McCollum v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-790V

(Not to be Published)

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

MICHAEL MCCOLLUM, *

* Special Master Corcoran

Petitioner, *

* Dated: November 28, 2017

v. *

* Attorney’s Fees and Costs;

* Interim Fees.

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.

Alexis Babcock, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING IN PART INTERIM AWARD OF ATTORNEY’S FEES AND

COSTS1

On August 29, 2014, Michael McCollum filed a petition seeking compensation under the

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

a result of receiving the influenza vaccine in October 2011, he suffered from narcolepsy and

cataplexy. See Petition at 1. After expert filings from both parties, I scheduled the matter for an

entitlement hearing, which took place on April 4, 2017. See Prehearing Order, dated December 16,

2016 (ECF No. 38).

1

Although this decision has been formally designated “not to be published,” it will nevertheless be posted on the

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

means that 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.

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) [hereinafter “Vaccine Act” or “the

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

On September 15, 2017, I issued a decision denying compensation. See Decision, dated

Sept. 15, 2017 (ECF No. 46). Petitioner filed a motion for reconsideration of my decision, which

I denied on October 12, 2017. See Order Denying Motion for Reconsideration, dated Oct. 12, 2017

(ECF No. 49). Shortly thereafter, Petitioner filed a motion for review, which remains pending. See

Motion for Review, dated Oct. 16, 2017 (ECF No. 51).

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

amount of $106,727.95 (representing $67,030.22 in attorney’s fees and $39,697.73 in costs). See

Motion for Interim Attorney’s Fees and Expenses, dated Nov. 1, 2017 (ECF No. 53) (“Interim

Fees App.”). This is the first such request in this action.

Respondent reacted to the motion on November 15, 2017, deferring to my discretion as to

whether Petitioner has met the legal standards for an interim fees and costs award and the amount

to be awarded, if any. See Response to Motion for Interim Attorney’s Fees and Costs, dated Nov.

15, 2017 (ECF No. 56) at 2.

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 $96,322.41.

Procedural History

This action has been pending for over three years. As the billing invoices submitted in

support of the fees application reveal, Petitioner’s attorney, Richard Gage, Esq., began working on

the matter on January 15, 2014, six months before the case was filed. See Interim Fees App., Tab

C. During that period of time, it appears that Mr. Gage (and his associates) was performing record

collection and contacting experts. Id. Petitioner filed complete medical records on November 24,

2014 (three months after the case was filed). The case was delayed slightly thereafter because of

issues related to proof of vaccination. Respondent filed his Rule 4(c) Report in April 2015. See

Respondent’s Rule 4(c) Report, dated Apr. 20, 2015 (ECF No. 13).

The parties then began filing expert reports, while obtaining records establishing proof of

vaccination, a process that was not completed until August 2016. I ultimately determined that the

disputed issues in the case necessitated an entitlement hearing. As previously mentioned, that

hearing was held on April 4, 2017.

Seven months after the hearing took place, Petitioner filed the present interim request for

an award of attorney’s fees and costs, which encompassed his work through the filing of his motion

for review (filed on October 16, 2017). See generally Interim Fees App. Petitioner specifically

requests that Mr. Gage be compensated at hourly rates of $299.64, $300, $311, and $318 for work

performed from 2014-2017, respectively. Petitioner also requests reimbursement for Mr. Gage’s

associates and paralegals. Interim Fees App. The associates billed for work only in 2017 to assist

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with filing the motion for review at hourly rates of $251.00 to $252.00. Id. at Tabs D-E. The

paralegals billed for work from 2014-2017 at varying rates from $112-$120. Id. at Tab F.

Substantial costs have also been incurred in the matter for record collection, expert

opinions, and travel expenses. The total for all such cost categories is $39,697.73. Interim Fees

App. at Tab G.

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 (here, 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 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 *16.3

Petitioner has made a showing sufficient to justify an award of interim fees and costs.

Criteria that I have found to be important in determining whether an interim fees request should

be permitted include: 1) if the amount of fees requested exceeds $30,000; 2) where expert costs

are requested, if the aggregate amount is more than $15,000; or 3) if the case has been pending for

more than 18 months. See Knorr v. Sec’y of Health & Human Servs., No. 15-1169V, slip op. at 3

(Apr. 17, 2017). This matter meets all of those criteria. It has been pending for over three years,

the total amount of attorney’s fees requested also exceeds the minimum threshold that I find to be

appropriate, and Petitioner has incurred substantial expert costs, exceeding $15,000. The fact that

the matter has been tried is also a relevant consideration. While I do not always find an interim

fees award appropriate, this case merits an interim award.

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Of course, a petitioner requesting an interim fee award must also establish that the claim was filed in good faith and

possesses reasonable basis. Cortez v. Sec'y of Health & Human Servs., No. 09-176V, 2014 WL 1604002, at *6 (Fed.

Cl. Spec. Mstr. Mar. 26, 2014). Respondent has not contested either point, however, and I find that the case was

pursued in good faith, and also that it presented a more than objectively reasonable dispute about the propensity of the

H1N1 flu vaccine to cause narcolepsy. Accordingly, these interim fee requirements are satisfied.

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II. 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 expended4 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

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

Petitioner asks that the attorneys and paralegals who worked on this matter be reimbursed

at varying rates for work performed from 2014-2017 as detailed above. I have previously found

that the attorneys practicing at The Richard Gage, P.C. law firm (located in Cheyenne, Wyoming),

are not “in-forum,” and thus not entitled to the forum rates set forth in McCulloch v. Sec’y of

Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015),

see Auch, 2016 WL 3944701. In Auch, which only involved work performed through 2015, I

awarded hourly rates of $294.86, $299.64, and $300.00 for 2013-2015, respectively, basing my

yearly increase on the consumer price index (“CPI”). Auch, 2016 WL 3944701, at *12.

In the present request, Petitioner requests rates for 2014-2015, plus 2016-2017 ($311,

$318). Interim Fees App., Tab C. The special masters, however, currently favor using the producer

price index for the office of lawyers (“PPI-OL”) as the rate inflator rather than the CPI. I will not

adjust the rates that I previously awarded in Auch for 2014 and 2015, but I will adjust the rates for

2016 and 2017 consistent with the PPI-OL. Thus, the rate for 2016 for Mr. Gage that I award

4

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.

4

herein is $306.00 per hour, and the hourly rate for 2017 is $314.00.5

The hours expended on this matter otherwise appear to be reasonable. Applying these new

rates to the time requested for Mr. Gage results in a reduction of $3,200.98.6 I also find that the

rates requested by the associates and paralegals are reasonable and will be awarded. Thus the new

total to be awarded for all attorney’s fees is $63,829.24.

III. Requested Costs

Petitioner also requests an interim award of costs incurred in acquiring medical records,

obtaining an expert opinion, and traveling for hearing. I will award the first category in full for a

total of $1,970.65. As for the second category, while I will award the majority of the expert costs,

I will reduce the hourly rate of Dr. Kinsbourne. He billed at an hourly rate of $500 for substantive

medical research and drafting, and a travel rate of $250 per hour. Interim Fees App. at Tab G. I

will reduce his rate to $400 per hour ($200 per hour for travel), consistent with that awarded to Dr.

Kinsbourne by other special masters. See e.g., Faoro v. Sec'y of Health & Human Servs., No. 10–

704V, 2014 WL 5654330, at *4 (Fed. Cl. Spec. Mstr. Oct. 15, 2014). After the reduction

($6,805.00), the total that will be awarded for expert costs is $27,430.00.

For the final cost category related to travel, lodging, and meals for the hearing held in

Washington, DC, I will make several reductions. The total cost for these expenses was $3,492.08.

At the outset, I will cut the cost of the taxi to get to the hearing on April 4, 2017 ($50.19), as

counsel arrived to the hearing more than 15 minutes after the proceedings were supposed to begin

at 9:00am. The receipt filed from the that ride indicate that Mr. Gage gave himself 45 minutes to

get the hearing from a hotel located in a suburb outside of DC—Alexandria, Virginia.7

I will also reduce the amount expended for lodging. Both Dr. Kinsbourne and Mr. Gage

were present in Washington, DC for the hearing—although they stayed at a hotel in Alexandria,

Virginia—and stayed for two nights. In total, the hotel costs were $1,555.94, with nightly rates of

5

The special masters have found the PPI-OL to be a persuasive as a measure of inflation. See OSM Attorneys’ Forum

Hourly Rate Fee Schedules 2017, United States Court of Federal Claims, http://www.uscfc.uscourts.gov/node/2914

(last accessed Oct. 11, 2017). The PPI-OL rate for 2016 was derived by multiplying Mr. Gage’s 2015 rate, consistent

with Auch, of $300 by the PPI-OL index for January 2015 (196.8) and then dividing by the PPI-OL index for January

2014 (192.7), after rounding to the nearest dollar, the hourly rate for 2016 came to $306. Similarly to calculate the

2017 rate, the 2016 hourly rate was multiplied by the PPI-OL index for January 2016 (201.8) and then divided by the

PPI-OL index for January 2015 (196.8), after rounding to the nearest dollar, the hourly rate for 2017 came to $314.

6

This also includes a reduction in the hourly rate for travel. Although the billing invoice for Mr. Gage purports to use

a half rate for travel, the rate was not actually reduced in the calculation of his fees. This resulted in a $2,766.60

reduction. Interim Fees App. at 17.

7

Mr. Gage is admonished that future tardiness, caused by allowing too little time to commute to the city, will not be

tolerated.

5

$309, $319, and $329. Interim Fees App., Tab G. I find that this rate is high, and I will reduce it

consistent with the federal government’s per diem rate of $242 (before tax) for lodging in the DC

metro area, and consistent with prior special master’s decisions. See FY 2017 Per Diem Rates for

District of Columbia, Virginia, GSA, https://www.gsa.gov/travel/plan-book/per-diem-rates/per-

diem-rates-lookup/?action=perdiems_report&state=VA&fiscal_year=2017 (last accessed, Nov.

28, 17); Dayton v. Sec’y of Health & Human Servs., No. 15-0589V, 2016 WL 8377512, at *1 (Fed.

Cl. Spec. Mstr. Nov. 17, 2016). That results in a reduction of $308 for all lodging expenses.

Similarly, I will reduce the amount spent on food for Mr. Gage and Dr. Kinsbourne. The

federal government per diem for food is $69 per person. Thus each day, I will award a maximum

of $138, because it appears that Mr. Gage paid for all the meals. Only on the day of the hearing

was that maximum reached, and I will accordingly reduce the meals award by $41.37. The

remaining travel costs for flights, taxis, and parking will be awarded in the amount of $1,667.69.

The total reduction to the costs requested is $7,204.56, and the total to be awarded is $32,493.17.

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.

Requested Reduction New Total

Mr. Gage’s Attorney’s Fees $44,884.02 $3,200.98 $41,683.04

Other Fees (Associate, Law Clerk $22,146.20 $0 $22,146.20

and Paralegals)

Costs-Medical Records, Filing Fee, $1,970.65 $0 $1,970.65

and Transcript

Costs- Expert Opinion of Dr. $34,235.00 $6,805.00 $27,430.00

Kinsbourne

Costs- Hotel and Meals $1,774.20 $349.37 $1,424.83

Costs- Flights, Taxis, and Parking $1,717.88 $50.19 $1,667.69

Total Requested: $106,727.95 Total Reduction: $10,405.54

Grand Total After Reduction: $96,322.41

I therefore award a total of $96,322.41 in interim fees and costs as a lump sum in the form

of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. Richard Gage, Esq. 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

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.

6

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

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