Knorr v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-1169V

(Not to be Published)

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*

RAMONA KNORR, *

* Special Master Corcoran

Petitioner, *

* Dated: April 17, 2017

v. *

* Attorney’s Fees and Costs;

* Interim Fees; Expert Costs.

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner.

Kathryn A. Robinette, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING INTERIM AWARD OF ATTORNEY’S FEES AND COSTS1

On October 9, 2015, Ramona Knorr filed a petition seeking compensation under the

National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that she

suffered from several injuries, including hearing loss, vasculitis, ANCA-positive microscopic

polyangiitis with renal failure, and polyneuropathy as a result of receiving the influenza vaccine

on November 7, 2012, and October 8, 2013. An entitlement hearing is set for October 26-27, 2017.

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This Decision has been designated “not to be published,” which means I am not directing it to be posted on the Court

of Federal Claims’s website. However, it will nevertheless be posted 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 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.

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The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the

Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Petitioner has now requested an interim award of attorney’s fees and costs, in the total

amount of $64,664.53. See generally Motion for Interim Attorney’s Fees and Expenses, dated

March 6, 2017 (ECF No. 27) (“Interim Fees App.”).

Respondent reacted to the motion on March 17, 2017, opposing an award of interim fees

and costs at this time. ECF No. 28 (“Opp.”). Respondent alleged that Petitioner has not made any

special showing justifying an award of interim fees and costs, and the proceedings are not

protracted enough to warrant an interim award. Opp. at 2. In the alternative, if I determine an

amount of fees and costs is appropriate, Respondent defers to my discretion to determine the

reasonable amount of such an award. Opp. at 3. Petitioner thereafter filed a reply on March 24,

2017, reiterating why she believes this case merits an award of interim fees and costs. ECF No. 29

(“Reply”).

For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding

at this time interim fees and costs in the total amount of $48,802.03.

Procedural History

This action has been pending for approximately one and a half years. Pet. at 1, filed October

9, 2015 (ECF No. 1). As the billing invoices submitted in support of the fees application reveal,

Petitioner’s attorney, Michael McLaren, Esq., began working on the matter in June 2015, four

months prior to filing the case. See Ex. 2 to Fees App. (ECF No. 27-2) at 1. The case has largely

proceeded in an efficient manner. Petitioner was able to file her statement of completion by

February 8, 2016, roughly four months after filing her petition. ECF No. 11. Petitioner also filed

an initial expert report from Dr. Eric Gershwin the very next month, on March 3, 2016. ECF No.

12. Thereafter, Respondent filed his Rule 4(c) Report and expert reports from Drs. Chester Oddis

and Lindsay Whitton on July 8, 2016. ECF Nos. 17 and 18. Petitioner then filed a supplemental

expert report and associated medical literature on August 24, 2016. ECF Nos. 24-26.

Petitioner filed the present interim request for an award of attorney’s fees and costs on

March 6, 2017. Interim Fees App. at 1-2. In it, Petitioner argues that this case meets the

requirements for an award of interim attorney’s fees and costs as set forth in Avera v. Sec’y of

Health & Human Servs., 75 Fed. Cl. 400, 406 (2007). Particularly, she argues that this is a “good

faith” case, the expenses sought are significant, and it will likely be a substantial period before the

case is resolved. Id. at 2.

Petitioner specifically requests that Michael McLaren be compensated at a rate of $410 per

hour for work performed in 2015 and $425 per hour for work performed in 2016. Id. at 10. She

further requests that Will Cochran, Jr., receive a rate of $345 per hour for 2015 work; $355 per

hour for 2016 work; and $365 per hour for 2017 work. Id. She then asks for compensation at a rate

of $295 per hour for Chris Webb for 2015 work; and $305 per hour for 2016 work. Id. Petitioner

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finally requests reimbursement for paralegal work on this matter ranging from $135 per hour to

$155 per hour. Id.; Ex. 2 to Interim Fees App. at 20. Petitioner additionally requests $19,010.53 in

litigation costs, of which $15,862.50 is associated with work performed by Petitioner’s expert, Dr.

Eric Gershwin. Ex. 2 to Interim Fees App. at 20-21.

Respondent filed a brief in reaction on March 17, 2017. See generally Opp. He objects to

the payment of interim fees and costs at this time, as he does not believe that this case fits the

circumstances set forth in Avera justifying an interim award. Id. at 1. Specifically, the fact that this

case has been pending for just under 18 months does not qualify it as especially protracted. Id. at

2. He also argues that the costs of Petitioner’s expert are not an inordinate amount, nor has

Petitioner presented anything else to justify an award of fees and costs at this point. Id. at 3. In the

event that I were to find Petitioner is entitled to an interim award of fees and costs, Respondent

requests that I exercise my discretion to determine an appropriate amount. Id. at 3-4.

Petitioner thereafter filed a reply on March 24, 2017, again asserting that she has met the

requirements for an award of interim fees and costs. Reply at 1. Petitioner notes that my initial

order lists the requirements that I find should be met before considering a request for interim fees

and costs: 1) the amount of fees requested is over $30,000; 2) the aggregate amount of expert costs

is more than $15,000; and/or 3) the case has been pending for more than 18 months. Id. at 1-2.

Petitioner notes that her requested attorney’s fees total $45,654.00; the expert costs total

$15,862.50; and the case has been pending for 18 months as of April 9, 2017. Id. at 2. Denying

this request for interim fees would also cause an undue hardship, according to Petitioner, as a

conclusion to the case is not imminent, and therefore Petitioner will continue to incur additional

fees and costs. Id. at 3.

ANALYSIS

I. Legal Standard Applicable to Interim Fees and Costs Requests

I have in prior decisions discussed at length the standards applicable to determining

whether to award fees on an interim basis (meaning while the case is still pending). Auch v. Sec'y

of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *6-9 (Fed. Cl. Spec. Mstr. May

20, 2016); Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5-9

(Fed. Cl. Spec. Mstr. Sept. 30, 2015). It is well-established that a decision on entitlement is not

required before interim fees or costs may be awarded. Fester v. Sec’y of Health & Human Servs.,

No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also Cloer v.

Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera, 515 F.3d at 1352.

While there is no presumption of entitlement to interim fees and cost awards, special masters may

in their discretion make such awards and often do so. Perreira v. Sec’y of Health & Human Servs.,

27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim costs are

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subject to the same standards. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52 Fed. Cl.

667, 670 (2002); Fester, 2013 WL 5367670, at *16.

Here, I find that Petitioner has made a showing sufficient to justify some award of interim

fees and costs. Though the case is not particularly protracted, the matter is not scheduled for

hearing until October of this year, thus imposing a hardship on Petitioner and her counsel for the

outstanding fees and costs not yet awarded since the case’s initiation. Further, in the time since the

petition’s filing, Petitioner has acted diligently in prosecuting this matter. While I do not envision

automatically awarding interim fees in all circumstances simply because time has passed since a

case’s filing, I find this case meets the standards for so doing.

II. Challenges to the Amounts Requested for Petitioner’s Attorneys

I must now evaluate what the magnitude of Petitioner’s interim attorney’s fee award should

be. Whether a fee award is made on an interim basis or after a case’s conclusion, the requested

sum must be “reasonable.” Section 15(e)(1). Special masters may in their discretion reduce

attorney 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).

Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part

process. The first part involves application of the lodestar method – “multiplying the number of

hours reasonably expended3 on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at

1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting

the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This

standard for calculating a fee award is considered applicable in most cases where a fee award is

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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. denied, 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 where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,

515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be

considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves 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.

In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is

a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum

in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,

(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.

1999)).

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

Petitioner asks that the three attorneys and paralegals from the Black McLaren firm who

worked on this matter be reimbursed at varying rates for work performed from 2015-2017, as

detailed above. I have previously found that Black McLaren is entitled to forum rates. See Wilson

v. Sec’y of Health & Human Servs., No. 15-521V, slip op. (Mar. 29, 2017); Pancoast v. Sec’y of

Health & Human Servs., No. 15-718V, 2016 WL 7574815, at *3 (Fed. Cl. Spec. Mstr. Nov. 16,

2016). Other special masters have awarded forum rates to these attorneys, as well. See, e.g., Henry

v. Sec’y of Health & Human Servs., No. 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov.

4, 2016). The hourly rates I awarded in Wilson and Pancoast to the attorneys who worked on this

matter, as well as the paralegals, are the same as those requested herein, and I will likewise award

them.4

Additionally, the hours expended on this matter appear to be reasonable. This case has been

pending since October 2015, although counsel began working on the matter approximately four

months prior to filing. Mr. McLaren spent 52.4 hours on the case, Mr. Cochran performed 36.1

hours of work, and Mr. Webb expended 5.3 hours on the matter. The paralegals contributed 63.7

hours of work, as well. Ex. 2 to Interim Fees App. at 20. I do not find any particular entries to be

objectionable, nor has Respondent identified any as such. Therefore, these hours will be

reimbursed in full.

III. Challenges to Requested Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must

also demonstrate that requested litigation costs are reasonable. Perreira, 27 Fed. Cl. at 34;

Presault, 52 Fed. Cl. at 670. Such costs include expert time incurred while working on a case.

Fester, 2013 WL 5367670, at *16. When petitioners fail to carry their 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).

Petitioner’s requested litigation costs include the time of her expert, Dr. Gershwin, who

charged an hourly rate of $450 for 35.25 hours of work. Ex. 2 to Fees App. at 40, 44-45. This rate

has been awarded to Dr. Gershwin previously. I.H. v. Sec’y of Health & Human Servs., No. 13-

766V, 2016 WL 7666536, at *2 (Fed. Cl. Spec. Mstr. Dec. 16, 2016). However, I will not award

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Petitioner also requests $155 per hour for 5.2 hours of paralegal work performed in 2017. Petitioner has not defended

this increase in hourly rates for 2017 from the previously-awarded rate of $145 for 2016, and I do not find it consistent

with the hourly rate ranges for paralegal work as set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-

293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). However, Respondent did not object to this increased

rate. I will award it herein, but this decision does not constitute specific approval of this requested rate for 2017

paralegal work in future fee applications.

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these sums at this juncture. This is in part due to the fact that the expert’s value to the case is best

determined after the expert has testified. Bell v. Sec’y of Health & Human Servs., No. 13-709, 2015

WL 10434882, at *3-4 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). Instead, immediately after the hearing

(at which time I can better judge the value that Petitioner’s expert added to the case’s resolution),

Petitioner may renew the present request, supplementing it with statements or invoices reflecting

any additional expert costs that have been incurred. Therefore, I defer resolution of this aspect of

Petitioner’s motion until after the hearing. See, e.g., Auch, 2016 WL 3944701, at *16-17; Roberts

v. Sec’y of Health & Human Servs., No. 09-427V, 2013 WL 2284989 (Fed. Cl. Spec. Mstr. Apr.

30, 2013) (granting interim award of expert costs after conclusion of hearing but before issuance

of entitlement decision). I will otherwise award $3,148.03 in costs, representing payments made

for medical records and filing fees.

CONCLUSION

Accordingly, in the exercise of the discretion afforded to me in determining the propriety

of interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for

Interim Attorney’s Fees. I award a total of $48,802.03 in interim fees and costs as a lump sum in

the form of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. Michael McLaren,

Esq., representing attorney’s fees in the amount of $45,654.00, plus costs in the amount of

$3,148.03.

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

court SHALL ENTER JUDGMENT in accordance with the terms of this decision.5

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

5

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices

renouncing their right to seek review.

6