J.M. v. Sec'y of Health & Human Servs.
| Decision Date | 13 February 2018 |
| Docket Number | 02-10V |
| Parties | J.M. and V.M., in their own right and as Guardians of their son, V.J.M., Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | Court of Federal Claims |
PUBLISHED
Attorneys' Fees & Costs; Appropriate Hourly Rates; Vague, Excessive, and Block Billing; Failure to Sufficiently Document Costs; Fees Requested for Research; Payment for Travel and Administrative Costs.
John F. McHugh, Law Office of John McHugh, New York, NY, for petitioners.
Ann Donohue Martin, U.S. Department of Justice, Washington, D.C., for respondent.
On January 4, 2002, J.M. and V.M. ("petitioners") filed a petition for compensation under the National Vaccine Injury Compensation Program2 ("the Program"), as the legal representatives of their son, V.J.M., in which they alleged that the measles, mumps and rubella ("MMR") vaccination V.J.M. received in January 1999 caused him to develop autism or autism spectrum disorder ("ASD").3
Petitioners' first motion for interim attorneys' fees and costs was filed on December 8, 2015, and awarded fees and costs from the beginning of the case up until 2014. [redacted] v. Sec'y of Health & Human Servs., No. 02-10V, 2016 WL 720969 . In their interim fee request, petitioners requested a total of $555,687.00, including $465,060.00 in attorneys' fees and $90,627.00 in costs. Id. at *2. In that Decision, petitioners were awarded a total of $318,269.31, including $305,492.75 in attorneys' fees and $12,326.56 in costs. Id. The undersigned increased Mr. McHugh's hourly rate to as much as $400.00 per hour for work performed in 2014, in accordance with the rates set forth in McCulloch v. Sec'y of Health & Human Servs., 09-293V, 2015 WL 5634323 , but reduced Mr. McHugh's overall invoice by nearly 35 percent due to his billing for administrative work, fundraising, travel time, block billing, and for the number of vague, excessive, and/or irrelevant billing entries. [redacted], 2016 WL 720969, at *6-8. The undersigned also reduced petitioners' costs by over 86 percent, as many costs were not substantiated and invoices were not provided by petitioners' experts.4 Id., at *18-21.
On June 7, 2017, petitioners filed a second motion for interim fees and costs. Petitioners' Application ("Pet. App.") dated June 7, 2017 (ECF No. 279). Petitioners requested an award of $320,423.00 in attorneys' fees for work performed by Mr. McHugh from February 2015 through November 2016, $9,719.00 for paralegal work performed by Mr. McHugh, and $580,991.52 in costs incurred during the same time period, as well as costs for petitioners' expert witnesses. Pet. App. at 1, 2. Thus, in their second motion, petitioners' interim fees request amounted to $911,133.52.5 Id. Respondent filed his response to petitioners' motion for interim fees and costs on June 21, 2017, leaving the appropriate amount of an award of attorneys' fees and costs to the undersigned's discretion. Respondent's Response ( ) dated June 21, 2017 (ECF No. 280). Petitioners did not file a reply.
Since the filing of petitioners' motion for interim fees and costs, on August 31, 2017, the undersigned issued a decision dismissing this case, as well as the 22 other cases in the J.M. et al. omnibus. Decision dated Aug. 31, 2017 (ECF No. 281). Judgment entered on October 5, 2017, and the case is now closed. On October 12, 2017, the undersigned ordered petitioners to file a final application for attorneys' fees and costs, which they did on November 13, 2017. Petitioner's Supplemental Motion ("Pet. Supp. App.") dated Nov. 13, 2017 (ECF No. 292). This supplemental motion requests an additional $22,808.00 in attorneys' and paralegal fees, much of which is for time spent preparing a response to the undersigned's order requesting additional clarification and documentation regarding petitioners' fee application. Respondent did not file a response.
On September 25, 2017, the undersigned ordered petitioners to file additional information clarifying their motion for attorneys' fees and costs. Order dated Sept. 25, 2017 (ECF No. 285). Specifically, the undersigned requested that petitioners clarify several ambiguities within theirfee request, including invoices for FedEx, copies, payments made to Don Ciccone, an additional invoice from Ms. Doan clarifying the number of hours she spent preparing to testify at the hearing, and an explanation of the expenses for Dr. Kinsborne, who did not testify or submit an expert report in this matter. Id. at 1-2. On October 10, 2017, petitioners filed a status report and additional documentation responsive to the undersigned's request for additional information. The status report provided an explanation of petitioners' FedEx charges and copying charges by Perfect Imaging. Pet. Status Rep. dated Oct. 10, 2017 (ECF No. 287) at 1-2. The status report also included an additional claim for compensation for Ms. Ngoc Doan, Dr. Deisher's research assistant, but it did not provide requested information regarding how much time Ms. Doan spent preparing to testify at the hearing. Id. at 3. Petitioners provided an invoice for the services of Dr. Marcel Kinsborne, as well as receipts from FedEx and Perfect Imaging. Id.
In summary, petitioners now request a total of $933,958.52 in attorneys' fees and costs. Pet. App. at 2; Pet. Supp. App. at 2. This matter is now ripe for adjudication on petitioners' motions for fees and costs. For the reasons set forth below, the undersigned awards petitioners $202,993.80 in attorneys' fees and $142,064.12 in attorneys' costs, for a total award of $345,057.92.6
Under the Vaccine Act, a special master shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). When compensation is not awarded, the special master "may" award reasonable attorneys' fees and costs "if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." Id. at §15(e)(3). Respondent has not objected to petitioners' application for fees and costs on the basis of a lack of good faith or reasonable basis. The undersigned finds that petitioners brought their petition in good faith and with a reasonable basis, and therefore will award reasonable attorneys' fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines "an initial estimate of a reasonable attorneys' fee by 'multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348.
Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that are "excessive, redundant, or otherwise unnecessary." Saxton v. Sec'y of Health & HumanServs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is "well within the special master's discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done." Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009).
A special master need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its attorneys to determine the reasonable number of hours expended. Wasson, 24 Cl. Ct. 482, 484, (Fed. Cl. Nov. 19, 1991) rev'd on other grounds and aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as "[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications." Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
i. Hourly Rates
Petitioners request compensation for Mr. McHugh in the amount of $425.007 per hour for work performed in 2015, $430.00 per hour for work performed in 2016, and $435.00 per hour for work performed in 2017.8 Pet. App. at 3; Pet. Supp. App. at 2. In support of this rate, Mr. McHugh states that he has 49 total years of litigation experience, 19 of which are in the Vaccine Program. Id. Mr. McHugh based his hourly rate increases on the Office of Special Masters' 2015-2017 Fee Schedules, which specify hourly rate ranges for attorneys based on the standards set forth in McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 .9
In her previous decision on interim fees and costs in this case, the undersigned awarded Mr. McHugh $400.00 per hour for work he performed in 2014. [redacted], 2016 WL 720969. However, other special masters have awarded Mr. McHugh only $364.00 per hour for work performed in 2015....
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