15-002499N Courtney Lindsey, Individually And As Parent Of Kamari Jackson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 25, 2018.

Summary: The Fianl Order awards to Petitioner a reasonable attorney's fee of $11,602.50 and $1,158.80 in expenses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERRY LEONARD, AS LEGAL

GUARDIAN OF COURTNEY LINDSEY, AS

PARENT OF KAMARI JACKSON, A

MINOR,

Petitioner,

vs. Case No. 15 - 2499N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Responden t,

and

PUTNAM COMMUNITY MEDICAL CENTER,

LLC, d/b/a PUTNAM COMMUNITY

MEDICAL CENTER ; AND MOHAMED

AKHIYAT, M.D.,

Intervenors.

_______________________________/

FINAL ORDER AWARDING ATTORNEYSÓ FEES AND OTHER EXPEN SES

A fina l hearing was held in this case before Todd P.

Resavage, an Administrative Law Judge (ALJ) of the Division of

Administrative Hearings (DOAH) , on March 2, 2018, by video

teleconference at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Peti tioner: Ronald S. Gilbert, Esquire

Jonathan T. Gilbert, Esquire

Colling, Gilbert , Wright & Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: Brook M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

At issue are the attorn eyÓs fees and related expenses owed

by Respondent Florida Birth - Related Neurological Injury

Compensation Association (NICA) , pursuant to section

766.31(1)(c ), Florida Statutes.

PRELIMINARY STATEMENT

On April 29, 2015, Petitioner, Courtney Lindsey,

individ ually and as parent of Kamar i Jackson , a minor, filed a

Petition for Determination of Compensability Pursuant to Florida

Statute 766.305 (Petition) with DOAH for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensa tion Plan (Plan). 1/ The Petition named Mohamed M.

Akhiyat, M.D., as the physician who provided obstetric services

at the birth of Kamari Jacks on on August 28, 2014, at Putnam

Community Medical Center in Palatka, Florida.

DOAH served NICA with a copy of the Petition on May 6,

2015. DOAH served Putnam Community Medical Center (PCMC) with a

copy of the Petition on May 7, 2015. On May 29, 2015, DOAH

received a return receipt from the United States Postal Service

showing that Dr. Akhiyat had been served with a copy of the

Petition.

On May 26, 2015, PCMC filed a Petition to Intervene, which

was granted by Order dated June 3, 2015. On November 18, 2015,

Dr. Akhiyat filed a Petition to Intervene, which was granted by

Order dated November 30, 2015.

On Septem ber 23, 2015, NICA filed its Response to Petition

for Determination of Compensability, wherein NICA asserted that

Kamari Jackson had suffered a birth - related neurological injury

as defined by section 766.302(2), Florida Statutes, and,

therefore, Petitioner Ós claim was compensable.

On January 28, 2016, NICA filed a Motion for Summary Final

Order, or in the Alternative, Motion for Partial Summary Final

Order. The Motion for Summary Final Order addresse d the issues

of birth - related neurological injury and no tice, and the

Alternative Motion for Partial Summary Final Order addresse d the

issue of birth - related neurolo gical injury only. On February 2,

2016, Petitioner filed an Interim Response to Motion for Summary

Final Order and Alternative Motion for Extensio n of Time to

Respond. On February 22, 2016, PCMC filed a Motion for Partial

Summary Final Order on the issue of notice. 2 / Petitioner was

granted an extension of time to respond to the issue of notice

raised by both Respondent and Intervenor PCMC Ós motion s.

Intervenors did not object to NICAÓs motion. Petitioner did not

contest NICAÓs motion on the issue of compensability.

On March 4, 2016, Judge Barbara Staros issued a Partial

Summary Final Order, conclud ing that Kamari Jackson had

sustained a birth - rel ated neurological injury. J udge Staros

granted RespondentÓs Motion for Partial Summary Final Order on

the issue of birth - related neurological injury, and found and

determined PetitionerÓs claim to be compensable. Jurisdiction

was reserved to determine th e issue of an aw ard pursuant to

section 766.31 and to determine whether the notice requirements

of section 766.316 were satisfied.

On August 26, 2016, J udge Staros entered a Partial Summary

Final Order on the issue of notice, concluding that Intervenor

D r. Akhiyat provided notice in compliance with section 766.316;

and that Inte r venor PCMC provided notice in compliance with

section 766.316, although they were not obligated to do so as

Petitioner presented to the hospital in an emergency medical

condition as defined in section 395.002(8)(b), Florida Statutes.

Additionally, the parties were ordered and accorded 30 days to

resolve, subject to approval of Judge Staros, the amount and

manner of payment of an award to Petitioner; the reasonable

expenses incurre d in connection with the filing of the claim,

including reasonable attorneyÓs fees and costs; and the amount

owing for expenses previously incurred. If not resolved, the

parties were ordered to advise Judge Staros , and a hearing would

be scheduled to reso lve such issues.

On September 20 , 2016 , Petitioner filed her Notice of

A ppeal to the First District Court of Appeal, regarding the

August 26, 2016, O rder. On June 8, 2017, the First District

Court of Appeal issued its Mandate and the Per Curiam opinion

d ated May 23, 2017 , remanding the case to J udge Staros for

further proceedings, if re q uired. On June 30, 2017, the file

was re - opened to address the award and reasonable expenses as

set forth in the Summary Final Order on Notice.

On September 28, 2017, t his matter was reassigned to the

undersigned for all further proceedings. On the same date, a

hearing was noticed for October 18, 2017, to address

compensation and expenses. Due to a conflict , the hearing was

re - noticed for November 29, 2017. On Novembe r 17, 2017,

Respondent moved to continue the hearing. The same was granted

on November 21, 2017 .

On November 21, 2017, the parties filed a Joint Stipulation

and Joint Petition for Partial Compe nsation of Claim. On

December 1, 2017, the undersigned issu ed a F inal O rder A pproving

S tipulation for E ntry of A ward. As the parties had been unable

to agree upon an amount of reasonable expenses incurred by

Petitioner in connection with the filing of the instant claim, a

final hearing was scheduled for March 2, 201 8 . The final

hearing proceeded, as scheduled.

At hearing, Petitioner presented the testimony of Clancy

Bounds, Esquire; Ronald Gilbert, Esquire; and Jonathan Gilbert,

Es quire. PetitionerÓs Exhibits 1 through 3 were admitted. NICA

presented the test imony of Bob Henry, Esquire.

The hearing Transcript was filed at DOAH on March 28, 2018 .

On April 2, 2018, the parties timely filed Proposed Final

Orders, which have been considered in preparing this Final

Order.

FINDINGS OF FACT

Petition

1. On or ab out September 30, 2014, Petitioner w as referred

to Colling , Gilbert , Wright & Carter, LLC, regarding potential

representation of a birth trauma claim .

2. On or about October 22, 2014, PetitionerÓs c ounsel

executed contracts for representation of Courtne y Lindsey and

Kamari Jackson. Specifically, Ronald Gilbert , Esquire, and

Jonathan Gilbert , Esquire, represented Petitioner .

3. Ronald Gilbert was admitted to the Florida Bar in 1983

and has been engaged in the practice of law thereafter. He has

litiga ted complex medical malpractice cases for many years (on

behalf of defendants and plaintiffs) and has represented clients

regarding birth trauma and NI CA claims since the mid - 1980s.

4. Jonathan Gilbert was admitted to the Florida Bar in

2009, and has repr esented similar clients throughout the span of

his legal career . Ronald and Jonathan Gilbert are skilled

medical malpractice attorneys who are successful in their legal

and geographic communities.

5. As Petitioner retained said counsel on a contingency

fee basis (for the purpose of a potential medical malpractice

claim) , counsel did not maintain contemporaneous time records.

Petitioner Ó s counsel, however, permissibly reconstructed the

time based on their file and office s ystems , and created a fee

report . 3 /

6. On November 26, 2014, Petitioner Ó s counsel began the

process of requesting medical records and lien information.

Thereafter, from December 2014 through February 2015,

Petitioner Ó s counsel reviewed the medical record s and lien

information received. In April 2015, Petitioner Ó s counsel

conducted several telephone calls with Petitioner and drafted

the NICA petition.

7. The Petition was filed on April 29, 2018 . Petitioner Ó s

counsel s Ó fee report itemizes a total of 22.48 hours for work

performed by c ounsel and a paralegal from the date of referral

to April 29, 2018 (hereinafter referred to as petition work or

tasks ) . Specifically, the fee report documents 6.6 7 hours for

Ronald Gilbert, 9.25 hours for Jonathan Gilbert , and 6.56 hours

for the paralegal .

8. PetitionerÓs expert, Clancy Bounds, Esquire, was

admitted to the Florida Bar in 1993. His practice, which is

located in Orlando, Florida, is limited to medical malpractice

litigation. Mr. Bounds has litigated NICA claims at DOAH and is

familiar w ith the statutory requirements. Mr. Bounds testified

that pre - petition tasks would include meeting with the client,

obtaining records, expert review, chart review on the issue of

notice, and a determination of whether the physician(s) was a

NICA participa nt. Mr. Bounds opined that the tasks performed in

connection with investigating a medical malpractice case and

those of filing a NICA Petition cannot be separated . Mr. Bounds

conceded , however, that it would take little time to determine

whether a physic ian is a NICA participating physician and that

the forms for filing a petition at DOAH are readily available on

the DOAH website.

9. NICAÓs expert, Robert Henry, was admitted to the

Florida Bar in 1982. Mr. Henry primarily handles medical

malpractice li tigation; however, he has also represented medical

providers involved in NICA proceedings. Mr. Henry has also

performed other administrative work, including representing

physicians before the Department of Health. Mr. Henry opined

that, in this case, rea sonable and necessary pre - petition work

in connection with the NICA claim would include meeting with and

interviewing the client, obtaining necessary information from

the client to complete the petition, obtaining all medical

records, and drafting the peti tion. Mr. Henry opined that the

aforementioned tasks should consume 10 hours.

10. Considering all the evidence, the undersigned finds

that Petitioner presented sufficient evidence to establish that

10.75 hours were reasonably expended by Petitioner Ó s c ounsel in

the petition phase of the litigation.

NICA Determination of Compensability

11. Following the filing of the Petition, on June 3, 2015,

PCMC was permitted to intervene and PCMCÓs motion to permit

discovery was granted. On July 24, 2015, P CMC served discovery

upon Petitioner. Petitioner served her responses to the

propounded discovery on August 24, 2015. On September 22, 2015,

Petitioner propounded discovery to PCMC .

12. On September 23, 2015, Respondent filed its Response

to Petit ion for Determination of Compensability. In summary,

s aid response asserted that Kamari Jackson had suffered a birth -

related neurological injury, as defined in section 766.302(2),

and, therefore, the claim was compensable under the Plan .

13. From April 29, 2015, to September 23, 2015,

PetitionerÓs fee report itemizes approximately 42.1 hours for

work performed by counsel and a paralegal . Specifically, the

fee report documents 17.95 hours for Ronald Gilbert; 11.3 hours

for Jonathan Gilbert ; and 12.85 ho urs for the paralegal.

Mr. Bounds , Ronald and Jonathan Gilbert testified, globally,

that the time documented on the fee report was reasonable .

Mr. Bounds testified that the majority of the fees PetitionerÓs

counsel would be entitled to under NICA Ðkind o f endÑ on

September 24, 2015, with the receipt of the determination of

compensability.

14. M r. Henry similarly opined that PetitionerÓs counsel

would be entitled to reasonable fees up through the time NICAÓs

response was received on September 24, 2015, and some additional

time regarding work, if any, on the Joint Stipulation and Joint

Petition for Partial Compensation of Claim . Mr. Henry opine d

that it was reasonable and necessary for Peti tionerÓs counsel to

attribute four to five hours for work related to responding to

post - Petition discovery.

15. Having reviewed all of the evidence, the undersigned

finds that , from the date of filing the Petition to the receipt

of NICA Ós response on September 24, 2015, Petitioner presented

sufficient evidence to est ablish that 18.65 hours were

reasonably expended by Petitioner Ó s counsel in connection wit h

the filing of the NICA claim.

DOAH Determination of Compensability

16. Except as expressly discussed below, following

RespondentÓs response to the Petition acknowledging the claim as

co mpensable, PetitionerÓs counsel s Ó efforts were devoted to

considering or avoiding the exclusive remedy provisions of the

Plan or are otherwise not work performed in connection with the

filing of the claim.

17. Following NICAÓs response on September 24, 2015, the

undersigned finds that Petitioner presented sufficient evidence

to establish that 3.75 hours were reasonably expended by

PetitionerÓs counsel in connection with the acceptance of NICA

benefits and drafting the Jo int Stipulation and Joint Petition

for Partial Compensation of Claim . Accordingly, the undersigned

finds that PetitionerÓs counsel reasonably expended 33.15 hours

in representation in connection with the filing of the NICA

claim.

Reasonable Fee R ate

18. Mr. Bounds testified that , giving due consideration to

factors set forth in section 766.31 (1) (c), Florida Statutes, the

Ð fee customarily charged in the locality for similar legal

services Ñ was $125 .00 per hour for paralegals, $400 .00 per hour

for Jon athan Gilbert , and $815 .00 per hour for Ronald Gilbert.

While Mr. Bounds provided supporting testimony concerning t he

balance of the statutory factors in support of his opinion, he

did not testify that the rates were due to be incr eased or

decreased on th e basis of any specific factor.

19. Ronald and Jonathan Gilbert similarly testified that

the suggested rates were reasonable when considering each of the

statutory factors set forth in section 766.31 (1) (c). Ronald

Gilbert testified that his propos ed rate of $815 .00 per hour, as

a senior partner, is th e rate that he utilizes in complex

litigation, including medical malpractice and tobacco

litigation. Ronald Gilbert further testified that said rates

Ðhave been accepted in the tobacco cases that weÓv e handled.Ñ

He conceded, however, that tobacco litigation is not an

administrative proceeding and that the firm handles such matters

on a contingency fee basis.

20. Mr. Henry conced ed that determining a reasonable

hourly rate in this matter is dif ficult, as he is unaware of any

attorneys who represent p etitioners in NICA procee dings at DOAH

on an hourly basis. Mr. Henry, whose practice is almost

entirely devoted to medical malpractice defense, opined that he

would charge $200 .00 per hour, which is a rate higher than any

of his current clients reimburse him for his time. Mr. Henry

acknowledged, however, that he is Ðin a firm that is geared

towards doing low rate work.Ñ

21. In addition, Mr. Henry reviewed some Ðpretty old

casesÑ wherein the reasonable fee was determined to be in the

Ðless than 200 to 300 range.Ñ 4 / While Mr. Henry opined that it

was reasonable for PetitionerÓs counsel to request a higher fee

than he charges, he opined that neither $815 .00 nor $400 .00 per

hour is reasonable fo r NICA proceedings at DOAH. Mr. Henry

consider ed each of the statutory factors set forth in section

766.31 (1) (c) in reaching his ultimate opinion that reasonable

rate s would be $300 .00 per hour for a senior attorney, $200 .00

for a junior attorney, and $12 0 .00 for paralegal work.

Ultimately, Mr. Henry opined that a Ðblended kind of rateÑ of

$250 .00 per hour would be reasonable. The undersigned construes

Mr. HenryÓs opinion as initially focus ing on the fee customarily

charged in the locality for similar le gal services, w ithout need

for amendment due to the balance of the stat utory factors.

22. Here, given the nature of the expertise and the legal

skills required, for what may be appropriately described as a

moderately complex case, in the absence of any specific evidence

on hourly NICA plaintiffÓs attorneys, the undersigned finds that

the hourly rate for medical malpractice attorneys provides a

more useful point of comparison than the fees associated with

other complex litigation , such as tobacco lit igation.

23. The undersigned further finds , upon consideration of

the facts of this case, that the fee customarily charged in the

locality for similar legal services is $350.00 an hour. See

§ 766.31 (1) (c) 2 . , Fla. Stat. Upon consideration of the facts of

this case, and the remaining criteria established in

section 766.31(1)(c), there is no apparent basis or reason to

adjust this figure.

Expenses

24. PetitionerÓs counsel incurred certain expenses for

which they seek recovery. Such costs to tal $29,408.88. Of

those costs, NICA does not object to the following expenses:

$9.00 for the birth certificate; $15.00 for the DOAH filing fee;

$130 .00 for January 2, 2015, medical records from Wolfson

Medical; $349 .00 f or January 20, 2015, through May 10, 2015,

medical records from Healthport; and $73.24 for June 24, 2015,

medical records from Star Med.

25. Mr. Bounds opined that $4,466.91 of these costs were

reasonable and necessary for the prosecution of this claim from

the time of representat ion through receipt of NICAÓs r esponse

finding the claim compensable , on or about September 24, 2015 .

Specifically, Mr. Bounds itemized the following: $76.24 in

outside vendor charges; $590.75 in obtaining medical records;

$59.80 in express delivery char ges; $264.25 in photocopying

charges; $69.76 in postage; $40.00 in travel expenses; $9.00 to

obtain the birth certificate; $49.00 in scanning charges;

$1,836.25 for medical expert review by Legal Nurse Consulting

Group of Centra; and $1,000.00 for medical expert review by

Berto Lopez, M.D.

26. From the totality of the evidence, it appears that , on

April 10, 2015, medical records we re provided to Berto

Lopez, M.D., for his expert review. Petitioner presented

sufficient evidence to establish that Pe titionerÓs counsel

consulted with Dr. Lopez in 2017; however, failed to present

sufficient evidence that Dr. Lopez was consulted prior to

September 24, 2015. For all that appears, Dr. LopezÓs expertise

was solicited in regards to the pursuit of a medical negligence

claim against various healthcare providers. Accordingly, said

costs associated with his fee are disallowed.

27. The undersigned finds that Petitioner presented

sufficient evidence to establish that the $1,836.25 in costs

associated with the medical expert review by Legal Nurse

Consulting Group of Centra were properly incurred in connection

with the filing of the NICA claim. The undersigned further

finds , however, that said costs are attributable to consulting,

but non - testifying experts , and, therefore, are disallowed.

28. The undersigned finds that the balance of those costs

itemized by Mr. Bounds , and the DOAH filing fee, to be

recoverable as reasonable expenses incurred in connection with

the filing of the NICA claim. Togethe r with costs stipulated by

NICA, the undersigned finds that Petitioner i s entitled to a

total of $1,158.80.

CONCLUSIONS OF LAW

29. DOAH has jurisdiction of the parties to, and the

subject matter of, this cause. § 766.301, et seq. , Fla. Stat

(2017) and hereafter .

30. The Plan was established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims relating to births

occurring on or after January 1, 1989.Ñ £ 766.303(1), Fla.

Stat.

31. The injured infant, her or his personal

representative, parents, dependents, and next of kin may seek

compensation under the Plan by filing a claim for compensation

with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA,

which administers the Plan, has Ð45 days from the date of

service of a complete claim . . . in which to file a response to

the petition and to submit relevant written information relating

to the issue of whether the injury is a birth - related

neurological injury.Ñ £ 766.305(4), Fla. Stat.

32. Pursuant to section 766.309, the ALJ shall make the

following determinations based upon all available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the

claimant has dem onstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally an d physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.302 (2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital; or by a certified

nurse midwife in a teach ing hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

(c) How much compensation, if any, is

awardable pursuant to s. 766.31 .

(d) Whether, if raised by the claimant or

other party, the factual determinations

regarding the notice requirements in

s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual

determinations.

33. Pursuant to section 766.31 (1) , upon determining that

an infant has sustained a birth - related neurological injury and

that obstetrical services were delivered by a participating

physician at the birth, the ALJ shall mak e an award providing

compensation . Under the NICA statute, the financial benefits

include expenses for care and treatment, periodic or lump sum

payments to the parents or guardians , and a death benefit .

§ § 766.305(4) , 766.3 1 ( 1 ) (a) and (b) , Fla. Stat. The funds for

these financial benef its are obtained from assessments on

physicians and hospitals. § 766.314 , Fla. Stat . The NICA

assessments constitute a tax, and, therefore, NICA is

administering public funds. Fla. Birth - Related Neurological

Injury Comp. AssÓn v. Carreras , 633 So. 2d 11 03 , 1105 (Fla. 3d

DCA 1994)(citing Coy v. Florida Birth - Related Neurological

Injury Compensation Plan , 595 So. 2d 943, 945 (Fla. 1992 ), cert

denied , 113 S. Ct. 194, 121 L. Ed. 2d 137 (1992).

34. In addition to the benefits described above,

section 766.31 (1) (c), also directs the ALJ to make an award for

Ð[r]easonable expenses incurred in connection with the filing of

a claim under ss. 766.301 - 766.316, including reasonable

attorneyÓ s fees.Ñ In determining an award for attorneyÓs fees,

the ALJ is req uired to 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 le gal 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.

§ 766.31(1)(c) , Fla. Stat.

35. Determining a reasonable hourly rate and the number of

hours that should be expended by the attorney in providing

services is an appropriate star t ing point for the computat ion of

a reasonable fee in NICA proceedings. Carreras , 633 So. 2d at

1107.

36. Under the hour - setting portion of the lodestar

computation, the Carreras court discussed the importance of

distinguishing between Ðhours actually workedÑ versus Ðhours

reasonably expended.Ñ Quoting In re Estate of Platt , 586 So. 2d

328, 333 - 34 (Fla. 1991) , the Carreras court noted that the

objective is for the ALJ:

[T] o determine the number of hours

reasonably expended in providing the

services. ÒReasonably expendedÓ m eans 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 this 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.

37. The NICA program Ðcontemplates routine claim

processing where eligibility determinations should ordinarily be

st raightforward.Ñ Id . at 1106. ÐThe major hurdle in a NICA

petition is the determination of eligibility, and litigation

over eligibility should be the exception rather than the rule.Ñ

Id . at 1107. ÐThe process of qualifying an infant for an award

does no t require a showing of fault and should ordinarily be

accomplished without adversary litigation.Ñ Id . at 1109.

38. In construing the phrase Ðincurred in connection with

the filing of a claim,Ñ the Carreras court found that the NICA

statute contemp lates Ða reasonable allowance for the time

necessary to investigate the NICA claim and prepare the NICA

petition.Ñ Id . Implicitly, the Carreras court did not rule out

compensation for attorneyÓs fees for conducting Ðsubstantive

workÑ beyond the acts of i nitial investigation and filing the

petition. Id . at 1110 - 111 1 . However, Ð[p]lainly, the

exploration of the possibility of opting out of NICA through the

Ðbad faithÑ exception or otherwise is not, as the statute

requires, work performed Ðin connection wi th the filing of a

claim.Ñ Id . at 1109 - 11 10.

39. Section 766.31 does not address prevailing parties,

but rather links liability for reasonable expe nses, including

reasonable attorneyÓs fees, upon the ALJÓs determination that:

1) an infant has sus tained a birth - related neurological injury;

and 2) that obstetrical services were delivered by a

participating physician at the birth. See Lampert v. Fla.

Birth - Related Neurological Injury Comp. AssÓn , 206 So. 3d 845,

847 (Fla. 1st DCA 2016); § 766 .31(1) , Fla. Stat . The

determination of w hether, if raised by the claimant or other

party, the notice requirements in s ection 766.316 are satisfied ,

is not germane to the award of reasonable expenses and

attorneyÓs fees. Thus, time incurred by exploring civil

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

notice r equirements in section 766.316 is not compensable. Id .

at 1109 - 11 10; See also Braniff v. Galen of Fla., Inc. , 669 So.

2d 1051, 1053 (Fla. 1st DCA 1995) (ÐThe presence or absence of

notice will neither advance nor defeat the claim of an eligible

NICA claimant who has decided to invoke the NICA remed y . . .

.Ñ); OÓLeary v. Fla. Birth - Related Neurological Injury Comp.

Plan , 757 So. 2d 624, 627 (Fla. 5th DCA 2000)(ÐWe recognize that

lack of notice does not affect a claimantÓs ability to obtain

compensation from the Plan.Ñ); Univ. of Miami v. Ruiz , 164 So.

3d 758, 765 (Fla. 3d DCA 2015) (noting that a claimant may accept

NICA benefits to the ex c lusion of any and all civil remedies

against any entities directl y involved in the delivery or eschew

the NICA benefits and take his or her chances in a civil suit

against the par ty or parties who have waived N I C A immunity by

failing to comply with the NICA Notice Provisio n).

40. Against this legal backdrop, the undersigned concludes

that PetitionerÓs counsel reasonably expended 33.15 hours in

representation in connection with the filing of the NICA claim.

41. In considering t he fee customarily charged in the

locality for similar legal services , for lodestar purposes, Ðthe

relevant inquiry is to determine the prevailing rate, or range

of rates, where the fee basis is hourly billing f r om time

worked.Ñ See In re Platt , 586 So. 2d at 334 . Once the hourly

custom ary fee is determined, then one considers the other

applicable statutory factors in order to arrive at the approved

reasonable ho urly rate for the case. Carreras , 633 So. 2d at

1108.

42. Pursuant to Carreras , the ALJ is directed to enter a

finding which correlates to Ðreal world hourly ratesÑ in NICA

cases (to the extent such information is available) and to other

hourly legal work similar in nature, such as workersÓ

compensation or medical malpractice, to serve as a useful basis

for comparison. T hereafter, the ALJ is directed to apply the

other relevant statutory factors to come up with the approved

hourly rate for the case. Id . at 1108. The Carerras court

further expounded:

In so doing, Ð the trial court is not bound

to accept the hourly rate a sserted by

counsel who performed the service. The

court in this instance determines the

appropriate rate for the services

performed.Ñ In re Platt , 586 So. 2d at 334.

Furthermore, expert opinion is not binding

on the trier of fact , Baruch v. Giblin , 122

Fla. 59, 64, 164 So. 831, 833 (1935), Miller

v. First American Bank & Trust , 607 So. 2d

483, 485 - 86 (Fla. 4th DCA 1992), and Ðthe

opinion of an expert witness does not

constitute proof that the facts necessary to

support the conclusion exist.Ñ Mercy

Hospi tal, Inc. v. Johnson , 431 So. 2d 687,

688 (Fla. 3d DCA)(citation omitted), review

denied , 441 So. 2d 632 (1983).

43. The undersigned concludes that the fee customarily

charged in PetitionerÓs counsel s Ó locality for similar legal

services is $350.0 0 an hour. Upon consideration of the facts of

this case, and the remaining criteria established by section

766.31 (1) (c), there is no basis or reason to adjust the figure.

Specifically, there were no significant time limitations shown

to have been imposed by the claimant or the circumstances in

this particular case. The nature and length of the professional

relationship with the client was a neutral consideration. The

experience, reputation, and ability of the lawyers performing

the services for Petition er have been considered in establishing

the reasonable hours and reasonable hourly rate and do not

afford any additional basis to adjust the figure. While

PetitionerÓs counsel appropriately exhausted novel issues

regarding their clientÓs capacity and no ti ce, these issues are

separate and apart from the issue of compensability. Fi nally,

given the nature of the claim, which was accepted by Respondent,

the potential risk of non - recovery (i.e. , a determination that

the claim was not compensable) was not suffi cient to warrant any

adjustments.

44. Pertinent to an award of reasonable expenses, the

Statewide Uniform Guidelines for Taxation of Costs in Civil

Actions, effective January 1, 2016, provide s , in pertinent part,

as follows:

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 ov erall 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 prosecu te 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 reporterÓs 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. Documen ts and Exhibits

1. The costs of copies of documents filed

(in lieu of Ðactually citedÑ) 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 an d/or

trial.

E. Court Reporting Costs Other than for

Depositions

1. Reasonable court reporterÓs per diem for

the reporting of evidentiary hearings, trial

and post - trial hearings.

F. Reasonable Charges Incurred for

Requiring Special Magistrates, Guar dians Ad

Litem, and Attorneys Ad Litem

* * *

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 o r 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 Reasonable 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).

45. The undersigned concludes that , with the exclusion of

the costs associated with non - testifying expert witness fees,

the balance of those cos ts itemized by RespondentÓs expert,

Mr. Bounds, and the DOAH filing fee, to be recoverable as

reasonable expenses incurred in connection with the filing of

the NICA claim. Together with costs stipulated by NICA,

P etitioner is entitled to a total of $1,15 8.80.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner is awarded $11,602.50 in

attorneyÓs fees and $1,158.80 in expenses .

DONE AND ORDERED this 1 7 th day of April , 2018 , in

Tallahassee, Leon Count y, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of April , 2018 .

ENDNOTE S

1/ On September 29, 2017, NICA filed an unopposed Motion for

Substitution of Party. The grounds for the motion were that, on

or about April 11, 2017, Courtney Lindsey was adjudicated

totally incapacitated in the Circuit Court of Putnam County,

Florida. On the same date, Cherry Fullwood Leonard was

appointed as

Ms. LindseyÓs guardian . On August 17, 2017, Ms. Leonard was

appointed as the guar dian of Kamari Jackson. On October 2,

2017, the undersigned granted NICAÓs motion for substitution of

party and the style of the case was amended.

2 / On March 11, 2016 , Intervenor Mohammed Akhiyat, M.D. , filed a

Joinder in Putnam Community Medical Cente rÓs Motion for Partial

Summary Final Order.

3 / Where attorneys have not kept contemporaneous time records,

it is permissible for a reconstruction of time to be prepared.

See Brake v. Murphy , 736 So. 2d 745, 747 (Fla. 3d DCA 1999).

4 / See Allgood v. Fla. Birth - Related Neurological Injury Comp.

AssÓn , Case No. 08 - 4814N (Fla. DOAH Feb. 18, 2011)(concluding a

reasonable rate of $270.00 per hour); Oliver v. Fla. Birth -

Related Neurological Injury Comp. AssÓn , Case No. 06 - 0318N (Fla.

DOAH Dec. 19, 2008)(c oncluding a reasonable market rate of

$300.00 per hour); and Robles v. Fla. Birth - Related Neurological

Injury Comp. AssÓn , Case No. 07 - 2186 (Fla. DOAH Dec. 16,

2018)(concluding a stipulated fee of $300.00 per hour was

reasonable).

COPIES FURNISHED:

(vi a certified mail)

Jonathan T. Gilbert, Esquire

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail Number 701 6 0910 000 1 7980 1703 )

Kenney Shipley, Exe cutive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7016 0910 0001 7980 9822 )

Brooke M. Gaffney, Esquire

Smith , Stout, Bigman & Br ock , P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail Number 7016 0910 0001 7980 9839 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7016 0910 0001 7980 9846 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7016 0 910 0001 7980 4407 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed

by the F lorida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the a gency c lerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy , accompanied by filing fees prescribed by

law, with the clerk of the appropriate District Court of Appeal.

See § 766.311(1), Fla. Stat., and Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).