Callaghan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-1032V

Filed: May 5, 2022

UNPUBLISHED

EVONNE CALLAGHAN on behalf of

K.B., Special Master Horner

Petitioner, Attorney’s Fees and Costs;

v. Reasonable Rates; Expert Rates

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Anthony James Bucher, Gatlin Voelker, PLLC, Covington, KY, for petitioner.

Lara A. Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

On July 17, 2019, petitioner filed a claim under the National Childhood Vaccine

Injury Act, 42 U.S.C. § 300aa-10-34 (2012), on behalf of her minor daughter, K.B. (ECF

No. 1.) Petitioner alleged that K.B. suffered postural orthostatic tachycardia syndrome

(“POTS”) and neuropathic pain symptoms as the result of her June 28, 2018, Human

Papilloma Virus (“HPV”) and/or Hepatitis A vaccinations. (ECF No. 1.) After an initial

round of expert reports, petitioner moved for dismissal and her case was dismissed on

August 4, 2021. (ECF No. 38.)

Petitioner subsequently moved for an award of attorneys’ fees and costs on

August 19, 2021. (ECF No. 41.) Petitioner requests $111,895.36, representing

$17,962.69 in attorneys’ fees and $93,932.67 in costs. (Id. at 1.) Petitioner also

submitted an affidavit indicating she has personally incurred expenses of $1,700.00 in

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government

Act of 2002. See 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), petitioner has 14 days to identify and move to redact

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.

If the special master, upon review, agrees that the identified material fits within this definition, it will be

redacted from public access.

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proceeding on the petition. (ECF No. 41-8.) In response, respondent indicated that he

is satisfied that the statutory requirements for an award of attorneys’ fees and costs

have been met, but otherwise deferred to the special master regarding the amount of an

appropriate award. (ECF No. 43.) No reply was filed. For the reasons discussed

below, I award petitioner attorneys’ fees and costs in the reduced amount of

$66,583.67.

I. Legal Standard for Determining Reasonable Fees and Costs

Section 15(e)(1) of the Vaccine Act allows for the special master to award

“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). The

determination of the amount of reasonable attorneys' fees is within the special master's

discretion. See, e.g. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520

(Fed. Cir. 1993). Special Masters have “wide latitude in determining the

reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human

Servs., 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover, special masters are entitled to

rely on their own experience and understanding of the issues raised. Wasson v. Sec’y

of Health & Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991) aff’d in relevant part, 988

F.2d 131 (Fed. Cir. 1993) (per curiam). Special Masters use the lodestar approach to

determine what constitutes reasonable attorneys’ fees under the Vaccine Act. Avera v.

Sec'y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). The lodestar

approach involves first determining “an initial estimate of a reasonable attorneys' fee by

‘multiplying the number of hours reasonably expended 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)). Once a court makes that initial calculation, it may then make an

upward or downward departure to the fee award based on other specific findings. Id.

Petitioner “bears the burden of establishing the hours expended” and the

reasonableness of the requested fee award. Wasson, 24 Cl. Ct. at 484.

Notwithstanding that respondent has not raised any specific objections to petitioner’s

fee application, “the Special Master has an independent responsibility to satisfy himself

that the fee award is appropriate and [is] not limited to endorsing or rejecting

respondent’s critique.” Duncan v. Sec’y of Health & Human Servs., No. 99-455V, 2008

WL 4743493 (Fed. Cl. 2008); see also McIntosh v. Sec’y of Health & Human Servs.,

139 Fed Cl. 238, 250 (2018) (finding that the special master “abused his discretion by

failing to independently review the petitioner’s counsel’s motion for attorneys’ fees and

reimbursement of case costs to determine if the requested fees and costs were

reasonable.”). Furthermore, “the Special Master [has] no additional obligation to warn

petitioners that he might go beyond the particularized list of respondent’s challenges.”

Duncan, 2008 WL 4743493.

II. Analysis

a. Petitioner’s Counsel’s Hourly Rate

A reasonable hourly rate is “the prevailing market rate defined as the rate

prevailing in the community for similar services by lawyers of reasonably comparable

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skill, experience, and reputation.” Avera, 515 F.3d at 1348 (citation and quotation

omitted). In Avera, the Federal Circuit found that in Vaccine Act cases, the special

master should use the rate prevailing in the forum, i.e., Washington, D.C., in

determining an award of attorneys’ fees unless the bulk of the work is completed

outside of the forum and there is a “very significant difference” between the forum hourly

rate and the local hourly rate. 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt.

& Energy Recovery Spec. Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C.

Cir. 1999)).

For attorneys receiving forum rates, the decision in McCulloch v. Secretary of

Health & Human Services provides a further framework for consideration of appropriate

ranges for attorneys’ fees based upon the experience of the practicing attorney. 2 No.

09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of

Special Masters has since updated the McCulloch rates, and the Attorneys’ Forum

Hourly Rate Fee Schedules for 2015-2016 and 2017 through 2022 can be accessed

online. 3 Special masters have previously confirmed that attorneys in Covington,

Kentucky, (part of the Cincinnati-area legal market) are entitled to forum rates based on

analysis of a local rate index known as the “Rubin Committee” rates. Jones v. Sec’y of

Health & Human Servs., No. 09-293V, 2016 WL 7233938 (Fed. Cl. Spec. Mstr. Nov. 18,

2016); Windhorst v. Sec’y of Health & Human Servs., 2017 WL 4768125 (Fed. Cl. Spec.

Mstr. Sept. 27, 2017). Here, Mr. Bucher presents his existing Rubin Committee rates

adjusted downward by 18.3% to eliminate any risk premium as originally identified by

the McCulloch decision. (ECF No. 41, p. 8 (citing McCulloch, 2015 WL 5634342, at 17-

19).) Upon my review, this adjustment aligns Mr. Bucher’s hourly rate with the

appropriate rates as reflected on the Attorneys’ Forum Hourly Rate Fee Schedules. 4 I

find these hourly rates to be reasonable.

b. Petitioner’s Counsel’s Hours Expended

Special masters may rely on their experience with the Vaccine Program to

determine the reasonable number of hours expended. Wasson, 24 Cl. Ct. at 484.

2 After discussing the potential approaches to setting a forum rate and reviewing cases and material from

both within and without the Vaccine Program, the special master concluded that the following factors

should be considered: (1) the prevailing rate for comparable legal work in Washington, DC; (2) the

prevailing rate for cases in the Vaccine Program; (3) the experience of the attorney(s) in question within

the Vaccine Program; (4) the overall legal experience of the attorney(s); (5) the quality of work performed

by the attorney(s) in vaccine cases; and (6) the reputation of the attorney(s) in the legal community and

community at large. McCulloch, 2015 WL 5634323, at *17.

3 Each of the Fee Schedules for 2015 through 2022 can be accessed at

http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived

from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017 through 2022 are adjusted

for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”).

4 Actually, what Mr. Bucher did was bill at his normal Rubin Committee rates and reduce the total bill by

18.3%. Applying the reduction to the rate itself, Mr. Bucher effectively seeks a rate of approximately $380

per hour for work performed in 2018 (where the range for the appropriate tier is $324-$405), $395 per

hour for work performed in 2019 (where the range for the appropriate tier is $338-$422), and $411 per

hour for work performed in 2021 (where the appropriate range is $355-$444). (ECF No. 41, p. 7.)

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Special masters have previously reduced the fees paid to petitioners due to excessive

and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 10-103V,

2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10

percent due to excessive and duplicative billing); Raymo v. Sec’y of Health & Human

Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced

overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016).

Petitioner’s counsel “should make a good faith effort to exclude from a fee request

hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in

private practice ethically is obligated to exclude such hours from his fee submission.”

Hensley v. Eckhart, 461 U.S. 424, 434 (1983).

Based on my review of the billing records, they appear reasonable on the whole.

Especially in light of the overall amount involved, no reductions appear necessary.

c. Expert Costs

Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health &

Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both

‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both.

Not only must any request for reimbursement of attorneys’ fees be reasonable, so also

must any request for reimbursement of costs.”). An expert retained by the petitioner in

the Vaccine Program will only be compensated at a reasonable hourly rate, and the

petitioners have the burden of demonstrating that the expert costs incurred were

reasonable. Ceballos v. Sec'y of Health & Human Servs., No. 99–97V, 2004 WL

784910, at *13 (Fed. Cl. Spec. Mstr. Mar. 25, 2004). Reasonable expert costs are

calculated using the same lodestar method as is used when calculating attorneys’ fees.

Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009 WL 1838979, at *37

(Fed. Cl. Spec. Mstr. June 12, 2009).

Many Vaccine Program cases provide a framework for determining the

appropriate rate for experts in this program at rates up to $500 an hour. See O'Neill v.

Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *17 (Fed. Cl.

Spec. Mstr. Apr. 28, 2015) (awarding an hourly rate of $400 to an expert in neurology);

Dingle v. Sec'y of Health & Human Servs., No. 08-579V, 2014 WL 630473, at *8 (Fed.

Cl. Spec. Mstr. Jan. 24, 2014) (expert did not have “specialized knowledge and

experience” in the case to justify his requested hourly rate of $500 and, accordingly, his

rate was reduced to $400 per hour); Allen v. Sec'y of Health & Human Servs., No. 11-

051V, 2013 WL 5229796, at *2 (Fed. Cl. Spec. Mstr. Aug. 23, 2013) (approving a rate of

$500 per hour for an expert in neurology and immunology and who also had expertise in

a pertinent area to the issue in the case); Chen Bou v. Sec’y of Health & Human Servs.,

No. 04-1329V, 2007 WL 924495, at *10, *16 (Fed. Cl. Spec. Mstr. Mar. 9, 2007)

(awarding an expert a rate of $350 per hour based in part on his poor performance in

testifying at hearing but noting that “[b]ased upon the information submitted [ ], with the

appropriate set of facts the undersigned would have no issue with awarding the $500

requested by petitioner”)).

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This is not an absolute ceiling. Some more recent cases have accepted

increasing expert rates owing at least in part to the fact that expert rates in the program

have been relatively stable for a number of years. Williams v. Sec’y of Health & Human

Servs., No. 17-255V, 2022 WL 628716, at *4-5 (Fed. Cl. Spec. Mstr. Feb. 7, 2022)

(allowing $600 per hour as a reasonable rate for a hepatologist and noting prior

decisions awarding lower amounts “were issued about five years ago, suggesting the

relevant rates could be different today.”) However, the burden is on petitioner to justify

her requested expert rate. Simon v. Sec'y of Health and Human Servs., No. 05-941V,

2008 WL 623833, at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2008) (stating that “[t]he burden is

on the petitioner to demonstrate the reasonableness of the expert's requested hourly

rate.”).

In reality, it is rare for a special master to award an expert rate exceeding $500

per hour. See Green v. Sec'y of Health and Human Servs., No. 15-1447V, 2017 WL

6336776, at *4 (Fed. Cl. Spec. Mstr. Nov. 16, 2017) (noting that, “[e]ven in consideration

of [numerous] ... factors [used to determine a reasonable hourly rate], special masters

have declined to award more than $500 an hour to expert witnesses in the Vaccine

Program.”); Cruz ex rel. L.J.L. v. Sec'y of Health and Humans Servs., No. 14-1119V,

2020 WL 1816094, at *6 (Fed. Cl. Spec. Mstr. Mar. 20, 2020) (noting in a May 4, 2018

order that “[t]o date, special masters have not awarded more than $500 [per] hour to

highly qualified specialists in such fields as neurology, neuro-immunology, pediatrics,

immunology, pathology, and rheumatology. This maximum rate is generally reserved for

experts who are exceptionally well-qualified, have developed experience in the Vaccine

Program, and who have provided thorough and detailed analyses.”). Factors to

consider in setting an expert hourly rate include the expert's prior experience in the

program, efficiency, effectiveness, and particular expertise. See e.g., Smith v. Sec'y of

Health & Human Servs., No. 18-43V, 2020 WL 1243238, at *9 (Fed. Cl. Spec. Mstr.

Feb. 20, 2020) (“Rather, the reasonableness of any given expert's hourly rate will be

based on individual factors such as credentials, particular expertise, efficiency, and

effectiveness.”); Lewis v. Sec'y of Health & Human Servs., 149 Fed. Cl. 308, 321 (2020)

(“With respect to an expert's rate, the inquiry is whether the rate is that prevailing in the

community for similar services by experts of reasonably comparable skill, experience,

and reputation.”) (citing Frantz v. Sec'y of Health & Human Servs., 146 Fed. Cl. 137,

145 (2019)).

Petitioner’s sole expert in this case was Dr. Michael Henrickson. Dr. Henrickson

billed 117.3 hours at a rate of $750 per hour to produce one report in this case. (ECF

No. 41-9, p. 4.) He billed a further 4.67 hours at the same rate to assemble his

reference material. (Id. at p. 5.) He billed a further 1.83 hours at the same rate to

review the government’s expert’s reports. (Id. at 6.) In sum, Dr. Henrickson billed 123.8

hours totaling $92,910.00. In her motion, petitioner requests full reimbursement of Dr.

Henrickson’s invoice and asserts that all of the incurred costs were reasonable;

however, petitioner does not offer any specific argument to support the contention that

either Dr. Henrickson’s hourly rate or the hours expended were reasonable. (ECF No.

41.)

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Dr. Henrickson is a board-certified pediatric rheumatologist in practice since the

mid-1980’s. (Ex. 23, pp. 1-2.) His curriculum vitae does not reveal any special training

or research interest in postural orthostatic tachycardia syndrome (“POTS”), neuropathic

pain, or dysautonomia generally; however, he did have a prior medical consultation with

K.B. (Exs. 23, 19, p. 1.) Review of prior caselaw does not reveal any instance in which

Dr. Henrickson previously participated as an expert in this program. Nothing in the

record of this case suggests that Dr. Henrickson has prior experience as an expert

witness outside of this program or that he has any established track record of being

compensated for expert consultation at his requested hourly rate. Additionally, given

the hours billed, it does not appear that Dr. Henrickson was particularly efficient.

Rheumatologists in particular have been compensated between $400-$500 per hour for

their work in this program as recently as the last two years. Apuzzo v. Sec'y of Health &

Human Servs., No. 17-1915V, 2021 WL 4305223, at *3 (Fed. Cl. Spec. Mstr. Aug. 23,

2021); Stricker v. Sec'y of Health & Human Servs., No. 18-56V, 2020 WL 1028901, at

*4 (Fed. Cl. Spec. Mstr. Feb. 6, 2020). In consideration of the record of this case and

the factors discussed above, I conclude that $400 per hour is a reasonable hourly rate

for Dr. Henrickson.

Regarding the hours billed, “[t]he question is not whether [the expert] expended

the numbers of hours claimed, but whether it was necessary or reasonable for him to do

so.” Baker v. Sec’y of Health & Human Servs., No. 99-653V, 2005 WL 6122529, at *4

(Fed. Cl. June 21, 2005) (quoting Wasson v. Sec’y of Health & Human Servs., No. 90-

208V,1991 WL 135015, at *3 (Fed. Cl. Spec. Mstr. July 5, 1991), remanded, 24. Cl. Ct.

482, 483 (1991), aff’d, 988 F.2d 131 (Fed. Cir. 1993)). “One test of the

‘reasonableness’ of a fee or cost item is whether a hypothetical petitioner, who had to

use his own resources to pay his attorney for Vaccine Act representation would be

willing to pay for such expenditure.” Hardy v. Sec’y of Health & Human Servs., No. 08-

108V, 2016 WL 4729530, at *1 (Fed. Cl. Spec. Mstr. Aug. 16, 2016) (citing Riggins v.

Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319819, at *3 (Fed. Cl. Spec.

Mstr. June 15, 2009); Sabella v. Sec’y of Health & Human Servs., No. 02-1627, 2008

WL 4426040, at *28 (Fed. Cl. Spec. Mstr. Aug. 29, 2008)). The Federal Circuit has

ruled that “[h]ours that are not properly billed to one’s client also are not properly billed

to one’s adversary pursuant to statutory authority.” Saxton, 3 F.3d at 1521.

Additionally, counsel have an obligation to monitor expert fees and costs. Simon, 2008

WL 623833, at *2.

Although the 117.3 hours included in Dr. Henrickson’s initial invoice appears very

high for a single report, it is notable that the report in question was long and

comprehensive, the report itself totaling 56 pages of medical commentary (albeit double

spaced). Additionally, Dr. Henrickson accompanied his report with a separate 22-page

summary of petitioner’s medical history and a further 20-page document including

graphs, charts, and figures that helped to illustrate specific points within his report.

Many of these demonstratives were produced by Dr. Henrickson himself rather than

merely being copied from other sources and they were helpful in understanding his

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medical opinion. In sum, the total billing comes out to a little over an hour per page

produced, which does not seem to be unreasonable. Moreover, none of Dr.

Henrickson’s specific billing entries appears facially problematic. To the extent a more

experienced expert might have achieved the same result in a shorter period, or may

have produced an equally effective but more streamlined report, I have already

accounted for that in setting Dr. Henrickson’s hourly rate.

However, Dr. Henrickson also subsequently issued a second invoice billing an

additional 4.67 hours for an after-the-fact compilation of the medical literature

supporting his opinion. (ECF No. 41-9, p. 5.) Because Dr. Henrickson’s previous bill

encompassed his medical research, I do not see justification for this additional billing as

it would have been far more reasonable for Dr. Henrickson to bookmark, download,

copy, or otherwise retain the relevant articles as he was conducting his research. And,

in any event, it is not readily apparent that the mere retrieval and compilation of this

previously identified literature required the services of an expert billing at his full hourly

rate. Accordingly, I will not award reimbursement of Dr. Henrickson’s second invoice

reflecting 4.67 hours of work.

In total, I award petitioner reimbursement for Dr. Henrickson’s work in the amount

of $47,652.00 (119.13 hours at $400 per hour).

d. Additional Costs

Apart from the costs associated with securing Dr. Henrickson’s opinion,

petitioner’s counsel seeks reimbursement of the following: $400 for the petition filing

fee, $83 for travel mileage, $22.29 (total) in postage, $85.63 (total) to obtain medical

records, and $431.75 for in-house photocopying. (ECF No. 41-1, p. 6.) With regard to

medical records, only a single charge from the Cleveland clinic has been documented.

(Compare ECF No. 41-1, and ECF No. 41-9.) Thus, I will not reimburse the $53.69 in

undocumented medical record costs. Accordingly, $968.98 in additional expenses

beyond those associated with the expert report will be reimbursed.

Additionally, petitioner has filed an affidavit indicating that she “paid $1,700.00 to

my attorney toward the payment of expenses in conjunction with the pursuit of the

vaccine injury claims.” (ECF No. 41-8.) No further explanation or documentation was

provided. 5 Thus, based on the existing record, I cannot conclude that the money

petitioner paid to her counsel represented payment of any additional expenses. No

separate invoice has been filed to support petitioner’s statement or to indicate whether

or how petitioner’s funds were expended by counsel. Nor have any separate billing

records been provided showing client funds were used to pay such expense. Counsel’s

billing invoice documenting costs associated with this case does not otherwise provide

clarification. (ECF No. 41-1.) Because the affidavit was filed by counsel, I accept it as

an agreed upon fact between petitioner and her counsel. However, without additional

5I provided petitioner an opportunity to provide additional documentation. (See Scheduling Order (Non-

PDF), 4/22/2022).) However, no action was taken.

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documentation, if the money petitioner paid to counsel is to be reimbursed, then it must

be deducted from the costs payable to counsel. Thus, costs in this case will be

reimbursed and distributed as follows: $46,920.98 payable to petitioner and petitioner’s

counsel jointly ($47,652.00 + $968.98 - $1,700.00) and $1,700.00 payable solely to

petitioner.

III. Conclusion

In light of the above, petitioner’s application for attorneys’ fees and costs is

GRANTED with reductions and petitioner is awarded $66,583.67 as follows:

• a lump sum in the amount of $64,883.67, representing

reimbursement for $17,962.69 in attorneys’ fees and $46,920.98 in

attorneys’ costs, in the form of a check made payable to petitioner

and her counsel, Anthony James Bucher, Esq.; and

• a lump sum in the amount of $1,700.00, representing reimbursement

of personal costs, in the form of a check made payable to petitioner.

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. 6

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

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Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.

Vaccine Rule 11(a).

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