Rachel Mcculloch M. v. Sec'y of Health & Human Servs.

• Decision Date: 21 September 2015
• Docket Number: No. 09-293V,09-293V
• Parties: RACHEL MCCULLOCH as parent and legal guardian of A.M., Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Claims Court

RACHEL MCCULLOCH as parent and legal guardian of A.M., Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 09-293V

United States Court of Federal Claims

September 21, 2015

OFFICE OF SPECIAL MASTERS

TO BE PUBLISHED

Real Rate Report; Attorneys' Fees and Costs; Boston, Massachusetts local rate.

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 ofjustice." 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.

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...