CHRISTIAN J. MORAN, Special Master.
Mari Bourche's claim that a hepatitis B vaccination harmed her husband and contributed to his death remains pending. In the meantime, she has filed a second motion requesting an award of attorneys' fees and costs on an interim basis. Pet'r's Second Fee Appl'n, filed May 17, 2018. The Secretary deferred 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 May 31, 2018. For the reasons explained below,
The background for this case has been set out previously.
After that motion, Ms. Bourche's attorney, Andrew Downing, and his staff have continued to move the case forward. In addition to the expert the petitioner had previously retained, Thomas Zizic, the petitioner presented reports from another expert, Robert M. Stark. The prosecution of the case culminated in a two-day hearing held in April 2018. Both Dr. Zizic and Dr. Stark testified and invoiced for their time.
Following the hearing, Ms. Bourche filed supplemental medical records to help address issues raised during the hearing. Without any success at settlement, a schedule for post-hearing was brief was then set.
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 and Dr. Stark satisfy the reasonable basis standard. In addition, Mr. Bourche brought his petition in good faith and Ms. Bourche has continued to prosecute the case 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.
The pending motion for an award of attorneys' fees and costs on an interim basis contains no discussion as to why interim fees and costs should be awarded a second time.
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 four professionals performed. These are Mr. Downing, an associate attorney Courtney Van Cott, paralegal Robert W. Cain, and paralegal Danielle P. Avery. The majority of the requested fees derive from Ms. Van Cott's work.
Mr. Downing has charged two different rates. For his work starting in 2017, Mr. Downing has charged $375 per hour. In 2018, the requested hourly rate for Mr. Downing increased to $385 per hour, an increase of 2.67 percent.
The First Fee Decision found that a reasonable hourly rate for Mr. Downing is $365 per hour in 2017 and directed Mr. Downing to invoice at that rate only. Despite this finding in this exact case, Mr. Downing provides no explanation for deviating from the earlier finding. Mr. Downing's 2017 rate, therefore, is reduced to $365 per hour. Consequently, Mr. Downing's 2018 rate is $375 per hour, which is approximately 2.74 percent more than the 2017 hourly rate, a reasonable increase.
The undersigned is obligated to assess the reasonableness of the request for attorneys' fees and costs regardless of the lack of objection from the Secretary. Cite.
Ms. Van Cott has charged two different rates. For her work in 2017, Ms. Van Cott has charged $195 per hour. In 2018, the requested hourly rate for Ms. Van Cott increased to $205 per hour, an increase of 5.13 percent.
The First Fee Decision found Ms. Van Cott's 2017 rate as reasonable and it continues to be so. A reasonable increase for Ms. Van Cott's 2018 rate in line with Mr. Downing's rate increase would result in Ms. Van Cott's 2018 rate being $200 per hour.
The two paralegals, Mr. Cain and Ms. Avery, charged a rate of $135 per hour for work in 2017-2018. The First Fee Decision awarded the paralegals a rate of $100 per hour including some work done in 2017. From the paralegals' 2016 rate of $100 per hour to their 2017/2018 rate of $135 per hour, some simple math reveals an increase of 35 percent.
As was the case in
The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
In light of the Secretary's lack of objection, the undersigned has reviewed the fee application for its reasonableness.
Overall, the timesheets from Mr. Downing and people from his law firm are sufficiently detailed that the activity can be assessed for its reasonableness. Most of the timesheet entries are reasonable, but the undersigned notes that Ms. Van Cott billed her travel time at her full rate, see Pet'r's Second Fee Appl'n, exhibit A at 23, rather than following the well-established standard in the Vaccine Program of billing travel time at half a professional's standard rate.
Petitioner's law firm also billed time for filing documents in CM/ECF. Filing documents is a clerical task for which attorneys and paralegals should not charge.
The remaining billed hours are reasonable.
Therefore, based on the reductions to the attorney/paralegal rates and hours explained above,
In addition to seeking an award of attorneys' fees, the petitioner seeks an award for her attorneys' costs, totaling $73,243.37. The majority of the costs are for the expert fees from Dr. Zizic and Dr. Stark, which are discussed below. Other than the expert costs, Ms. Bourche is seeking compensation for travel and lodging costs related to the entitlement hearing in the amount of $11,266.80 and costs for routine items, such as medical records and mailing, in the amount of $1,334.10. These routine items are adequately documented and are awarded in full.
The travel costs are generally reasonable, but the undersigned finds that some of the cost entries for meals are too vague to assess reasonableness. For example, a 4/22/18 entry for a $205.05 "meal" does not identify which people that meal covers, unlike other nearby entries that list the attorneys' initial next to the meals. Pet'r's Second Fee Appl'n, exhibit A at 27. Another entry for a $396 meal was attributed only to Ms. Van Cott.
The remaining items are for the expert fees of Dr. Zizic ($34,880.00) and Dr. Stark ($25,762.47). 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 for most of the work done, but requested $600 per hour for the trial dates. Pet'r's Second Fee Appl'n, exhibit A at 74 (19.4 hours total). The First Fees Decision awarded him the $400 rate and he has previously been awarded this rate based upon his expertise. See
In support of the number of hours billed, Dr. Zizic submitted detailed invoices. These invoices specify the date, Dr. Zizic's activity, and the time spent on each activity. As noted above, Dr. Zizic charged his full rate for his travel time instead of half his regular rate. Thus, a reduction of $660 (1.65 hours × $400/hour) is appropriate. Otherwise, the number of hours requested by Dr. Zizic are reasonable.
Dr. Stark requested an hourly rate of $350. Because he is a specialist in cardiology, Dr. Stark is not experienced in the Vaccine Program. However, he is a board-certified cardiologist with over forty years of experience. Dr. Stark's hourly rate is reasonable.
Dr. Stark's invoices are less detailed that would be desired. Presumably due to his inexperience in the Vaccine Program, Dr. Stark has used block billing to describe many activities for a large amount of time. Also, petitioner's counsel has placed the checks used to pay Dr. Stark's invoices over the description section of the invoices not allowing for review in any more detail.
Dr. Stark also charged a flat "trial appearance" rate of $4,800 per day which, given his $350 hourly rate, would translate to 13.7 hours of work per day. A flat-rate appearance fee is not appropriate.
Dr. Stark did not provide any description of the work he did on trial appearance days to add up to 13.7 hours per day. Moreover, Dr. Stark charged the flat "trial appearance" rate for three days, but the entitlement hearing only lasted for two days. Giving Dr. Stark the benefit of the doubt, the third trial appearance day could have been the preparation day (April 22, 2018) before the two-day hearing and he could have worked as much as petitioner's counsel, Ms. Van Cott, who documented the number of hours in preparation and in trial (34.2) over that three-day span (April 22-24, 2018). Thus, the implicit hours in Dr. Stark's flat rate for three days (41.1) are reduced by 6.9 hours to the number of hours worked by Ms. Van Cott (34.2), resulting in a deduction of $2,415.00.
Again, as noted with Dr. Zizic, Dr. Stark has overcharged for his travel time. He charged for one day of travel at a flat rate of $3,000 per day. Without any more detail from Dr. Stark, a simple calculation would be Dr. Stark's appropriate travel rate of $175 per hour (half his regular rate) for a 6-hour day of travel. This new travel calculation for Dr. Stark ($175 per hour * 6 hours = $1,050) results in a deduction of $1,950.
Considering the deductions described above, Ms. Bourche is awarded $63,838.37 in attorneys' costs.
The Vaccine Act permits an award of reasonable attorneys' fees and costs. §15(e). The undersigned GRANTS Ms. Bourche's motion and awards $67,283.50 in attorneys' fees and $63,838.37 in attorneys' costs for a total award of $131,121.87. This shall be paid as follows:
The Clerk shall enter judgment accordingly.