The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-104V
(to be Published)
************************* Special Master Corcoran
ANIL JOHN KUKREJA, and MICHAL *
KUKREJA, parents of D.K., a minor, *
* Filed: September 5, 2017
Petitioners, *
v. * Attorney’s Fees and Costs;
* Pro Se Claimants; Undisclosed
SECRETARY OF HEALTH * Representation of Claimants
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************
Lisa A. Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita, CA for
Petitioners.
Claudia B. Gangi, U.S. Dep’t of Justice, Washington, DC for Respondent.
DECISION GRANTING IN PART MOTION FOR ATTORNEY’S FEES AND COSTS1
On February 6, 2014, Anil John and Michal Kukreja filed a petition on behalf of their son,
D.K., seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine
Program”).2 Petitioners allege that D.K. suffered from myoclonic seizures as a result of his
February 7, 2011, receipt of the influenza (“flu”) and/or Hepatitis A vaccines. After nearly three
years of filing medical records and expert reports in preparation for a hearing scheduled in October
1
This decision will be posted on the United States Court of Federal Claims’s website, in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the ruling will be available to anyone with access
to the internet. 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 in its present form. Id.
2
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) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
2016, the parties filed a stipulation for damages, for the sum total of $15,000.00. See Stipulation,
dated Jan. 24, 2017 (ECF No. 54). Shortly thereafter, I issued a decision on damages consistent
with the stipulation. See Decision, dated Jan. 27, 2017 (ECF No. 56).
Petitioners have now filed a motion for final attorney’s fees and costs, requesting a
combined amount of $112,791.60 ($80,410.20 in attorney’s fees, $23,217.36 in costs expended by
Petitioners’ counsel, and $9,164.04 in costs for Petitioners’ personal litigation costs). Motion for
Attorney’s Fees and Costs, dated July 12, 2017 (ECF No. 61) (“Fees App.”). Respondent reacted
on July 25, 2017, stating that he is satisfied that the statutory requirements for an award of
attorney’s fees and costs are met in this case, but deferring to my discretion the determination of
the amount to be awarded. ECF No. 63. For the reasons stated below, I hereby GRANT IN PART
Petitioners’ request for fees and costs.
Background
This case was initiated by the Kukrejas in February 2014 as pro se Petitioners. I originally
set a deadline that all medical records and a statement of completion should be filed by May 26,
2014, but that deadline was extended numerous times to assist the Kukrejas with document
gathering. The statement of completion was filed on November 17, 2014, followed shortly by
Respondent’s Rule 4(c) Report. Thereafter, I held a status conference, encouraging Petitioners to
seek counsel, and also setting a deadline for Petitioners to file an expert report. See Scheduling
Order dated, Jan. 13, 2015 (ECF No. 22). At this time, Petitioners stated that they had retained an
attorney, and I accordingly instructed that attorney to promptly enter an appearance in the case. Id.
Petitioners’ current counsel, Lisa A. Roquemore, Esq., did so on February 2, 2015. (ECF No. 23).
Despite the appearance that the Kukrejas were pro se through February 2015, a review of
Ms. Roquemore’s billing invoices submitted with the present fees motion reveals that she had
actually been advising the Kukrejas since August 2013—over six months before they filed their
case, and a year and a half before she entered an appearance in the case. See generally Fees App.,
Exhibit 2. The billing invoices demonstrate that during this time, Ms. Roquemore was reviewing
all the filings of the court (in paper form, since she was not yet the attorney of record and therefore
lacked direct electronic access to the docket). In this eighteen-month period, Ms. Roquemore billed
60.6 hours to the matter, for a total of $16,646.00 – more than the settlement sum.
After Ms. Roquemore entered her appearance, the case proceeded on a litigation track. The
parties subsequently filed several expert reports, and then an entitlement hearing was scheduled
for October 2016. However, the case never went to hearing, as a 15-week order was issued on
September 30, 2016, at the request of the parties, in order to provide them the opportunity to settle
the matter. As noted above, those settlement discussions were successful, although they produced
a relatively modest award in comparison to the work the parties put into the case. The sole
remaining issue for resolution is what fees and costs to award counsel.
2
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs to successful
litigants, and therefore some fees and costs award herein is warranted. Section 15(e). Fees in
Vaccine Program cases are generally calculated pursuant to the “lodestar method,” whereby the
special master determines if the attorney’s hourly rate and time devoted to the matter are
reasonable. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008)
Though Respondent has not lodged an objection to the sum requested, special masters have
discretion to determine the reasonableness of a fees award sua sponte. Sabella v. Sec’y of Health
& Human Servs., 96 Fed. Cl. 201, 208-09 (2009); Perreira v. Sec’y of Health & Human Servs., 27
Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Here, I find adjustment to the requested
amount is warranted, for the reasons stated below.
I. Hourly Rates
An attorney’s reasonable hourly rate is determined by the “forum rule,” which applies the
hourly rate 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 v. Sec’y of Health & Human Servs.,
515 F.3d 1343, 1348 (Fed. Cir. 2008). The hourly rate ranges for attorneys of different levels of
experience who are entitled to the forum rate in Vaccine Program cases were recently set forth in
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015), a decision that I and the other special masters have embraced as a fair
calculation of forum rates.3
Petitioners request reimbursement for the work performed by Ms. Roquemore from 2013-
2017. In 2013, Ms. Roquemore billed at an hourly rate of $355; from 2014-2015 her hourly rate
was $365; and for 2016-2017 she charged $400 per hour. Ms. Roquemore, who practices law in
Southern California, has previously been found entitled to forum rates consistent with the rates
requested. See e.g. Davis v. Sec’y of Health & Human Servs., No. 14-978V, 2017 WL 656304, at
*2 (Fed. Cl. Spec. Mstr. Jan. 23, 2017); Taylor v. Sec'y of Health & Human Servs., No. 14–861V,
2016 WL 5390169 (Fed. Cl. Spec. Mstr. Sept. 2, 2016); Raicevic v. Sec’y of Health & Human
Servs., No. 14–554V, 2016 WL 5362695 (Fed. Cl. Spec. Mstr. Aug. 31, 2016). Here, I find that
the rates Petitioners request are appropriate in light of such prior persuasive decisions.
Petitioners also request payment for paralegal work at the hourly rate of $125 for all work
3
The McCulloch forum rate ranges have been compiled into a chart and posted to the Vaccine Claims section of the
United States Court of Federal Claims website. This forum hourly rate fee schedule can be accessed at:
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (“OSM Hourly Rate Chart”).
3
performed during the case’s pendency. Fees App., Exhibit 2. These requested rates are also
consistent with McCulloch, and will be awarded. McCulloch, 2015 WL 5634323, at *21.
II. Hours Performed on the Matter
Although I am accepting the rates requested herein with no additional commentary or
analysis, I do not find that the reasonableness of the total hours devoted to this matter is as clear-
cut, for two reasons.
First, I have concerns about the magnitude of time devoted to the case. Ms. Roquemore
and her paralegal billed 260.4 hours on the matter, for a total of $80,410.20. A Vaccine Program
case that settles for $15,000.00 should not cost nearly five times that amount – yet that is the sum
requested by Petitioners. Even though the Act clearly allows the recovery of fees by prevailing
claimants, special masters still possess the discretion to modify the sum awarded. Circumstances
such as those herein – where the Petitioners are represented by counsel with considerable
experience in the Program, and who is aware of the need to exercise proper billing judgment 4 –
cry out for a downward modification. Otherwise, counsel have no incentive to exercise any care
at all in what tasks they perform on a Vaccine Program matter.
Second, I am alarmed by the fact that counsel seeks reimbursement for work performed
long before she appeared formally in the case. As the billing records reveal, Ms. Roquemore was
contacted by Petitioners on August 3, 2013 – six months before filing. But it was my impression
that the Kukrejas were attempting to adjudicate their claim like any pro se claimant – not that they
had shadow counsel just waiting for the right time to appear – and in the interests of permitting
them a full and fair opportunity to litigate the claim, I afforded them leniencies that experienced
counsel like Ms. Roquemore would not receive.5 The facts disclosed by the attorney invoices
suggest strongly that counsel’s decision to appear may have been tactical in nature, rather than the
result of a pro se claimant’s success in convincing an attorney that his claim had merit.
I have not previously encountered a fees request in which the attorney of record billed
nearly a quarter of her total time before she entered an appearance more than a year after filing, all
4
Although this is the first fees award I have made in which I was required to consider the reasonableness of tasks
performed by Ms. Roquemore specifically, I note that she has been criticized in the past for not exercising sufficient
billing judgment in Vaccine Program cases. See, Sanchez v. Sec’y of Health & Human Servs., No. 11-685, 2016 WL
909186, at *8-9 (Fed. Cl. Spec. Mstr. Feb. 17, 2016).
5
Special masters generally take extra time assisting pro se petitioners, to ensure they have a good understanding of
the proceedings in the Program—a practice that is wasted if the pro se petitioner is already being advised. In addition,
pro se petitioners are often, as was the case here, allowed liberal extensions of time with records-filing deadlines,
given their likely unfamiliarity with document gathering. But when an experienced Program attorney is actually behind
the scenes, it could appear that the attorney is doing nothing more than trying to take advantage of the client’s pro se
status.
4
while she was actively advising Petitioners on every aspect of their case. While it does not appear
that this practice is explicitly forbidden by the Program or by the ethical rules of California6 or
D.C., it has an untoward quality and should not be encouraged in the future. Indeed, it is especially
inappropriate herein, where counsel are not paid by their clients but through the Vaccine Program
itself. Although a private individual might well agree to permit an attorney to act as occurred
herein, he would do so with full knowledge of the existence of the hidden attorney relationship.
But to obtain a special master's approval for such an arrangement, it would need to have been
similarly disclosed in advance, which did not occur in this case.
Because of such concerns, I will make two adjustments to the total fees requested. First, I
will not award any hours spent prior to when Ms. Roquemore was substituted as counsel in the
case in February 2015. This results in an initial $16,646.00 reduction.
Second, I will reduce the total sum of the fees side of the award for all post-appearance
work by twenty percent, to account for the gross disparity between the damages awarded by
stipulation and sum billed to the matter. This reflects an admittedly “big picture” attempt to account
for work unnecessarily performed on the matter7, while also ensuring that a successful claimant
does receive a fee award (and reducing the amount of second-guessing on my part as to whether
the case warranted the time devoted to it). In this way, I can achieve the “rough justice” that the
Supreme Court instructs I should aim for in adjusting fees requests. See Fox. Vice, 563 U.S. 826,
131 S. Ct. 2205 (2011).
As stated previously, Ms. Roquemore requested $80,410.20 in total attorney’s fees. After
applying the deduction for the time expended prior to entering the case, the amount of fees is
$63,764.20. Twenty percent of that sum leaves a total award for attorney’s fees of $51,011.36
($63,764.20 x .8= $51,011.36).
III. Litigation Costs
Petitioners also request several categories of litigation costs—miscellaneous litigation
6
The American Bar Association issued a formal opinion on “ghostwriting”—the practice where an attorney is hired
to draft filings for litigants without entering a formal appearance in the case—which stated that while the states may
differ in their opinion, there is no formal rule forbidding it. Am. Bar Ass’n, Standing Committee on Ethics and
Professional Responsibility, Formal Opinion 07-446 (May 5, 2007).
7
Although I am not obligated to go line-by-line in adjusting a fees request in accordance with my discretion, I do note
that the billing invoices in this case present several examples of extra work unnecessarily performed on this matter.
For example, over the life of the case Ms. Roquemore billed nearly 6 hours to prepare for status conferences that were
merely for scheduling. Fee App., Exhibit 2 at 17, 21, 30, 32, 35. Moreover, she also billed during this time for
reviewing medical records and emailing with parties with case updates, presumably keeping herself up to date on the
case in the process, making billing for the review of the case the day of a status conference potentially redundant. Id.
at 16, 21, 24, 26, 27, 32, 35.
5
costs expended by Ms. Roquemore, expert costs paid by Ms. Roquemore, and litigation expenses
owed to the Petitioners themselves.
First, Petitioners request $492.36 for miscellaneous costs, such as obtaining medical
records, postage, and copying fees. See generally Fees App., Exhibit 2. That amount is reasonable
and I will award it as requested.
Second, Ms. Roquemore requests costs for the expert reports from Dr. Steinman
($15,125.00) and Dr. Shafrir ($7,600.00) (after deducting the retainers paid for each expert by
Petitioners). Dr. Steinman billed 34.5 hours, reflecting review of records and two expert reports at
an hourly rate of $500. This rate has been awarded for Dr. Steinman by other special masters and
myself. See, e.g., Dezern v. Sec’y of Health & Human Servs., No. 13-643V, 2016 WL 6678496
(Fed. Cl. Spec. Mstr. Oct. 14, 2016; Sanchez v. Sec’y of Health & Human Servs., No. 11-685V,
2016 WL 909186, at *11 (Fed. Cl. Spec. Mstr. Feb. 17, 2016); Brown v. Sec’y of Health & Human
Servs., No. 09-426V, 2012 WL 952268, at *10-11 (Fed. Cl. Spec. Mstr. Feb. 29, 2012). While it
is certainly regrettable that Dr. Steinman’s expert costs alone are in excess of the settlement
amount, I will nonetheless award him the total fees requested, as it is likely his input aided in the
case’s resolution.
Similarly, Dr. Shafrir requests $7,600.00 for 26 hours of work at a rate of $350 per hour.
See generally, Fees App., Exhibit 17. This rate is consistent with what he has been awarded
previously and I will award it in full. Whitney v. Sec’y of Health & Human Servs., No. 10-809,
2016 WL 4494199 (Fed. Cl. Spec. Mstr. July 27, 2016).
Finally, Petitioners request $9,164.04 in personal costs that they separately incurred in
connection with this litigation. Fees App. at 2. That amount includes $918.07 in filing fees and
postage, and $3,500 in retainers for Dr. Steinman and Dr. Shafrir. Fees App at 2, Exhibits 5-6. I
will award all of these costs, as they appear to be reasonable.
The above sum also includes costs associated with a guardianship proceeding – $3,963.32
for a guardianship attorney, and $782.65 incurred by the Kukrejas to travel to and attend the
guardianship hearing. Fees App at 2, Exhibits 5-6. The stipulation provides for a guardianship to
be established within 90 days of entering the stipulation, thus the billing entries from the
guardianship are from February to March 2017, completing the process exactly two months after
the stipulation was entered. Id.
These kinds of guardianship-related costs have been awarded in the Program. Costs
incurred in direct connection with the terms of a judgment can be reasonably construed as
“proceedings on a petition” (Section 15(e)(1)) because they are only incurred as a condition of
payment. See Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 782 (2010). Special
6
masters (including me) have therefore awarded such costs where the guardianship is established
as a condition of the settlement and/or judgment in the matter. See, e.g., Barrett v. Sec'y of Health
& Human Servs., No. 09-389V, 2014 WL 2505689, at *5 (Fed. Cl. Spec. Mstr. May 13, 2014);
Torres v. Sec'y of Health & Human Servs., No. 09-867V, 2013 WL 2256136 (Fed. Cl. Spec. Mstr.
Apr. 30, 2013); Cansler v. Sec'y of Health & Human Servs., No. 09-596V, 2011 WL 597791 (Fed.
Cl. Spec. Mstr. Feb. 2, 2011); Ceballos v. Sec'y of Health & Human Servs., No. 99-97V, 2004 WL
784910 (Fed. Cl. Spec. Mstr. Mar. 25, 2004).
In this case, I have some hesitancy to award the travel costs Petitioners incurred in
connection with the guardianship. However, I will award them because it appears that California
requires future guardians to make a court appearance prior to being awarded guardianship. See
Guardianship of Children, The Superior Court of California,
http://www.sfsuperiorcourt.org/divisions/probate/guardianship-children#3 (last accessed Aug. 29,
2017). These costs are therefore sufficiently associated with the guardianship to make them
“incurred” in connection with the petition.
CONCLUSION
Accordingly, and in the discretion afforded to me, I hereby GRANT IN PART Petitioners’
motion for attorney’s fees and costs. An award of $74,228.72 should be made in the form of a
check payable jointly to Petitioners and Petitioners’ counsel, Lisa A. Roquemore, Esq. I separately
award the amount of $9,164.04 to Anil and Michal Kukreja for reimbursement of their personal
costs associated with this matter. Payment of this amount represents all attorney’s fees and costs
available under 42 U.S.C. § 300aa-15(e).
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.8
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
8
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.
7