THOMAS L. GOWEN, Special Master.
On April 12, 2018, Steven Forrest and Nicole Forrest ("petitioners") filed a motion for attorneys' fees and costs. Petitioners' Motion (ECF No. 123). For the reasons discussed below, the undersigned
On January 14, 2010, Steven Forrest and Nicole Forrest, as the representatives of the estate of their deceased minor child, E.M.F., filed a claim in the National Vaccine Injury Compensation Program ("Vaccine Act" or "the Vaccine Program").
On April 12, 2018, petitioners filed their motion for $87,545.00 in attorneys' fees and $46,514.77 in attorneys' costs. Petitioners' Motion (ECF No. 123). On April 17, 2018, respondent filed a general response leaving the determination regarding attorneys' fees and costs to the undersigned's discretion. Respondent's Response (ECF No. 125). On April 18, 2018, an initial review determined that petitioners' motion lacked any supporting documentation for the attorneys' costs requested in the motion. I ordered petitioners to file a reply containing all such documentation. Scheduling Order (ECF No. 126). On April 20, 2018, petitioners filed a reply with documentation for their costs. The reply provided that petitioners' counsel "ha[d] spoken to Dr. Waters and she has supplemental information that can be provided but needs an additional 30 days due to her current schedule." Petitioners' Reply (ECF No. 127). Petitioner was granted an additional month, until May 17, 2018, to file any further reply. Non-PDF Order granting Petitioners' Motion for Extension of Time (ECF No. 128).
On May 17, 2018, petitioners filed a supplemental reply. While the motion initially requested reimbursement for Dr. Waters totaling $29,290.00, the reply and the supplemental reply requests an increased total of $44,715.00. See Petitioners' Supplemental Reply (ECF No. 129), Exhibit 1 at 2.
Thus, petitioners' final request is for $87.545.00 in attorneys' fees and $61,332.77 in attorneys' costs, for a total request of $148,877.77. The matter is now ripe for adjudication.
Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs for a petition that does not result in an award of compensation, but was filed in good faith and supported by a reasonable basis. § 300aa-15(e)(1). I find no cause to doubt the good faith or reasonable basis of bringing this claim, which, even though not successful, was supported by credible fact witnesses and competent expert opinion. Additionally, respondent has not objected to the good faith or reasonable basis of the claim. Accordingly, I find that petitioners are entitled to an award of reasonable attorneys' fees and costs.
Petitioners "bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred" are reasonable.
Petitioners request that their counsel, Ms. Hayes, receive a rate of $200 per hour for work performed from 2009 - 2011 and $275 per hour for work performed from 2012 - 2018. These requested rates are well within the ranges I found reasonable for an attorney of her experience in
I have also reviewed the billing records. They reflect the nature of each task performed and the amount of time involved on the same. I generally find them to be reasonable. In this instance, I will not adjust the hours expended.
Like attorneys' fees, costs must also be reasonable.
Petitioners also request reimbursement for the Murray Law Firm' payments of certain travel expenses incurred by an individual named Geoffrey Dumont. Petitioners' Motion, Exhibit 2 at 2. Petitioners' reply provides that the Murray Law Firm employed Mr. Dumont as a court runner. The firm reimbursed Mr. Dumont for mileage associated with travel in support of this claim. However, mileage on one trip was double-billed. Petitioners and their counsel request that the fee request is reduced to correct for this double-billing. Petitioners' Reply at 2.
Petitioners also request that the Murray Law Firm should be reimbursed for $3,367.87 in legal database "research" charges. Petitioners' Motion, Exhibit 2 at 2. The firm has only provided a list of these charges on particular dates. For example, the first charge is dated September 30, 2010, the payee is Westlaw, the detail is "research," and the debit amount is $420.33. Id. Petitioners have not submitted any specific invoices or other documentation that the charges were paid. In my experience, a firm such as the Murray Law Firm typically purchases access to a legal research database such as Westlaw. The firm pays a negotiated fee on a monthly or yearly basis. The database provides the firm with a list of charges for research performed in a particular case. The firm can provide this list to its client, as a representation of the value of that research. However, this list generally bears no relationship to the research costs actually incurred in the case. The Vaccine Program has traditionally treated subscriptions to legal research databases as office overhead costs, which are not compensable. I see no reason to deviate from this policy in this case.
Petitioners request $44,715.00 for costs associated with their expert Dr. Laurel Waters. Petitioners' Reply, Exhibit 1 at 2. Several adjustments need to be made to this figure.
First, with regard to hourly rates, Dr. Waters charged $500 per hour for "records review, slide review, deposition review, discussions with counsel, discussions with parents, and composing reports." Petitioners' Reply, Exhibit 2 at 1. She charged $750 per hour for participation in any deposition or trial.
Dr. Waters is a fairly new participant in the Vaccine Program. Last year, Chief Special Master Dorsey had the first opportunity to evaluate Dr. Waters' qualifications and quality of expert opinion. She found that it was reasonable to award Dr. Waters $400 per hour for rendering expert opinions in two different cases.
I find Chief Special Master Dorsey's reasoning in
One distinction is that unlike
It is also necessary to reduce Dr. Waters' requested travel rate of $300 per hour. Within the Vaccine Program, hours spent traveling are ordinarily compensated at one-half the individual's working hourly rate (unless the individual documents that he or she worked on the case while traveling).
Dr. Waters's invoices also bill for a "legal nurse." This individual's name and qualifications are unknown. They request $100 per hour for 24.5 hours of work. The billing entries are fairly vague but suggest that the individual performed research on medical topics for Dr. Waters. Petitioners' Supplemental Reply, Exhibit 1 at 1-5. Chief Special Master Dorsey's previous decisions involving Dr. Waters do not involve costs for a legal nurse. And in the present case, Dr. Waters has provided little to no information about the necessity for this person. I am willing to accept that the nurse performed research at a rate that is reasonably low and certainly lower than what was billed by Dr. Waters. Although I would caution Dr. Waters to provide more detail in the future, the amount of work performed by the nurse does not seem excessive. Thus, it will be awarded.
Dr. Waters also bills for an unnamed "technical editor" who requests $75 per hour for 23 hours of work, described solely as "edit report by sections and overall." Petitioners' Supplemental Reply, Exhibit 1 at 1, 4. This work was all performed in September 2014, shortly before Dr. Waters's first report was filed with the Court.
Dr. Waters billed $932.88 for staying four nights in a hotel, as part of her participation in the entitlement hearing in New Orleans, Louisiana in December 2015. This also merits adjustment.
The parties and I had agreed that the hearing should take place in New Orleans, for the petitioners' convenience. Two days — Monday, December 7 and Tuesday, December 8, 2015 — were reserved. The hearing actually took only one day. It ended on Monday, December 7, 2015 in the early evening. See Transcript (ECF No. 109) at 244.
It is customary for attorneys and witnesses to travel to a hearing's location one day before a hearing begins and to depart one day after. Thus, it was certainly reasonable for Dr. Waters (who is based outside of San Francisco, California, but traveled to testify in person) to stay in a hotel in New Orleans on Sunday, December 6, 2015 and on Monday, December 7, 2015. From the standpoint most favorable to Dr. Waters — i.e., that she committed to two full days of hearing, booked her travel and accommodations in advance, and could not change them — it might be considered reasonable that Dr. Waters also stayed at the hotel on Tuesday, December 8, 2015.
However, the receipts reflect that Dr. Waters always planned and indeed did stay in New Orleans a fourth night, Wednesday, December 9, 2015. Petitioners' Reply, Exhibit 2 at 11. Her flight out of New Orleans was on Thursday, December 10, 2015 at 5:55 p.m. Petitioners' Reply, Exhibit 2 at 9. Even when viewed in the light most favorable to Dr. Waters, this is unreasonable. There was no reason to remain in New Orleans for another day and night after the proceedings, and bill the Vaccine Program for a fourth night in a hotel. (This is supported by the fact that after the hearing concluded and Dr. Waters remained in New Orleans, she did not bill for any work on the case). Thus, Dr. Waters should not be reimbursed for 25% of the hotel bill.
Finally, Dr. Waters's fee schedule provides for a $2,500 "retainer (applied to final 3-5 hr)." Petitioners' Reply, Exhibit 2 at 1. In this case, Dr. Waters submitted itemized invoices for $15,425; $11,650; and $15,140. She
In accordance with the foregoing, petitioners' motion for attorneys' fees and costs is
Accordingly, I award the following:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court
Additionally, petitioners' motion initially did not request reimbursement for Dr. Waters's travel to the entitlement hearing. Those costs were only addressed in petitioners' reply and their supplemental reply.
