         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-333V
                                      Filed: July 5, 2017
                                        UNPUBLISHED


    SHELLY M. PINCKARD,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Attorneys’ Fees and Costs
    v.

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Daniel Mark Soloway, Soloway Law Firm, Pensacola, FL, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

      On March 15, 2016, 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 she suffered a left shoulder injury following her
September 19, 2013 influenza vaccination. On February 15, 2017, the undersigned
issued a decision awarding compensation to petitioner based on respondent’s proffer.
(ECF No. 29). Petitioner now moves for attorneys’ fees and costs, which are awarded in
the amount of $84,748.25, reduced from $108,471.18, for the reasons described below.




1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

2National 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).
I.     Procedural History

        On May 17, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 33). Petitioner requests attorneys’ fees in the amount of $96,958.50 and attorneys’
costs in the amount of $11,512.68 for a total amount of $108,471.18. Id. at 6. In
compliance with General Order #9, petitioner has filed a signed statement indicating
petitioner incurred no out-of-pocket expenses.

        On May 18, 2017, respondent filed a response to petitioner’s motion. (ECF No.
34). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.

      On June 22, 2017, the staff attorney managing this case held a status
conference on the undersigned’s behalf to seek further clarification of petitioner’s
counsel’s billing records. (ECF No. 35.)

II.    The Special Master’s Authority to Determine the Amount of Fees and Costs

       Since the petition for compensation was successful, petitioner is entitled to
reasonable attorneys’ fees and costs. See § 15(e)(1) (emphasis added). Reasonable
attorneys’ fees and costs in Vaccine Act cases are determined using the lodestar
approach, which begins with an assessment of a reasonable hourly rate multiplied by a
reasonable number of hours expended in the case. Avera v. HHS, 515 F.3d
1343,1347-48 (Fed. Cir. 2008.)

        The determination of the amount of reasonable attorneys' fees is within the
special master's discretion. See, e.g., Saxton v. HHS, 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. HHS, 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. HHS, 24 Cl. Ct. 482, 483 (Fed. Cl. 1991),
aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).

      Petitioner “bears the burden of establishing the hours expended” and the
reasonableness of the requested fee award. Wasson, 24 Cl. Ct. at 484. Notwithstanding
respondent’s failure to raise any specific objections to petitioner’s fee application, “the
Special Master . . . [is] not limited to endorsing or rejecting respondent’s critique.”
Duncan v. HHS, No. 99-455V, 2008 WL 4743493 (Fed. Cl. 2008). Furthermore, “the
Special Master [has] no additional obligation to warn petitioners that [she] might go
beyond the particularized list of respondent’s challenges.” Id.
                                               2
        The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the requested hourly rates appear
reasonable; however, for the reasons described below, the undersigned finds the hours
billed in this case to be excessive.

III.    Determining a Reasonable Number of Hours

        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. HHS, 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 fees petition on a line-by-line basis. Id. at *3, 13. Rather, particularly where
billing entries are cryptic or inadequately described, 3 the Special Master may determine
whether the claimed hours are reasonable based on her experience and the context of
the Vaccine Program. Wasson v. HHS, 24 Cl. Ct. 482, 483-84 (Fed. Cl. 1991), aff’d 988
F.2d 131 (Fed. Cir. 1993). 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 that regard, the undersigned notes that the amount of attorneys’ fees
requested in this case is very high compared to similar SPU cases which have resolved
quickly and informally without a hearing. See, e.g. J.B. v. HHS, No. 15-67V, 2016 WL
4046871 (Fed. Cl. Spec. Mstr. July 8, 2016)(noting based on a review of over 300 SPU
cases that such cases typically incur less than $64,000.00 in attorneys’ fees and costs.).
Like the instant case, the petitioner in J.B. received an unusually high award. The
attorneys in that case argued that their high fees were justified by the result. The
undersigned rejected that argument, noting that the size of petitioner’s award does not
equate to the complexity of the case given that the case resolved quickly and without
significant litigation within the Special Processing Unit. Id., at *6-7.

       Thus, although the undersigned acknowledges that this case involved some
complexity regarding petitioner’s damages, it is also worth stressing that this case was
highly streamlined, resolving as a conceded case within one year of filing. With that

3 Attorneys are cautioned about such billing practices in the Guidelines for Practice Under the National
Vaccine Injury Compensation Program (available on the court’s website at
http://www.cofc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-4212016.pdf). Section X,
Chapter 3, explains the requirements of an application for fees and costs, including the instruction that
“[c]ontemporaneous time records should indicate the date and specific character of the service
performed.” Vaccine Guidelines, p. 68. Attorneys are further advised that “[e]ach task should have its
own line entry indicating the amount of time spent on that task” and that “[l]umping together several
unrelated tasks in the same time entry frustrates the court’s ability to assess the reasonableness of the
request.” Id.

                                                    3
context in mind, the undersigned has identified a number of specific issues, discussed
below, which contribute to the excessive billing in this case.

IV.     Problems Identified in the Billing Records

            a. Excessive or Redundant Billing

      A significant factor contributing to the high cost of attorneys’ fees in this case
appears to be excessive or redundant billing. Upon the undersigned’s review, there
appears to be a pattern of such overbilling within the records.

         For example, in January and February of 2014, Mr. Soloway spent 4.5 hours
engaged in initial meetings in person and via telephone with petitioner and her husband
prior to beginning work on this case. (ECF No. 33-5, p. 1.) His associates, Ms. Corkill
and Mr. MacLaren, each spent 2.5 hours conducting “initial meetings” with the clients.
(ECF No. 33-6, p. 1; 33-7, p. 1.) The undersigned finds these client intake meetings to
be excessive. Notably, the billing records suggest that these extensive meetings took
place prior to counsel’s obtaining of medical records or the receipt of any documents
from the client. The billing records also suggest that Ms. Corkill’s and Mr. MacLaren’s
initial client meetings occurred prior to being assigned to the case by Mr. Soloway on
February 20, 2014.

        Review of medical records in this case was also excessive. Mr. Soloway billed
10.45 hours for review of medical records in this case. Additionally, Ms. Corkill billed
15.75 hours reviewing medical records and Mr. MacLaren a further 9.8 hours. Much of
this review appears to be redundant. For example, Mr. Soloway billed 1.3 hours for the
review of records by Drs. Nall and Davis on March 4, 2014. (ECF No. 33-5, p. 1.) The
next day Ms. Corkill billed an additional .9 hours reviewing records from the same
treaters. (ECF No. 33-6.) Based on the undersigned’s review, four different medical
providers had their records separately reviewed by two of the three attorneys working
on this case. The records of five additional providers were separately reviewed by all
three attorneys. Mr. MacLaren billed .5 hours reviewing medical records more than a
month after judgment was entered in this case. (ECF No. 33-7, p. 3.)

        The undersigned also questions the 32.15 hours billed by Mr. Soloway to resolve
a subrogation issue raised in the case. 4 Much of Mr. Soloway’s time was devoted to
case law research which likely could have been done by his associates. Indeed, Ms.
Corkill billed a further 3 hours devoted to this issue.



4 Based on the representations counsel made during the status conference held June 22, 2017, the
undersigned is satisfied that Mr. Soloway’s efforts in this regard were necessary to the resolution of
damages in this case; however, that is a separate question from whether the hours expended were
reasonable.

                                                     4
         The undersigned reduces all of the above-identified hours 5 by half. This results
in a reduction of 23.6 hours from Mr. Soloway’s billing, 10.6 hours from Ms. Corkill’s
billing, and 6.2 hours from Mr. MacLaren’s billing. 6

              b. Inappropriate or Non-compensable Activities

        A further deficiency in counsels’ billing records is the inclusion of many hours
billed for activities which are not appropriately charged to the Vaccine Program. The
undersigned will not compensate counsel for these hours.

       Ms. Corkill billed 1.4 hours researching the admission requirements for the U.S.
Court of Federal Claims bar. (ECF No. 33-6, pp. 2-3.) She also billed .45 hours
researching opposing counsel, Mr. Pyles. (Id., p. 5.) Mr. Soloway similarly billed 1.25
hours researching Mr. Pyles as well as consulting Wall Street Journal articles about
increases in claims filings. He also spent 5.25 hours researching the file of a prior
Vaccine case he had prosecuted. (ECF No. 33-5, p. 1.)

       Ms. Corkill’s research into court admission constitutes professional development
and is therefore not compensable. It is well established that attorneys may not be
compensated for professional development concerning the Vaccine Program. See,
e.g., Lord v. HHS, No. 12-255V, 2016 WL 3960445, at *4 (Fed. Cl. Spec. Mstr. June 30,
2016). Nor does the undersigned find it appropriate for counsel to bill for research
regarding opposing counsel or into counsel’s own prior case. If these hours were
meaningfully spent, they are at best similarly characterized as professional
development.

        Thus, the undersigned further reduces Mr. Soloway’s billing by 6.5 hours. Ms.
Corkill’s billing is reduced by 1.9 hours.

              c. Travel Time

      Mr. Soloway billed 9 hours of travel time on August 21, 2014. 7 (ECF No. 33-5;
ECF No. 35.) An additional billing entry of 2.75 hours dated January 5, 2017, includes
an unspecified amount of travel time. 8 (ECF No. 33-5, p. 11.) This accounts for 11.75

5   That is, 47.1 hours by Mr. Soloway, 21.25 hours by Ms. Corkill, and 12.3 hours by Mr. MacLaren.

6   All reductions throughout this decision are rounded to the nearest tenth of an hour.

7 Although the billing entry shows one entry including both travel time and preparation for the taking of Dr.

Greer’s sworn statement, Mr. Soloway orally amended this billing entry during the status conference held
June 22, 2017, to clarify that 9 of the 11 hours were spent travelling. Respondent had no objection to the
oral amendment. (See ECF No. 35.)

8 Since the amount of travel time is not specified and there is a separate billing entry of 2.75 hours for the
taking of Dr. Seller’s sworn statement which includes an identical description of activity, the undersigned
will treat the entirety of this entry as travel time. (ECF No. 33-5, p. 11.)
                                                       5
hours of Mr. Soloway’s billing in this case. The undersigned reduces Mr. Soloway’s
billing rate by 50% for this time spent travelling. See, e.g., Hocraffer, 2011 WL
3705153, at *24 (noting that “Special masters consistently award compensation for
travel time at 50% of the billing rate in the Vaccine Program.”).

          d. Inefficient Use of Attorney Time and Inscrutable Billing Entries

         Another significant issue permeating the billing records in this case is counsel’s
inefficient use of attorney resources. Upon the undersigned’s review, many of the tasks
for which counsel has billed would have been better handled by more junior members of
counsel’s team, resulting in inflated attorneys’ fees. Determining the exact extent of this
issue is made more difficult by the nature of counsel’s records, which often make it
difficult to ascertain what the attorneys in this case were doing. The associate billing
records, in particular, were often vague and difficult to understand.

        As noted above, despite having assigned two associate attorneys to this case,
Mr. Soloway nonetheless billed significant time reviewing medical records and
researching case law regarding subrogation. This issue, however, is not limited to the
above-discussed entries. For example, on February 7, 2017, Mr. Soloway, the most
senior attorney on this case, billed 4.5 hours for sorting a box of receipts related to
petitioner’s medical expenses. (ECF No. 33-5, p. 12.)

        Mr. Soloway also included several .25 hour billing entries for the purpose of
authorizing invoices for medical records. (See, e.g. ECF No. 33-5, p. 2.) Mr. Soloway
billed .25 hours to authorize an invoice for unspecified “mileage.” (ECF No. 33-5, p. 3.)
Additionally, throughout the course of this case, Ms. Corkill billed a total of 1.2 hours for
generating fax cover sheets, document requests, and case captions. (ECF No. 33-6,
passim.) She also billed .75 hours for traveling to pick up records. (ECF No. 33-6, p. 3.)
These activities are secretarial in nature and are not compensable. See, e.g. Mooney v.
HHS, No. 05-266, 2014 WL 7715158, at *11 (Fed. Cl. Spec. Mstr. Dec. 29, 2014)(noting
that “tasks which are secretarial in nature represent overhead expenses and are thus
not compensable.”)

        Moreover, the undersigned finds it particularly difficult to resolve this concern
given the state of the billing records generally. In some instances, Mr. Soloway has
combined multiple activities into one billing entry, making it difficult to separate
appropriate and inappropriate billing activity. For example, on March 17, 2016, Mr.
Soloway billed one hour in a single entry for reviewing both the medical record exhibits
to be filed as well as the court’s rules for filing medical records. The undersigned will
not compensate Mr. Soloway for review of the court’s filing procedures, but might
otherwise have found a substantive review of exhibits to be reasonable.

      There are also many entries which are too vague, leaving the undersigned
unable to determine the nature of the task being performed. For example, on June 3,
2014, Ms. Corkill billed .8 hours under the category of reviewing medical records, but
                                             6
included a subject which instead suggests a telephone call with an unspecified
individual. (ECF No. 33-6, p. 2.) Both Ms. Corkill and Mr. MacLaren at separate times
included billing entries for the creation of a “blank pleading.” (ECF No.33-6, p. 7; ECF
No. 33-7, p. 3.) Mr. Corkill included a billing entry labeled only as “AUTH-Ours.” (ECF
No. 33-6, p. 1.) Other entries by Ms. Corkill are suggestive of potentially duplicative
entries. For example, on March 9, 2016, Ms. Corkill included two separate one hour
entries for a meeting with petitioner. (ECF No. 33-6, p. 5.)

       In light of the above-described inefficiencies and billing deficiencies, separate
and apart from the previously addressed reductions, the undersigned finds that a further
5% reduction in counsel’s remaining billing is warranted. As noted above, the
undersigned is not required to perform a line-by-line analysis of the billing records.
Hocraffer, 2011 WL 6292218, at *13. Moreover, Special Masters have previously
reduced fees globally for insufficient billing practices. See, e.g. Stone v. HHS, No. 90-
1041V, 2010 WL 3790297, at *5 (Fed. Cl. Spec. Mstr. Sept. 9, 2010)(deducting 10%
from requested hours due to excessive and vague billing).

       Mr. Soloway billed 179.5 hours. The undersigned previously reduced Mr.
Soloway’s billing by 23.6 hours for excessive or redundant billing, 6.5 hours for non-
compensable activities, and otherwise addressed 11.75 hours of travel time. These
reductions result in net billing of 137.65. 9 Reducing this amount by an additional 5%,
the undersigned finds a reduction of 6.9 hours to be appropriate.

        Ms. Corkill billed 93.65 hours. The undersigned previously reduced Ms. Corkill’s
billing by 10.6 hours for excessive or redundant billing and 1.9 hours for non-
compensable activities. This results in net billing of 81.15 hours. Reducing this amount
by an additional 5%, the undersigned finds a reduction of 4.1 hours to be appropriate.

        Mr. MacLaren billed 47.15 hours. The undersigned previously reduced Mr.
MacLaren’s billing by 6.2 hours for excessive or redundant billing. This results in net
billing of 40.95 hours. Reducing this amount by an additional 5%, the undersigned finds
a reduction of 2.0 hours to be appropriate.

V.      Attorney Costs

       Petitioner’s counsel requested reimbursement in the amount of $17.36 for the
cost of obtaining medical records from Andrews Orthopedic. (ECF No. 33-9, p. 1.)
Invoices attached to the motion, however, indicate only a charge of half that amount
($8.68) for these records. Thus, a reduction of $8.68 is needed. Additionally, counsel
requests reimbursement in the amount of $552 for Ms. Corkill’s and Mr. MacLaren’s
admission to the U.S. Court of Federal Claims bar. Such expenses are not recoverable.

9
 Although Mr. Soloway’s 11.75 hours of travel time do not represent a reduction of hours billed, they have
been subtracted from his total billing for purposes of this calculation because they have been previously
addressed via rate reduction and are not being further reduced by 5%.
                                                    7
See, e.g., Velting v. HHS, No. 90-1432, 1996 WL 937626, at *1-2 (Fed. Cl. Spec. Mstr.
Sept. 24, 1996).

       The undersigned otherwise finds no cause to reduce any of the other costs.
Thus, the undersigned reduces petitioner’s requested costs by $560.68.

VI.    Conclusion

       The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorneys’ fees and costs in a reduced amount as
follows:

Attorneys’ Fees:

Mr. Soloway:

       Original Hours Billed:                179.15

       Less:
               Excessive hours:              - 23.6
               Non-compensable:              - 6.5
               Travel billed at full rate:   - 11.75
               Inefficiency:                 - 6.9
       Total (full rate) Hours Allowed:        130.4

       Plus:
       Total (travel rate) Hours
       Allowed:                              11.75

       130.4 *$350 per hour =                $45,640.00
       11.75 *$175 per hour =                $2,056.25
       Mr. Soloway’s Total:                  $47,696.25

Ms. Corkill:

       Original Hours Billed:                93.65

       Less:
              Excessive hours:               - 10.6
              Non-compensable:               - 1.9
              Inefficiency:                  - 4.1
       Total Hours Allowed:                    77.05

       77.05 *$225 per hour =                $17,336.25
                                               8
Mr. MacLaren:

        Original Hours Billed:                    47.15

        Less:
               Excessive hours:                   - 6.2
               Inefficiency:                      - 2.0
        Total Hours Allowed:                        38.95

        38.95 *$225 per hour =                    $8,763.75

Total Attorneys’ Fees Awarded:                    $73,796.25

Attorneys’ Costs:

      Original request:                           $11,512.68
      Less reductions:                            - $560.68
Total Attorneys’ Costs Awarded:                   $10,952.00

Overall Total Awarded:                            $84,748.25

      Accordingly, the undersigned awards the total of $84,748.25 10 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Daniel Mark Soloway, Esq.

        The clerk of the court shall enter judgment in accordance herewith. 11

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




10 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.HHS, 924 F.2d 1029 (Fed. Cir.1991).

11Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
                                                     9
