OFFICE OF SPECIAL MASTERS

No. 90-2065V

(Filed: May 14, 1999)

* * * * * * * * * * * * * * * * * * * * * * * * * * *

*
BRYAN T. RUCKER, SR. and MARY S. *
RUCKER as Legal Representatives of *
BRYAN T. RUCKER, *
*
*
Petitioners, * TO BE PUBLISHED
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*

* * * * * * * * * * * * * * * * * * * * * * * * * * *

*



Andrew Dodd, Esq., Torrance, California, for petitioners.

Michael Milmoe, Esq., United States Department of Justice, Washington, D.C., for respondent.



ATTORNEY'S FEES & COSTS DECISION

ABELL, Special Master:

PROCEDURAL BACKGROUND

On 28 September 1990, petitioners filed for compensation under the National Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act)(1) for the alleged vaccine-related injury of Bryan Rucker. On 22 January 1999, petitioners filed a motion for dismissal with prejudice. Judgment thereon was entered on 19 February 1999, dismissing the petition with prejudice. On 2 March 1999, petitioners filed notice electing to reject the court's judgment and to file a civil action.

On 4 February 1999, petitioners filed an application for attorney's fees and costs. The petitioners requested $33,795.00 in attorney's fees, $922.50 in paralegal fees, and $5,393.02 in costs for a total request of $40,110.52. The petitioners then reduced the requested amount to $30,000.00 because 15(b) limits fees and costs to $30,000.00 for pre-act cases. According to Vaccine Rule 20, the respondent had 14 days, until 18 February 1999, to file any objections to the petitioners' application. A status conference was held on 17 February 1999 to discuss the issues raised by this fee petition. During the status conference, respondent notified the court that respondent had some objections to the fee application. The court informed the respondent that the deadline for filing objections was the next day. On 8 March 1999, the court held another status conference to discuss the fee petition because no objections had been filed. Several off-the-record statements were made and petitioners informed the court that on the day of the last status conference they had given respondent an extension to file objections against their fee petition. Later that day, respondent filed her objections to petitioners' application for attorney's fees and costs. Respondent urged the court to award the petitioners only $15,757.06 for attorney's fees and costs. On 17 March 1999, the court issued an unpublished decision awarding petitioners the $30,000.00 limit for attorney's fees and costs.

On 2 April 1999, the respondent called the court and reqested an emergency status conference. On 5 April 1999, the court held a status conference. Respondent informed the court that she disagreed with the rate increase for petitioners' counsel. Other off-the-record discussions took place and the respondent was told by the court that the court was not inclined to issue a new decision because it would delay payment to the petitioners. The deadline for respondent to file an appeal was 16 April 1999. On 13 April 1999, both parties requested another emergency status conference. A status conference was conducted on 14 April 1999. Several off-the-record comments were made by the parties. At the conclusion of the status conference, the court filed an order (dated 15 April 1999) which withdrew its 17 March 1999 decision and authorized respondent to file an additional brief by 19 April 1999. On 19 April 1999, respondent filed a Supplemental Opposition to Petitioners' Application for Attorney's Fees and Costs. Today, the court files a second attorney's fees and costs decision.

INTRODUCTION

The court may award attorney's fees and costs if the court determines the petition was brought "in good faith and there was a reasonable basis for the claim for which the petition was brought." 15(e)(1). The good faith prong of the test is subjective; therefore, a petitioner must have honestly believed that a legitimate claim for compensation existed. The reasonable basis prong is objective and does not depend on petitioner's state of mind. Any fee award is within the special master's discretion.

Even in a case that does not result in an award of compensation to the petitioner for vaccine injuries, as in this case, the United States Court of Appeals for the Federal Circuit has held that a petitioner under the Vaccine Act may still seek compensation for fees and costs. Saunders v. Secretary of HHS, 25 F.3d 1031 (Fed. Cir. 1994).

After an extensive review of the records, it is evident that petitioners honestly believed they would present proof to substantiate a vaccine-related injury. In addition, this court finds that petitioners had a reasonable basis for bringing the claim. Upon careful scrutiny of the file, the court finds that the claim was brought with a reasonable basis and in good faith. Therefore, this court finds that petitioners are entitled to reasonable attorney's fees and costs.

ANALYSIS

Petitioners request $33,795.00 in attorney's fees for Mr. Andrew Dodd -- broken down as 147.4 hours at an hourly rate of $225.00 and 6.3 hours of travel time at an hourly rate of $100.00. They request $922.50 in paralegal fees for Mrs. Aurea Scotti -- broken down as 12.3 hours at $75.00 per hour. Petitioners also request $5,393.02 for costs. The grand total is $40,110.52.



I. FEES

The lodestar method is employed by this court to determine reasonable attorney's fees. See Blanchard v. Bergerson, 489 U.S. 87 (1989); Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). "The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." 489 U.S. at 94 (quoting Blum, 45 U.S. at 888). The court is given the discretion, however, to adjust the initial estimate if "a fee charged is out of line with the nature of the services rendered." Pierce v. Underwood, 487 U.S. 552, 581 (1988) (Brennan, J., concurring).

To determine the number of hours reasonably expended in a particular case, the court must "exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice is ethically obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434. The reasonableness of the attorney fee rate is "to be calculated according to the prevailing market rates in the relevant community . . . ." Blum, 465 U.S. at 896. "The burden is on the fee applicant to produce satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience, and reputation." Id. at 896 n.11.

A. Attorney Hourly Rate:

Mr. Andrew Dodd requests compensation for his time at an hourly rate of $225.00. Respondent objects to the requested amount and recommends an hourly rate of $150.00. In support of his request, Mr. Dodd filed (1) an autobiographical summary of his skills and experience in vaccine-related litigation; (2) a declaration from Anthony J. Ward, Esq., attesting that an hourly rate of $250.00 is reasonable for an attorney of Mr. Dodd's experience practicing in Los Angeles County; (3) a declaration from John R. Brydon, Esq., attesting that an hourly rate of $250.00 is reasonable for an attorney of Mr. Dodd's experience practicing vaccine litigation in the Los Angles area; (4) a declaration from Jean A. Hobart, Esq., attesting that a reasonable rate for Mr. Dodd is $250.00 per hour; and (5)(6) the 1996 and 1998 articles by the National Law Journal titled "A Firm-by-Firm Sampling of Billing Rates Nationwide" which indicate an average billing rate of $275.00 for partners in large and small law firms in Los Angeles. In addition, Mr. Dodd cites two recent attorney's fees decisions. In 1997, he was awarded $200.00 per hour. Plott v. Secretary of HHS, No. 92-0633V, 1997 WL 842543 (Fed. Cl. Spec. Mstr. Wright, April 23, 1997). In 1998, he was awarded $225.00 per hour. Kain v. Secretary of HHS, No. 95-158V (Fed. Cl. Spec. Mstr. French, July 30, 1998)(unpublished).(2)

In support of the Secretary's request, the respondent did not file any affidavits or declarations from attorneys who practice in Los Angeles County, nor any articles addressing the billing rates of attorneys in the Los Angeles area. In short, the respondent did not file any evidence. The respondent did cite two old attorney's fees decisions. In 1995, Mr. Dodd was awarded $150.00 per hour, Depelchin v. Secretary of HHS, No. 90-1751V (Fed. Cl. Spec. Mstr. Abell, April 28, 1995)(unpublished), and in 1996 he was again awarded $150.00 per hour. Krel v. Secretary of HHS, No. 93-462V (Fed. Cl. Spec. Mstr. Abell, March 11, 1996)(unpublished).(3)

Based on the application for attorney's fees and costs, the respondent's objections, and the record, the undersigned awards Mr. Dodd an hourly rate of $225.00. The court established Mr. Dodd's rate by comparing the evidence and case citations filed with the court. Petitioners filed six (6) substantive pieces of evidence. The respondent did not file any evidence. Petitioners cited two recent cases. Respondent cited two old cases After considering the evidence and cases, the court decided that petitioners' arguments were more persuasive. The court was very impressed with the special master's reasoning in the case of Kain v. Secretary of HHS, No. 95-158V (Fed. Cl. Spec. Mstr. French, July 30, 1998)(unpublished) in which Mr. Dodd was awarded the hourly rate of $225.00. In addition, the court was very impressed with Mr. Dodd's skilled representation in this case and he deserves a commensurate hourly rate. Also, after his expert witness determined that there was no vaccine-related injury, Mr. Dodd voluntarily dismissed the case instead of continuing to litigate the matter. This honesty reduced the number of hours he could bill for the case.

The court will note that the rate established for Mr. Dodd does not apply to attorneys who have less experience than him or who live in less expensive geographical areas.

B. Attorney Hours:

Mr. Dodd requests 147.4 hours at his regular hourly rate and 6.3 hours at his travel time rate. The respondent recommends that Mr. Dodd be reimbursed for only 80 hours at his regular rate and no hours at his travel time rate. The basis for respondent's objection is the number of hours Mr. Dodd spend reviewing the file and reviewing medical records. Respondent counted over 50 hours of file review time prior to the initial Rule 5 conference. Respondent also objects to the format of petitioners' counsel's billing information. It is her contention that the vast majority of the entries encompass many different tasks within one combined time entry. The court agrees that this practice is inappropriate and renders review of the fee petition difficult. In future, counsel would be wise to separate each individual task to assist the court in determining the reasonableness of the petition. That is the petitioner's burden. It is not the charge of the special master to estimate how much time is allotted to each individual task within a unified block. The court agrees with the respondent that 50 hours is an inordinate amount of time to spend reviewing documents prior to the Rule 5 conference. Accordingly, the court reduces the requested number of hours by 37.4. This leaves Mr. Dodd with 110 hours at his regular rate and 6.3 hours at the travel time rate. The respondent also objects to the number of hours Mr. Dodd spent preparing the fee petition. Mr. Dodd's fee petition is very detailed and supported by an abundance of evidence, ergo, the court holds that the number of hours requested is reasonable.

Upon cogitation of the limited resources of the Program and the number of petitions before the court, fairness, consistency and conservative reasonableness must dictate the process of awarding fees and costs. As noted supra, the court reserves the right to "exclude from a fee request hours that are excessive . . . or otherwise unnecessary . . . ." Hensley, 461 U.S. at 434. It is appropriate for a special master to rely on general experience with similar cases under the Program when determining reasonable attorney's fees and costs. Wasson v. Secretary of HHS, 24 Cl.Ct. 482 (1991), aff'd, 988 F.2d 131 (Fed.Cir. 1993). After a careful review of the fee petition and its supplement, and in consideration of all the facts and circumstances surrounding this case, and in comparison to other Program cases, the court finds that 110 hours of attorney time and 6.3 hours of travel time is more than adequate to generously compensate petitioners' attorney for his efforts in this case.

C. Paralegal's Fees:

The petitioners request an hourly rate of $75.00 for the time expended by the paralegal, Mrs. Aurea Scotti. In support of their claim, they filed a declaration of Deborah G. Stark who attested that a reasonable rate for an experienced paralegal in the Los Angeles Area is one-third of the rate of the supervising attorney. Since Mr. Dodd's rate is $225.00 per hour, then petitioners argue Mrs. Scotti should receive $75.00 per hour. The respondent asks the court to compensate Mrs. Scotti at $45.00 per hour, the rate she received in 1995 and 1996 in the Depelchin and Krel cases. The court believes Mrs. Scotti is a skilled and experienced paralegal. Also, she has gained four years of experience in vaccine cases since the 1995 Depelchin case. In 1998, Mrs. Scotti was awarded $65.00 per hour in the Kain case. The court is willing to increase her hourly rate in proportion to the increase in Mr. Dodd's hourly rate since 1995 (150/225 = 45/X; 150X = 10,125; X = 67.50). Accordingly, Mrs. Scotti shall be compensated at a rate of $67.50 per hour.

The petitioners request 12.3 hours of paralegal time. The respondent objects as to the amount of hours and recommends only 6.3 hours because Mrs. Scotti spent too much time on the attorney's fee petition. The court finds the requested 12.3 hours reasonable in this matter.

II. COSTS

Petitioners request reimbursement for $5,393.02 in costs. Respondent noted that there appears to be a typo in petitioners' fee petition and the correct amount should total $4,568.62 -- as found in exhibit 10. The court agrees with the respondent that the correct amount totals $4,568.62. Next, the respondent objects to Dr. Marcel Kinsbourne's hourly rate of $300.00 and recommends a rate of $200.00 per hour. Dr. Kinsbourne is a pediatric neurologist who has testified in the Vaccine Program on numerous occasions. This court has awarded Dr. Kinsbourne $300.00 per hour in the past. Yeoman v. Secretary of HHS, No. 90-1049V, 1994 WL 387855 (Fed. Cl. Spec. Mstr. July 11, 1994). He has also been awarded $300.00 per hour by other special masters. Berry v. Secretary of HHS, No. 97-1801V, 1998 WL 481882 (Fed. Cl. Spec. Mstr. Edwards, July 27, 1998); Hayden v. Secretary of HHS, No. 91-643V, 1998 WL 430081 (Fed. Cl. Spec. Mstr. Hastings, July 10, 1998); Lindsey v. Secretary of HHS, No. 90-2586V, 1995 WL 715513 (Fed. Cl. Spec. Mstr. French, Nov. 21, 1995); Woodcock v. Secretary of HHS, No. 90-1030V, 1992 WL 329300 (Cl. Ct. Spec. Mstr. Baird, Oct. 23, 1992); See also Plott v. Secretary of HHS, No. 92-0633V, 1997 WL 842543 (Fed. Cl. Spec. Mstr. Wright, April 23, 1997)($300.00 per hour awarded to another medical expert). The court is very impressed with Dr. Kinsbourne's credentials and $300.00 per hour is very reasonable for his highly qualified expertise.

Petitioners have listed expenditures for notebooks, tabs and other office supplies for a total of $318.06. Although cognizant of the growing trend to "unbundle" attorneys' fees, the court still considers these costs a part of the overhead inherent in practicing law. Therefore, the court reduces the amount requested by $318.06. Respondent also object to petitioners' claim of $27.00 for outside medical research. The court finds the amount to be reasonable.

Petitioners are awarded $4,250.56 for costs.



III. CONCLUSION

Pursuant to 15(e) and Vaccine Rule 13, the court awards the following as reasonable compensation for attorney's fees and costs in this matter:

Attorney Time: 110 hours x $225.00 $24,750.00

(travel time) 6.3 hours x $100.00 $630.00

Paralegal Time: 12.3 hours x $67.50 $830.25

Costs: $4,568.62 - $318.06 $4,250.56

Total: $30,460.81

While the respondent's objections were sound, they did not decrease petitioners' award below the statutory maximum of $30,000 for reasonable attorney's fees and costs.(4)

Based on a review of petitioners' attorney's fee petition and accompanying documentation and respondent's objections, the undersigned finds an award of $30,000.00 for attorney's fees and costs reasonable in this matter.

In the absence of a motion for review filed in accordance with RCFC Appendix J, the Clerk of the Court is directed to enter judgment in favor of petitioners in the amount of $30,000.00 (5) for reasonable attorney's fees and costs. A check for $25,431.38 shall be paid to petitioners and petitioners' counsel jointly, and a check for $4,568.62 shall be paid solely to petitioners.(6)

IT IS SO ORDERED.





Richard B. Abell

Special Master

1. The statutory provisions governing the Vaccine Act are found in 42 U.S.C. 300aa-1 et seq. (1991 & West Supp. 1998). Hereinafter, reference will be to the relevant subsection of 42 U.S.C. 300aa.

2. Pursuant to General Order #10, unpublished decisions may be cited in attorney's fees decisions if the cited decision involves the same attorney making the current fee application.

3. Id.

4.   Compensation for lost earnings, pain and suffering and reasonable attorneys' fees and costs may not exceed a combined total of $30,000.00 in cases associated with the administration of a vaccine before the effective date of the Act. Section 15(b).

5. This amount is intended to cover all legal expenses. This award encompasses all charges by the attorney against a client, "advanced costs," as well as fees for legal services rendered. Furthermore, 42 U.S.C. 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally, Beck v. Secretary of HHS, 924 F.2d 1029 (Fed. Cir. 1991).

6. Petitioners' exhibit 10 states that the petitioners have paid $4,568.62 in out-of-pocket expenses to Mr. Dodd and to other creditors. Since Mr. Dodd should not have charged his clients the $318.06 for the office supplies, the court is awarding the petitioners the $318.06 in their separate check and this results in a reduction in the amount made payable jointly to Mr. Dodd and the petitioners.