06-000318N Renee Michelle Oliver, On Behalf Of And As Parent And Natural Guardian Of Ian David Oliver, A Minor, And Renee Michelle Oliver, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 17, 2017.

Summary: Final Order awarding attorney`s fees and other expenses incurred in pursuing the claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENEE MICHELLE OLIVER, ON )

BEHALF OF AND AS PARENT AND )

NATURAL GUARDIAN OF IAN DAVID )

OLIVER, A MINOR, AND RENEE )

MICHELLE OLIVER, INDIVIDUALLY, )

)

Petitioners, )

)

vs. ) Case No. 06-0318N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

CENTRAL FLORIDA REGIONAL )

HOSPITAL, INC., DAVID C. )

MOWERE, M.D., and MID-FLORIDA )

OB/GYN SPECIALISTS, P.A., )

)

Intervenors. )

)

FINAL ORDER AWARDING ATTORNEY'S FEES AND OTHER EXPENSES

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above-styled case on October 3, 2008, by video

teleconference, with sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioners: Gary M. Cohen, Esquire

Grossman & Roth

925 South Federal Highway, Suite 775

Boca Raton, Florida 33432

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

At issue is the amount owing for reasonable expenses

incurred in connection with the filing of the claim, including

reasonable attorney's fees.

PRELIMINARY STATEMENT

On October 10, 2006, a hearing was held to address

compensability and notice, and to afford Petitioners an

opportunity to make a record with regard to the constitutional

issues they raised. Thereafter, on November 16, 2006, an Order

on Compensability and Notice was entered, which concluded:

ORDERED that the claim for compensation

filed by Renee Michelle Oliver,

individually, and as parent and natural

guardian of Ian David Oliver, a minor, be

and the same is hereby approved.

It is FURTHER ORDERED that the participating

physician and hospital complied with the

notice provisions of the Plan.

It is FURTHER ORDERED that the parties are

accorded 45 days from the date of this order

to resolve, subject to approval by the

administrative law judge, the amount and

manner of payment of an award to the

parents, the reasonable expenses incurred in

connection with the filing of the claim,

including reasonable attorneys fees, and the

amount owing for expenses previously

incurred. If not resolved within such

period, the parties shall so advise the

administrative law judge, and a hearing will

be scheduled to resolve such issues. Once

resolved, an award will be made consistent

with Section 766.31, Florida Statutes, and a

final order issued.

The Order on Compensability and Notice was appealed by

Petitioners to the District Court of Appeal, Fifth District,

State of Florida, and on June 24, 2008, the court per curiam

affirmed the order. Thereafter, on July 11, 2008, the Mandate

issued commanding "that further proceedings as may be required

be had in said cause in accordance with the ruling of this court

. . ., and with the rules of procedure and laws of the State of

Florida."

Following issuance of the Mandate, the parties resolved (by

stipulation) all issues related to an award, except those

related to the amount owing for reasonable attorney's fees and

expenses. The parties' stipulation was approved by Order of

September 9, 2008, and a hearing was scheduled for October 3,

2008, to address the amount owing for reasonable attorney's fees

and expenses.

At hearing, Petitioners called Jonathan M. Pavsner, and

Gary M. Cohen, as witnesses; Petitioners' Exhibit 1 was received

into evidence; and Respondent called John D. Kelner, as a

witness. Thereafter, on October 20, 2008, the parties filed a

Joint Stipulation whereby they "agree[d] and stipulate[d] to the

filing of the attached Petitioners' Exhibit 1 and Exhibit 2, in

consideration of Petitioners' Amended Motion for Award of

Attorney's Fees and Costs." Of note, Petitioners' Exhibit 1,

received at hearing, was a composite exhibit that included an

Attorney's Fees/Services Statement (4 pages) and Attorney Cost

statement (3 pages), that were identical to Petitioners' Exhibit

1 (an Attorney Services (Fees) Statement, 4 pages), and Exhibit

2 (an Attorney Cost statement, 3 pages) attached to the Joint

Stipulation filed October 20, 2008. However, Petitioners

neglected to attach the paid invoices that were attached to

Petitioners' Exhibit 2, which accompanied the Joint Stipulation.

In this order, reference will be made to Petitioners' Exhibits 1

and 2, with attached invoices, filed with the parties' Joint

Stipulation.

The transcript of the hearing (Tr.) was filed October 22,

2008, and the parties were accorded 10 days from that date to

file proposed orders. The parties elected to file such

proposals and they have been duly-considered.

FINDINGS OF FACT

Case history

1. On January 25, 2006, Renee Michelle Oliver, on behalf

of and as parent and natural guardian of Ian David Oliver (Ian),

a minor, and Renee Michelle Oliver, individually, filed a

petition with the Division of Administrative Hearings (DOAH) to

resolve whether Ian qualified for compensation under the Florida

Birth-Related Neurological Injury Compensation Plan (Plan), and

whether the hospital at which Ian was born (Central Florida

Regional Hospital) and the participating physician who delivered

obstetrical services at Ian's birth (David C. Mowere, M.D.)

complied with notice provisions of the Plan. Additionally, the

petition raised certain constitutional issues regarding the

Plan. More particularly, the petition alleged:

2. This Petition is being filed in

compliance with the Circuit Court Order of

Honorable James Perry dated January 18,

2006.[ 1 ] The Petitioners do not believe this

claim falls properly under the NICA Act and

file this Petition under protest.

3. Further, Petitioners state that the NICA

Act is unconstitutional as written and

unconstitutional as specifically applied to

this claim.

4. Further, Petitioners state that clear

and concise notice was never given to

Renee Oliver by either Dr. Mowere or Central

Florida Regional Hospital as required by

766.316, Florida Statutes of her rights and

limitations under the NICA plan.

Additionally, Petitioners would state that

the composition of the NICA Board of

Directors is biased on its face and it

creates an unconstitutional lack of due

process and proper access to the Courts.

2. DOAH served the Florida Birth-Related Neurological

Injury Compensation Association (NICA) with a copy of the

petition on January 25, 2006, and on July 28, 2006, following a

number of extensions of time within which to do so, NICA gave

notice that it was of the view the claim was compensable, and

requested that a hearing be scheduled to resolve compensability.

In the interim, Central Florida Regional Hospital, as well as

Dr. Mowere and Mid-Florida OB/GYN Specialists, P.A. (the

practice at which Dr. Mowere was a member, and at which

Ms. Oliver received her prenatal care), were accorded leave to

intervene. (Order on Compensability and Notice, p. 4, and

paragraph 8).

3. Given the issues raised by the petition, a hearing was

scheduled for October 10, 2006, to address compensability and

notice, and leaving issues related to an award, if any, to be

addressed in a subsequent proceeding. § 766.309(4), Fla. Stat. 2

The parties were also accorded the opportunity to make a record

with regard to the constitutional issues Petitioners had raised.

4. Shortly before hearing, on September 29, 2006, the

parties filed a Joint Pre-Hearing Stipulation whereby it was

agreed the claim was compensable (a "participating physician"

(Dr. Mowere) delivered obstetrical services at Ian's birth and

Ian suffered a "birth-related neurological injury"), and that

the hospital and the participating physician provided Ms. Oliver

a copy of the NICA brochure, as required by Section 766.316,

Florida Statutes. Left to resolve, with regard to notice, was

whether the NICA brochure "include[d] a clear and concise

explanation of a patient's rights and limitations under the

plan," as required by Section 766.316, Florida Statutes.

Otherwise, the only unresolved matter pending was the

opportunity for the parties to make a record on the

constitutional issues Petitioners had raised.

5. As heretofore noted in the Preliminary Statement, the

hearing was held as scheduled, on October 10, 2006, and on

November 16, 2006, an Order on Compensability and Notice was

entered. Thereafter, following Petitioners' unsuccessful appeal

of that order to the Fifth District Court of Appeal, the parties

resolved all issues related to the award, except those related

to the amount owing for reasonable attorney's fees and expenses.

The award provisions of the Plan relating

to attorney's fees and costs

6. Pertinent to this case, Section 766.31(1)(c), Florida

Statutes, provides for an award of the following expenses:

(c) Reasonable expenses incurred in

connection with the filing of a claim under

ss. 766.301-766.316, including reasonable

attorney's fees, which shall be subject to

the approval and award of the administrative

law judge. In determining an award for

attorney's fees, the administrative law

judge shall consider the following factors:

1. The time and labor required, the novelty

and difficulty of the questions involved,

and the skill requisite to perform the legal

services properly.

2. The fee customarily charged in the

locality for similar legal services.

3. The time limitations imposed by the

claimant or the circumstances.

4. The nature and length of the

professional relationship with the claimant.

5. The experience, reputation, and ability

of the lawyer or lawyers performing

services.

6. The contingency or certainty of a fee.

The claim for attorney's fees

7. To calculate a reasonable attorney's fee, the first

step is to determine the number of hours reasonably expended

pursuing the claim. See Standard Guarantee Insurance Co. v.

Quanstrom , 555 So. 2d 828 (Fla. 1990); Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985); Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , 633 So. 2d 1103 (Fla. 3d DCA 1994). Notably, "[u]nder

the 'hour-setting' portion of the lodestar computation, it is

important to distinguish between 'hours actually worked' versus

'hours reasonably expended'." Carreras , 633 So. 2d at 1110.

. . . "Hours actually worked" is not the

issue. The objective instead is for the

trier of fact

to determine the number of hours

reasonably expended in providing the

service. 'Reasonably expended' means the

time that ordinarily would be spent by

lawyers in the community to resolve this

particular type of dispute. It is not

necessarily the number of hours actually

expended by counsel in the case. Rather,

the court must consider the number of hours

that should reasonably have been expended in

that particular case. The court is not

required to accept the hours stated by

counsel.

In re Estate of Platt , 586 So. 2d 333-34

(emphasis in original). The trier of fact

must determine a reasonable time allowance

for the work performed-which allowance may

be less than the number of hours actually

worked. Such a reduction does not reflect a

judgment that the hours were not worked, but

instead reflects a determination that a fair

hourly allowance is lower than the time put

in.

Id. Moreover, only time incurred pursuing the claim is

compensable, not time incurred exploring civil remedies or

opportunities to opt out of the Plan through lack of notice or

otherwise. Carreras , 633 So. 2d at 1109. See also Braniff v.

Galen of Florida, Inc. , 669 So. 2d 1051, 1053 (Fla. 1st DCA

1995)("The presence or absence of notice will neither advance

nor defeat the claim of an eligible NICA claimant who has

decided to invoke the NICA remedy . . .; thus, there is no

reason to inquire whether proper notice was given to an

individual who has decided to proceed under NICA. Notice is

only relevant to the defendants' assertion of NICA exclusivity

where the individual attempts to invoke a civil remedy.").

Accord , O'Leary v. Florida Birth-Related Neurological Injury

Compensation Plan , 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We

recognize that lack of notice does not affect a claimant's

ability to obtain compensation from the Plan."). Finally, a fee

award must be supported with expert testimony, and cannot be

based entirely on the testimony of the claimant's attorney.

Palmetto Federal Savings and Loan Association v. Day , 512 So. 2d

332 (Fla. 3d DCA 1987); Fitzgerald v. State of Florida , 756 So.

2d 110 (Fla. 2d DCA 1999). See Nants v. Griffin , 783 So. 2d

363, 366 (Fla. 5th DCA 2001)("To support a fee award, there must

be evidence detailing the services performed and expert

testimony as to the reasonableness of the fee . . . . Expert

testimony is required to determine both the reasonableness of

the hours and reasonable hour rate.").

8. To support the claim for attorney's fees, Petitioners

offered an "Attorney Services" statement, which reflects a claim

for 81 hours Petitioners' counsel, Gary Cohen, claims he

dedicated to the claim. (Petitioners' Exhibit 1). Notably, the

statement is not a business record, since Mr. Cohen did not, and

does not in the ordinary course of his practice, maintain time

records. Rather, the statement represents an effort to

construct a time record to support Petitioners' claim for fees,

and provides a summary of activities performed, with an estimate

of time expended for each activity documented. The major

activities were noted as "Meeting with Clients (2005)," 4.0

hours; "Preparation of Petition for Benefits," .5 hours;

"Research before Petition re: NICA" (five areas listed), 10.5

hours; "Medical Records Review" (21 providers listed), 17.5

hours; "Depositions: Preparation and Attendance at" (6

depositions), 16.5 hours; "Hearings: Preparation and Attendance

at" (9 entries), 8.75 hours; "Motions and Pleadings" (23

entries), 9.25 hours; "Correspondence: 2/06-9/06 77 letters and

attachments," 10 hours; and "Expert Conferences" (with Dr. Mary

Minkin, Dr. James Balducci, Frederick Raffa, Ph.D., and

Paul Deutch, Ph.D., at 1 hour each), 4 hours.

9. Where, as here, "attorneys have not kept

contemporaneous time records, it is permissible for a

reconstruction of time to be prepared." Brake v. Murphy , 736

So. 2d 745, 747 (Fla. 3d DCA 1999). However, the attorney must

present evidence of his services in "sufficient . . . detail to

allow a determination of whether each activity was reasonably

necessary and whether the time allocation for each was

reasonable." Id. (Emphasis omitted). See Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d at 1150 ("Inadequate

documentation may result in a reduction of hours claimed, as

will a claim for hours that the court finds to be excessive or

unnecessary."); Lubkey v. Compuvac Systems, Inc. , 857 So. 2d

966, 968 (Fla. 2d DCA 2003)("[T]he party seeking fees has the

burden to allocate them to the issues for which fees are

awardable or to show that the issues were so intertwined that

allocation is not feasible.").

10. Here, counsel claims 4 hours for a "Meeting with

Clients (2005)," that likely predated the trial court's order of

abatement and likely involved a discussion of matters not

directly related to the NICA claim (Tr., p. 37). Nevertheless,

an initial conference with a client, and the information

obtained regarding her circumstances, is a natural starting

point for any claim, be it a NICA claim or one sounding in

medical malpractice. Consequently, the time claimed (4 hours)

being reasonable, counsel should be compensated for his time.

Also reasonable, is counsel's claim of .5 hours for "Preparation

of Petition for Benefits." However, counsel's claim for

"Research before Petition re: NICA," 10.5 hours, is, but for

the claim of "NICA statute 766.302," 1 hour, rejected as the

activities noted were not shown to be reasonably necessary to

filing or pursuing the claim, and the time allocation for each

activity was not shown to be reasonable. In so concluding, it

is noted that the research activities mentioned ("Benefit

Handbook," 2 hours; "NICA Notice and handout," .5 hours; "Case

law re: NICA," 2.5 hours; and "Task Force Recommendation," 4.5

hours) are vague on specifics, and not demonstrative of

necessity to filing a petition. It is further noted that the

requisites for filing a claim are straight forward, and an

attorney of moderate experience should experience no difficulty

in filing a claim. Additionally, it is noted that counsel's

testimony revealed he had filed 24 to 36 claims for

compensation, and presumably was familiar with the requisites to

file a claim. Consequently, if such "research" was done, apart

from reviewing the statutory provisions of the Plan, it likely

related to the issues of notice and constitutionality, and not

issues related to compensability or benefits, which are

prescribed by Sections 766.301, et seq. , Florida Statutes.

Finally, there is nothing to support a conclusion that the time

claimed for each task was reasonable. Consequently, for

Petitioners' claim for "Research before Petition re: NICA," 1

hour is considered reasonable.

11. Next, counsel claims 17.5 hours for "Medical Records

Review." Included are the medical records of 19 providers, and

the reports of Michael Duchowny, M.D. (Respondent's Exhibit 2),

and Donald Willis, M.D. (Respondent's Exhibit 1). With regard

to the time claimed for reviewing (reading) Dr. Duchowny's

report (.5 hours) and Dr. Willis' report (.5 hours), that time

is disallowed as unreasonable (excessive) and redundant, since

counsel requested and was granted credit, discussed infra , under

"Motions and Pleadings" for .5 hours associated with "Receipt

and review of NICA's Notice of Compensability, which included a

copy of the reports of Doctors Duchowny and Willis. Otherwise,

the remaining record review, as well as the time allocation

(16.5 hours), was reasonable.

12. Next, counsel claims 16.5 hours for "Depositions:

Preparation and Attendance at " the depositions of Renee Oliver,

on July 17, 2006; Patty Osbourne, R.N., on July 20, 2006;

Jenette Dorff, R.N., on July 20, 2006; Debra Brinkmeyer, R.N.,

M.D., on July 20, 2006; David Mowere, M.D., on August 3, 2006;

and Kenney Shipley, on September 27, 2006.

13. With regard to the time claimed incident to the

depositions of Dr. Mowere and Ms. Shipley (6 hours), it must be

resolved that such time was not shown to be reasonably necessary

to the pursuit of the claim. In so concluding, it is noted that

by the time Dr. Mowere was deposed (August 3, 2006), NICA had

agreed the claim was compensable. Under such circumstances it

is unreasonable to expect NICA to pay for time expended that

addressed compensability and notice. With regard to

Ms. Shipley's deposition, taken September 27, 2006, it is also

observed that when she was deposed, NICA had agreed the claim

was compensable, and the only issues pertinent to her deposition

were notice and the constitutionality of the Plan. Indeed,

those were the announced reasons Petitioners requested, and were

accorded leave to take her deposition. ( See Petitioners' Motion

for Request of the Deposition of Kenney Shipley, Executive

Director of NICA, filed May 1, 2006; Order, July 13, 2006.)

Such being the case, it is not reasonable to expect NICA to pay

for time associated with Ms. Shipley's deposition.

14. With regard to time associated with the depositions of

Ms. Oliver, taken by Intervenors on July 17, 2006, and Nurses

Osbourne, Dorff, and Brinkmeyer, taken July 20, 2006, the

circumstances are different since NICA had not yet agreed the

claim was compensable. Consequently, since Nurse Osborne's

deposition addressed compensability, the 1.5 hours incurred

attending her deposition was reasonably related to the claim.

With regard to the depositions of Ms. Oliver, and Nurses Dorff

and Brinkmeyer, those depositions addressed both compensability

and notice. However, the time associated with notice was de

minimus . Consequently, the 5 hours incurred in attending their

depositions (Ms. Oliver, 3.5 hours, Nurse Dorff, .5 hours, and

Nurse Brinkmeyer, 1 hour) were reasonably related to the claim.

Also reasonably related to the claim were the 4 hours incurred

preparing for Ms. Olivers' and the nurses' depositions. In all,

10.5 hours were reasonably dedicated to preparation and

attendance at depositions.

15. Next, counsel claims 8.75 hours for "Hearings:

Preparation and Attendance at," 7 hearings (items a-f and h),

preparation for final hearing (item g), and review of judge's

final order (item i). With regard to the time claimed for a

hearing on February 23, 2006 (.25 hours) and September 15, 2006

(.25 hours), no hearing was held, and that time is disallowed.

However, with regard to the hearing of March 22, 2006 (item b),

Petitioner overlooked noting time dedicated to that hearing, and

is entitled to a .5 hour credit. 3 With regard to the time

claimed for attendance at the final hearing of October 10, 2006

(2.0 hours), given that issues related to compensability were

resolved prior to hearing, and most of the time at hearing

involved issues related to notice and compensability, only .5

hours are approved as reasonably related to the claim.

Moreover, given the issues left to address at hearing, of the

time claimed for preparation for hearing (4.0 hours), only 1

hour will be approved as reasonable. Petitioners' claim of .5

hours to review the final order is reasonable. In all, under

the activity "Hearings: Preparation and Attendance at," 4.25

hours are found to be reasonably incurred in pursuing the claim.

16. Next, counsel claims 9.25 hours for various activities

associated with "Motions and Pleadings," such as preparation,

receipt, review, and research, and has documented a claim for 23

entries (items a-w). With regard to Petitioners' claim of 1.0

hour for "Receipt, review, research into Defendant Mowere & Hosp

Motion to Intervene; Petitioners' Objection to Motion to

Intervene" (item a), that claim is disallowed as such activities

that related to Petitioners' objection (apart from receipt and

review of the motions, which time was de minimus ), were

frivolous. 4 As for Petitioners' claim of .5 hours related to

preparation of motion to depose Ms. Shipley (item i), and .25

hours related to review of Respondent's response (item k), that

.75 hours is disallowed, as it relates to Petitioners' notice

and constitutional claims. As for items f (.25 hours), j (.25

hours), n (.25 hours), o (.25 hours), p (.25 hours), s (.25

hours), and u (.25 hours), 1.75 hours, those activities only

warrant a claim for .1 hours each (.7 hours). The other

activities (5.75 hours) are reasonable. In all, 6.45 hours were

reasonably expended on motions and pleadings.

17. Next, counsel claims 10.0 hours for preparing or

reviewing, from "2/06-9/06 [,] 77 letters and attachments by and

between counsel for Petitioner, counsel for NICA and

Judge Kendrick." Notably, there was no explanation of what

those letters related to, what issues they addressed, or any

method offered to assess whether the time allocation was

reasonable. Accordingly, the proof failed to support a

conclusion that the activity or hours claimed was reasonable,

and the 10 hours claimed is disallowed.

18. Finally, counsel claims 4 hours for "Expert

Conferences" with Dr. Minkin (1 hour), Dr. Balducci (1 hour),

Dr. Raffa (1 hour), and Dr. Deutch (1 hour). However, there was

no explanation of when the conference occurred, what was

discussed, or any proof to support a conclusion that the time

allocation was reasonable and related to the pursuit of the

claim. Accordingly, the proof failed to support the conclusion

that the activity or hours were reasonable. 5

19. Here, the total time and labor reasonably expended to

pursue the claim was 43.20 hours.

20. The next consideration in establishing a reasonable

fee is the determination of the fee customarily charged in the

locality for similar legal services, when the fee basis is

hourly billing for time worked. Carreras , 633 So. 2d at 1108.

Here, given the nature of the expertise and legal skills

required, for what may be described as a moderately complex

case, the proof supports the conclusion that the "market rate"

(a rate actually being charged to paying clients) is $300.00 an

hour.

21. A reasonable fee under the methodology established by

Florida Patient's Compensation Fund v. Rowe , supra , and Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , supra , is determined by multiplying the hours

reasonably expended by the reasonable hourly rate. The results

produce the "lodestar figure" which, if appropriate, may be

adjusted because of the remaining factors contained in Section

766.31(1)(c), Florida Statutes. Applying such methodology to

the facts of this case produces a "lodestar figure" of

$12,960.00 (43.20 hours x $300 per hour).

22. Upon consideration of the facts of this case, and the

remaining criteria established at Section 766.31(1)(c)3-6,

Florida Statutes, there is no apparent basis or reason to adjust

the "lodestar figure." In this regard, it is observed that

there were no significant time limitations shown to have been

imposed by the claimants or the circumstances in this particular

case, and the nature and length of the professional relationship

with the claimants was likewise a neutral consideration. The

experience, reputation and ability of the lawyer who performed

the services has been considered in establishing the reasonable

hours and reasonable hourly rate and does not, in this case,

afford any additional basis to adjust the "lodestar figure."

Finally, although counsel was employed on a contingency fee

basis and stood to recover no fee if he proved unsuccessful in

pursuing the claim or, alternatively, in pursuing a malpractice

action, the contingency nature of the fee arrangement does not

warrant an adjustment of the "lodestar figure." Given the

nature of the claim, which was relatively straight-forward,

lacked any novel aspects, and the earliest medical records

disclosed the infant had likely suffered a significant brain

injury during birth, the risk of nonrecovery was not sufficient

to warrant any adjustments.

The claim for other expenses

23. Finally, Petitioners' counsel incurred certain

expenses in his representation of Petitioners for which he seeks

recovery. (Petitioners' Exhibit 2). Such costs total

$33,075.24. However, at hearing, Petitioners withdrew the claim

for "Services," set forth at the top of page 1, Petitioners'

Exhibit 2, in the sum of $3,537.50, leaving a claim for

$29,537.74. (Tr., pp. 73 and 73). Of those costs, NICA did not

object to the following expenses:

08/09/05 OB/GYN Clinic Records $ 19.31

09/07/05 West Volusia Pediatrics $ 150.00

09/08/05 Pediatric Surgery $ 4.00

09/13/05 Community Medical Assoc. $ 7.82

09/16/05 Florida Hospital $ 1,360.55

09/21/05 Seminole County $ 3.50

09/28/05 Childrens Resp. Care $ 9.00

09/28/05 Donald Willis, M.D. $ 1,000.00

10/11/05 Pediatric Neurology $ 7.00

01/20/06 DOAH Filing Fee $ 15.00

08/09/06 Depo. Renee Oliver $ 496.30

11/01/06 Hearing Transcript $ 604.72

12/04/06 Halifax Med. Center $ 68.10

$ 3,745.30

Accordingly, such expenses, totaling $3,745.30, are awarded

without further discussion.

24. Pertinent to an award of expenses, the Statewide

Uniform Guidelines for Taxation of Costs in Civil Actions,

effective January 1, 2006, provide:

Purpose and Application. These guidelines

are advisory only. The taxation of costs in

any particular proceeding is within the

broad discretion of the trial court. The

trial court should exercise that discretion

in a manner that is consistent with the

policy of reducing the overall costs of

litigation and of keeping such costs as low

as justice will permit.

. . . Burden of Proof. Under these

guidelines, it is the burden of the moving

party to show that all requested costs were

reasonably necessary either to defend or

prosecute the case at the time the action

precipitating the cost was taken.

I. Litigation Costs That Should Be Taxed.

A. Depositions

1. The original and one copy of the

deposition and court reporter's per diem for

all depositions.

2. The original and/or one copy of the

electronic deposition and the cost of the

services of a technician for electronic

depositions used at trial.

3. Telephone toll and electronic

conferencing charges for the conduct of

telephone and electronic depositions.

B. Documents and Exhibits

1. The costs of copies of documents

filed (in lieu of "actually cited") with the

court, which are reasonably necessary to

assist the court in reaching a conclusion.

2. The costs of copies obtained in

discovery, even if the copies were not used

at trial.

C. Expert Witnesses

1. A reasonable fee for deposition

and/or trial testimony, and the costs of

preparation of any court ordered report.

D. Witnesses

1. Costs of subpoena, witness fee, and

service of witnesses for deposition and/or

trial.

E. Court Reporting Costs Other than for

Depositions

1. Reasonable court reporter's per diem

for the reporting of evidentiary hearings,

trial and post-trial hearings.

* * *

III. Litigation Costs That Should Not Be

Taxed as Costs.

A. The Cost of Long Distance Telephone

Calls with Witnesses, both Expert and Non-

Expert (including conferences concerning

scheduling of depositions or requesting

witnesses to attend trial)

B. Any Expenses Relating to Consulting But

Non-Testifying Experts

C. Cost Incurred in Connection with Any

Matter Which Was Not Reasonably Calculated

to Lead to the Discovery of Admissible

Evidence

Davel Time

avel time of attorney(s).

avel time of expert(s)

Eavel Expenses of Attorney(s)

25. Also pertinent to an award of expenses are the

following decisions: Miller v. Hayman , 766 So. 2d 1116 (Fla. 4th

DCA 2000)(recognizing that in the absence of exceptional

circumstances, travel expenses for attorney to attend depositions

should not be taxed as costs); Department of Transportation v.

Skidmore , 720 So. 2d 1125 (Fla. 4th DCA 1998)(recognizing that

postage, long distance calls, fax transmissions, delivery

service, and computer research are overhead and not properly

taxable as costs); Gray v. Bradbury , 668 So. 2d 296, 298 (Fla.

1st DCA 1996)("The prevailing party's burden, at an evidentiary

cost hearing, to recover an expert witness fee is 'to present

testimony concerning the necessity and reasonableness of the

fee.'"); Powell v. Barnes , 629 So. 2d 185 (Fla. 5th DCA

1993)(recognizing that evidence to support an award for expert

witness fees must come from witnesses qualified in the areas

concerned); Gray v. Bradbury , 668 So. 2d at 298. (Testimony of

"a trial attorney and an insurance casualty claim manager, who

were not shown to have proficiency in the various fields of

expertise at issue (ranging from accident reconstruction to

neurosurgery)," was not competent to support an award for expert

witness fees.); Carreras , 633 So. 2d at 1109 ("[T]he exploration

of the possibility of opting out of NICA through the 'bad faith'

exception or otherwise is not, as the statute requires, work

performed 'in connection with the filing of a claim . . . .'").

26. Considering the foregoing standards, Petitioners have

established their entitlement to the recovery of $828.00 as the

court reporter's fee for the depositions of Nurses Osbourne,

Brinkmeyer, and Dorff. However, since the electronic depositions

were not used at hearing, those expenses are not recoverable.

Expenses associated with the depositions of Dr. Ravello, which

addressed notice; Dr. Mowere, the only relevant portion of which,

at the time it was taken, dealt with notice; and Ms. Shipley,

which addressed notice and the constitutionality of the Plan, are

not recoverable. Also not recoverable are the fees Petitioners

paid their various experts, since they were neither deposed nor

testified at hearing, and there was no showing that their

consideration of the claim was necessary or that their fee was

reasonable. Finally, the remaining items were either not

explicated or are considered overhead, and not taxable.

CONCLUSIONS OF LAW

Jurisdiction

27. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 766.301, et seq. , Fla. Stat.

Award of Attorney's fees and other expenses

28. Where, as there, it has been resolved that a claim

qualifies for coverage under the Plan, the administrative law

judge is required to make an award for reasonable expenses

incurred in connection with the filing of the claim, including

reasonable attorney's fees. § 766.31(1), Fla. Stat.

29. Here, for the reasons noted in the Findings of Fact, it

has been resolved that Petitioners receive an award of attorney's

fees in the sum of $12,960.00, and an award for other expenses

(costs) in the sum of $4,573.30.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioners are awarded $12,960.00 for

attorney's fees and $4,573.30 for other expenses reasonably

incurred in pursuing the claim.

It is further ORDERED that, consistent with Section

766.312, Florida Statutes, the Division of Administrative

Hearings, retains jurisdiction over this matter to enforce all

awards.

DONE AND ORDERED this 19th day of December, 2008, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December, 2008.

ENDNOTES

1/ Judge Perry abated a pending medical malpractice claim

pending a decision as to whether the child's injury was

compensable under the Plan. (Tr., p. 48).

2/ Section 766.309(4), Florida Statutes, provides:

(4) If it is in the interest of judicial

economy or if requested to by the claimant,

the administrative law judge may bifurcate

the proceeding addressing compensability and

notice pursuant to s. 766.316 first, and

addressing an award pursuant to s. 766.31,

if any, in a separate proceeding. The

administrative law judge may issue a final

order on compensability and notice which is

subject to appeal under s. 766.311, prior to

issuance of an award pursuant to s. 766.31.

3/ Although, as discussed infra , Petitioners' objection to

Intervention was frivolous, no time associated with hearing that

objection was deducted because such time was de minimus .

4/ In objecting to the intervention of Dr. Mowere, Mid-Florida

OB/GYN Specialists, P.A., and Central Florida Regional

Hospital's petition to intervene, Petitioners averred "Florida

Statute 766.307(2) indicates that 'the parties to the hearing

shall include the claimant and association.' There is no

provision provided for in the NICA statute for the doctor,

hospital, or any other healthcare provider to intervene in this

matter and the Petitioner/Claimant would object to same."

(Petitioners' Objection to . . . Petition for Leave to

Intervene, filed March 13, 2006). Notably, Section 766.307(2),

Florida Statutes, prescribes the necessary parties to a NICA

proceeding. It does not purport to limit who may be proper

parties, if their substantial interests may be affected. In

this case, it should not be subject to serious debate that the

participating physician, his professional association, and the

hospital where Ian was born were substantially affected and

therefore proper parties. Moreover, as a participant in prior

proceedings, Mr. Cohen was aware such requests were routinely

granted, yet he has never sought appellate review of such

decision. (Tr., pp. 71 and 72).

5/ Dr. Raffa prepared a "present value assessment of the loss

or diminution of the future earning capacity and the cost of the

future life care needs of . . . Ian" (based on Dr. Deutsch's

life care plan). (Petitioners' Exhibit 9, to Order on

Compensability and Notice). Dr. Deutsch prepared a life care

plan for Ian. (Petitioners' Exhibit 8, to Order on

Compensability and Notice). Neither report is relevant to the

claim, either to compensability or award, and appear to have

been used to support Petitioners' claim that the Plan was

unconstitutional. ( See Petitioners' Motion for Request of the

Deposition Kenney Shipley, Executive Director of NICA, filed

May 1, 2006; deposition of Kenney Shipley, Respondent's Exhibit

3, to Order on Compensability and Notice). In any event,

neither Dr. Raffa nor Dr. Deutsch were deposed or testified at

hearing, and their reports were hearsay. § 90.801, Fla. Stat.

However, in administrative proceedings "[h]earsay evidence may

be used for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible over objection in civil

actions." § 120.57(1)(c), Fla. Stat. Here, no such exception

is apparent, and their reports do not supplement or explain

other evidence. Therefore, the reports had no evidentiary

value. See Yost v. Unemployment Appeals Commission , 848 So. 2d

1235 (Fla. 2d DCA 2003); Strickland v. Florida A&M University ,

799 So. 2d 276 (Fla. 1st DCA 2001); Durall v. Unemployment

Appeals Commission , 743 So. 2d 166 (Fla. 4th DCA 1999).

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 7649)

Gary M. Cohen, Esquire

Grossman & Roth

925 South Federal Highway, Suite 775

Boca Raton, Florida 33432

(Certified Mail No. 7005 1820 0002 9840 7656)

Richard B. Schwamm, Esquire

Haliczer Pettis, P.A.

Landmark Center Two, Suite 475

225 East Robinson Street

Orlando, Florida 32801

(Certified Mail No. 7005 1820 0002 9840 7663

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7005 1820 0002 9840 7670)

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802-0753

(Certified Mail No. 7005 1820 0002 9840 7687)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7005 1820 0002 9840 7694)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.