CHRISTIAN J. MORAN, Special Master.
Nancy Barclay claims that a diphtheria tetanus acellular pertussis ("DTaP") vaccine affected her son Matthew Ramirez. Matthew was born with a mutation in his SCN1A gene. Ms. Barclay, specifically, alleges that the DTaP vaccine either caused Matthew to suffer a seizure disorder, or aggravated his seizure disorder. Ms. Barclay's claim for compensation remains pending.
Ms. Barclay has submitted an application for an award of attorney's fees and costs on an interim basis. Petition for Interim Attorney Fees, filed Oct. 31, 2013, at 1.
Ms. Barclay's case involves the SCN1A gene and is one of a series of cases involving that condition. At least four other cases have involved the same genetic mutation. Notably, Ms. Barclay's attorney represented the petitioners in
In June 2007, Mr. Webb began collecting Matthew's medical records. He submitted the petition in August 2007. Mr. Webb was also conferring with Dr. Marcel Kinsbourne. Dr. Kinsbourne wrote a report, which Ms. Barclay filed on February 28, 2008, as exhibit 9.
In May 2008, the Secretary filed a report from Dr. Max Wiznitzer. Dr. Wiznitzer learned about Matthew's problem by reviewing his medical records. Based upon that review Dr. Wiznitzer suggested that Matthew may have a genetic defect and recommended testing. Matthew was tested and the test results showed a defect in his SCN1A gene.
Mr. Webb spent time learning about the SCN1A gene and conferring with Dr. Kinsbourne. Mr. Webb also observed the October 2009 trial in the
Following the
For this period of time, which starts with the gathering of medical records and runs through the request for a stay, Ms. Barclay seeks compensation for approximately 140 hours of work by Mr. Webb. As discussed below, the Secretary objected to the amount of time spent in this phase as excessive. A particular objection is to compensating Mr. Webb for attending the
As the
In April 2012, the Federal Circuit affirmed the judgments denying petitioners compensation in
In 2013, Mr. Webb prepared for the hearing. Dr. Corbier submitted another supplemental report. Exhibit 39. Mr. Webb prepared a pre-trial brief, which was filed on April 4, 2013. The hearing was held on June 5-6, 2013, in Charlotte, North Carolina. Ms. Barclay submitted a post-hearing brief on September 25, 2013;. The submission of the post-hearing brief completed Ms. Barclay's fee application. For Mr. Webb's work in 2013, Ms. Barclay requests compensation for Mr. Webb totaling approximately 243 hours. She also requests compensation for all of Dr. Corbier's work.
Ms. Barclay submitted her motion seeking attorney's fees and costs on an interim basis on October 31, 2013. The Secretary disputed several aspects, which are discussed below. Resp't's Opp'n, filed November 18, 2013. Ms. Barclay, submitted a reply on November 27, 2013.
Like other litigation allowing an award of attorneys' fees and costs, awards for attorneys' fees and costs in the Vaccine Program must be "reasonable." 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys' fees are determined using the lodestar method — "`multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'"
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:
Special masters are permitted to reduce the claimed number of hours to a reasonable number and they are not required to assess fee petitions on a line-by-line basis.
Ms. Barclay is eligible for an award of attorneys' fees and costs if she establishes that her case is supported by good faith and reasonable basis. 42 U.S.C. § 300aa-15(e). The Secretary has not challenged either aspect.
As a matter of discretion, special masters may award attorneys' fees on an interim basis.
As set forth in
Ms. Barclay requests that Mr. Webb be compensated at a different hourly rate depending upon when Mr. Webb worked. His work began in 2007, and the requested rate is $220.00 per hour. For work performed in 2008 through 2010, the requested rate is $240.00 per hour. The Secretary has not objected to these hourly rates.
For 2011, the requested hourly rate is $250.00 per hour, which is an increase of $10.00 per hour over the preceding year. This same increment, $10.00 per hour, is used for 2012 and 2013. The Secretary argues that Ms. Barclay has not justified the proposed increase from $240.00 in 2010 to $270.00 in 2013.
Each particular $10.00 increase constitutes an increase of approximately 4%. As such, the increases appear to approximate the rate of inflation. Consequently, the proposed rates are accepted as reasonable.
The recurring theme of respondent's objections concerns Mr. Webb's participation in other cases involving the SCN1A gene. The Secretary primarily argues that Mr. Webb's previous work on
Overlap between work in the
Determining whether these entries are duplications is difficult. For example, on December 3, 2007, Mr. Webb indicates that he spent 0.5 hours conferring with Dr. Kinsbourne in both
A more specific description of the activity could have eliminated the ambiguity. If the May 23, 2008 entry identified the research by the author's names, then the number of articles that Mr. Webb reviewed would be apparent. And, the number of articles would inform a determination about the reasonable amount of time for that review.
The vagueness in time entries is apparent in other places as well. For example, many entries state "review file; prepared case for Court; Status Conference." From the timesheets, it is difficult to understand whether Mr. Webb was spending a reasonable amount of time. In addition, as the Secretary noted, Mr. Webb was performing tasks such as preparing exhibits that an attorney should reasonably delegate to either a paralegal or an assistant. Generally, attorneys are not compensated at a relatively high hourly rate for performing tasks that could be performed by a person charging a less expensive rate.
For these reasons, the amount of compensation for Mr. Webb's work in 2007 will be reduced. Rather than the 40 hours of attorney time requested, Ms. Barclay will be awarded 27 hours of attorney's time plus 8 hours of paralegal time (at $100.00 per hour).
In 2008 through 2010, Mr. Webb has charged 102 hours. A bulk (44.5 hours) was incurred in traveling to, observing, and returning from the hearing in
The Secretary's objection to compensation for attending a trial in a different case is well founded. An attorney for a party to the litigation who only observes the trial is usually not compensated.
For the remaining 57.5 hours, some adjustment is required to account for possible duplication with
In 2011, as noted above, Ms. Barclay's case was largely inactive while the Federal Circuit considered the appeals in
In 2012, substantive work in Ms. Barclay's case resumed. Mr. Webb was working with Dr. Corbier to obtain a report and was pursuing a geneticist by consulting an expert witness service. These activities are reasonable and compensable. The confounding problem is that Mr. Webb spent some amount of time reviewing medical literature and it is difficult to differentiate this work from his review of medical literature in other years. Dr. Corbier cited articles (such as those that Depienne, Gambardella, Lossin, and Oakley authored) with which Mr. Webb should have been familiar from his work in reviewing literature in this case. In addition, Mr. Webb also performed activities, such as filing documents, that a more junior (and less expensive) person could have performed.
Overall, these questionable activities account for only a small proportion of the approximately 90 hours claimed for 2012. Ms. Barclay is awarded compensation for the majority of Mr. Webb's recorded time (80 hours of attorney time and three hours of paralegal time).
Before turning to 2013, which is the year for which there is the most dispute, it is worthwhile to review the award so far. For work performed from 2007 through 2012, Ms. Barclay is receiving compensation for nearly 200 hours of attorney time. These 200 hours were spent on gathering medical records, preparing pleadings, participating in status conferences, and retaining an expert. A very significant task for Mr. Webb was learning about the SCN1A mutation, either by reading medical articles, conferring with Dr. Kinsbourne, or speaking with Dr. Corbier. Two hundred hours of attorney time is an unusually high number of hours for a case in the Vaccine Program. But, this much time was reasonable due to the complexity of the topic.
From this baseline, Mr. Webb spent an additional 243.3 hours in 2013. Those 243 hours represent approximately 80 hours in continued work on expert reports, approximately 44 hours in writing a pretrial brief, approximately 44 hours in preparing for and participating in the hearing, and approximately 55 hours for writing one post-hearing brief.
For an attorney with Mr. Webb's background, these figures are not reasonable. An attorney may not combine relatively high hourly rates with a relatively large number of hours. A relatively high hourly rate is warranted when an attorney possesses knowledge and experience to work relatively quickly. But, if the attorney must spend relatively large amounts of time learning about the subject matter of the litigation, then the reason for the premium hourly rate is lost.
In total, a reasonable amount of attorneys' fees is $99,008.25. The Secretary has suggested that any award to Ms. Barclay should be comparable to awards made in similar cases.
Here, the best comparisons are other cases involving the SCN1A gene and of the cases involving the SCN1A gene, the most relevant is
In
Thus, the most comparable decisions awarding attorneys' fees in cases involving an SCN1A mutation have reached similar results. The figures' relative closeness reinforces the finding of reasonableness for Ms. Barclay.
In addition to seeking an award for her attorney's time, Ms. Barclay seeks an award for her attorney's costs.
Here, Ms. Barclay seeks a total of $53,833.94 in costs.
Dr. Kinsbourne has testified on behalf of petitioners in many Vaccine Program cases. His background has been set forth in many previous decisions.
For his work performed in 2007 through 2012, Dr. Kinsbourne has charged $500.00 per hour. The total number of hours is 31.65.
Ms. Barclay has provided no support for compensating Dr. Kinsbourne at a rate of $500.00 per hour. Although $500.00 per hour may be reasonable in cases in which Dr. Kinsbourne's expertise comes into play, Dr. Kinsbourne stopped practicing pediatric neurology before the SCN1A gene mutation was discovered.
For the number of hours, there is an adequate basis for compensating Dr. Kinsbourne for all the work he performed. Although the Secretary challenged Dr. Kinsbourne's continued participation after Matthew's SCN1A gene mutation was discovered, Mr. Webb's consultation with a neurologist who is knowledgeable about the Vaccine Program in a complex case is reasonable.
Consequently, Dr. Kinsbourne will be compensated at a rate of $300.00 per hour for 31.65 hours. The total is $9,495.00. This is a reduction of $6,330.00 from the amount requested for Dr. Kinsbourne.
Dr. Corbier has been board-certified in neurology with a special qualification in child neurology since 2002. He works with other pediatric neurologists in a private office serving clients near Charlotte, North Carolina. Exhibit 18 (curriculum vitae). He has conducted very little research and his publications are self-published books, which were not peer-reviewed. Beyond his training as a neurologist, he does not have any special expertise in genetics. His professional duties do not focus on teaching medical school students. Tr. 91-92.
For his work in 2012 and 2013, Dr. Corbier has charged $400.00 per hour. He spent 81.3 hours working on this case.
The Secretary objected to Dr. Corbier's requested hourly rate, suggesting that a reasonable rate for a doctor with Dr. Corbier's experience is $300.00 per hour. The Secretary also objected to the number of hours Dr. Corbier charged, but did not propose a reasonable number of hours.
After this objection, Ms. Barclay submitted an affidavit from Mr. Webb. Mr. Webb states that nephrologists, gastroenterologists, and immunologists, whom he did not identify by name, have told him that their hourly rates were at least $565.00 per hour. In addition to being second-hand, the information is not particularly valuable. The more relevant data is the prevailing hourly rate for pediatric neurologists in Charlotte, North Carolina. Mr. Webb came a bit closer to providing this information when he also averred that Dr. Corbier has told him that his normal charge is $500.00 per hour, but he has accepted $400.00 per hour in a different Vaccine Program case.
In the absence of persuasive evidence from Ms. Barclay, a starting point is the $300.00 per hour awarded to Dr. Kinsbourne in
As for the reasonable number of hours, the Secretary argues that 81.3 hours is "excessive." Dr. Corbier did not describe his activities with much specificity. Two broad categories "medical literature and patient chart review" and "preparation of legal report and additional medical literature review" encompass more than 50 hours of work. These vague descriptions do not permit an assessment of the reasonableness of the time being spent.
Due to the vagueness in Dr. Corbier's invoice, the undersigned will determine a reasonable amount of time based upon experience in reviewing other cases.
The award for Dr. Corbier is $21,125.00. This represents a reduction of $11,395.00.
This table presents the mathematical calculations:
Ms. Barclay has established that a reasonable award of costs is $34,934.21.
For the foregoing reasons, Ms. Barclay is awarded $133,942.46 in interim attorneys' fees and costs. The special master determines that there is no just reason to delay the entry of judgment on these interim attorneys' fees and costs.
Therefore, in the absence of a motion for review filed under RCFC Appendix B, the Clerk shall enter judgment in petitioner's favor for $133,942.46 in interim attorneys' fees and costs. This amount shall be paid as a lump sum in the form of a check payable to petitioner and petitioner's attorney, Curtis R. Webb, for attorneys' fees and costs available under 42 U.S.C. § 300aa-15(e). Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing the right to seek review.
