Floyd v. Secretary of Health and Human Services
13-556
| Fed. Cl. | Apr 7, 2017Background
- Petitioner Korey Floyd alleged transverse myelitis from an October 2012 influenza vaccine; he was hospitalized and later rehabilitated, with extensive medical records (>10,000 pages).
- Petitioner retained Conway & Homer, P.C.; paralegals performed most record-gathering and drafted the initial petition; attorney review of records was limited early on.
- The Secretary questioned diagnosis (transverse myelitis v. neuromyelitis optica) and required an expert report; petitioner retained neurologist Dr. Norman Latov, who opined vaccine causation.
- Parties retained life‑care planners and conducted a home visit; substantial paralegal time was spent summarizing voluminous updated records to assess diagnosis and damages.
- After settlement (stipulation incorporated into judgment), petitioner moved for attorneys’ fees and costs totaling $128,664.74 (including paralegal fees and expert/life‑care costs); Special Master Moran reviewed reasonableness of rates, hours, and invoices.
- Special Master awarded $126,664.74 after limited reductions for duplicative attorney time, clerical paralegal tasks, and overbilling in the life‑care planner’s billing; he also ordered future compliance with invoicing Guidelines (identify paralegals by name and provide qualifications).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable hourly rates for attorneys and paralegals | Firm sought established forum rates; paralegals billed $135/hr post‑McCulloch | Sec’y suggested overall fee range $75k–$100k for similar cases; questioned necessity of some time | Attorney forum rates accepted; paralegal identity lacking so generic McCulloch paralegal rates applied for this case, and firm ordered to identify paralegals going forward |
| Reasonable number of hours (duplication/efficiency) | Extensive paralegal summaries and multiple attorneys justified by case complexity | Sec’y argued some duplication and that range reflected typical time | Full credit for paralegal record-review and site visit; $1,000 reduction for ~4 hours of duplicative attorney work (multiple attorneys performing tasks one could do) |
| Clerical/secretarial billing by paralegals | Firm billed routine administrative tasks at paralegal rates | Sec’y implicitly opposed billing pure clerical tasks | $500 reduction for clerical/secretarial tasks billed as paralegal time |
| Expert and life‑care billing documentation and hours | Dr. Latov and Ms. Clancy billed reasonable rates; invoices submitted | Sec’y raised concerns about invoice detail and hours billed (life‑care overbilling) | Dr. Latov’s sparsely detailed invoice accepted (but firm ordered to instruct expert on better invoices); $500 reduction for Clancy’s systematic over‑rounding (~10 hours) |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (lodestar approach governs Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (reasonable hourly rate × hours as lodestar foundation)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir.) (hours must not be excessive, redundant, or unnecessary)
- Missouri v. Jenkins, 491 U.S. 274 (U.S.) (clerical tasks are not separately billable)
- Bennett v. Department of Navy, 699 F.2d 1140 (Fed. Cir.) (hours for clerical work are overhead)
- Fox v. Vice, 563 U.S. 826 (U.S.) ("rough justice" standard for fee reductions)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Ct. Cl.) (fee records must be specific)
- Caves v. Secretary of Health & Human Services, 111 Fed. Cl. 774 (Ct. Cl.) (expert invoices lacking detail may be reduced)
- Morse v. Secretary of Health & Human Services, 89 Fed. Cl. 683 (Ct. Cl.) (same concerning poorly documented expert billing)