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

In the United States Court of Federal Claims
No. 15-907V
(Filed: July 30, 2020) 1
*********************** *
*
ZANIA LEWIS, *
* National Childhood Vaccine Injury
Petitioner, * Act, 42 U.S.C. §§ 300aa-1 et seq.;
* Attorney Fees and Costs; Expert’s
v. * Hourly Rate; Expert’s Number of
* Hours; Requirement for
SECRETARY OF HEALTH AND * Contemporaneous Billing Records;
HUMAN SERVICES, * Remand.
*
Respondent. *
*
*********************** *
Michael Baseluos, Baseluos Law Firm, 2020 East Park Ave, San Antonio, Texas 78212,
for Petitioner.
Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, Gabrielle M. Fielding,
Claudia B. Gangi, United States Department of Justice, Civil Division, Torts Branch, P.O. Box
146, Benjamin Franklin Station, Washington, D.C. 20044, for Respondent.
_________________________________________________________
OPINION AND ORDER
_________________________________________________________
WILLIAMS, Senior Judge.
In the underlying action before the Special Master, Petitioner claimed that she developed
hearing problems as a result of receiving an influenza (“flu”) vaccination and sought compensation
under the National Vaccine Injury Compensation Program. Lewis v. Sec’y of Health & Human
Servs., No. 15-907V, 2020 WL 831998, at *1 (Fed. Cl. Spec. Mstr. Jan. 24, 2020), reconsideration
denied, No. 15-907V, 2020 WL 1283461 (Fed. Cl. Spec. Mstr. Feb. 20, 2020). Following the
submission of expert reports, the parties resolved the case without further proceedings. The
Special Master adopted the parties’ stipulation of settlement and awarded Petitioner $38,000 in
damages. Petitioner then sought $263,465.60 in attorney fees and costs. The Special Master issued
1
Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal Claims,
the Court issued its Opinion under seal to provide the parties an opportunity to submit redactions.
The parties did not propose any redactions. Accordingly, the Court publishes this Opinion.
a decision reducing both the hourly rates and number of hours requested for three of Petitioner’s
medical experts and awarded Petitioner $160,882.10 in attorney fees and costs.
In her motion for review, Petitioner argues that the Special Master abused his discretion in
reducing the experts’ claimed hourly rates because the rates awarded were not commensurate with
the experts’ experience and expertise. Petitioner also contends that the Special Master’s reduction
of the experts’ requested number of hours was arbitrary and capricious due to the volume and high
quality of the experts’ work product. Respondent argues that the reductions were reasonable.
The Court affirms the Special Master’s decision with respect to Dr. Akbari’s costs and Dr.
Charleston’s and Dr. Djalilian’s hours. The Court remands this matter to the Special Master for
re-evaluation of Dr. Charleston’s and Dr. Djalilian’s rates in accordance with the Court’s direction.
Factual Background 2
On August 20, 2012, and January 14, 2015, Petitioner received the flu vaccination.
Following the administration of these vaccinations, Petitioner suffered from “tinnitus, ringing in
the ears, earaches, hearing loss, dizziness, vertigo, loss of equilibrium, and clouding of
consciousness.” ECF No. 1 at 1-2. On August 20, 2015, Petitioner filed a timely petition under
the National Vaccine Injury Compensation Program, (“Vaccine Program”) 42 U.S.C. § 300aa–10,
et seq., alleging that these medical problems were the result of her 2012 and 2015 flu vaccines.
Respondent sought dismissal of Petitioner’s claim because her treating doctors had not linked the
vaccinations to her injuries and she had not filed any expert opinions supporting her claim. ECF
No. 16 at 5-6.
Petitioner’s original counsel withdrew on June 29, 2016, and Petitioner continued pro se.
On August 11, 2016, Petitioner pro se filed an expert report from Dr. Charles Elliot Morgan, which
the Special Master found was “relatively thin and did not cover all necessary topics.” ECF No.
36; Lewis, 2020 WL 831998, at *1. The Special Master provided Petitioner with instructions on
expert reports in a September 21, 2016 order, and issued supplemental guidance for filing medical
literature and expert billing invoices on February 16, 2017.
Petitioner retained new counsel on September 29, 2016, and subsequently filed reports
from three experts: Dr. Hamid Djalilian, M.D., a specialist in otolaryngology; Dr. Omid Akbari,
Ph.D., an immunologist; and Dr. Larry Charleston IV, M.D., a neurologist. Respondent, in turn,
filed expert reports from Dr. Douglas Bigelow, M.D., an otolaryngologist, and Dr. Arnold
Levinson, M.D., an immunologist.
Following the submission of expert reports, the parties reached a settlement agreement and
the Special Master issued a decision adopting the parties’ stipulation and awarded Petitioner
$38,000 in compensation.
On September 11, 2019, Petitioner filed a motion seeking $263,465.60, representing
$61,423.60 in attorney fees and $198,423 in costs, as well as $3,590 Petitioner personally paid Dr.
Morgan. Respondent did not oppose an award of fees and costs, stating that he was satisfied that
2
This background is derived from the Special Master’s decision on attorney fees and costs,
and the parties’ motions papers.
2
the statutory requirements for an award of attorney fees and costs were met and requesting that the
Special Master “exercise [his] discretion and determine a reasonable award.” ECF No. 138 at 2-
3.
On February 13, 2020, Petitioner filed a motion for reconsideration of the Special Master’s
decision as to the costs awarded for Drs. Akbari, Charleston, and Djalilian. Petitioner argued that
the hourly rates assigned to Petitioner’s experts were “very low relative to their professional
expertise, experience in medico [sic] legal matters, and established rates” in both Vaccine Program
and non-Vaccine Program cases. ECF No. 144, Ex. 1 at 1. Petitioner stated that “[i]t has become
exceedingly difficult for the petitioner’s bar to find quality experts,” contending:
Without some predictability [in rates of compensation], experts of the incredibly
high caliber of Dr. Akbari, Dr. Charleston, and Dr. Djalilian . . . will not be willing
to serve as experts and that is an incredible loss to the [Vaccine Program]. The
[Vaccine Program] and Special Masters benefit from new perspectives brought in
by extremely well qualified experts . . . Would the program not benefit from fresh
perspectives from a new crop of experts rather than having the same experts testify
time after time? The science of how vaccines can affect the body requires new
talent and fresh perspectives.
Id. at 7.
In her motion for reconsideration, Petitioner cited new exhibits, including updated expert
invoices and CVs. Id. at 1-2; Exs. A-J. Petitioner submitted agreements reflecting rates the experts
had received in other fora, including a 2017 agreement showing a $750 hourly rate for Dr. Akbari,
a 2018 fee agreement showing a $500 hourly rate for Dr. Charleston, a 2015 fee agreement
showing a $700 hourly rate for Dr. Djalilian, and a 2019 fee agreement showing an $800 hourly
rate for Dr. Djalilian. As a “compromise,” Petitioner proposed that the Special Master grant the
same amount in expert costs as he originally awarded, but restructure the component amounts to
award the experts their requested rates and correspondingly cut their number of hours.
The Special Master denied Petitioner’s motion for reconsideration, reasoning that fee
applicants bear the burden of proof on a motion for fees and costs, and that “[t]he request for fees
must be complete when submitted.” Lewis, 2020 WL 1283461, at *2 (citing Duncan v. Sec’y of
Health & Human Servs., No. 99–455V, 2008 WL 4743493, at *1 (Fed. Cl. Aug. 4, 2008). The
Special Master noted that “[t]he thrust of [Petitioner’s] pending motion for reconsideration is a
submission of material . . . that she could have presented with her [original] motion,” and
“[m]otions for reconsideration are not intended to allow second opportunities.” Id. at *3 (citing
Senza-Gel Corp. v. Seiffhart, 803 F.2d 661, 663-64 (Fed. Cir. 1986)).
On February 20, 2020, the Special Master issued his decision awarding Petitioner
$58,423.60 in attorney fees, reflecting a $3,000 reduction for fees claimed for clerical tasks. With
3
respect to costs, the Special Master reduced the hourly rates and claimed number of hours for Drs.
Akbari, Charleston, and Djalilian, 3 and awarded Petitioner $102,458.50 in total.
Discussion
Jurisdiction and Standard of Review
Congress created the Vaccine Program as a “Federal ‘no-fault’ compensation program
under which awards can be made to vaccine-injured persons quickly, easily, and with certainty
and generosity.” H.R. Rep. No. 99-908, at 3 (1986). To that end, Congress assigned the
“unenviable job of sorting through these painful cases” to a group of specialists, the Special
Masters within the Court of Federal Claims. Hodges v. Sec’y of Dep’t of Health & Human Servs.,
9 F.3d 958, 961 (Fed. Cir. 1993).
In Vaccine Act cases, the Court of Federal Claims has jurisdiction to undertake a review
of the record of the proceedings and may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision, (B) set aside any findings of fact or
conclusion[s] of law of the special master found to be arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law and issue its own findings of
fact and conclusions of law, or (C) remand the petition to the special master for
further action in accordance with the court’s direction.
§ 300aa-12(e)(2)(A)-(C) (2012); Doe 93 v. Sec’y of Health & Human Servs., 98 Fed. Cl. 553, 564-
65 (2011).
Under the Vaccine Act, Special Masters may award petitioners reasonable attorney fees
and costs. § 300aa-15(e)(1). A Special Master’s determination of attorney fees and costs is a
discretionary ruling that this Court reviews under the abuse of discretion standard. Hall v. Sec’y
of Health & Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011); Caves v. Sec’y of Dep’t of
Health & Human Servs., 111 Fed. Cl. 774, 778-79 (2013). The Federal Circuit has held
An abuse of discretion occurs when (1) the court’s decision is clearly unreasonable,
arbitrary or fanciful; (2) the decision is based on an erroneous conclusion of law;
(3) the court’s findings are clearly erroneous; or (4) the record contains no evidence
on which the . . . court rationally could have based its decision.
Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986) (internal citations
and quotation marks omitted). While the abuse of discretion standard of review is deferential, it
“‘is not a rubber stamp.’” Paluck v. Sec’y of Health & Human Servs., 104 F. Cl 457, 467 (2012)
(quoting Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1256 (Fed. Cir. 2011)
((O’Malley, J., concurring in part and dissenting in part)). “In determining the reasonableness of
attorneys’ fees and costs, . . . the special master . . . must support a decision with sufficient findings
3
The Special Master awarded Dr. Morgan’s costs in full, reasoning that Dr. Morgan was
retained by Petitioner pro se and “did produce two reports for a relatively reasonable amount of
money.” Lewis, 2019 WL 5405256, at *4.
4
and adequate legal analysis.” Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 405 (1997)
(citing Wasson v. Sec’y of Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991)).
It is well settled that “fees for experts are subject to the same reasonableness standards as
fees for attorneys.” See, e.g., Frantz v. Sec’y of Health & Human Servs., 146 Fed. Cl. 137, 145
(2019). “For attorneys, a reasonable hourly rate is the rate ‘prevailing in the community for similar
services by lawyers of a reasonably comparable skill, experience, and reputation.’” Id. (quoting
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).
It is Petitioner’s burden to prove the appropriate hourly rate for an expert. Bell v. Sec’y of
Health & Human Servs., 18 Cl. Ct. 751, 760 (1989); Caves, 111 Fed. Cl. at 781. As the Guidelines
for Practice Under the National Vaccine Injury Compensation Program explain, “[s]ubmission of
curriculum vitae and information regarding the hourly rate paid to the expert in other fora are
helpful in determining the hourly rate to be awarded.” Guidelines for Practice Under the National
Vaccine Injury Compensation Program, at 71 (Office of Special Masters, United States Court of
Federal Claims, April 2020). As the Court stated in Frantz:
In determining the appropriate compensation for experts, a special master may
consider the following factors: (1) The witness’ area of expertise; (2) the education
and training required to provide the expert insight that is sought; (3) the prevailing
rates for other comparably respected available experts; (4) the nature, quality and
complexity of the information provided; (5) the cost of living in the particular
geographic area; and (6) any other factor likely to be of assistance to the Special
Master in balancing the interests implicated by the Vaccine Act.
146 Fed. Cl. at 145 (internal quotations and alterations omitted). It is within a Special Master’s
discretion to determine that “[an] expert’s work was not worth the charged hourly rate.” Id. at
146. Further, “[s]pecial masters determine the value of an expert’s work on an individual case
basis.” Id.
The Special Master has discretion to reduce a medical expert’s hours for vague billing
entries, as experts, like attorneys, must detail and explain work performed. Id. at 145. “[H]ours
that are excessive, redundant, or otherwise unnecessary” are not compensable. Saxton v. Sec’y of
Dep’t of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983); Hines ex. rel. Sevier v. Sec’y of Dep't of Health & Human
Servs., 22 Cl. Ct. 750, 754 (1991) (“The special master is within his discretion in reducing hours
that are duplicative, padded, spent on unrelated matters, or not ‘reasonably expended.’”) (quoting
Griffin & Dickson v. United States, 21 Cl. Ct. 1, 11 (1990)).
The Special Master Articulated a Reasonable Basis for Reducing the Hourly Rate and
Number of Hours of Dr. Akbari
For Dr. Akbari, an immunologist who wrote two reports, Petitioner requested $79,475 in
costs, representing 144.5 hours of work at an hourly rate of $550. The Special Master reduced Dr.
Akbari’s hourly rate from $550 to $300, reasoning that while Dr. Akbari has a Ph.D. in
immunology, he does not have a medical license. The Special Master explained that he had
previously found that an appropriate rate for people who have a Ph.D. in immunology, but not a
medical license, is $250 per hour, and cited his decision in Dominguez v. Sec’y of Health & Human
5
Servs., No. 12-378V, 2018 WL 3028975, at *5 (Fed. Cl. Spec. Mstr. May 25, 2018), awarding an
expert with a Ph.D. in biochemistry an hourly rate of $250. Lewis, 2020 WL 831998, at *7.
In Dominguez, the Special Master reasoned:
Based on the undersigned’s experience and the cases cited above, there does appear
to be support for using $450 per hour as a reference point for a reasonable hourly
rate for a medically-trained immunologist with extensive research experience.
Given that starting point, the next step is to adjust it to account for [the expert’s]
lack of medical experience and expertise. Based on the undersigned’s knowledge
and experience, a physician-scientist appears to warrant an additional $200 per hour
compared to [an] equally capable research scientist without a medical degree and
experience for at least two reasons. First, a physician can opine on medical
questions in addition to purely scientific ones and thus provides additional value to
the Program. Second, a physician’s time is more valuable outside of the Program
since they [sic] can earn compensation not only through their research work, but
their clinical work as well. The $200 per hour premium may actually undervalue
the real-world value of a medical degree. Thus, the undersigned finds $250 per
hour to be a suitable rate of compensation for a comparably respected expert in
immunology who does not practice medicine.
2018 WL 3028975, at *5. Here, although the Special Master had previously awarded $250 per
hour to an expert holding a Ph.D. in immunology but lacking a medical license, he found that Dr.
Akbari “merit[ed] a premium” due to his other “strong qualifications,” such as a prestigious 2007
fellowship at Harvard Medical School, and therefore awarded him $300 per hour. Lewis, 2020
WL 831998, at *7.
Petitioner argued that a $550 hourly rate was appropriate because a different Special Master
had awarded Dr. Akbari an hourly rate of $500 in Hernandez v. Secretary of Health & Human
Services, in 2018. No. 16-1508V, 2018 WL 4391060, at *2 (Fed. Cl. Spec. Mstr. Aug. 20, 2018).
In Hernandez, the Special Master reduced Dr. Akbari’s claimed hourly rate from $750 to $500,
finding it reasonable to apply another expert’s--Dr. Kinsbourne’s 4--rate of $500 an hour to Dr.
Akbari “given both physicians’ qualifications.” Id. In the instant case, the Special Master
addressed Hernandez, stating that it was unclear “[w]hether the special master [in Hernandez] was
aware that Dr. Akbari does not have a license to practice medicine,” as the “reference to ‘both
physicians[]’ suggests that the special master may have assumed Dr. Akbari was an authorized
practitioner of medicine.” Lewis, 2020 WL 831998, at *7. This was a reasonable interpretation
of Hernandez, as the Special Master there referred to Dr. Akbari as a “physician.” 2018 WL
4391060, at *2.
As Petitioner notes, in two other cases, Shinskey v. Secretary of Health & Human Services
and Robinson v. Secretary of Health & Human Services, Special Masters awarded Dr. Akbari his
claimed hourly rate of $500. See Shinskey, No. 15-713V, 2019 WL 2064558, at *5 (Fed. Cl. Spec.
Mstr. May 9, 2019); Robinson, No. 15-967V, 2018 WL 5629850, at *3 (Fed. Cl. Spec. Mstr. Sept.
4
Dr. Kinsbourne’s specialty is neurology. See Stillwell v. Sec’y of Health & Human
Servs., No. 11-77V, 2013 WL 4540013, at *5 (Fed. Cl. Spec. Mstr. June 17, 2013), aff’d, 118
Fed. Cl. 47 (2014), aff’d, 607 F. App’x 997 (Fed. Cir. 2015).
6
12, 2018). Relying on these cases, Petitioner argues that it was an abuse of discretion for the
Special Master to reduce Dr. Akbari’s rate by 40 percent “after three separate special masters have
consistently awarded $500/hr.” ECF No. 148, Ex. A at 4. The Special Master, however, is not
obligated to award Dr. Akbari the rate granted by other Special Masters in different cases
presenting different factual circumstances and work products. Boatmon v. Sec’y of Health &
Human Servs., 941 F.3d 1351, 1358 (Fed. Cir. 2019). In any event, Robinson and Shinskey rely
upon Hernandez and do not state whether, in awarding Dr. Akbari $500 per hour, the Special
Masters were under the impression he was a physician. Shinskey, 2019 WL 2064558, at *5;
Robinson, 2018 WL 5629850, at *3.
Here, based upon the record and the rationale in Dominguez, the Special Master reasonably
awarded Dr. Akbari $300 per hour.
Number of Hours
The Special Master also reduced Dr. Akbari’s number of hours by 20 percent, finding that
his time entries were vague, stating:
With respect to number of hours, many of the problems that affected Dr. Djalilian
also affected Dr. Akbari. Dr. Akbari also did not provide much detail in his entries.
Here is one example:
It is not readily apparent whether 1.4 hours was a reasonable amount of time to
study the documents because the “attachments” are not described. To account for
this vagueness, the undersigned deducts 20 percent from Dr. Akbari’s hours. Dr.
Akbari will be credited with 115.6 hours.
Lewis, 2020 WL 831998, at *8.
This Court’s review of the record reveals that Dr. Akbari’s invoice shows several similarly
vague time entries, such as a June 30, 2018 entry claiming 0.6 hours for “email communications
and review [o]ther expert reports,” a December 28, 2018 entry claiming 2.4 hours for “[s]tudy[ing]
the multiple adjuvant effect on immune system,” and a February 10, 2019 entry claiming 2.6 hours
for “[a]dding a section regarding the role TNF-a.” ECF No. 137, Ex. G at 3, 5. These entries lack
sufficient detail to enable the Special Master to assess the reasonableness of the time claimed.
Billing entries must contain sufficient detail to permit a special master to effectively review the
claimed fees. Frantz, 146 Fed. Cl. at 145; McCarty v. United States, 142 Fed. Cl. 616, 628 (2019)
(citing Mich. v. U.S. Envtl. Prot. Agency, 254 F.3d 1087, 1093 (D.C. Cir. 2001)). Here, multiple
time entries of Dr. Akbari lacked the detail required to permit meaningful review of the time
claimed. As such, the Special Master reasonably concluded that Dr. Akbari’s entries were vague
and warranted a 20 percent reduction in hours.
7
The Special Master’s Rationale for Reducing the Hourly Rate of Dr. Charleston to $400
Requires Amplification
For Dr. Charleston, a board-certified neurologist who wrote two reports, Petitioner
requested $31,337.50 in compensation for 54.5 hours of work at an hourly rate of $575 per hour.
Dr. Charleston graduated from Wayne State University School of Medicine in 2005, and
completed an internship in internal medicine at St. John Hospital and Medical Center in Detroit,
Michigan in 2006. ECF No. 81, Ex. 20, at 1. In 2009, he completed a residency in neurology at
Baylor College of Medicine in Houston, Texas, and in 2010 he completed a fellowship in headache
and facial pain at Jefferson Headache Center in Philadelphia, Pennsylvania. Id. From 2011 to
2013, Dr. Charleston served as a Director at the Comprehensive Headache Care Center and the
Infusion Center for Complex and Chronic Headache in Grand Rapids, Michigan. Id. During this
time, he also worked as staff neurologist at Spectrum Health’s Butterworth and Blodgett Hospitals.
Id. From 2013 to the present, Dr. Charleston has taught neurology at the University of Michigan
at Ann Arbor, Michigan. Id. He has also served on various committees for the American Headache
Society and the American Academy of Neurology. Id. at 5. Dr. Charleston has worked as a
consultant for Charleston Health Neurology & Head Pain Consultants, PLLC, in Pinckney,
Michigan, since 2017. Id. at 6.
Observing that “[o]ther than a review of his credentials, [Petitioner] present[ed] very little
to justify the proposed hourly rate,” the Special Master found that, “[i]n [my] experience, a
reasonable hourly rate for Dr. Charleston’s work in this case is $400.00 per hour.” Lewis, 2020
WL 831998, at *8. In her motion for review, Petitioner argues that Dr. Charleston should receive
his claimed hourly rate of $575, citing exhibits attached to her motion for reconsideration,
including Dr. Charleston’s “updated CV,” invoices and fee agreements for work Dr. Charleston
performed outside of the Vaccine Program, and the University of Michigan “Medical School
Industry Sponsored Speaking Policy,” which Petitioner claims “helps to demonstrate the value of
time of an UM faculty member” like Dr. Charleston. ECF No. 148, Ex. A at 8-9.
The Special Master did not explain why he determined that a $400 hourly rate for a board-
certified neurologist was justified. In 2017, the same Special Master awarded a neurologist a $500
hourly rate and stated that the rates of $425 and $500 the expert had received in other Vaccine
cases were “consistent with the rates awarded to neurologists by special masters.” Gowans v.
Sec’y of Health, No. 14-440V, 2017 WL 1842824, at *5 (Fed. Cl. Apr. 12, 2017). A review of
Vaccine Program cases within the last eight years indicates that hourly rates of $450-500 for
neurologists are typical. See Brown v. Sec’y of Dep’t of Health & Human Servs., No. 09-426V,
2012 WL 952268, at *10 (Fed. Cl. Spec. Mstr. Feb. 29, 2012) (awarding a neurologist hourly rates
of $450-500 for work performed in different years); Rosof v. Sec’y of Health & Human Servs.,
No. 14-766V, 2017 WL 1649802, at *4 (Fed. Cl. Mar. 31, 2017) (awarding a neurologist a $500
hourly rate); cf., Smith v. Sec’y of Health & Human Servs., No. 18-0043V, 2020 WL 1243238, at
*9 (Fed. Cl. Spec. Mstr. Feb. 20, 2020) (awarding expert with dual certifications in neurology and
immunology $500 per hour).
It may be that the Special Master’s reduction in Dr. Charleston’s claimed rate to $400 is
reasonable and supportable, but the Court cannot tell, as the Special Master did not analyze Dr.
Charleston’s academic credentials, experience, or work performed in this matter. The Court
remands this matter to the Special Master directing that he clarify his rationale for awarding $400
per hour to Dr. Charleston, a board-certified neurologist.
8
Number of Hours
The Special Master reduced Dr. Charleston’s claimed 54.5 hours by 10 percent “[t]o
account for the lack of specificity” in his billing narratives. Lewis, 2020 WL 831998, at *8. The
Special Master stated that, “[w]hile Dr. Charleston’s invoice is detailed with respect to the exact
time of day he performed various tasks, he could describe the tasks with more detail.” Id. Dr.
Charleston’s time entries include a March 20, 2018 entry claiming 1.3 hours for “Phone call w
Attorney Mike,” an April 3, 2018 entry claiming 1.4 hours for “Team Conference Call,” and a
May 13, 2018 entry claiming 1.4 hours for “Report Drafting and Literature Review”--all without
any further description of the work performed. ECF No. 137, Ex. H at 1-2. Many of Dr.
Charleston’s entries lack pertinent details--the topics covered in a phone call, for instance, or a
description of literature reviewed--which are necessary for a Special Master to assess the
reasonableness of the time claimed. Frantz, 146 Fed. Cl. at 145; McCarty, 142 Fed. Cl. at 628.
Petitioner challenges the Special Master’s 10 percent reduction in Dr. Charleston’s claimed
number of hours, relying on a “more detailed invoice” for Dr. Charleston’s work attached to
Petitioner’s motion for reconsideration, which includes 3.6 hours “he mistakenly overlooked” in
his original invoices. ECF No. 137, Ex. H at 8. This invoice was not submitted in conjunction
with Petitioner’s motion for review--only with her motion for reconsideration--nor does it correct
many of the vague entries in the original invoice. For example, entries in Dr. Charleston’s
“updated invoice” continue to lack pertinent details, such as the April 3, 2018 entry described
above, which now claims 1.4 hours for “Expert Team Conference Call: Case discussion from
several medical perspectives.” ECF No. 144, Ex. F. at 2. Other entries are unchanged, such as the
May 13, 2018 entry claiming 1.4 hours for “Report Drafting and Literature Review.” Id.
It is well established that that fee applicants are to provide “contemporaneous billing
records.” See, e.g., Rumsey v. Dep’t of Justice, 866 F.3d 1375, 1379 (Fed. Cir. 2017) (“[C]ourts
customarily require the applicant to produce contemporaneous billing records or other sufficient
documentation so that the district court can fulfill its duty to examine the application for
noncompensable hours.”); Naporano Iron & Metal Co. v. United States, 825 F.2d 403, 404 (Fed.
Cir. 1987) (“The court needs contemporaneous records of exact time spent on the case . . . . In the
absence of such an itemized statement, the court is unable to determine whether the hours, fees
and expenses, are reasonable for any individual item.”); Am. Fed. Bank, FSB v. United States, 74
Fed. Cl. 208, 223 (2006) (denying expenses submitted by a litigation consultant as “a post hoc
accounting of . . . work rather than contemporaneous . . . billing records”). The Special Master
reasonably refused to consider the revised invoice supporting Dr. Charleston’s hours for the first
time on reconsideration, as that was not a contemporaneous billing record.
The Court affirms the Special Master’s 10 percent reduction of Dr. Charleston’s
reimbursable hours.
The Special Master Failed to Articulate a Reasonable Basis for Reducing Dr. Djalilian’s
Hourly Rate
For Dr. Djalilian, an otolaryngologist who wrote three reports, Petitioner requested
$86,854.20 in compensation for 156 hours of work, at hourly rates ranging from $550 to $578.
9
In his decision, the Special Master awarded Dr. Djalilian an hourly rate of $375, and
reimbursement for 117 hours, a 25 percent reduction in Dr. Djalilian’s claimed number of hours.
The Special Master found that Petitioner “presented very little to justify hourly rates of $550+ per
hour,” articulating six examples of credentials that would warrant higher rates and emphasizing
the value of prior experience in the Vaccine Program. The Special Master reasoned:
While special masters have compensated some experts at a rate of $500 per hour,
these most highly-paid experts come with two qualifications. First, the experts have
professional accomplishments that suggest leadership in the relevant field.
Examples include teaching at prestigious medical schools, conducting research,
writing articles in peer-reviewed journals, reviewing manuscripts before
publication in a peer-reviewed journal, being selected to serve on committees of
national organizations, and receiving honors or awards that recognize
accomplishments. Second, and as importantly, the experts have previous
experience in working as an expert in the Vaccine Program. This experience allows
the expert to work efficiently. Experience contributes to efficiency in several ways,
such as, because the expert knows the topic on which an opinion is required, the
expert does not require much direction from the retaining attorney; because the
expert understands what medical facts support (or undermine) a claim that a vaccine
caused an injury, the expert can review medical records quickly; because the expert
has reviewed literature in previous cases, the expert does not have to search for and
then extensively study medical articles; and because the expert has written reports
and seen how an opposing expert responds, the expert can draft reports that cover
all topics, and possibly anticipate counterarguments.
Lewis, 2020 WL 831998, at *5.
An expert’s rate is held to the same reasonableness standards as an attorney’s. Frantz, 146
Fed. Cl. at 145. For attorneys, a reasonable hourly rate is the “rate prevailing in the community
for similar services by lawyers of a reasonably comparable skill, experience, and reputation.” Id.,
(quoting Blum, 465 U.S. at 896, n.11). Dr. Djalilian is board-certified in otolaryngology and
neurotology. Although acknowledging that Dr. Djalilian had “testified 5 to 10 times in medical-
legal matters in the previous five years,” the Special Master concluded that Dr. Djalilian’s
credentials “d[id] not rise to the level of the experts who are routinely awarded more than $450
per hour.” Lewis, 2020 WL 831998, at *5.
Yet applying the Special Master’s six “examples” of professional accomplishments
justifying higher rates, it appears that Dr. Djalilian meets them all. First, as to “teaching at
prestigious medical schools,” Dr. Djalilian was a professor at the University of California, Irvine
Medical Center’s Department of Otolaryngology. ECF No. 51, Ex. 1 at 1, 2. Second, with respect
to conducting research, Dr. Djalilian won the Albert Holmann Research Award in 2000 and the
Paparella Clinical Otologic Research Award in 1999. Id. at 6. Third, as to writing articles in peer-
reviewed journals, Dr. Djalilian co-authored 92 peer-reviewed papers, and was published in the
American Journal of Otolaryngology, the Ear, Nose, and Throat Journal, and the Annals of
Otology Rhinology and Laryngology, among other publications. Id. at 7-9. Fourth, with respect
to reviewing manuscripts pre-publication, Dr. Djalilian served on the editorial review boards of
several journals--Otology and Neurotology, Audiology and Neurotology, Laryngoscope, Hearing
Research, and Ear and Hearing. Id. at 4. Fifth, as to selection for committees of national
10
organizations, Dr. Djalilian served on the Socioeconomic and Audit committees of the American
Neurology Society, as well as the Equilibrium, Facial Nerve Disorders, Clinical Scholars, and
Implantable Hearing Devices committees of the American Academy of Otolaryngology. Id. at 3.
Finally, in addition to his research awards in 1999 and 2000, Dr. Djalilian was awarded an Honor
Award in 2006, and was named a Clinical Scholar in 2005, by the American Academy of
Otolaryngology-Head and Neck Surgery. Id. at 6.
The Special Master did not say where Dr. Djalilian’s qualifications fell short of
qualifications that command higher rates. Nor did the Special Master describe the higher paid
Vaccine Program experts or articulate what achievements in their background tipped the scales to
warrant rates of above $450 per hour. It is well settled that a Special Master must support his
opinion with sufficient findings and analysis to enable a reviewing Court to determine whether
there was an abuse of discretion. Wasson, 24 Cl. Ct. at 483 (citing Hensley, 461 U.S. at 437).
The Special Master’s evaluation of Dr. Djalilian’s credentials was as follows:
[A]lthough Dr. Djalilian has good professional experience, his credentials do not
rise to the level of experts who are routinely awarded more than $450 per hour.
Thus, his qualifications, by themselves, do not automatically establish that Dr.
Djalilian should be compensated at the rates he requests.
Lewis, 2020 WL 831998, at *5. The Special Master thus arrived at a rate of $375 per hour for Dr.
Djalilian, but failed to explain how he took into account Dr. Djalilian’s experience and credentials.
The Special Master did articulate another basis for reducing Dr. Djalilian’s hourly rate,
reasoning that “[t]he more significant issue with Dr. Djalilian’s background is his lack of
experience as an expert in the Vaccine Program.” Lewis, 2020 WL 831998, at *5. But this notion
of reducing rates of experts simply because they lack experience in the Vaccine Program unfairly
penalizes new experts and creates an obstacle to broader participation by medical experts in the
Program. Procedurally, the “[Vaccine] Program . . . provides for less-adversarial, expeditious, and
informal proceedings as well as flexible and informal standards for the admissibility of evidence.”
Guidelines, Section III, Chapter 1 at 24. Substantively, these vaccine petitions are tort claims
where experts are necessary to help the Special Masters understand what can be complex, cutting-
edge issues of causation, implicating state-of-the-art medical concepts. As causation in Vaccine
petitions is to be assessed on an individual, case-by-case basis, an expert’s general lack of
familiarity with the Vaccine Program, standing alone, ought not be a ground for reducing an
expert’s typical hourly rate. Rather, in deciding expert rates, special masters should apply the
factors articulated in Frantz. 146 Fed. Cl. at 145.
There is another consideration at play in considering whether it is appropriate to reduce an
expert’s rate solely due to lack of experience in this forum. Both this Court and Special Masters
have highlighted the importance of providing reimbursement of attorney fees and expert costs to
encourage the participation of new talent--both legal and medical--in the Vaccine Program. As
the Special Master stated in Iannuzzi v. Secretary of Health & Human Services:
Simply put, the ultimate purpose of Vaccine Act fees and costs awards is not to
benefit the attorneys involved, but to ensure that Vaccine Act petitioners will have
adequate access to competent counsel. Access to such counsel is crucial in enabling
11
petitioners to prosecute their claims successfully, and in maximizing the amount of
petitioners’ awards in successful cases. Attorneys will agree to represent
petitioners in such cases, however, only if they are ensured an adequate recompense
for their time. Accordingly, when attorneys spend a reasonable amount of time and
costs in representing Vaccine Act petitioners, such attorneys must be fairly
compensated for their expenditures, in order to encourage attorneys to participate
in future Vaccine Act cases.
No. 02-780V, 2007 WL 1032379, at *11 (Fed. Cl. Spec. Mstr. Mar. 20, 2007), rev’d in part, 78
Fed. Cl. 1 (2007) (emphasis in original).
More pertinent here, the Court in Frantz recognized the importance of petitioners having
access to “quality expert support” and of encouraging “[c]apable experts” to participate in Vaccine
Act litigation through adequate compensation. See 146 Fed. Cl. at 146. In Sabella v. Secretary of
Health & Human Services, No. 02–1627V, 2008 WL 4426040 (Fed. Cl. Spec. Mstr. Sept. 23,
2008), rev’d in part, 86 Fed. Cl. 201 (2009), the Special Master in this case noted that “[a]ttorneys
who are new to the Vaccine Program can improve it by retaining doctors who have not testified in
this program as an expert previously. These new experts, in turn, can offer different perspectives
that inform the decisions of special masters.” 2008 WL 4426040, at *18. 5
Indeed, Special Masters have awarded an hourly rate of $500 to expert witnesses, despite
their lack of experience in the Vaccine Program, when warranted by their credentials and expertise
in applicable fields of study. See Schultz v. Sec’y of Health & Human Servs., No. 16-539V, 2018
WL 1835104, at *3 (Fed. Cl. Spec. Mstr. Feb. 16, 2018); Castaneda v. Sec’y of Health & Human
Servs., No. 15-1066V, 2018 WL 9457462, at *7 (Fed. Cl. Spec. Mstr. June 21, 2018); Goff v.
Sec’y of Health & Human Servs., No. 17-0259V, 2019 WL 3409976, at *5 (Fed. Cl. Spec. Mstr.
Mar. 29, 2019). Compensating experts new to the Vaccine Program at hourly rates commensurate
with their credentials and expertise consistent with the factors articulated in Frantz would benefit
the Vaccine Program, as it would not deter new medical professionals from participating.
Here, the Special Master cited Dr. Djalilian’s lack of experience in the Vaccine Program
not only as a cause for what the Special Master characterizes as inefficiency, but also as a basis
for reducing both his hourly rate and number of reimbursable hours. The Special Master stated
that Dr. Djalilian’s “invoice shows that he was learning how to present opinions in the Vaccine
Program.” Lewis, 2020 WL 831998, at *5. As one example, the Special Master cited Dr.
Djalilian’s time entry claiming 1.5 hours for “reviewing sample reports,” stating that “more
experienced experts would not need to spend this time” because they “already possess sample
reports from their previous work.” Id. at *6. According to the Special Master, “this one entry
encapsulates a basic problem with Dr. Djalilian’s invoice: he requests to be paid at an hourly rate
that is awarded to very experienced (and very efficient) experts, yet . . . he spent hours on the case
that a very experienced expert would not have.” Id.
As “[o]ther examples of inefficiency,” the Special Master cited Dr. Djalilian’s invoice
claiming “roughly the equivalent of three eight-hour workdays” for time spent “reviewing,
5
“To encourage the participation of new attorneys and new experts,” this Special Master
stated, time attorneys spend searching for new experts is “generally compensable.” Sabella,
2008 WL 4426040, at *18.
12
understanding, and writing the facts for [Petitioner],” as well as entries claiming 29.4 hours for
“reviewing literature” for one of Dr. Djalilian’s three reports. Id. The Special Master also cited
Dr. Djalilian’s entries claiming 42 minutes for time spent reviewing a seven-page article on “Risk
Factors for Tinnitus,” as well as 90 minutes spent on “[l]iterature review on otalgia associated with
migraine and review of Teixido paper (7 pp).” Id.
The Special Master concluded:
It may be the case that if Dr. Djalilian were to continue participating in the Vaccine
Program, his gain in experience would lead to increased efficiency. But, Dr.
Djalilian, in his first case in the Vaccine Program, has not achieved that level of
efficiency.
Under these circumstances, the undersigned relies upon his experience in reviewing
expert invoices in past cases and his experience in working on this particular case
to form a reasonable amount of compensation for Dr. Djalilian. The undersigned
finds a reasonable hourly rate for Dr. Djalilian’s work is $375.00 per hour. To
account for problems and inefficiencies in Dr. Djalilian’s invoice, the undersigned
deducts 25 percent from the requested number of hours, crediting Dr. Djalilian with
117 hours. Thus, a reasonable amount of compensation for Dr. Djalilian is
$43,875.00.
Id.
A special master has discretion to reduce the number of hours an expert is awarded due to
inefficiencies. As the Federal Circuit has recognized, it is “well within the special master’s
discretion to reduce the hours to a number that, in his experience and judgment, was reasonable
for the work done,” based upon his past experience with attorneys and experts in the Vaccine
Program. Saxton, 3 F.3d at 1521. It is unreasonable, however, to ding this expert twice for the
same inefficiency due to inexperience with the Vaccine Program. Here, the Special Master
reduced Dr. Djalilian’s total number of hours by 25 percent, and his hourly rate by 32 percent. See
Lewis, 2020 WL 831998, at *5-7.
It is well established that the reasonableness of an attorney or expert’s rate is a separate
inquiry from the reasonableness of the number of hours claimed. See generally Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (“Using the lodestar approach,
a court first determines an initial estimate of a reasonable attorneys’ fee by ‘multiplying the number
of hours reasonably expended on the litigation times a reasonable hourly rate.’”) (quoting Blum,
465 U.S. at 888)); McCarty, 142 Fed. Cl. at 620-21. With respect to an expert’s rate, the inquiry
is whether the rate is that prevailing in the community for similar services by experts of reasonably
comparable skill, experience, and reputation. Frantz, 146 Fed. Cl. at 145 (quoting Blum, 465 U.S.
at 896, n.11). With respect to hours, the inquiry is whether an expert billed too much time for a
given task, as excessive, redundant, or unnecessary hours are not compensable. Saxton, 3 F.3d at
1521. Thus, inefficiencies should be considered in assessing the reasonableness of hours billed,
but they should not additionally impact the rate an expert may command based upon his
credentials, experience, and expertise. As such, the Court upholds the Special Master’s reduction
of hours due to inefficiencies, but not a reduction in the expert’s rate solely due to his lack of
13
experience in the Vaccine Program. The matter of Dr. Djalilian’s rate is remanded to the Special
Master for re-evaluation consistent with this opinion.
Conclusion
The Special Master’s decision as to the costs of Dr. Akbari and the number of reimbursable
hours of Dr. Charleston and Dr. Djalilian, is affirmed.
The Special Master’s decision as to Dr. Charleston’s and Dr. Djalilian’s hourly rates is
remanded for re-evaluation consistent with this opinion.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Senior Judge
14