LAURA D. MILLMAN, Special Master.
On February 19, 2016, the undersigned issued a damages decision in this case pursuant to the parties' stipulation, awarding petitioner $200,000 in compensation. On March 4, 2016, petitioner filed an Application for Award of Attorney's [sic] Fees and Reimbursement of Costs, seeking $121,944.74. On March 18, 2016, petitioner filed an amended Motion for Attorneys' Fees and Costs, requesting $132,550.68. Respondent has raised objections to certain aspects of petitioner's attorneys' fees and costs application.
For the reasons set forth below, the undersigned awards petitioner $77,269.90 in reimbursement for attorneys' fees and costs.
On August 5, 2013, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2012) ("Vaccine Act"), alleging that he suffered a winged scapula and pain and weakness in his right shoulder area as a result of an influenza ("flu") vaccination he received on October 20, 2011. Pet. at ¶¶ 2, 5, 8.
During the initial status conference on November 1, 2013, respondent indicated she was willing to receive a reasonable settlement demand from petitioner. The undersigned set a deadline of December 6, 2013 for petitioner to make a demand on respondent.
On December 5, 2013, petitioner filed a letter from a rehabilitation specialist, Dr. Michael D. Dambeck. Ex. 12. In his letter, Dr. Dambeck explained that because petitioner's injury had occurred two years before, he believed petitioner's "nerve recovery is likely as recovered as it will ever be," and that petitioner would need to continue his home exercise routines in order to sustain the improvement in his shoulder.
On December 5, 2013, petitioner filed a status report asking for an extension of time to send a demand to respondent, explaining he was still gathering the information necessary to prepare a demand. The undersigned granted petitioner's motion and gave him a deadline of February 3, 2014 to communicate his demand to respondent.
On February 3, 2014, petitioner filed a status report stating he was still assembling a demand to send to respondent. He explained that because "petitioner's condition includes chronic and permanent conditions related to his vaccine injury . . . [he had] engaged the services of a life care planner to evaluate his condition and the effect it will have on his future." Status Rep. at 1. Petitioner further explained that his attorney had discussed the issue with respondent's counsel, and she "indicated she understood the need to have a complete understanding of petitioner's situation regarding his vaccine injury and does not object to petitioner submitting a demand when all necessary information is available."
On February 24, 2014, petitioner submitted another status report explaining the life care planner needed to consult with petitioner's primary care physician to determine petitioner's future healthcare needs. He requested a new deadline of April 2, 2014 to send a demand to respondent. The undersigned granted his motion the next day.
On April 2, 2014, petitioner filed a status report explaining he had not yet communicated a demand to respondent because his life care planner had not finalized her report. She was waiting to receive a report from petitioner's medical provider in order to complete her life care plan.
During a status conference on April 24, 2014, petitioner said he had sent a demand to respondent on April 18, 2014. Respondent's counsel said she was not sure whether her client would to settle due to the timing of the onset of petitioner's alleged vaccine injuries.
On June 2, 2014, petitioner filed a memorandum and a second affidavit in order to clarify the timing of the onset of the symptoms of his vaccine injury. On June 3, 2014, the undersigned held a status conference in which the parties discussed the issue of the onset of petitioner's winged scapula. The undersigned ordered respondent to file her Rule 4(c) Report by August 4, 2014. On July 28, 2014, respondent filed her Rule 4(c) Report, which summarized petitioner's medical records and explained that respondent still believed that the onset of petitioner's scapular winging was too close in time to his flu vaccine to show causation.
During a telephonic status conference on August 21, 2014, the undersigned ordered petitioner either to make a revised demand on respondent or file an expert report by October 20, 2014. After receiving three extensions of time, petitioner filed a report by Dr. Marcel Kinsbourne on January 3, 2015. Ex. 15. During a status conference on January 6, 2015, respondent's counsel said she would check with her client to see if petitioner's report changed her client's view on settling the case. At the next status conference on March 4, 2015, respondent explained she had retained an expert. The undersigned set a deadline of April 3, 2015 for respondent to file her expert report. Petitioner's counsel said he would speak with his client about revising his original settlement demand.
On March 30, 2015, respondent filed an expert report by Dr. Vinay Chaudhry. Ex. A. At the next status conference on April 9, 2015, the undersigned set a deadline of June 8, 2015 for petitioner to file an expert report from Dr. Kinsbourne responding to Dr. Chaudhry's report. During the same status conference, petitioner's counsel explained he had sent a revised demand to respondent, which was still too high for respondent to accept. Petitioner's counsel said he would call respondent's counsel to discuss the matter.
Petitioner filed Dr. Kinsbourne's responsive expert report on June 8, 2015. The undersigned held the next telephonic status conference on June 23, 2015, during which the parties explained that they had been unable to settle. Petitioner said he was considering lowering his most recent demand. The parties decided to set a date for an entitlement hearing.
In a Pre-Hearing Order on August 4, 2015, the undersigned scheduled a three-day entitlement hearing beginning on December 1, 2015. After the parties had filed their pre-hearing submissions on October 29, 2016, the undersigned issued an Order adjusting the length of the hearing to two days because only four witnesses would be testifying.
During the pre-hearing status conference on November 23, 2015, the undersigned urged the parties to settle the case before the hearing.
The entitlement hearing began on December 1, 2015. After a break during the first day of the hearing, the parties informed the undersigned that they had settled. The undersigned ended the hearing and issued a 15-Week Order on the same day.
On February 19, 2016, the parties filed a stipulation for award. On the same day, the undersigned issued a decision awarding damages of $200,000.00 based on the parties' stipulation.
Petitioner filed a motion for attorneys' fees and costs on March 4, 2016, requesting a total of $121,944.74 in attorneys' fees and costs. Respondent filed a response to petitioner's motion on March 10, 2016. On March 18, 2016, petitioner filed a Motion to Strike the application for attorneys' fees and costs filed on March 4, 2016 because he had forgotten to include expenses petitioner incurred in retaining a life care planner. Petitioner filed an amended motion for attorneys' fees and costs along with his Motion to Strike, requesting $132,550.68. The undersigned granted petitioner's Motion to Strike on March 21, 2016. Respondent filed a response to petitioner's amended motion for attorneys' fees and costs on March 31, 2016. On April 5, 2016, petitioner filed a reply to respondent's response.
This matter is now ripe for adjudication.
Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1);
The Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act, which involves a two-step process.
In her Response dated March 31, 2016, respondent states that her "estimation of reasonable attorneys' fees and costs for the present case roughly falls between $58,000.00 and $85,000.00."
Counsel must submit fee requests that include contemporaneous and specific billing entries indicating the task performed, the number of hours expended on the task, and who performed the task.
A reasonable hourly rate is "the prevailing market rate defined as the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation."
Two attorneys, Richard Gage and his associate Donald Gerstein, worked on this case. Because Mr. Gage's office, Richard Gage & Associates, P.C., is based in Cheyenne, Wyoming, both attorneys are not entitled to forum rates under
Petitioner requests an hourly rate of $270.00 for Mr. Gage's work on his case in 2013. Fee app., Tab C. The undersigned finds Mr. Gage's requested rate unreasonable. She notes that several special masters awarded Mr. Gage a $260.00 hourly rate for his work in the year 2013.
However, the undersigned still finds that it is appropriate to award an hourly rate of $260.00 for the work Mr. Gage performed in 2013. Petitioner provided no justification for requesting an hourly rate $10.00 higher than $260.00, which is the rate the vast majority of special masters have found Mr. Gage is entitled to. Therefore, the undersigned will award petitioner $260.00 an hour for Mr. Gage's work in 2013. This results in a reduction of $92.00 from petitioner's fee award.
The undersigned likewise finds petitioner's request of $285.00 per hour for the years 2014 and 2015 unreasonable. In
Petitioner requests an hourly rate of $285.00 for the 0.5 hours Mr. Gage spent reviewing his fee application in 2016. However, the undersigned finds it reasonable to use an hourly rate of $290.00 for Mr. Gage's work in 2016, as that aligns with the 3.7 percentage increase used in
Petitioner requests identical hourly rates for Mr. Gage and Mr. Gerstein, namely, $270.00 in 2013, and $285.00 for 2014, 2015, and 2016. Petitioner does not give any justification for why Mr. Gerstein, an associate, should receive the same hourly rate as the named partner at his firm. The undersigned does not find it reasonable to award identical attorneys' fees to a partner and an associate. Moreover, Mr. Gage has been practicing in the Vaccine Program for 26 years, while Mr. Gerstein began practicing in the Vaccine Program in 2010.
In her response to petitioner's application for attorneys' fees and costs, respondent notes that "the proceedings in this case were significantly extended due to petitioner's request for significant future lost wages and future medical expenses." Resp. at 3 note 1. As respondent notes, petitioner testified at the hearing that he did not have any wage loss or future medical expenses. Instead, petitioner testified he was able to perform his job and was not receiving routine medical care for his vaccine injury. In response, petitioner argues that because the lost wages and future medical expenses components of petitioner's claim would not "have been ripe for litigation in a causation hearing," it is not appropriate for respondent to say that these components prolonged the resolution of the case. Reply at 2. Finally, petitioner states that "documentation supporting lost wages was provided to [r]espondent's counsel on at least two occasions."
The undersigned does not find petitioner's arguments persuasive. Petitioner's counsel may have provided documentation supporting petitioner's lost wages during settlement negotiations, but his client did not agree with petitioner's counsel's assessment that his vaccine injury had resulted in any wage loss. The parties settled the case during a break in the entitlement hearing, immediately after petitioner testified during cross-examination that he did not have any wage loss or future medical expenses.
Moreover, the undersigned finds that petitioner's counsel's lack of understanding of his client's case significantly extended the resolution of the case. While it is true that the issues of wage loss and future medical expenses would not have been litigated at an entitlement hearing, the undersigned urged the parties to settle numerous times before the entitlement hearing, including during the pre-hearing status conference. As evidenced by the fact that the parties settled immediately after petitioner testified he had not experienced any wage loss and did not expect to have medical expenses in the future, the case would likely not have gone to hearing if petitioner's counsel had clearly understood petitioner's damages during settlement negotiations.
Therefore, the undersigned will reduce petitioner's award of attorneys' fees and costs by 30 percent, which is an estimate of how much time the resolution of the case was prolonged by petitioner's counsel's failure to investigate the appropriate amount of damages to use in negotiating a settlement for his client. The undersigned includes petitioner's costs as well as fees in this reduction because a significant amount of petitioner's costs would have been eliminated if petitioner's counsel had asked for the appropriate amount of damages when attempting to settle this case before the entitlement hearing. For example, the hours that petitioner's counsel and petitioner's expert, Dr. Kinsbourne, spent preparing for the entitlement hearing would have been eliminated. However, the undersigned will not reduce petitioner's costs by 30 percent, as the reduction is due to petitioner's counsel's oversight, not petitioner's oversight.
Attorneys' costs must be reasonable as well.
Petitioner asks to be reimbursed a total of $10,605.94 for the preparation of a life care plan. In a status report filed on February 3, 2014, petitioner explained that he was hiring a life care planner to help formulate a demand. He explained that a life care plan was needed because "petitioner's condition includes chronic and permanent conditions related to his vaccine injury . .. ." Status Rep. at 1. However, during the entitlement hearing petitioner testified to the opposite of the statement made in his status report. Petitioner's counsel hired a life care planner due to a misunderstanding of his client's case. Therefore, the undersigned will not reimburse petitioner for any of the cost of hiring a life care planner.
The undersigned finds an award of attorneys' fees and costs appropriate. In sum, the undersigned awards petitioner the following amount for attorneys' fees and costs:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.
