CHRISTIAN J. MORAN, Special Master.
Marie Louise Moriarty and Stephen Moriarty claim that a vaccination harmed their daughter, Eilise, and seek compensation through the National Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2012). While their claim is presently before the Court of Federal Claims on a motion for review, the Moriartys are requesting an award of attorneys' fees and costs on an interim basis. The Moriartys' request totals approximately $200,000.00. The Secretary filed a weak response, maintaining that an appropriate amount for a case with a level of complexity similar to the one at hand falls into the range of $105,000 to $140,000.
The Moriartys are awarded $116,499.92 as an irreducible minimum. As explained below, this award serves to provide some reimbursement to the petitioners and their attorneys, who have been working on this case for more than a decade. It is highly likely that after petitioners adequately justify the amounts that they are requesting (especially with regard to the proposed hourly rates for the attorneys), the amount finally awarded to the petitioners will be increased. The Moriartys are encouraged to file a more detailed request for fees and costs at the end of the proceedings.
Before she was five years old, Eilise was diagnosed with developmental delays. She received special education services, which improved her functioning. Eilise received her second mumps-measles-rubella ("MMR") vaccine on January 2, 2001.
Within a month of this vaccination, Eilise started to have seizures and was diagnosed with epilepsy. The Moriartys claim that the MMR vaccine caused Eilise's epilepsy. The Secretary disputes this claim, arguing that the evidence fails to show that Eilise suffered an autoimmune reaction.
Before the Moriartys filed their motion for an award of attorneys' fees and costs on an interim basis, the case had been pending for more than 12 years. During this period, the case has been litigated in the Office of Special Masters, the Court of Federal Claims, the Court of Appeals for the Federal Circuit, and back to the Office of Special Masters on remand. The following is a brief summary of that history.
The medical records revealed that the original petition's claimed injury (that Eilise suffered from autism) was erroneous. Eilise has not been diagnosed with autism. Consequently, the Moriartys filed an amended petition, alleging that the MMR vaccination caused her to suffer seizures. Am. Pet., filed July 13, 2011, ¶ 10.
Both the Moriartys and the Secretary retained experts to support their positions. The Moriartys relied upon Yuval Shafrir, a board-certified neurologist. The Secretary relied upon John MacDonald, another board-certified neurologist.
The case proceeded to a hearing. The Moriartys and the Secretary filed post-hearing briefs. The Moriartys were found not entitled to compensation.
For the work their attorneys performed before the Office of Special Masters, the Moriartys requested $89,416.25 in attorneys' fees. In addition, almost all costs were incurred before the Office of Special Masters.
For proceedings at this stage, the Moriartys seek $26,926.50 in attorneys' fees, but minimal, if any, costs.
The Moriartys request approximately $40,000 for the work their attorneys performed with respect to the Federal Circuit appeal, plus a relatively small amount of costs.
While on remand, on September 4, 2016, the Moriartys filed an amended motion for an award of attorneys' fees and costs on an interim basis, requesting $203,845.17. The components of this requests are:
In response to the request for an interim award, respondent argued that a reasonable amount of attorneys' fees and costs for a case with this complexity would fall between $105,000.00 and $140,000.00. But, the Secretary did not challenge that the Moriartys were eligible for an interim award.
In the Vaccine Program, petitioners who have not received compensation are eligible for an award of attorneys' fees and costs when "the petition was brought in good faith and there was a reasonable basis for the claim." 42 U.S.C. § 300aa-15(e)(1). Here, the reports from Dr. Shafrir satisfy the reasonable basis standard. In addition, the Moriartys brought their petition in good faith.
Furthermore, an award of attorneys' fees and costs may be made on an interim basis.
The remaining question — the one the parties disputed in their briefing — is the reasonable amount of attorneys' fees and costs. This question is ready for adjudication.
In their amended motion, the Moriartys are currently seeking $183,162.30 in attorneys' fees. The total costs (petitioners' costs plus attorneys' costs) are $21,932.87. Pet'r's Am. Fee Appl'n at 1. These two components are addressed separately.
To determine a reasonable amount for attorneys' fees, special masters follow a two-step process. The initial step is determining a lodestar value, multiplying a number of hours reasonably expended on the litigation times a reasonable hourly rate.
In the lodestar analysis, "a reasonable hourly rate is the `prevailing market rate,' defined as the rate `prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'"
The
Here, the Moriartys seek compensation for work performed by three attorneys (Clifford Shoemaker, Renee Gentry, and Sabrina Knickelbein). The attorneys began working on this case in 2003, although not all attorneys worked in all years. Depending on the year the work was performed, for Mr. Shoemaker, the Moriartys propose rates starting at $278 per hour and increasing to $415 per hour. For Ms. Gentry, the Moriartys ask for rates from $251 per hour to $415 per hour. Finally, for Ms. Knickelbein, the Moriartys request between $225 per hour and $363 per hour. The Moriartys supplied no information explaining how these hourly rates were determined.
An investigation reveals that the proposed rates exceed rates special masters have awarded in published decisions. For example, in
Thus, it appears that the proposed rates cannot be accepted automatically as they are inconsistent with previous decisions.
A thorough analysis to determine a reasonable hourly rate for three attorneys for approximately 12 years is likely to be a time-consuming process. While special masters frequently find another special master's findings regarding hourly rates to be reasonable, the Moriartys have not cited any cases to support their proposed hourly rates. Thus, there is a gap in the Moriartys' presentation. This gap is even more noticeable because these attorneys, who frequently represent petitioners in the Vaccine Program, have litigated their hourly rates in other cases.
Fortunately, there is a solution to this problem. In an exercise of discretion, the undersigned will compensate the attorneys at a low hourly rate now in this decision awarding attorneys' fees on an interim basis with an expectation that the Moriartys will present information, evidence, and argument regarding reasonable hourly rates in a future fee application.
Several factors support awarding some minimal amount of attorneys' fees now. First, the case has been pending approximately 13 years during which the attorneys have not been compensated. The duration of this case is anomalous, making it an appropriate case to award attorneys' fees and costs on interim basis. Second, the amount requested in attorneys' fees (more than $100,000) is, by the standards in the Vaccine Program, relatively large. Third, the case seems unlikely to resolve soon making an interim award more appropriate.
For purposes of finding some minimal hourly rate, the undersigned will use the rates from
For years 2006-16, Mr. Shoemaker will be compensated at $250 per hour. It bears emphasis that the $250 per hour is an initial interim award. After the Moriartys submit additional information as part of a request for final fees, Mr. Shoemaker will, most likely, be compensated at a higher rate adjusted for inflation. The present decision, however, does not adjust for inflation because the parties should present arguments about what index should be used.
After 2004, Ms. Gentry resumed working on this case in 2012. For her work in 2012 through 2016, Ms. Gentry is being compensated at a rate of $200 per hour. Again, this rate is likely to be increased as part of a final award, provided the Moriartys present some persuasive justification for an hourly rate exceeding $200 per hour from 2012 through 2016.
Most of Ms. Knickelbein's work took place in 2011 and 2013. For these years (and all years), she is being compensated at the rate of $155 per hour. This rate of compensation is appropriate because the work she performs is work that a paralegal can perform. Reasoned decisions of special masters have compensated Ms. Knickelbein at rates closer to paralegal rates, and appellate authorities have endorsed these decisions.
With the finding of a reasonable hourly rate for the purpose of making an interim award, the first step in the lodestar calculation is accomplished. The second step is to determine a reasonable number of hours.
Quoting a decision by the United States Supreme Court, the Federal Circuit has explained some of the limits on the number of hours for which compensation may be sought:
Here, the Moriartys rely upon the attorneys' timesheets as the basis for the number of hours. The timesheets show that in the 13 years of litigation, Mr. Shoemaker spent 256.95 hours, Ms. Gentry 171.35 hours, and Ms. Knickelbein 45.70 hours.
However, the entries on the timesheet often contain an insufficient amount of information to assess the reasonableness of the activity. Many entries, frequently from Mr. Shoemaker, contain five or fewer words, such as "Review file and email Sabrina" (7/12/2011) or "Review records received" (9/26/2011). In light of the lack of specificity in the time records, the undersigned uses his discretion and experience to reduce the time spent by 10 percent.
The result of the lodestar calculation is $94,824.00.
In addition to seeking an award of attorneys' fees, the Moriartys seek reimbursement for costs that either they ($1,250) or their attorneys ($20,682.87) have incurred. Of the various items comprising all those costs, only one is excluded.
The one item that the Moriartys have not justified is $256.95 to stay at the Sofitel Hotel before the Federal Circuit oral argument. Because their attorney lives relatively close to Washington, DC, where the Federal Circuit held argument, alternatives to staying in a relatively expensive hotel were available. The attorney has not explained why a paying client would pay this cost.
The remaining items, including Dr. Shafrir's invoice, are reasonable and adequately documented. The Moriartys are awarded their costs personally incurred ($1,250). The Moriartys are also awarded $20,425.92 in attorneys' costs.
An interim award of attorneys' fees and costs is appropriate at this time. The Moriartys are awarded $94,824.00 in attorneys' fees and a total of $21,675.92 in costs.
Accordingly, the award shall be paid as follows:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. The Clerk shall enter judgment accordingly.
