McCall v. Secretary of Health and Human Services

Sn the Gmited States Court of Federal Clauns

OFFICE OF SPECIAL MASTERS

i i i i i i i ae

EDWARD MCCALL, *

* No. 18-152V

Petitioner, * Special Master Christian J.

* Moran

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V. *k

* Filed: December 15, 2021

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SECRETARY OF HEALTH *

AND HUMAN SERVICES, ** Attorneys’ fees, expert invoice

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Respondent.

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Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;

Kyle E. Pozza, United States Dep’t of Justice, Washington, DC, for respondent.

UNPUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS!

Seeking compensation pursuant to the National Childhood Vaccine Injury

Act, 42 U.S.C. § 300aa-10 through 34 (2012), Edward McCall claims that an

influenza (“flu”) vaccine and pneumococcal (“Prevnar-13”) vaccine caused him to

develop rheumatoid arthritis. Counsel of record for Mr. McCall is Andrew D.

Downing.

! The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal

Management and Promotion of Electronic Government Services), requires that the

Court post this decision on its website. This posting will make the decision

available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties

have 14 days to file a motion proposing redaction of medical information or other

information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by

the special master will appear in the document posted on the website.

Mr. McCall is requesting an award of attorneys’ fees and costs on an interim

basis. Pet’r’s Mot., filed Oct. 1, 2021. For the reasons that follow, Mr. McCall is

awarded $71,202.17.

I. Abbreviated Procedural History

On January 31, 2018, Mr. McCall filed a petition alleging that he was

harmed by the flu vaccine and Prevnar-13 vaccine. Mr. McCall claims the

vaccinations caused him to develop joint pain, stiffness, and swelling. Pet., filed

Jan. 31, 2018, at 1. Mr. McCall alleges that the vaccinations triggered his

rheumatoid arthritis. Id. at 5. Mr. Downing has represented him throughout this

case.

Mr. McCall submitted medical records on February 8, 2018. See exhibits 1-

11. Subsequently, the Secretary advised that compensation was not appropriate.

Resp’t’s Rep., filed Nov. 15, 2018. While the Secretary accepted petitioner’s

diagnosis of rheumatoid arthritis, he disputed the onset of petitioner’s joint

symptoms. See id. at 9. The Secretary asserted that Mr. McCall’s medical records

are insufficient to show that his rheumatoid arthritis was caused-in-fact by his

vaccinations. Id. at 11.

The parties presented reports from doctors whom they retained for this

litigation. Mr. McCall’s expert witness is Dr. Thomas M. Zizic. His reports are

exhibits 14, 16, 34, and 64.? The Secretary has filed reports from Dr. Chester V.

Oddis, Dr. Lawrence H. Moulton, and Dr. J. Lindsay Whitton.

After Mr. McCall submitted his expert reports, the undersigned directed the

Secretary to file a supplemental expert report to further facilitate the exchange of

expert reports. Order, issued July 20, 2021. On October 4, 2021, the Secretary

moved for an extension of time, requesting until December 6, 2021 to file his

supplemental expert reports, which the undersigned granted. Resp’t’s Mot., filed

Oct. 4, 2021; order, issued Oct. 5, 2021. On December 6, 2021, the Secretary

again moved for an extension of time until January 7, 2022 to file his supplement

expert reports. Resp’t’s Mot., filed Dec. 6, 2021. The Secretary’s expert reports

are expected on January 7, 2022. The parties have not made any progress toward

settlement. Pet’r’s Mot., filed Oct. 1, 2021, at 2.

* Due to deficiencies in Dr. Zizic’s first report (exhibit 14), he revised it and

his first opinion was presented as exhibit 16. Therefore, this decision sometimes

refers to Dr. Zizic as presenting three opinions.

2

Mr. McCall filed the pending motion for interim attorneys’ fees and costs on

October 1, 2021, requesting fees for Mr. Downing’s work and costs incurred

during the litigation, including expert costs for Dr. Zizic’s work. Mr. McCall’s

motion included invoices only for Dr. Zizic’s last two reports. See id. at 43-44.

Mr. McCall did not present an invoice for Dr. Zizic’s initial work, reflected in

exhibits 14 and 16. On November 8, 2021, the undersigned ordered Mr. McCall to

supplement his motion for an interim award of attorneys’ fees and costs to present

additional invoices from Dr. Zizic or to confirm that he will not seek compensation

for Dr. Zizic’s work performed in presenting his initial opinions. Order, issued

Nov. 8, 2021. On December 1, 2021, Mr. McCall filed a supplemental invoice for

Dr. Zizic’s first two expert reports. See fee exhibit B.

Mr. McCall argues that an award of interim fees and costs is appropriate

because the case was filed with good faith and a reasonable basis, and counsel has

borne considerable fees and costs. Pet’r’s Mot. at 1. The Secretary did not

respond to Mr. McCall’s requests for attorneys’ fees and costs.

This matter 1s now ripe for adjudication.

II. Analysis

Mr. McCall’s motion requires analysis of three issues. First, whether Mr.

McCall is eligible under the Vaccine Act to receive an award of attorneys’ fees and

costs. Second, whether Mr. McCall should be awarded attorneys’ fees and costs

on an interim basis as a matter of discretion. Third, assuming an award is

appropriate, what is a reasonable amount of attorneys’ fees and costs. These issues

are addressed below.

A. Eligibility for an Award of Attorneys’ Fees and Costs

Interim fee awards are available in Vaccine Act cases. Avera v. Sec’y of

Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). A petitioner who

has not received compensation from the Program may be awarded “reasonable

attorneys’ fees and other costs incurred in any proceeding on such petition if the

special master or court determines that the petition was brought in good faith and

there was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). “Good

faith” and “reasonable basis” are two separate elements that must be satisfied for a

petitioner to be eligible for attorneys’ fees and costs. Simmons v. Sec’y of Health

& Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).

The Secretary does not object to Mr. McCall’s good faith or reasonable

basis. Mr. McCall’s medical records demonstrate that he brought his claim in

good faith believing that a vaccine injury occurred. See Morris v. Sec’y of Health

& Hum. Servs., No. 12-415V, 2014 WL 8661863, at *5 (Fed. Cl. Spec. Mstr. June

4, 2014) (finding that a petitioner’s medical records and affidavit showed that he

had an honest belief that a vaccine injury occurred). Like the petitioner in Morris,

Mr. McCall’s medical records confirm receipt of his vaccinations and describe

subsequent visits to his doctor to receive treatment for his joint pain. See id.;

exhibits 1-11. Furthermore, Mr. McCall’s medical records and Dr. Zizic’s expert

reports satisfy the reasonable basis standard. See K.B.H. v. Sec’y of Health &

Hum. Servs., No. 17-739V, 2021 WL 1344029, at *4 (Fed. Cl. Spec. Mstr. Jan. 8,

2021) (finding reasonable basis where petitioner produced comprehensive medical

records and reports from board-certified experts). Therefore, Mr. McCall has

satisfied the elements of good faith and reasonable basis and is eligible to receive

interim attorneys’ fees and costs.

B. Appropriateness of an Interim Award as a Matter of Discretion

Interim awards should not be awarded as a matter of right. Avera, 515 F.3d

at 1352 (Fed. Cir. 2008). Instead, petitioners must demonstrate “undue hardship.”

Id. As a matter of discretion, interim fees are awarded in cases where

“proceedings are protracted and costly experts must be retained.” Id. The Federal

Circuit has also considered whether petitioners faced “only a short delay in the

award” before a motion for final fees could be considered. Id.

The Federal Circuit has not attempted to specifically define what constitutes

“undue hardship” or a “protracted proceeding.” In this case, however, an interim

award is appropriate. The proceedings have been ongoing for more than three

years and this matter is not close to resolution. In addition, Mr. McCall’s counsel

has expended funds on three expert opinions, totaling $50,980.00. Fee exhibit A;

fee exhibit B. These circumstances support an award of attorneys’ fees and costs

on an interim basis.

C. _Reasonableness of the Requested Amount

Under the Vaccine Act, a special master may award reasonable attorneys’

fees and costs. 42 U.S.C. § 300aa-15(e)(1). Although the Secretary did not file a

response to Mr. McCall’s request, the undersigned must review the fee application

for its reasonableness. See McIntosh v. Sec’y of Health & Hum. Servs., 139 Fed.

Cl. 238 (2018). Reasonable attorneys’ fees are calculated by multiplying a

reasonable hourly rate by a reasonable number of hours expended on litigation, the

lodestar approach. Avera, 515 F.3d at 1347-48 (quoting Blum v. Stenson, 465

U.S. 886, 888 (1984)); Saxton ex rel. v. Sec’y of Health & Hum. Servs., 3 F.3d

1517, 1521 (Fed. Cir. 1993).

1. Reasonable Hourly Rate

Reasonable hourly rates are determined by looking at the “prevailing market

rate” in the relevant community. See Blum, 465 US. at 895. The “prevailing

market rate” is akin to the rate “in the community for similar services by lawyers

of reasonably comparable skill, experience and reputation.” Id. at 895n.11. A

petitioner’s counsel in the Vaccine Program 1s paid the forum rate unless the bulk

of the work is performed in a locale other than the forum (District of Columbia)

and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at

1349. If these two requirements are met, the Davis County exception applies, and

petitioner’s counsel is paid according to the local rate to avoid a “windfall.” Id;

see also Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v.

U.S. Env’t Prot. Agency, 169 F.3d 755, 757-60 (D.C. Cir. 1999).

The Davis County exception does not apply. Mr. Downing has performed

the bulk of his work in Phoenix, Arizona. However, the local rate of Phoenix,

Arizona is substantially similar to the forum rate. See Al-Uffi v. Sec’y of Health

& Hum. Servs., No. 13-956V, 2015 WL 6181669, at *10 (Fed. Cl. Spec. Mstr.

Sept. 30, 2015) (finding that Mr. Downing was entitled to the forum rate because

the prevailing rate among Arizona attorneys was “substantially equivalent’).

For cases in which forum rates apply, McCulloch provides a framework for

consideration of appropriate ranges for attorneys’ fees based upon the experience

of the practicing attorney. McCulloch v. Sec’y of Health & Hum. Servs., No. 09-

293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for

recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The

Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly

Rate Fee Schedules for 2015-2016, 2017, 2018, 2019, 2020, and 2021 can be

accessed online.*

3 The 2015-2016, 2017, 2018, 2019, 2020, and 2021 Fee Schedules can be

accessed at: https://www.uscfc.uscourts.gov/node/2914. The hourly rates

5

Mr. McCall proposes reasonable rates for Mr. Downing in the amount of

$375.00 per hour in 2017 and $385.00 per hour in 2018, 2019, 2020, and 2021.

Given Mr. Downing’s level of experience, which includes 18 years of Vaccine

Program experience, the undersigned finds this rate to be reasonable. See Schultz

v. Sec’y of Health & Hum. Servs., No. 16-539V, 2020 WL 1987784, at *3 (Fed.

Cl. Spec. Mstr. Mar. 25, 2020) (finding Mr. Downing’s proposed rate of $385.00

per hour for 2018-2020 consistent with his years of experience in the Vaccine

Program and the quality of his work).

In addition to attorneys’ fees for Mr. Downing’s work, Mr. McCall requests

attorneys’ fees for the work of an associate attorney, Courtney Van Cott. Ms. Van

Cott invoiced at $195.00 per hour in 2017; $205.00 per hour in 2018 and 2019; and

$275.00 per hour in 2020 and 2021. These rates are reasonable for an attorney

with Ms. Van Cott’s experience. See Tucker v. Sec’y of Health & Hum. Servs.,

No. 17-566V, 2019 WL 1796124, at *1 (Fed. Cl. Spec. Mstr. Apr. 2, 2019)

(awarding Ms. Van Cott $195.00 per hour in 2017 and $205.00 per hour in 2018);

Schultz, 2020 WL 1987784, at *2-3 (finding Ms. Van Cott’s proposed rate of

$275.00 per hour for work performed in 2020 reasonable given her experience in

the Vaccine Program).

Mr. McCall requested that the paralegals in Mr. Downing’s firm be

compensated at $135.00 per hour. Fee exhibit A. This rate is appropriate for

paralegal tasks. See Schultz, 2020 WL 1987784, at *2-3.

2. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours.

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton, 3 F.3d at 1521.

Mr. Downing’s invoices reflect that he spent 58.4 hours on the case through

July 20, 2021. Ms. Van Cott spent 28 hours on the case through July 20, 2021.

Both Mr. Downing’s and Ms. Van Cott’s time entries provide sufficient detail to

assess their reasonableness. Additionally, Mr. Downing’s and Ms. Van Cott’s

activities were reasonable for an attorney to perform. However, Mr. Downing’s

invoice contains a duplicate entry on October 13, 2017 for 0.60 hours that reads,

“Update call with client; hematology appointment; diagnosis of anemia; upcoming

contained within the schedules are updated from the decision in McCulloch, 2015

WL 5634323.

provider appts for RA.” See fee exhibit A at 2. Removing the time spent on this

duplicate entry results in a reduction of Mr. Downing’s attorneys’ fees in the

amount of $225.00.

Mr. Downing’s two paralegals spent a combined 62.7 hours on this case

through July 20, 2021. Most of Mr. Downing’s paralegals’ entries are reasonable.

However, one of Mr. Downing’s paralegals consistently included charges for filing

notices of filings. Attorneys’ fees are not permitted for clerical tasks. See Willet

v. Sec’y of Health & Hum. Servs., No. 15-252V, 2017 WL 3298983, at *4 (Fed.

Cl. Spec. Mstr. June 2, 2017). Accordingly, 0.10 of an hour is reduced for each of

the twenty entries that include charges for filing notices of filing. This results in a

reduction of $1,471.40 in attorneys’ fees for paralegal work.

Accordingly, Mr. McCall is awarded $35,825.10 in attorneys’ fees. This

amount is reasonable for work performed through July 20, 2021.

3. Costs

Like attorneys’ fees, a request for rermbursement of costs must be

reasonable. Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (Fed.

Cl. 1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). For attorneys’ costs through July

13, 2021, Mr. McCall requested $1,220.47, consisting of filing fees, acquiring

medical records, photocopies, and postage. See fee exhibit A. These costs are

reasonable. Mr. McCall did not incur any costs personally.

Reasonable expert fees are determined using the lodestar method in which a

reasonable hourly rate is multiplied by a reasonable number of hours. See

Chevalier v. Sec’y of Health & Hum. Servs., No. 15-001V, 2017 WL 490426, at

*3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017). A reasonable hourly rate for an expert

depends, in part, on the quality of the expert’s work. Sabella v. Sec’y of Health &

Hum. Servs., 86 Fed. Cl. 201, 218-25 (2009).

For the expert-related costs through July 13, 2021, Mr. McCall has

requested compensation for Dr. Zizic’s expert fees, totaling $50,980.00.

Dr. Zizic has invoiced at $400.00 per hour. Fee exhibit A. Given that Dr.

Zizic is board-certified and a specialist in rheumatology, this rate is reasonable.

See exhibit 15. Additionally, this Court has previously found Mr. Zizic’s

requested rate of $400.00 per hour reasonable. See Bourche v. Sec’y of Health &

Hum. Servs., No 15-232V, 2017 WL 2480936, at *5 (Fed. Cl. Spec. Mstr. May 11,

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2017); Hales v. Sec’y of Health & Hum. Servs., No. 14-552V, 2017 WL 1366069,

at *2 (Fed. Cl. Spec. Mstr. Mar. 9, 2017).

Dr. Zizic’s invoices reflect that he has spent 127.45 hours on this case. Fee

exhibit A; fee exhibit B. This includes time spent conferring with counsel,

analyzing respondent’s expert reports and medical literature, and drafting and

finalizing his expert reports. Fee exhibit A; fee exhibit B.

At first blush, the amount of time in preparing reports (more than 100 hours)

appears excessive. Mr. McCall’s medical records are found in a typical number of

exhibits. The Secretary’s summary of these records is approximately five pages,

although Dr. Zizic’s account is lengthier. See Resp’t’s Rep., filed Nov. 15, 2018,

at 2-6. Dr. Zizic cited 18 articles in his first report, 37 articles in his second report,

and no additional articles in his third report.

A deeper exploration of the basis for Dr. Zizic’s request that he be paid for

approximately 127 hours uncovers no meaningful information. Dr. Zizic’s

invoices do not explain how he was spending his time. One entry reads:

4/25/2020 - 6/28/2020 Analysis of medical literature

cited by Dr. Oddis, review of additional medical

literature on UCTD, RA, and Lupus; autoimmune nature

of these diseases; triggers events; vaccination to

incorporate into rebuttal report; multiple calls with

Counsel re: same - 19 hrs

Fee exhibit A at 43. Lumping approximately two months of work (covering 19

hours) into a single entry of 37 words does not communicate that Dr. Zizic spent

time reasonably. Experts are expected to list the amount of time they spent on

particular activities. See Caves v. Sec’y of Health & Hum. Servs., 111 Fed. Cl.

774, 781-83 (2013); Morse v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 683

(2009).

Before Dr. Zizic was engaged, Mr. McCall and Dr. Zizic were informed

about the minimal expectations for an expert’s invoice. The set of instructions

issued to experts on December 21, 2018, stated that experts should describe their

efforts in detail. Specifically, the instructions said: “The more significant issues

regarding invoices are: what is being done and how long the task takes. The expert

should list separate tasks separately. A rule of thumb is that every half hour should

have a separate task, differentiated from other tasks.” Order, issued Dec. 21, 2018,

at 7.

While this case was pending, a special master told Mr. Downing and Dr.

Zizic that “Dr. Zizic is encouraged to engage in contemporaneous time keeping in

order to avoid excessive billing.” Sicard v. Sec’y of Health & Hum. Servs., No.

16-332V, 2019 WL 6462385, at *6 (Fed. Cl. Spec. Mstr. Nov. 4, 2019) (reducing

hours awarded to Dr. Zizic in a case involving Mr. Downing and citing cases).

Nevertheless, Dr. Zizic has created invoices that are not helpful in determining a

reasonable number of hours. See Stricker v. Sec’y of Health & Hum. Servs., No.

18-56V, 2020 WL 1028901, at *4 (Fed. Cl. Spec. Mstr. Feb. 6, 2020) (finding in a

case with Mr. Downing that Dr. Zizic’s invoices contained such inflated amounts

of time that the invoices must be inaccurate and deferring any compensation to Dr.

ZiZzic).

Given the specific direction in the December 21, 2018 Instructions as well as

warnings in Sicard and other cases, it could be found that Mr. McCall has not met

his burden of establishing that any of the hours for which Dr. Zizic has invoiced

are reasonable. “The burden is not for the court to justify each dollar or hour

deducted from the total submitted by counsel. It remains counsel’s burden to prove

and establish the reasonableness of each dollar, each hour, above zero.” Mares v.

Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986). But, continued

submission of defective invoices from Dr. Zizic is likely to produce a penalty in

future cases. See Valdes v. Sec’y of Health & Hum. Servs., No. 99-310V, 2009

WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (warning an attorney that

penalties may be necessary to motivate him to submit requests for fees that do not

contain “erroneous, duplicative, or unreasonable entries”), mot. for rev. granted in

non-relevant part and denied in non-relevant part, 89 Fed. Cl. 415 (2009). Rather

than penalize Mr. McCall, Mr. Downing, and Dr. Zizic by awarding zero dollars

for Dr. Zizic’s work in the present case, the undersigned will attempt to fashion a

reasonable number of hours by reducing the number of hours by one-third. See

Fox v. Vice, 563 U.S. 836, 838 (2011) (indicating that trial courts may use “rough

justice” in awarding attorneys’ fees). In the undersigned’s experience, 85.4 hours

is a reasonable (and probably generous) amount of time for the work Dr. Zizic has

performed in this case.

Thus, a reasonable amount of compensation for Dr. Zizic is $34,156.60. Mr.

McCall is awarded costs in the amount of $35,377.07.

Ill. Conclusion

Accordingly, Mr. McCall is awarded: A lump sum of $71,202.17 in the

form of a check made payable to Edward McCall and Mr. McCall’s attorney,

Andrew D. Downing. This amount represents rermbursement of interim

attorneys’ fees and other litigation 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 is directed to enter judgment herewith.*

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

4 Entry of judgment can be expedited by each party’s filing of a notice

renouncing the right to seek review. Vaccine Rule 1 1(a).

10