In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-848V
Filed: January 10, 2018
* * * * * * * * * * * * * * *
SHEILA GOINS, * UNPUBLISHED
*
Petitioner, *
v. * Decision on Attorneys’ Fees and Costs;
* Reasonable Basis; Proof of Vaccination;
SECRETARY OF HEALTH * Hourly Rate
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Leah Durant, Esq., Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner.
Alexis Babcock, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On August 10, 2015, Sheila Goins (“Ms. Goins,” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that
she developed Guillain-Barre Syndrome as a result of receiving an influenza vaccination on or
before August 8, 2012. See Petition (“Pet.”), ECF No. 1. On January 17, 2017 petitioner filed a
motion for a ruling on the record. See Motion, ECF No. 31. On March 10, 2017, the undersigned
issued a Decision dismissing petitioner’s claim. See Decision, ECF No. 33. Pursuant to Section
15(e) of the Vaccine Act, petitioner’s counsel now seeks an award of attorneys’ fees and costs.
After careful consideration, the undersigned determined to grant the request in part for the
reasons set forth below.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the
E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). 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 42 U.S.C. § 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, I will delete such material from public access.
2
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).
1
I. Facts
A. Petitioner’s Health Prior to the Alleged Receipt of Vaccination
Petitioner was born on May 3, 1967. She had a history of chronic migraines, chronic back
pain, left knee pain/osteoarthritis, right leg and foot paresthesias, chest pain, hypertension,
hyperlipidemia, gastroesophageal reflux disorder (“GERD”), anxiety, depression, fatigue, and
bipolar disorder. She smoked about a pack a cigarettes per day for 27 years. See generally Pet.
Ex. 4 at 31; 42-63.
On December 9, 2011, petitioner presented to her primary care physician, Dr. Campbell,
complaining of chronic back pain, migraines, fatigue, sore throat, mild cough, and
gastrointestinal symptoms. She received an influenza vaccine. Pet. Ex. 4 at 2; 36-37.
On January 11, 2012, petitioner presented to Dr. Campbell complaining of right foot pain
that gradually became worse over the past five days before becoming “very severe last night.”
Pet. Ex. 4 at 33-34. Petitioner complained of pain in her right great toe and pain all over. Id. She
complained that “even her skin hurts” and that the pain went “down to the muscles and even the
bones.” Id.
On March 21, 2012, petitioner presented to Dr. Campbell for follow up of acute and
chronic issues. She had a sore throat with occasional shortness of breath, dry cough, nausea,
fever, and headaches with muscle aches. She was prescribed Augmentin and Tylenol for pain,
and told to rest. Id. at 30-31.
On August 5, 2012, petitioner presented to the emergency room at Skyridge Medical
Center (“Skyridge”) with severe abdominal pain. She was admitted and diagnosed with
cholelithiasis and cholecystitis. On August 6, 2012, petitioner had emergency gallbladder
surgery. There were no complications, and she was discharged on August 8, 2012 with
instructions to follow up the week after surgery. See generally Pet. Ex. 7.
B. Petitioner’s Health After the Alleged Receipt of Vaccination
Petitioner alleged that she received an influenza vaccination at the time of her discharge
from Skyridge on August 8, 2012. Pet. at ¶¶ 1, 3-4; Pet. Ex. 8 at 1.
On August 16, 2012, petitioner presented to Dr. Knabb for a follow up appointment as
directed. Pet. Ex. 7 at 1. The records state that the petitioner is “doing well.” Id. at 2. Her incision
sites were healing, and she had a scattered rash which was attributed to IV antibiotics that she
received at the hospital. Petitioner complained of discomfort in her mouth, which was thought to
be thrush. Id. Petitioner did not complain of fever, disorientation, discoordination, joint pain,
weakness, or dizziness. She had normal range of motion. Id. She was encouraged to continue
using Benadryl for the rash. Id. at 3.
On August 20, 2012, petitioner presented to Dr. Petersen at her primary care practice.
Petitioner was 9 days post-surgery and complaining of sinus pressure and congestion, irritation
2
of the eyes, dizziness, and constipation. Pet. Ex. 4 at 26-28. Petitioner denied neurologic
changes, seizures, numbness, weakness, tingling, or vision problems. Id. at 26. Dr. Petersen’s
assessment was hypertension, constipation status post cholecystectomy, and allergic rhinitis. Id.
at 26-27. She was instructed to restart her blood pressure medication. Id. at 26.
On August 24, 2012, petitioner returned to Skyridge complaining of body pain, general
fatigue, and numbness in her feet that had progressed up to her knees. Pet. Ex. 5 at 5. Bloodwork
and a CT scan were unremarkable. Petitioner was transferred to Memorial Hospital and admitted
to the ICU for possible Guillain-Barre syndrome (“GBS”). Petitioner denied any recent
vaccinations. Id. She was discharged from Memorial Hospital on September 1, 2012 with a
diagnosis of GBS. Id. at 70.
II. Procedural History
The petition was filed on August 10, 2015, on the eve of the statute of limitations.
Petition, ECF No. 1. The petition stated that petitioner contacted counsel on August 5, 2015,
shortly before the statute of limitations on petitioner’s claim was set to expire. Id. at 2.
The initial status conference was held on October 1, 2015. Scheduling Order, ECF No. 8.
Counsel for petitioner advised that complete medical records could be filed by October 2, 2015.
Id. at 1. Respondent was ordered to file a status report noting any outstanding records and
indicating his position by November 16, 2015. Id.
This case was reassigned to me on October 19, 2015. ECF No. 11. A status conference
was held on November 18, 2015, during which petitioner’s counsel indicated that she had been
unable to locate petitioner’s vaccination record. Scheduling Order at 1, ECF No. 13. Petitioner’s
counsel requested additional time to either produce proof of vaccination or file a motion for a
ruling on the record or a voluntary dismissal. Id. Petitioner was ordered to file a status report by
December 18, 2015, regarding her ability to provide documentation of her vaccination. Id.
Petitioner filed a status report (“Pet. S.R.”) on December 18, 2015, stating that she was
still gathering proof of vaccine administration. Pet. S.R. at 1, ECF No. 14. Petitioner was ordered
to file another status report in thirty days. Non-PDF Order, issued Dec. 21, 2015.
On January 12, 2016, petitioner filed a status report as well as affidavits from petitioner,
her daughter, her mother, and a family friend, and stated that all four affiants “were present at the
time petitioner’s flu shot was administered.” Pet. S.R. at 1, see also Pet. Ex. 8-11, ECF No. 15.
Petitioner’s counsel asserted “that the aforementioned affidavits conclusively demonstrate that
petitioner did in fact receive the flu vaccination on the date of her discharge from the hospital”
and indicated that all four witnesses would be available to testify at a fact hearing on this matter.
Pet. S.R. at 1, ECF No. 15.
A status conference was held on February 8, 2016. Scheduling Order, ECF No. 16.
Concerned about the lack of medical records documenting the administration of the vaccine,
respondent’s counsel noted that the case may lack a reasonable basis. Id. at 1. Petitioner was
3
ordered to file the hospital billing records, including all charges for August 8, 2012, which, it
was expected, would show whether petitioner was charged for an influenza vaccine. Id.
Petitioner filed a Motion for Extension of Time within which to produce the documents
on March 10, 2016, which was granted. ECF No. 17.
On March 30, 2016, petitioner filed the billing records from the hospital which failed to
show that petitioner received any vaccine during that hospitalization. Pet. Ex. 12-13, ECF No.
18. At a status conference held on May 17, 2016, the parties discussed the billing records.
Scheduling Order at 1, ECF No. 20. The undersigned noted that there was no proof of
vaccination in the record as a whole. Id. Petitioner’s counsel requested a fact hearing so that
petitioner could testify to her receipt of the vaccine. While respondent’s counsel did not object to
a hearing, she reserved the right to contest reasonable basis and mentioned that petitioner’s fees
and costs, particularly for a hearing, may not be reimbursed. Id. Petitioner was ordered to file
statements from her treating physicians regarding whether she received the influenza vaccine. Id.
at 2. Respondent stated that there were no influenza vaccines available in August of 2012.
Respondent was ordered to file documentation about the influenza vaccine schedule for 2012 to
2013 from the CDC. Id. Finally, the parties were ordered to file a Joint Status Report regarding
potential hearing dates and locations. Id.
On June 13, 2016, respondent filed the “Seasonal Influenza Vaccine Dose Distribution
Schedule for 2012-13,” which indicated that the CDC began distributing the seasonal influenza
vaccine on September 7, 2012. Resp. Ex. A at 2, ECF No. 21.
Petitioner filed a joint status report (“Pet. J.S.R.”) on July 18, 2016, advising that the
parties were available for a fact hearing during April of 2017, and proposed that the hearing take
place in Chattanooga, Tennessee. Pet. J.S.R. at 1, ECF No. 22.
Petitioner requested and received two extensions of time within which to file statements
from her treating physicians regarding her receipt of the influenza vaccine before filing a motion
to issue a subpoena on October 2, 2016, which was granted. See MFET, ECF No. 23; MFET,
ECF No. 24; Motion to Issue Subpoena, ECF No. 26; Order authorizing subpoena, ECF No. 27.
On October 17, 2016, petitioner’s counsel filed a status report advising that the subpoena
had been served on Tennova HealthCare, and a representative from Tennova contacted
petitioner’s counsel to inform her that the hospital did not have any record of petitioner receiving
an influenza vaccination during August of 2012. Pet. S.R. at 1-2, ECF No. 28. Furthermore, the
representative advised petitioner’s counsel that the hospital did not administer any influenza
vaccines to anyone during the month of August 2012. Id. at 2. Petitioner filed the records from
Tennova Health Care, confirming the foregoing, as Pet. Ex. 14. ECF No. 29. Following a status
conference held on November 22, 2016, petitioner was ordered to file a motion for a ruling on
the record by January 27, 2017. Scheduling Order at 1, ECF No. 30.
Petitioner filed a Motion for Judgment on the Administrative Record on January 27,
2017. ECF No. 31. A decision was issued dismissing the petition on March 10, 2017. Decision,
ECF No. 33.
4
On October 8, 2017, petitioner filed a Motion for Attorneys’ Fees and Costs. Motion for
Fees, ECF No. 36. Petitioner requests attorneys’ fees in the amount of $23,626.00, and attorneys’
costs in the amount of $2,222.39, for a total amount of $25,848.39. Id. at 1. In accordance with
General Order #9, petitioner’s counsel represents that petitioner did not incur any out-of-pocket
expenses. Id.
On October 19, 2017, respondent filed a response to petitioners’ Motion for Fees,
submitting that, because “petitioner was never able to establish that she received a covered
vaccination…the Petition lacks reasonable basis.” Response at 2, ECF No. 37.
Petitioner filed a reply on October 26, 2017, arguing that the four affidavits filed by
petitioner constituted sufficient proof of vaccination so as satisfy the reasonable basis
requirement. Reply at 12-14, ECF No. 38. Petitioner further requested supplemental attorneys’
fees in the amount of $4,356.50 for her reply. Reply at 16.
This matter is now ripe for decision.
III. Applicable Law and Analysis
A. Good Faith and Reasonable Basis
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys’ fees
is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner
need not prevail on entitlement to receive a fee award as long as the petition was brought in
“good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1).
Reasonable basis is typically viewed as “an objective standard determined by the ‘totality
of the circumstances.’” Chuisano v. United States, 116 Fed. Cl. 276, 286 (2014) (citations
omitted). It does not look to the “likeliness of success but more to the feasibility of the claims.”
Id. at 285. “This totality of the circumstances assessment should take into account evidence
available at the time a claim is filed and evidence that becomes available as the case progresses.”
Cottingham v. Sec’y of Health & Human Servs., 2017 WL 4546579, at *7 (Fed. Cl. 2017).
Accordingly, a case may have a reasonable basis when filed, but may lose reasonable basis
during the pendency of the case. Petitioner’s counsel has “an obligation to voluntarily dismiss a
Vaccine Act claim once counsel knows or should know a claim cannot be proven.” Cottingham
at *7-8.
“Special masters have historically been quite generous in finding reasonable basis for
petitions.” Turpin v. Sec’y of Health & Human Servs., 2005 WL 1026714 at *2 (Fed. Cl. Spec.
Mstr. Feb. 10, 2005). Typically, reasonable basis is not found when “fundamental inquires [sic]
are not made.” Di Roma v. Sec’y of Health & Human Servs., No. 90-3277, 1993 WL 496981, at
*2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). To ensure reasonable basis, an attorney should make a
pre-filing inquiry into the claim, and it must be supported by medical records or medical opinion.
Mack v. Sec’y of Health & Human Servs., No. 15-149V, 2017 WL 5108680, at *3 (Fed. Cl. Spec.
Mstr. Sep. 28, 2017) (internal citations omitted). While leniency has been shown when the
5
statute of limitations was about to expire, counsel may not use an impending statute of
limitations deadline to establish reasonable basis for a claim. Simmons v. Sec’y of Health &
Human Servs., 2017 WL 5146179 at *3 (Fed. Cir. 2017).
Respondent argues that the petition lacked reasonable basis, noting that “petitioner never
submitted proof that she had received a covered vaccination, as is required by the Vaccine Act.”
Response at 2. Respondent further noted that “although this concern was discussed at length
during a status conference in May 2016 – and respondent specifically questioned whether the
petition had a reasonable basis to proceed – petitioner continued to advocate for a fact hearing on
this case.” Id.
Petitioner argued that she had satisfied reasonable basis under both the “totality of
circumstances” test from Chuisano and an “evidence-based” test, referring to the Federal
Circuit’s holding in Perreira that “special masters have discretion to find a lack of reasonable
basis where a petitioner’s claim is based solely on ‘unsupported speculation.’” Reply at 6, 7, 11;
Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). Petitioner
based this assertion on (1) the fact that the petition was filed on the eve of the statute of
limitations; (2) counsel’s continued efforts to procure proof of vaccination; and (3) the four
affidavits submitted by petitioner, her daughter, her mother, and her friend.
The petition in this matter was filed on the eve of the statute of limitations. The billing
records show that petitioner’s first contact with Ms. Durant took place on August 7, 2015.3 See
Motion for Fees, Ex. 1, at 1. Based on the facts contained in the Petition as provided by
petitioner, it is understandable why counsel filed this claim without a thorough pre-filing inquiry.
I agree with petitioner that this claim initially had a reasonable basis when it was filed.
However, as time progressed, the ability to show proof of vaccination began to wane.
During a status conference on November 18, 2015, Ms. Durant requested additional time to
either produce proof of vaccination or file for a voluntary dismissal. That time was granted.
When the medical records failed to support receipt of a vaccination, petitioner instead filed
affidavits from herself, her daughter, her mother, and a friend. These affidavits were discussed in
my Decision, noting that although petitioner’s daughter stated that she was present when
petitioner received the influenza vaccine, petitioner’s mother and petitioner’s friend admitted that
they were not in the room. Decision at 6.
At the next status conference, held on February 8, 2016, respondent’s counsel expressed
concerns about reasonable basis. Ms. Durant was insistent in continuing her quest to secure proof
of the vaccination, requesting time to secure billing records. See generally, Pet. Ex. 12-13.
Despite a lack of evidence and a long discussion about proceeding any further in this matter, Ms.
Durant demanded a fact hearing during a status conference on May 17, 2016. Respondent’s
3
The Petition states that petitioner contacted counsel on August 5, 2015. Pet. ¶9. In her Reply,
Ms. Durant clarified that petitioner “first contacted counsel by phone outside of regular office on the
evening of Wednesday, August 5, 2015. After multiple failed return phone calls, counsel made contact
with petitioner on the morning [of] Friday, August 7, 2015. A formal intake of the claim was completed at
that time.” Reply at 2 fn. 1.
6
counsel cautioned Ms. Durant that petitioner’s fees and costs may not be reimbursed for a fact
hearing, or this matter in general.
On June 13, 2016, respondent filed documentation from the CDC showing that the
influenza vaccines for the 2012-2013 season were first distributed in September of 2012 –
several weeks after the date that petitioner allegedly received the influenza vaccine. See Resp.
Ex. A. Nevertheless, Ms. Durant continued to advocate for a fact hearing, submitting a status
report with potential dates for a hearing to be held in Tennessee, despite being told that for cost
purposes, the hearing would be held by video conference in Washington, D.C. She also
subpoenaed the hospital for any records relating to petitioner’s receipt of the flu vaccine. Finally,
after receiving a response from the hospital that they did not administer any flu vaccines in
August of 2012, petitioner’s counsel agreed to dismiss the case.
In her Motion for a Ruling on the Administrative Record, petitioner admitted my decision
found that “the affidavit evidence was insufficient to overcome records that specifically indicated
that petitioner did not receive a vaccine…after weighing all of the evidence in the record;”
nevertheless, she continued to argue that the affidavits constituted sufficient evidence to meet the
evidence-based standard for reasonable basis. Reply at 12. Petitioner cited Alger v. Sec’y of
Health & Human Servs., No. 89-31V, 1990 WL 293408, at *2, 7 (Fed. Cl. Spec. Mstr. Mar. 14,
1990), which held that “lay testimony is a sufficient basis for finding that a vaccine was
administered as alleged.” Reply at 13. Petitioner asserted, “[t]he fact that the special master
found the affidavits to be unpersuasive does not mean that the case lacked a reasonable basis
based on a failure to present credible evidence.” Id. at 14.
Pursuant to Perreira, reasonable basis may be denied where the claim is based on
“unsupported speculation.” Perreira, 33 F.3d at 1377. Here, the witness affidavits were given
little value because there was absolutely no evidence of vaccination found in petitioner’s medical
records,4 the Medicare billing records, or the hospital’s internal records to support that petitioner
received an influenza vaccine, or any vaccine, in August of 2012. Additional CDC records
confirmed that the influenza vaccine was not yet released at that time.
Petitioner argues that she has met reasonable basis based on the totality of the
circumstances by making reasonable efforts to locate the vaccine record, investigating other
ways of proving vaccine administration, and following orders issued by the special master. Reply
at 11. However, by the spring of 2016 it became clear that none of the records produced showed
even a scintilla of evidence in support of petitioner having received an influenza vaccine or any
vaccine. Despite these concerns, petitioner continued to advocate for a fact hearing, relenting
only when informed by the hospital that no influenza vaccinations had been administered to
petitioner or anyone in August of 2012. Based upon the circumstances as detailed above,5 I find
4
Upon presenting to the hospital for GBS symptoms, petitioner herself denied having recently
received any vaccinations. Pet. Ex. 5 at 5.
5
It is understandable that based upon the facts as told to counsel by petitioner on the eve of the
statute, there was a reasonable basis upon which to file the Petition in this matter, as petitioner did
develop GBS within three weeks of her “alleged” receipt of the influenza vaccine. However, other than
petitioner and her family’s word that she received an influenza vaccine, none of the medical records
supported that claim. Reasonable basis cannot be found based upon “unsupported speculation.” Perreira,
7
that reasonable basis for this claim ended on October 14, 2016, when counsel was advised by the
hospital that no influenza vaccines were administered in August of 2012.
B. Evaluation of Requested Attorneys’ Fees and Costs
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an
initial estimate of a reasonable attorneys’ fees” is calculated 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)). That product is then adjusted upward or downward
based on other specific findings. Id.
Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.
201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner’s fee
application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).
1. Reasonable Hourly Rate
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of
petitioner’s attorney.” Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed.
Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for
attorney’s fees to be awarded at local hourly rates when “the bulk of the attorney’s work is done
outside the forum jurisdiction” and “there is a very significant difference” between the local
hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v.
Sec’y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste
Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
In this case, Ms. Durant practices in Washington, D.C. Therefore, forum rates apply in
this case.
For cases in which forum rates apply, McCulloch provides the framework for
determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys’
experience. See McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
33 F. 3d at 1377; see also Sharp-Rountree v. Sec’y of Health & Human Servs., No. 14-804, 2015 WL
12600336 (Fed. Cl. Spec. Mstr. Nov. 3, 2015) (Finding that a claim must be supported by medical records
or medical opinion in order to have a reasonable basis).
8
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in
McCulloch and has issued a Fee Schedule for subsequent years.6
In this case, petitioner has requested hourly rates for Ms. Durant of $350 for work
performed in 2015 and 2016, and $365 for work performed in 2017. The undersigned has reviewed
the fee application and finds the hourly rates for 2015 and 2016 to be reasonable and consistent
with the rates at which Ms. Durant and her paralegal, Ms. Raina, have been compensated in past
cases. See e.g., Terrell v. Sec’y of Health & Human Servs., No. 13-334V, 2017 WL 1130947, at
*2 (Fed. Cl. Spec. Mstr. Mar. 2, 2017); Dipietro v. Sec’y of Health & Human Servs., No. 15-742V,
2016 WL 7384131, at *4 (Fed. Cl. Spec. Mstr. Oct. 6, 2016); McCloud v. Sec’y of Health & Human
Servs., No. 16-719V, 2016 WL 8077964, at *2 (Fed. Cl. Spec. Mstr. Dec. 23, 2016).
However, the chief special master has recently set Ms. Durant’s 2017 hourly rate at $363.
See Terrell, 2017 WL 1130947, at *2. The undersigned finds the chief special master’s reasoning
to be persuasive, and hereby adopts the rates decided in Terrell as the rates for this analysis.
Accordingly, Ms. Durant’s 2017 hourly rate is reduced from $365 to $363. Therefore, Ms.
Durant’s fees for 2017 are reduced from $3,029.50 to $3,012.90.
2. Hours Reasonably Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal or secretary. See O’Neill v. Sec’y of Health &
Human Servs., No. 08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).
Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See,
e.g., McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at
one-half of the normal hourly attorney rate. See Scott v. Sec’y of Health & Human Servs., No.
08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And
“it is inappropriate for counsel to bill time for educating themselves about basic aspects of the
Vaccine Program.” Matthews v. Sec’y of Health & Human Servs., No 14-1111V, 2016 WL
2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special
6
The fee schedules are posted on the Court’s website. See Office of Special Masters, Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016, http://www.uscfc.uscourts.gov/sites/default/files/Attorneys
-Forum-Rate-Fee-Schedule2015-2016.pdf (last visited October 11, 2017); Office of Special Masters,
Attorneys’ Forum Hourly Rate Fee Schedule: 2017,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2017.pdf (last
visited October 11, 2017).
9
masters may reduce the number of hours submitted by a percentage of the amount charged. See
Broekelschen, 102 Fed. Cl. at 728-29 (affirming the Special Master’s reduction of attorney and
paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).
Counsel billed 55.3 hours at a rate of $350 and 8.3 hours at a rate of $365 for herself and
6.9 hours at a rate of $140 and 1.9 hours at a rate of $145 for her paralegal, Ashley Raina.
Based on the above determination that reasonable basis for this petition ended on October
14, 2016, Ms. Durant’s hours have been reduced from 63.6 total hours to 52.6 hours at a rate of
$350 and 7.2 hours at a rate of $363. This includes 4.2 attorney hours for drafting petitioner’s
Motion for a Ruling on the Record and 3 attorney hours drafting petitioner’s application for
attorneys’ fees and costs. Motion for Fees at 12, ECF. No. 36-1. Ms. Raina’s hours have been
reduced from 8.8 total hours to 6.5 hours at a rate of $140 and 1.7 hours at a rate of $145.
Therefore, the award of attorneys’ fees and costs has been reduced from $23,626.00 to
$22,180.10.
Petitioner billed an additional $4,356.50 in attorneys’ fees for preparing her Reply in this
matter. Counsel billed 11.3 hours at a rate of $365 for herself and 1.6 hours at a rate of $145 for
her paralegal for a total of 12.9 hours for drafting the Reply. Not only was this an excessive
amount of time for a Reply in this matter, petitioner’s counsel continued to argue all that had
previously been argued, refusing to accept that there was simply no proof of a vaccination in this
case and overwhelming evidence that no vaccine was administered. As set forth above, Ms.
Durant’s billing rate has been set at $363 for 2017. Ms. Durant’s billing will therefore be reduced
to $363.00 per hour for 4 hours, or $1,452.00, plus $232.00 for her paralegal, for a total of
$1,684.00 in supplemental fees.
3. Reasonable Costs
Petitioner requested a total of $2,222.39 in attorneys’ costs. See Motion for Fees, ECF
No. 36. The requested costs consist of $500 in fees to Catherine Shaer, M.D., the $400 court
filing fee, $1,212.67 in costs associated with obtaining medical records, and $109.72 in costs
associated with service of documents. Motion for Fees, ECF No. 36-2, at 1. Dr. Shaer is a
medicolegal consultant who frequently works with Ms. Durant, and is well-qualified to advise on
whether cases are compensable. See Howard v. Sec’y of Health & Human Servs., No. 16-894,
2017 WL 4367159, at *3 (Fed. Cl. Spec. Mstr. Sep. 8, 2017). The undersigned finds petitioner’s
requested costs to be reasonable.
IV. Total Award Summary
Based on the foregoing, the undersigned awards the total of $26,086.49,7 representing
reimbursement for attorneys’ fees in the amount of $23,864.10 and costs in the amount of
7
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal
services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees
(including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of
10
$2,222.39, in the form of a check made payable jointly to petitioner and petitioner’s counsel,
Leah Durant, Esq. The Clerk of the Court is directed to enter judgment in accordance with this
Decision.8
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
8
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
11