In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

******************** *
NAOMI MCMURTRY,                      *
                                     *       No. 15-405V
                   Petitioner,       *       Special Master Christian J. Moran
                                     *
v.                                   *       Filed: September 26, 2018
                                     *
SECRETARY OF HEALTH                  *       Attorneys’ Fees and Costs; resort
AND HUMAN SERVICES,                  *       expenses
                                     *
                   Respondent.       *
******************** *
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner;
Camille M. Collett, United States Dep’t of Justice, Washington, DC, for
Respondent.

                 PUBLISHED DECISION ON FEES AND COSTS1

      On June 5, 2018, petitioner Naomi McMurtry moved for final attorneys’ fees
and costs. She is awarded $73,324.43.

                                         *      *       *

      On April 22, 2015, Ms. McMurtry filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §300a-10 through 34, alleging the flu
vaccine caused her to develop GBS. The Secretary filed his Rule 4(c) report on

       1
         Because this decision contains a reasoned explanation for the action in this case, the
undersigned is required 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). This means the decision will
be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),
petitioners have 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 before posting the decision.
August 7, 2015, stating that Ms. McMurtry had not sufficiently established that she
suffered from GBS and had not sufficiently demonstrated that the flu vaccine could
cause GBS.

      In the Rule 5 status conference, the Secretary stated that settlement
discussions may be appropriate after review of an expert report from Ms.
McMurtry. Order, issued Aug. 26, 2015. The petitioner requested, and was
granted, 60 days to file the expert report. After one enlargement of time, Ms.
McMurtry filed a report from Dr. Lawrence Steinman on November 17, 2015.

       In a status conference to discuss the petitioner’s report, the Secretary stated
that he would like to obtain a report from his own expert before deciding if he
would be interested in settling the case. Order, issued December 2, 2015. After
requesting and receiving two enlargements of time to file his report, on March 22,
2016, the Secretary filed a status report stating that he was interested in pursuing
informal resolution of the claim.

       On May 31, 2016, the undersigned held a status conference to discuss the
potential settlement. During the status conference, the petitioner reported that a
life care planner had been retained and that the petitioner would be submitting a
demand to the respondent in the next 60 days. Order, issued May 31, 2016.

       On August 2, 2016, the petitioner filed a status report confirming that she
had sent a comprehensive settlement demand to the Secretary and that all medical
records had been filed. Petitioner also noted that she had recently gone on
Medicaid and thus her counsel had to identify any potential outstanding Medicaid
liens. However, petitioner noted that any outstanding lien was likely negligible in
amount, if one existed at all.

      In a status report filed on September 28, 2016, the Secretary reported that he
would be retaining an opinion from both a life care planner and an economist
before agreeing to a settlement.

      A status conference was held on October 28, 2016, to discuss the parties’
progress in settling the case. The Secretary reported that a joint site visit was
scheduled for November 2016 and that he was in consultations with his economist
regarding the lost wages claim. In a status report filed on December 5, 2016, the
respondent stated that a preliminary evaluation did not support a claim for lost
wages, but that he required additional time and information from the petitioner
before making his position.
                                           2
       During a status conference on February 2, 2017, Ms. McMurtry represented
that she anticipated finalizing the settlement within the next month based upon the
progress that had been made in the previous month. During the subsequent month,
petitioner’s counsel travelled to Phoenix, AZ to hold a 2.5 hour lunch meeting with
Ms. McMurtry for the purpose of discussing the settlement. For this trip,
petitioner’s counsel billed $4,742.47 in fees and costs, including three nights at a
$629.89 a night luxury resort.

       Ms. McMurtry filed a status report on April 4, 2017, reporting that the
respondent had requested additional medical records and a copy of Ms.
McMurtry’s social security disability application. Ms. McMurtry reported that she
had filed the requested records and had recently learned that the Secretary would
be retaining a vocational expert. During a status conference on April 27, 2017, the
Secretary reported that he would need an additional 30 days to obtain the report
from the vocational expert. Following two motions for enlargements, the Secretary
obtained and shared with Ms. McMurtry the expert report from his vocational
expert on July 10, 2017. See Pet’r’s Rep., filed July 10, 2017.

       During a status conference held on August 3, 2017, the petitioner reported
that the Secretary had rescinded the lost wages offer and that the case may not
settle. Nonetheless, on September 6, 2017, the parties represented that they
reached a tentative settlement agreement and the undersigned issued a 15-week
stipulation order the next day. Based on a stipulation filed on December 14, 2017,
the undersigned issued a decision awarding compensation to Ms. McMurtry.
Decision, issued December 14, 2017, 2017 WL 6945561. The decision included
three components: more than $250,000 in a lump sum, the reimbursement of two
Medicaid liens, each for less than $1,000, and the purchase of an annuity.

       Ms. McMurtry then filed the instant motion for attorneys’ fees and costs,
requesting $68,533.00 in fees and $28,304.39 in attorneys’ costs, for a total of
$96,837.39. See Pet’r’s Mot, filed June 5, 2018, at 4. The Secretary filed a
response to Ms. McMurtry’s motion. The Secretary represented that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Resp’t’s Resp., filed June 15, 2018, at 2. With respect to
amount, the Secretary recommended “that the special master exercise his
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3.



                                         3
       Because Ms. McMurtry received compensation, she is entitled to an award
of attorneys’ fees and costs. See 42 U.S.C. § 300aa-15(e). The unresolved
question is the reasonable amount of attorneys’ fees and costs.

 I.   Attorneys’ Fees

       The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, the court determines an “initial estimate . . . 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)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348.

      A. Reasonable Hourly Rate

       In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See Shea v. Secʼy of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,
2015) (“special masters are not obligated to evaluate an attorney’s billing records
on a line-by-line basis in making the reasonableness determination . . . and
certainly need not do so when Respondent has not attempted to highlight any
specific alleged inefficiencies”). The hourly rates proposed for the two attorneys
on this case—Lawrence Cohan and David Carney—are reasonable. See
McCulloch v. Sec’y of Health & Human Servs., 2015 WL 5634323, at *21 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015).

      B. Reasonable Number of Hours

      The Secretary also did not directly challenge any of the requested hours as
unreasonable. Reasonable hours are not excessive, redundant, or otherwise
unnecessary. See Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521
(Fed. Cir. 1993).

       Speaking generally, the number of hours billed in this case struck the
undersigned as very high compared with his experience evaluating cases of similar
complexity. A review of the billing records indicates at least two explanations for
this observation.


                                           4
       First, petitioner’s attorneys often performed work expected from a paralegal.
When attorneys bill at the high rates demanded by attorneys, they should be
performing work that requires the skills of an attorney and not those of a paralegal
or secretary. See Valdes v. Sec'y of Health & Human Servs., 89 Fed. Cl. 415, 425
(2009) (noting that “the Special Master exercised appropriate discretion in denying
requested costs for work performed by Petitioner's counsel's associate” when the
special master determined “that the associate's time spent obtaining medical
records was more consistent with paralegal duties”).

       In the case here, a substantial portion of the entries relate to administrative
matters in this case and not to the type of work that can reasonably be billed at an
attorneys’ rate. These include preparing and filing medical records, preparing and
filing pro forma documents, communications with the client for the purpose of
collecting medical records, and calendaring scheduling orders. All of these tasks
should either not be performed by an attorney, or not billed at an attorney’s
standard rate. To account for these issues, the undersigned finds a 15% reduction
in the number of hours billed to be appropriate.

       Second, it appears that petitioner’s attorneys considered 0.2 hours to be the
smallest quantum of time available for their billing entries. Considering the nature
and frequency of the correspondence, 10-15 minutes as a minimum for the sending
and receipt of administrative emails with clients, life care planners, and experts
appears high. See Rasmussen v. Sec'y of Health & Human Servs., No. 91-1566V,
1996 WL 752289, at *2 (Fed. Cl. Spec. Mstr. Dec. 20, 1996) (noting that counsel’s
practice of billing in increments not smaller than a quarter hour could result in
overbilling).

      This observation regarding the billing entries is consistent with a more
general finding that the amount of time billed on non-substantive work was often
high for the nature of the work performed. As an example, in multiple entries Mr.
Carney billed approximately 15-25 minutes for emails to the Secretary to
determine if the Secretary objected to petitioner’s motions for enlargement. In the
undersigned’s experience, these types of communications are often not even billed,
much less for the amount of time requested here.

       In another example, the undersigned compared the amount of time that the
life care planner and Mr. Carney billed for the time spent on the same email
correspondence. Mr. Carney’s entries sometimes indicated that he spent an order
of magnitude more time on emails than his life care planner. For example,
compare these entries for the period of October 6, 2016 to October 16, 2016:
                                           5
Mr. Carney’s billing sheet:




Pet’r’s Fees Mot. at PDF 16.

The life care planner’s billing sheet:




Id. at PDF 86.

      Based on these entries, for the given time period it would appear that Mr.
Carney billed 0.8 hours, or $232, for correspondence with the life care planner
while the life care planner billed 0.05 hours, or $6.25 for the same correspondence.

      These types of inflated entries appear throughout petitioner’s motion for fees
and costs. To address the excessive billing, the undersigned finds an additional
15% reduction in the number of hours billed to be appropriate.

II.   Costs

       In addition to seeking attorneys’ fees, Ms. McMurtry seeks an award of
costs totaling $28,304.39. As with the fees request, the amount petitioner
requested to be reimbursed for costs struck the undersigned as high for a case of
this complexity.

       Ms. McMurtry’s motion included costs for medical records retrieval,
mailings, and the use of specialists to resolve Medicaid liens. These costs are
reasonable and are awarded in full. Ms. McMurtry also retained the expertise of a
life care planner and a medical expert. These costs are also reasonable and are
awarded in full.

      Ms. McMurtry’s motion sought reimbursement of costs associated with a
trip made by Mr. Carney to Phoenix, Arizona from Tuesday, February 28, 2017, to



                                         6
Friday, March 3, 2017.2 The meeting with Ms. McMurtry consisted of a 2.5 hour
lunch meeting. Pet’r’s Fees Mot. at PDF 20. At the meeting, Mr. Carney and his
client discussed issues concerning the settlement of the case. Id. at PDF 20. For
the purpose of holding this 2.5 hour lunch meeting with Ms. McMurtry,
petitioner’s attorney billed a total of $2,567.47 in costs3 and $2,175.00 in fees.
In her motion for fees, petitioner included an affidavit from Mr. Cohan, stating that
“[g]iven the sizable nature of the settlement and its implications, this case could
not be settled without a face-to-face meeting with Petitioner.” Pet’r’s Fees Mot. at
PDF 6.

      This trip raises two questions: first, should the trip have occurred at all, and
second, assuming the trip was reasonable, were the incurred expenses reasonable.

       As to whether the trip was reasonable, the question is close. There is no
bright line rule saying that in-person meetings are always appropriate or never
appropriate. In the right circumstances, face-to-face meetings can be valuable.

        Here, Ms. McMurtry’s justification seems underdeveloped. Just before the
trip, Mr. Carney represented a settlement just needed to be finalized. See order,
issued Feb. 2, 2017. It may be the case that Mr. Carney’s process for “finalization”
anticipated an in-person meeting but Mr. Carney did not communicate that step in
the status conference. And, if Mr. Carney were planning a trip to meet with his
client, Mr. Carney may not have wanted to disclose communications with his
client.

       The strongest rationale for the in-person meeting comes from Mr. Cohan’s
affidavit. But, the entire justification is contained in one sentence: “Given the
sizable nature of the settlement and its implications, this case could not be settled
without a face-to-face meeting with Petitioner.” As with the situation with Mr.


       2
         Ms. McMurtry’s motion indicates that 75% of the purpose of the trip was to meet with
Ms. McMurtry and that 25% was concerning another case in this program (Mahroof v. Sec’y of
Health and Human Servs.). However, no additional explanation for this breakdown is provided.
Pet’r’s Fees Mot. at PDF 104.
       3
          The total costs were actually higher, these costs reflect 75% of the total costs because
petitioner’s attorney stated that he also performed business related to another case on this trip.
Pet’r’s Fees Mot. at PDF 104. However, in contrast to his costs, Mr. Carney billed 100% of his
travel rate for the time spent travelling to and from Phoenix. Id. at 20. This amount is reduced
by 25% to reflect the dual purpose of this trip.

                                                 7
Carney, Mr. Cohan may be reluctant to disclose either communications with his
client or his mental impressions that led to this conclusion.

       Ultimately, the undersigned trusts the judgment of Mr. Cohan and Mr.
Carney, who achieved a good result for Ms. McMurtry and good results for other
petitioners in the Vaccine Program. Ms. McMurtry’s award included a relatively
complicated annuity and the undersigned can accept the attorneys’ representation
that an in-person meeting was reasonable. However, the reasonableness of the trip
does not necessarily make the expenses incurred on the trip reasonable.

       As to the reasonableness of the expenses, Ms. McMurtry exceeded the
bounds of reasonableness for both food and lodging. Mr. Carney’s submitted meal
receipts explicitly include or implicitly suggest Mr. Carney seeks reimbursement
for alcohol. Id. at PDF 105-06.4 The National Vaccine Injury Compensation
Program does not reimburse for alcohol. Bhuiyan v. Secʼy of Health & Human
Servs., No. 05–1269V, 2015 WL 2174208, at *8 (Fed. Cl. Apr. 16, 2015).

       Even more concerning is Mr. Carney’s decision that for this trip it was
appropriate to spend three nights and four days at The Phoenician Scottsdale, a
luxury resort, at the nightly rate of $629.89. Id. at PDF 115. The Phoenician
describes itself as “Arizona’s premier luxury resort destination.” His total hotel
bill for three nights at the resort: $2,175.65. Id. Ms. McMurtry has not supported
this expense.

       The four-day trip to The Phoenician Scottsdale parallels another recent case
where Mr. Carney requested reimbursement for a weekend trip to Atlanta, GA to
meet with a client. Although Mr. Carney made it a weekend getaway, the only
work in that case was performed on the previous Friday. In that case, Chief
Special Master Dorsey declined to reimburse the petitioner for the portion of the
trip not associated with the petition. Jones v. Secʼy of Health & Human Servs.,
No. 16-0308V (Fed. Cl. Spec. Mstr. June 22, 2018).

       The undersigned will apply the same approach here. The undersigned will
reimburse Mr. Carney for a two-night hotel stay. However, the undersigned will
not reimburse the extravagant rates spent by Mr. Carney, but instead $250 per

       4
          Although in an October 18, 2018 status conference Mr. Carney represented that he
charged only half ($37.50) the amount of the total bill ($71.50) to eliminate the alcohol, the
splitting of the bill still does not account for the amount of alcohol purchased at the meal in
question.

                                                 8
night, a rate the undersigned finds reasonable for the Phoenix, AZ area. In
addition, instead of attempting to subtract out Mr. Carney’s alcohol expenses for
the trip, which is impossible because most receipts do not include a breakdown of
between food and alcohol, Mr. Carney will be reimbursed a per diem of $60 per
day for three days. The parking and taxi fees will be reimbursed in full. However,
the $91.96 seat upgrade fare will not be reimbursed. In total, of the $2,567.47 in
costs associated with this trip (exclusive of fees) that Mr. Carney billed for this
trip, Ms. McMurtry is reimbursed $1,245.66.5

        This case presents a good example of the perils of the Secretary’s decision to
not participate in the adjudication of petitioners’ motions for fees and costs. The
contents of Ms. McMurtry’s motion include items that should not have been
submitted for reimbursement from the Trust Fund and yet the Secretary stayed
silent, leaving the undersigned to police the petitioner. As cogently noted, the
Secretary’s position promotes a culture where these overcharges will only
continue. See Van Vessem v. Sec'y of Health & Human Servs., No. 11-132V,
2018 WL 3989517, at *12 (Fed. Cl. Spec. Mstr. July 3, 2018).

       The Secretary’s failure to participate does not excuse errors on Mr. Carney’s
part. Having been alerted to problems with their billing, especially with regards to
costs of travel, Mr. Carney and Mr. Cohan are expected to exercise billing
judgment when submitting their invoices. They are also expected to review
pending submissions to see if there were any oversights. Furthermore, Mr. Carney
and Mr. Cohan are warned that they may be penalized in the form of reductions to
their future fee awards if their motions for fees continue to include unreasonable
requests. See Valdes v. Sec’y of Health & Human Servs., No. 99-310V, 2009 WL
1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (noting that penalties may be
necessary to motivate an attorney to submit requests for fees that do not contain
“erroneous, duplicative, or unreasonable entries”), mot. for rev. granted in non-
relevant part and denied in non-relevant part, 89 Fed. Cl. 415 (2009).

III.   Conclusion

       Accordingly, Ms. McMurtry is awarded:



       5
         In the October 18, 2018 status conference, Mr. Carney represented that he intended to
subtract at least some portion of this trip, and that the invoicing of the full trip was his mistake.
However, Mr. Carney billed two hours in this case for his “review of all billing entries.”

                                                   9
      A lump sum of $73,324.43 ($46,341.85 in fees plus $26,982.58 in costs) in
the form of a check made payable to petitioner and petitioner’s attorney,
Lawrence R. Cohan.

        This amount represents reimbursement for attorneys’ fees and other
litigation costs available under 42 U.S.C. § 300aa-15(e). In the absence of a
motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall
enter judgment in accordance herewith.6

      Petitioner’s counsel is also ORDERED to submit a copy of this decision
alongside any motion for fees and costs submitted on behalf of the petitioner in
Mahroof v. Sec’y of Health and Human Servs, No. 16-521.


       IT IS SO ORDERED.

                                                     S/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




       6
          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.

                                               10
