Zeagler v. Secretary of the Department of Health & Human Services

19 Cl. Ct. 151, 1989 U.S. Claims LEXIS 271, 1989 WL 156044
CourtUnited States Court of Claims
DecidedDecember 11, 1989
DocketNo. 88-18 V
StatusPublished
Cited by8 cases

This text of 19 Cl. Ct. 151 (Zeagler v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zeagler v. Secretary of the Department of Health & Human Services, 19 Cl. Ct. 151, 1989 U.S. Claims LEXIS 271, 1989 WL 156044 (cc 1989).

Opinion

ORDER

(i) REMANDING FOR FURTHER EVIDENCE and

(ii) ESTABLISHING CRITERIA FOR AWARD OF ATTORNEYS’ FEES

WIESE, Judge.

I

This suit involves a claim for compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-l — 300aa-34 (Supp V.1987). As contemplated by the Act, the matter was [152]*152referred to a special master for the preparation of proposed findings of fact and recommended conclusions of law. The special master’s report, issued October 13, 1989, reaches the following principal conclusions:

(i) to a reasonable medical certainty, petitioner is suffering from post-rubella panencephalitis, which, as a form of encephalopathy, is a disorder recognized by the Vaccine Injury Table, 42 U.S.C. § 300aa-14;

(ii) a preponderance of the evidence supports a finding that the petitioner’s disorder was caused by administration of the rubella vaccine;

(iii) the record is devoid of evidence sufficient to support an alternative causation for petitioner’s injuries; and

(iv) petitioner’s disorder is progressive and debilitating; it has, to date, led to substantial disability that is likely to increase and is likely to reduce her life expectancy.

Based on the foregoing, the special master recommended judgment for petitioner in the amount of $933,724,1 this sum to include the following elements of compensation: recurring expenses (reduced to net present value) of $863,719, non-recurring expenses of $40,005, an award for pain and suffering of $12,352 and reasonable attorneys’ fees and costs of $17,648.

Neither side has filed an objection to the special master’s recommendations. The court, acting on its own motion, has examined the record and agrees with the special master’s proposed findings of fact and conclusions of law regarding the nature and cause of petitioner’s injuries; accordingly, we adopt those findings. However, the court does not agree with the amount recommended for award. For reasons we explain below, neither the amount of compensation proposed for recurring expenses nor the amount allowed for attorneys’ fees and costs is supportable.

II

A. Recurring Expenses —The special master concluded that because of the progressive nature of petitioner’s disease and the anticipated worsening of her symptoms she would require the services of a licensed practical nurse on a full-time basis (i.e., 24 hours per day) beginning in 1994. The cost of this care was estimated at $130,273 per year or $1,954,095 over the projected 20 years of petitioner’s remaining life. When adjusted for annual increases due to inflation and then reduced to present value, this figure comes to $671,-510.2 This amount was included in the total of recurring future expenses recommended for award.3

In support of his conclusion, the special master relied on the report of petitioner’s expert, Dr. Marcel Kinsbourne, and medical literature relating to progressive rubella panencephalitis. In our view, however, neither of these evidentiary sources warrants a conclusion that the course of the petitioner’s disease will necessitate full-time custodial care by a licensed practical nurse five years hence. Consider first the report of Dr. Kinsbourne. In the section of his report captioned “Opinion” Dr. Kinsbourne wrote:

The recurrent arthritic and neurological syndrome that Ms. Zeagler has experienced is typical of a rubella aftermath, and there is no other reasonable explanation. Her problems in higher mental function are part of this syndrome, and consistent with the cerebral demyelination reported on MRI [magnetic resonance imaging]. To a reasonable medical certainty, Ms. Zeagler is suffering from a vaccine related injury, a post rubella panencephalitis. This condition will persist and may become worse, to the point that she is incapacitated and in need of custodial care. No curative treatment is available. (Underscoring added.)

Next, consider the 1982 article titled “Neuropathology of progressive rubella panencephalitis after childhood rubella” that appeared in the medical journal “Neurology.” The opening sentence of this article reads as follows:

Progressive rubella panencephalitis (PRP) is characterized by progressive ataxia, spasticity, and dementia usually [153]*153in the second decade. added.) (Underscoring

Townsend, Stroop, Beringer, Wolinski, McKerrow & Berg, Neuropathology of progressive rubella panencephalitis after childhood rubella, 32 Neurology 185 (1982).

The special master based his conclusion on the underscored language. Fairly read, however, this language shows only that petitioner is afflicted with a disease that may worsen to the point that custodial care will be required. Plainly, the evidence is not sufficient to support a present money judgment for the costs of round-the-clock nursing care beginning in 1994. The matter must be returned to the special master to obtain further evidence as to (1) the likelihood of petitioner’s further deterioration; (2) the rate at which that deterioration is expected to occur {i.e., over what period of years); and (3) most importantly, the nature and extent of the medically appropriate cave her future condition will require, i.e., whether hospitalization or at-home custodial care, and if the latter, the daily number of hours that might reasonably be necessary.4

B. Attorneys’ Fees — The Vaccine Act authorizes the awarding of reasonable attorneys’ fees and other costs. See 42 U.S.C. § 300aa-15(e). In determining the amount allowable as a reasonable attorney’s fee in this case, the special master relied on the so-called “lodestar” approach, i.e., the number of hours reasonably expended on the litigation times a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Guided by this method, the special master accepted as reasonable the 38.62 attorney hours claimed (“duplicative hours,” he noted, “have been carefully avoided”) but reduced the requested $275 hourly rate to $250, noting that “respondent played no role in this case.” From these numbers comes the final figure recommended for judgment — an attorney’s fee of $9,665.

We cannot accept this figure. Although the lodestar approach yields a market-based value and therefore is presumed to be reasonable, it is, nevertheless, an initial estimate only — one which a court may adjust “where the fee charged is out of line with the nature of the services rendered.” Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2558, 101 L.Ed.2d 490 (1988) (Brennan, J., concurring); see also Blanchard v. Bergeron, — U.S.-, 109 S.Ct. 939, 945, 103 L.Ed.2d 67 (1989). As the court sees this case, a downward adjustment of the hourly fee is necessary.

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19 Cl. Ct. 151, 1989 U.S. Claims LEXIS 271, 1989 WL 156044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeagler-v-secretary-of-the-department-of-health-human-services-cc-1989.