CHRISTIAN J. MORAN, Special Master.
In a petition filed on March 6, 2015, Joseph Bourche alleged that a dose of the hepatitis B vaccination harmed him. Mr. Bourche sought compensation from the National Childhood Vaccine Injury Compensation Program, found at 42 U.S.C. § 300aa-10 through 34 (2012).
While the question of whether the vaccination harmed Mr. Bourche remains pending, a motion requesting an award of attorneys' fees and costs on an interim basis was filed. Pet'r's Fee Appl'n, filed Nov. 13, 2015. The Secretary opposed this request. Resp't's Resp., filed Dec. 3, 2015. For the reasons explained below, an award of attorneys' fees and costs is not appropriate at this time. Therefore, the petitioner's request is DENIED.
In early 2014, Mr. Bourche was 55 years old and owned an automobile repair shop. Exhibit 1 (affidavit of Mr. Bourche).
On April 23, 2014, Mr. Bourche received the hepatitis B vaccine. In his affidavit, Mr. Bourche asserted that on the day of the vaccination, he became very itchy all over his body. Following the vaccination, Mr. Bourche developed blisters in his mouth for which he was treated in a hospital.
According to timesheets submitted by Mr. Bourche's attorney, Mr. Bourche first contacted Mr. Downing on August 26, 2014. Mr. Downing's office collected medical records, drafted an affidavit, and prepared a petition, which the Clerk's Office filed on March 6, 2015. The petition was filed 317 days after vaccination. On behalf of Mr. Bourche, Mr. Downing filed medical records.
On June 25, 2015, the Secretary filed her report in which she assessed those records. The Secretary's opinion was that Mr. Bourche had not established that the hepatitis B vaccination harmed him. The Secretary noted that Mr. Bourche had not submitted an expert report supporting his allegations.
Mr. Downing engaged a rheumatologist, Thomas Zizic, to assist with Mr. Bourche's claim on July 13, 2015. Timesheets at 50.
While Dr. Zizic was preparing his first supplemental report, Mr. Bourche filed a motion requesting an award of attorneys' fees and costs on an interim basis. Mr. Bourche sought compensation for Mr. Downing's work, work other people in Mr. Downing's law firm performed, and for Dr. Zizic's work. Mr. Bourche argued that he was eligible for an award of attorneys' fees and costs on an interim basis because he satisfied the factors listed in
The Secretary opposed the request for an award on an interim basis because Mr. Bourche did not meet the
Mr. Bourche filed a reply addressing the Secretary's arguments. Mr. Bourche maintained that an interim award remained appropriate. Mr. Bourche also generally defended the amounts the different people had requested as reasonable. Pet'r's Reply, filed Dec. 14, 2015.
After Mr. Bourche submitted the reply brief, the case continued to develop. On December 28, 2015, he filed the first supplemental report from Dr. Zizic. Exhibit 44.
Unfortunately, Mr. Bourche died on January 16, 2016, due to complications of his congestive heart failure. Exhibit 45 (death certificate). The representative of his estate, Mari Bourche, plans to continue the litigation.
Broadly speaking, resolving the pending motion for an award of attorneys' fees and costs on an interim basis requires consideration of three issues. The first is whether the petitioner is eligible for attorneys' fees and costs. If the petitioner is eligible, then the second issue is whether the petitioner should receive any attorneys' fees and costs at this time. The third question is, assuming that some award is appropriate, what constitutes a reasonable amount in this case.
Petitioners who have not yet been awarded compensation may be entitled to 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). Here, the reports from Dr. Zizic satisfy the reasonable basis standard. In addition, Mr. Bourche brought his petition in good faith.
After a finding of good faith and reasonable basis, the special master may exercise discretion in awarding attorneys' fees and costs on an interim basis.
Among the three listed factors, Mr. Bourche emphasizes "costly experts." Pet'r's Fee Appl'n at 7 ("the case involves costly expert testimony, and an award for interim fees is justified on this basis alone"). On its face, Dr. Zizic's invoice seeks payment for more than $40,000 (and this invoice does not include any time spent preparing the first supplemental report). The Secretary argues that the costliness of Dr. Zizic's work "is attributable to the excessive and unreasonable number of hours expended by the expert." Resp't's Resp. at 7-8;
The next factor is "undue hardship." In
A conclusion that the petitioner's attorney qualifies as a burdened person does not end the analysis. The delay in payment must constitute a "hardship" and that hardship must be "undue." The Federal Circuit did not define either term. In the absence of further Federal Circuit guidance, other sources are consulted. One dictionary defines "hardship" as "extreme privation," and "undue" as "exceeding what is appropriate or normal; excessive." The American Heritage Dictionary 619, 1473 (3d ed. 1993).
More tangentially, the term "undue hardship" or something similar, appears in at least three statutes. First, a debtor seeking discharge of a student loan must show "undue hardship," 11 U.S.C. § 523(a)(8), and it has been interpreted in that context as requiring "privation beyond reasonable limits."
These different sources point in the same direction: the "undue hardship" that a petitioner's attorney invokes to justify an award of attorneys' fees and costs on an interim basis must be an inconvenience greater than a delay associated with waiting for payment until the end expected in a routine case. If any delay in payment qualified as an undue hardship, then the factor would be meaningless.
In an attempt to establish that waiting until the end of Mr. Bourche's case would constitute an "undue hardship," Mr. Downing argues that "making Counsel wait years to receive any payments from the Program would have a chilling effect on competent Counsel being willing to represent Petitioners in the Program." Pet'r's Fee Appl'n at 8;
The undersigned's observation is that, far from being chilled, attorneys' willingness to represent petitioners is increasing. This is demonstrated by increased petitions in the Vaccine Program. In 2013, 525 cases were filed. In 2014, 677 cases were filed. In 2015, 945 cases were filed. Of these 2015 cases, the petitioner appeared pro se in only 29 cases, or approximately 3 percent. This rate of pro se petitioners suggests — but does not prove — that people with colorable claims are finding attorneys to represent them.
Also instructive is the lengthening of the list of attorneys willing to represent petitioners, which the Clerk's Office maintains. According to information from the Clerk's Office, in May 2014, the list contained 130 attorneys. In May 2016, 156 attorneys were listed. This 20 percent increase suggests — but, again, does not prove — that attorneys are willing to participate in the Vaccine Program.
While the system of compensating attorneys in the Vaccine Program could, as proposed by petitioner, be keeping attorneys out of the Vaccine Program, it seems more likely the converse is true. Data suggests that the Vaccine Program's compensation system, in which attorneys who represent unsuccessful litigants almost always are compensated for their reasonable work, is attracting significant quantities of quality attorneys to participate, not chilling their participation.
Thus, in the absence of persuasive evidence that the current system is "chilling" attorneys' participation, the argument about "undue hardship" essentially boils down to delay. Delay, of course, closely relates to the remaining
In support of an argument that less than one year of litigation can qualify as "protracted litigation," Mr. Bourche cites two cases. The first citation,
The second case,
In the absence of an attorney's motion to withdraw from a case, petitioners' attorneys usually file motions seeking an award of attorneys' fees and costs on an interim basis only after the case has been pending for multiple years.
Whether a case is exceptional seems to depend upon what is expected. The Vaccine Program, as mentioned previously, has received a sharp increase in the number of cases. Concomitantly, the Department of Justice is no longer participating in the process of resolving disputes involving attorneys' fees and costs as it once did,
Judicial officers are afforded great discretion in managing their dockets. Landis v. North Am. Co., 299 U.S. 248, 254 (1936);
Here, the undersigned could have left the motion pending, which would be like denying the motion. However, the undersigned has opted to act on the motion explicitly for two reasons. First, the undersigned's resolution of the motion provides a basis on which Mr. Bourche could file a motion for review.
For these reasons, the undersigned declines to exercise discretion to award Mr. Bourche his reasonable attorneys' fees and costs on an interim basis. If Mr. Bourche's case becomes unexpectedly prolonged, Mr. Bourche is encouraged to request a status conference to discuss whether he should file another motion. Given this resolution, determining a reasonable amount of attorneys' fees and costs is not necessary.
The November 15, 2015 motion for an award of attorneys' fees and costs on an interim basis is DENIED. At a later time, Mr. Bourche may file another motion for attorneys' fees and costs that encompasses the amounts previously requested.