,
reasonable, and customary in this community” (ECF No. 33-5) and an affidavit by an
attorney practicing at a different firm in the same community, averring that Mr. Segel’s
requested rates are customary for similarly experienced attorneys in Mr. Segel’s legal
community (ECF No. 33-6).

Since Mr. Segel has not requested forum rates, the undersigned need not reach
the question of whether local rates in Albuquerque, New Mexico, are significantly lower
than forum rates. Moreover, the undersigned is satisfied that Mr. Segel has
substantiated his assertion that the requested rates are consistent with those charged
locally by similarly experienced counsel. However, in light of Mr. Segel’s lack of vaccine
experience, his accompanying lack of efficiency, and his engagement of more
experienced vaccine counsel to help him resolve this claim, the undersigned finds that a
more appropriate rate increase for Mr. Segel’s 2014-2016 work in this case results in an
hourly rate of $350 per hour for those years. 6 See, e.g. Avera, 515 F.3d at 1347-48
(noting that the lodestar analysis allows the fact finder to make upward or downward
adjustments based on specific findings.) According to his billing records, Mr. Segel
billed 32.70 hours at a rate of $375 while working at the Sutin firm. Applying a rate of
$350 to this time results in a reduction in Mr. Segel’s fee of $817.50. Mr. Segel also
billed 66.8 hours of time at a rate of $375 while at the Ferguson firm. Applying a rate of
$350 to this time results in a reduction of $1,670.00.
6
Mr. Segel ceded responsibility for significant aspects of this case to Mr. Kalinowski, including the drafting
of all pleadings and all contact with the court and respondent’s counsel (ECF No. 32-4, p. 5). Moreover,
despite Mr. Kalinowski’s involvement, Mr. Segel still billed in excess of 100 hours of attorney time on this
case despite his purported exercise in billing judgment. In the undersigned’s experience reviewing fee
applications in similarly expedited cases, this suggests excessive and inefficient use of time. See, e.g.
J.B. v. HHS, 15-67V, 2016 WL 4046871, at *6-8 (Fed. Cl. Spec. Mstr. July 8, 2016)(describing the
streamlined nature of SPU and awarding reduced fees in that context). Particularly given Mr.
Kalinowski’s involvement in this case, the undersigned finds that neither Mr. Segel’s designated role in
prosecuting this case, nor his actual performance, warrants compensation fully consistent with his level of
general legal experience.

4
III. Determining the Appropriate Number of Hours in this Case

As noted above, the undersigned finds that the overall amount of fees billed in
this case is excessive. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Upon the undersigned’s review, this is
chiefly due to the co-counsel arrangement pursued by the attorneys in this case.

Although co-counsel relationships are not per se unreasonable, excessive billing
due to work by multiple attorneys is disfavored and has resulted in fee reductions. See,
e.g. Lord v. HHS, No. 12-255V, 2016 WL 3960445 (Fed. Cl. Spec. Mstr. June 30, 2016).
The reasonableness of a referring attorney or co-counsel’s fee is subject to the same
standard that governs the counsel of record. Id. at *3; See also Farr v. HHS, No. 90-
1167V, 1992 WL 33602, at *3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992); Haley v. HHS, No.
90-3842, 1992 WL 368003, at *4 (Fed. Cl. Spec. Mstr. Nov. 20, 1992).

Upon review of Mr. Kalinowski’s billing records, the undersigned tabulates a total
of 19 hours of attorney time spent conferring with Mr. Segel, reviewing his work,
educating him, or otherwise coordinating efforts. (ECF No. 32-2.) This breaks down as
follows: 1.4 hours during 2013; 3.8 hours during 2014, 12.9 hours during 2015, and .9
hours during 2016. Conversely, upon review of Mr. Segel’s billing records, the
undersigned finds that Mr. Segel spent 32 hours coordinating or conferring with or
otherwise seeking guidance from Mr. Kalinowski. 7 (ECF No. 33-1, 33-2.) This breaks
down as follows: 4.3 hours during 2013; 9.9 hours at the Sutin firm and 1.8 hours at the
Will firm during 2014; and 16 hours during 2015. The undersigned finds these charges
excessive and redundant and reduces them by half.

Additionally, the undersigned further reduces Mr. Segel’s billing from the Sutin
firm by 2 hours during 2013 and 1.4 hours during 2014, for time spent researching
regarding the Vaccine Program and the causal association between the influenza
vaccine and GBS. (ECF No. 33-2.) It is well established that attorneys may not be
compensated for professional development concerning the Vaccine Program. See, e.g.
Lord, 2016 WL 3960445 at *4. Moreover, such research was rendered redundant by
Mr. Segel’s co-counsel relationship with more experienced Vaccine counsel.

7
Mr. Segel engaged in some block billing. That is, he included multiple different tasks in a single billing
entry. This is disfavored and has resulted in reductions in fees in prior cases, because it prevents line-by-
line analysis. See, e.g. J.B., 2016 WL 4046871 at *8. In this case, the tabulation of Mr. Segel’s hours
may include some tasks which otherwise may not have been reduced, but which were incorrectly
included in billing entries which also included significant contact between co-counsel.

5
Finally, to the extent that the undersigned has found, for reasons described
below, that the retention of Deborah Witkin, R.N., as a consultant was excessive, the
undersigned further finds that the 3.1 hours that the Ferguson firm has billed for Mr.
Segel’s time coordinating with her during September and October of 2014, are likewise
excessive. 8

Thus, the undersigned reduces the hours billed by Mr. Kalinowski in this case as
follows:

Year(s) Hourly Rate: Hours Amount
Reduced: Deducted:

2013-15 $325 9.05 hours $2,941.25
2016 $349 .45 hours $157.05

Total $3,098.30

Additionally, the undersigned reduces the hours billed by Mr. Segel on behalf of
the Sutin firm as follows:

Year(s) Hourly Rate: Hours Amount
Reduced: Deducted:

2013 $340 4.15 hours $1,411.00
2014 $350 6.35 hours $2,222.50

Total $3,633.50

Finally, the undersigned reduces the hours billed by Mr. Segel on behalf of the
Ferguson firm as follows:

Year(s) Hourly Rate: Reduction: Amount
Deducted:

2014-15 $350 12 hours $4,200.00

8This is distinct from the over five hours that Mr. Segal spent in February and March of 2015 reviewing
and revising Ms. Witkin’s resulting medical summary.

6
IV. Costs

Upon review of the billing submissions, the undersigned has found no cause to
reduce the costs requested by the Maglio firm. However, reductions must be made to
the costs requested by Mr. Segel on behalf of both the Sutin and Ferguson firms. 9

Mr. Segel has sought reimbursement of $277.00 for costs to the Sutin firm
associated with his admission to the bar of the U.S Court of Federal Claims (inclusive of
both the bar admission fee and certificate of good standing necessary for application).
Such expenses are not recoverable. See, e.g. Velting v. HHS, No. 90-1432, 1996 WL
937626, at *1-2 (Fed. Cl. Spec. Mstr. Sept. 24, 1996).

Additionally, in light of the reductions of Mr. Segel’s billing in this case, the
undersigned likewise reduces his request for reimbursement of the New Mexico Gross
Receipts Tax (“NMGRT”). Using the tax rate of 7.1875% reflected in the tax schedule
submitted with petitioner’s application, the undersigned finds that the NMGRT for the
Sutin firm should be reduced from $1,152.78 to $832.71, based on total fees amounting
to $11,585.50. For the Ferguson firm, the NMGRT is reduced from $1,800.47 to
$1,378.56, based on total fees amounting to $19,180.

V. Conclusion

Based on all of the above, the undersigned finds that petitioner’s counsel is
entitled to reasonable attorneys’ fees in the total amount of $54,965.02 as follows:

Maglio Christopher & Toale, PA:

Original Request for Fees: $16,490.10
Rate Reduction Above: -$1,026.00
Hour Reduction Above: -$3,098.30
9
In addition to the costs discussed below, the undersigned notes that Mr. Segal sought reimbursement on
behalf of the Ferguson firm for $3,644.80 for the services of Deborah Witkin, R.N. (ECF No. 33-2, p. 7.)
Ms. Witkin billed 32 hours of time to “review, organize, and preliminarily evaluate [the] pertinence of
approximately 2,600 pages of [the] patient’s medical records” and “synthesize pertinent medical records
and prepare [a] medical chronology.” (ECF No. 33-2, p. 11.) However, prior to joining the Ferguson firm,
Mr. Segel spent considerable time reviewing petitioner’s medical records while at the Sutin firm. He also
spent considerable time reviewing Ms. Witkin’s work. Moreover, Mr. Kalinowski and Maglio paralegals
also billed time reviewing medical records and coordinating the medical records summary. In light of this,
Ms. Witkin’s involvement was redundant and excessive. Nonetheless, since Ms. Witkin did produce a
work-product from which the attorneys worked, the undersigned will not disallow reimbursement in this
instance. Instead, as noted above, the undersigned has reduced as excessive Mr. Segel’s billing for his
time spent engaging and coordinating with Ms. Witkin. Mr. Segel is cautioned that such expert expenses
may not be allowed in the future. Attorneys’ costs are subject to the same reasonableness standard as
attorneys’ fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992). Moreover, the Vaccine Guidelines advise
that expert retention is typically not warranted in expedited SPU cases such as the instant one.
Petitioners’ counsel are warned that failure to confer with the court prior to engaging experts in SPU case
may affect reimbursement of those costs. See Vaccine Guidelines, §5, Ch. 3.
7
Total Fees: $12,365.80

Costs: + $455.46

Final Fees and Costs Awarded: $12,821.26

Sutin, Thayer & Browne:

Original Request for Fees: $16,036.50
Rate Reduction Above: -$817.50
Hour Reduction Above: -$3,633.50
Adjusted Gross Receipts Tax: +$832.71
Total Fees: $12,418.21

Original Costs Requested: $1,542.56
Cost Reduction Above: -$277.00
Total Costs: $1,265.56

Final Fees and Costs Awarded: $13,683.77

Will Ferguson & Associates:

Original Request for Fees: $25,050.00
Rate Reduction Above: -$1,670.00
Hour Reduction Above: -$4,200.00
Adjusted Gross Receipts Tax: +$1,378.56
Total Fees: $20,558.56

Costs: +$7,901.43

Final Fees and Costs Awarded: $28,459.99

Accordingly, the undersigned awards the total of $54,965.02 10 as follows:

• A lump sum of $12,821.26 in the form of a check jointly payable to
petitioner and petitioner’s counsel Maglio Christopher & Toale, PA;
and
10 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses
all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).

8
• A lump sum of $13,683.77 in the form of a check jointly payable to
petitioner and petitioner’s counsel Sutin Thayer & Browne; and

• A lump sum of $28,459.99 in the form of a check jointly payable to
petitioner and petitioner’s counsel Will Ferguson & Associates.

The clerk of the court shall enter judgment in accordance herewith. 11

IT IS SO ORDERED.

s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master

11Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.

9

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4162147. Public record. Not legal advice.