CHRISTIAN J. MORAN, Special Master.
On January 11, 2018, Hayley Stricker ("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 undifferentiated connective tissue disease, after receiving the human papillomavirus vaccine on September 29, 2015. Pet., filed May 1, 2017, ¶¶ 5, 33. Petitioner's counsel of record is Mr. Andrew Downing.
On November 2, 2018, the undersigned issued an order suspending respondent's Rule 4(c) report deadline, and directing petitioner to file an expert report.
On October 7, 2019, petitioner moved for an award of attorneys' fees and costs on an interim basis, requesting $31,108.50 in fees and $44,268.06 in costs, for a total of $75,376.56. Pet'r's Mot. IAFC at 5.
The requested fees include work performed and costs incurred as of October 7, 2019, when petitioner filed her motion. Petitioner argues that an award of interim fees and costs is appropriate in this case because: the threshold requirements regarding the amount of fees and costs requested are met, Pet'r's Mot. IAFC at 3, and it will likely be a significant time period before the case concludes.
The Secretary filed his response to petitioner's motion on October 18, 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 her 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 expert petitioner has retained, Dr. Zizic, 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 the rates charged by petitioner's counsel are reasonable and in line with previous awards. 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 $739.25.
Accordingly, taking this fees reduction into account, petitioner is awarded attorneys' fees in the amount of $30,369.25.
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. Zizic.
Dr. Zizic billed 109.55 hours at a rate of $400 per hour for the preparation of his expert report, for a total of $43,820.00. Pet'r's Mot. IAFC, Exhibit A at 28-31. Dr. Zizic is a board-certified rheumatologist with significant experience serving as an expert in the Vaccine Program.
Special masters have found Dr. Zizic's invoices contain overbilling.
Dr. Zizic's invoice contains entries that are inflated. For example, his first substantive task was reviewing the petition, which is essentially 10 pages in length. For this task, Dr. Zizic has claimed 2.7 hours (or 162 minutes). Dr. Zizic is representing that he spent more than 15 minutes reading each page of the petition. This cannot be accurate.
Dr. Zizic's second entry states that he reviewed Ms. Stricker's statement, which is exhibit 1, an affidavit. The affidavit is approximately five pages and Dr. Zizic has invoiced for 0.65 hours (or 39 minutes). This is approximately eight minutes per page. This, too, cannot be accurate.
Errors in record-keeping continue when Dr. Zizic took up the task of reading medical records. For example, Dr. Zizic states that he spent 6.8 hours (approaching a full eight-hour work day) on the task of reading the records from Ms. Stricker's rheumatologist, Dr. Saba. Dr. Saba's records are exhibit 15. Exhibit 15 consists of 70 pages of typed medical records and typed laboratory reports. Dr. Zizic has represented that he spent approximately 6 minutes per page reading these records. This rate exceeds, by a significant amount, a typical amount.
On three occasions, Dr. Zizic has entries for "Johns Hopkins Medical Library." January 18, 2019; January 16, 2019; and January 23, 2019. The total amount of time is 15.85 hours. It seems that this might be time that Dr. Zizic spent researching for articles, but Dr. Zizic could clarify. It is not time spent reading articles as Dr. Zizic has separately listed the articles that he reviewed. For medical articles, Dr. Zizic has generally invoiced approximately 10 minutes per page. This also is high.
Under these circumstances, a decision on a reasonable amount of compensation for Dr. Zizic's work is DEFERRED.
In sum, petitioner is awarded attorneys' costs in the amount of $466.06.
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.
