McCulloch v. Sec'y of Health & Human Servs., 09-293V

CourtCourt of Federal Claims
Writing for the CourtGowen, Special Master
PartiesRACHEL MCCULLOCH, as parent and legal guardian of A.M., Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
Docket NumberNo. 09-293V,09-293V
Decision Date01 September 2015

RACHEL MCCULLOCH, as parent and legal guardian of A.M., Petitioner,

No. 09-293V

United States Court of Federal Claims

September 1, 2015


Interim Attorneys' Fees and Costs; Forum Hourly Rate; Boston Local Rate.

Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Debra A. Filteau Begley, United States Department of Justice, Washington, DC, for respondent.


Gowen, Special Master:

On May 11, 2009, Rachel McCulloch ("petitioner") filed a petition on behalf of her minor daughter ("A.M." or "minor child") for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 - 34 (2012)2 (the "Vaccine Act" or "the Program"). Petitioner alleged that as a result of receiving a Human Papillomavirus vaccine ("HPV" or "Gardasil") on August 16, 2007, her minor child developed a severe neurological injury. On December 7, 2009, petitioner filed an Amended Petition alleging that the HPV vaccine caused the

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minor child to develop encephalitis, intractable epilepsy, and subsequent developmental delays. See Amended Petition at Preamble.

A ruling on entitlement was issued on May 22, 2015, after a two-day hearing and extensive post-trial briefing by both parties. I rendered a decision finding that the petitioner was entitled to compensation for A.M.'s injuries. No damages award has been issued yet.

On March 18, 2015, petitioner filed a Motion for Interim Attorneys' Fees and Costs with a supporting memorandum ("Pet. Motion"). Petitioner requests $156,343.60 for attorneys' fees, $75,860.52 for costs, and $250.00 in costs personally incurred by the petitioner, Rachel McCulloch. See Pet. Motion at 1. Petitioner filed detailed time sheets and invoices in support of her motion. See generally Pet. Motion Tab A at 4-133. Petitioner also requests that I determine appropriate 2014 and 2015 hourly rates for Conway Homer & Chin-Caplan ("CHC") attorneys, law clerks, and paralegals, as petitioner and respondent are no longer operating under the fee agreement reached in Carr v. Secy' of HHS, No. 00-778V, 2006 WL 1073032 (Fed. Cl. Spec. Mstr. Mar. 29, 2006). See Pet. Memorandum for Interim Attorneys' Fees and Costs ("Pet. Memo") at 2. Petitioner argues that CHC is entitled to forum rates of Washington, D.C. Id.

On May 12, 2015, respondent filed a response opposing petitioner's motion for interim attorneys' fees and costs, "on the grounds that (1) an award of interim attorneys' fees and costs are [sic] not appropriate at this time, (2) the attorneys' hourly rates sought for the period of March 31, 2014 to the present are not reasonable, and (3) portions of the time expended by [petitioner's] counsel are excessive and/or unreasonable." Respondent's Opposition to Petitioner's Application for Attorneys' Fees and Costs ("Resp. Response") at 1. Respondent suggests that the petitioner's attorneys' fees be reduced by $77,892.60, and costs reduced by $1,857.00. See Resp. Response at 40-41. Respondent does not object to awarding $250.00 for costs expended by Rachel McCulloch.

On June 5, 2015, petitioner filed a reply in further support of her interim fee and cost requests. Petitioner argues that an award of interim attorneys' fees and costs is appropriate under Avera where, as in this case, the fees and costs are substantial and an award will prevent undue hardship. See Pet. Reply at 4-5 (citing Avera, 515 F.3d 1343, 1352 (Fed. Cir. 2008)). Petitioner further argues that the forum rates sought by counsel at CHC are reasonable as there is no significant difference between the local Boston hourly rate and the Washington D.C. forum rate. Id. at 7-10. With regard to the respondent's objections to portions of time spent by CHC on this case, petitioner argues for compensation for all their time, and further argues for compensation for all costs.

Petitioner filed a supplemental fee request on June 5, 2015 in the amount of $16,752.00 for preparing a reply to respondent's response. See Pet. Supp. Motion for Interim Attorneys' Fees and Costs ("Pet. Supp. Motion") at 1. On June 26, 2015, respondent filed a response to petitioner's supplemental fees motion and a sur-reply to petitioner's reply. Respondent maintained her position as indicated in her response, with the added argument that, based on recent forum rate decisions by Special Masters, all attorneys at CHC (and not just the partners as respondent initially argued in her response) should be awarded local rates because she contends there is a significant difference between forum and local rates based on her suggested forum and local rates for CHC. See Sur-Reply at 2-3. Respondent further argued that the rates under Carr are not supported by law or any evidence, and that those rates have "provided a windfall to CHC" over the years. Id. at 4-6.

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During a telephonic status conference on the issue of petitioner's interim fees and costs request on June 17, 2015, the parties indicated that they would like a decision on the record without a hearing or mediation. Accordingly, this matter is now ripe for a decision.

For the reasons set forth below, petitioner is awarded $165,326.60 for interim attorneys' fees and $74,183.52 for interim costs incurred up to and including June 5, 2015. Petitioner is also awarded $250.00 for costs personally incurred, pursuant to General Order No. 9.


A. Procedural History and Background of the Petition for Vaccine Program Compensation

This case was filed on May 11, 2009, and assigned to then-Chief Special Master Golkiewicz. In the eight months following the filing of the petition, petitioner filed extensive medical records detailing A.M.'s diagnosis and treatment of "encephalitis of unknown origin." See Pet. Exhibit ("Ex.") 1-20, 23.

Petitioner filed an Amended Petition on December 7, 2009, alleging that the HPV vaccine caused petitioner to develop encephalitis, intractable epilepsy, and developmental delay. See Amended Petition at Preamble. On March 9, 2010, respondent filed her Rule 4(c) Report against compensation under the Vaccine Act asserting petitioner had not produced any medical or scientific explanation of her claim sufficient to establish causation. Resp. Rule 4 at 10-11, docket no. 25, filed Mar. 9, 2010. Respondent further argued that none of A.M.'s treating physicians linked her condition to the HPV vaccination. Id. Accordingly, on April 8, 2010, petitioner was ordered to file an expert report addressing the Althen criteria. See Althen v. Sec'y of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005).

Petitioner filed a motion to stay the proceedings on September 7, 2010, stating that the medical literature and scientific evidence at that time did not adequately address the safety of the HPV vaccine, and that additional time was therefore needed "to allow the science surrounding the [HPV vaccine] to develop." Pet. Mot. to Stay Proceedings at 8. On October 7, 2010, respondent filed a response to petitioner's motion arguing against an indefinite stay of the proceedings. Resp. Response to Motion to Stay at 4. After holding a status conference on November 23, 2010, Chief Special Master Golkiewicz granted petitioner ninety days to file an expert report. Petitioner subsequently filed an expert report from Dr. Svetlana Blitshteyn, along with several exhibits of medical literature in support of the opinion on February 22, 2011. See Pet. Ex. 25-26.

The case was reassigned to Special Master Zane on March 16, 2011. Thereafter, respondent filed a responsive expert report along with medical literature from Dr. John Sladky on April 22, 2011. See Resp. Ex. A-G. Petitioner filed a supplemental expert report from Dr. Blitshteyn on August 16, 2011. See Pet. Ex. 27. Respondent filed a supplemental amended expert report from Dr. Arun Venkatesan on November 21, 2011. See Resp. Ex. H. Petitioner filed a supplemental report from Dr. Lawrence Steinman on October 10, 2012. See Pet. Ex. 34. Respondent filed a responsive supplemental expert report from Dr. Venkatesan on March 25, 2013. See Resp. Ex.

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After the parties indicated a willingness to engage in settlement discussions, Special Master Zane ordered periodic status reports on the progress of settlement discussions beginning on July 15, 2013. Chief Special Master Vowell was assigned this case on September 6, 2013. After several months of settlement negotiations, the parties filed a joint status report on December 20, 2013 stating settlement was not feasible. See Joint Status Report filed December 20, 2013.

Thereafter, I was assigned to this case on March 4, 2014 and an entitlement hearing was held on April 10 and 11, 2014. After extensive post hearing briefing by both parties, a decision finding that the petitioner was entitled to compensation for A.M.'s injury was entered on May 22, 2015.

B. Background of the Fee Dispute

Some background information is useful to the understanding of the issues presented in this matter. The firm of CHC, located in Boston, Massachusetts, has long been one of the most active firms in the representation of petitioners in the...

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