Wood v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
A.W., a minor, by and through her parent *
and natural guardian, VANESSA WOOD, * No. 15-1568V
* Special Master Christian J. Moran
Petitioner, *
* Filed: January 11, 2019
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * attorney billing judgment; Dr. Vera Byers
*
Respondent. *
*************************
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner;
Camille M. Collett, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION ON FEES AND COSTS1
On July 10, 2018, petitioner Vanessa Wood moved for final attorneys’ fees and costs.
She is awarded $64,165.51.
* * *
Ms. Wood alleged that her daughter, A.W., suffered from atopic dermatitis and food
allergies as a result of a diphtheria-tetanus-acellular pertussis (DTaP) vaccine administered on
January 2, 2013. Ms. Wood, acting as A.W.’s legal representative, brought this action seeking
compensation for her daughter’s injuries pursuant to the National Childhood Vaccine Injury
Compensation Program, codified at 42 U.S.C. § 300aa−10 through 34 (2012).
Ms. Wood filed her petition on December 23, 2015. On April 22, 2016, the Secretary
filed his Rule 4(c) report, arguing that compensation was not appropriate because the record
failed to establish a causal link between the vaccination and the injuries alleged. Resp’t’s Rep. at
1
Because this decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the decision will
be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material before posting the decision.
11. During the course of the next year, both Ms. Wood and the Secretary filed reports from their
respective expert witnesses. A two-day hearing was held on January 24-25, 2018. The
undersigned found that Ms. Wood did not meet her burden of proof under the Vaccine Act and
denied compensation. Decision, issued Feb. 1, 2018, 2018 WL 1150730. In the decision
denying compensation, the undersigned noted that petitioner’s expert, Dr. Vera Byers,
undermined her own client’s case by failing to exercise due care in executing her role as an
expert witness. Id. at 6-10.
Ms. Wood now seeks reimbursement of $97,427.59 in fees and costs she incurred in the
course of bringing her claim for compensation. Her motion includes a request for $18,800 in
costs for Dr. Byers’ expert reports and testimony. In his response to petitioner’s motion for fees
and costs, the Secretary stated 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 July 24, 2018, at 2.
However, the Secretary did not present any specific objections to the content of the fees motion,
instead deferring to the undersigned to determine a reasonable fee award. Id. at 3.
Although compensation was denied, petitioners who bring their petitions in good faith
and who have a reasonable basis for their petitions may be awarded attorneys’ fees and costs. 42
U.S.C. § 300aa–15(e)(1). Here, the undersigned finds that Ms. Wood acted in good faith and
that the evidence submitted in this case is sufficient to conclude that she had a reasonable basis
to bring the petition. Thus, Ms. Wood is eligible for an award of attorneys’ fees and costs. The
only question at bar is whether the requested amount is reasonable.
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 & Human Servs., 139 Fed.
Cl. 238 (2018).
I. Attorneys’ Fees
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 & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, the 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
produces a reasonable amount, the second step is unnecessary.
A. Reasonable Hourly Rate
Ms. Wood requests compensation for work performed by three attorneys: Paul Brazil,
Amy Senerth, and Bridget McCullough. For Mr. Brazil, petitioner requests an hourly rate of
$255 for 2015; $275 for 2016; $300 for 2017; and, $317 for 2018. For Ms. Senerth and Ms.
McCullough, petitioner requests an hourly rate of $225 for 2017, and $233 for 2018. In addition,
the attorneys utilized the services of a paralegal at an hourly rate of $125.
2
The Muller Brazil firm, based in Dresher, PA, has been previously awarded forum rates
in the Vaccine Program. See, e.g.,Tyree v. Sec'y of Health & Human Servs., No. 16–586V, 2017
WL 4707720 (Fed. Cl. Spec. Mstr. Mar. 23, 2017); Griffis v. Sec'y of Health & Human Servs.,
No. 15–483V, 2017 WL 694538 (Fed. Cl. Spec. Mstr. Jan. 25, 2017); Colagreco v. Sec'y of
Health & Human Servs., No. 14–465V, 2016 WL 6518579 (Fed. Cl. Spec. Mstr. Sept. 26, 2016).
The undersigned sees no reason not to award forum rates here.
The hourly rates requested for Mr. Brazil for 2015-17 are consistent with rates the
undersigned has previously awarded him. See Arnold v. Sec'y of Health & Human Servs., No.
15-534V, 2017 WL 3165486, at *2 (Fed. Cl. Spec. Mstr. June 22, 2017). Mr. Brazil’s 2018 rate
is consistent with rates found to be reasonable by the Chief Special Master. See Marino v. Sec'y
of Health & Human Servs., No. 16-0622V, 2018 WL 4611637, at *1 (Fed. Cl. Spec. Mstr. June
22, 2018). Likewise, Ms. Senerth’s rates are consistent with rates previously awarded to her by
the Chief Special Master. See Roetgerman v. Sec'y of Health & Human Servs., No. 17-0244V,
2018 WL 4907033, at *1 (Fed. Cl. Spec. Mstr. July 3, 2018). Ms. McCullough’s experience
appears similar to Ms. Senerth’s and accordingly the undersigned finds Ms. McCullough’s rates
reasonable as well. The paralegal’s rate is also reasonable.
B. Reasonable Number of Hours
The Secretary did not directly challenge any of the requested hours as unreasonable.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y
of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
As a general matter, the number of hours billed by the attorneys and paralegals in this
case struck the undersigned as high relative to cases of similar complexity. Based upon a review
of the timesheets, this general impression may be the result of Mr. Brazil and his firm
consistently inflating billing entries and requesting reimbursement for non-compensable work.
As an example, it appears that Mr. Brazil and his paralegal routinely considered 0.2
hours to be the minimum quantity of time for communications. See, e.g., Pet’r’s Fees Mot. at 5
(billing for 0.2 attorney hours for each of seven back-to-back emails on the same day regarding
photos submitted by petitioner). Considering the nature and frequency of the correspondence,
10-15 minutes as a minimum for the sending and receipt of emails appears high. See Rasmussen
v. Sec'y of Health & Human Servs., No. 91-1566V, 1996 WL 752289, at *2 (Fed. Cl. Spec. Mstr.
Dec. 20, 1996) (noting that counsel’s practice of billing in increments not smaller than a quarter
hour could result in overbilling).
Even more troubling, the billing records show that Mr. Brazil routinely billed 0.1-0.2
hours for review of minute entries.2 As any practitioner in this program knows, the content is
2
Mr. Brazil and his associates also billed for review of other standard notices and
receipts from the court, such as receipts confirming that a filing had been received or scheduling
orders that summarized the dates to which the parties had agreed during a preceding status
conference. This type of administrative work is generally not compensable. See, e.g., Abbott v.
Sec'y of Health & Human Servs., No. 10-485V, 2017 WL 2226614, at *8 (Fed. Cl. Spec. Mstr.
3
boilerplate with the only variables being the date, the length of the proceeding, the location of the
proceeding, and whether a link is provided for the attorney to obtain a transcription of the
proceeding in the case the proceeding was recorded. An example is illustrative: “Minute Entry
for proceeding held in Chambers (telephonic) on 12/19/2017 before Special Master Christian J.
Moran: Status Conference held on 12/19/2017. [Total number of days of proceeding: 1].
Proceeding was not officially recorded.” The number of words in this minute entry is 33. An
average attorney should read the entry in far less than one minute’s time. Thus, billing 6-12
minutes for evaluating the entry seems excessive.
The undersigned ordered Mr. Brazil to show cause for the billing entries pertaining to the
review of the minute entries. In his response to the show cause order, Mr. Brazil stated that it
took him about thirty seconds to read each entry, and that he took “no issue with removing
entries for review of minute entries.” Pet’r’s Resp., filed Oct. 8, 2018.
Based on Mr. Brazil’s response, it appears that he does not understand the problem.
According to the Supreme Court, when counsel submits an application for attorneys’ fees, the
attorney should exercise “billing judgment.” See Hensley v. Eckerhart, 461 U.S. 424, 434
(1983) (citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in
the original) (“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”)). But, charging 0.1 hours, let alone 0.2
hours, for a de minimis task that took, by Mr. Brazil’s recollection, approximately 30 seconds is
incompatible with billing judgment. It seems difficult to accept that an attorney would charge a
fee-paying client (and the fee-paying client would accept a charge) for the time the attorney
spent on such a small task. See Van Vessem v. Sec'y of Health & Human Servs., No. 11-132V,
2018 WL 3989517, at *6 (Fed. Cl. Spec. Mstr. July 3, 2018) (“[t]he undersigned finds that
reviewing minute entries, notices of receipt, and informal communication notices are simple
tasks. Therefore, the undersigned finds that billing even .10 hours for each such entry is
excessive”); Weaver v. Lighthouse Recovery Assocs., LLC, No. 13-CV-01078-CMA-MJW,
2013 WL 6096137, at *2 (D. Colo. Nov. 19, 2013) (upon review of an attorney’s invoice
containing charges for reviewing minute entries, stating “Plaintiff's counsel is instructed to cease
charging for administrative tasks at the attorney's hourly rate and to cease overcompensating
himself for tasks that clearly require less time to complete”); see also Hensley, 461 U.S. at 434
The evident lack of billing judgment, in turn, raises larger questions about the fee
invoice. Does Mr. Brazil’s decision to bill 6-12 minutes for the review of these minute entries
reflect a systemic problem with his billing? If Mr. Brazil saw no problem billing six minutes for
30 seconds of work, did he also bill 12 minutes for six-and-a-half minutes of work? Based on
the general impression that the total number of hours billed appears high and clear evidence that
Mr. Brazil inflated his billing entries, it seems reasonable to conclude that it may be Mr. Brazil’s
Apr. 26, 2017), mot. for rev. denied, 135 Fed. Cl. 107 (2017). However, the focus in the text
above is the minute entries since they provide an especially egregious example of the problem
with the submitted bill.
4
practice to “round-up.” Given that there were nearly 500 billing entries in this case, the effect of
that “rounding-up” becomes substantial.3
Excessive billing is not consistent with superior quality legal work. Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566-67 (1986). While Mr.
Brazil and his firm have earned a reputation of doing good work and obtaining good outcomes
for their clients, the billing practices in this case may undermine that reputation. Therefore, Mr.
Brazil is expected to exercise more appropriate judgment about his invoices going forward.
In addition to inflated billing entries, petitioner has requested reimbursement of non-
reimbursable costs related to travel. First, Mr. Brazil’s paralegal billed for time related to
booking travel for the attorneys. See Pet’r’s Fees Mot. at 12. Time spent booking travel, though
it may be performed by a paralegal (or even an attorney), should not be billed at paralegal rates
since it constitutes the type of work performed by an administrative assistant or secretary. See
Bratcher v. United States, 136 Fed. Cl. 786, 797, reconsideration denied, 137 Fed. Cl. 645 (2018)
(declining to reimburse for work even at paralegal rates when plaintiffs failed to demonstrate that
the work was not “largely clerical or secretarial in nature”). In addition, Mr. Brazil and his
associates billed their full hourly rate for their time spent travelling. See Pet’r’s Fees Mot. at 15.
In the Vaccine Program, travel time is typically reimbursed at 50% of the established billing rate.
Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 788 (2010) (citing Rodriguez v.
Sec'y of Health & Human Servs., No. 06–559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr.
Jul. 27, 2009); Kuttner v. Sec'y of Health & Human Servs., No. 06–195V, 2009 WL 256447, at
*10 (Fed. Cl. Spec. Mstr. Jan. 16, 2009); Carter v. Sec'y of Health & Human Servs., No. 04–
1500V, 2007 WL 2241877, at *6 (Fed. Cl. Spec. Mstr. Jul. 13, 2007); English v. Sec'y of Health
& Human Servs., No. 01–61V, 2006 WL 3419805, at *12–13 (Fed. Cl. Nov. 9, 2006)).
For the aforementioned reasons, the undersigned finds a 20% reduction in the total
number of hours billed to be appropriate. This reduction, in the undersigned’s estimation of the
billing records as they compare to the complexities of this case, will account for the excessive
and ineligible hours billed by Mr. Brazil’s firm. Mr. Brazil is warned that if future fee requests
contain this same unreasonable billing, then his invoice may be reduced further. See Valdes v.
Sec'y of Health & Human Servs., No. 99–310V, 2009 WL 1456437, at *4 (Fed. Cl. Spec. Mstr.
Apr. 30, 2009) (warning attorney that penalties may be necessary to motivate him to submit
requests for fees that do not contain “erroneous, duplicative, or unreasonable entries”), mot. for
rev. granted in non-relevant part and denied in non-relevant part, 89 Fed. Cl. 415 (2009). Ms.
Wood is accordingly awarded $57,537.12 in attorneys’ fees.
II. Costs
In addition to seeking attorneys’ fees, Ms. Wood requests reimbursement of $25,506.19
in costs. Pursuant to General Order No. 9, she has confirmed she did not individually incur any
costs and that all costs were borne by her attorney. Ms. Wood’s request includes costs associated
3
Assuming that Mr. Brazil always rounded up and that the amount of time actually spent
was evenly distributed (in reality, the distribution centers towards the lower number of hours
billed), over the course of 500 entries there would be approximately $6,100 in excess billing.
5
with travel, hotel, taxis, copying, and acquiring medical records. These costs are reasonable and
are awarded in full.
However, the vast majority of Ms. Wood’s request ($18,800.00) is for Dr. Vera Byers’
expert reports and expert testimony in this case. The undersigned finds this expense
unreasonable based upon Dr. Byers’ performance in this case. Accordingly, it is not
compensable.
Dr. Byers has impressive qualifications. Dr. Byers was awarded an M.D. from UCSF
and a Ph.D. from UCLA. Exhibit 10 at 1. The undersigned has previously noted the value that
physician-scientists like Dr. Byers may bring to the Vaccine Program. See Dominguez v. Sec'y
of Health & Human Servs., No. 12-378V, 2018 WL 3028975, at *4 (Fed. Cl. Spec. Mstr. May
25, 2018). Dr. Byers is board certified in internal medicine and has taught occasionally at UCSF
over a period of 30 years, until 2008. Exhibit 10 at 1, 4. During this time, Dr. Byers has done
research on the development of vaccines against poison oak and dust mite allergies. As the
result of her work, she has been elected to the American Academy of Allergy and Immunology.
Id. at 2. She is also well-published. Id. at 1.4
Though Dr. Byers has bona fides as a physician and a scientist, her reputation as an
expert witness is not impressive. As the Secretary argued in his pre-trial brief, special masters in
the Vaccine Program have repeatedly found that she routinely speaks outside of her area of
expertise and has been loose with the facts that are predicates to her opinion. Even when Dr.
Byers is testifying within her specialty, she has relied upon questionable logic and ignored well-
established science when that science contradicts her opinion. See Resp’t’s Br., filed December
22, 2017, at 14-16 (citing half a dozen cases where special masters or Court of Federal Claims
judges criticized Dr. Byers for presenting testimony “missing a strong connection to the facts”
and that “strayed into matters beyond her expertise.” She was also characterized as “not a
particularly good expert witness” who was “disjointed and often unclear”). To be sure, in some
instances Dr. Byers has provided helpful testimony that advanced a petitioner’s claims. See
Pet’r’s Br. at 5-6 (citing a special master who characterized Dr. Byers’ testimony as credible and
plausible, and another characterizing it as pertinent and helpful). However, those instances occur
less frequently, and are outnumbered by instances in which she has been criticized.
Unfortunately for Ms. Wood, Dr. Byers’ work in this case was of poor quality. The
undersigned elucidated many of the issues with Dr. Byers’ work product in the bench ruling.
Some of those issues were also memorialized in the written decision denying Ms. Wood
compensation. These included:
4
At the beginning of Dr. Byers’ curriculum vitae (C.V.), she states that she has
“published over 300 articles, reviews and abstracts in peer reviewed medical journals.” Exhibit
10 (C.V.) at 1. However, the C.V. actually lists 138 articles with the most recent publication
occurring in 2013. Id. at 14. Although Ms. Wood had been ordered to file an updated C.V. for
Dr. Byers, Ms. Wood submitted an old C.V. and Dr. Byers testified that since 2013, she has
published three more articles. Tr. 140-41.
6
1. Not knowing the contents of the vaccine. In her first report, Dr. Byers initially stated that
the panel of vaccinations that A.W. received contained egg. Exhibit 7 at 6. Dr. Byers
used this assertion as the foundation for a theory connecting the vaccination to A.W.’s
egg allergy. In his first report, the Secretary’s expert, Dr. MacGinnitie, stated in bold
“None of the vaccines that A.W. was exposed to at 2 months contain egg.” Exhibit A at
4. Dr. Byers responded to Dr. MacGinnitie’s report, yet did not address this central point.
See exhibit 8. Despite this, Ms. Wood framed her theory of the case in her pre-trial brief
around the premise that “vaccines contain proteins such as chicken egg.” Pet’r’s Br.,
filed Nov. 15, 2017, at 8. In the pre-trial conference, the undersigned had the following
dialogue with petitioner’s attorney:
Special Master: You say in your brief, page 8, that the vaccine panel
administered to A.W. contained both egg and milk proteins. That is not
readily apparent to me. That may be true. But, that doesn’t seem clear to
me.
Mr. Brazil: That is something that Dr. Byers was adamant about and told
me and will testify about. She says that they do contain those ingredients.
Special Master: Okay.
Ms. Wood was subsequently instructed to have Dr. Byers explain the basis of her
knowledge about the manufacturing process of vaccines. In response, Ms. Wood filed
the CDC’s list of vaccine excipients. Exhibit 19. However, the CDC list appeared to
confirm Dr. MacGinnitie’s statement and, accordingly, showed that Dr. Byers’ initial
assertion was false. However, it was not until the morning of the first day of the hearing
that petitioner stipulated to the fact that the vaccine did not contain egg. Thus, Dr. Byers
constructed her theory upon a false premise—that the relevant vaccines contain egg—that
Dr. Byers could have checked easily and apparently did not. This lack of attention to a
central part of her theory reflects poorly on Dr. Byers’ work as an expert witness.
2. Introduction of new theories during the hearing. Before the order for pre-trial briefs was
issued, Dr. Byers had written two expert reports. Exhibits 7, 8. In leading up to the
hearing, the parties were ordered to confirm that their experts had disclosed all their
opinions, the bases for their opinions, and any articles on which the expert was relying.
See order, issued July 12, 2017. Dr. Byers then wrote another expert report, still
indicating that A.W. reacted to eggs in vaccines. Exhibit 11 at 3. But, as demonstrated
above, Dr. Byers could not proceed on a theory built upon the assertion that the vaccine
contained egg. So, at the hearing, Dr. Byers stated that the DTaP vaccine given to A.W.
at two months contained beef residue. Dr. Byers’ shift from egg to beef as the inciting
allergen was not anticipated. This last-minute shift in theories further undermined Dr.
Byers’ credibility. As noted in the previous paragraph, this shift was completely the
consequence of Dr. Byers’ inability, or unwillingness, to do her due diligence despite
prodding from respondent and the undersigned that she might be incorrect in her factual
assumptions.
7
3. Not disclosing an opinion regarding eczema in her initial report. Dr. Byers’ first report
presented the opinion that the vaccine caused A.W. to develop food allergies. Exhibit 7
at 7. This report was incomplete because Ms. Wood’s claim was that the vaccines caused
A.W. to develop food allergies and eczema. Ms. Wood was ordered to present an
opinion from Dr. Byers that addressed both the food allergies and the eczema and Dr.
Byers presented this opinion in her second report. See exhibit 8. However, the absence
of any discussion about eczema in Dr. Byers’ first report was a material omission.
4. Not being able to respond to the epidemiologic studies Dr. MacGinnitie cited. Dr.
MacGinnitie challenged Dr. Byers’ theory that vaccines cause food allergies and / or
eczema by citing at least four epidemiologic studies in his first report. See exhibit A.
About two months later, Dr. Byers responded with a two-page supplemental report, but
did not comment on the epidemiologic studies. At the hearing, when Dr. Byers was
asked to address the epidemiologic studies, she stated that she could not because she
would need to read those studies. Dr. Byers’ lack of a meaningful response reflects
inadequate preparation both when she wrote her second report and when she prepared to
testify. This lack of preparation significantly undermined Ms. Wood’s ability to obtain
compensation.
5. Introducing an opinion about cytokines during the hearing. As discussed above in
connection with her theory, Dr. Byers needed to present a persuasive opinion that
differentiated the effects of the trace amounts of beef to which A.W. was exposed
through vaccination from the effects of the larger amounts of beef to which she was
exposed through breast milk. At hearing, Dr. Byers asserted that the vaccination
stimulated the production of cytokines and the cytokines effectively “kick-started” the
allergic process. Yet, none of the three pre-trial reports from Dr. Byers discussed
cytokines. See exhibits 7, 8, and 11. Due to the lack of disclosure, the Secretary could
have objected to the introduction of this opinion. See Simanksi v. Sec’y of Health &
Human Servs., 671 F.3d 1368, 1382 (Fed. Cir. 2012) (stating “the special master can
order the experts to confine their testimony to the issues addressed in their reports”).
6. Relying upon a questionable journal and an inability to defend her contradicted
representation of a report from the Institute of Medicine. To support her argument that
residues from the process of manufacturing vaccines can cause food allergies, Dr. Byers
extensively quoted an article urging the Food and Drug Administration to require
warning labels. Exhibit 8 at 1-2. That article stated that the Institute of Medicine had
“confirmed that food proteins in vaccines cause food allergy, in its 2011 report on
vaccine adverse effects.” Exhibit 15 at 1. However, as Dr. MacGinnitie noted, this
article was published in a disreputable journal that publishes articles without peer-review
in order to collect the submission fees. Exhibit C at 1-2. Articles published in these
“pay-to-play” journals do not deserve the deference given to peer-reviewed scientific
literature and adjudicators must be careful before relying on the contents of these articles.
See McCabe v. Sec'y of Health & Human Servs., No. 13-570V, 2018 WL 3029175, at
*54 (Fed. Cl. Spec. Mstr. May 17, 2018). Nevertheless, in a subsequent report, Dr. Byers
defended the journal and stated that the references in the article “are all correct.” Exhibit
21 at 2. Relying on Dr. Byers’ use of this article, petitioner cited it twice in her pre-trial
8
brief. See Pet’r’s Br., filed Nov. 15, 2017, at 9, 14. However, when Dr. Byers was asked
to show where the IOM stated that food proteins in vaccines cause food allergies, Dr.
Byers said she did not know. Given the value special masters place on IOM reports and
the pre-hearing dispute over the validity of this statement, Dr. Byers should have been
prepared to support her assertions. Dr. Byers’ inability to do so reflects poorly on her
preparation. It was only at the hearing, after being presented with information about the
journal’s bona fides, that Dr. Byers acknowledged that relying on the journal was a
mistake. Dr. Byers’ failure to evaluate the source of her material before presenting it into
the record was concerning.
See Decision, issued Feb. 1, 2018, at 6-9 (changes made without notation).
Each of these deficiencies are significant. But, among all the problems, the worst is the
assertion that the DTaP vaccine contains egg. Dr. Byers’ assertion became the foundation for
Ms. Wood’s theory. It was critical to the outcome. However, it was wrong.
In the decision denying compensation, the undersigned noted that, for each of these
issues, the deficiency was not the result of the fact that the Secretary provided a more qualified
or credible expert. Id. at 9. Instead, the deficiencies reflected Dr. Byers’ failure to do the work
properly. As noted in the decision, Dr. Byers’ failure to confirm that her opinions were based on
correct facts undermined petitioner’s case. Id. This raises the question of whether Dr. Byers
should be compensated for the work at all.
When there are questions about experts’ work quality, special masters will sometimes
find it reasonable to reduce an experts’ hourly rate or adjust the number of hours billed to reflect
the quality of the work produced. See, e.g., Dominguez, 2018 WL 3028975, at *10 (citing
Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 206 (2009) (noting that the “nature,
quality, and complexity of the information provided” can inform evaluations of expert fees)).
These types of adjustments can reflect the fact that paying the experts without the reduction
would compensate them disproportionately to the quality of the services provided.
However, due to the many significant deficiencies, identified above, a simple reduction
does not appear to be the correct approach here. To compensate Dr. Byers, even in part, for the
work product she supplied in this case would require the undersigned to conclude that it is
reasonable to pay Dr. Byers any amount of money for the work she produced. See McIntosh,
139 Fed. Cl. at 248 (“The Vaccine Act plainly requires a Special Master to determine that the
fees and costs requested by a petitioner's attorney were reasonable before making an award”). In
evaluating whether an expense reaches the “reasonable” standard, the Federal Circuit has
endorsed a special master’s evaluation of whether a hypothetical client would pay for the
expenses being submitted for compensation to the Vaccine Program. See Riggins v. Sec'y of
Health & Human Servs., 406 F. App'x 479, 484 (Fed. Cir. 2011). In the undersigned’s
estimation, a hypothetical client who received the services provided by Dr. Byers to Ms. Wood
in this proceeding would conclude that Dr. Byers failed to do the work she was retained to
perform. As a result, a hypothetical client would reasonably dispute her (or his) obligation to
pay Dr. Byers any portion of the negotiated fee.
9
The undersigned recognizes that deciding that it would be unreasonable to provide any
compensation for Dr. Byers’ work is unusual. However, it is not without precedent. See Masias
v. Sec'y of Health & Human Servs., No. 99-697V, 2009 WL 1838979, at *39 (Fed. Cl. Spec.
Mstr. June 12, 2009), mot. for review denied, No. 99–697V, slip op. at 11 (Fed. Cl. Dec. 10,
2009), aff'd, 634 F.3d 1283 (Fed. Cir. 2011); Sabella v. Sec'y of Health & Human Servs., No. 02-
1627V, 2008 WL 4426040, at *36 (Fed. Cl. Spec. Mstr. Sept. 23, 2008), mot. for rev. denied in
relevant part, 86 Fed. Cl. at 221.5 Dr. Byers is not new to the Vaccine Program, and she has had
the opportunity to learn what is expected of her. As noted in the decision denying compensation,
Dr. Byers earns half of her income through work as an expert. Decision, issued Feb. 1, 2018, at
6. And yet, despite numerous warnings on the part of special masters in the Vaccine Program,
Dr. Byers has continued to provide testimony that is substandard. Continuing to note that Dr.
Byers submits substandard work-product and paying her for that work-product appears to be
internally inconsistent.
Whether the unreimbursed cost for Dr. Byers ultimately falls upon Dr. Byers or Mr.
Brazil is not material.6 Mr. Brazil shares some responsibility. As noted in the decision denying
compensation, Mr. Brazil should have done more to ensure that the opinion being provided by
his expert was facially logical and consistent with the facts. Decision, issued Feb. 1, 2018, at 6.
Mr. Brazil’s failure to do so here is even more notable given the decisions criticizing Dr. Byers’
opinions. Dr. Byers’ performance as an expert is something Mr. Brazil was, or should have
been, aware of before Dr. Byers was ever retained in this case. If the present decision causes
future attorneys to monitor Dr. Byers’ work product more closely, then that oversight would also
be a benefit to all participants in this Program.
The extreme deficiencies with Dr. Byers’ work in this case should make this decision
exceptional.7 The undersigned expects that qualified experts who present supported, if
ultimately unpersuasive, opinions will continue to receive reasonable compensation
commensurate with their experience and training. While the undersigned appreciates that a
decision to not compensate an expert for his or her participation could potentially chill the
participation of other experts, it must be emphasized that the bar set here for Dr. Byers’ is low.
Dr. Byers has been warned repeatedly that her work product falls far short of what is expected.
Dr. Byers was even warned early in this very proceeding that some of her reports just did not
make sense based on the facts in the record. These warnings were ignored.
5
The undersigned also recognizes that this decision could make petitioners less interested
in retaining Dr. Byers. Any hesitation is not necessarily a bad thing.
6
Mr. Brazil may not charge Ms. Wood any fee for Dr. Byers’ work. See 42 U.S.C.
§ 300aa-15(e)(3); Beck v. Secʼy of Health & Human Servs., 942 F.2d 1029 (Fed. Cir. 1991);
Pestka v. Secʼy of Health & Human Servs., No. 06-708V, 2015 WL 11109789 (Fed. Cl. Spec.
Mstr. Mar. 25, 2015).
7
If Dr. Byers presents reasonable and well-grounded opinions, the undersigned will not
hesitate to compensate Dr. Byers for her work in future cases.
10
Compensating Dr. Byers for her work in this case creates a greater systemic hazard for
this Program than not doing so. A system in which experts would be paid substantial amounts of
money, regardless of the quality of their opinion, may harm future petitioners whose cases would
be delayed as special masters resolved other weak cases buttressed by baseless expert opinions,
and / or who may themselves, unwittingly, turn to an expert like Dr. Byers despite her past
performance in this Program. In the undersigned’s experience in the Vaccine Program, both
hazards are not hypothetical concerns, but real issues that are frustrating Congress’s objectives
for the Program.
Accordingly, for the aforementioned reasons, the undersigned finds the expenses
associated with Dr. Byers’ testimony to be unreasonable and thus not compensable under the
Vaccine Act.
III. Conclusion
Accordingly, petitioner is awarded:
A lump sum of $64,165.51 in the form of a check made payable to petitioner and
petitioner’s attorney, Paul R. Brazil.
This amount represents reimbursement for 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 shall enter judgment in accordance herewith.8
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
8
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint
filing of notice renouncing the right to seek review.
11