Jackson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: November 15, 2019

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SHANNON JACKSON, * No. 17-538V

*

Petitioner, * Special Master Sanders

*

v. *

*

SECRETARY OF HEALTH * ADEM; Influenza (“Flu”) Vaccine;

AND HUMAN SERVICES, * Interim Fees and Costs; Reduction

* of Hours

Respondent. *

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William E Cochran, Jr., Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for

Petitioner

Althea Walker Davis, United States Department of Justice, Washington, DC, for Respondent

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1

On May 16, 2019, Shannon Jackson (“Petitioner”) filed a motion for interim attorneys’

fees and costs, requesting $51,214.61 for her counsel, Mr. William E. Cochran, Jr. Mot. Int.

Att’ys’ Fees & Costs, ECF No. 52 [hereinafter Pet’r’s Mot. for IAFC]. On May 30, 2019,

Respondent filed his response to Petitioner’s motion. Resp’t’s Resp., ECF No. 54. In his response,

Respondent stated that he would “defer to the Special Master to determine whether or not

[P]etitioner has met the legal standard for an interim fees and costs award . . .” Id. at 2. For the

reasons stated below, I will award interim attorneys’ fees and costs for Petitioner’s counsel at this

time.

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This Decision shall 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 note (2012) (Federal Management and Promotion of Electronic

Government Services). This means the Decision will be available to anyone with access to the Internet. In

accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information

that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction

must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the

requirements of that provision, such material will be deleted from public access.

I. Procedural History

On April 17, 2017, Petitioner filed a petition for compensation pursuant to the National

Vaccine Injury Compensation Program (“Program”). 2 42 U.S.C. §§ 300aa-1 to -34 (2012); Pet.,

ECF No. 1. Petitioner alleges that she suffered acute disseminated encephalomyelitis (“ADEM”)

as the result of an influenza (“flu”) vaccine administered on November 11, 2015. Pet. at 1. Over

the next five months, Petitioner filed nineteen exhibits consisting of medical records, two

affidavits, and a vaccine verification form. Pet’r’s Exs. 1–19, ECF Nos. 9-1–9-10, 10-1–10-10,

14, 19.

On November 14, 2017, Respondent filed a status report indicating that Petitioner’s record

was complete, ECF No. 21, and I then ordered Respondent to file his Rule 4 Report by January

16, 2018. Scheduling Order, docketed Nov. 14, 2017. Respondent filed his Rule 4 Report within

his deadline. Resp’t’s Report, ECF No. 24. In his report, Respondent argued that Petitioner should

be denied compensation because Petitioner had not shown a logical connection between the flu

vaccination and the development of ADEM. Id. At 16. Respondent further argued that Petitioner

had not shown that the onset of ADEM “occurred within a medically acceptable time frame to

infer causation.” Id.

I held a Rule 5 status conference on February 13, 2018. Minute Entry, docketed Feb. 13,

2018. Following the status conference, I ordered Petitioner to file an expert report by June 15,

2018. ECF No. 25. After one extension of time, Petitioner filed an expert report by Lawrence

Steinman, M.D., Dr. Steinman’s C.V., and thirty pieces of medical literature on July 12, 2018.

Unopposed Mot. for Ext. of Time, ECF No. 28; Pet’r’s Exs. 25–51, ECF Nos. 29-1–31-9. Five

days later, I ordered Respondent to file a responsive expert report by September 10, 2018. Non-

PDF Order, docketed July 17, 2018.

From February 21 to May 2, 2018, Petitioner filed five additional medical records. Pet’r’s

Exs. 20–21, ECF Nos. 26-1–26-2; Pet’r’s Exs. 22–24, ECF Nos. 27-1–27-3. Petitioner filed an

amended expert report on July 20, 2018, which corrected the date of vaccination. Pet’r’s Ex. 52,

ECF No. 32. After one extension of time, Respondent filed his responsive expert report by Eric

Lancaster, M.D., Ph.D., Dr. Lancaster’s C.V., and seven supporting pieces of medical literature on

September 17, 2018. Unopposed Mot. for Ext. of Time, ECF No. 33; Resp’t’s Exs. A-1–B, ECF

Nos. 34, 36.

On October 4, 2018, I granted Petitioner’s motion to amend her petition, which she

subsequently filed on October 15, 2018. ECF No. 37; Non-PDF Order, docketed Oct. 4, 2018;

ECF No. 38. Petitioner filed a supplemental expert report by Dr. Lancaster and two supporting

pieces of medical literature on November 19, 2018. Pet’r’s Exs. 53–55, ECF No. 39-1–39-3. A

month later, Respondent filed a responsive expert report by Dr. Lancaster. Resp’t’s Ex. C, ECF

No. 45. Petitioner then filed a supplemental expert report by Dr. Steinman and two pieces of

supporting medical literature on January 18, 2019. Pet’r’s Exs. 56–58, ECF No. 49.

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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).

2

On February 5, 2019, Respondent filed an additional piece of medical literature. Resp’t’s

Ex. C-1, ECF No. 50. On May 16, 2019, Petitioner filed her motion for interim attorneys’ fees

and costs, and Respondent filed his response fifteen days later. Pet’r’s Mot. for IAFC; Resp’t’s

Resp. Petitioner did not file a reply. Two weeks later, Respondent filed a responsive expert report

by Dr. Lancaster and an additional piece of medical literature. Resp’t’s Exs. D–D-1, ECF No. 53-

1–53-2. Between August 9 and August 12, 2019, Petitioner filed an updated medical record, a

responsive expert report, and six pieces of supporting medical literature. Pet’r’s Ex. 59, ECF No.

56; Pet’r’s Ex. 60–66, ECF Nos. 57-1–57-7. Petitioner filed six additional exhibits consisting of

updated medical records on September 20, 2019. Pet’r’s Exs. 67–72, ECF Nos. 59-1–59-7.

Currently, Respondent has until January 13, 2020, to file his responsive expert report. Non-PDF

Order, docketed Nov. 12, 2019. This matter is now ripe for consideration.

II. Availability of Interim Attorneys’ Fees and Costs

A. Good Faith and Reasonable Basis

Under the Vaccine Act, petitioners may recover reasonable attorneys’ fees and costs only

if “the petition was brought in good faith, and there was a reasonable basis for which the petition

was brought.” 42 U.S.C. § 300aa-15(e)(1) (2012). Respondent does not object to Petitioner’s

motion on the basis of good faith or reasonable basis, and I find that the statutory criteria for an

award of fees and costs is met.

B. Justification for an Interim Award

In Avera, the Federal Circuit stated that a special master may award attorneys’ fees and

costs on an interim basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed.

Cir. 2008). The court noted that such awards “are particularly appropriate in cases where

proceedings are protracted, and costly experts must be retained.” Id. Similarly, the Federal Circuit

held in Shaw that it is proper for a special master to award interim attorneys’ fees “[w]here the

claimant establishes that the cost of litigation has imposed an undue hardship and that there exists

a good faith basis for the claim[.]” Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375

(Fed. Cir. 2010).

Many cases in the Program are proceeding slower than they have in the past. See Miles v.

Sec’y of Health & Human Servs., No. 12-254V, 2017 WL 4875816 at *5 (Fed. Cl. Spec. Mstr. Oct.

4, 2017) (“[i]t may be months to years before an entitlement ruling is issued”); Abbott v. Sec’y of

Health & Human Servs., No. 14-907V, 2016 WL 4151689, at *4 (Fed. Cl. Spec. Mstr. July 15,

2016) (“The delay in adjudication, to date, is due to a steady increase in the number of petitions

filed each year.”). As Petitioners’ case was filed on April 17, 2017, it has been pending for more

than two years. See Pet. At the current pace, an entitlement hearing and the subsequent decision

may not occur for a year or longer.

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Meanwhile, Petitioner’s fees and costs have accumulated in the course of prosecuting this

case. Petitioners have submitted four expert reports and numerous exhibits in support of their

petition. See generally Pet’r’s Exs. 1–72. Petitioner’s counsel has requested $51,214.61 in fees

and costs, and “[i]t cannot be seriously argued that in essence loaning cases thousands of dollars

for years is not a hardship.” Kirk v. Sec’y of Health & Human Servs., No. 08-241V, 2009 WL

775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Pet’r’s Mot. for IAFC at 11–12. Because of

the protracted nature of the proceedings, the fact that the ultimate resolution of this case may not

occur for a significant period, and the accumulation of fees and costs, I find an award of interim

attorneys’ fees and costs reasonable and appropriate in this case.

III. Reasonable Attorneys’ Fees

Only reasonable attorneys’ fees may be awarded, and it is “well within the special master’s

discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3

F.3d 1517, 1521 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct.

750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining

the reasonableness of both attorneys’ fees and costs.”). In making a determination, applications

for attorneys’ fees must include contemporaneous and specific billing records that indicate the

work performed and the number of hours spent on said work. See Savin v. Sec’y of Health &

Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

The Federal Circuit has approved the lodestar formula to determine reasonable attorneys’

fees under the Vaccine Act. Avera, 515 F.3d at 1348. This is a two-step approach. Id. 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.

A. Reasonable Rates

Forum rates are used in the lodestar formula, except when the rates in an attorneys’ local

area are significantly lower than forum rates. Id. at 1348–49. In a 2015 decision, Special Master

Gowen determined the reasonable forum rate ranges for attorneys with varying years of

experience. See McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323,

at *18-19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for recons. denied, 2015 WL 6181910 (Fed.

Cl. Spec. Mstr. Sept. 1, 2015). When considering whether a requested rate is reasonable, special

masters may consider an attorney’s overall legal experience and his experience in the Vaccine

Program, as well as the quality of the work performed. Id. at *17. The McCulloch rates have been

updated for subsequent years and are accessible on the court’s website at

http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters.

i. Reasonable Hourly Rates

Petitioner requests the following hourly rates for the attorneys, law clerks, and paralegals

who have worked on this matter to date:

Attorneys

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- William E. Cochran, Jr.:

o 2016 – $355

o 2017 – $365

o 2018 – $377

o 2019 – $391

- Michael G. McLaren:

o 2017 – $440

o 2018 – $456

o 2019 – $473

Law Clerks

- Samantha R. Ward

o 2016 - $145

o 2017 - $148

o 2018 - $153

o 2019 - $156

- Carmen Smith Garcia

o 2016 - $145

o 2017 - $148

o 2018 - $153

o 2019 - $156

Paralegal

- Lisa Harper

o 2019 – $155

The Black McLaren Jones Ryland & Griffee, P.C., firm is in Memphis, Tennessee, thus

forum rates apply. See, e.g., Scarpato v. Sec’y of Health & Human Servs., No. 16–1448V, 2018

WL 3030977, at *1–2 (Fed. Cl. Spec. Mstr. March 28, 2018); Decker v. Sec’y of Health & Human

Servs., No. 17-853V, 2019 WL 1923650, at *2 (Fed. Cl. Spec. Mstr. Apr. 11, 2019); Sheridan v.

Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2 (Fed. Cl. Spec. Mstr. Jan.

31, 2019); Zumwalt v. Sec’y of Health & Human Servs., No. 16-994V, 2018 WL 6975184, at *3

(Fed. Cl. Spec. Mstr. Nov. 27, 2018).

After reviewing the requested hourly rates for Mr. McLaren, I find that not all of his

requested hourly rates are not consistent with what he has been previously awarded in the Program

and not reasonable in light of McCulloch. See, e.g., Dix v. Sec’y of Health & Human Servs., No.

17-1859V, 2019 WL 4467108, at *2 (Fed. Cl. Spec. Mstr. June 25, 2019); McCulloch, 2015 WL

5634323. Petitioner requests the hourly rates of $440 for work performed in 2017 and $456 for

work performed in 2018. These rates have been previously awarded to Mr. McLaren and I will

award those rates for those years. See Dix, 2019 WL 4467108; Biery v. Sec’y of Health & Human

Servs., No. 17-1546V, 2019 WL 4121055 (Fed. Cl. Spec. Mstr. June 10, 2019); Teter on Behalf of

S.T. v. Sec’y of Health & Human Servs., No. 17-1801V, 2019 WL 2406958 (Fed. Cl. Spec. Mstr.

May 17, 2019). However, the requested hourly rate of $473 for work performed in 2019 has

already been reduced this year by former Chief Special Master Dorsey. Dix, 2019 WL 4467108

at *2. I too find that this rate exceeds Mr. McLaren’s experience range of attorneys with over 31

years’ experience. Therefore, I will award an hourly rate of $464, as this is the maximum

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reasonable hourly rate within the Attorneys’ Forum Hourly Rate Fee Schedule for 2019. 3 This

results in a reduction of $7.20. 4

I find that the requested rates for Mr. Cochran, the law clerks, and the paralegal are

consistent with what these individuals have been previously awarded in the Program and that the

rates are reasonable in light of McCulloch. See Dix, 2019 WL 4467108; Biery, 2019 WL 4121055;

Teter, 2019 WL 2406958; Rice v. Sec’y of Health & Human Servs., No. 15-1335, 2018 WL

4784563 (Fed. Cl. Spec. Mstr. Aug. 27, 2018); McCulloch, 2015 WL 5634323.

ii. Hours Expended

The second step in Avera is for the Court to make an upward or downward modification

based upon specific findings. Avera, 515 F.3d at 1348. As outlined below, I have determined that

a reduction in the number of hours requested is appropriate for excessive billing. As the case law

dictates, “[c]ounsel should not include in their fee requests hours that are ‘excessive, redundant,

or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley, 461 U.S. at 434).

Two attorneys, two law clerks, and a paralegal billed hours in this case. As other special

masters have noted, this type of staffing model leads to inefficiency and unnecessary billing

entries. See, e.g., Rice, 2018 WL 4784563, at *2. For instance, Samantha Ward and Carmen

Garcia Smith billed hours for intraoffice communications and discussions with each other

regarding case progression, which are not compensable in the Program. See, e.g., Pet’r’s Ex. 2 at

1–2 (07/21/2016 entry from Carmen Garcia Smith noting “correspondence from Samantha Ward

regarding requesting records[.]”) 5; see also Davis v. Sec’y of Health & Human Servs., No. 15-

159V, 2017 WL 877277, at *6 (Fed. Cl. Spec. Mstr. Feb. 7, 2017). Additionally, Mr. Cochran

billed for time where he and a law clerk attended the same conference calls with Petitioner. See,

e.g., Pet’r’s Ex. 2 at 16 (02/13/2018 entries from Mr. Cochran and Samantha Ward noting a call

with Petitioner). 6

In addition to the above, firm law clerks billed time for filing documents and reviewing

CM/ECF notifications. See, e.g., id. at 12 (07/14/2017 entry indicating a law clerk “fil[ed] exhibit

18 (Damages Affidavit) with the court”), 16 (02/21/2018 entry noting “file exhibits 20–21 with

the court”), 21 (10/01/2018 entry noting “file motion for leave to amend petition”). 7 This type of

clerical work is not compensable in the Program. See, e.g., Smithson v. Sec’y of Health & Human

Servs., No. 13-735V, 2019 WL 4271975, at *4 (Fed. Cl. Spec. Mstr. Aug. 15, 2019). For these

reasons, I will decrease Petitioner’s requested attorneys’ fees by $1,171.60. The remainder of the

work detailed in counsels’ billing logs is reasonable, and I will award the remainder of time

requested without reduction.

3

The Attorneys’ Forum Hourly Rate Fee Schedule for 2019 can be found here:

https://www.uscfc.uscourts.gov/node/2914.

4

This amount consists of $473 - $464 = $9 x 0.80 (hours worked on this matter)= $7.20.

5

This is just an example and not the only instance within Petitioner’s exhibit 2.

6

This was the only noted example of double billing within Petitioner’s exhibit 2.

7

These are only examples and not the only instances within Petitioner’s exhibit 2.

6

B. Costs

Similar to attorneys’ fees, a request for reimbursement of costs must be reasonable.

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Mr. Cochran has requested

$13,758.11 in Petitioners’ interim costs. Pet’r’s Mot. for IAFC at 3. Most of the requested costs

are related to obtaining expert reports and medical records. See Pet’r’s Mot. for IAFC, Ex. 2.

Mr. Cochran has requested $10,875.00 in costs related to Dr. Steinman’s expert fees and

$2,883.11 in other costs. Pet’r’s Mot. for IAFC at 5–6. Dr. Steinman’s rate of $500 per hour has

been found reasonable and previously awarded in the Vaccine Program. See e.g., Rolshoven v.

Sec’y of Health & Human Servs., No. 14–439V, 2017 WL 5472577 (Fed. Cl. Spec. Mstr. Oct. 19,

2017); Auch v. Sec'y of Health & Human Servs., 2017 WL 1718783, at *4 (Fed. Cl. Spec. Mstr.

Apr. 5, 2017); Daniel v. Sec'y of Health & Human Servs., No. 10–745V, 2016 WL 7785955, at *3

n.9 (Fed. Cl. Spec. Mstr. Dec. 21, 2016); Pentcholov v. Sec'y of Health & Human Servs., No. 14–

414V, 2016 WL 3197389, at *6 (Fed. Cl. Spec. Mstr. Apr. 29, 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).

The additional incurred costs are from postage, photocopying, and medical record charges. See

Pet’r’s Mot. for IAFC, Ex. 2 at 24–25. Therefore, I find that the requested costs are reasonable

and should be awarded in full.

IV. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I award Petitioner

$36,277.70 in interim attorneys’ fees, plus $13,758.11 in interim costs as follows:

Interim Attorneys’ Fees Requested $37,456.50

(Reduction) -$1,178.80

Interim Attorneys’ Fees Awarded $36,277.70

Interim Costs Requested $13,758.11

(Reduction) -$0

Interim Costs Awarded $13,758.11

Total Amount Awarded $50,035.81

Accordingly, I will award the total of $50,035.81 to be issued in the form of a check payable

jointly to Petitioner and Petitioner’s counsel, Mr. William E. Cochran, Jr., of Black McLaren Jones

Ryland & Griffee, P.C., for interim attorneys’ fees and costs.

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 the above decision. 8

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Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the

right to seek review.

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IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders

Special Master

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