BRIAN H. CORCORAN, Special Master.
On October 5, 2005, John and Barbara Murphy filed a petition on behalf of their minor child, M.M., seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").
Petitioners have now filed a motion requesting an interim award of attorney's fees and costs. See generally Motion for Interim Attorney's Fees and Costs, dated January 3, 2017 (ECF No. 132) ("Fees App."). Petitioners request an interim award of $121,261.06: $100,696.00 in attorney's fees, $11,780.06 in costs expended by Petitioners' counsel, and $8,785.00 in costs for Petitioners. Fees App. at 4. Respondent does not oppose the interim nature of the request, but has suggested that the award should be reduced because the Murphys continued to pursue the case when no reasonable basis existed. See Response to Motion for Interim Attorney's Fees, filed on January 19, 2017 (ECF No. 133) ("Response"). Petitioners filed a reply maintaining that their case continues to have a reasonable basis. See Reply to Response, filed on February 6, 2017 (ECF No. 134)("Reply").
For the reasons stated below, I hereby
This matter has existed for over ten years. Petitioners originally filed their case pro se in October 2005, in conjunction with the Omnibus Autism Proceedings ("OAP"). Pet. at 1, filed Oct. 10, 2005 (ECF No.1). The proceedings were stayed until the OAP test cases were concluded. See Order, filed on June 2, 2006 (ECF No. 6). Petitioners began to file more medical records at the beginning of 2009, when the case was classified as Stage One.
Petitioners received several extensions of time to file medical records, finally completing the process in November 2009. Shortly thereafter, however, on December 9, 2009, this case was again stayed pending the resolution of the OAP test cases. On February 17, 2011, Petitioners were ordered to inform the court if they wanted to proceed with their case given the resolution of the OAP test cases. See Order, filed on Feb. 17, 2011 (ECF No. 22). Petitioners chose to remain in the Program, and filed an amended petition modifying their causation theory. See Amended Petition, filed on March 17, 2011 (ECF No. 23).
There was no subsequent activity in the case until the following year, when a scheduling order was issued ordering Petitioners to file an expert report or describe their progress in obtaining an expert. See Scheduling Order, filed on March 15, 2012 (ECF No. 24). Another year then passed before Petitioners finally filed that expert report (from Dr. Mary Megson, who went on to testify for the Petitioners at hearing) on August 1, 2013. Respondent then filed his Rule 4(c) Report on November 29, 2013, including with it the expert report of Dr. Max Wiznitzer. See Respondent's Report, filed on Nov. 29, 2013 (ECF No. 42). That report also identified outstanding medical records that Petitioners were ordered to file by February 10, 2014. See Scheduling Order, filed on Dec. 17, 2013 (ECF No. 43). The deadline was subsequently extended twice to April 14, 2014, when the medical records and amended statement of completion were filed.
Shortly thereafter, on May 1, 2014, an entitlement hearing was scheduled for September 11-12, 2014. See Scheduling Order, filed on May 1, 2014 (ECF No. 54). However, in June 2014, due to a conflict with Petitioners' expert that date was moved to January 15-16, 2015. In the meantime, the case was reassigned to me, but then—three days before the hearing was to commence—Petitioners' counsel requested that the hearing be postponed a second time, now due to her illness. The hearing was consequently rescheduled for May 18-19, 2015. See Prehearing Order, filed on Jan. 13, 2015 (ECF No. 74). However, in April 2015, Petitioners requested yet another hearing continuance, now arguing that their expert was potentially unwilling to appear due to comments made about her by a different special master, and that Petitioners otherwise believed that they likely could not meet their burden of proof without the opportunity to bulwark further the record — possibly by the addition of a new expert. See Motion for Discovery, filed on April 1, 2015 (ECF No. 79); see also Motion for Extension of Time, filed on June 26, 2014 (ECF No. 58).
The two-day hearing was held as scheduled, with an additional treating doctor, Dr. Andrew Zimmerman, testifying (in part so that Petitioners could be provided an opportunity to lay the groundwork for why additional expert testimony was required). Thereafter, from May to October 2015, the parties resolved some post-hearing issues, and post-hearing briefing concluded in February 2016. On April 25, 2016, I issued a decision denying compensation to Petitioners. See Murphy v. Sec'y of Health & Human Servs., No. 05-1063V, 2016 WL 3034047 (Fed. Cl. Spec. Mstr. April 25, 2016). Petitioners filed a motion for review on May 25, 2016, which was denied on August 15, 2016. See Murphy v. Sec'y of Health & Human Servs., No. 05-1063V, 128 Fed. Cl. 348 (Sept. 15, 2016). The Murphys have appealed the Court's decision to the Federal Circuit, and their appeal remains pending. See Notice of Review, filed on Oct. 14, 2016 (ECF No. 131).
Petitioners filed this interim fee request on January 3, 2017, followed shortly by Respondent's reaction on January 9, 2017, and Petitioners' reply on February 6, 2017. They have not previously sought an interim award in this case. This matter is now ripe for a decision.
I have in prior decisions set forth at length the relevant legal standards governing attorney's fees awards in unsuccessful cases, and in particular the criteria to be applied when determining if a claim possessed "reasonable basis."
Based on my review of the case, record coupled with the history of counsel's representation of Petitioners as set forth in the billing records, I conclude that this matter had enough reasonable basis through the hearing and post-briefing thereafter to justify a fees award, despite the claim's lack of success (to date, admittedly). The Petitioners' claim was not particularly robust or persuasive. Indeed, aspects of their theory (in particular, those pertaining to the MMR vaccine) have been firmly discredited since completion of the OAP (and arguably should not have been pursued once the claim was amended). Petitioners did, however, offer relevant testimony from a competent treater, Dr. Zimmerman, that prior to hearing appeared likely to be entitled to some probative weight, and that could have possibly breathed some life into the claim.
In addition, aspects of Petitioners' claim that subsequent decisions rendered in the Program have suggested are baseless (in particular, the concept that post-vaccination developmental regressions can be attributed to a vaccine-induced encephalopathy even if there is no evidence of an encephalopathic reaction) had yet to be decided when this case was heard in the spring of 2015. See, e.g., Cunningham v. Sec'y of Health & Human Servs., No. 13-483V, 2016 WL 4529530 (Fed. Cl. Spec. Mstr. Aug. 1, 2016) aff'd 2017 WL 1174448 (Fed. Cl. March 22, 2017) (disregarding "petitioner's attempt to differentiate this case from other autism cases by creating this second step" of developmental regression or loss after vaccine-induced encephalopathy). I therefore do not find in this case that the overall lack of success of autism injury claims in the Program is grounds for denying fees. And while I find that the case's meandering progression is somewhat attributable to a failure to prosecute the matter vigorously, that deficiency can be addressed in determining the reasonableness of work performed, and thus does not detract from the facial reasonableness of the claim. Certainly the reasonableness of this claim was less questionable when the Murphy's filed it nearly 12 years ago.
Given the above, sufficient reasonable basis existed for this matter through its trial to entitle Petitioners to a fees award (although, as noted in more detail below, my evaluation of the reasonable basis to time devoted to appeals thereafter shall be deferred until the pending Federal Circuit appeal is resolved). And the circumstances of this case — which has been litigated for many years — makes an interim award appropriate despite the pending Federal Circuit appeal.
Petitioners' request that Ms. Finn be compensated at the rate of $400 per hour for all work performed in the years 2009-2016. Ms. Finn has previously been awarded forum rates given her office's location in the New York metropolitan region. See Dimatteo v. Sec'y of Health & Human Servs., No. 10-566V, 2014 WL 1509320, at *5 (Fed. Cl. Spec. Mstr. March 27, 2014); citing with approval, Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 27, 2009)). I thus do not dispute her entitlement to a forum rate as well.
There is, however, an issue as to whether Ms. Finn is entitled to $400 per hour — a rate above even the forum rate range established in McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) for an attorney of her experience, since Ms. Finn has only practiced law since 2003.
Based upon my experience with Ms. Finn, I find that she should be compensated at a rate within the McCulloch range, but not at the absolute highest end. I will instead award her rates consistent with other special masters. Beginning with her most recent work in 2016, I will award her a rate of $328, consistent with the decision in Eschevarria v. Sec'y of Health & Human Servs., No. 15-100V, 2016 WL 6872975 at *3 (Fed. Cl. Spec. Mstr. Oct. 28, 2016). I will similarly apply the rate in that decision for 2015, awarding Ms. Finn an hourly rate of $316. Id. For the years 2011-2014, I will apply the rates established in Rowan v. Sec'y of Health & Human Servs., No. 10-272V, 2014 WL 3375588 at *3 (Fed. Cl. Spec. Mstr. June 19, 2014), which are $310 for 2012-2014 and $300 for 2011. The only remaining year to assign a rate is 2009. Because no prior decisions have set a rate for Ms. Finn in that year, I will do so by applying the producer price index office of lawyers ("PPI-OL") formula from her 2011 rates, which will adjust the rate down for inflation.
Petitioner's fees invoices also include 201.9 hours of time devoted to the matter from 2013 to 2016, and billed by a series of unidentified individuals (JL
I have previously discussed the legal standards relevant to evaluating whether attorney time devoted to a matter was reasonably spent. Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956 2015 WL 6181669 at *11-12 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). In this case, it is prudent to consider the present interim request as comprising two categories of time: work performed for the case's preparation, entitlement hearing, and post-trial briefing; and work devoted thereafter to the matter's subsequent appeals.
For the former category, I will award interim fees for work performed on the matter through December 7, 2015, with some reductions explained below. However, I will defer ruling on any fees or costs incurred thereafter,
As mentioned above, a two-day hearing was held in this case from May 18-19, 2015. Ms. Finn billed a total of 11 hours of travel time by car to and from New York to Washington, D.C. at her full requested rate of $400 an hour. Fees App. at 9-10. Id. Special masters have, however, commonly compensated attorneys at only half their usual billing rate for travel when the time is not established to have also included work. Rodriguez, 2009 WL 2568468 at *1, *21 (finding it was reasonable to compensate the attorney at 50% of the forum rate for travel time when attorney travelled by car and did not perform any work on the case).
Given the language of the billing entry, and the fact that Ms. Finn drove, it would be difficult to conceive that she was working while travelling in this particular case, and Petitioners have not established otherwise. I will therefore cut her travelling rate (the $316 rate for work performed in 2016, as determined above) by 50 percent. This will result in an additional reduction of
Through the course of this case, there were many delays caused in part by Petitioners' requests for extensions, both for hearings and the filing of documents. After reviewing the attorney billing records, I note that attorney work was frequently performed only on the eve of a scheduled deadline, reflecting a concerning dilatory approach to the case's prosecution that was ultimately exemplified by the two delays of trial in 2014 and 2015.
For example, on December 17, 2013, Petitioners were ordered to file outstanding medical records, a statement of completion and status report by February 10, 2014. Yet the billing records indicated that no one from Ms. Finn's office billed any hours on the matter until over six weeks later — on January 30, 2014, at which time Ms. Finn requested a subpoena and an extension of time to act until late March, which was ultimately extended again to mid-April. See Scheduling Order, dated Dec. 17, 2013 (ECF No. 43); Motion for Extension of Time, filed on January 30, 2014 (ECF No. 45); Fees App. at 3.
Similarly, in June 2014, the original hearing was first rescheduled due to a conflict with Dr. Megson that purportedly arose on June 10, 2014,
Although I am perhaps pointing to the most egregious examples, these time entries exhibit a consistent pattern of behavior evident from the billing records. Waiting until the last minute to begin performance of tasks necessary for a claim's prosecution is wasteful and inefficient — and in this case caused several unnecessary delays in a matter that, due to its subject matter, was already protracted by the time Ms. Finn appeared. Doing so harmed the Petitioners themselves, while also squandering judicial resources by telescoping the case's life beyond what it should otherwise have.
How best to account for the reasonableness of such conduct when determining a fees award presents a quandary. As I observed in Glaser v. Sec'y of Health & Human Servs., No. 06-764V, 2016 WL 4491493 (Fed. Cl. Spec. Mstr. June 6, 2016) vacated on other grounds, 2016 WL 4483022 (June 29, 2016), the fact that an attorney billed little time to a matter over its course literally results in a lower total bill — even if, paradoxically, attorney dilatoriness and inattention to a case also imposes costs on claimants and the Vaccine Program itself. Glaser, 2016 WL 4491493 at*8 ("Attorneys representing petitioners alleging vaccine injuries should prosecute their clients' claims with as much speed as possible—especially where, as here, the injured party has ongoing care needs that the entitlement award will address."). Such indirect costs are especially concerning under current circumstances. The Program is inundated with filings, preventing the eight special masters from resolving them as quickly as desirable (or expected by the Act itself). See H.R. Rep. No. 99-908, at 17, reprinted in 1986 U.S.C.C.A.N. at 6358 ("The entire proceeding—from date of filing through Special Master proceedings and court review—is to take place as expeditiously as possible").When attorneys fail to act diligently in representing a petitioner's claim, they harm the ability of other claimants to obtain their own speedy entitlement determinations.
In other cases, I have resolved this dilemma through an additional hourly rate reduction. See, e.g., Glaser, 2016 WL 4491493 at *8 (reducing the attorney's rate by ten percent "to account for his lack of diligence in prosecuting the case, but awarding all time billed to the matter"). Here, I do not find that a lack of diligence was consistent and widespread enough throughout the entirety of the case's life (since Ms. Finn's appearance) to justify that approach. Instead, I will reduce Petitioners' counsel's award of attorney's fees for Ms. Finn's time by 20 percent for everything billed from January 2014—December 2015 — before the matter was tried, and during the time period in which it appears dilatoriness was most common. Thus, Ms. Finn billed 109.7 hours during that time period for a total of $34,559.00, but that sum will be reduced by 20 percent, leaving $27,647.20. The total reduction for the work in 2014-2015 is therefore $6,911.80.
There are two categories of costs requested herein: litigation-related costs and expert costs. As to the former, Petitioners request reimbursement for items such as hotel expenses during the hearing ($519.71) or the hearing transcript cost ($1,429.10). These rates are consistent with litigation-related expenses and I will therefore award all such requested amounts herein.
With respect to expert costs, Petitioners request $15,011.25 for Dr. Megson at a rate of $400 an hour for reviewing records, $600 per hour for consultations, and $581.25 in travel expenses (lodging, mileage, and meals). Fees App. Ex. 2 at 2. Petitioners also request $2,600 for Dr. Zimmerman (who testified as a fact witness) at a rate of $600 an hour, plus travel and waiting time at a rate of $250 an hour for a total of $500.00.
I will award both of these witnesses the sums requested for travel ($580.67 for Dr. Megson and $500.00 for Dr. Zimmerman). Petitioners have not submitted evidence that the rates requested for either expert are appropriate, however, and in fact both appear high. In the case of Dr. Megson, a rate of $400-$600 is too high given her expertise (and lack of specific competency in the area of immunology — something apparent from her testimony, as observed in my Decision). Murphy, 2016 WL 3034047 at *33)). Such considerations have been taken into account by other special masters when calculating the proper rate. See Simon v. Sec'y of Health & Human Servs., No. 05-941V, 2008 WL 623833, at *5 (Fed. Cl. Spec. Mstr. Feb. 21, 2008); Doe v. Sec'y of Health & Human Servs., No. 02-411, 2011 WL 6941671, at *7 (Fed. Cl. Spec. Mstr. Oct. 26, 2011). I will accordingly pay her a flat rate of $300 across the board, including time testifying, rather than differentiating by task as her invoice does. Fees App. Ex. 2 at 2.
Dr. Zimmerman was proposed by Petitioners as a possible expert, but testified as M.M.'s treating physician, making him a fact witness. He may nevertheless be compensated for this time. See Baldwin v. Sec'y of Health & Human Servs., No. 14-888V, 2016 WL 3597886 at *2 (Fed. Cl. Spec. Mstr. June 1, 2016) (finding it reasonable to award costs to obtain declarations from treating physicians). But, his requested rate greatly exceeds what the most highly qualified experts ever receive in Program cases. See Dimatteo, 2014 WL 1509320, at *8 (doctor's hourly rate of $500 should be reduced to $400 per hour because such a high fee is "notably unusual" in the Program). I will instead award him $400 per hour — consistent with similarly-situated experts, and taking into account the fact that he did not literally provide "expert" testimony in this case.
Based on all of the above, the following chart sets forth the total calculation of Petitioners' fees award:
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of attorney's fees and costs awards, and based on the foregoing, I
In Avera, for example, the Federal Circuit discussed the conditions under which an interim fees and costs award may be appropriate, such as "where proceedings are protracted and costly experts must be retained." Avera, 515 F.3d at 1352. Here, the matter has unquestionably been protracted, and an interim award is appropriate at this juncture.
