CHRISTIAN J. MORAN, Special Master.
Charlene Ellis unsuccessfully alleged that the diphtheria-tetanus-acellular pertussis (DTaP) vaccination caused her son, X.G., to suffer a seizure disorder. As the Vaccine Act permits, Ms. Ellis seeks an award of attorneys' fees and costs, totaling $117,521.44. The Secretary opposes in part. She is awarded $80,556.56.
X.G. was born with two genetic mutations, one known as MED13L. These mutations were discovered when he was five years old in 2016.
X.G. was also born with a second and independent problem, an infection with cytomegalovirus (CMV). CMV probably caused a migration disorder and microcephaly. A migration disorder means the neuronal circuitry in his brain is not correct. Microcephaly means that his brain is small.
On April 8, 2011, X.G. was eight months old. The doctor identified "delayed development." Exhibit 14 at 59. The doctor also ordered X.G. to receive his third dose of DTaP.
The next day, X.G. had seizures. Exhibit 5.2 at 148/pdf 61. An MRI revealed abnormalities.
Since then, X.G. has had seizures intermittently. He is also developmentally delayed. Exhibit 45 at 60-64.
The course of litigation can be divided into three phases. First, the parties developed their cases and prepared to proceed to a hearing on entitlement. However, these preparations were interrupted by the discovery of genetic information about X.G. This discovery starts the second phase of the litigation, which continued through the decision denying entitlement. The third phase concerns the litigation over attorneys' fees.
Ms. Ellis's petition initially sought compensation for two conditions: a seizure disorder and developmental delay. The petition alleged alternative causes of action—the DTaP vaccine either caused or significantly aggravated an underlying condition. Pet., filed May 17, 2013.
The Secretary reviewed the evidence and recommended that compensation be denied. In his analysis, the Secretary identified the in utero CMV infection as an alternative cause for X.G.'s seizures and developmental delay. Resp't's Rep., filed Nov. 22, 2013.
The parties proceeded to retain experts. Ms. Ellis retained three doctors, Marcel Kinsbourne, Karen Harum, and Patrick Barnes. The Secretary retained one doctor, Elaine Wirrell.
After the parties appeared to finish the production of reports from experts, the parties planned to proceed to a hearing. As part of this process, the undersigned ordered the parties to submit various material before the hearing, such as updated medical records and a pre-hearing brief. Orders, issued Sep. 21, 2016 and Oct. 28, 2016.
On April 21, 2017, Ms. Ellis filed updated medical records (exhibits 44-45), a supplemental report from Dr. Harum (exhibit 46), and a supplemental report from Dr. Kinsbourne (exhibit 47). These records affected the remainder of the case.
Exhibit 45 contains a record from pediatric neurologist, Eric James Mallack. Dr. Mallack said X.G. was diagnosed with MED13L syndrome based upon genetic testing. Exhibit 45 at 75. However, the supplemental reports from Dr. Harum and Dr. Kinsbourne did not discuss the MED13L problem.
While Ms. Ellis's attorney and her experts seem to overlook or to ignore the MED13L mutation, Dr. Wirrell was more attentive. Her supplemental report, filed just one week later, stated that mutations in MED13L are associated with an increase of developmental delay and epilepsy. Exhibit AA at 2.
Dr. Kinsbourne responded. He agreed with Dr. Wirrell that an MED13L mutation is associated with developmental delay. Thus, because X.G. possessed two factors separately associated with developmental delay (the CMV infection being the other), Dr. Kinsbourne could no longer opine that the DTaP vaccine caused or significantly aggravated X.G.'s developmental delay. Exhibit 57 (Dr. Kinsbourne's report dated June 28, 2017). On the other hand, Dr. Kinsbourne asserted that "The MED13L syndrome does not feature epilepsy as one of its manifestations. Therefore I continue to adhere to the opinion that ... X.G.'s seizure disorder was caused by the DTaP vaccination."
About one week after filing Dr. Kinsbourne's report, Ms. Ellis filed a motion for ruling on the record. She stated that she "will no longer be pursuing a claim for developmental delay." She asserted that "Petitioner has submitted all the evidence that petitioner believes the special master needs to issue a ruling in this case on the issue of the introduction of seizures." She requested that the special master allow the parties to submit briefs and to cancel the hearing scheduled for August 2017. Pet'r's Mot., filed July 5, 2017.
However, in fact, the record was not complete. Mr. Gage's office had already received the Ambry Genetics report on May 30, 2017. Pet'r's Memo., filed Feb. 22, 2019, at 1. Mr. Gage stated that the failure to file the report was a "staff oversight."
The petitioner's motion for a ruling on the record was denied without prejudice for two reasons. First, Ms. Ellis needed to submit the Ambry Genetics report. Second, the parties could obtain reports from people specializing in genetics. This second suggestion was more directed to Ms. Ellis because Dr. Kinsbourne is not an expert in genetics. Order, issued July 11, 2017.
On behalf of Ms. Ellis, Mr. Gage filed the Ambry Genetics report immediately. Exhibit 58. After some additional commentary from the experts, the parties submitted the case for adjudication.
The decision issued on September 6, 2018, found that Ms. Ellis was not entitled to compensation.
Ms. Ellis filed for her attorneys' fees and costs in a motion containing tabs A through L. The fees for her attorneys and paralegals total $71,611.23. The costs total $45,910.21. The General Order #9 statement, signed by Mr. Gage, states that Ms. Ellis incurred no costs personally. Pet'r's Fee Appl., filed Nov. 7, 2018.
The Secretary responded the next day with his stock response. Resp't's Resp., filed Nov. 8, 2018.
Upon taking up the motion, the undersigned determined that the parties had not addressed reasonable basis and good faith and that the parties should address those topics. Thus, the undersigned ordered submissions from the parties. Order, issued Feb. 4, 2019.
Ms. Ellis filed a short memorandum on February 22, 2019. She did not directly address reasonable basis and good faith.
The Secretary filed a similarly short memorandum on February 26, 2019. He asserted that the case lost reasonable basis on May 30, 2017, after counsel reviewed the Ambry Genetics report.
The parties' submissions leave two questions for adjudication. The first question is whether reasonable basis supported Ms. Ellis's petition. This question is addressed in sections III and IV, below. The second question is determining an amount of reasonable attorneys' fees and costs. This question is resolved in section V, below.
Petitioners who have not been awarded 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). As the Federal Circuit has stated, "good faith" and "reasonable basis" are two separate elements that must be met for a petitioner to be eligible for attorneys' fees and costs.
"Good faith" is a subjective standard.
In contrast to good faith, reasonable basis is purely an objective evaluation of the weight of the evidence.
The Federal Circuit and judges of the Court of Federal Claims have provided some guidance as to what reasonable basis is not. A petition based purely on "unsupported speculation," even speculation by a medical expert, is not sufficient to find a reasonable basis.
Given this sequence of events, the Perreiras attempted to establish a significant aggravation claim. This alternative claim was based upon the sequence that two weeks after the third dose of DPT, Carly had more seizures. The former Chief Special Master rejected the Perreiras' claim because there was no support for their expert's opinion that DPT causes harm that would first appear two weeks later.
After the entitlement proceedings concluded, the Perreiras sought an award for their attorneys' fees and costs. The former Chief Special Master found that the Perreiras had a reasonable basis for filing their petition.
The former Chief Special Master explicitly found that the reasonable basis ceased after the expert submitted a report, noting that the expert's theory "amounted to his own unsupported speculation[,]" and that the Perreiras' attorney should have recognized that the expert's theory "was legally insufficient to establish causation." The former Chief Special Master also stated that the Perreiras' attorney recognized that this case "was a `bad case.'"
The Perreiras filed a motion for review of the denial of a portion of the attorneys' fees and costs. The Court of Federal Claims found that the former Chief Special Master's determination that the case lacked a reasonable basis was not arbitrary. The Court of Federal Claims rejected the petitioners' arguments, including an argument that "counsel had an absolute right to rely on the expert's opinion in pursuing the case."
These decisions are the background for the Federal Circuit's discussion of "reasonable basis" in its
Another example of a case exemplifying a deeper than skin-deep look at reasonable basis is an early case from the Vaccine Program,
A less recognized aspect to
The Court, however, rejected the petitioners' argument and ruled that the special master was not arbitrary in finding a lack of reasonable basis. The Court reasoned that an expert report premised on unreliable assertions does not confer reasonable basis:
Thus, two appellate authorities demonstrate that the presence of a report from a retained expert, by itself, does not establish reasonable basis automatically. Instead, the special masters must weigh the objective evidence.
An objective weighing of the evidence is consistent with cases that have placed the burden of establishing the petition's reasonable basis on petitioners.
With counsel's receipt and review of the Ambry Genetics report on May 30, 2017, the case lost its reasonable basis to proceed on the claim that the vaccines caused X.G. to suffer seizures/epilepsy.
Rather than look to the report from Ambry Genetics, Ms. Ellis and Mr. Gage seem to rely upon the opinion from Dr. Kinsbourne. But, Dr. Kinsbourne's opinion cannot furnish the reasonable basis to proceed in this case with a genetic mutation. When Dr. Kinsbourne read the Ambry Genetics report is not clear.
The basis of Dr. Kinsbourne's opinion is not clear. It cannot come from Ambry Genetics because its report associated the MED13L mutation with epilepsy. Exhibit 58 at 13. It also cannot come from Dr. Kinsbourne's experience because he has not practiced pediatric neurology in decades.
With minimal effort, the undersigned found articles about the MED13L mutation and epilepsy. Court exhibit 1001 (article from website from the National Institute of Health: "Other features of MED13L haploinsufficiency syndrome include . . . recurrent seizures (epilepsy)"). Dr. Wirrell identified additional articles.
After this material was filed, Dr. Kinsbourne's opinion changed. He now stated: "The likelihood of a child with a MED13L variant having seizures without further provocation is somewhat elevated relative to the general population, but is far from meeting the more-likely-than-not standard." Exhibit 59 at 2.
In Ms. Ellis's most recent filing in support of an award of attorneys' fees and costs, she seems to overlook Dr. Kinsbourne's final opinion regarding the significance of an MED13L mutation. Similarly, Ms. Ellis asserts that "exhibit 58 [the Ambry Genetics report] adds NOTHING." Pet'r's Memo., filed Feb. 22, 2019, at 2 (capitalization in original).
The undersigned views the Ambry Genetics report differently. As a report prepared outside the context of litigation, the opinion of professionals from Ambry Genetics represents an unbiased view.
Although the February 4, 2019 order directed Ms. Ellis to explain why continued prosecution of her case after the discovery of the genetic mutation was supported by reasonable basis, Ms. Ellis's brief does not use the term "reasonable basis."
Accordingly, for these reasons, Ms. Ellis has failed to meet her burden of establishing that a reasonable basis supported the continued prosecution after May 30, 2017. This finding results in the elimination of attorneys' fees (including paralegal fees) of $10,138.40. However, Ms. Ellis did possess reasonable basis for the claims set forth in her petition until May 30, 2017. Thus, an award of reasonable attorneys' fees and costs for this period is appropriate. The next question is the time in which reasonable basis supported the claim set forth in the petition, what is a reasonable amount of attorneys' fees and costs?
The Vaccine Act permits an award of reasonable attorney's fees and costs. §15(e). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. This is a two-step process.
Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation.
Ms. Ellis requested compensation for her attorney-of-record, Richard Gage, and four associate attorneys, Kristine Blume, Don Gerstein, Kristen Rieman, and Dustin Lujan.
Mr. Gage charged rates from $265/hour in 2012 to $326/hour in 2018. Pet'r's Fees Appl., Tab C. The undersigned has recently evaluated Mr. Gage's rates and found them reasonable.
Ms. Blume charged an hourly rate of $251 for her work done in 2017 and 2018. Pet'r's Fees Appl., Tab D. The undersigned has previously found these rates for Ms. Blume to be reasonable.
Mr. Gerstein charged rates from $265/hour in 2012 to $285/hour in 2014. Pet'r's Fees Appl., Tab F. Ms. Ellis has not cited any cases in support of Mr. Gerstein's rates. Other special masters have found a reasonable rate for Mr. Gerstein in 2014 to be $250/hour.
Ms. Rieman charged an hourly rate of $200 for her work done in 2017. Pet'r's Fees Appl., Tab G. The undersigned and other special masters have previously found a rate of $150 for Ms. Rieman to be reasonable.
Mr. Lujan charged an hourly rate of $150 for his work done in 2015. Pet'r's Fees Appl., Tab I. Because Mr. Lujan became a licensed attorney around September 4, 2015, the undersigned previously found that he would be granted an hourly rate of $90 before that date and an hourly rate of $107.25 after that date.
Ms. Ellis also requested compensation for various paralegals at Mr. Gage's firm who charged rates ranging from $112 to $120 per hour for work done from 2012-2018. Pet'r's Fees Appl., Tab J. The undersigned has previously found these paralegal rates for Mr. Gage's firm to be reasonable.
The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
As noted in previous fee decisions, time entries from Mr. Gage and his associates hinder the evaluation of reasonableness.
The time entries for the paralegals contain a bit more detail than those entries for the attorneys. Moreover, because the tasks performed by the paralegals are simpler, that additional detail results in a more accurate description of the work performed. The undersigned finds the number of hours for the paralegals to be reasonable.
Accordingly, Ms. Ellis is awarded attorneys' fees in the amount of $55,661.35.
Like attorneys' fees, a request for reimbursement of costs must be reasonable.
For the experts, Ms. Ellis requested compensation for the expert fees of Dr. Marcel Kinsbourne ($31,125.00), Dr. Karen Harum ($12,500.00), and Dr. Patrick Barnes ($250.00). Reasonable expert fees are also determined using the lodestar method in which a reasonable hourly rate is multiplied by a reasonable number of hours.
Dr. Kinsbourne billed 62.25 hours of work at a rate of $500 per hour for the preparation of expert reports. Pet'r's Fee Appl., Tab K at pdf 32-35. Dr. Kinsbourne billed 11.7 hours after May 30, 2017, resulting in an initial deduction of $5,850.00. A reasonable hourly rate for an expert depends, in part, on the quality of the expert's work.
The reduction in hourly rate also is based, in part, on the poor invoices that Dr. Kinsbourne created. Dr. Kinsbourne's invoice lacks detail by listing activities done within a month rather than identifying which activities were done on a particular day. The descriptions of his time entries are vague and contain few words. Dr. Kinsbourne has numerous vague time entries of "teleconference," lacking details with whom he is communicating and about what he is communicating. It is difficult to even speculate on the nature of the teleconferences because Dr. Kinsbourne has often not performed any identifiable work between the teleconferences. Rather than separately reduce the number of hours for vague entries, the undersigned has folded the deduction for poor invoices into the hourly rate. For all these reasons, Dr. Kinsbourne's expert fees are awarded in the amount of $10,110.00.
Dr. Harum billed 31.25 hours of work at a rate of $400 per hour for the preparation of expert reports. Pet'r's Fee Appl., Tab K at pdf 22. None of the time billed by Dr. Harum occurred after May 30, 2017. Another special master has awarded Dr. Harum's expert fees in full.
Dr. Barnes, a pediatric neuroradiologist, billed 0.5 hours of work at a rate of $500 per hour for the review of X.G.'s imaging studies. Pet'r's Fee Appl., Tab K at pdf 29. None of the time billed by Dr. Barnes occurred after May 30, 2017. The undersigned finds the amount Dr. Barnes charged for this discrete task to be reasonable. Thus, Dr. Barnes's expert fees are awarded in full.
In sum, petitioner is awarded attorneys' costs in the amount of $24,895.21.
The Vaccine Act permits an award of reasonable attorney's fees and costs. 42 U.S.C. § 300aa-15(e). Accordingly, Ms. Ellis's motion for attorneys' fees and costs is
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.
