Al-Uffi v. HHS, (Fed. Cl. Spec. Mstr. Sep. 30, 2015) (Corcoran, SM)
Under Avera, the following criteria are considered in determining whether an award of interim fees is appropriate: 1) protracted proceedings; 2) costly expert testimony; and 3) undue hardship. In this case, Respondent argued that all three criteria had to be met. The Court disagreed and held that the enumerated Avera criteria are “certainly not conjunctive in nature. Rather, meeting only one of Avera’s criteria (or establishing some other rationale) can be sufficient to justify an interim fees award.”
Applying the Avera criteria, the special master held that 18 months was not protracted and that expert payments exceeding $10,000 were not notably high. The Court did recognize the “economic challenges that an active Vaccine Program practitioner faces in representing multiple Vaccine Program claimants.”
In holding that interim fees were appropriate, the Court disagreed that interim fees should only be granted in rare, exceptional circumstances. The Court did indicate that if counsel had caused a delay in the proceedings, multiplying attorney costs, denial of interim fees would have been considered.
Regarding hourly rates, the parties agreed that the forum rate was applicable, as substantially the same as the attorney’s home jurisdiction. The court approved the $350 hourly rate of a 20-year attorney with 12 years’ vaccine program experience. The Court arrived at this conclusion by noting rates awarded to other program attorneys. The court also noted that this rate was in accord with the matrix set forth in McCulloch.
Discussing the reasonable number of hours billed, the Court observed that sometimes multiple attorneys create inefficiency, “But the opposite is also conceivable – staffing a case with additional attorneys can ensure that the overall quality of work performed is even better since they can backstop each other or critique mistaken assumptions, thereby reducing the chance that counsel will err in analysis of significant matters.”
Thus, “it would be reasonable for cases staffed by more than one attorney to attempt to gain familiarity with their adversary’s arguments by reading the same documents, instead of relying upon a single attorney to read the document and then relate his understanding to his colleagues. Indeed, doing so ensures that the parties have the most complete understanding of the pleading or document at issue.” In sum, only minimal reductions to hours were made.
Interim expert costs were not awarded, essentially because Petitioner did not demonstrate that carrying the $10,000 expert fees was overly burdensome, and the interim fee award could partially ameliorate that burden, indirectly. The Court suggested resubmitting the expert costs after the entitlement hearing.