Morse v. Secretary of Department of Health & Human Services

89 Fed. Cl. 683, 2009 U.S. Claims LEXIS 355, 2009 WL 3808621
CourtUnited States Court of Federal Claims
DecidedNovember 10, 2009
DocketNo. 05-418 V
StatusPublished
Cited by29 cases

This text of 89 Fed. Cl. 683 (Morse v. Secretary of Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morse v. Secretary of Department of Health & Human Services, 89 Fed. Cl. 683, 2009 U.S. Claims LEXIS 355, 2009 WL 3808621 (uscfc 2009).

Opinion

OPINION AND ORDER

BUSH, Judge.

Ms. Jennifer Morse and respondent previously reached a settlement as to a stipulated awai'd for her claim for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2006) (the Vaccine Act). Respondent nonetheless disputed a poi’tion of petitioner’s request for attorneys’ fees and costs. The special master assigned to this case reduced petitioner’s requested award of expert costs. Now pending befare the court is petitioner’s motion for review of the special master’s June 5, 2009 decision on attorneys’ fees and costs (Fees Opin.). For the x’easons stated below, the court affirms the special mastei*’s decision.

BACKGROUND

I. Litigation History

Ms. Morse filed a claim under the Vaccine Act on March 30, 2005 alleging injuries related to her hepatitis B vaccination. The case [685]*685was assigned to Special Master Christian J. Moran on February 8, 2006. On January 5, 2009, the parties stipulated to an award for Ms. Morse, and on January 8, 2009, the special master issued a decision incorporating the terms of the parties’ stipulation. On February 19, 2009, the Clerk’s office entered judgment for petitioner in the lump sum amount of $30,000. The parties’ stipulation noted that petitioner would also request reasonable attorneys’ fees and costs, as provided by 42 U.S.C. § 300aa-15(e)(1). The special master issued his decision on fees and costs on June 5, 2009.

II. Fees and Costs Not in Dispute

Respondent United States did not object to the reasonable attorneys’ fees requested by Ms. Morse for litigating her claim, and, subsequently, for litigating her attorneys’ fees and costs application before the special master, in the total amount of $40,894.20.2 Respondent also did not contest three categories of costs identified in petitioner’s application, which included the expenses of obtaining medical records, mailing expenses and the like. These costs totaled $1693.10. The special master approved the uncontested attorneys’ fees and costs as reasonable, and adopted these figures as part of his attorneys’ fees and costs decision.

III. Costs in Dispute

The parties disagreed, however, as to the reasonable total costs of the experts employed by petitioner in this litigation. Petitioner reported costs for the services of two medical experts, Dr. Sherri Tenpenny and Dr. Thomas Morgan. In the initial application for costs submitted by petitioner, Dr. Tenpenny’s services were billed at $14,522.50, for 44.5 work hours, and Dr. Morgan’s services were billed at $1750, for five work hours.

Dr. Tenpenny’s invoice includes only three line items. The first line item is for 43.5 work hours, at $325 per hour, described as “Expert Witness testimony: Review of records, medical literature, draft report and discussion with [counsel].” Pet’r Fees Appl. Tab B at 22. The second line item is for one work hour for “Phone discussion with [counsel].” Id. The third line item is for $60 for the purchase of an article titled “Variants and differential diagnosis of Guillain-Barré syndrome.” Id. at 22-23. Petitioner included in her fee application a nine-page document authored by Dr. Tenpenny, which appears to be a commentary on Ms. Morse’s medical records, titled “case notes.” Id. Tab D. Respondent questioned “whether it was reasonable for petitioner to engage two experts to review this case,” and raised other concerns regarding the qualifications of Dr. Tenpenny and the total hours billed by Dr. Tenpenny. Resp’t Fees Resp. at 5-6.

Petitioner filed the curriculum vitae of Dr. Tenpenny one week after respondent questioned Dr. Tenpenny’s qualifications as an expert. On the same day, petitioner filed a reply to respondent’s response to petitioner’s attorneys’ fees and costs application. In her reply, petitioner reviewed the early stages of this litigation, when causation of Ms. Morse’s vaccine injury and the need for expert analysis of that issue were contested by the parties. Petitioner further explained why Dr. Tenpenny, one of Ms. Morse’s treating physicians, was engaged as an expert, and the role she played in resolving this litigation. Petitioner defended Dr. Tenpenny’s qualifications to serve as an expert in this matter, and suggested that the hours billed were reasonable to “fully review all of the medical records and to fully review all of the literature to determine whether she could support a link between [petitioner’s] vaccine and her injury.” Pet’r Fees Reply at 8.

Petitioner also defended the costs expended on Dr. Morgan’s services, which were billed at $350 per hour. Dr. Morgan is a neurologist, and was therefore better able to discuss the neurological injuries alleged by Ms. Morse. According to petitioner, Dr. Morgan’s expertise supplemented that of Dr. Tenpenny’s, and “[e]aeh expert provided unique services.” Pet’r Fees Reply at 10. Petitioner noted that respondent has sometimes engaged more than one expert in a vaccine ease. Petitioner further concluded [686]*686that the hours and rates charged by her experts were reasonable.

After the parties failed to settle the dispute over expert costs, petitioner requested leave “to file relevant evidence which will clarify Dr. Tenpenny’s invoice.” Pet’r March 3, 2009 Mot. at 1. Petitioner stated in her clarification that forty work hours were spent by Dr. Tenpenny reviewing medical records. Pet’r April 14, 2009 Clarification at 3. Petitioner related that Dr. Tenpenny typically “review[s] 25-30 pages of medical records per hour.” Id. The other 4.5 work hours were spent reviewing one article and in discussions with counsel. Id. Petitioner also indicated that Dr. Morgan billed relatively few hours, as a second expert, because he “required only 5 hours to confer with Dr. Tenpenny, review her findings, and complete his independent research.” Id. at 4.

IV. The Special Master’s Reasonable Expert Costs Determination

The special master reviewed Dr. Tenpen-ny’s invoice that was submitted as part of petitioner’s initial application for attorneys’ fees and costs and found that the invoice was deficient because it was not a “detailed invoice];] created contemporaneously.” Fees Opin. at 5. The special master also noted that petitioner’s description of the type of work performed by Dr. Tenpenny evolved over time. Id. Because of the confusing nature of the invoice and subsequent, varying explanations by Ms. Morse, as well as the lack of detail in the invoice, the special master concluded that petitioner had not met her burden of showing that Dr. Tenpenny’s billed costs were reasonable. The special master nonetheless estimated that “[a] reasonable number of hours for Dr. Tenpenny’s activities is 13 hours.” Id. at 6. The special master found that an additional work hour would be reasonable for one telephone conversation with counsel and the review of one relevant article. Thus, the special master awarded petitioner costs for fourteen hours of work performed by Dr. Tenpenny.

The special master stated that Dr. Morgan’s invoice also lacked detail as to work hours per task and the date when each task was performed. In particular, the special master noted that Dr.

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89 Fed. Cl. 683, 2009 U.S. Claims LEXIS 355, 2009 WL 3808621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-v-secretary-of-department-of-health-human-services-uscfc-2009.