“In evaluating a fee request, a special master is permitted to reduce attorneys’ hours found to be excessive by a percentage; a ‘line-by-line’ determination is not required.”
How later courts described this case
- “In evaluating a fee request, a special master is permitted to reduce attorneys’ hours found to be excessive by a percentage; a ‘line-by-line’ determination is not required.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 14-907V
(E-Filed: October 8, 2020) 1
)
ANNE ABBOTT, )
on behalf of her minor child, R.A., )
)
Petitioner, ) Interim Award of Costs;
v. ) Reasonable Hourly Rate for
) Experts; Reasonable
SECRETARY OF HEALTH ) Compensable Hours for Experts.
AND HUMAN SERVICES, )
)
Respondent. )
)
Andrew D. Downing, Phoenix, AZ, for petitioner.
Ida Nassar, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney
General, C. Salvatore D’Alessio, Acting Director, Catharine E. Reeves, Deputy Director,
Gabrielle M. Fielding, Assistant Director, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, for respondent.
OPINION AND ORDER
CAMPBELL-SMITH, Judge.
On May 14, 2020, the special master issued his decision awarding costs on an
interim basis in this vaccine case. See ECF No. 131. On May 18, 2020, petitioner, on
behalf of her minor child, R.A., filed a motion for review of the special master’s
decision, ECF No. 132, and a memorandum in support thereof, ECF No. 133.
Respondent filed its response on June 17, 2020. See ECF No. 137. And, with leave of
court, petitioner filed a reply in support of the motion on July 9, 2020. See ECF No.
141. Petitioner’s motion is fully briefed and ripe for decision. For the following
1
This opinion was issued under seal on September 18, 2020, in accordance with Rule
18(b) of the Vaccine Rules of the United States Court of Federal Claims (Appendix B to the
Rules of the United States Court of Federal Claims). The parties had fourteen days within
which to propose redactions. No redactions were proposed by the parties. Thus, the sealed and
public version of this opinion are identical, except for the publication date and this footnote.
reasons, petitioner’s motion for review is DENIED in part, and this case is
REMANDED in part to the special master for further proceedings.
I. Background
Petitioner filed her petition in this case on September 26, 2014. See ECF No. 1.
Therein, petitioner alleges that her minor child suffered serious injuries after receiving a
measles-mumps-rubella (MMR) vaccination. See id. at 1-2. Petitioner’s “claim that a
measles-mumps-rubella (‘MMR’) vaccination harmed her child, R.A., remains pending
while the parties explore an informal resolution.” ECF No. 131 at 1.
During the pendency of this case, petitioner has filed three motions requesting
awards of interim attorneys’ fees and costs. Petitioner filed the first motion on July 1,
2015. See ECF No. 32. On February 10, 2016, petitioner filed a motion for a decision
on the motion for interim attorneys’ fees and costs because the parties were unable to
resolve the matter. See ECF No. 57. The special master granted the motion in part, but
“reserve[d] the issue of the costs paid for [petitioner’s] expert, Dr. [David] Siegler, for a
later determination.” ECF No. 58 at 2. When petitioner made the initial request for
interim fees and costs, petitioner had filed an expert report from Dr. Siegler, a pediatric
neurologist, and had incurred costs for his expert services in an amount of $12,150. See
id. at 5, 6.
The parties disagreed with regard to the reasonableness of Dr. Siegler’s hourly
rate, and the special master denied petitioner’s first request for an interim award to
include costs incurred for Dr. Siegler’s expert services as premature. See id. at 11-12.
He concluded as follows:
Because the quality of the expert’s work is a factor that should be considered
when determining the appropriate rate, it is advantageous to have heard the
expert witness’s testimony before making this determination. See [Al-Uffi v.
Sec’y of Health and Human Servs., No. 13-956V, 2015 WL 6181669, at *14
(Fed. Cl. Spec. Mstr. Sept. 30, 2015)](noting that interim expert costs are
more commonly awarded after a hearing). Thus, the undersigned declines to
award expert costs at this time for work performed by Dr. Seigler. An
entitlement hearing may be held in June 2017. Following the hearing, Ms.
Abbott may again file for interim costs, including additional costs which
have been incurred.
Id. at 12.
On October 22, 2018, petitioner filed her second motion for an interim award of
attorneys’ fees and costs. See ECF No. 92. The motion, again, sought an award to
include costs incurred for Dr. Siegler’s expert services. Petitioner requested
2
compensation for the amount included in her initial motion, $12,150, plus an additional
$25,750 for the cost of Dr. Siegler’s supplemental expert report, for a total of $37,900.
See ECF No. 92-1 at 36; ECF No. 100 at 7. The special master, on March 19, 2019,
again found that given the parties’ disagreement about the reasonableness of Dr.
Siegler’s rates, an award of such costs was premature:
Since Dr. Siegler has not yet had the opportunity to testify, the undersigned
declines to award expert costs at this time for work performed by Dr. Seigler.
Following a decision on the parties’ briefs or an entitlement hearing, Ms.
Abbott may again file for Dr. Siegler’s costs, including any additional costs
which have been incurred.
Id. at 8.
On March 20, 2019, petitioner filed a motion for reconsideration of the special
master’s March 19, 2019 decision. See ECF No. 102. And on May 15, 2019, petitioner
filed a third motion seeking an interim award of costs in an effort to recover the $37,900
petitioner’s counsel had paid Dr. Siegler. See ECF No. 108. While the two motions
were pending, the parties agreed to pursue alternative dispute resolution, and the special
master cancelled the entitlement hearing which had been scheduled for October 27,
2020. See ECF No. 128 at 1 (April 29, 2020 order). Shortly thereafter, on May 14,
2020, the special master issued his decision ruling on petitioner’s motions. See ECF No.
131.
As a predicate matter, the special master agreed with petitioner that the case was
eligible for an award of attorneys’ fees and costs because petitioner “possessed a
reasonable basis for the claim asserted in her petition.” Id. at 3. The special master also
found that an interim award of attorneys’ fees and costs was timely. He explained that,
despite his earlier rulings deferring any award for costs incurred for Dr. Siegler’s expert
services until after the entitlement hearing:
the parties settlement efforts change[d] the balance. It is foreseeable,
although not guaranteed, that the parties will agree to resolve the case
informally. If so, a hearing will not be held, and the undersigned would
resolve the reasonableness of Dr. Siegler’s request as part of an application
for final fees without the benefit of hearing his testimony. Alternatively, if
settlement efforts do not reach fruition, then Dr. Siegler will remain without
payment for probably one year until a hearing can be rescheduled. To avoid
this situation, payment for Dr. Siegler is appropriate now.
Id. at 4.
3
The final part of the special master’s decision addressed the reasonableness of Dr.
Siegler’s fee. See id. at 4-6. From December 7, 2014, through June 30, 2015, Dr.
Siegler proposed an hourly rate of $450 for his expert services. See id. at 4. He
increased that proposed hourly rate to $500 for work performed after June 30, 2015. See
id. After reviewing caselaw the special master deemed relevant, he concluded that a
reasonable hourly rate for Dr. Siegler’s services was $400. See id. at 6.
The special master further reduced the award to petitioner due to inadequate
descriptions of his work and charges for administrative work. He explained:
With respect to the number of hours, Dr. Siegler should provide additional
detail. For example, on December 19, 2015, Dr. Siegler states that he spent
2.5 hours when he “reviewed literature.” However, the articles that Dr.
Siegler reviewed are not specified and without some information, assessing
the reasonableness of his activity is difficult. A separate issue is that Dr.
Siegler has charged his full rate for performing tasks, such as collecting
references, that could be delegated to a person charging a lower hourly rate.
Id. As a result of these deficiencies, the special master reduced petitioner’s award for
costs incurred for Dr. Siegler’s expert services by an additional ten percent, for a total
award of $28,260. See id.
Petitioner now asks the court to review the special master’s decision to reduce Dr.
Siegler’s hourly rate and his compensable time. See ECF No. 132.
II. Legal Standards
A. Standard of Review
The United States Court of Federal Claims has jurisdiction to review the decision
of a special master in a Vaccine Act case. See 42 U.S.C. § 300aa-12(e)(2) (2018). This
grant of review jurisdiction extends to decisions related to an interim award of attorneys’
fees and costs. See Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1376
(Fed. Cir. 2010). “Under the Vaccine Act, the Court of Federal Claims reviews the
decision of the special master to determine if it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]’” de Bazan v. Sec’y of Health &
Human Servs., 539 F.3d 1347, 1350 (Fed. Cir. 2008) (quoting 42 U.S.C. § 300aa-
12(e)(2)(B) and citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277
(Fed. Cir. 2005)).
This court uses three distinct standards of review in Vaccine Act cases, depending
upon which aspect of a special master’s judgment is under scrutiny.
4
These standards vary in application as well as degree of deference. Each
standard applies to a different aspect of the judgment. Fact findings are
reviewed . . . under the arbitrary and capricious standard; legal questions
under the “not in accordance with law” standard; and discretionary rulings
under the abuse of discretion standard.
Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir.
1992). An award of attorneys’ fees and costs is a discretionary decision, reviewed by
this court under the abuse of discretion standard. See Hall v. Sec’y of Health & Human
Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011).
In order to conclude that the special master has abused his discretion, the court
must find that the special master’s decision was: “(1) . . . clearly unreasonable,
arbitrary, or fanciful; (2) . . . based on an erroneous conclusion of the law; (3) . . . clearly
erroneous; or (4) the record contains no evidence on which the . . . [special master]
rationally could have based his decision.” Chuisano v. United States, 116 Fed. Cl. 276,
284 (2014) (citations omitted). As the United States Court of Appeals for the Federal
Circuit has held, “[i]f the special master has considered the relevant evidence of record,
drawn plausible inferences and articulated a rational basis for the decision, reversible
error will be extremely difficult to demonstrate.” Hines v. Sec’y of Dep’t of Health &
Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).
B. Expert Fees
“Petitioner bears the burden of proving that her expert costs are reasonable.”
Caves v. Sec’y of Dep’t of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013). The
Federal Circuit has “endorsed the use of the lodestar approach to determine what
constitutes ‘reasonable attorneys’ fees’ under the Vaccine Act.” Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008) (citing Saxton ex rel.
Saxton v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir.
1993)). Under that approach, the 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.” Once a court makes that initial calculation,
it may then make an upward or downward departure to the fee award based
on other specific findings.
Avera, 515 F.3d at 1347-48 (quoting and citing Blum v. Stenson, 465 U.S. 886, 888
(1984)).
Special masters may consider a number of factors in awarding expert fees,
including:
5
(1) [T]he witness’[s] 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].
Frantz v. Sec’y of Health & Human Servs., 146 Fed. Cl. 137, 145 (2019) (citations
omitted) (alterations in original). Special masters should not award fees for hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In addition, special masters may
reduce “a medical expert’s hours for vague billing entries, as experts, like attorneys,
must detail and explain work performed.” Lewis v. Sec’y of Health & Human Servs.,
No. 15-907V, 2020 WL 4433775, at *4 (Fed. Cl. July 15, 2020).
III. Analysis
In her motion for review, petitioner argues that the special master “arbitrarily and
capriciously reduced Dr. Siegler’s rate” and his “compensable time.” ECF No. 132 at 1.
In the memorandum in support of her motion, petitioner characterizes the special
master’s reductions as “legal error.” ECF No. 133 at 10.
Petitioner first recounts, in detail, Dr. Siegler’s considerable experience offering
his opinion in the vaccine program, as both a treating physician and as an expert. See id.
at 10-15. In several of the cases cited by petitioner, the presiding special master
awarded Dr. Siegler $500 per hour, the rate requested in this case. See id. at 12-14. And
petitioner notes that “[i]n every one of [the cited] cases, Dr. Siegler’s rate as an expert in
pediatric neurology was either $450/hr. or $500/hr.” Id. at 14.
Here, the special master acknowledged that Dr. Siegler had been awarded fees in
a number of cases, but upon review of those cases, found that “only one case contained a
discussion of Dr. Siegler’s hourly rate, . . . and that case set his hourly rate at
$400/hour.” ECF No. 131 at 6 (citing Zumwalt v. Sec’y of Health & Human Servs., No.
16-994V, 2018 WL 6975184 (Fed. Cl. Spec. Mstr. Nov. 27, 2018)). In each of the other
cited cases, Dr. Siegler’s compensation was either stipulated to, not objected to, or not
substantively discussed. See id. at 4-6. The special master held in this case that
“[c]onsidering that one discussion of Dr. Siegler’s hourly rate, the lack of any other
substantive discussions of Dr. Siegler’s hourly rate, and the fact that the undersigned has
not yet observed Dr. Siegler testify, the undersigned finds that $400/hour is a reasonable
hourly rate for Dr. Siegler.” Id. at 6.
6
According to petitioner, the special master’s decision should be reversed based
not only on Dr. Siegler’s history of being awarded a higher hourly rate in vaccine
program cases, but also based on his credentials, his long experience in the field of
pediatric neurology, and the quality of his work. See ECF No. 133 at 15. In response,
respondent does not affirmatively argue that $400 per hour is the correct rate of
compensation for Dr. Siegler, but rather, argues that “the Special Master was entirely
within his discretion to award an hourly rate of $400 for Dr. Siegler.” ECF No. 137 at
16.
In the court’s view, the special master’s decision does not provide adequate detail
for the court to determine whether his award decision involved an abuse of discretion.
The special master, of course, has broad discretion to determine the appropriate hourly
rate of compensation for an expert. And the court does not find at this time that $400
per hour is inappropriate; rather, the court finds that the special master must explain
more fully the basis for his decision.
As this court has previously outlined, special masters may consider a number of
factors in awarding expert fees, including:
(1) [T]he witness’[s] 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].
Frantz, 146 Fed. Cl. at 145. In both petitioner’s motion for reconsideration and her third
motion for an interim award of costs, petitioner emphasized the quality of Dr. Siegler’s
reports produced in this case, his “high level of expertise in the area of pediatric
neurology—the area for which he is being offered as an expert in this case,” and his
considerable experience in the vaccine program. ECF No. 108 at 2; see also ECF No.
102 at 5.
The special master’s decision does not indicate that he considered these factors
despite the fact that petitioner’s argument was based in large part thereon. And while a
failure to consider these particular factors may not necessarily indicate an abuse of
discretion, the incomplete assessment of the facts that the special master did consider is
more problematic. The special master explicitly relied on the hourly rate set for Dr.
Siegler in Zumwalt, but failed to address the fact that in Zumwalt, Dr. Siegler served as
a treating physician, not an expert witness. See ECF No. 131 at 6. The special master in
Zumwalt, in fact, reduced Dr. Siegler’s proposed hourly rate for precisely that reason,
finding that Dr. Siegler’s “role as one of [petitioner’s] treaters . . . renders his
7
participation in this case a bit different from an expert” and that his fee “should also take
into account that his testimony did not require the kind of labor that an expert solely
offering a third-party opinion would have to perform.” Zumwalt, 2018 WL 6975184, at
*5. If the special master considers this distinction to be irrelevant or otherwise not
sufficiently material to affect Dr. Siegler’s hourly rate in the context of this case, he
should explain his reasoning so that the court can conduct a proper review thereof. The
court will remand the case to the special master so that he may do so.
B. Compensable Time
Petitioner also objects to the special master’s decision to reduce Dr. Siegler’s
compensable hours. She argues that the special master made “an arbitrary and
capricious 10% across-the-board reduction” to Dr. Siegler’s compensable hours. ECF
No. 133 at 18. The special master found as follows:
With respect to the number of hours, Dr. Siegler should provide additional
detail. For example, on December 19, 2015, Dr. Siegler states that he spent
2.5 hours when he “reviewed literature.” However, the articles that Dr.
Siegler reviewed are not specified and without some information, assessing
the reasonableness of his activity is difficult. A separate issue is that Dr.
Siegler has charged his full rate for performing tasks, such as collecting
references, that could be delegated to a person charging a lower hourly rate.
For these reasons, an additional 10 percent is removed from Dr. Siegler’s
invoice.
ECF No. 131 at 6.
According to petitioner, this reduction was unjustified because “[t]he special
master criticizes one 2.5 hour entry . . . yet . . . applies a 10% reduction across the
board.” ECF No. 133 at 18. In petitioner’s view, “applying an across-the-board
percentage reduction for no reason whatsoever is completely arbitrary and capricious
and prejudicial to Petitioner.” Id. Petitioner contends that “[t]he special master takes
issue with Dr. Siegler’s billing for ‘collecting references,’ but then gives no rationale as
to why this task deserved a lower hourly rate.” Id.
The court finds that the ten percent reduction was a permissible exercise of the
special master’s discretion. Petitioner may disagree with the special master’s
assessment that Dr. Siegler’s billing entries lacked specificity, or his determination that
Dr. Siegler should not be compensated at his full hourly rate for tasks the special master
views as delegable. Her disagreement notwithstanding, the special master’s conclusion
that certain billing entries needed “additional detail,” or charged for tasks “that could be
delegated to a person charging a lower hourly rate,” are reasoned bases for his decision
in this regard. ECF No. 131 at 6. In addition, the fact that the special master did not go
8
line-by-line through the billing entries does not amount to an abuse of discretion. See
Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 702 (2016) (“In
evaluating a fee request, a special master is permitted to reduce attorneys’ hours found to
be excessive by a percentage; a ‘line-by-line’ determination is not required.”) (citation
omitted).
For these reasons, the court will deny petitioner’s motion for review as it relates
to the special master’s decision to reduce Dr. Siegler’s compensable hours by ten
percent.
IV. Conclusion
Accordingly,
(1) Petitioner’s motion for review, ECF No. 132, is DENIED in part, and
REMANDED in part;
(2) The special master’s decision to reduce Dr. Siegler’s compensable
hours, is SUSTAINED;
(3) The remainder of the case, relating to the special master’s decision to
reduce Dr. Siegler’s hourly rate is REMANDED to the special master for
further proceedings in accordance with this opinion; and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly blacked out, on or before
October 2, 2020.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
9