McCulloch v. Secretary of Health and Human Services ( 2015 )


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  •         In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    No. 09-293V
    Filed: September 21, 2015
    TO BE PUBLISHED
    * * ** * * * * * * * * * * * * * * *
    RACHEL MCCULLOCH                      *
    as parent and legal guardian of A.M., *
    *
    Petitioner,     *
    *                      Real Rate Report; Attorneys’ Fees
    v.                             *                      and Costs; Boston, Massachusetts
    *                      local rate.
    *
    SECRETARY OF                          *
    HEALTH AND HUMAN SERVICES,            *
    *
    Respondent.     *
    * * * * * * * * * * * * * ** ** * *
    Gowen, Special Master:
    ORDER DENYING MOTION FOR RECONSIDERATION1
    On September 16, 2015, respondent filed a motion for reconsideration2 of the
    undersigned’s decision on petitioner’s application for interim attorneys’ fees and costs, issued on
    September 1, 2015. Respondent requests that the undersigned reconsider her evidence,
    specifically excerpts from the Real Rate Report (“RRR”) previously submitted, along with
    additional excerpts of the RRR included in her motion. Respondent opposes petitioner’s
    application for interim attorneys’ fees and costs and argues in favor of awarding a Boston,
    Massachusetts hourly rate, instead of the forum rate of Washington, D.C., to the attorneys at
    Conway, Homer & Chin-Caplan.
    A motion for reconsideration is governed by Vaccine Rule 10(e)(3), which states “[t]he
    special master has discretion to grant or deny [a motion for reconsideration], in the interest of
    1
    Because this decision contains a reasoned explanation for the undersigned’s action in this case,
    the undersigned intends to post this ruling on the website of the United States Court of Federal
    Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 
    116 Stat. 2899
    , 2913 (codified as amended at 
    44 U.S.C. § 3501
     note (2006)). As provided by Vaccine Rule
    18(b), each party has 14 days within which to request redaction “of any information furnished by
    that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
    confidential; or (2) that includes medical files or similar files, the disclosure of which would
    constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
    1
    2
    See RCFC, Appendix B, Vaccine Rule 10(e).
    2
    justice.” Further, it is within the special master’s discretion to seek a response from petitioner on
    this motion. See Vaccine Rule (10)(e)(2). Petitioner filed a response to respondent’s motion on
    September 18, 2015, in which she argued that the undersigned should deny respondent’s motion.
    In her motion for reconsideration, respondent submitted additional excerpts from the
    RRR as exhibits FF and GG. Exhibit FF is an excerpt providing a definition of “General Liability
    Litigation,” which respondent maintains is the most applicable category of the RRR to vaccine
    litigation. Respondent’s exhibit GG provides a median hourly rate for partners and associates
    who practice “General Liability Litigation” in Washington, D.C., at a law firm of fifty or fewer
    attorneys, for comparison to the previously supplied chart for lawyers in this category in Boston.
    The undersigned is not persuaded to alter my decision as the additional data provided
    does not change my criticisms of the RRR, and further demonstrates that the RRR data provided
    lacks sufficient foundation to be a reliable indicator of the local hourly rate for attorneys of
    reasonably comparable skill, experience, and reputation in Boston, Massachusetts. As explained
    in my decision, “for purposes of comparing the Washington, D.C. forum rate to the Boston rate
    for attorneys’ fees, the overall comparability of attorneys’ fees in those communities is the most
    relevant and demonstrable consideration,” along with other factors, including consideration of
    the cost of living, assessments of the federal government locality pay in both cities, and case law
    (both from the Vaccine Program and outside of it) awarding attorneys’ fees and costs to Boston
    attorneys. Decision on Fees at 18, docket no. 148, filed Sep. 1, 2015. Accordingly, respondent’s
    motion for reconsideration is DENIED.
    A. Discussion of Exhibit FF
    Respondent argues that because the General Liability Litigation category of the RRR
    includes medical malpractice, mass tort, product liability, and professional liability (some of
    which I found to have similar levels of complexity to vaccine cases) the RRR’s mean rate of
    $234 an hour for partners is a reliable indicator of the local attorney rate in Boston. The General
    Liability Litigation category also lists 24 other subcategories, including: advertising injury,
    asbestos/mesothelioma, auto and transportation, completed operations, construction defect,
    consumer related claims, crime, dishonesty and fraud, directors and officers, discrimination,
    employment, errors and omissions, fire, general/other, hospital, personal injury/wrongful death,
    policy coverage disputes, pollution, premises, property damage, sexual abuse, subrogation, toxic
    tort, workers compensation coverage and workplace safety. Notably, the 28 total subcategories
    under General Liability Litigation are the same for work performed by medium and large firms.
    This General Liability Litigation index appears to be a general list that does not
    necessarily indicate that lawyers in the small firms handled any of these types of cases or which
    types they did. As there are 28 listed categories and only 37 partners surveyed in Boston, and 19
    partners surveyed in Washington, D.C., it is unlikely that all of these practice areas were handled
    by these lawyers. See ex. Z at 14; ex. GG at 1. Additionally, there is no indication of what
    percentage of these cases might have fallen in categories that are likely to generate lower fees,
    such as consumer related claims, employment, and property damage, among others; and, the
    index certainly does not indicate how heavily weighted any of the categories are compared to
    others. The index also does not indicate anything about the level of complexity of cases, skill,
    experience, and reputation of the attorneys, which factor into determining an hourly rate.
    3
    Additionally, the RRR explains that,
    “Our aim is to provide a point of comparison for companies purchasing law firm
    services in the United States. To improve comparability, we removed data related
    to insurance company defense litigation for all analyses unless noted otherwise.
    Insurance litigations tends to be less expensive than other types of litigation, as it
    is typically more repetitive and less complex.”
    Ex. FF at 218. As noted in my decision, insurance carriers are often able to command lower rates
    for work because they are able to promise a significant volume of business, they pay bills on a
    regular monthly or quarterly basis, and promptly reimburse costs. As the great majority of hourly
    billing for medical malpractice, toxic tort, mass tort, and other similar litigation is done as
    insurance defense work, it seems unlikely that very much of this type of work would be done by
    the small firms included in the General Liability Litigation category.
    As also explained in my decision, corporate billings, which form the basis of the RRR
    data, are not comparable to attorneys’ fees paid by individuals. The large firm-small firm
    dichotomy is indeed a strong one when the clients are corporations. Large companies with
    complicated product liability defense matters, or mass torts, are generally retaining large firms
    and are willing to pay high rates for representation by prestigious firms. Small companies
    frequently cannot afford representation by large firms and seek counsel from less expensive
    firms. But that dichotomy has almost no relevance when considering legal services provided to
    individual people. In my decision, I discuss how the practice of plaintiff’s personal injury law
    bears the greatest similarity to vaccine practice in that the attorneys are representing injured
    individuals, they have the burden of proof, and need to build and prove cases of varying
    complexity. Additionally, the attorneys do not get paid until a case is resolved, as their cases are
    generally done on a contingency basis and they front the costs. In my experience, there are
    virtually no plaintiff’s personal injury firms in the United States that have fifty or more lawyers
    and yet, particularly, the leading firms in metropolitan areas are able to generate fees that rival
    large corporate firms. Generally, petitioners in vaccine cases are likely to be seeking
    representation by attorneys with the skill set of plaintiff’s personal injury lawyers, not of those
    handling defense of employment discrimination, consumer complaints, property damage, and
    other cases on that list.
    B. Discussion of Exhibit GG
    Exhibit GG shows a median partner rate in Washington, D.C. for small firms in the
    General Liability category as $445 an hour, and for the highest quartile of partners in that
    category, $535 an hour. The comparative RRR rates for Boston are $220 an hour for the median,
    and $260 an hour for the highest quartile of partners. See ex. 7 at 14. While this information does
    suggest a substantial difference in the fees earned by small firms in Washington, D.C. and
    Boston, the difference between large law firm partners, $774 an hour in Washington D.C. and
    $722 an hour in Boston, is much smaller—raising numerous questions about the underlying
    services provided. Significantly, in the insurance defense category, the median hourly rate for
    small firm partners in Washington, D.C. is only $7.50 an hour greater than they are for small
    3
    firm partners in Boston. Additionally, there is no data about the level of experience, other than
    the partner/associate designation, and no foundation as to what services the small firms in Boston
    are actually providing. As argued by petitioner, it is unlikely that the Boston firms included in
    this category, which depend on monthly billing models, have ever or would ever handle a
    vaccine case, as the learning curve would be too steep, the deferral of receipt of fees too
    unattractive, and the need to front and carry costs prohibitive. See Petitioner’s Reply to
    Respondent’s Objections to Supplemental Interim Fees and Costs Motion at 7, docket no. 144,
    filed July 17, 2015.
    In short, even with this additional information, the evidence presented lacks sufficient
    foundation to explain the anomalous numbers in this category, or to demonstrate that these
    corporate billing rates should be applied to vaccine cases. While this exhibit does provide the
    comparative data previously missing from the record when I initially considered the parties’
    arguments, it is not sufficient to persuade me to disregard the other evidence showing that
    attorneys’ fees in Washington, D.C. and Boston, Massachusetts are not “significantly different”
    pursuant to the Davis exception, and that work in the Vaccine Program itself is the most apt
    comparison. See Avera v. Sec’y of HHS, 
    515 F.3d 1343
    , 1348 (Fed. Cir. 2008) (citing Davis
    Cnty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency,
    
    169 F.3d 755
    , 758 (D.C. Cir. 1999)).
    This motion for reconsideration is DENIED.
    IT IS SO ORDERED.
    s/Thomas L. Gowen
    Thomas L. Gowen
    Special Master
    4
    

Document Info

Docket Number: 09-293

Judges: Thomas L. Gowen

Filed Date: 10/21/2015

Precedential Status: Precedential

Modified Date: 2/19/2016