CHRISTIAN J. MORAN, Special Master.
On June 5, 2018, petitioner Naomi McMurtry moved for final attorneys' fees and costs.
On April 22, 2015, Ms. McMurtry filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §300a-10 through 34, alleging the flu vaccine caused her to develop GBS. The Secretary filed his Rule 4(c) report on August 7, 2015, stating that Ms. McMurtry had not sufficiently established that she suffered from GBS and had not sufficiently demonstrated that the flu vaccine could cause GBS.
In the Rule 5 status conference, the Secretary stated that settlement discussions may be appropriate after review of an expert report from Ms. McMurtry. Order, issued Aug. 26, 2015. The petitioner requested, and was granted, 60 days to file the expert report. After one enlargement of time, Ms. McMurtry filed a report from Dr. Lawrence Steinman on November 17, 2015.
In a status conference to discuss the petitioner's report, the Secretary stated that he would like to obtain a report from his own expert before deciding if he would be interested in settling the case. Order, issued December 2, 2015. After requesting and receiving two enlargements of time to file his report, on March 22, 2016, the Secretary filed a status report stating that he was interested in pursuing informal resolution of the claim.
On May 31, 2016, the undersigned held a status conference to discuss the potential settlement. During the status conference, the petitioner reported that a life care planner had been retained and that the petitioner would be submitting a demand to the respondent in the next 60 days. Order, issued May 31, 2016.
On August 2, 2016, the petitioner filed a status report confirming that she had sent a comprehensive settlement demand to the Secretary and that all medical records had been filed. Petitioner also noted that she had recently gone on Medicaid and thus her counsel had to identify any potential outstanding Medicaid liens. However, petitioner noted that any outstanding lien was likely negligible in amount, if one existed at all.
In a status report filed on September 28, 2016, the Secretary reported that he would be retaining an opinion from both a life care planner and an economist before agreeing to a settlement.
A status conference was held on October 28, 2016, to discuss the parties' progress in settling the case. The Secretary reported that a joint site visit was scheduled for November 2016 and that he was in consultations with his economist regarding the lost wages claim. In a status report filed on December 5, 2016, the respondent stated that a preliminary evaluation did not support a claim for lost wages, but that he required additional time and information from the petitioner before making his position.
During a status conference on February 2, 2017, Ms. McMurtry represented that she anticipated finalizing the settlement within the next month based upon the progress that had been made in the previous month. During the subsequent month, petitioner's counsel travelled to Phoenix, AZ to hold a 2.5 hour lunch meeting with Ms. McMurtry for the purpose of discussing the settlement. For this trip, petitioner's counsel billed $4,742.47 in fees and costs, including three nights at a $629.89 a night luxury resort.
Ms. McMurtry filed a status report on April 4, 2017, reporting that the respondent had requested additional medical records and a copy of Ms. McMurtry's social security disability application. Ms. McMurtry reported that she had filed the requested records and had recently learned that the Secretary would be retaining a vocational expert. During a status conference on April 27, 2017, the Secretary reported that he would need an additional 30 days to obtain the report from the vocational expert. Following two motions for enlargements, the Secretary obtained and shared with Ms. McMurtry the expert report from his vocational expert on July 10, 2017.
During a status conference held on August 3, 2017, the petitioner reported that the Secretary had rescinded the lost wages offer and that the case may not settle. Nonetheless, on September 6, 2017, the parties represented that they reached a tentative settlement agreement and the undersigned issued a 15-week stipulation order the next day. Based on a stipulation filed on December 14, 2017, the undersigned issued a decision awarding compensation to Ms. McMurtry.
Ms. McMurtry then filed the instant motion for attorneys' fees and costs, requesting $68,533.00 in fees and $28,304.39 in attorneys' costs, for a total of $96,837.39.
Because Ms. McMurtry received compensation, she is entitled to an award of 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. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, the court determines an "initial estimate . . . by `multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'"
In light of the Secretary's lack of objection, the undersigned has reviewed the fee application for its reasonableness.
The Secretary also did not directly challenge any of the requested hours as unreasonable. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
Speaking generally, the number of hours billed in this case struck the undersigned as very high compared with his experience evaluating cases of similar complexity. A review of the billing records indicates at least two explanations for this observation.
First, petitioner's attorneys often performed work expected from a paralegal. When attorneys bill at the high rates demanded by attorneys, they should be performing work that requires the skills of an attorney and not those of a paralegal or secretary.
In the case here, a substantial portion of the entries relate to administrative matters in this case and not to the type of work that can reasonably be billed at an attorneys' rate. These include preparing and filing medical records, preparing and filing pro forma documents, communications with the client for the purpose of collecting medical records, and calendaring scheduling orders. All of these tasks should either not be performed by an attorney, or not billed at an attorney's standard rate. To account for these issues, the undersigned finds a 15% reduction in the number of hours billed to be appropriate.
Second, it appears that petitioner's attorneys considered 0.2 hours to be the smallest quantum of time available for their billing entries. Considering the nature and frequency of the correspondence, 10-15 minutes as a minimum for the sending and receipt of administrative emails with clients, life care planners, and experts appears high.
This observation regarding the billing entries is consistent with a more general finding that the amount of time billed on non-substantive work was often high for the nature of the work performed. As an example, in multiple entries Mr. Carney billed approximately 15-25 minutes for emails to the Secretary to determine if the Secretary objected to petitioner's motions for enlargement. In the undersigned's experience, these types of communications are often not even billed, much less for the amount of time requested here.
In another example, the undersigned compared the amount of time that the life care planner and Mr. Carney billed for the time spent on the same email correspondence. Mr. Carney's entries sometimes indicated that he spent an order of magnitude more time on emails than his life care planner. For example, compare these entries for the period of October 6, 2016 to October 16, 2016:
Mr. Carney's billing sheet:
Pet'r's Fees Mot. at PDF 16.
The life care planner's billing sheet:
Based on these entries, for the given time period it would appear that Mr. Carney billed 0.8 hours, or $232, for correspondence with the life care planner while the life care planner billed 0.05 hours, or $6.25 for the same correspondence.
These types of inflated entries appear throughout petitioner's motion for fees and costs. To address the excessive billing, the undersigned finds an additional 15% reduction in the number of hours billed to be appropriate.
In addition to seeking attorneys' fees, Ms. McMurtry seeks an award of costs totaling $28,304.39. As with the fees request, the amount petitioner requested to be reimbursed for costs struck the undersigned as high for a case of this complexity.
Ms. McMurtry's motion included costs for medical records retrieval, mailings, and the use of specialists to resolve Medicaid liens. These costs are reasonable and are awarded in full. Ms. McMurtry also retained the expertise of a life care planner and a medical expert. These costs are also reasonable and are awarded in full.
Ms. McMurtry's motion sought reimbursement of costs associated with a trip made by Mr. Carney to Phoenix, Arizona from Tuesday, February 28, 2017, to Friday, March 3, 2017.
This trip raises two questions: first, should the trip have occurred at all, and second, assuming the trip was reasonable, were the incurred expenses reasonable.
As to whether the trip was reasonable, the question is close. There is no bright line rule saying that in-person meetings are always appropriate or never appropriate. In the right circumstances, face-to-face meetings can be valuable.
Here, Ms. McMurtry's justification seems underdeveloped. Just before the trip, Mr. Carney represented a settlement just needed to be finalized. See order, issued Feb. 2, 2017. It may be the case that Mr. Carney's process for "finalization" anticipated an in-person meeting but Mr. Carney did not communicate that step in the status conference. And, if Mr. Carney were planning a trip to meet with his client, Mr. Carney may not have wanted to disclose communications with his client.
The strongest rationale for the in-person meeting comes from Mr. Cohan's affidavit. But, the entire justification is contained in one sentence: "Given the sizable nature of the settlement and its implications, this case could not be settled without a face-to-face meeting with Petitioner." As with the situation with Mr. Carney, Mr. Cohan may be reluctant to disclose either communications with his client or his mental impressions that led to this conclusion.
Ultimately, the undersigned trusts the judgment of Mr. Cohan and Mr. Carney, who achieved a good result for Ms. McMurtry and good results for other petitioners in the Vaccine Program. Ms. McMurtry's award included a relatively complicated annuity and the undersigned can accept the attorneys' representation that an in-person meeting was reasonable. However, the reasonableness of the trip does not necessarily make the expenses incurred on the trip reasonable.
As to the reasonableness of the expenses, Ms. McMurtry exceeded the bounds of reasonableness for both food and lodging. Mr. Carney's submitted meal receipts explicitly include or implicitly suggest Mr. Carney seeks reimbursement for alcohol.
Even more concerning is Mr. Carney's decision that for this trip it was appropriate to spend three nights and four days at The Phoenician Scottsdale, a luxury resort, at the nightly rate of $629.89.
The four-day trip to The Phoenician Scottsdale parallels another recent case where Mr. Carney requested reimbursement for a weekend trip to Atlanta, GA to meet with a client. Although Mr. Carney made it a weekend getaway, the only work in that case was performed on the previous Friday. In that case, Chief Special Master Dorsey declined to reimburse the petitioner for the portion of the trip not associated with the petition.
The undersigned will apply the same approach here. The undersigned will reimburse Mr. Carney for a two-night hotel stay. However, the undersigned will not reimburse the extravagant rates spent by Mr. Carney, but instead $250 per night, a rate the undersigned finds reasonable for the Phoenix, AZ area. In addition, instead of attempting to subtract out Mr. Carney's alcohol expenses for the trip, which is impossible because most receipts do not include a breakdown of between food and alcohol, Mr. Carney will be reimbursed a per diem of $60 per day for three days. The parking and taxi fees will be reimbursed in full. However, the $91.96 seat upgrade fare will not be reimbursed. In total, of the $2,567.47 in costs associated with this trip (exclusive of fees) that Mr. Carney billed for this trip, Ms. McMurtry is reimbursed $1,245.66.
This case presents a good example of the perils of the Secretary's decision to not participate in the adjudication of petitioners' motions for fees and costs. The contents of Ms. McMurtry's motion include items that should not have been submitted for reimbursement from the Trust Fund and yet the Secretary stayed silent, leaving the undersigned to police the petitioner. As cogently noted, the Secretary's position promotes a culture where these overcharges will only continue.
The Secretary's failure to participate does not excuse errors on Mr. Carney's part. Having been alerted to problems with their billing, especially with regards to costs of travel, Mr. Carney and Mr. Cohan are expected to exercise billing judgment when submitting their invoices. They are also expected to review pending submissions to see if there were any oversights. Furthermore, Mr. Carney and Mr. Cohan are warned that they may be penalized in the form of reductions to their future fee awards if their motions for fees continue to include unreasonable requests.
Accordingly, Ms. McMurtry is awarded:
This amount represents reimbursement for attorneys' fees and other litigation costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.
Petitioner's counsel is also ORDERED to submit a copy of this decision alongside any motion for fees and costs submitted on behalf of the petitioner in
