Abbott v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ANNE ABBOTT, *
on behalf of her minor child, R.A. *
* No. 14-907V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: May 14, 2020
*
SECRETARY OF HEALTH * Attorneys’ fees and costs, interim
AND HUMAN SERVICES, * award, expert costs
*
Respondent. *
*********************
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Jennifer Reynaud, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING ATTORNEYS’
COSTS ON AN INTERIM BASIS1
Anne Abbott’s claim that a measles-mumps-rubella (“MMR”) vaccination
harmed her child, R.A., remains pending while the parties explore an informal
resolution. The anticipated duration of these discussions justifies an award to
cover the previously deferred costs of Dr. David Siegler. For his work, Ms. Abbott
is awarded $28,260.00.
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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 (http://www.cofc.uscourts.gov/aggregator/sources/7). 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.
Procedural History
The decision on the first motion for attorneys’ fees and costs on an interim
basis provided a factual background and a summary of the procedural history up
through the scheduling of an entitlement hearing on January 19, 2017. First
Interim Fees Decision, 2016 WL 4151689, issued July 15, 2016. From that date,
the procedural history is set out in the Second Interim Fees Decision, 2019 WL
1856435, issued March 19, 2019. The Second Interim Fees Decision deferred the
costs requested for Dr. Siegler because he had not testified and because an
adjudication was expected as the parties were submitting briefs. On March 20,
2019, petitioner moved for reconsideration of the deferral of Dr. Siegler’s costs.
Subsequently, petitioner moved for reimbursement of Dr. Siegler’s costs on May
15, 2019.
After reviewing the parties’ entitlement briefs, the undersigned determined
that a hearing was appropriate. Order, issued Aug. 20, 2019. In November 2019,
the parties advised that the earliest mutually convenient date for a four-day hearing
was in October 2020. Order, issued Nov. 21, 2019. On January 6, 2020, the
undersigned referred the case to Special Master Oler for alternative dispute
resolution.
With guidance from Special Master Oler, the parties have agreed to explore
resolution. Due to the extensive needs of R.A., the settlement efforts may take one
year. The October 2020 hearing, at the parties’ request, has been cancelled. Order,
issued Apr. 29, 2020.
The issue of Dr. Siegler’s requested costs is now ripe for adjudication.
Analysis
Ms. Abbott’s motion raises a series of sequential questions, each of which
requires an affirmative answer to the previous question. First, whether Ms. Abbott
has submitted evidence that makes her eligible to receive an award of attorneys’
fees and costs? Second, whether, as a matter of discretion, Ms. Abbott 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.
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I. Whether the Petitioner’s Case Satisfies the Requirements for an Award
of Attorneys’ Fees and Costs
A petitioner who has not received compensation may be awarded
“compensation to cover petitioner’s reasonable attorneys’ fees and other costs
incurred in any proceeding on such petition if the special master or court
determines that the petition was brought in good faith and there was a reasonable
basis for the claim.” 42 U.S.C. § 300aa-15(e)(1).
The First Interim Fees Decision and the Second Interim Fees Decision each
found that Ms. Abbott possessed a reasonable basis for the claim asserted in her
petition. No evidence changes that finding.
II. Whether the Petitioner Should be Awarded Attorneys’ Fees and Costs
on an Interim Basis as a Matter of Discretion
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. Rehn
v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 91 (2016) (citing Cloer v.
Sec’y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012) (en banc),
aff’d, 133 S.Ct. 1886 (2012)); Friedman v. Sec’y of Health & Human Servs., 94
Fed. Cl. 323, 334 (2010) (ruling that special master acted within discretion in
denying an award of attorneys’ fees and costs on an interim basis). The Federal
Circuit identified some factors for a special master to consider before awarding
attorneys’ fees and costs on an interim basis. These include: “protracted
proceedings,” “costly experts,” and “undue hardship.” Avera, 515 F.3d at 1352.
This list is illustrative, not exhaustive.
Here, Ms. Abbott has previously demonstrated that an interim award is
appropriate. The costs associated with Dr. Siegler were not included with the First
and Second Interim Fee Decisions because testimony from Dr. Siegler could lend
additional information about the quality of his work in this case, especially since
the undersigned has not observed Dr. Siegler testifying previously. Special
masters sometimes defer paying the cost for an expert until the expert testifies.
See, e.g., 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 mot. 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);
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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 and deferring request for Dr. Siegler).
However, the parties’ settlement efforts change the balance. It is
foreseeable, although not guaranteed, that the parties will agree to resolve the case
informally. If so, a hearing will not be held, and the undersigned would resolve the
reasonableness of Dr. Siegler’s request as part of an application for final fees
without the benefit of hearing his testimony. Alternatively, if settlement efforts do
not reach fruition, then Dr. Siegler will remain without payment for probably one
year until a hearing can be rescheduled. To avoid this situation, payment for Dr.
Siegler is appropriate now.
III. What is a Reasonable Amount of Dr. Siegler’s Fee
The final issue is quantifying a reasonable amount for Dr. Siegler’s costs,
who has requested $37,900.00. Reasonable expert fees are determined using the
lodestar method in which a reasonable hourly rate is multiplied by a reasonable
number of hours. See Chevalier v. Sec’y of Health & Human Servs., No. 15-
001V, 2017 WL 490426, at *3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017).
Dr. Siegler began working on this case on December 7, 2014. His initial
proposed hourly rate was $450 per hour. He maintained that proposed rate through
June 30, 2015. For work performed on or after July 1, 2015, Dr. Siegler proposed
$500 per hour. See Pet’r’s Second Fee Appl’n, exhibit A at 41 (Dr. Siegler’s first
invoice), 50 (Dr. Siegler’s second invoice). While petitioner had highlighted Dr.
Siegler’s experience in her first attorneys’ fees and costs motion, petitioner did not
provide any cases with a reasoned basis to establish Dr. Siegler’s hourly rate.
Pet’r’s First Fee Appl’n, filed July 1, 2015, exhibit A at 31-32. In response to the
first motion on attorneys’ fees and costs, the Secretary made specific objections to
Dr. Siegler’s hourly rate and proposed an hourly rate of $350. Resp’t’s Resp. First
Fee Appl’n, filed Aug. 10, 2015, at 18-20. In the second interim attorneys’ fees
and costs motion, petitioner again did not cite any cases to support Dr. Siegler’s
hourly rate in the second motion.
In a motion for reconsideration of the Second Interim Fees Decision,
petitioner for the first time cited some cases to support Dr. Siegler’s hourly rate.
Pet’r’s Mot. Reconsideration, filed Mar. 20, 2019. In Ahlum, petitioner pointed
out that a special master heard Dr. Siegler testify and stated that Dr. Siegler is
familiar with how the MMR vaccine triggers an immune reaction. Id. (citing
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Ahlum v. Sec’y of Health & Human Servs., No. 12-763V, 2018 WL 4323623, at
*26 (Fed. Cl. Spec. Mstr. Aug. 16, 2018)). Dr. Siegler’s testimony in Ahlum
supported one of three vaccines claims in that case (two on-Table and one off-
Table) but the petitioners in Ahlum were not awarded compensation based on the
claim supported by Dr. Siegler. Ahlum, 2018 WL 4323623, at *44. While the
petitioners in Ahlum were summarily awarded attorneys’ fees and costs in two
interim decisions, neither decision contained a discussion of Dr. Siegler’s hourly
rate. See Ahlum v. Sec'y of Health & Human Servs., No. 12-763V, 2016 WL
3360423, at *1 (Fed. Cl. Spec. Mstr. May 26, 2016); Ahlum v. Sec'y of Health &
Human Servs., No. 12-763V, 2014 WL 4100938, at *1 (Fed. Cl. Spec. Mstr. July
31, 2014). The special master in Al-Uffi v. Sec’y of Health & Human Servs., No.
13-956V (Fed. Cl. Spec. Mstr. Oct. 17, 2017), awarded Dr. Siegler fees without a
discussion of his hourly rate, but a few months later in Zumwalt the same special
master determined that Dr. Siegler’s hourly rate for 2017 and 2018 should be $400.
Zumwalt v. Sec'y of Health & Human Servs., No. 16-994V, 2018 WL 6975184, at
*5 (Fed. Cl. Spec. Mstr. Nov. 27, 2018). Petitioner cited other cases that did not
discuss Dr. Siegler’s hourly rate. Pet’r’s Mot. Reconsideration at 3-4; see Silverio
v. Sec’y of Health & Human Servs., No. 15-235V, 2018 WL 3432889 (Fed. Cl.
Spec. Mstr. June 6, 2018); Rich v. Sec’y of Health & Human Servs., No. 12-742V,
2016 WL 3996334 (Fed. Cl. Spec. Mstr. June 30, 2016), aff’d, 129 Fed. Cl. 642(2016); Ramirez v. Sec’y of Health & Human Servs., No. 16-1180V, 2019 WL
948385 (Fed. Cl. Spec. Mstr. Jan. 30, 2019). Petitioner stated that the cases she
had cited were non-exhaustive. Pet’r’s Mot. Reconsideration at 4.
In her most recent motion for Dr. Siegler’s expert costs, petitioner provided
three additional cases not cited in her motion for reconsideration. Pet’r’s Mot. for
Expert Costs, filed May 15, 2019. The first additional case, Bales, awarded costs
for Dr. Siegler but, again, did not contain a discussion of Dr. Siegler’s rates. Bales
v. Sec’y of Health & Human Servs., No. 15-882V, 2017 WL 2243094 (Fed. Cl.
Spec. Mstr. Apr. 26, 2017). In the second additional case, Boyd, the parties
stipulated to award petitioner compensation and then also stipulated to attorneys’
fees and costs. Boyd v. Sec'y of Health & Human Servs., No. 13-634V, 2015 WL
1161658, at *1 (Fed. Cl. Spec. Mstr. Feb. 13, 2015). In the last additional case,
Van Alst, the petitioner was awarded all attorneys’ fees and costs on the basis that
respondent did not object to the amounts requested. Van Alst v. Sec’y of Health &
Human Servs., No. 15-1180V, 2018 WL 655043 (Fed. Cl. Spec. Mstr. Jan. 4,
5
2018).2 A Westlaw search for Dr. Siegler did not reveal any other vaccine cases
that he participated in.
In reviewing these cases cited by petitioner, the undersigned notes that only
one case contained a discussion of Dr. Siegler’s hourly rate, Zumwalt, and that
case set his hourly rate at $400/hour. 2018 WL 6975184, at *5. Considering that
one discussion of Dr. Siegler’s hourly rate, the lack of any other substantive
discussions of Dr. Siegler’s hourly rate, and the fact that the undersigned has not
yet observed Dr. Siegler testify, the undersigned finds that $400/hour is a
reasonable hourly rate for Dr. Siegler.
With respect to the number of hours, Dr. Siegler should provide additional
detail. For example, on December 19, 2015, Dr. Siegler states that he spent 2.5
hours when he “reviewed literature.” However, the articles that Dr. Siegler
reviewed are not specified and without some information, assessing the
reasonableness of his activity is difficult. A separate issue is that Dr. Siegler has
charged his full rate for performing tasks, such as collecting references, that could
be delegated to a person charging a lower hourly rate. For these reasons, an
additional 10 percent is removed from Dr. Siegler’s invoice.
Accordingly, a reasonable amount of compensation for Dr. Siegler’s work is
$28,260.00.
Conclusion
The Vaccine Act permits an award of reasonable attorneys’ costs. § 15(e).
This shall be paid as follows:
A lump sum payment of $28,260.00 in the form of a check made payable
jointly to petitioner and petitioner’s attorney, Andrew D. Downing, of
Van Cott & Talamante, PLLC, for attorneys’ costs on an interim basis
available under 42 U.S.C. § 300aa-15(e).
2
While the fees decision in Van Alst was not challenged, other cases using the same
reasoning were challenged and reversed on review. See McIntosh v. Sec’y of Health & Human
Servs., 139 Fed. Cl. 238 (2018) (holding that special masters must make an independent
evaluation of the reasonableness of attorneys’ fees and costs even without any objections from
respondent).
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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. 3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgement by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
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