CHRISTIAN J. MORAN, Special Master.
On September 12, 2013, Bo and Natalie DePena filed a petition for compensation on behalf of their son, Rhone, alleging that he developed pneumonia as a result of the administration of measles-mumps-rubella vaccine on September 15, 2010. The DePenas seek compensation pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012). The case remains pending as they have filed a motion for review. For the reasons set forth below,
Represented by Michael Baseluos, the DePenas filed their petition on September 12, 2013, with gathering and filing of medical records completed about two months thereafter. The Secretary reviewed the record and indicated that some medical records remained outstanding. Resp't's Status Rep. filed Dec. 12, 2013.
The DePenas investigated the availability of the records requested by the Secretary for several months. On May 28, 2014, the Secretary filed her report pursuant to Vaccine Rule 4. The Secretary asserted that the DePenas failed to establish that the MMR vaccine caused a vaccine-related injury and that the DePenas failed to satisfy their burden under any of the
During the ensuing status conference, the DePenas stated that they would retain an expert to opine on the case. Order, issued June 12, 2014. The process of locating an expert and obtaining a report took some time, with the first expert report of Boris Lokshin, a pediatric pulmonologist, being filed on February 28, 2015. Exhibit 21. The DePenas subsequently filed five additional expert reports from Dr. Lokshin. Exhibits 22, 23, 25, 30, and 31. The Secretary filed three expert reports from Neil Romberg, a pediatric immunologist. Exhibits A, P, FF.
A hearing was scheduled for February 11, 2016, in San Antonio, Texas. The parties submitted pre-hearing briefs. During the hearing, Dr. Lokshin testified but did not complete his testimony. Dr. Romberg also testified, providing a response to a portion of Dr. Lokshin's testimony. The hearing was then suspended to be resumed at a later date.
Following the first session of the hearing, the DePenas filed several additional articles from Dr. Lokshin as well as a demonstrative exhibit created during the hearing. With this record, another hearing was held, via videoconference, on April 12, 2016. During the second hearing, both Dr. Lokshin and Dr. Romberg completed their oral testimony.
On May 16, 2016, the DePenas filed their first motion for attorneys' fees and costs on an interim basis. The Secretary filed a response. While not stating any specific objections, she made observations. The Secretary noted that the total amount requested was $176,078.72, which included $77,981.00 in attorneys' fees and costs (apart from the costs associated with Dr. Lokshin), $8,268.31 in costs supposedly incurred personally by the petitioners, and $87,950.00 for expert fees.
The Secretary proposed that a reasonable award would fall between $80,000.00 and $100,000.00, suggesting that the undersigned "exercise his discretion" in determining a reasonable award of attorneys' fees and costs within the range she provided. Resp't's Resp., filed June 2, 2016, at 4.
On September 8, 2016, the DePenas filed their second motion for attorneys' fees and costs, providing a more detailed application that accounted for briefs filed after the hearing. The total requested amount is $194,402.41. The individual components are:
The Secretary responded, incorporating her previous response and recommending that the undersigned award fees and costs within the range provided. Resp't's Resp., filed Sept. 19, 2016, at 1.
With respect to the costs associated with Dr. Lokshin, the undersigned expressed some concern regarding Dr. Lokshin's proposed hourly rate and number of hours billed. Dr. Lokshin billed $500 per hour for a total of 221.70 hours. Mr. Baseluos defended the amount requested as well-founded due to the number of reports filed, the number of articles filed, and the complexity of the case. Mr. Baseluos's defense of Dr. Lokshin's invoice did not prevent him from indicating a willingness to discuss Dr. Lokshin's fees to reach a compromise. However, the Secretary maintained her position of not negotiating attorneys' fees and costs.
Another status conference to discuss Dr. Lokshin's invoice was held on February 17, 2017. There, the undersigned suggested that the Secretary present invoices that Dr. Romberg created. However, the Secretary resisted this suggestion, arguing that Dr. Romberg's invoice would not provide information that would help the undersigned evaluate the reasonableness of Dr. Lokshin's request. The DePenas for their part were ambivalent. In their view, the information already presented was sufficient to establish the reasonableness of Dr. Lokshin's work, but, if the special master wanted Dr. Romberg's invoices, then the DePenas were not opposed to the Secretary producing them.
The DePenas more formally presented their views in an amended motion for an award of attorneys' fees and costs, filed on February 20, 2017. "Counsel for petitioner has indicated that if the [special master] is contemplating a significant reduction in Dr. Lokshin's fees (the definition of `significant' being more than 20%), then petitioner asks the [special master] to demand respondent produce Dr. Romberg's invoices." Pet'rs' Updated App'n, filed Feb. 20, 2017, at 5. With this brief, the DePenas also took the opportunity to submit a request for additional compensation for Mr. Baseluos to reflect his efforts regarding attorneys' fees and costs.
In addition to the motions for an award of attorneys' fees and costs on an interim basis, the DePenas claim for compensation for Rhone's pneumonia remained pending. On February 22, 2017, a decision found that the DePenas failed to meet their burden of proof. 2017 WL 1075101. This decision did not end the case as the DePenas, on March 21, 2017, filed a motion for review.
The motion for review of the entitlement decision does not affect the outcome of the pending motions for an award of attorneys' fees and costs on an interim basis. The September 8, 2016 motion for attorneys' fees and costs is ready for adjudication and is resolved in this decision.
Broadly speaking, resolving a motion for an award of attorneys' fees and costs on an interim basis requires consideration of three issues. The first is whether the petitioner is eligible for attorneys' fees and costs. If the petitioner is eligible, then the second issue is whether the petitioner should receive any attorneys' fees and costs at this time. The third question is, assuming that some award is appropriate, what constitutes a reasonable amount in this case.
To be eligible for any award of attorneys' fees and costs, petitioners must satisfy the standards of good faith and reasonable basis.
The next question is whether an award of attorneys' fees and costs should be made now, that is, on an interim basis. This issue involves consideration of various factors, including protracted proceedings, costly experts, and undue hardship.
The DePenas satisfy these factors. Their attorney, Mr. Baseluos, gathered and filed medical records, obtained expert reports, attended two hearings, and the case has been pending for over three years without any previous award of interim fees and costs. Additionally, the DePenas have personally incurred costs, and there seems to be little reason to force petitioners to wait for reimbursement of these costs. Moreover, the Secretary did not raise any objection to an interim award during the November 15, 2016 status conference.
The last issue is determining a reasonable amount for attorneys' fees and costs. In the September 8, 2016 motion, the DePenas seek an award of $194,402.41 in attorneys' fees and costs. The Secretary maintained that the reasonable amount would not exceed $100,000.00.
The process of determining a reasonable amount of attorneys' fees involves the lodestar value.
Here, the DePenas request $76,308.10 in attorneys' fees. Mr. Baseluos has billed $251 per hour in 2013, $255 per hour in 2014, $257 per hour in 2015, and $265 per hour in 2016. When Mr. Baseluos performed tasks that a paralegal could perform, he billed $90 per hour.
The DePenas have not stated that they are requesting that Mr. Baseluos be compensated at rates prevailing in the forum.
For the number of hours, although not required, the undersigned has conducted a line-by-line review of the application for reasonableness.
"Draft/revise status report and enlargement of time. 0.40 hours." Consequently, the attorneys' fees are reduced to $73,000.00.
Attorneys' costs are those incurred in pursuit of the litigation. In this case, there are three categories of costs, those related to Mr. Baseluos, the DePenas, and the expert, Dr. Lokshin.
Mr. Baseluos is awarded $4,240.62 for incurred costs such as the transcript, videoconference room, etc. These are reasonable and well-documented, and, therefore, awarded in full.
The DePenas are awarded $2,150.00 for costs personally incurred in pursuit of this litigation. These costs are reasonable and adequately documented.
The remainder of costs concerns amounts billed by Dr. Lokshin. Like attorneys' fees, reasonable expert fees are determined using the lodestar method in which a reasonable hourly rate is multiplied by a reasonable number of hours. The DePenas request an award for Dr. Lokshin in the amount of $110,850.00 . This amount represents 221.70 hours at a rate of $500 per hour. See Pet'rs' Fee Mot., filed May 16, 2016, exhibit D at 8; Pet'rs' Second Fee Mot., filed Sept. 8, 2016, exhibit G at 1.
A reasonable hourly rate for an expert takes into account multiple factors. For example, experts who are experienced in the Vaccine Program work relatively quickly, and this efficiency translates to a relatively high hourly rate. Qualifications like board certification in a relevant discipline also support a relatively high hourly rate. A doctor's expertise can also be demonstrated by teaching medical school students as a professor of medicine and writing articles published in peer-reviewed journals.
In this case, petitioners have not established that Dr. Lokshin is entitled to $500 per hour. Preliminarily, this case was Dr. Lokshin's first time as an expert in the Vaccine Program. His newness to the Vaccine Program means that Dr. Lokshin must learn about the procedures in the Vaccine Program and this learning brings a certain inefficiency that does not affect the work of more experienced experts, who have been awarded $500 per hour.
Additionally, Dr. Lokshin's expertise does not match the relevant subject matter. As explained in the entitlement decision, Dr. Lokshin's theory was based on how the immune system (particularly B cells and T cells) responds to a pneumococcus infection. Thus, the relevant discipline was immunology.
Finally, even in pulmonology, Dr. Lokshin seems not to occupy a position that suggests that he is leading doctor, who would merit the highest hourly rate. He does not teach large classes of medical students. He is not conducting any research. He has not written any articles published in peer-reviewed journals since 1993. He does not serve as an editor on any medical journals. Exhibit 19; Tr. 75-80. The experts in the Vaccine Program who are compensated at a rate of $500 per hour typically, such as Dr. Steinman, have all these qualifications.
For these reasons, the petitioners have not established the reasonableness of compensating Dr. Lokshin at $500 per hour. Based on the undersigned's experience, a rate of $325 per hour is more commensurate with Dr. Lokshin's experience.
After a determination about a reasonable hourly rate, the next factor to consider is a reasonable number of hours. Here, Dr. Lokshin seeks compensation for 221.70 hours.
Dr. Lokshin, like Mr. Baseluos, submitted timesheets with thorough entries. Each entry contains a detailed description of the activity for which Dr. Lokshin has charged time. Dr. Lokshin summarized the medical records, wrote six reports, reviewed more than 70 articles, assessed the Secretary's expert reports, prepared for two days of hearing, and attended the two hearings. Pet'rs' Fee Mot., exhibit D. With one exception, the details in the invoices persuasively establish the reasonableness of Dr. Lokshin's efforts.
The finding that Dr. Lokshin spent a reasonable amount of time is premised upon the previous finding that reduced Dr. Lokshin's proposed hourly rate. Dr. Lokshin's proposed hourly rate was reduced because, in part, he did not have the requisite experience in immunology to work efficiently. Once Dr. Lokshin's hourly rate is modified to account for the time required to get up to speed on immunology, an additional reduction in the time spent on the case is not required.
Baseluos again instructed Dr. Lokshin to prepare another report. Exhibit 31. For his work in preparing these two reports, Dr. Lokshin has requested compensation for 45.8 hours. Pet'rs' Second Fee Mot., filed Sept. 8, 2016, exhibit G. Because the undersigned did not ask for additional reports from an expert, it was not reasonable to obtain more reports. A paying client would be unlikely to pay for work that the presiding special master did not request.
On the other hand, the April 15, 2016 order did instruct the parties to file briefs. If Mr. Baseluos had interpreted the term "briefs" to mean an argument summarizing existing evidence, then Mr. Baseluos would have spent time writing the briefs. So, in a way, Dr. Lokshin performed work that Mr. Baseluos should have performed. The work, therefore, is compensable.
Dr. Lokshin also incurred costs. Most are reasonable. However, he has charged $900.92 for a first-class airline ticket. Pet'rs' Fee Mot., exhibit E at 3. There is no persuasive evidence that a hypothetical paying client would agree to incur the expense of a first-class airline ticket. Therefore, the undersigned reduces this charge by $450. All other expenses incurred are reasonable, adequately documented, and paid in full.
The petitioners have established the reasonableness of the following items:
The award shall be paid as follows:
There is no just reason to delay the entry of judgment on interim attorneys' fees and costs. The Clerk shall enter judgment accordingly.
