BRIAN H. CORCORAN, Special Master.
On June 10, 2009, Jill Barrett, on behalf of her minor child, K.B.,
Ms. Barrett subsequently filed a motion for reimbursement of attorneys' fees and costs on May 17, 2013 ("Fee App."). Ms. Barrett specifically requests compensation for her attorney, Mr. Ronald Homer, and other attorneys working at his firm, as well as another attorney, Mr. John Gismondi, who performed work in 2006 and 2008 prior to the filing of the petition. (Id. at Tab C). She also requests reimbursement of out-of-pocket costs incurred for establishing a guardianship for K.B., plus related costs she anticipates she will incur in the future through the administration of the guardianship. (Id. at Tab D). In total, Ms. Barrett requests $47,780.10 for attorneys' fees, $48,912.42 for attorneys' costs, and $49,725.00 for guardianship costs. (Id. at 1).
Respondent filed an opposition on June 3, 2013 ("Fee App. Opp."), outlining several objections to the two broad categories of requested reimbursements. With respect to the attorneys' fee requests, Respondent objected that (a) Mr. Homer and his firm, Conway, Homer & Chin-Caplan, P.C. (the "Homer Firm") had overcharged for the work performed and/or engaged in duplicative billing practices, (b) Petitioner's counsel had improperly charged for travel time, and (c) Petitioner had failed to substantiate the reasonableness of Mr. Gismondi's hourly rate. (Fee App. Opp. at 4-5). Respondent also challenged Petitioner's request for $49,725.00 in anticipated costs relating to the future operation of the guardianship. (Id. at 6).
Petitioner thereafter filed a reply on June 20, 2013 ("Reply") as well as some supplemental requests asking for the additional fees incurred in litigating this dispute.
Ms. Barrett's application for attorneys' fees and costs is now ready for adjudication. As set forth in greater detail herein, it is my reasoned decision that Petitioner is entitled to most of her attorneys' fee request, with some slight reductions for the work done by Mr. Gismondi, but should not be awarded the costs associated with anticipated guardianship activities in the future.
Petitioners in the Vaccine Program who receive compensation are entitled to an award of their attorneys' fees and costs. However, such fees and costs must be "reasonable." (42 U.S.C. § 300aa-15(e)(1) (2012)). It is for the special master to evaluate and decide whether this is the case. See Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). To this end, the special master has discretion in determining what is a reasonable fee award, and may reduce hours sua sponte, apart from objections raised by Respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Perreira, 27 Fed. Cl. at 34 (special master has "wide discretion in determining the reasonableness" of attorneys' fees and costs).
The special master is not obligated to evaluate fee petitions on a line-by-line basis. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993) (approving the special master's elimination of 50 percent of the hours claimed); see also Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master's reduction in the number of hours from 515.3 hours to 240 hours); Edgar v. Sec'y of Health & Human Servs., 32 Fed. Cl. 506 (1994) (affirming the special master's awarding only 58% of the numbers of hours for which compensation was sought). As the U.S. Supreme Court instructs, when awarding attorneys' fees, trial courts may use estimates to achieve "rough justice." Fox v. Vice, 131 S.Ct. 2205, 2216 (2011).
Reasonable attorneys' fees are determined using a two-part process. The initial determination uses the lodestar method — "`multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second step is adjusting the lodestar calculation upwards or downward. (Avera, 515 F.3d at 1348). This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).
An attorney's reasonable hourly rate is more precisely understood to be the "prevailing market rate" in the relevant forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), review denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir. 2011). That rate is in turn determined by the "forum rule," which bases the award rate on the rates paid to similarly qualified attorneys in the forum where the relevant court sits (Washington, D.C. for Vaccine Act cases). Avera, 515 F.3d at 1348.
Evaluating an attorneys' fee application involves more than the mere performance of a mathematical calculation. In analyzing all stages of the lodestar calculation, I must determine if the fee applicant has established the reasonableness of the relevant component. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986) ("[i]t remains counsel's burden to prove and establish the reasonableness of each dollar, each hour, above zero.")
Saxton, 3 F.3d at 1521 (Fed. Cir. 1993) (quoting Hensley, 461 U.S. at 433-34).
Petitioners bear the same reasonableness burden in seeking to obtain an award of costs. Perreira, 27 Fed. Cl. At 34; Presault v. United States, 52 Fed. Cl. 667, 670 (2002). When petitioners fail to carry this burden, such as by not providing appropriate documentation to substantiate a requested cost, special masters have refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec'y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). This practice is consistent with how the Federal Circuit and the Court of Federal Claims, the immediate courts that review decisions of special masters, have interpreted other federal fee-shifting statutes. See Naporano Iron & Metal Co. v. United States, 825 F.2d 403, 404 (Fed. Cir. 1987) (interpreting the Equal Access to Justice Act); Presault, 52 Fed. Cl. at 679 (interpreting the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970).
Respondent raises challenges to both the attorneys' fee portion of Ms. Barrett's Fee Application as well as certain components of her costs request.
Petitioner's request for $49,725.00 in costs associated with the operation of a guardianship to be established to help administer K.B.'s Program Award constitutes slightly more than one-third of the Petitioner's total Fee Application. Before considering whether to award these costs, it would be helpful to review the specific aspects of the procedural history relevant to the guardianship in this case.
In this action, the parties' life care planners succeeded in agreeing upon the amount of care K.B. would require in light of her vaccine-related injury. To that end, they entered into a Proffer that formed the basis of the special master's entitlement decision and subsequent Judgment in this case. (See Proffer, dated October 24, 2012 (ECF No. 79)). In addition to specifying lump sum payments to be made directly to Petitioner
Although the Proffer and the Judgment are silent as to the total amount of the annuity, the case docket indicates (in an unnumbered docket entry from December 21, 2012) that one was purchased in the amount of $2,200,000. A chart appended to both the Proffer and the special master's subsequent November 19, 2012 Decision (Tab A) and entitled "Summary of Life Care Items — Agreed Life Care Plan dated October 12, 2012" projected the annual payments from the annuity for K.B.'s care from 2012, when K.B. was 7, until she became 80 years old. The sum of anticipated yearly annuity payments to K.B. while she was a minor (i.e. until she reached the age of 18) but not included in the lump sum payments was $92,006. (ECF No. 80-2 at 1 (Tab A)).
The Proffer also specifically conditioned payment of the entitlement award on Ms. Barrett's certification that either she or another party "appointed by a court of competent jurisdiction" had been named guardian for K.B. (Proffer at 5-6). It similarly provided that the annuity "shall make payments directly to petitioner as guardian/conservator," thus envisioning that a guardianship would be in place before such payments could be made. (Id.). This requirement was carried over into the decision awarding compensation in this case and subsequent Judgment.
The following year (and in the midst of litigating this fee application), Ms. Barrett filed in this action an Order from the Court of Common Pleas of Allegheny County, Pennsylvania, Orphans' Court Division (the "Orphans' Court"), dated September 2013. The Order indicated that First Commonwealth Bank-Trust had been appointed legal guardian for K.B.'s estate. (September 13, 2013 Notice (ECF No. 96)). The Orphans' Court Order specifically provides that K.B.'s guardian is to file an annual report, but is otherwise silent as to the guardian's responsibilities, and does not refer to the Judgment from the Vaccine Court that mandated the establishment of the guardianship in the first place.
In support of her requests for future guardianship costs, Ms. Barrett offers a document, dated May 16, 2013 and titled "Estimate for Ongoing Costs Associated with Guardianship" from Michael D. Flynn, Esq., the attorney who appears to have performed the tasks necessary for the establishment of the guardianship. (Fee App. at 95). Mr. Flynn provides a breakdown of anticipated costs associated with having the guardian prepare an Orphans' Court petition for disbursement of funds from K.B.'s annuity. (Id.). Mr. Flynn estimates that it will cost $828.75 each time a disbursement of funds from the guardianship is required, and further calculates that the guardian will need to obtain approximately six disbursements each year for the next ten years. (Id). Thus, according to Mr. Flynn, ensuring the guardianship's access to K.B.'s annuity disbursements for the next ten years will cost nearly $50,000. (Id.)
In response to my request for additional briefing on the matter, Petitioner has also offered a declaration from Mr. Flynn in which he attempts to explain the need for his future services based upon Pennsylvania law. (ECF No. 100 at 9-11). Mr. Flynn asserts that 20 Pa. Cons. Stat. Ann. § 5164 (2006) ("Section 5164")
Mr. Flynn's cost estimate notably excludes the costs associated with setting up the guardianship for K.B. However, Ms. Barrett's application separately accounted for those costs, including them in the attorneys' costs section of her overall fee application. As established by the April 9, 2013 and May 14, 2013 invoices appended to the end of Tab B of Ms. Barrett's Fee Application, these costs total $1,192.00. (See Fee Application at 52-54).
Respondent raises several objections regarding Ms. Barrett's requested guardianship costs. (Fee App. Opp. at 6-9). First, Respondent argues that it is improper to award Ms. Barrett the cost of establishing the guardianship because such costs have not been awarded in prior decisions, and to do so here would be contrary to the Act. (Id. at 6-7). These objections are unpersuasive. Though it is true that in the past guardianship establishment costs were not routinely compensated over the history of the Vaccine Program, over time the special masters have usually awarded such costs where the guardianship is established as a condition of the settlement and/or judgment in the matter. See, e.g., Torres v. Sec'y of Health & Human Servs., No. 09-867V, 2013 WL 2256136 (Fed. Cl. Spec. Mstr. Apr. 30, 2013); Cansler v. Sec'y of Health & Human Servs., No. 09-596V, 2011 WL 597791 (Fed. Cl. Spec. Mstr. Feb. 2, 2011); Ceballos v. Sec'y of Health & Human Servs., No. 99-97V, 2004 WL 784910 (Fed. Cl. Spec. Mstr. Mar. 25, 2004).
In this case, the existence of a proper guardianship was a prerequisite to payment of the entitlement award, and therefore was contemplated by the parties before entry of judgment. Costs incurred in direct connection with the terms of the Judgment itself can be reasonably construed as "proceedings on a petition" (§ 300aa-15(e)(1)) because they are only incurred as a condition of payment. See Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 782 (2010). In addition, the costs associated with the guardianship's creation are both modest and in line with similar costs incurred in other cases. See, e.g., Amar v. Sec'y of Health & Human Servs., No. 06-221V, 2011 WL 6077558, at *24 (Fed. Cl. Spec. Mstr. Nov. 10, 2011) (awarding $3,520.50 for guardianship costs); Doe 21 v. Sec'y of Health & Human Servs., No. 02-411V, 2011 WL 6941671, at *10 (Fed. Cl. Spec. Mstr. Oct. 26, 2011) (awarding $3,590.00 for guardianship costs); Finet ex rel. Finet v. Sec'y of Health & Human Servs., No. 03-348V, 2011 WL 597792, at *3 (Fed. Cl. Spec. Mstr. Jan. 31, 2011) (awarding $7,440.00 for guardianship costs). I thus find that the awarding of this category of guardianship-related costs is both sensible and permissible under the Act.
Second, Respondent objects to awarding Ms. Barrett her anticipated legal costs associated with the guardian's future exercise of its duties. Here, Respondent is on firmer ground. As Respondent points out, such costs have not yet been incurred in the literal sense of being owed "at present." (Fee App. Opp. at 7-9). Rather, Petitioner anticipates having to pay attorneys' fees to fund the guardian's repeated trips to the Orphans' Court to file motions for "allowance" permitting an annuity disbursement. (Reply at 9). Granting this aspect of the Fee Application therefore entails awarding costs that Ms. Barrett not only does not presently owe, but may well never owe, depending on the future vagaries of life.
This the Act does not permit. (See 42 U.S.C. § 300aa-15(e)(1) (special masters may only award reimbursement for costs "
Equally problematic is Petitioner's failure to establish that the requested costs are necessary — that Pennsylvania law actually requires a guardian to make multiple applications per year to the Orphans' Court in order to fund the care contemplated in Ms. Barrett's entitlement award. Petitioner cites to no case law in which this has occurred in the past or been permitted by the decision of a special master. And the state law authority Ms. Barrett cites as the basis for her request (Section 5164) actually suggests the opposite: that annuity payments may be freely disbursed by the appointed guardian so long as they are intended to pay for K.B.'s welfare. (Id. ("[a]ll income received by a guardian of the estate of a minor . . . may be expended in the care, maintenance and education of the minor without the necessity of court approval") (emphasis added)).
Because Petitioner's fee application did not adequately address this facial contradiction between her argument and the plain language of the cited provision of Pennsylvania law, I provided Petitioner the opportunity to brief these points in greater detail. I also invited Respondent to reply. (See ECF No. 99). With her supplemental briefing, Petitioner offered a declaration from Mr. Flynn in which he states that Pennsylvania law does in fact require his services in order to obtain the annuity payments. (Supp. Brief at 9-11).
I note generally that an attorney's naked opinion, sworn or otherwise, as to what the law is has low value to a court — and in fact invades the province of this tribunal in determining the law. See, e.g., Mola Dev. Corp. v. United States, 516 F.3d 1370, 1379 n.6 (2008) (affording no weight to affidavit of former government official interpreting thrift regulations); El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1361 (Fed. Cir. 2004) ("it is emphatically the province and duty of the judicial department to say what the law is") (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). Because the Federal Rules of Evidence do not govern this proceeding, I am not prohibited from considering this declaration
But even if I ignore the conclusory character of Mr. Flynn's assertions, I do not find that the contents of his declaration substantively support Petitioner's argument. Mr. Flynn provides no other citations to relevant Pennsylvania authority establishing that the annuity payments can only be accessed after obtaining leave of the Orphans' Court. In an effort to get around the plain language of the statute, Mr. Flynn interprets Section 5164 to apply "only to income, and not to principal amount." (Supp. Brief at 10 (Flynn Dec. ¶ 4) (emphasis in original)). Thus, according to Mr. Flynn, "[t]he portion of Section 5164 pertaining to `income' is only applicable to any income generated by K.B.'s Vaccine Program award," (Id.) and therefore the monies disbursed from the annuity purchased on K.B.'s behalf constitute its "principal," making it necessary to seek Orphans' Court approval before they can be obtained.
This argument reflects a misunderstanding of how an annuity functions. Black's Law Dictionary defines "annuity" to be "[a]n obligation to pay a stated sum, usu. monthly or annually, to a stated recipient. These payments terminate upon the death of the designated beneficiary." Black's Law Dictionary (9th ed. 2009). As the Supreme Court of Pennsylvania has similarly noted, an annuity "designates a right—bequeathed, donated or purchased—to receive fixed, periodical payments, either for life or a number of years. Its determining characteristic is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived." Commonwealth v. Beisel, 338 Pa. 519, 521, 13 A.2d 419, 420-21 (1940)(emphasis added); see also Unisys Corp. v. Pennsylvania Life and Health Ins. Guar. Ass'n, 667 A.2d 1199, 1202 (Pa. Commw. Ct. 1995), aff'd, 546 Pa. 256, 684 A.2d 546 (1996).
Accordingly, the very definition of annuity recognizes a distinction between the principal amounts that form its core (and in which K.B. has no interest) and the payments it generates for her use. K.B.'s guardian cannot invade the annuity in order to pay for her care — but more importantly, she need not. Rather, the guardian only has to follow the terms of the life care plan and apply the payments the annuity generates toward the costs of K.B.'s care. It is therefore reasonable to understand the annuity payments to constitute "income" as the term is used in Section 5164. This is consistent with the statute's actual definition of income as incorporated in Section 5164. Section 5164 specifically references Title 20, Chapter 81 for its definition of income. That subsection of the "Decedents, Estates and Fiduciaries" statute defines income as "money or property which a fiduciary receives as current return from a principal asset." 20 Pa. Cons. Stat. Ann. § 8102 (2006). Such a definition reasonably includes the annuity payments that K.B.'s guardian will receive for her care, since those payments are the "return" on the annuity's principal value (and in fact, the annuity is crafted specifically in consideration of the anticipated magnitude of payments required).
The terms of the Orphans' Court Order creating the guardianship also do not aid Ms. Barrett's argument. That Order only requires the appointed guardian (a financial institution) to make an annual report as to its activities, and says nothing about applying to the Orphans' Court for allowances to spend the annuity payments. Mr. Flynn's cost projections do not appear to include the cost of preparing such a report — a more limited category of cost, but one special masters have denied. See, e.g., Fowler, 2013 WL 5513880, at *1.
Ms. Barrett's supplemental brief suggests that to disallow these costs would subvert the remedial goal of the Program award already granted in this case. (See Supplemental Filing at 5).
Respondent has affirmatively stated that she has no objection to the hourly rate of the various Homer Firm attorneys who performed services in this matter. Because those rates appear reasonable to me in light of both other cases involving Homer Firm attorneys, and because they seem to reflect a reasonable hourly rate calculation under Avera and the decisions of other special masters, I will accept them as the basis for the lodestar calculation for the Homer Firm's fees in this case. See Avera, 515 F.3d at 1353(Rader, J., concurring). My analysis instead focuses on the reasonableness of the work performed and the time taken to do it.
Without identifying more than a few billing entries or proposing specific reductions, Respondent makes a series of objections to Petitioner's request for $47,780.10 in attorneys' fees. First, Respondent objects to the Homer Firm's "common practice" of "multiple attorneys . . . bill[ing] for attending the same meeting." (Fee App. Opp. at 4). Respondent maintains that this practice is "duplicative and unreasonable, and should be disallowed." (Id. at 4-5).
Ms. Barrett attempts to rebut this assertion by arguing that the Homer Firm's use of multiple attorneys "is important in providing the best representation possible, and is consistent with their professional obligations to represent their client." (Reply at 3). Petitioner further notes that the Homer Firm has "operat[ed] this way since the Vaccine Program's inception." (Id. at 2).
There is no doubt that the Homer Firm — a small law firm when compared with many of the national firms that employ hundreds of attorneys — enjoys a unique position among the practitioners in the Vaccine Program, both in terms of the number of counsel it employs (and can therefore assign to a matter) as well as the concomitant expertise it can marshal on behalf of its clients.
Nevertheless, the mere fact that a Vaccine Program-oriented firm staffs its cases with large numbers of attorneys (in comparison to other Program practitioners) does not inexorably lead to the conclusion that its fees must always be reduced. Rather, the important question is "whether having [multiple] attorneys is unreasonable." Davis, 2012 WL 4748079, at *2 (emphasis added). It need not be automatically assumed that multiple attorneys cannot efficiently and productively work on the same matter, applying their skills and performing their duties in a complementary, non-duplicative manner. Indeed, this is a common practice among lawyers outside the Vaccine Court. See, e.g., Applegate v. United States, 52 Fed. Cl. 751, 770 n.32 (2002) ("[b]ased on the complexity of the issues in this case, the court finds that the use of multiple attorneys was reasonable and likely contributed to the ultimate success in this matter").
Thus, simply objecting to the Homer Firm's use of multiple lawyers is not a sufficient basis for reducing this, or any other, fee application. Rather, some specific instances in which unnecessary duplication appears from the billing records should be identified — and such duplication should be widespread and significant as well if it is to justify the "consuming of judicial resources" that will be required to identify and then strike redundant time from a fee application. See Caves, 2012 WL 6951286, at *4 (citing Melnikova v. Sec'y of Health & Human Servs., No. 09-322V, 2012 WL 1339606 (Fed. Cl. Spec. Mstr. Mar. 27, 2012) (reducing a fee request by $272.50 for a total of one hour spent by four different attorneys from the Homer Firm)).
Here, Respondent has identified only three instances of purported duplication (see Fee App. Opp. at 4). Thus, Respondent specifically objects to: (i) "attorneys Homer and Ciampolillo each bill[ing] 0.5 hours for a case meeting" on December 15, 2009, to (ii) "attorneys Homer and Fashano each bill[ing] 0.2 hours for a case meeting" on January 4, 2010, and to (iii) "attorneys Homer and Pepper each bill[ing] 0.3 hours for a case meeting" on January 20, 2010. (Id). Respondent notes that these three entries "appear on one page of billing." (Id. (citing Fee Application at 10)).
After review of the billing records and attorney time sheets appended to the Fee Application, I find that the Homer Firm's practice of its multiple attorneys individually billing for their meetings with one another was not so widespread in this particular case as to warrant any reduction in the fee request. Although the practice could in some circumstances amount to an unnecessary and unreasonable use of time, the amount of allegedly duplicative time in this case appears minimal. Thus, no time will be reduced from Petitioner's fee application based on this objection.
Respondent next objects to Mr. Homer individually charging his full hourly rate for five hours of travel time to and from an onsite visit with Petitioner, asserting that "there is no evidence in the invoice to support a full rate award." (Fee App. Opp. at 5). Ms. Barrett counters this argument by stating that Mr. Homer was working while traveling to and from the onsite visit. (Reply at 3). Petitioner also asserts that "preparation in the hours leading up to the onsite visit was essential" because "the damages phase of this case was complex." (Id.) Thus, "[t]hese fees are reasonable and should be compensated at counsel's full hourly rate." (Id.)
Special masters generally award Petitioners' attorneys half their hourly rate for travel, based on the assumption that attorneys do not work at their full capacity when traveling. See, e.g., Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2013 WL 1189451, at *16 (Fed. Cl. Spec. Mstr. Mar. 1, 2013). However, this rule of thumb is not ironclad, and should yield to those instances in which the attorney can substantiate that his travel time was applied to work. Kuttner v. Sec'y of Health & Human Servs. No. 06-195V, 2009 WL 256447 at *10 (Fed. Cl. Mstr. Jan. 16, 2009) ("[W]hether travel should be billed at ½ time or full time depends on whether counsel is working while traveling, the fact of traveling by itself is not determinative ... Thus, if counsel can establish how much of the travel time is devoted to working, those hours will be compensated fully"). Full time for travel has been awarded when, for example, the attorney's records demonstrated that he used that time to prepare for trial or otherwise established that the time was productively spent. See generally Calise v. Sec'y of Health & Human Servs. No. 08-865V, 2011 WL 2444810 at *6 (Fed. Cl. Spec. Mstr. Jun. 13, 2011); Burgess v. Sec'y of Health & Human Servs. No. 07-258V, 2011 WL 159760 at *2 (Fed. Cl. Spec. Mstr. Jan. 3, 2011). As always, the petitioner bears the burden of establishing the reasonableness of her fee request. See Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991).
Mr. Homer has provided a plausible defense for charging his full rate for these five hours of time. Respondent in turn has identified no reason for me to doubt the veracity of Petitioner's fee application and the representations it contains about the work Mr. Homer actually performed while traveling. The contested entry is the only one in which any of the Homer Firm attorneys billed at his or her full hourly rate while traveling. (Fee App. Opp. at 5). Nor do I find any independent reason to question the contents of his billing statements or their accuracy. I find that Ms. Barrett has met her burden in proving the reasonableness of the requested hourly rate for Mr. Homer's five contested hours of traveling, and I will therefore allow it in the fee award.
Beyond such specific objections, Respondent generally asserts that the total amount Petitioner requests in attorneys' fees ($47,780.10) is "patently unreasonable" because "there was little need to spend significant `legal' time on the case." (Fee App. Opp. at 4). This is because "Respondent conceded the case early in the proceedings, no experts were involved, no hearing was conducted and, other than the amended petition, no substantive legal pleading was required by petitioner." (Id.) Petitioner counters that "[R]espondent misconstrues the complexity of this litigation." (Reply at 12). In Petitioner's view, "[t]his case was far more involved than most Vaccine Program cases." (Id. at 13). Specifically, Petitioner claims that "it was extremely difficult to accurately calculate damages." (Id. at 12).
Within six months of the filing of this action in June of 2009, Respondent had conceded Petitioner's entitlement to compensation for a Table injury. (See Respondent's Report, dated December 2, 2009 (ECF No. 18) at 1). But this does not tell the complete story of this case—or why it continued for an additional three years. The parties spent that entire period after the concession negotiating the compensation award. (See ECF No. 80 (Decision awarding Petitioner compensation on November 19, 2012)). The parties appear to have had significant disagreements concerning the calculation of damages, ultimately requiring mediation to help break the logjam. (See Minute Entry, dated July 10, 2012). Under similar circumstances, attorneys have been awarded their fees even though the parties' dispute centered on the form and nature of the damages award rather than the threshold entitlement question, and where Respondent conceded the case less than a year after the filing of the petition. See, e.g., Presgrave v. Sec'y of Health & Human Servs., No. 12-269V, 2013 WL 4759256, at *1 (Fed. Cl. Spec. Mstr. Aug. 9, 2013) ($42,094.30 awarded to the Homer Firm for attorneys' fees and costs). This objection thus provides no persuasive grounds to reduce or discount the requested attorney time.
Petitioner also requests a fee award for Mr. Gismondi, whose work on this matter predated the filing of the petition, in the amount of $6,800.00. (See Fee App. at 93). From the billing record offered in support of this component of the Fee Application, it appears that Mr. Gismondi may have at one time intended to represent Petitioner in the action himself, but merely fielded Petitioner's inquiry about a Program petition, eventually referring the matter to the Homer Firm for its actual adjudication.
Respondent asserts that Mr. Gismondi's requested $400.00 rate is unreasonable and unsubstantiated. (Fee App. Opp. at 5; see also Fee App., Tab C). Respondent particularly notes that the Homer Firm-seasoned Vaccine Program attorneys with numerous past and current clients — themselves receive lower hourly rates. (Fee App. Opp. at 5). In response, Petitioner argues that $400.00 is a reasonable rate for an attorney of Mr. Gismondi's experience and ability. (Reply at 4). Petitioner also claims that Respondent's invocation of the Homer Firm's hourly rate is "inappropriate and misleading" because "Mr. Conway's rate of $300.00 is a compromised rate, which was negotiated by the parties several years ago." (Id.)
As discussed above, determining an attorney's hourly rate of compensation in the Vaccine Program and under the lodestar analysis involves three steps. First, the hourly rate in the attorney's local area must be established. Second, the hourly rate for attorneys in Washington, D.C. must be established. Third, these two rates must be compared to determine whether there is a very significant difference in compensation — and if so, how to adjust the rate to be applied in the lodestar analysis. See Avera, 515 F.3d at 1353 (Rader, J., concurring). Counsel for petitioners are entitled to Washington, D.C. rates except "`where the bulk of [an attorney's] work is done outside the jurisdiction of the court and where there is a very significant difference in compensation favoring D.C.,'" in which case the local rate is to be selected. Avera, 515 F.3d at 1349 (quoting Davis County Solid Waste Management and Energy Recovery Special Service District v. United States Environmental Protection Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)) (emphasis in original).
Here, Mr. Gismondi's work appears to have been exclusively performed outside of the forum, so the evaluation of his hourly rate must take into account differences between the forum and the city in which he works — Pittsburgh, Pennsylvania.
a. Reasonable Hourly Rate in Pittsburgh — Petitioner has presented little evidence in support of Mr. Gismondi's proposed $400 hourly rate, beyond a conclusory affidavit from Mr. Gismondi averring that his years of experience and resulting litigation skills merit such a rate. (See ECF 90-1 (June 24, 2013 Gismondi Aff.) at ¶¶ 5-7). I have been presented with no other evidence that would cause me to doubt that Mr. Gismondi is the experienced tort litigator he purports to be. However, Mr. Gismondi has not previously practiced in the Vaccine Court, and thus his lack of experience in this particular forum has some bearing on the question of his reasonable rate. In addition, since Mr. Gismondi is, by his own admission, "essentially a contingent fee lawyer" (Gismondi Aff. at ¶ 5), he himself may not have a strong sense of what rate he could profitably and realistically charge were he to bill his time for this sort of matter on an hourly basis. That, however, is the proper standard by which to determine Mr. Gismondi's hourly rate. Saxton, 3 F.3d at 1521. I therefore cannot give substantial weight to Mr. Gismondi's ipse dixit assertions that $400 an hour is a fair charge for his services in this case.
I have found no other instances in which a special master determined the proper hourly rate for lawyers in the Pittsburgh, Pennsylvania area.
Based on the above, I find that a reasonable hourly rate for a Pittsburgh-based practitioner in a civil case is in the range of $200 to $300 an hour for someone of Mr. Gismondi's experience. The rate Ms. Barrett requests seems excessively high even for an extremely successful Pittsburgh-based litigator, and Ms. Barrett's fee application does not provide sufficient evidentiary support for a rate so much greater than that of other litigators in comparable settings.
b. Reasonable Hourly Rate in Washington, D.C. — Determining a reasonable hourly rate can be difficult because there is relatively little guidance about how to determine the prevailing market rate for similar services. See Information Sciences Corp. v. United States, 86 Fed. Cl. 269, 291 (2009) (noting that although the Supreme Court held that paralegal fees are to be awarded at "prevailing market rates," the Supreme Court "did not provide trial courts with guidance in how to determine `the prevailing market rate'"). However, two recent decisions of this court — Masias v. Sec'y of Health & Human Servs., No. 99-697V, 2009 WL 1838979 (Fed. Cl. Spec. Mstr. June 12, 2009), review denied, No. 99-697V, slip op. at 11 (Fed. Cl. Dec. 10, 2009), aff'd, 634 F.3d 1283 (Fed. Cir. 2011), and Rodriguez, 2009 WL 2568468 — provide a helpful yardstick.
In Masias, a special master found that a reasonable rate for experienced attorneys from Washington, D.C. who represent petitioners in the Vaccine Program was $250 to $375. Masias, 2009 WL 1838979, at *25. Another special master arrived at a similar rate in Rodriguez. After analyzing a wide scope of evidence, the special master in Rodriguez found that a reasonable hourly rate for attorneys with more than 20 years of experience and with clear experience in the Vaccine Program was $275-$360 per hour, depending on the year the work was performed. Rodriguez, 2009 WL 2568468 at *15.
I find both the Masias and Rodriguez decisions rigorous in their analysis and particularly persuasive. Accordingly, I adopt their reasoning that a reasonable range for attorneys with ten or more years of experience providing services in the Vaccine Program in Washington, D.C. is $250 to $375 per hour. Because both of these decisions are from 2009, however, I must also adjust the proposed fee ranges for subsequent inflation. The Bureau of Labor Statistics has a Consumer Price Index ("CPI") Inflation calculator, which uses the average CPI for a given calendar year. CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://www.bls.gov/data/inflation_calculator.html (last updated April 15, 2014). The data upon which the calculation is based reflect yearly changes in prices of all goods and services purchased for consumption by urban households. (Id.) Based upon the latest monthly index value, $250 in 2009 has the same buying power as $275.35 in 2014 (Id.), while $375 in 2009 has the same buying power as $413.03 in 2014. (Id.) Accordingly, the 2014 version of this range is appropriately considered $275-$413.
c. Comparing Local Rate to Forum Rate — As noted above, the forum rates should be used to determine an attorney's hourly rate except when two factors identified in Davis County are met. The first factor is fulfilled when "`the bulk of [an attorney's] work is done outside the jurisdiction of the court." In this case, it appears all of Mr. Gismondi's prefiling work was performed outside of the District of Columbia.
The second factor requires "a very significant difference in compensation favoring D.C." What constitutes a "very significant difference" is not defined, and case law does not provide much guidance.
The final issue to be determined is where Mr. Gismondi should fall on the spectrum of appropriate rates. I do not find that Mr. Gismondi's rate should be $300 per hour, since $400 per hour already seems high and overall it appears Mr. Gismondi simply took care of the case in its prefiling stages until the Homer Firm became involved. The fact that Mr. Gismondi also lacks experience in the Vaccine Court, no matter his general experience as an attorney, further informs my view that the highest rate permitted in the relevant forum is not appropriate.
I also find relevant that the Homer Firm's negotiated rate is less than Mr. Gismondi's suggested rate. Petitioner's counsel are among the most experienced Vaccine Program attorneys that appear in this forum, and yet even for work performed more recently (in which case the rate is subject to an inflation adjustment) they do not receive what might be considered the "top" rate in Washington, D.C. for their vaccine court work. (See Fee Application at 4 (Mr. Conway's hourly rate of $318.00 in 2008), 34 (Mr. Homer's hourly rate of $322.00 in 2013)). The fact that this rate may reflect a global compromised rate, negotiated in advance with Respondent for all of the Homer Firm's appearances in Vaccine Program litigation, does not justify a higher rate in this case for Mr. Gismondi, especially when he never appeared in this action (and in fact has never represented a single petitioner under the Act before or since Ms. Barrett). A referring attorney who performs little substantive work in a Vaccine Program case should not receive a rate higher than the lawyer(s) who actually performed the bulk of the work in the case.
Attorneys practicing in the Vaccine Program are entitled only to "reasonable attorneys' fees." 42 U.S.C. § 300aa-15(e). This reasonableness standard flows logically from the fact that the source of payment of those fees is the "Vaccine Injury Compensation Trust Fund," which exists directly to benefit those injured by vaccinations. 42 U.S.C. § 300aa-15(I). Payments to attorneys necessarily deplete the Trust Fund, and even if such payments aid in the prosecution of claims on behalf of injured parties, it cannot be said that the financial interests of attorneys appearing in Program cases was a direct concern of Congress in creating the Fund. By using the term "reasonable," Congress has charged special masters (and the judges who review decisions of special masters) to balance the competing concerns.
I therefore find that, based on application of the above-referenced tests, as well as based upon my discretion, the appropriate reasonable hourly rate for Mr. Gismondi in this case is $250.00.
Although Respondent objected only to Mr. Gismondi's proposed hourly rate, I also find (in the exercise of the discretion afforded me under Section 15 of the Act) that some of Mr. Gismondi's requested time is not reasonable. Perreira, 27 Fed. Cl. at 34 (special masters have "wide discretion in determining the reasonableness" of attorneys' fees and costs), aff'd, 33 F.3d 1375 (Fed. Cir. 1994).
A referring attorney who performs no direct work in the litigating of a Vaccine Court petition can nevertheless obtain a fee award. See, e.g., Bell v. Sec'y of Health & Human Servs., No. 07-454V, 2008 WL 4657081, at 1 (Fed. Cl. Spec. Mstr. Oct. 2, 2008); Hussey v. Sec'y of Health & Human Servs., No. 89-69V, 1990 WL 293391, at *3-4 (Fed. Cl. Spec. Mstr. June 27, 1990). However, the reasonableness of a referring attorney's pre-filing activity is subject to the same standard that governs the fee requests of the attorneys who actually litigated the case. See, e.g., Farrar v. Sec'y of Health and Human Servs., No. 90-1167V, 1992 WL 336502, at *3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992) ("[g]enerally, prefiling tasks require merely speaking with petitioners, becoming familiar with the Act, and obtaining and analyzing medical records"). The requested fees of referring attorneys have been reduced where they appear excessive, especially where the referring attorney's role in the case diminished after its filing. See, e.g., Haley v. Sec'y of Health & Human Servs., No. 90-3842, 1992 WL 368003, at *4 (Fed. Cl. Spec. Mstr. Nov. 20, 1992) (referring attorney's time reduced from 102.5 hours to 28.6 hours where attorney worked on matter for only four months before referral and thereafter did not participate in subsequent status conferences or the entitlement hearing); Hussey, 1990 WL 293391, at *5 (reducing requested fees of referring attorneys from $13,973.47 to $2,600.00 — a reduction of over 80%). I will therefore evaluate whether Mr. Gismondi's pre-filing acts were reasonable, necessary, or duplicative of other work performed in the case by Homer Firm attorneys.
Mr. Gismondi's one-page billing statement memorializes 17 hours of work performed between December 2006 and September 2008 — nine months before the actual filing of the petition. In some cases a referring attorney might perform vital prefiling work that makes the work of the attorneys who actually litigated the petition easier. I have some concerns that the Homer Firm's unquestionable expertise with Vaccine Act claims, and resulting efficiency in handling them, means that there was some minor duplication of effort.
Mr. Gismondi's billing records also appear to request fees for time he spent gaining expertise in the Program. For example, Mr. Gismondi billed two hours of time on October 15, 2007 for "analysis of recovery under Vaccine Act," and then in September of 2008 billed an additional 90 minutes for "legal research regarding Vaccine Act." (See, e.g., Tab C to Fee App. at 93). But Mr. Gismondi should not receive compensation for engaging in professional development concerning the Vaccine Program and its applicable rules and case law, especially not when the matter was later referred to attorneys with demonstrated expertise in this field. I will therefore not compensate him for these 3.5 hours of time.
Overall, I find that Mr. Gismondi's time (and in particular, his client meetings and initial case review) should be compensated, even if he did not ultimately steer the case to conclusion. Multiplying the reasonable hourly rate for Mr. Gismondi's services ($250.00) by the number of hours I deem reasonable (17-3.5 = 13.5) results in a total award of $3,375.00 — a reduction of $3,425.00.
Based on all of the above, the following chart sets forth the total calculation of Petitioner's fee award:
I reduce Petitioner's fee application by the amount of $53,150.00, thereby awarding Petitioner a total of $106,555.61. This amount reflects the total amount awarded for Petitioner's four motions for attorneys' fees and costs, and includes the three supplemental motions seeking fees associated with litigating this dispute. Accordingly, an award should be made as follows:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court
In total, these three supplemental fees requests seek an additional $6,488.10 in fees, which I grant and include in the total calculation of fee award set forth at the end of this decision.
20 Pa. Cons. Stat. Ann. § 5164 (2006) (emphasis added).
