Moriarty v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
EILISE MORIARTY, a minor, *
by her parents and natural guardians, *
MARIE LOUISE and * No. 03-2876V
STEPHEN MORIARTY, * Special Master Christian J. Moran
Petitioners, *
* Filed: December 16, 2016
v. *
* Interim attorneys’ fees and costs,
SECRETARY OF HEALTH * minimum hourly rate
AND HUMAN SERVICES, *
*
Respondent. *
*********************
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for
petitioners;
Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for
respondent.
PUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS 1
Marie Louise Moriarty and Stephen Moriarty claim that a vaccination
harmed their daughter, Eilise, and seek compensation through the National
Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa–10 through
34 (2012). While their claim is presently before the Court of Federal Claims on a
motion for review, the Moriartys are requesting an award of attorneys’ fees and
costs on an interim basis. The Moriartys’ request totals approximately
$200,000.00. The Secretary filed a weak response, maintaining that an appropriate
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.
amount for a case with a level of complexity similar to the one at hand falls into
the range of $105,000 to $140,000.
The Moriartys are awarded $116,499.92 as an irreducible minimum. As
explained below, this award serves to provide some reimbursement to the
petitioners and their attorneys, who have been working on this case for more than a
decade. It is highly likely that after petitioners adequately justify the amounts that
they are requesting (especially with regard to the proposed hourly rates for the
attorneys), the amount finally awarded to the petitioners will be increased. The
Moriartys are encouraged to file a more detailed request for fees and costs at the
end of the proceedings.
Background
Facts
Before she was five years old, Eilise was diagnosed with developmental
delays. She received special education services, which improved her functioning.
Eilise received her second mumps-measles-rubella (“MMR”) vaccine on January
2, 2001.
Within a month of this vaccination, Eilise started to have seizures and was
diagnosed with epilepsy. The Moriartys claim that the MMR vaccine caused
Eilise’s epilepsy. The Secretary disputes this claim, arguing that the evidence fails
to show that Eilise suffered an autoimmune reaction.
Procedural History
Before the Moriartys filed their motion for an award of attorneys’ fees and
costs on an interim basis, the case had been pending for more than 12 years.
During this period, the case has been litigated in the Office of Special Masters, the
Court of Federal Claims, the Court of Appeals for the Federal Circuit, and back to
the Office of Special Masters on remand. The following is a brief summary of that
history.
Office of Special Masters. On December 31, 2003, the Moriartys filed a
“Short-Form Autism Petition for Vaccine Compensation.” With the Moriartys’
consent, and in accord with how the thousands of other autism cases were
managed, adjudication of this case was stayed pending the outcome of the omnibus
autism proceeding. Order, filed Feb. 2, 2004. Once the test cases in the omnibus
autism proceeding were resolved, the Moriartys were ordered to move their case
forward by filing medical records. Order, filed June 14, 2011.
2
The medical records revealed that the original petition’s claimed injury (that
Eilise suffered from autism) was erroneous. Eilise has not been diagnosed with
autism. Consequently, the Moriartys filed an amended petition, alleging that the
MMR vaccination caused her to suffer seizures. Am. Pet., filed July 13, 2011,
¶ 10.
Both the Moriartys and the Secretary retained experts to support their
positions. The Moriartys relied upon Yuval Shafrir, a board-certified neurologist.
The Secretary relied upon John MacDonald, another board-certified neurologist.
The case proceeded to a hearing. The Moriartys and the Secretary filed
post-hearing briefs. The Moriartys were found not entitled to compensation.
Entitlement Decision, 2014 WL 4387582 (Fed. Cl. Spec. Mstr. Aug. 15, 2014).
For the work their attorneys performed before the Office of Special Masters,
the Moriartys requested $89,416.25 in attorneys’ fees. In addition, almost all costs
were incurred before the Office of Special Masters.
Court of Federal Claims. The Moriartys filed a motion for review with the
Court of Federal Claims. On review, the Moriartys argued that in finding they
failed to prove both the first and second prongs required by Althen v. Sec'y of
Health & Human Servs., 418 F.3d 1275, 1278 (Fed. Cir. 2005), the special master
imposed a burden of proof beyond the preponderance of evidence standard
specified by the Vaccine Act. The Court denied the motion for review, finding that
the special master set forth a rational basis for his decision, and was neither
arbitrary nor capricious. 120 Fed. Cl. 102, 103 (2015).
For proceedings at this stage, the Moriartys seek $26,926.50 in attorneys’
fees, but minimal, if any, costs.
Court of Appeals for the Federal Circuit. The Moriartys appealed the
judgment denying them compensation to the Court of Appeals for the Federal
Circuit. The Federal Circuit concluded that the special master had erred by failing
to consider relevant scientific evidence contained in the record, and remanded for
further proceedings consistent with the opinion. 643 F. App’x 997, 998 (Fed. Cir.
2016).
The Moriartys request approximately $40,000 for the work their attorneys
performed with respect to the Federal Circuit appeal, plus a relatively small
amount of costs.
3
Office of Special Masters on Remand. On remand, the Moriartys were
directed to file additional medical records, school records, and supplemental briefs.
Order, filed June 14, 2016. After a re-review of the record, the undersigned again
found that the Moriartys had failed to prove that they were entitled to
compensation.2 2016 WL 5390172 (Aug. 23, 2016).
While on remand, on September 4, 2016, the Moriartys filed an amended
motion for an award of attorneys’ fees and costs on an interim basis, requesting
$203,845.17. The components of this requests are:
Attorneys’ Fees $183,162.30
Attorneys’ Costs $20,682.87
Petitioners’ Costs $1,250.00
In response to the request for an interim award, respondent argued that a
reasonable amount of attorneys’ fees and costs for a case with this complexity
would fall between $105,000.00 and $140,000.00. But, the Secretary did not
challenge that the Moriartys were eligible for an interim award.
In the Vaccine Program, petitioners who have not received compensation are
eligible for an award of attorneys’ fees and costs when “the petition was brought in
good faith and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa—
15(e)(1). Here, the reports from Dr. Shafrir satisfy the reasonable basis standard.
In addition, the Moriartys brought their petition in good faith.
Furthermore, an award of attorneys’ fees and costs may be made on an
interim basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352
(Fed. Cir. 2008) (listing factors). Here, the protracted nature of this litigation
support an interim award to the Moriartys.
The remaining question — the one the parties disputed in their briefing — is
the reasonable amount of attorneys’ fees and costs. This question is ready for
adjudication.
2
The Moriartys filed another motion for review. However, that second motion for
review is independent of the pending motion for attorneys’ fees and costs on an interim basis.
4
ANALYSIS
In their amended motion, the Moriartys are currently seeking $183,162.30 in
attorneys’ fees. The total costs (petitioners’ costs plus attorneys’ costs) are
$21,932.87. Pet’r’s Am. Fee Appl’n at 1. These two components are addressed
separately.
I. Attorneys’ Fees
A. Standard for Adjudication: Determining the Lodestar
To determine a reasonable amount for attorneys’ fees, special masters follow
a two-step process. The initial step is determining a lodestar value, multiplying a
number of hours reasonably expended on the litigation times a reasonable hourly
rate. See Avera, 515 F.3d at 1347-48. The second step is adjusting the lodestar
calculation upward or downward. Id. at 1348. Here, increasing or decreasing the
lodestar is not necessary. Therefore, the analysis below focuses on determining the
lodestar by finding a reasonable hourly rate and a reasonable number of hours.
B. Reasonable Hourly Rate
In the lodestar analysis, “a reasonable hourly rate is the ‘prevailing market
rate,’ defined as the rate ‘prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.’” Avera, 515
F.3d at 1348 (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984)). In Avera,
the Federal Circuit authorized an award of attorneys’ fees based upon the
prevailing rate in the forum. Counsel for petitioners are entitled to Washington,
D.C. rates except “‘where the bulk of [an attorney’s] work is done outside the
jurisdiction of the court and where there is a very significant difference in
compensation favoring D.C.’” Avera, 515 F.3d at 1349 (quoting Davis County
Solid Waste Management and Energy Recovery Special Service District v. United
States Environmental Protection Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
The Avera framework, therefore, requires a three-step process for attorneys
who work outside of Washington, DC. First, a reasonable hourly rate for
comparable attorneys performing comparable work within Washington, DC must
be found. Second, a reasonable hourly rate for the attorneys in their local area
must be found. Third, the two hourly rates must be compared to see whether there
is a very significant difference. Masias v. Sec’y of Health & Human Servs., No.
99-697V, 2009 WL 1838979, at *4 (Fed. Cl. Spec. Mstr. June 23, 2009), mot. for
rev. denied, slip op. (Dec. 10, 2009), aff’d, 634 F.3d 1283 (Fed. Cir. 2011),
corrected, 2013 WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30, 2013).
5
Here, the Moriartys seek compensation for work performed by three
attorneys (Clifford Shoemaker, Renee Gentry, and Sabrina Knickelbein). The
attorneys began working on this case in 2003, although not all attorneys worked in
all years. Depending on the year the work was performed, for Mr. Shoemaker, the
Moriartys propose rates starting at $278 per hour and increasing to $415 per hour.
For Ms. Gentry, the Moriartys ask for rates from $251 per hour to $415 per hour.
Finally, for Ms. Knickelbein, the Moriartys request between $225 per hour and
$363 per hour. The Moriartys supplied no information explaining how these
hourly rates were determined. 3
An investigation reveals that the proposed rates exceed rates special masters
have awarded in published decisions. For example, in Ray v. Sec’y of Health &
Human Servs., No. 04-184V, 2006 WL 1006587, at *9-10, *13 n.9 (Fed. Cl. Spec.
Mstr. Mar. 30, 2006), the then-chief special master found the following hourly
rates reasonable for these particular attorneys:
Clifford Shoemaker Renee Gentry Sabrina Knickelbein
2003-04 $225 $165 n/a
2004-05 $235 $175 $155.25
2005 $245 $185 n/a
Thus, it appears that the proposed rates cannot be accepted automatically as they
are inconsistent with previous decisions. 4
A thorough analysis to determine a reasonable hourly rate for three attorneys
for approximately 12 years is likely to be a time-consuming process. While special
masters frequently find another special master’s findings regarding hourly rates to
be reasonable, the Moriartys have not cited any cases to support their proposed
hourly rates. Thus, there is a gap in the Moriartys’ presentation. This gap is even
more noticeable because these attorneys, who frequently represent petitioners in
the Vaccine Program, have litigated their hourly rates in other cases.
3
For example, it is not clear whether the Moriartys are requesting forum rates or local
rates.
4
This same investigation also reveals that some cases support the proposed hourly rates.
E.g. Jaffri v. Secʼy of Health & Human Servs., No. 13-484V, 2016 WL 7319407 (Fed. Cl. Spec.
Mstr. Sept. 30, 2016). The discrepancy further supports the need for additional comments from
both parties.
6
Fortunately, there is a solution to this problem. In an exercise of discretion,
the undersigned will compensate the attorneys at a low hourly rate now in this
decision awarding attorneys’ fees on an interim basis with an expectation that the
Moriartys will present information, evidence, and argument regarding reasonable
hourly rates in a future fee application.
Several factors support awarding some minimal amount of attorneys’ fees
now. First, the case has been pending approximately 13 years during which the
attorneys have not been compensated. The duration of this case is anomalous,
making it an appropriate case to award attorneys’ fees and costs on interim basis.
Second, the amount requested in attorneys’ fees (more than $100,000) is, by the
standards in the Vaccine Program, relatively large. Third, the case seems unlikely
to resolve soon making an interim award more appropriate. 5 Fourth, although the
Moriartys could be ordered to justify their request for attorneys’ fees now, the
undersigned believes that a more expeditious path to compensating the attorneys
quickly is to use experience to estimate some reasonable amount of compensation.
See Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir.
1993) (authorizing special masters to use their experience in resolving disputes
over attorneys’ fees and costs).
For purposes of finding some minimal hourly rate, the undersigned will use
the rates from Ray for the beginning years of this litigation:
Clifford Shoemaker Renee Gentry Sabrina Knickelbein
2003 $225 $165 $155
2004 $235 $175 $155
2005 $245 $185 $155
For years 2006-16, Mr. Shoemaker will be compensated at $250 per hour. It
bears emphasis that the $250 per hour is an initial interim award. After the
Moriartys submit additional information as part of a request for final fees, Mr.
5
As mentioned in the procedural history, the case is pending the Court of Federal Claims
on a second motion for review. The Court may (a) deny the motion for review, setting up a
possible second appeal to the Federal Circuit, (b) grant the motion for review by vacating the
undersigned’s second entitlement decision and remanding for additional consideration regarding
entitlement, or (c) grant the motion for review by reversing the entitlement decision and
remanding for findings regarding compensation.
7
Shoemaker will, most likely, be compensated at a higher rate adjusted for inflation.
The present decision, however, does not adjust for inflation because the parties
should present arguments about what index should be used.
After 2004, Ms. Gentry resumed working on this case in 2012. For her work
in 2012 through 2016, Ms. Gentry is being compensated at a rate of $200 per hour.
Again, this rate is likely to be increased as part of a final award, provided the
Moriartys present some persuasive justification for an hourly rate exceeding $200
per hour from 2012 through 2016.
Most of Ms. Knickelbein’s work took place in 2011 and 2013. For these
years (and all years), she is being compensated at the rate of $155 per hour. This
rate of compensation is appropriate because the work she performs is work that a
paralegal can perform. Reasoned decisions of special masters have compensated
Ms. Knickelbein at rates closer to paralegal rates, and appellate authorities have
endorsed these decisions. Riggins v. Sec’y of Health & Human Servs., No. 99-
382V, 2009 WL 3319819, at *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009)
(compensating Ms. Knickelbein at a rate of $105 per hour), mot. for rev. denied on
non-relevant grounds, slip op. (Dec. 10, 2009), aff’d on non-relevant grounds, 406
F. App’x 479 (Fed. Cir. 2011); Valdes v. Sec’y of Health & Human Servs., No. 99-
310V, 2009 WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009), mot. for rev.
denied in part and granted in part, 89 Fed. Cl. 415, 425 (2009) (stating that special
master was not arbitrary in finding that Ms. Knickelbein performed paralegal work,
but noting that Ms. Knickelbein should have been compensated at paralegal rates).
As part of the Moriartys’ submission for final fees, they may present additional
information, evidence, and argument about a reasonable hourly rate for paralegals.
With the finding of a reasonable hourly rate for the purpose of making an
interim award, the first step in the lodestar calculation is accomplished. The
second step is to determine a reasonable number of hours.
C. Reasonable Number of Hours
Quoting a decision by the United States Supreme Court, the Federal Circuit
has explained some of the limits on the number of hours for which compensation
may be sought:
The [trial forum] also should exclude from this initial fee
calculation hours that were not “reasonably expended.”...
Counsel for the prevailing party should make a good-
faith effort to exclude from a fee request hours that are
8
excessive, redundant, or otherwise unnecessary, just as a
lawyer in private practice ethically is obligated to
exclude such hours from his fee submission. “In the
private sector, ‘billing judgment’ is an important
component in fee setting. It is no less important here.
Hours that are not properly billed to one’s client also are
not properly billed to one’s adversary pursuant to
statutory authority.”
Saxton, 3 F.3d at 1521 (emphasis in original) (quoting Hensley v. Eckerhart, 461
U.S. 424, 433–34, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)).
Here, the Moriartys rely upon the attorneys’ timesheets as the basis for the
number of hours. The timesheets show that in the 13 years of litigation, Mr.
Shoemaker spent 256.95 hours, Ms. Gentry 171.35 hours, and Ms. Knickelbein
45.70 hours.
However, the entries on the timesheet often contain an insufficient amount
of information to assess the reasonableness of the activity. Many entries,
frequently from Mr. Shoemaker, contain five or fewer words, such as “Review file
and email Sabrina” (7/12/2011) or “Review records received” (9/26/2011). In light
of the lack of specificity in the time records, the undersigned uses his discretion
and experience to reduce the time spent by 10 percent. 6
The result of the lodestar calculation is $94,824.00.
II. Costs
In addition to seeking an award of attorneys’ fees, the Moriartys seek
reimbursement for costs that either they ($1,250) or their attorneys ($20,682.87)
have incurred. Of the various items comprising all those costs, only one is
excluded.
The one item that the Moriartys have not justified is $256.95 to stay at the
Sofitel Hotel before the Federal Circuit oral argument. Because their attorney lives
6
The choice to reduce the number of hours by ten percent is not likely to change. Unlike
the finding for a reasonable hourly rate on which an updated finding is anticipated, the finding
for the number of hours probably will remain in the determination of final fees. The attorneys
probably cannot provide better information today about their activities that took place years
earlier. If the attorneys have better information, then they should have submitted it with the
invoices.
9
relatively close to Washington, DC, where the Federal Circuit held argument,
alternatives to staying in a relatively expensive hotel were available. The attorney
has not explained why a paying client would pay this cost.
The remaining items, including Dr. Shafrir’s invoice, are reasonable and
adequately documented. The Moriartys are awarded their costs personally incurred
($1,250). The Moriartys are also awarded $20,425.92 in attorneys’ costs.
Conclusion
An interim award of attorneys’ fees and costs is appropriate at this time.
The Moriartys are awarded $94,824.00 in attorneys’ fees and a total of $21,675.92
in costs.
Accordingly, the award shall be paid as follows:
a. A lump sum of $115,249.92 in the form of a check made payable to
petitioners, and Clifford Shoemaker, of Shoemaker, Gentry &
Knickelbein, for interim attorneys’ fees and other litigation costs
available under 42 U.S.C. § 300aa-15(e).
b. A lump sum of $1,250.00, payable to petitioners, Marie Louise and
Stephen Moriarty, for costs they incurred in pursuit of their petition.
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. The Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
S/ Christian J. Moran
Christian J. Moran
Special Master
10