CHRISTIAN J. MORAN, Special Master.
On May 3, 2016, Melissa Roglitz-Walker, on behalf of her daughter Sahara Walker ("Petitioner"), filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10 through 34 (2012). Petitioner claims that she suffered from neurocardiogenic syncope, postural orthostatic tachycardia syndrome ("POTS"), orthostatic hypotension, and autonomic neuropathy, after receiving the tetanus-diphtheria-acellular pertussis ("Tdap"), meningococcal conjugate ("MCV"), and Gardasil (human papillomavirus ("HPV")) vaccines on September 25, 2013. Pet., filed May 3, 2016, at 1-2. Petitioner's counsel of record is Mr. Andrew Downing.
On August 11, 2016, the Secretary argued that compensation was not appropriate because petitioner failed to establish a diagnosis of autonomic neuropathy; has not offered a viable scientific or medical theory establishing that the vaccines she received can cause any of her alleged injuries or that they did so in her particular case; and has not presented viable scientific or medical evidence to show an onset that would allow for an inference of causation-in-fact. Resp't's Rep. at 21-22. The Secretary also argued that petitioner has failed to provide a report of a medical expert to support her claim, and that she has ignored potential alternative causes.
To develop her case, petitioner filed an expert report from Dr. Gireesh Velugubanti who was later terminated due to disciplinary actions coming to light, after which petitioner filed expert reports from Dr. Jill Schofield, Dr. Mitchell Miglis, and Dr. Lawrence Steinman. Exhibits 32, 47, 89, 118. In rebuttal, the Secretary filed reports from two experts, Dr. Andrew MacGinnitie and Dr. Horacio Kaufmann. Exhibits A, C.
On August 22, 2019, petitioner moved for an award of attorneys' fees and costs on an interim basis, requesting $106,882.00 in fees and $24,606.55 in costs, for a total of $131,488.55. Pet'r's Mot. IAFC at 3, 7.
The requested fees include work performed and costs incurred as of August 22, 2019, when petitioner filed her motion. Petitioner argues that an award of interim fees and costs is appropriate in this case because: (1) petitioner's submission of medical records and expert reports satisfy the reasonable basis requirement, Pet'r's Mot. IAFC at 1-2; (2) expenses sought are significant and above the threshold requirements,
The Secretary filed his response to petitioner's motion on September 5, 2019. Resp't's Resp. The Secretary did not provide any objection to petitioner's request.
This matter is now ripe for adjudication.
Petitioner's motion implicitly raises a series of sequential questions, each of which requires an affirmative answer to the previous question. First, whether petitioner is eligible under the Vaccine Act to receive an award of attorneys' fees and costs? Second, whether, as a matter of discretion, petitioner should be awarded his attorneys' fees and costs on an interim basis? Third, what is a reasonable amount of attorneys' fees and costs? These questions are addressed below.
As an initial matter, interim fee awards are available in Vaccine Act cases.
"Good faith" is a subjective standard.
In contrast to good faith, reasonable basis is purely an objective evaluation of the weight of the evidence.
Here, the reports from the experts petitioner has retained, Dr. Schofield, Dr. Miglis, and Dr. Steinman, satisfy the reasonable basis standard.
Interim awards should not be awarded as a matter of right.
The Federal Circuit has not attempted to specifically define what constitutes "undue hardship" or a "protracted proceeding." In the undersigned's practice, interim fees may be appropriate when the amount of attorneys' fees exceeds $30,000 and the case has been pending for more than 18 months. Petitioner clears both hurdles.
Under the Vaccine Act, a special master may award reasonable attorneys' fees and costs. 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys' fees are calculated by multiplying a reasonable hourly rate by a reasonable number of hours expended on litigation, the lodestar approach.
Reasonable hourly rates are determined by looking at the "prevailing market rate" in the relevant community.
For cases in which forum rates apply,
Petitioner states that "[t]he rates charged by counsel and staff are well within the parameters established by McCulloch" and are therefore reasonable. Pet'r's Mot. IAFC at 4. The Secretary does not dispute petitioner's counsel's entitlement to forum rates. Given Mr. Downing's level of experience, the undersigned finds these rates to be reasonable. Mr. Downing's rates, as well as the rates of Ms. Van Cott and paralegals assisting with the case, are in line with the forum hourly rate fee schedule and therefore reasonable.
The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
Mr. Downing's time entries provide detail to assess reasonableness. Generally, Mr. Downing and his associates assisting on the case appropriately did not request compensation for administrative tasks, which are not compensable. Thus, the undersigned finds Mr. Downing's number of hours expended to be reasonable. However, the undersigned did note some either ambiguous or purely administrative tasks listed, and adjusted the calculation of fees for these items, eliminating compensation for entries or portions of entries that consisted of purely administrative work or that were ambiguous. The undersigned finds that this total reduction amounts to $3,467.50.
Accordingly, taking this fees reduction into account, petitioner is awarded attorneys' fees in the amount of $103,414.50.
Like attorneys' fees, a request for reimbursement of costs must be reasonable.
For the expert-related costs, petitioner has requested compensation for the expert fees of Dr. Schofield, Dr. Miglis, Dr. Steinman, and Dr. Velugubanti. 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. Miglis billed 11 hours at a rate of $500 per hour for the preparation of his expert report, for a total of $5,500.00. Pet'r's Mot. IAFC, Exhibit A at 82, 123.
Dr. Steinman billed 15.5 hours at a rate of $500 per hour for the preparation of his expert report, for a total of $7,750.00. Pet'r's Mot. IAFC, Exhibit A at 82, 126. Dr. Steinman has been a board-certified neurologist since 1984 and specializes in neuroimmunology.
Finally, Dr. Velugubanti billed 10 hours at a rate of $500 per hour for the preparation of his expert report, for a total of $5,000.00. Pet'r's Mot. IAFC at 5. The undersigned recognizes that petitioner retained Dr. Velugubanti in good faith and terminated her professional association with him upon discovering the existence and extent of his disciplinary actions—a discovery which occurred after petitioner's counsel had compensated Dr. Velugubanti for his expert report. Under the circumstances, a reasonable hourly rate for Dr. Velugubanti is $200 per hour. This results in a reduction of $3,000.
In sum, petitioner is awarded attorneys' costs in the amount of $21,606.55.
Accordingly, petitioner is awarded:
This amount represents reimbursement of interim 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 is directed to enter judgment herewith.
