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, the petitioner filed a renewed motion requesting an award of attorneys' fees and costs on an interim basis. Pet'r's Renewed Fee Appl'n, filed Jan. 31, 2017. The Secretary filed a weak response, deferring to the special master's discretion as to the appropriateness of an interim award and to the amount of any interim award. Resp't's Resp., filed Feb. 17, 2017. For the reasons explained below, the petitioner is awarded $99,934.45.
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, Andrew Downing, Mr. Bourche first contacted Mr. Downing on August 26, 2014.
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. Dr. Zizic reviewed Mr. Bourche's medical records, read medical articles, and drafted a report. Dr. Zizic's invoice shows that he spent 119.5 hours in this process. Timesheets at 54-57. Mr. Bourche filed Dr. Zizic's report as exhibit 15 on October 9, 2015. Dr. Zizic was ordered to clarify certain aspects of his opinions. Order, issued Oct. 19, 2015.
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.
A June 3, 2016 decision denied the November 13, 2015 motion for an award of attorneys' fees and costs on an interim basis. This decision found that the petitioner did not meet the circumstances favoring an interim award in that the case had not been pending for a lengthy time. 2016 WL 3545769.
Apart from the activity concerning the motion for an award of attorneys' fees and costs on an interim basis, the case continued to develop. Mr. Bourche 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, continued the litigation. Ms. Bourche filed an amended petition on June 14, 2016, alleging that the hepatitis B vaccination contributed to Mr. Bourche's death. She supported this allegation with another report from Dr. Zizic. Exhibit 48. She also presented a report from one of Mr. Bourche's treating doctors. Exhibit 52.
The Secretary responded to the petitioner's presentation of several reports with a report from the expert he retained, Mehrdad Matloubian. Exhibit A. Dr. Matloubian concluded that Mr. Bourche's development of IgA mediated vasculitis was not due to the hepatitis B vaccine Mr. Bourche received and that Mr. Bourche's death was due to progressive heart failure. Exhibit A at 17.
On January 30, 2017, the petitioner addressed Dr. Matloubian's opinion with another report from Dr. Zizic. Exhibit 53. On the following day, the petitioner filed a renewed motion for an award of attorneys' fees and costs on an interim basis. This January 31, 2017 motion is ready for adjudication.
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 are eligible for 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.
In the renewed motion, the petitioner has established that an award of attorneys' fees and costs on an interim basis is appropriate. After June 3, 2016, the date the initial motion for an award of attorneys' fees and costs on an interim basis was denied, the case has changed. The most obvious change is that more time has passed. As of the date of this decision, the case has been pending for more than two years. The duration of this case will lengthen. The hearing is not scheduled until April 23, 2018, approximately one year from now. This hearing appears likely to happen as the Secretary has determined that settlement discussions are not appropriate at this time. Resp't's Status Rep., filed April 10, 2017.
In addition, after filing the November 13, 2015 motion for an award of attorneys' fees and costs on an interim basis, the petitioner's attorney (Mr. Downing) and the petitioner's expert (Dr. Zizic) have incurred additional fees. Thus, the amount of money already incurred is sufficient to justify an award on an interim basis.
The final issue is quantifying a reasonable amount for attorneys' fees and costs.
The Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. This is a two-step process.
The petitioner seeks attorneys' fees for work five professionals performed. These are Mr. Downing, an associate attorney Justin N. Redman, attorney Courtney Van Cott, paralegal Robert W. Cain, and paralegal Danielle P. Avery. The majority of the requested fees derive from Mr. Downing's work.
Mr. Downing has charged two different rates. From the inception of the case in 2014 through the end of 2016, Mr. Downing has charged $350 per hour. For his work starting in 2017, Mr. Downing has charged $375 per hour.
Despite objection from the Secretary, Mr. Downing's rate of $350 per hour for work performed through 2016 has been accepted.
The 2016 rate of $350 per hour serves as a foundation for examining the proposal to raise Mr. Downing's rate to $375 per hour, which is an increase of approximately 7 percent. Some of the increase can be attributed to inflation. The undersigned has determined that an index useful in increasing an attorney's hourly rate is the database the Department of Labor, Bureau of Labor Statistics maintains as the Producer Price Index. Within the PPI, the relevant category is Office of Lawyers, generally.
In addition to inflation, Mr. Downing's experience has increased and this increased experience should translate into increased efficiency. Previously, Mr. Downing fit into the group of attorneys with between 11 and 19 years of experience. With the passage of time, Mr. Downing has now advanced to the group of attorneys with between 20 and 30 years of experience. The hourly range for these attorneys in 2017 is between $358 and $424 per hour. Under these circumstances, a reasonable hourly rate for Mr. Downing is $365 per hour, an amount that anticipates that Mr. Downing's hourly rate will continue to increase as Mr. Downing moves to the top (30 years of experience) of this range. Because the petitioner's January 31, 2017 renewed motion for attorneys' fees includes only a small number of 2017 hours for Mr. Downing, the resulting adjustment in attorneys' fees is small.
The hourly rates for the remaining people are relatively routine. The Secretary did not object to compensating the associate attorneys at a rate of $195 per hour and the Secretary did not object to compensating the paralegals at a rate of $100 per hour. Resp't's Resp., filed Dec. 3, 2015, at 12 n.10. These rates are reasonable.
The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
The petitioner has satisfactorily explained why the time Mr. Downing charged for communicating with Dr. Zizic does not match the time Dr. Zizic has charged for communicating with Mr. Downing. An attorney often will spend time preparing for conferences and will spend time memorializing the events in the conference. In addition, an attorney may be more conscientious than a doctor about recording time.
However, the petitioner did not respond to the Secretary's challenge that the time spent in correcting a defective filing was inappropriately billed. The petitioner also did not respond to the Secretary's challenge that an unreasonable amount of time was spent obtaining missing medical records. Thus, adjustments are required for these activities.
Another disputed task is the time Mr. Downing spent preparing the November 13, 2015 fee application. In the Secretary's view, much of Mr. Downing's work duplicated work performed in other cases. The undersigned has compared the November 13, 2015 fee application with a previous application and confirmed that much of the content is duplicated. The petitioner acknowledges the overlap but points out that the applications are not identical in that Mr. Downing has conformed some aspects to the particular facts of Mr. Bourche's case, such as defending Dr. Zizic's proposed rates. The undersigned finds that the time Mr. Downing has charged in the present case, which is less than the time spent in the earlier fee applications, within the zone of reasonableness. The time might be on the high side but still within the reasonable range. Thus, no adjustment is needed.
Finally, there is a question about delegation of work. Tasks "that a paralegal can accomplish should be billed at a paralegal's hourly rate."
Overall, the timesheets from Mr. Downing and people from his law firm are sufficiently detailed that the activity can be assessed for its reasonableness. In only a handful of instances, the attorney or paralegal spent an excessive or unreasonable amount of time on a given task. Consequently, to achieve "rough justice," $1,000.00 is deducted. Therefore,
In addition to seeking an award of attorneys' fees, the petitioner seeks an award for her attorneys' costs, totaling $59,068.95. The most expensive item is the fee for Dr. Zizic's services, which is discussed below. Other than Dr. Zizic, the costs for routine items, such as medical records and mailing, total $5,648.95. These items are adequately documented and are awarded in full.
The last item is the most contentious item — the reasonable compensation for Dr. Zizic's work. He has requested a total of $53,420.00.
Reasonable expert fees are also determined using the lodestar method in which a reasonable hourly rate is multiplied by a reasonable number of hours.
Dr. Zizic requested an hourly rate of $400. He has previously been awarded this rate based upon his expertise.
In support of the number of hours billed, Dr. Zizic submitted two detailed invoices. These invoices document the date, Dr. Zizic's activity, and the time spent on each activity. For example, Dr. Zizic recorded the time he spent reading each medical article separately.
In her motion for interim attorneys' fees and cost, Ms. Bourche addressed the high number of hours Dr. Zizic recorded and noted that Dr. Zizic read 4,650 pages of medical records over 45.4 hours. Pet'r's Renewed Fee Appl'n, filed Jan. 31, 2017, at 5. While 45.4 hours of review time appears high, it is reasonable because Dr. Zizic was reading 102 pages of medical records per hour.
Dr. Zizic also billed over 60 hours for researching and drafting his first report. Although Dr. Zizic's first report is 24 pages long, it contains only four pages of substantive analysis. Exhibit 15. The majority of the report contains a detailed chronology without citations to the medical records.
In the hours allotted to drafting his first report, Dr. Zizic does not identify which hours, if any, were spent drafting his credentials and experience, which hours, if any, were spent creating the chronology, and which hours were spent on the analysis portion of his expert report. It is unclear how many hours were spent writing the four pages of substantive analysis, but this likely required the majority of the more than 30 hours Dr. Zizic billed for drafting the first report.
After the submission of Dr. Zizic's first report, the undersigned ordered him to explain his theory connecting the hepatitis B vaccine to the development of endocarditis and/or leukocytoclastic vasculitis, and the appropriate temporal interval for a vaccine to cause the injury in a supplemental report. Order, issued Oct. 19, 2015. Dr. Zizic was also instructed to identify when Mr. Bourche first manifested leukocytoclastic vasculitis.
Inefficiencies like those above, such as not creating the chronology contemporaneously and not addressing all requirements in an initial report, are not consistent with the performance of an expert who charges $400 per hour. The inefficiencies in Dr. Zizic's work could be accounted for by reducing Dr. Zizic's rate (for example, $350 per hour). The same effect, however, can be achieved by retaining Dr. Zizic's standard $400 per hour rate, but adjusting Dr. Zizic's total hours to account for the decreased efficiency.
Therefore, Dr. Zizic's hours will be reduced by 10 percent to account for excessive time billed, thus resulting in a 10 percent reduction in his awarded costs. A reasonable amount of compensation for Dr. Zizic's work is
Ms. Bourche is awarded
The Vaccine Act permits an award of reasonable attorneys' fees and costs. §15(e). The undersigned GRANTS Ms. Bourche's motion and awards $46,207.50 in attorneys' fees and $53,726.95 in attorneys' costs for a total award of $99,934.45. This shall be paid as follows:
The Clerk shall enter judgment accordingly.
Second, the law firm has also charged for incoming and outgoing faxes. The operation of a fax machine is part of a law firm's general overhead and, therefore, separate costs should not be charged. However, because the amount of money is de minimis, no adjustment is made. Nevertheless, Mr. Downing is encouraged to exercise billing judgment in the future.