BRIAN H. CORCORAN, Special Master.
On December 5, 2013, Leilah Al-Uffi filed a petition on behalf of her minor child, R.B., seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program").
At the age of twelve, R.B. received her third dose of Gardasil,
A few weeks later, R.B. was admitted to Cook Children's Medical Center on January 5, 2011, after she exhibited further abnormal movements and agitated, aggressive behavior. Pet'r's Ex. 2 at 4-5; Pet'r's Ex. 6 at 38, 42. Testing revealed right-sided temporal lobe abnormalities in R.B.'s brain, and she was incontinent, and at times catatonic. Pet. at 2. R.B. was ultimately diagnosed with an anti-NMDA receptor encephalitis (an autoimmune reaction against NMDA-receptor subunits) after she tested positive for NMDA-receptor antibodies. Pet'r's Ex. 2 at 12. She continues to suffer from the residual effects of the encephalitis. Pet. at 2. Petitioner alleges that R.B.'s receipt of the third dose of the Gardasil vaccine caused her autoimmune encephalitis. Id. at 1.
Ms. Al-Uffi filed this action on December 5, 2013. She thereafter began the process of gathering and filing relevant medical records, proposing a deadline of March 31, 2014, for filing a statement of completion of the record, to which Respondent agreed (although that deadline was not formally ordered). Status Report, filed Feb. 28, 2014 (ECF No. 11).
Petitioner subsequently failed to file a Statement of Completion by the date she had proposed, and also failed to file a status report regarding her progress in collecting documents. Eventually, enough time passed without action on Petitioner's behalf that I issued an Order to Show Cause on June 13, 2014 (ECF No. 15), demanding that Ms. Al-Uffi act or risk dismissal of the petition. In a response filed that same day (ECF No. 16), Petitioner explained that she had faced problems in collecting the relevant records, but pledged to complete the task. Ms. Al-Uffi eventually filed her Statement of Completion on July 30, 2014. ECF No. 19.
Since the completion of records filing, the case has proceeded swiftly. I initially set a deadline of September 29, 2014, for Respondent's Rule 4 Report. June 13, 2014 Order. Before that deadline had been reached, however, Petitioner went ahead and filed an expert report and supporting literature from Dr. David Axelrod on August 27, 2014. ECF No. 21. A status conference was then held on September 24, 2014, during which Respondent requested a further extension of time for the filing of her Rule 4 Report, in order to incorporate in her response the contents of an additional expert report from one of R.B.'s treating physicians, Dr. David Siegler, that Petitioner indicated she would be filing (and did so thereafter on Oct. 10, 2014 (ECF No. 23)). On December 12, 2014, Respondent filed her Rule 4 Report along with a responsive expert report from Dr. Mark Gorman. ECF Nos. 24, 25, 26. The Report identified missing medical records, which Petitioner filed on January 8, 2015. ECF No. 28.
Petitioner subsequently filed a supplemental expert report from Dr. David Axelrod on February 3, 2015. ECF Nos. 32, 33. A Joint Status Report filed March 12, 2015, indicated that the parties believed there were outstanding records still not filed. ECF No. 34. Petitioner therefore filed a motion requesting authorization for service of a subpoena on the entities in possession of such records (ECF No. 35), and I granted the request. ECF No. 36. Those subpoenaed materials have since been filed. During a status conference on August 5, 2015, I set a deadline for Respondent's supplemental expert report of September 18, 2015, with which Respondent complied. The case is not yet scheduled for hearing.
In the midst of performing the above-referenced litigation activities, Petitioner filed a Motion for Interim Attorney's Fees and Costs on June 23, 2015 (hereinafter "Mot."). Petitioner argues that she has acted in good faith and has established a reasonable basis for her claim, and thus fees are generally appropriate. Mot. at 9. She also asserts that her case meets all three criteria set by the Federal Circuit in Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008) for an interim fees award, because (i) the case is protracted; (ii) the case involves costly expert testimony; and (iii) the case involves undue hardship. Id. at 10-17. Petitioner further maintains that Mr. Downing's hourly rate is reasonable, as are Petitioner's experts' fees. Id. at 17-33.
Ms. Al-Uffi requests compensation for Mr. Downing at a rate of $350/hour for the 87.70 hours he has expended in this case thus far, for a total of $30,695.00. In addition, she asks that an associate attorney working on this case, Justin Redman, be awarded fees in the amount of $195/hour for the 24.30 hours expended in this case thus far, for a total of $4,738.50, and also seeks to recover costs for work performed by two legal assistants (Robert Cain and Danielle Avery) billing at $100/hour, for a joint total of $2,250. Petitioner also asks for reimbursement of funds paid to Drs. Axelrod and Siegler for their initial work on the case, including the preparation of filed expert reports, in the total sum of $10,075 based on hourly rates of $500 and $450, respectively.
Appended to Ms. Al-Uffi's Motion are several attachments offered as support for her interim fees award motion. Mr. Downing's billing records from both his former and present law firms (Hennelly & Steadman and Van Cott & Talamante, respectively) are included with the Motion, along with receipts establishing litigation costs (such as checks made out to facilities for obtaining copies of the medical records, and amounts paid to the Petitioner's experts). Also filed with the motion are declarations from Mr. Downing, Joyce Van Cott (a named partner at Mr. Downing's current firm), and Bradley S. Shelts (another lawyer licensed and practicing in Arizona), all of which appear intended to support the reasonability of Mr. Downing's requested hourly rate of $350. Statements from Jordan and Justin Redman
Respondent filed her opposition to the Motion on July 1, 2015 (hereinafter "Opp."). She maintains that the express language of Section 15(e)(1) of the Vaccine Act does not confer authority on special masters to award interim fees. Opp. at 4. She then argues that even if interim fees awards are permitted, such an award is inappropriate in the present case because Petitioner has not met the "necessary" Avera criteria. Id. at 5-6, 8. Respondent does not, however, presently contest Petitioner's good faith in filing the claim, or the claim's reasonable basis (while reserving the right to challenge reasonable basis at a later time). Id. at 8.
Respondent further argues that, to the extent I grant an interim award, the $350 hourly rate requested for Mr. Downing is unreasonably high, and should be no more than $296 an hour for work performed this year, discounted downward for prior years to take into account inflation.
Respondent also submitted eight exhibits with her Opposition: (i) a copy of my unpublished decision in Lamare v. Sec'y of Health & Human Servs. No. 12-312, filed Feb. 27, 2015, denying interim attorney's fees and costs; (ii) a snapshot of Van Cott & Talamante's website page identifying Andrew Downing as an attorney (as opposed to a member or of counsel); (iii) a snapshot of Van Cott & Talamante's website page exhibiting Mr. Downing's biography; (iv) an CM/ECF listing of the 105 Vaccine Program cases in which Mr. Downing is or was counsel; (v) the Real Rate Report 2014; (vi) the 2013 Economics of Law Practice in Arizona published by the State Bar of Arizona; (vii) a snapshot of Dr. Axelrod's website; and (viii) another snapshot of Dr. Axelrod's website. Exs. 1-8 (ECF No. 45).
Petitioner replied to Respondent's Opposition on July 7, 2015 (hereinafter "Reply"). In it, Ms. Al-Uffi reiterates her earlier argument that the decisions of the Federal Circuit do permit the recovery of interim fees and costs. Reply at 3-8. With respect to challenges to Mr. Downing's hourly rate, Petitioner questions whether Respondent's reliance on the 2014 Real Rate Report and the 2013 Economics of Law survey supports the lower hourly rate she urges. Id. at 8-14. Petitioner also objects to Respondent's blanket efficiency objections, noting that Respondent fails to point to any specific examples in the record of inefficiency. Id. at 14. Finally, Petitioner addresses Respondent's claim that Petitioner's experts' fees are not reasonable, by reiterating that these experts are entitled to the prevailing market rate for the work performed, and that the rates they are charging are in fact reasonable. Id. at 15-18.
After initially reviewing these filings, I asked Ms. Al-Uffi on August 12, 2015, to provide additional evidence for her assertion that Petitioner's counsel has not raised his billing rates in the past few years. To that end, Petitioner submitted a supplemental filing that indicates Mr. Downing had entered retainer agreements with his clients at the rate of $350.00/hour as early as September 2013, and also that he has been repeatedly compensated in the Vaccine Program on the basis of such rate. ECF No. 48. Respondent filed a Response to the Supplemental Brief on August 18, 2015 arguing that such evidence should be disregarded. ECF No. 49. Respondent in particular noted that in all of the cases cited by Petitioner, the awarded hourly rate was the product of a settlement, and was therefore not evidence of a concession that $350 per hour was reasonable. Petitioner immediately filed a Reply acknowledging that Respondent has in fact not conceded the validity of the rate requested in this case, and is not bound to accept those rates in this instance, but that Petitioner had merely provided the information in response to my inquiry. Reply to Response to Supplemental Brief at 1-2, filed Aug. 18, 2015 (ECF No. 50). This matter is now ripe for resolution.
The contents of the billing records submitted by Petitioner in support of the present interim fees request shed light on counsel's activities since the filing of the petition. Mr. Downing first learned of this case and agreed to represent Ms. Al-Uffi in August of 2013 — approximately four months before it was filed on December 5, 2013. Mot. at 65. In the interim period, he researched scientific journal articles on demyelination of the central nervous system following Gardasil vaccination, analyzed medical records, and spoke with both R.B.'s treating neurologist and Ms. Al-Uffi. Id. As a result, Petitioner's counsel expended approximately twenty-three hours in preparation of filing the petition. Id. at 65-67.
After filing, the billing records indicate that counsel's focus shifted to the submission of R.B.'s medical records. On February 7, 2014, there was a conference call with the client, and Petitioner's counsel noted in his time entry for that date "still missing certain records." Mot. at 68. Shortly thereafter, however, there are many fewer hours billed towards R.B.'s case, particularly in April (.8 hours), May (.2 hours), and June (.4 hours). Id. This lull in activity occurred around the time of my order admonishing Petitioner for failing to meet deadlines, and my subsequent Order to Show Cause. It is not clear from the record why there was so little movement on the case at this time (and certainly counsel might have acted more expeditiously during this period in attempting to gather relevant documents), but Petitioner requests compensation for relatively few hours in this time period (and as already noted, the case's progress subsequently sped up).
After Mr. Downing switched firms, activity on the case resumed, as reflected in the procedural history. Status conferences were held, and there was correspondence with Respondent's counsel on the possibility of settlement. Mot. at 36. Mr. Downing also spent a significant amount of time at the end of 2014 corresponding with the two experts retained in this case. Work on the matter thereafter appears to have been steady, and the time billed to it is consistent with the procedural history from this point forward.
It was in October of 2014 that Mr. Redman began working on Petitioner's case. Id. at 43. He billed 2.5 hours ($487.50) on October 21, 2014, to analyze the Petitioner's medical records and other information "for background." Id. On December 16, 2014, Mr. Redman thereafter reviewed Respondent's Rule 4 Report and expert report and drafted an internal memorandum, expending 5.6 hours on this task ($1,092.00). Id. He continued to work sporadically on the case until January 12, 2015, when he reviewed R.B.'s medical records to determine whether Petitioner could file a supplemental Statement of Completion given the new medical records filed, billing 3.9 hours ($760.50). Id. at 44; ECF Nos. 27, 28. On February 9, 2015, both of Petitioner's attorneys spent time analyzing Dr. Axelrod's report. Mot. at 40. Finally, on March 12, 2015, Mr. Redman expended 1.2 hours ($234.00) examining the case and drafting "shell of Motion for Authorization to Issue Subpoenas. Id. at 45. After it was granted, Mr. Downing billed 1.1 hours to the actual drafting of subpoenas and correspondence with process server in Tulsa on March 13, 2015. Id. at 41.
Controlling decisions of the Federal Circuit
In determining that interim fees awards should be available in Vaccine Program cases, the Federal Circuit followed the Supreme Court's construction of other fee-shifting statutes. Avera, 515 F.3d at 1351-52. Indeed, Avera ultimately determined that the justification for an award of interim fees was greater in Vaccine Program cases, because the Vaccine Act does not have a "prevailing party" requirement (and thus petitioners may request, and obtain, fees awards even where they are unsuccessful in establishing entitlement to a damages award). Id. at 1352; see also H.R. Rep. No. 99-908 at 22 (1986). The underlying remedial purposes of the Vaccine Act are better served if petitioners have access to competent legal representation — a goal that is aided if attorneys appearing for Vaccine Program petitioners have assurances that their fees will be satisfied. Id.
Avera, however, did not define precisely the circumstances in which an interim award might appropriately be issued — leading other special masters to observe that the standards for granting an interim fees award "remain somewhat muddled." Small v. Sec'y of Health & Human Servs., No. 02-1616V, 2014 WL 308297, at *1 (Fed. Cl. Spec. Mstr. Jan. 7, 2014) (citing Shaw v. Sec'y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010)). Thus, although the Federal Circuit has identified certain conditions under which an interim fees award may be appropriate, such as "where proceedings are protracted and costly experts must be retained," (Avera at 1352), Avera has been interpreted as allowing special masters broad discretion in determining whether to award interim fees. See, e.g., Kirk v. Sec'y of Health & Human Servs., No. 08-241V, 2009 WL 775396, at *1 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (reading Avera to set a "broad, discretionary vehicle for ensuring that petitioners are not punished financially while pursuing their vaccine claim"); Bear v. Sec'y of Health & Human Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) (Avera provides only "examples and general guidance concerning when interim fees and costs might be awarded, leaving the special masters broad
Since Avera, there has been a considerable amount of case law discussing when to award interim fees. In some instances, interim awards have been granted in light of the amount of time that has passed in the case, as well as the amount of work performed. See, e.g., MacNeir v. Sec'y of Health & Human Servs., No. 03-1914V, 2010 WL 891145, at *1-4 (Fed. Cl. Spec. Mstr. Feb. 12, 2010) (granting an interim award of fees and costs of $12,062 primarily arising from counsel's efforts at obtaining and filing medical records); Franklin v. Sec'y of Health & Human Servs., No. 99-0855V, 2009 WL 2524492, at *4 (Fed. Cl. Spec. Mstr. July 28, 2009) (awarding interim fees where the petition had been pending for years, petitioner's counsel had paid significant amounts to experts, and the final resolution of the case was likely to take some time). But there is no defined period of time that must have passed from the date of a petition's filing to justify an interim fees award. See, e.g., Bear, 2013 WL 691963, at *4-5 (interim fees award allowed when petition had been pending for only nineteen months); Broekelschen v. Sec'y of Health & Human Servs., No. 07-137V, 2008 WL 5456319, at *2-3 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (interim fees award granted with respect to case pending for less than one year).
The awarding of interim fees must also be based on the more general factors that special masters consider, in their discretion to award reasonable fees and costs to unsuccessful petitioners (given that an interim request, being made in a case that has yet to be adjudicated, is literally made in the context of an "unsuccessful" petition). Thus, a special master asked to make an interim award must consider if (a) the petition was brought in good faith
Respondent raises three objections to Petitioner's application for interim fees: 1) interim fees are inappropriate at this juncture of the matter; 2) Petitioner's requested hourly rate for her counsel is unreasonable; and 3) the hours expended by Petitioner's counsel are unreasonable. I will address each of these issues in turn.
Respondent contests that Petitioner's interim fees application is inappropriate because 1) interim fees are not statutorily authorized as per Section 15(e)(1) of the Vaccine Act; and 2) to the extent special masters are in fact so authorized, then they may only act in limited circumstances, such as where a petitioner makes a particularized showing of hardship.
Respondent's first objection to an interim fees award is frequently made in Vaccine Program cases,
Respondent next asserts that even if special masters do have the authority to award interim fees, there is no presumption of entitlement to such an award, which is only appropriate upon a "special showing of hardship" that Ms. Al-Uffi has not successfully made. Opp. at 5-6 (citing McKellar, 101 Fed. Cl. at 300-01). Petitioner responds by arguing that in fact she has made such a special showing by meeting all of the Avera criteria: 1) protracted proceedings; 2) costly expert testimony; and 3) undue hardship. Mot. at 12; Avera, 515 F.3d at 1352.
A threshold matter to resolve is whether all three of these Avera factors must in fact be satisfied, or if the test balances the factors in order to determine the propriety of an interim award overall, in a special master's discretion. Respondent maintains that the Avera criteria are "necessary circumstances." Opp. at 8. But other special masters have not found the Avera criteria to be exhaustive. See, e.g., Hiland v. Sec'y of Health & Human Servs., No. 10-491V, 2012 WL 542683, at *5 (Fed. Cl. Spec. Mstr. Jan. 31, 2012). The enumerated Avera criteria are certainly not conjunctive in nature. Rather, meeting only one of Avera's criteria (or establishing some other rationale) can be sufficient to justify an interim fees award, because the three criteria are "factors that should be considered and weighed when evaluating a request for attorneys' fees before judgment." Dudash v. Sec'y of Health & Human Servs., No. 09-646V, 2011 WL 1598836, at *4 (Fed. Cl. Spec. Mstr. Apr. 7, 2011). And Respondent acknowledges that I possess the discretion to make an interim award (Opp. at 6) — further underscoring that these criteria need not be applied in equal or successive fashion. Thus, while I will consider in my analysis all such criteria herein, I do not conclude that they must all be satisfied to justify an interim award. The better approach is to apply them flexibly to the circumstances before me.
Petitioner first argues that this matter is protracted because it has been pending for over eighteen months. Mot. at 12. She claims that this is sufficient to meet this Avera criterion, given that other special masters have found that cases less than a year old fit the definition of protracted. Id. at 12-13 (citing Bear, 2013 WL 691963, and Becker v. Sec'y of Health & Human Servs., No. 13-687V, 2014 WL 4923160 (Fed. Cl. Spec. Mstr. Sept. 11, 2014). However, in the majority of cases the "protracted proceedings" element is only satisfied where several years have passed, or where a case's trajectory is anticipated to take several more years prior to resolution. See, e.g., Roberts v. Sec'y of Health & Human Servs., No. 09-427V, 2013 WL 2284989, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2013) (granting interim fees when proceedings had been ongoing for over five years); Wright v. Sec'y of Health & Human Servs., No. 10-222V, 2013 WL 1800373, at *3 (Fed. Cl. Spec. Mstr. Apr. 4, 2013) (finding that three years pre-entitlement hearing justified interim fees); Jakes v. Sec'y of Health & Human Servs., No. 06-831V, 2013 WL 1150518, at *4 (Fed. Cl. Spec. Mstr. Feb. 19, 2013) (awarding Mr. Downing interim fees because the case had been ongoing for over six years).
I cannot find that this matter is protracted given its procedural history. Even though Ms. Al-Uffi's petition may be approaching its second anniversary, it is common for Vaccine Program cases that do not settle quickly to last twice as long. And although the parties have acted with admirable speed in obtaining and filing expert reports, it is also clearly the case that a third of the proceeding's history was devoted to records-gathering (and that little attorney time is reflected by that process, which indicates that the collection of documents was not notably onerous).
Regarding the costliness of expert testimony, Petitioner raises the fact that her counsel has had to reimburse expert costs exceeding $10,000. Mot. at 33. But the real question is whether such amounts are properly considered "excessive," as Respondent points out. There is no clear authority for what standard would apply under such circumstances. Avila ex re. Avila v. Sec'y of Health & Human Servs., 90 Fed. Cl. 590, 598 (Dec. 22, 2009) (citing Avera, 515 F.3d at 1352); but see Fester v. Sec'y of Health and Human Servs., No. 10-243V, 2013 WL 5367670, at *15 (Fed. Cl. Spec. Mstr. Aug. 27, 2013) (determining that "[i]t makes considerable practical sense" to evaluate whether expert costs are high based on objective criteria).
Here, I do not find that the particular expert costs at issue are notably high from an objective standpoint: $10,075 is not an insignificant amount, but it is not a shocking price for the services of two experts together. However, the fact that these experts have been paid out of counsel's own pocket does bear slightly in favor of the present request — especially given counsel's diligence and efficiency in obtaining these experts in the case's early stages. In a case where counsel has acted expeditiously with regard to expert retention (thereby increasing the likelihood of a more swift resolution of the matter overall), he should not be penalized.
Finally, Petitioner and Respondent disagree whether the undue hardship criterion solely includes hardship to the Petitioner (Respondent's position), or whether it should consider hardship to both Petitioner and Petitioner's counsel (Petitioner's position).
Here, Petitioner offers the example of the litigation costs her counsel is presently incurring in four pending Vaccine Program cases (including the present). See Reply at 7. Whether or not such costs are directly compensable here or in other Vaccine Program cases on an interim basis, their existence does illustrate the economic challenges that an active Vaccine Program practitioner faces in representing multiple Vaccine Program claimants. And in fact Mr. Downing's burdens may well be greater, given the number of cases in which he is appearing at present in the Program.
In opposing the present application, Respondent cites to instances where I or other special masters have denied interim fees applications. Opp. at 6-8; See, e.g., Lamare v. Sec'y of Health & Human Servs., No. 12-312V (Fed. Cl. Spec. Mstr. Feb. 27, 2015) (unpublished decision) (deferring ruling on an interim fees application due to not meeting the Avera criteria). In Lamare, I determined that an award of interim fees was not justified, mainly because Petitioner had contributed to delay in the case by repeatedly filing motions for continuances, and because the matter was not especially protracted. Id.
Here, although I do not find that the present proceedings are particularly protracted, I also do not find that Petitioner or her counsel have appreciably delayed this matter. To the extent counsel failed to act expeditiously in meeting orders to complete the filing of medical records in the spring and early summer of 2014, the billing evidence establishes that very little attorney time was expended in that period. Moreover, the process of filing medical records was ultimately completed six months from the case's initiation — not an unreasonable amount of time for a Vaccine Program case, since records gathering can last a year or even more. Thus, such delay did not concretely multiply attorney costs, and therefore I do not find that it undermines Petitioner's argument that an interim fees award is appropriate.
There are no other generalized bases for denial of an interim fees award in this case. Respondent does not meaningfully contest Petitioner's good faith or reasonable basis in bringing this petition. Opp. at 8, n. 5.
a.
Determining the appropriate amount of an award of reasonable attorney's fees is a two-part process. The first part involves application of the lodestar method — "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Avera, 515 F.3d at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. 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. 06-559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. 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 rates paid to similarly qualified attorneys in the forum where the relevant court sits (Washington, D.C. for Vaccine Program cases). Avera, 515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum in which the attorney practices, in order to adjust the rate is used for the lodestar calculation. Avera, 515 F.3d at 1349, (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). Here, however, the parties do not dispute that the forum rate and the rate prevailing among Arizona attorneys (the geographic locale from which Mr. Downing practices) is substantially equivalent, obviating the need for such rate comparison. See Opp. at 18.
b.
As the exhibits to Ms. Al-Uffi's fee petition establish, Mr. Downing has 20 years of litigation experience, which includes 12 years of Vaccine Program experience, and represents petitioners in numerous pending cases.
As a result of the foregoing, I find that $350/hour is a reasonable hourly rate for Mr. Downing.
a.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993) (quoting Hensley, 461 U.S. at 433-34).
The special master is not obligated to evaluate an attorney's billing records on a line-by-line basis in deciding a fee petition. Saxton, 3 F.3d at 1521-22 (approving the special master's elimination of 50 percent of the hours claimed); see also Broekelschen, 102 Fed. Cl. 719 at 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 fifty-eight per cent of the numbers of hours for which compensation was sought). At bottom, as the Supreme Court instructs, when awarding attorney's fees, special masters may use estimates to achieve "rough justice." Fox v. Vice, 131 S.Ct. 2205, 2216 (2011).
b.
Regarding Respondent's first objection, I reiterate that I need not "pan for gold" in Mr. Downing's attorney invoices in search of evidence of inefficiency to determine how much of his requested time should be compensated. Saxton, 3 F.3d at 1521-22. Respondent for her part has not identified any specific inefficiencies for me. Despite this, however, I have reviewed Mr. Downing's billing record to look for examples of inefficient work.
Overall, I see only one instance of inefficiency that might warrant reduction. The procedural history does reflect dilatory conduct (and even the ignoring of my orders) in completing the filing of medical records in this case, particularly between April and June of 2014. Opp. at 1, n.1. However in that three-month period, Mr. Downing only billed a total of 1.4 hours ($490). Mot. at 68. Moreover, any delay in completion of such filing was more than made up for in Petitioner's subsequent prompt filing of expert evidence. Accordingly, because such delay did not significantly protract this matter or add to the attorney costs incurred to date, I do not find that it is a basis for reduction in the overall fee request.
Respondent's second global objection is better substantiated. She asserts that Mr. Redman duplicated tasks already performed by Mr. Downing. Opp. at 19. Thus, she questions why Mr. Redman billed (i) 2.5 hours ($487.50) to review medical records already reviewed by Mr. Downing; (ii) 5.6 hours ($1,092.00) to review Respondent's Rule 4(c) Report and expert report and draft a memo in response; (iii) 3.9 ($760.50) to review the same records he has previously reviewed in determining if the record is complete; (iv) .8 hours ($156.00) to review Dr. Axelrod's supplemental report which was already reviewed by Mr. Downing; and (v) 1.2 hours ($234.00)
Other special masters have noted that inefficiency can result from multiple attorneys working on the same case, See, e.g., Turkupolis v. Sec'y of Health & Human Servs., No. 10-351V, 2015 WL 393343, at *4 (Fed. Cl. Spec. Mstr. Jan. 9, 2015). But the opposite is also conceivable — staffing a case with additional attorneys can ensure that the overall quality of work performed is even better, since they can backstop each other or critique mistaken assumptions, thereby reducing the chance that counsel will err in analysis of significant matters. See, e.g., Barrett, 2014 WL 2505689, at *8 (multiple attorneys working the same case can "efficiently and productively" work together, "applying their skills and performing their duties in a complementary, non-duplicative manner"). In evaluating if multiple attorneys have unnecessarily duplicated effort or worked in a coordinated manner, the important question is "whether having [multiple] attorneys is unreasonable." Davis v. Sec'y of Health & Human Servs., No. 07-451V, 2012 WL 4748079, at *2 (Fed. Cl. Spec. Mstr. Sept. 6, 2012) (emphasis added).
Applying the above analytic standard, I reach the following conclusions with respect to Respondent's identified instances of purportedly duplicative inefficiencies:
Based on the above, I reduce Mr. Redman's fees by $
Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52 Fed. Cl. 667, 670 (2002). Such costs include expert time incurred while working on a case. Fester, 2013 WL 5367670, at *16. When petitioners fail to carry their 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).
Vaccine Program petitioners do receive interim awards for incurred expert costs. Such awards are most commonly granted to reimburse such costs following the expert's testimony at an entitlement hearing. See, e.g., Roberts, 2013 WL 2284989 (granting interim award of expert costs after conclusion of hearing but before issuance of entitlement decision); Dobrydnev v. Sec'y of Health & Human Servs., 94 Fed. Cl. 134, 148 (2010) (error for special master to deny interim fees request to cover incurred expert costs; expert had testified at hearing and needed to be compensated for prior work before he would be willing to testify at subsequent rebuttal proceeding); see also Crutchfield, 2011 WL 3806351, at *8 (granting interim award of expert costs after experts' testimony at an evidentiary hearing; although petitioner had paid cost of expert's report preparation, it was an undue hardship to require petitioner also to cover costs incurred after expert testified at trial). However, there are also instances in which petitioners have obtained an interim award of expert costs before the expert testified. See, e.g., DiMatteo v. Sec'y of Health & Human Servs., No. 10-566V, 2014 WL 1509320 (Fed. Cl. Spec. Mstr. Mar. 27, 2014).
Ms. Al-Uffi asks for an interim award of expert costs incurred and paid prior to hearing (which has yet to be scheduled). As discussed above, one of the Avera criteria for an award of interim fees is whether a matter requires the services of "costly experts." Avera, 515 F.3d at 1352. That question is best resolved by addressing the cost issue from an objective standpoint. Fester, 2013 WL 5367670, at *15 ("[a] petitioner or petitioner's counsel who has expended $100,000 in expert costs in a case that may be on review or appeal for several more years certainly presents a more compelling case for an interim award than one who has only a $1,000 expert retainer cost outstanding"). Otherwise, "[t]o look at such cases subjectively would require delving into a law firm's or expert's financial situation, a requirement that would likely be repellant to the court and law firm alike." Id.
Petitioner's motion does not adequately substantiate why an interim award of expert costs is appropriate or necessary. As noted above, the matter has not been protracted, nor are the retention costs for Drs. Axelrod and Siegler particularly high in comparison to the costs that other Vaccine Program experts have generated. See, e.g., Faoro v. Sec'y of Health & Human Servs., No. 10-704V, 2014 WL 5654330 (Fed. Cl. Spec. Mstr. Oct. 15, 2014) (interim award of $23,130 in expert costs). Petitioner has also not established that her ability to prosecute this case will be otherwise harmed if reimbursement of such costs is not made pre-hearing (for example, by demonstrating that the experts would not be willing to testify at hearing unless she was reimbursed for the payment of such costs).
Certainly there is some burden imposed on Petitioner, Petitioner's counsel, and/or his law firm in having to carry the approximately $10,000 in expert costs incurred (and paid) to date. But the existing motion does not substantiate what the nature of that burden is, and/or why it merits an interim award. And I concur with the special master's observation in Fester that delving further into the particular financial status or needs of present counsel within his law firm, in order to ascertain whether that burden is substantial enough, requires a subjective and speculative inquiry that goes well beyond what is appropriately the scope of an interim fees request. (I also note that the concurrent interim award of attorney's fees I am granting might be used in part to ameliorate such costs, thereby, if indirectly, easing any burden on counsel).
Given the above, I do not find that an interim award of expert costs is appropriate at this time. After the hearing, however (at which time Petitioner's experts will have carried out their ultimate purpose by testifying), Petitioner may renew the present request, supplementing it with statements or invoices recording additional expert costs whether paid or merely incurred.
Based on all of the above, the following chart sets forth the total calculation of Petitioner's interim fees award:
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of interim fees awards, and based on the foregoing, I
