THOMAS L. GOWEN, Special Master.
On October 16, 2014, Erin Quackenbush-Baker ("petitioner") filed a claim for compensation pursuant to the National Vaccine Injury Compensation Program.
On March 14, 2018, the undersigned ruled that petitioner had established entitlement to compensation based on a theory of causation in fact. Ruling on Entitlement (ECF No. 89). Afterwards, respondent filed a Proffer on an award of compensation, which indicated petitioner's agreement on the terms set forth therein. Proffer (ECF No. 95). I issued a decision approving compensation consistent with the proffer. Decision on Damages (ECF No 98). After the parties filed a joint notice not to seek review (ECF No. 102), the Clerk of the Court entered judgment on the Proffer on July 6, 2018 (ECF No. 103).
I previously granted petitioner's first motion for interim attorneys' fees and costs incurred through March 9, 2016, in the total amount of $94,972.42. Petitioner's Motion ("Pet. Mot.") for First Interim Award (ECF No. 37); Decision (ECF No. 49).
On June 21, 2018, petitioner filed a motion for a final award of attorneys' fees and costs incurred from March 9, 2016 through the present. She has requested $215,731.04 in attorneys' fees and $53,890.06 in attorneys' costs, for a total request of $269,621.10. Pet. Mot. for Final Award, filed June 21, 2018 (ECF No. 99).
On July 5, 2018, respondent filed a response to petitioners' motion. Respondent's ("Resp.") Response (ECF No. 101). Respondent argued that "[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs."
Under the Vaccine Act, the special master shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. §15(e). Based on my ruling on entitlement and the parties' proffer, petitioner has been awarded compensation. She is therefore entitled to a final award of reasonable attorneys' fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act.
In making reductions, a line-by-line evaluation of the fee application is not required.
Under the lodestar approach, the first step is to determine reasonable hourly rates for the individuals at issue. In this case, all work was performed by attorney Curtis Webb and his son and paralegal, Alexander Webb. Their requested hourly rates are consistent with my reasoning in
Under the lodestar approach, the second step is to determine whether the number of hours expended on the claim was reasonable. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
It is "well within the special master's discretion to reduce the hours to a number that, in his experience and judgment, [is] reasonable for the work done."
Mr. Curtis Webb expended 161.8 hours on the claim in 2016; 305.3 hours in 2017; and 61.9 hours in 2018. His paralegal Mr. Alexander Webb expended 10.9 hours on the claim in 2016; 29.8 hours in 2017; and 16.1 hours in 2018.
This request includes 20 hours expended by counsel to prepare the first motion for interim attorneys' fees and costs, which he filed in April 2016. While this would typically appear to be an excessive amount of time, the motion involved research and briefing in support of forum rates. It was submitted close in time to counsel's similar request in
Counsel also expended significant time on lengthy settlement discussions, including assessment of petitioner's future needs and her earning capacity; communication with the experts; prehearing briefing; preparation for and participation at the entitlement hearing; post-hearing briefing and follow-up; travel (appropriately billed at one-half of the individual's normal hourly rate); and reaching a consensus with respondent on damages. Based on my experience and my knowledge of this case, I find that these hours were not excessive and indeed, yielded a good result for petitioner. Thus, they are generally reasonable and will be awarded in full.
Like attorneys' fees, a request for reimbursement of costs must be reasonable.
Petitioner has also requested $17,524.00 for her expert neurologist Lawrence Steinman's preparation of several written reports, participation in the entitlement hearing, and his associated travel expenses. Pet. Mot. for Second Interim Award, Attachment D. These are sufficiently documented. Dr. Steinman's hourly rate and hours expended are also reasonable. Thus, I find no cause to adjust these costs. They will be awarded.
Petitioner has also requested $24,325.98 for the services of her life care planner Liz Kattman. Ms. Kattman Pet. Mot. for Second Interim Award, Attachment E. Upon review, Ms. Kattman's hourly rate appears reasonable for a life care planner with her qualifications and experience in the Vaccine Program. She has provided detailed contemporaneous entries of her work. The total cost accurately reflects that Ms. Kattman has been involved in the case for several years, first working with counsel and respondent's life care planner to pursue a settlement and then finalizing her damages after the entitlement ruling was issued. Ms. Kattman's costs are also reasonable and will be awarded.
Finally, petitioner has requested $4,000.00 for consultation with a neuroradiologist, Dr. Robert Shuman. Petitioner and her counsel note that during the entitlement hearing, respondent's expert Dr. Leist questioned the February 12, 2014 MRI report which described an interval increase in the size and number of lesions in petitioner's brain. Petitioner cited this as evidence of a dramatic worsening of her condition after the November 20, 2013 flu vaccination. Petitioner and her counsel state that "to remove any doubt about the reliability of the report describing the February 12, 2014 MRI scan," they obtained and filed digital copies of her several brain MRI scans and then consulted with Dr. Shuman. Pet. Mot. for Second Interim Award at 18. Dr. Shuman did not submit an expert report in this case. However, he did log 10 hours for reviewing the 8 MRI studies and the radiology reports, and communicate with petitioner's counsel. Pet. Mot. for Second Interim Award, Attachment C. Afterwards, petitioner's counsel submitted his post-hearing brief, which discusses why the MRI reports and images do indeed show a dramatic worsening of petitioner's condition. Pet. Post-Hearing Brief at 27-34. In sum, this consultation with Dr. Shuman aided counsel to address an issue first raised by respondent's expert at the hearing. Dr. Shuman also expended a reasonable limited number of hours to review the findings from multiple MRIs, at a reasonable rate. Pet. Mot. for Second Interim Award, Attachment C. I will approve his costs as well.
In accordance with the above, I hereby
In the absence of a motion for reconsideration or review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment forthwith.