Moses v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
MICHAEL MOSES, parent on *
behalf of P.M., a minor, *
* No. 19-739V
* Special Master Christian J. Moran
Petitioner, *
v. *
* Filed: May 5, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
* Attorneys’ fees and costs, interim
Respondent. * award
*********************
Phyllis Widman, Jacobs and Barbone, Atlantic City, NJ, for petitioner;
Catherine E. Stolar, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING
ATTORNEYS’ COSTS ON AN INTERIM BASIS1
Previously, Michael Moses sought an award of attorneys’ fees and costs on
an interim basis. Pet’r’s Mot., filed June 1, 2020. Mr. Moses was awarded most of
his attorneys’ fees and costs. Mr. Moses was not awarded costs for work
performed by the expert he retained, Dr. Brawer, because Dr. Brawer did not
describe his work in sufficient detail. Moses v. Sec’y of Health & Human Servs.,
No. 19-739V, 2020 WL 6778002 (Fed. Cl. Spec. Mstr. Oct. 23, 2020).2
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
2
Familiarity with the October 23, 2020 decision and the standards for adjudications
stated therein is presumed.
Mr. Moses requested a second award of attorneys’ costs for reimbursement
of work Dr. Brawer performed. Pet’r’s Mot., filed Jan. 18, 2021. The Secretary
deferred to the undersigned’s determination. Resp’t’s Resp., filed Jan. 29, 2021.
This motion is denied for two reasons. First, the previous decision awarding
attorneys’ fees and costs reduced the amount of attorneys’ fees and costs at issue.
Thus, petitioner has not justified why a second interim award is appropriate. See
Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).
Second, petitioner has not offered any evidence to justify the proposed
hourly rate for Dr. Brawer. Moreover, the undersigned has not heard Dr. Brawer
testify. Because the quality of the expert’s work is a factor that should be
considered when determining the appropriate rate, it is advantageous to have heard
the expert witness’s testimony before making this determination when possible.
See Schultz v. Sec’y of Health & Human Servs., No. 16-539V, 2019 WL 5098963,
at *4-5 (Fed. Cl. Spec. Mstr. Aug. 28, 2019) (denying motion for reconsideration
on this point); Jones v. Sec’y of Health & Human Servs., No. 16-864V, 2019 WL
5098965, at *3 (Fed. Cl. Spec. Mstr. Aug. 26, 2019); Nifakos v. Sec’y of Health &
Human Servs., No. 14-236V, 2018 WL 7286553, at *5 (Fed. Cl. Spec. Mstr. Dec.
12, 2018) (deferring award when expert’s invoice is not detailed); Al-Uffi v. Sec’y
of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *14 (Fed. Cl.
Spec. Mstr. Sept. 30, 2015) (noting that interim expert costs are more commonly
awarded after a hearing). Thus, the costs associated with Dr. Brawer are deferred.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2