In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1101V
Filed: January 8, 2018
LORAINE HEROD,
UNPUBLISHED
Petitioner,
v. Attorneys’ Fees and Costs.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Thomas P. Ryan, Ryan, LLP, Cleveland, Ohio, for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 1, 2015, Loraine Herod (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq., 2 (the “Vaccine Act”). Petitioner alleged that an influenza vaccination she received
on October 4, 2012, significantly aggravated her Meniere’s disease. Petition at ¶¶ 5,7.
On November 13, 2017, the undersigned issued a decision awarding compensation to
petitioner based on the parties’ joint stipulation. (ECF No. 65.)
On November 28, 2017, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 69.) Petitioner requests attorneys’ fees in the amount of $28,440.00 and
1
Because this unpublished decision contains a reasoned explanation for the action in
this case, the undersigned intends to post it on the United States Court of Federal
Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government Services).
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, upon review, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact 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).
attorneys’ costs in the amount of $8,737.50. Id. at 5. Petitioner incurred costs in the
amount of $5,200.00. Id. at 4. Thus, the total amount requested is $42,377.50.
On December 26, 2017, respondent filed a response to petitioner’s motion. (ECF
No. 71.) Respondent “respectfully recommends that the Chief Special Master exercise
her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at
3.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, except for
hourly rate of petitioner’s expert, Dr. Lance Jackson, and the undersigned finds no
cause to reduce the requested attorney hourly rates.
In determining the amount of reasonable hours, a special master has discretion
to exclude hours expended that are “‘excessive, redundant, or otherwise unnecessary
based on his or her experience or judgment.” Hocraffer v. Sec’y of Health & Human
Servs., No. 99-533V, 2011 WL 6292218, at *3 (Fed. Cl. Nov. 22, 2011). The fee
applicant bears the burden of documenting hours that are reasonable and the special
master is not obligated to evaluate a fee petition on a line-by-line basis. Id. at *3, 13.
Rather, particularly where billing entries are cryptic or inadequately described, the
Special Master may determine whether the claimed hours are reasonable based on her
experience and the context of the Vaccine Program. Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 483-84 (1991). That is, special masters are permitted to
use “a global – rather than line-by-line – approach to determine the reasonable number
of hours expended.” Hocraffer, 2011 WL 6292218, at *13. In the undersigned’s
experience, the request appears reasonable, and the undersigned finds no cause to
reduce the requested hours.
As for costs, with respect to petitioner’s expert, Dr. Lance Jackson, the
undersigned finds his rate of $1,200.00 per hour to be excessive. As acknowledged by
counsel and petitioner, the undersigned advised that this rate was excessive during the
pendency of this case. She has not awarded an expert an hourly rate more than
$500.00 per hour. Thus, she reduces Dr. Jackson’s rate to $500.00 per hour, for a total
reduction of $2800.00.3 As for the outstanding expert fees billed by Dr. Tachdjian
($3,487.50) and Dr. Cook ($5,250.00), these appear to be reasonable, and they will be
paid to petitioner’s counsel. Petitioner’s counsel shall reimburse these experts for the
expert costs incurred.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Other than the reduction of Dr. Jackson’s expert costs, the balance of the
petitioner’s request is reasonable, and the undersigned GRANTS petitioner’s motion for
attorneys’ fees and costs.
3
Dr. Jackson requested a total of $4800 (1200 x 4 hours = $4800). The undersigned
awards $2000 (500 x 4 = $2000).
2
Accordingly, the undersigned awards the following:
1) A total of $37,177.504 as a lump sum in the form of a check jointly
payable to petitioner and petitioner’s counsel, Thomas Patrick Ryan;
2) A total of $2,400.00 in the form of a check payable to petitioner, Loraine
Herod.
The Clerk of the Court SHALL ENTER JUDGMENT in accordance herewith.5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
4
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 Health & Human Servs., 924 F.2d 1029
(Fed. Cir. 1991).
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’
joint filing of notice renouncing the right to seek review.
3