Cowart v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
ELIANA COWART, *
* No. 16-513V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: September 8, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs,
* interim award, expert costs
Respondent. *
**********************
Sean Greenwood, The Greenwood Law Firm, Houston, TX, for Petitioner;
Voris Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1
Ms. Cowart requests an award of attorneys’ fees and costs. She is award
$60,025.99.
Procedural History
Ms. Cowart (“petitioner”) claimed that a meningococcal conjugate vaccine
caused her to suffer fibromyalgia and sought compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §§300aa-10 through 34 (2018).
Pet., filed April 26, 2016. 2 Medical records were filed periodically. After
reviewing the case materials, the Secretary recommended against compensation.
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. 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 When the petition was filed, the petitioner was Ms. Cowart’s father, because Ms.
Cowart was below the age of majority. In due course, Ms. Cowart, who married and changed
her name, became the petitioner. For sake of simplicity, this decision treats Ms. Cowart as the
petitioner throughout.
Resp’t’s Rep., filed Feb. 24, 2017. One issue identified by the Secretary was that
Ms. Cowart had not presented a medical record from a treating doctor or a medical
opinion from a retained expert to support her claim.
In the following status conference, Ms. Cowart indicated she would file an
expert report. The undersigned issued a set of proposed instructions for the
parties’ experts to follow. See Order, issued Mar. 21, 2017. The Instructions
explained how the petitioner’s expert was to prepare invoices. In the absence of
feedback from the parties, the expert instructions became final on April 10, 2017.
ECF No. 34.
After a few motions for extensions of time, on October 3, 2017, Ms. Cowart
filed an expert report from Michael McCabe, Ph.D. Exhibit 20. Dr. McCabe, who
is not a medical doctor, indicated that the immediate adverse reaction that Ms.
Cowart exhibited in response to the vaccination was consistent with documented
side effects to the vaccine.
During the October 11, 2017 status conference, the undersigned noted that
Dr. McCabe failed to comply with the expert instructions. See Order, issued Oct.
12, 2017. Specifically, Dr. McCabe failed to identify the condition(s) that the
vaccine allegedly caused and did not outline a theory explaining how the vaccine
can cause the diagnosed condition. The instructions were reattached to that order
with additional underlining and bolding to assist Dr. McCabe in drafting preparing
his supplemental report. Id. Ms. Cowart filed Dr. McCabe’s revised report on
November 17, 2017. Exhibit 26.
Subsequently, the Secretary filed an expert report authored by Dr. Carlos
Rose (exhibit A) on February 20, 2018. After moving for leave to file an
additional expert report, the Secretary filed an expert report authored by Dr.
Deborah Anderson (exhibit F) on May 2, 2018.
On August 9, 2018, Ms. Cowart filed an expert report authored by Dr.
Tracey Marks. Exhibit 37.
On September 4, 2018, Ms. Cowart filed a motion for an award of attorney’s
fees and costs on an interim basis. One component of this request was $6,332.50
for Dr. McCabe’s work. Respondent did not challenge the petitioner’s good faith
or reasonable basis, and the petitioner was found eligible for an award of interim
attorney’s fees and costs. A decision issued awarding $49,625.37 in interim fees
and costs. See Interim Fees Decision, 2018 WL 7286513 (Fed. Cl. Spec. Mstr.
Dec. 10, 2018). This Interim Fees Decision declined to award any reimbursement
for Dr. McCabe’s work because Ms. Cowart had not justified the proposed hourly
rate, which was $490 per hour.
2
While her motion for interim attorney’s fees and costs was pending, on
October 9, 2018, Ms. Cowart filed another report authored by Dr. McCabe.
Exhibit 53.
The Secretary filed supplemental expert reports from Dr. Rose and Dr.
Anderson (exhibits J and K) on February 4, 2019. On February 20, 2019, Ms.
Cowart filed a status report, stating she would submit a report from Dr. Eric
Gershwin to respond to rheumatology issues that Dr. Rose raised in his report. See
ECF No. 91.
A status conference was held on February 28, 2019 to discuss respondent’s
objections to the addition of Dr. Gershwin. Ms. Cowart acknowledged that Dr.
McCabe’s opinion was insufficient for her claim of causation. See Order, issued
Mar. 4, 2019. Ms. Cowart was permitted to allow Dr. Gershwin to prepare a report
and was reminded to comply with the Instructions, issued on April 10, 2017 and
October 12, 2017. Id. The undersigned cautioned that a non-complaint report may
jeopardize reimbursement for the cost of preparing the report. Id.On March 29, 2019, Ms. Cowart filed Dr. Gershwin’s expert report (exhibit
74) and medical literature, along with updated medical records. A status
conference was then held on April 24, 2019 to discuss Dr. Gershwin’s report. The
undersigned noted that Dr. Gershwin’s report required supplementation because he
did not address timing, i.e., when Ms. Cowart first manifested symptoms of
fibromyalgia. Dr. Gershwin was again reminded to review the expert instructions.
See order, issued April 24, 2019.
Ms. Cowart filed Dr. Gershwin’s supplemental report (exhibit 79) on May
28, 2019. The Secretary filed a responsive expert report from Dr. Rose (exhibit Q)
on June 25, 2019. The parties next proceeded to briefing.
On August 1, 2019, the undersigned issued an order for submissions as part
of a potential ruling or decision on the record. Ms. Cowart filed her brief (stylized
as a motion for ruling on the record) on October 9, 2019. The Secretary submitted
his brief / response to Ms. Cowart’s motion on December 10, 2019. Ms. Cowart
submitted her reply on December 17, 2019.
After the undersigned reviewed the briefs, additional questions were posed
to the parties to supplement their positions. See Order, issued Jan. 27, 2020. Ms.
Cowart filed her supplemental brief on February 14, 2020, and the Secretary filed
his supplemental brief on February 27, 2020.
3
On May 20, 2020, the undersigned issued an order regarding entitlement,
denying Ms. Cowart’s claim regarding fibromyalgia. See Order Regarding
Entitlement, 2020 WL 3264272. Subsequently, the parties began planning for a
hearing. See Order, issued Sept. 15, 2020. Ms. Cowart could have proceeded on a
claim that the vaccination caused an immediate adverse reaction that lasted longer
than six months (rather than the fibromyalgia claim). Instead, during the following
status conference, Ms. Cowart stated her intention to file a motion for review
regarding her fibromyalgia claim. See Order, issued Oct. 16, 2020.
On December 22, 2020, Ms. Cowart moved to voluntarily dismiss her case
pursuant to Rule 21(a). The undersigned subsequently issued a decision denying
entitlement on January 5, 2021. 2021 WL 253977. Judgement entered on
February 5, 2021. It appears that Ms. Cowart may have intended to file a motion
for review but missed the opportunity to do so. A notice of appeal was filed and
assigned to the Federal Circuit on April 14, 2021. ECF No. 140. Because the
Federal Circuit lacked jurisdiction, Ms. Cowart voluntarily withdrew her appeal.
ECF No. 142.
On May 13, 2021, Ms. Cowart filed the pending motion for an award of final
attorneys’ fees and costs. The motion seeks a total of $69,593.49, comprised of
$49,424.80 in attorneys’ fees and $20,168.69 in attorneys’ costs. Ms. Cowart did
not incur any costs.
The Secretary filed a response to Ms. Cowart’s motion. The Secretary
represented that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed June 9, 2021,
at 2. With respect to amount, the Secretary recommended “that the [special
master] exercise [his] discretion” when determining a reasonable award for
attorneys’ fees and costs. Id. at 3.
The undersigned observed that Ms. Cowart’s final fees application lacked
invoices from Dr. McCabe, despite being encouraged to include those invoices
following the Interim Fees Decision. See Order, issued June 30, 2022. Ms.
Cowart was ordered to file all invoices for Dr. McCabe. Id.Ms. Cowart filed supplemental materials on August 1, 2022. To support the
request for Dr. McCabe’s work, Mr. Greenwood submitted an affidavit and
documentation showing that his firm paid Dr. McCabe’s company, Robson
Forensic, $11,928.75. Mr. Greenwood did not provide any additional invoices.
Instead, he stated the McCabe “invoices and receipts for payment are his business
records and are not within my personal knowledge.” Pet’r’s Exhibit A.
This matter is now ripe for adjudication.
4
* * *
Analysis
I. Eligibility for An Award of Attorneys’ Fees and Costs
Even when a petitioner in the Vaccine Program does not prevail on his or
her claim and does not receive compensation, a special master may award
reasonable attorneys’ fees and other costs if “the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.”
42 U.S.C. § 300aa-15(e)(1).
As the Federal Circuit has stated, “good faith” and “reasonable basis” are
two separate elements that must be met for a petitioner to be eligible for attorneys’
fees and costs. Simmons v. Sec'y of Health & Hum. Servs., 875 F.3d 632, 635
(Fed. Cir. 2017).
“Good faith” is a subjective standard. Id.; Hamrick v. Sec’y of Health &
Hum. Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov.
19, 2007). A petitioner acts in “good faith” if he or she honestly believes that a
vaccine injury occurred. Turner v. Sec’y of Health & Hum. Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary has
not challenged petitioner’s good faith here, and the undersigned has little doubt
that petitioner brought the claim with an honest belief that a vaccine injury
occurred.
In contrast to good faith, reasonable basis is purely an objective evaluation
of the weight of the evidence. Simmons, 875 F.3d at 636. An “objective inquiry”
is an examination of evidence. See Chuisano v. Sec’y of Health & Hum. Servs.,
No. 07-452V, 2013 WL 6234660, at *8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013),
mot. for rev. denied, 116 Fed. Cl. 276 (2014). Evidence that is relevant to
determining whether there is reasonable basis for a claim may include medical
records, affidavits from percipient witnesses, and opinions from retained experts.
See 42 U.S.C. § 300aa–11(c).
The undersigned previously found that Ms. Cowart had a reasonable basis
for bringing her petition and litigating her case up to the interim fees decision.3
The undersigned similarly finds that Ms. Cowart maintained a reasonable basis for
the remainder of the litigation, despite some deficiencies from experts. As
3However, reservations were held regarding the basis for Dr. McCabe’s opinion.
Deductions discussed below will account for the deficiencies of Dr. McCabe’s contributions.
5
discussed below, contributions from Dr. McCabe and Dr. Gershwin deserve further
scrutiny.
II. Reasonable Amount 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 & Hum. Servs. 515 F.3d 1343, 1348 (Fed. Cir.
2008). First, a court determines an “initial estimate … by ‘multiplying the number
of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id.
at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the
court may make an upward or downward departure from the initial calculation of
the fee award based on specific findings. Id. at 1348. Here, because the lodestar
process yields a reasonable result, no additional adjustments are required. Instead,
the analysis focuses on the elements of the lodestar formula, a reasonable hourly
rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Sec’y of Health &
Hum. Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rate
Reasonable hourly rates are determined by looking at the “prevailing market
rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing
market rate” is akin to the rate “in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.” Id. at 895 n.11. A
petitioner’s counsel in the Vaccine Program is paid the forum rate unless the bulk
of the work is performed in a locale other than the forum (District of Columbia)
and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at
1349. If these two requirements are met, the Davis County exception applies, and
petitioner’s counsel is paid according to the local rate to avoid a “windfall.” Id.;
see Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S.
Envtl. Prot. Agency, 169 F.3d 755, 757–60 (D.C. Cir. 1999).
For cases in which forum rates apply, McCulloch provides a framework for
consideration of appropriate ranges for attorneys’ fees based upon the experience
of the practicing attorney. McCulloch v. Sec’y of Health & Hum. Servs., No. 09-
293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly
6
Rate Fee Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be
accessed online. 4
Ms. Cowart requests compensation for attorneys Sean Greenwood, Kayleigh
Smith, and Anna Carruth, as well as a paralegal and law clerk. Mr. Greenwood has
charged $337 per hour in 2018, $363 per hour in 2019, $400 per hour in 2020, and
$425 per hour in 2021. Ms. Smith has charged $215 per hour in 2018, $225 per
hour in 2019, and $250 per hour in 2020. Ms. Carruth has charged $180 per hour
in 2021 for brief contributions. The law clerk, Caitlin Erchick, has charged $160
per hour in 2020 and $170 per hour in 2021. Ms. Ward, a paralegal, has charged
$150 per hour in 2019, $160 per hour in 2020, and $170 per hour in 2021.5
Special masters have considered and deemed the rates for Mr. Greenwood,
Ms. Smith, and Ms. Carruth to be reasonable. Roach-Yohey v. Sec’y of Health &
Hum. Servs., No. 17-1744V, 2022 WL 1075388 (Fed. Cl. Spec. Mstr. Mar. 4,
2022); Stillabower v. Sec’y of Health & Hum. Servs., No. 17-265V, 2020 WL
619686 (Fed. Cl. Spec. Mstr. Jan. 24, 2020). The undersigned also finds these to
be reasonable.
The rates for Ms. Ward are also reasonable. Ms. Ward has previously been
awarded less for work performed in 2019-2021. See Conley v. Sec'y of Health &
Hum. Servs., No. 19-1458V, 2021 WL 3917016 at *2 (Fed. Cl. Spec. Mstr. Jul. 30,
2021); Roach-Yohey, 2020 WL 1075388 at *4. But, at other times, she has been
awarded $150 per hour for 2019 work, $160 per hour for 2020 work, and $170 per
hour for 2021 work. See Billing v. Sec’y of Health & Hum. Servs., No. 18-679V,
2021 WL 6059382 (Fed. Cl. Spec. Mstr. Dec. 1, 2021). Given the closeness of the
proposed rates to those previously awarded, the undersigned accepts Ms. Ward’s
rates. No reductions are required.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). The
4 The 2015–2016, 2017, 2018, 2019, 2020, 2021 and 2022 Fee Schedules can be accessed
at: https://www.uscfc.uscourts.gov/node/2914. The hourly rates contained within the schedules
are updated from the decision in McCulloch, 2015 WL 5634323.
5 There are discrepancies between the rates stated in petitioner’s fees motion and the
timesheets. See, e.g., Pet’r’s Mot. for Attorneys’ Fees and Expenses, at 9-10 (stating Ms. Ward
and Ms. Erchick charged $163/hour in 2020 and $172/hour in 2021) and Pet’r’s Exhibit 103
(listing rates for Ms. Ward and Ms. Erchick as $160/hour in 2020 and $170/hour in 2021).
7
Secretary also did not directly challenge any of the requested hours as
unreasonable.
The attorneys’ and paralegals’ entries describe the activities with sufficient
detail that the reasonableness of the work may be assessed. Due to the fulsome
descriptions in the timesheets and the overall reasonableness of the activities, only
minimal adjustments are required.
The attorneys charged a few hours that involved detailed reviews of the
medical records, which should have been billed at paralegal rates. When an
attorney does the work of a paralegal or administrative assistant, he or she should
be paid a rate commensurate with the nature of the work. See Valdes v. Sec'y of
Health & Hum. Servs., 89 Fed. Cl. 415, 425 (2009) (noting that “the Special
Master exercised appropriate discretion in denying requested costs for work
performed by Petitioner’s counsel’s associate” when the special master determined
“that the associate’s time spent obtaining medical records was more consistent with
paralegal duties.”). Additionally, the attorneys billed for some tasks that are better
characterized as paralegal work and even some tasks that are secretarial in nature,
such as filing exhibits and preparing exhibits for filing. See exhibit 102 at 2, 8, 9.
To accomplish rough justice, the undersigned will reduce Ms. Cowart’s fees award
by $1,000.
For these reasons, Ms. Cowart is awarded $48,424.80 in attorneys’ fees.
C. Attorney’s Costs
In the final fees motion, filed May 13, 2021, Ms. Cowart asks for $20,168.69
in costs. Although the final fees motion did not renew a request for the
uncompensated work of Dr. McCabe ($6,332.50), the undersigned will consider
these costs now as well. A small amount ($354.94) is for routine items such as
obtaining medical records and literature. The costs for routine items are reasonable
and awarded in full.
Next, the undersigned will address the remaining bulk of costs, $19,813.75 +
$6,332.50, for obtaining reports from the experts. Reasonable expert fees are
determined using the lodestar method, in which a reasonable hourly rate is
multiplied by a reasonable number of hours. Caves v. Sec'y of Health & Hum.
Servs., 111 Fed. Cl. 774, 779 (2013). Ms. Cowart seeks reimbursement for work
performed by three people: Dr. McCabe, Dr. Tracey Marks, Dr. Gershwin.
1. Dr. McCabe
Ms. Cowart requested reimbursement of Dr. McCabe’s work as part of her
August 30, 2018 motion for interim attorneys’ fees and costs. This motion was
8
supported by an invoice from Dr. McCabe. Exhibit 51 and 52. Exhibit 52 shows a
sample invoice from Dr. McCabe in a different case, in which he charged $395 per
hour.
At the interim fees phase of the case, Ms. Cowart supplied Dr. McCabe’s
invoices. See exhibit 51. Dr. McCabe billed at $490 per hour. The invoice
includes 4 hours reviewing case documents, 1 hour of teleconferencing, 2.75 hours
of research, and 4.5 hours writing his report. An associate, Jamie Williams, Ph.D.,
billed for half an hour of peer review at $440 per hour. Lois Nase billed for half an
hour of research at $220 per hour. Collectively, this work was billed for
$6,332.50. Line-item entries, albeit vague ones, were provided for review. See
exhibit 51.
After reviewing the arguments and evidence in support of each experts’
requested rates, the undersigned found in the interim fees decision that Dr.
McCabe had not justified the proposed rates. See Interim Fees Decision, 2018 WL
7286513. The undersigned encouraged Ms. Cowart to include Dr. McCabe’s
invoice again and to provide additional evidence in support of Dr. McCabe’s
requested rate in the final fees application. Id.In her May 13, 2021 motion for attorneys’ fees and costs, Ms. Cowart did
not request any reimbursement for Dr. McCabe’s work. See Pet’r’s Mot., filed
May 13, 2021, at 13-15 (discussing work performed by Dr. Marks and Dr.
Gershwin). Ms. Cowart did not provide additional support for Dr. McCabe’s
work. Along with the May 13, 2021 motion, Ms. Cowart included two invoices for
Dr. McCabe: 0.25 hours for teleconferencing and 0.75 hours for reviewing case
documents. See exhibit 104 at 18-19. These amounts were requested in a list of
petitioner’s fees and expenses. Exhibit 102 at 12. Those two entries were billed
for $371.25 and $122.50.
However, there were two other line entries billing for Dr. McCabe’s work:
one for $2,525.00 and on for $495.00. Exhibit 102 at 11. Corresponding invoices
from Dr. McCabe were not provided.
After the June 30, 2022 order, a supplemental invoice history was provided,
which lists payments and invoices in this matter. See Pet’r’s exhibit B. Individual
invoices for the $2,525 and $495 payments were not provided, making it
impossible to determine what work was performed, by whom, and for how long.
Additionally, the supplemental invoice history also lists an unsubstantiated (and
previously unclaimed) bill of $2,082.50.
The revised motion for attorney’s fees and costs states Dr. McCabe spent 23
hours on this case, and his staff spent 1.5 hours. Pet’r’s Supp. Mot. for Attorney’s
9
Fees and Expenses, filed Aug. 1, 2022. 6 Mr. Greenwood represents that Dr.
McCabe’s work included 5.25 hours reviewing case documents, 3 hours of
research, 2.25 hours in teleconferences, 8.5 hours of writing his reports, and 4
hours of analysis. Id. at 3. A supplemental invoice history was provided, but it
contains little information about what work was performed. Pet’r’s Exhibit B. Mr.
Greenwood stated the McCabe “invoices and receipts for payment are his business
records and are not within my personal knowledge.” Pet’r’s Exhibit A. In total,
Mr. Greenwood requests $11,928.75 for the contributions of Dr. McCabe (and his
associates). This amount includes the previously uncompensated amount of
$6,332.50. See Pet’r’s Exhibit B.
Dr. McCabe’s initial report did not comply with the expert instructions and
necessitated a supplemental report. Thus, some amount of the time he billed was
not productive. Additionally, even with the additional information provided, Dr.
McCabe’s rate has not been justified. Furthermore, invoice history appears to be
missing. Before the barebones historical statement of bills (Pet’r’s Exhibit B) was
provided, only $6,826.25 could be accounted for.
For a reasonable hourly rate for a Ph.D. immunologist, the undersigned has
awarded $250.00 per hour. Dominguez v. Sec'y of Health & Hum. Servs., No. 12-
378V, 2018 WL 3028975, at *5 (Fed. Cl. Spec. Mstr. May 25, 2018); see also
Lewis v. Sec'y of Health & Hum. Servs., 149 Fed. Cl. 308, 315 (2020) (denying
motion for review regarding the hourly rate for a person with a Ph.D. in
immunology who does not have a medical license). However, an expert’s hourly
rate may be reduced due to poor performance. Frantz v. Sec’y of Health & Hum.
Servs., 146 Fed. Cl. 137, 146 (2019). Here, the work of Dr. McCabe was not good.
Therefore, a reasonable hourly rate for his work is $125.00 per hour (or a reduction
of approximately 50%). The rates for other people associated with Dr. McCabe
will be reduced by this same metric (50%).
Invoices document 13.25 hours of work for Dr. McCabe. Exhibit 51, exhibit
104 at 18-19. The 23 hours claimed have not been substantiated. An additional
$165 (representing 50% of the amounts claimed for Dr. Williams and Ms. Nase in
exhibit 51) will be added to Dr. McCabe’s contributions.
6 It is unclear where the additional 0.5 hours of labor should be allocated. As discussed
above, Jamie Williams billed for 0.5 hours, and Lois Nase billed for 0.5 hours. This totals to 1
hour, not 1.5 hours. Because the undersigned cannot determine how to allocate the additional
0.5 hours, due to the lack of adequate billing histories provided, the undersigned will only award
0.5 hours for each of Dr. McCabe’s assistants.
10
Mr. Greenwood’s explanation that he does not have access to Dr. McCabe’s
business invoices is unpersuasive for multiple reasons. One wonders whether Mr.
Greenwood paid Dr. McCabe without an invoice. Even if Mr. Greenwood, as the
manager of a law firm, paid an expert without an invoice, the Vaccine Program
requires more documentation. The Guidelines specify that experts are expected to
submit invoices explaining the basis of their work, which is the basis for any claim
of compensation. See Guidelines, Section X, Chap. 3. Furthermore, the
undersigned informed Mr. Greenwood and Dr. McCabe about the need for an
invoice. Instructions, issued Apr. 10, 2017, at 7-8. Thus, although Mr. Greenwood
was informed about the documentation required to substantiate a request for an
expert’s work, Mr. Greenwood and Dr. McCabe have not substantiated a
significant portion of the request.
Accordingly, based upon the invoices and the quality of Dr. McCabe’s work,
a reasonable amount of compensation for Dr. McCabe’s work is $1,821.25.
2. Dr. Marks
Dr. Marks provided an additional 6 hours of work reviewing records for
forensic consultations at $425 per hour, for a total of $2,550. This rate is in line
with previously awarded amounts. Interim Fees Decision, 2018 WL 7286513.
The undersigned accepts this rate and number of hours as reasonable.
3. Dr. Gershwin
The requested compensation for work performed by Dr. Gershwin, however,
requires adjustments. Dr. Gershwin billed for 27.5 hours of work at a rate of $500
per hour, for a total of $13,750. Despite significant flaws, Dr. Gershwin’s report
satisfied the reasonable basis standard. But, for the following reasons, his
proposed rate must be reduced. See Frantz v. Sec’y of Health & Hum. Servs., 146
Fed. Cl. 137, 146 (2019) (affirming that special masters may reduce the
compensation rate for an expert when expert’s work was not worth the charged
rate).
Dr. Gershwin’s first report did not express his opinion about when Ms.
Cowart allegedly developed fibromyalgia. Decision Denying Entitlement, 2021
WL 253977, at *6 (Fed. Cl. Spec. Mstr. Jan. 5, 2021). This necessitated a
supplemental report and more work performed from Dr. Gershwin. See Order,
issued April 24, 2019. More troubling, Dr. Gershwin proposed a conclusory
theory, without explanation or evidence, that Ms. Cowart’s doctors’ overtreated
her, which led to fibromyalgia. 2021 WL 253977, at *10. The undersigned also
noted that it appeared Dr. Gershwin misread the medical records, shifting the day
of diagnosis. Id. at 13. These compounding problems reduce the value of Dr.
11
Gershwin’s contributions to Ms. Cowart’s case. The undersigned finds that a
reasonable rate for Dr. Gershwin’s work on this case is $250 per hour. This
amounts to a $6,875 reduction, and a total of $6,875 for Dr. Gershwin’s
contributions.
Conclusion
Of the total amount of attorneys’ fees requested ($49,424.80), Ms. Cowart is
awarded $48,424.80. Of the total amount of costs requested ($20,168.69) and
previously deferred ($6,332.50), Ms. Cowart is awarded $11,601.19.
Accordingly, the undersigned awards the total of $60,025.99 as a lump
sum in the form of a check jointly payable to Ms. Cowart and Ms. Cowart’s
counsel, Sean Greenwood.
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.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
12