CHRISTIAN J. MORAN, Special Master.
In this long-running case, one final issue remains unresolved — the amount of compensation for the neurologist whom the Lovings retained, Robert M. Shuman, to serve as their expert. For Dr. Shuman's services, the Lovings request approximately $284,000.
The duration of this case — more than a decade — contributes to the size of the fee request. Thus, the activities from the filing of the petition to the decision granting the Lovings compensation are set forth in section A below. This section focuses on the work Dr. Shuman performed as listed on his invoices.
Section B separately discusses the course of the dispute over Dr. Shuman's compensation. Given the magnitude of the request, the parties have submitted several briefs on this topic.
On May 9, 2002, the Lovings, acting
By 2002, special masters had considered claims that vaccines caused infantile spasms in several cases. These included:
In short, after the Secretary removed seizures from the Vaccine Injury Table, very few petitioners whose child suffered from infantile spasms received compensation. This background helps explain in part why Dr. Shuman spent so many hours on this case.
Approximately three years after Mr. Dobreff became counsel of record, the Lovings filed a report from Dr. Shuman on December 23, 2005. After the then-presiding special master requested additional information about the basis for Dr. Shuman's opinions (
Dr. Shuman's first report, which is dated October 17, 2005, is 20 pages. The first 17 pages are devoted to summarizing Camille's medical records. Dr. Shuman's opinion is contained in the subsequent three pages. Dr. Shuman cited four articles in support of his opinion.
Dr. Shuman's January 18, 2006 report was one page. Dr. Shuman handwrote answers to two questions and added that "It is my opinion, to a reasonable degree of medical certainty, that the third DTaP vaccination aggravated a pre-existing seizure disorder or encephalopathy." Dr. Shuman did not include any time for preparing his January 18, 2006 report on his invoice.
From his initial retention through the submission of his first report, Dr. Shuman presented two invoices, dated February 25, 2005 and October 17, 2005. Shuman Invoice at 1.
On February 27, 2005, Mr. Dobreff spent 0.15 hours reviewing Dr. Shuman's bill. Dobreff Timesheet. There is no notation as to whether Mr. Dobreff noted any irregularities regarding Dr. Shuman's bill at this time.
The second invoice, dated October 17, 2005, contains nine entries. For two entries, Dr. Shuman stated that he spent 6 hours and 7 hours "review[ing] books." From the context, these books are two publications from the Institute of Medicine. On October 19, 2005, Mr. Dobreff again spent 0.15 hours reviewing the bill from Dr. Shuman.
For his work through October 16, 2005, Dr. Shuman invoiced nearly 57 hours of work, valued at $19,936.00. Dr. Shuman's costs for this time were $93.00.
Despite Dr. Shuman's efforts, the Secretary continued to maintain that the Lovings were not entitled to compensation. Resp't's Rep., filed Feb. 27, 2006. The Secretary relied upon Dr. Michael Kohrman, who traded reports with Dr. Shuman throughout the litigation. Exhibit C.
The parties began to plan for a hearing. As part of that process, the Lovings were ordered to file the articles on which Dr. Shuman relied. Orders, issued March 7, 2006 and May 9, 2006. In a letter to Mr. Dobreff dated June 13, 2006, Dr. Shuman supplied a bibliography, listing more than 50 articles. Exhibit 33. But this bibliography does not contain any description of why any particular article is relevant. Mr. Dobreff filed the bibliography and the medical articles listed therein on June 26, 2006. Exhibits 33-89.
For his work from May 3, 2006 through June 13, 2006, Dr. Shuman has requested compensation for 31.9 hours. Shuman Invoice at 1-2. He separately charged for 10 hours of work his staff performed.
After the Lovings filed the articles, which total more than 800 pages, a status conference was held. The Secretary requested that Dr. Shuman supply an explanation of the articles' relevance and the Lovings agreed. A preliminary review suggested some articles may not be relevant because they discussed different conditions and/or different vaccines. Order, issued July 7, 2006.
In response, the Lovings filed an "annotation" from Dr. Shuman on October 16, 2006. The annotation is based upon the June 13, 2006 letter from Dr. Shuman to Mr. Dobreff. To that letter (exhibit 33), Dr. Shuman added a one-sentence description of each article. Exhibit 90.
Within 10 days of the anticipated start of the hearing, the Lovings filed additional material. Exhibits 91-95, filed November 8, 2006, are additional articles, and exhibits 96-100, filed November 16, 2006, are additional medical records.
Once Dr. Shuman began to testify on November 17, 2006, it was readily evident that he had not disclosed his opinions in his reports. Tr. 109-10, 113-14. Thus, Dr. Shuman was going to prepare additional reports. Tr. 184-87. The Secretary also presented some testimony from Dr. Kohrman. Tr. 236-69.
For his work from July 20, 2006 through December 31, 2006, Dr. Shuman has requested compensation for 154.65 hours, valued at $54,127.50. Dr. Shuman did not bill costs for this time period.
Following the first session of the hearing, the Lovings were ordered to file a supplemental report from Dr. Shuman. The Lovings did so on March 12, 2007. Exhibit 101. The Secretary filed supplemental reports from Dr. Kohrman. Exhibits H and J.
Dr. Shuman's written work product is a 23-page report, dated February 21, 2007. Although some of the pages contain significant white space (and page five is blank), this report is written in a small font with narrow margins. The report includes a detailed analysis of several articles. Dr. Shuman also cited 15 articles, which were filed as exhibits 102-16.
For this period, starting on January 6, 2007, and ending on March 31, 2007, Dr. Shuman charged 202.67 hours. The value of this work is $71,992.85. Dr. Shuman's costs for this time were $1,058.35.
With this record, another hearing was held on November 26-27, 2007, approximately one year after the first hearing. During the second session, both Dr. Shuman and Dr. Kohrman completed their oral testimony.
Between November 2, 2007 and December 28, 2007, Dr. Shuman has invoiced 198.29 hours. The value of this work is $70,571.66. Dr. Shuman's costs for this time were $49.22.
After submission of post-trial briefs, a decision denying compensation was issued.
On remand, the undersigned determined that the Lovings had established that Camille's condition was worse after receiving the third dose of DTaP, and gave the parties an opportunity to develop evidence "to distinguish problems that the DTaP vaccination caused from problems that Camille would have experienced due to her pre-existing infantile spasms. When this process concludes, another decision will issue."
The Lovings filed a motion for reconsideration or clarification of the undersigned's July 30, 2009 ruling.
As part of the process of determining the extent of injury suffered by Camille, the Lovings required additional assistance from Dr. Shuman. The Lovings filed, on December 20, 2010, an additional supplemental report from Dr. Shuman. Exhibit 155. The Secretary filed a responsive report from Dr. Kohrman on April 22, 2011. Exhibit T.
For the period April 9, 2009 to September 10, 2010, Dr. Shuman has requested compensation for 152.78 hours. The value of this work is $53,562.85. Dr. Shuman's costs for this time were $89.85.
After the submission of Dr. Kohrman's April 22, 2011 report, proceedings slowed dramatically. The undersigned repeatedly ordered petitioners to file status reports and information requested by the Secretary for the furtherance of settlement discussions.
In this time, Dr. Shuman performed a single task. On February 28, 2013, Dr. Shuman wrote a letter. This task took 1.5 hours and the value is $525.00. Dr. Shuman billed no costs for this time period.
The values listed above for hourly work are $19,936.00, $11,415.00, $54,127.50, $71,992.85, $70,571.66, $53,562.85, and $525.00. The total amount of those values is $282,130.86. The total for Dr. Shuman's costs is $1,322.03.
Because petitioners received compensation in the September 20, 2013 decision, they are entitled to an award of reasonable attorneys' fees and costs. 42 U.S.C. § 300aa-15(e). The Lovings filed their motion for attorneys' fees and costs on February 19, 2014. The Lovings submitted more than 50 exhibits, totaling more than 200 pages. Pet. for Fees and Costs, filed Feb. 19, 2014. Of these exhibits, the ones primarily relevant to this decision are Dr. Shuman's invoices, expenses, and affidavit. Fee exhibits 36 ("Shuman Invoice"), 37, 38 (filed Feb. 19, 2014).
The motion requested a relatively high amount of attorneys' fees and an extremely high amount of costs relating to Dr. Shuman. After discussions between the attorneys, the Lovings agreed to reduce the amount sought in attorneys' fees and costs not related to Dr. Shuman and the Secretary agreed not to object to the compromised amount. The parties did not reconcile their differences regarding Dr. Shuman.
The Secretary memorialized her objections to the charges for Dr. Shuman's work, identifying several challenges to aspects of Dr. Shuman's invoice. These objections include: (1) entries for which Dr. Shuman did not identify any task, (2) entries for which the task is described too vaguely to assess the reasonableness of the work, (3) entries for which Dr. Shuman performed excessive and repetitive work, and (4) entries in which Dr. Shuman performed administrative tasks. Resp't's Resp., filed July 16, 2014, at 5-6. The Secretary did not propose a specific amount of compensation that she viewed as reasonable. Instead, the Secretary requested that the special master award "an appropriate amount of compensation."
After reviewing the submissions, the undersigned recognized that the dispute involving Dr. Shuman would probably take time to resolve. Thus, the undersigned held a status conference on September 2, 2014.
In that status conference, the parties expressed an interest in seeking mediation to resolve the expert fees and costs. The undersigned also recommended an interim award of the undisputed amount of attorneys' fees and costs. The Secretary did not object to the recommendation.
The undersigned awarded the Lovings the undisputed interim attorneys' fees and costs.
Special Master Corcoran conducted a telephonic ADR status conference on September 22, 2014. The parties were unable to come to an agreement through the mediation. Therefore, Special Master Corcoran removed the case from the ADR process. Order, issued Oct. 7, 2014.
Following the ADR status conferences, both parties requested an opportunity to elaborate on their positions. The Secretary filed a supplemental brief on October 17, 2014, stating the basis of her objections to petitioners' request for $284,203.07 in expert fees and costs. Although the Secretary continued to accept the proposed hourly rate as reasonable, the Secretary did not accept the 811 hours that Dr. Shuman billed. Resp't's Suppl. Br., filed Oct. 17, 2014, at 1-2. The Secretary asserted that, when determining the "reasonableness" of expert costs, the request should be evaluated based on what a hypothetical client would be willing to pay, and under this test, the client would not pay for all the work done by Dr. Shuman.
With respect to the number of hours, the Secretary made essentially two arguments. First, the Secretary compared Dr. Shuman's work to other cases in the Vaccine Program that have involved relatively large requests for expert fees. Second, the Secretary compared Dr. Shuman's work in the present case to other cases in which Dr. Shuman participated.
Compared to all other cases in the Vaccine Program, the Secretary asserted that she believed that Dr. Shuman's request constituted "the largest number of hours sought by an expert in any case in Program history."
The Secretary appeared to suggest that a more suitable basis for comparison was two cases involving a single injured party with relatively extensive hearings. In this context, the Secretary cited an infantile spasm case in which a motion for review was filed.
The other case the Secretary cited was a case in which Dr. Kinsbourne authored four reports and attended two hearings. The special master compensated Dr. Kinsbourne for 125 hours, worth $34,455.00.
The Secretary also compared the present fee request with the fees billed by Dr. Shuman in previous vaccine cases. Resp't's Suppl. Br., filed Oct. 17, 2014, at 5. In some cases, Dr. Shuman billed less than a quarter of the hours he is currently seeking, due in part to writing fewer reports and participating in fewer days of hearing than in the present case, and was awarded reduced amounts.
The Secretary concluded that a reasonable amount of compensation for Dr. Shuman's work "is no more than $80,000."
On November 5, 2014, petitioners filed a response to the Secretary's objections, including another set of exhibits, again labeled 1 through 10.
A significant portion of the Lovings' response recited the procedural aspects of the case and/or listed topics that Dr. Shuman addressed.
The Lovings did not answer many of the objections raised in the Secretary's July 17, 2014 response. For example, although the Secretary identified entries for which Dr. Shuman had charged time but not listed any task, the Lovings did not obtain supplemental information to fill this gap.
Regardless, the Lovings directly addressed some of the Secretary's October 17, 2014 arguments. The Lovings differentiated their case from
With respect to
The Lovings also addressed two previous cases involving Dr. Shuman,
Once the undersigned again took up the matter after these briefs, the undersigned requested additional information from the Lovings to explain the work that Dr. Shuman performed. Order, filed June 24, 2015.
On July 15, 2015, the Lovings filed a status report that did not provide much helpful information. In addition, the Lovings filed another set of exhibits, which largely confused the state of the record because the Lovings cited to the exhibits appended to the status report, rather than the exhibits filed during the merits phase.
I ordered the Lovings to file an electronic version of a spreadsheet that reproduced Dr. Shuman's invoice in a series of rows and columns.
After I received the Lovings' spreadsheet, I ordered the Secretary to analyze Dr. Shuman's work on a line-by-line basis. Order, issued Sept. 4, 2015.
As instructed, the Secretary added columns to the spreadsheet. For each of Dr. Shuman's entries, the Secretary generally took one of two approaches. The Secretary accepted some hours as reasonable, and disagreed with other hours as excessive or redundant.
The value of the entries that the Secretary explicitly accepted as reasonable total $106,850.00. The value of the entries for which the Secretary interposed no objection total $41,250.50 plus another $1,322.03 for Dr. Shuman's costs. The sum of these three items is $149,412.53. The amount for which there is an explicit dispute is therefore $132,718.33.
The Vaccine Act authorizes special masters to award only "reasonable" attorneys' fees. 42 U.S.C. § 300aa-15(e)(1). Likewise, expert fees must be "reasonable."
To determine the reasonableness of a request for attorneys' fees, a lodestar analysis in which a reasonable hourly rate is multiplied by a reasonable number of hours is used.
Petitioners bear the burden of monitoring their expert's billing to avoid fees that are excessive or redundant in context of the issues being litigated.
Petitioners have the burden of providing support for the reasonableness of their expert fee application.
In November 2004, the Office of Special Masters issued revised
A special master is not required to accept at face value any bill the petitioner presents. "A special master is permitted and even expected to examine a law firm's time sheets and root out hours that are excessive, redundant, or otherwise unnecessary so that they may be excluded from an award."
The parties do not dispute one component of the lodestar formula, which is a reasonable hourly rate. The Lovings propose compensating Dr. Shuman at a rate of $350.00 per hour, and the Secretary does not object to that rate for work requiring Dr. Shuman's expertise. The undersigned also finds that rate reasonable given the case's circumstances.
Thus, the disputed issue is the reasonable number of hours. The analysis of the reasonableness of Dr. Shuman's work starts with his invoice, which describes his tasks. As discussed in section A below, the invoice contains multiple deficiencies. Despite the significant impediments to understanding the nature of Dr. Shuman's work, I assess the reasonableness of his claim in section B. Finally, in section C, I compare Dr. Shuman's award in this case to awards in other cases.
By the time Dr. Shuman began working on this case, special masters had issued several decisions explaining their expectations about the content of an expert's invoice. Measured against these standards, Dr. Shuman's invoice falls short in several respects. These problems fall into the following categories: "lumping" work performed into poorly detailed line item descriptions, redundant work, and administrative tasks.
Dr. Shuman's initial invoice contained billings for which no description is given. On the first page alone, Dr. Shuman billed for more than $8,000 without explaining what he did. Shuman Invoice, items dated 2/9/05, 2/12/05, 6/4/06, 6/12/06 and 6/13/06. While the number of entries that lack any description is not large in an absolute sense, the submission of an invoice including any entries without this basic, expected information raises questions. Specifically, there are questions about the invoicing practices of both Dr. Shuman and the Lovings' attorney, as well as the compensability of the work billed in accordance with these practices.
The Secretary raised the lack of notation in her first brief regarding Dr. Shuman's invoice. Resp't's Resp., filed July 16, 2014, at 5-6. Nonetheless, the Lovings did not correct this omission in subsequent filings. When the undersigned discussed the pending fee request in a status conference, the undersigned stated that he did not understand the nature of Dr. Shuman's work for the entries in which he did not describe any task.
While the omission of any task description is the most extreme problem with Dr. Shuman's initial invoice, there are additional problems as well. Many of the descriptions are vague.
For example, on his initial invoice, Dr. Shuman listed medical articles and associated many hours with one article or a few articles. For example, on July 20, 2006, Dr. Shuman spent 9.15 hours on "Outline Swaiman." Mr. Dobreff, subsequently, confirmed that Swaiman refers to exhibit K. Exhibit K is the relevant chapter from Dr. Swaiman's textbook on neurology. Tallie Z. Baram,
Another example concerns Dr. Shuman's review of two reports from the Institute of Medicine. On October 2 and 9, 2005, Dr. Shuman listed 6 hours and 7 hours "review[ing] books", without any further description. Mr. Dobreff, subsequently, confirmed that the books were chapters from the IOM.
This elaboration does not reasonably explain what Dr. Shuman did for approximately one and a half days. The Secretary asserted that: "Given Dr. Shuman's expertise generally and his experience providing testimony in Program cases, it is reasonable to expect that Dr. Shuman was already familiar with these publications and would not have needed to devote so much time to their reviews." Resp't's Resp., filed July 16, 2014, at 6. The Lovings did not provide any information about Dr. Shuman's prior review of the IOM reports.
If the possibility that Dr. Shuman previously reviewed the IOM reports is set aside, there remain questions about what Dr. Shuman did for the 13 hours he said he spent reviewing, analyzing, and critiquing the IOM reports. The IOM reports appear to be written for an audience that is not trained in medical science. They should be readily understandable to someone with years of experience in neurology, like Dr. Shuman. Thus, without more information from Dr. Shuman, the 13 hours appear excessive.
Another dimension of the overall problem of poor descriptions is Dr. Shuman's tendency to lump many articles together in one entry. The Vaccine Guidelines clearly warn against listing too many activities in one entry, because such block billing makes assessing the reasonableness of the time claimed difficult or impossible.
Two examples of problems with the item descriptions occurred on January 10 and 11, 2007.
After Mr. Dobreff was asked to clarify Dr. Shuman's invoice, the Lovings stated that the corresponding evidence is exhibit 49. This is the indication for both the January 10, 2007 entry and the January 11, 2007 entry. Electronic Spreadsheet.
Exhibit 49 is, in fact, an excerpt of the 5th edition of
Dr. Shuman's time on January 10 and 11, 2007, totals slightly more than 14 hours. How much time was devoted to Ford is not clear because Dr. Shuman's invoice does not separate the Ford chapter from other materials. Dr. Shuman listed other articles, including Niedermeyer's 6th ed., 1988 London law articles, Am Acad Peds 1990, Marcuse, and graph. However, when given an opportunity, Mr. Dobreff did not associate any of these articles with corresponding evidence.
The deficiencies in specifying the nature of the work lead to a related concern: redundant research work. Dr. Shuman's invoice repeats articles.
For example, in his March 31, 2007 invoice, the 1994 IOM report, which was filed as exhibits 83 and 84, is included in block entries exceeding 30 hours. Shuman Invoice, items dated 1/6/07, 1/8/07, 1/9/07 and 1/15/07. Dr. Shuman also reviewed this material on 6/11/06, 11/13/06 and 11/14/06. Electronic Spreadsheet.
Another example of an article that appears repeatedly is Bellman. Bellman was submitted as both exhibits 93 and 101, and was reviewed on numerous occasions, including 11/5/06, 11/7/06, 11/13/06, 11/14/06, 11/16/06, 1/8/07, 1/18/07, 2/9/07, 2/10/07, 2/12/07 and 11/12/07 ("re-analyze".)
A third example is Kimura, which was also filed twice (exhibit 60 and 92), and reviewed on 11/4/06, 11/5/06, 11/7/06, 11/13/06, 11/14/06, 11/16/06 and 2/10/07.
The 1994 IOM report, Bellman, and Kimura articles are listed repeatedly without any indication of what type of analysis Dr. Shuman is conducting. It should be noted that (a) these three articles were among the more valuable articles, and (b) that the interruption in the hearing schedule would reasonably require some additional review. Nevertheless, it is difficult to understand what Dr. Shuman was doing and this lack of information leads to unanswered questions about efficiency and reasonableness.
Dr. Shuman averred that he thoroughly reviewed the literature to build "an intellectual database" to support his opinions. Shuman Affidavit at 6, ¶ 45. Considering Dr. Shuman's qualifications and prior participation in the Vaccine Program, it is not reasonable that he spend great amounts of time building a so-called "database."
As noted by the Secretary, Dr. Shuman often charged his full hourly rate for administrative tasks. Resp't's Resp., filed July 16, 2014, at 4, 6. Dr. Shuman performed his own administrative work such as printing, copying, collating, faxing, shipping, retrieving PDF articles, and what appear to be several instances of data entry.
Later in the course of litigation, Dr. Shuman retained knowledgeable family members to assist with tasks such as retrieving articles. Shuman Affidavit at 4, ¶¶ 29-31. Dr. Shuman included their activities on his invoice and charged a lower hourly rate.
Attorneys must charge less for administrative tasks. In fact, activities that are "purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them."
The Lovings argue that the success of their case is owed in large part to Dr. Shuman's long hours of research, which they characterize as "a massive project over six years, with
The quality of Dr. Shuman's work is not directly the issue, although there is some correlation between the quality of work and the quantity of hours. The real question is what is a reasonable amount of time for performing that work?
Due to Congress's restriction that awards of attorneys' fees and costs be limited to "reasonable" amounts (
Mr. Dobreff's invoice lists instances when he reviewed Dr. Shuman's bill. Dobreff Timesheet at 2/27/05, 11/19/05, 6/25/06, 1/3/07, 4/3/07, 1/13/08 and 2/2/08. The total time for these seven entries is less than two hours.
How Mr. Dobreff assessed Dr. Shuman's billing as he received invoices is not clear. Regardless, Dr. Shuman's initial invoices contained deficiencies that should have been remedied contemporaneously.
Efforts by Mr. Dobreff to counsel Dr. Shuman about the requirement to create good invoices by, at a minimum, describing the work that is being done could have easily led to a discussion that some of the descriptions that Dr. Shuman had provided were vague and improperly lumped together several activities. If Mr. Dobreff had provided this advice, and if Dr. Shuman had acted on it, much time and expense could have been saved.
During the pendency of the dispute over Dr. Shuman's invoice, the undersigned took the unusual step of asking the Lovings to correct invoices.
However, other work Mr. Dobreff performed in trying to justify Dr. Shuman's invoice was not helpful. Mr. Dobreff was asked to correlate articles that Dr. Shuman listed by name of author with the corresponding exhibit number. Several of these entries are not correct. For example, for November 3, 2006, Dr. Shuman indicated that he reviewed an article written by Dr. Menkes. Electronic Spreadsheet. Mr. Dobreff's corresponding evidence lists exhibits 68 and 101.
Another example is Dr. Shuman's entry for November 8, 2006, which was "Defense papers; AAN on IS; TC NF re DTaP." The term "defense papers" suggests that Dr. Shuman reviewed articles submitted and cited by the respondent. The phrase "AAN on IS" is probably an abbreviation for American Academy of Neurology on infantile spasms. "TC" probably means telephone call with NF (who is not identified) about the vaccine. For this entry, Mr. Dobreff listed exhibits 105-09, 101, and 107.
Again, the November 3, 2006 and November 8, 2006 entries are examples where Mr. Dobreff's attempt to explain Dr. Shuman's invoice was either confusing, incomplete, or inaccurate. Given the magnitude of the fee dispute, more accurate work from Mr. Dobreff would have advanced the Lovings' and Dr. Shuman's claim for reimbursement.
The undersigned has divided Dr. Shuman's work into phases and determined how many hours Dr. Shuman is claiming and the value of that claim. Section I.A. of this decision presents this information.
The undersigned has also reviewed Dr. Shuman's written reports with an eye on the number of pages. While page length does not correlate automatically to a minimum or a maximum number of hours, the report's size is useful in assessing the reasonableness of the activities.
The undersigned has also considered the articles that Dr. Shuman listed on his invoice and that Mr. Dobreff identified as associated evidence. The undersigned has looked at the number of substantive pages, the complexity of the articles, and any notations that Dr. Shuman made on the articles.
The undersigned has also gone through the tedious task of reviewing each line in Dr. Shuman's invoice. The undersigned has focused on entries in which the Secretary objected to Dr. Shuman's charge. In the process of identifying disputes, the undersigned concludes that for at least some entries, the Secretary has accepted a generous amount of time that reasonably could have been disputed. Examples include:
Exhibit X (Secretary's comments on Excel spreadsheet). This list is not complete, but it should demonstrate that the Secretary's bottom-line number ($149,412.53) is derived from a good-faith assessment.
In my experience, the Secretary's current position is far more reasonable than that staked out by the Lovings.
Nonetheless, based upon my oversight of the case during all important parts of the merits phase, familiarity with the important articles and testimony during the hearings, supervision of the case on remand during which the parties settled the case, detailed review of the evidence associated with Dr. Shuman's fee, and consideration of the parties' arguments, I conclude that it is reasonable to reduce the fees for Dr. Shuman only by one-third, as opposed to the almost half argued by the Secretary. This one-third reduction is consistent with the scope of the expert work in this case.
I find a reasonable amount of fees for Dr. Shuman is two-thirds of the $282,130.86 requested, or $188,087.22, plus full costs of $1,322.03. Therefore, the total owed addressing Dr. Shuman's services is $189,409.25.
The finding that $189,409.25 constitutes a reasonable amount of compensation is higher than the amounts awarded in cases the parties cited. These cases are at least somewhat similar in that an expert (a) wrote multiple reports discussing an extensive amount of literature, and (b) testified at a hearing that lasted multiple days. Relevant cases include the Omnibus Autism Proceeding and the early cases involving the SCN1A gene, such as
The number of hearing days in
Cases like
Dr. Shuman's award is based upon the evidence presented in this case. Unfortunately, the evidence (Dr. Shuman's invoices) was not developed as well as it could have been during the relevant time. If there is a "lesson" in this case, it is that petitioners' attorneys and experts alike should take the time to describe what work they are doing. A contemporaneously created invoice that contains sufficient detail and avoids block-billing of multiple hours is much more likely to be credited.
The Lovings are awarded $189,409.25 for all costs associated with Dr. Shuman. This award is in addition to the amount for attorneys' fees and costs awarded on September 10, 2014. The Clerk shall enter judgment accordingly.
This statement is accurate only if the source of the Secretary's objections is restricted to the October 17, 2014 brief. In the earlier response, the Secretary argued that Dr. Shuman's invoice was vague and the time he spent reviewing articles was excessive. Resp't's Resp., filed July 14, 2014, at 5-6.
