PS and LS v . Contoocook Valley School CV-95-154-M 02/12/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

P.S. and L.S.

v. Civil N o . 95-154-M

Contoocook Valley School District and School Administrative Unit #1

O R D E R

Plaintiffs have filed a second motion pursuant to

(e)(4) to recover expert witness costs associated

with an administrative due process proceeding brought under the

Individuals with Disabilities Education Act ("IDEA")

, e t . seq.. Plaintiffs’ request for expert witness fees

was initially denied without prejudice to refiling because they

had not provided sufficient supporting information. The parties

were urged to resolve the question of expert witness fees between

them. Unfortunately, they cannot. Plaintiffs have now refiled

their request with additional supporting materials. Defendants

object.

The parents of a child who prevails in a proceeding under

the IDEA may be awarded “‘reasonable expenses and fees of expert

witnesses and the reasonable costs of any test or evaluation

which is found to be necessary for the preparation of the parent

or guardian’s case.’” Field v . Haddon Field Bd. of Educ.,

(D.N.J. 1991) (quoting H.R.Conf.Rep. N o . 6 8 7 ,

1986 U.S.Code Cong. & Admin. News 1798, 1808). To be necessary to the presentation of the case, the use of the expert must be more than helpful, and his or her involvement must be focused on the proceeding. See E.M. v . Millville Bd. of Educ.,

(D.N.J. 1994). Charges for administrative work that is not part of the litigation are not recoverable. Fenneman v . Town of Gorham,

4 2 , 454 (D. M e . 1992). Plaintiffs bear the burden to show that their requested expert expenses meet the standard for reimbursement. See Bailey v . District of Columbia,

8 8 , 892 (D.D.C. 1993).

Plaintiffs request reimbursement for the expenses of D r . Roger LaMora, a certified psychologist; D r . Richard Kemper, a “psycholinguist” with expertise in written language; Richard Dufresne, a social worker; Caryl Patten, an educational advocate; and D r . Sarah Brophy who provided a written evaluation report regarding the plaintiffs’ child. The plaintiffs also request reimbursement for fees charged by an attorney who provided an expert opinion regarding the reasonableness of their attorney’s fees for which they sought reimbursement in their first motion and the fees charged for preparing this motion. The requests are addressed as follows.

A. Dr. LaMora and Dr. Kemper

Plaintiffs contend that D r . LaMora and D r . Kemper presented

two different aspects of their child’s disability and that each

witness was necessary to properly contest the school district’s

plan for their child. Plaintiffs contend that therapy for their

2 child, an evaluation of him, and observations at his school by LaMora and Kemper were necessary for the experts to prepare their testimony for the hearing. They seek reimbursement for the those charges and for the charges for the time each expert spent consulting with their attorneys to prepare for the hearing.

In his decision following the due process hearing, the hearings officer observed that “there is ultimately little real dispute between the parties about what [the child’s] weaknesses are, or how severe they are.” Instead, the essence of the parties’ disagreement was whether the child could or could not profitably learn in a public school environment in the program offered by the school district. The hearings officer concluded that a private school placement, though not a residential program, was necessary. On balance, it seems that, to some extent at least, the experts’ testimony was probably “necessary” to present plaintiffs’ case.

Several of the activities, for which reimbursement is sought, were not necessary to present the case, however. Therapy sessions with D r . LaMora between December 1993 and September 1994 appear to have been primarily for treatment purposes rather than to prepare for the due process hearing, which was held in October 1994. D r . LaMora’s charge for attendance at a school team meeting, without further explanation, is not reimbursable. Even if D r . LaMora’s and D r . Kemper’s other activities, as described by the plaintiffs, were “necessary” to the plaintiffs’ case, plaintiffs have not satisfied the court that those efforts

3 qualify for reimbursement under the reasonableness element of the standard. Addressing the reasonableness of their experts’ charges, plaintiffs note that D r . LaMora charged $95.00 per hour and that Dr. Kemper charged $90.00 per hour. The only comparable service offered by the plaintiffs for comparison was the school district’s expert whose hourly rate in 1994 was $65.00. That rate was substantially less than either of plaintiffs’ experts’ hourly rates of $90.00 and $95.00. Without further explanation by plaintiffs, their experts’ hourly rates appear to be high.

Plaintiffs request $1,007.50 for their child’s therapy sessions with D r . LaMora from December 1993 through September 1994, $250.00 for LaMora’s attendance at a school team meeting, $1,500.00 for school observations, $500.00 for consultation with their attorneys, and $1,000.00 for his participation in the due process hearing, for a total of $4,257.50. With regard to D r . Kemper, plaintiffs request reimbursement for D r . Kemper’s charges of $900.00 for his evaluation of the child in March 1994, $1,350.00 for his school observations, and $1,035.00 for consultation with their attorneys in preparation for the due process hearing and for time spent testifying, for a total of $3,285.00.

The plaintiffs’ statements about their experts’ hourly rates and charges are no doubt accurate, but they are not particularly helpful, as plaintiffs have failed to show that the time and effort expended by D r . LaMora and D r . Kemper (and the resulting

4 fees charged) were reasonable given the context of the dispute and the nature of the issues to be resolved. As documentary support for their requests for reimbursement, plaintiffs simply direct the court to their response to defendants’ request for production of documents that includes copies of billing records for all of the plaintiffs’ experts. Plaintiffs offer no

direction or enlightenment as to which records correspond to what services, and they make no specific reference to particular bills or records. In addition, many of the bills appear to be duplicative and are not all readily attributable to the services described in plaintiffs’ memorandum.

It also appears from the billing records that while certain charges might well have been reasonable under some circumstances, given the context and nature of the issues to be resolved, other charges were not reasonably incurred in connection with this IDEA proceeding. For instance, D r . LaMora billed $1,000.00 for a school observation which was apparently conducted in one day, and the plaintiffs offer no explanation or justification for this apparently excessive amount of time (more than ten hours at his hourly rate) or the excessive charge (if he spent less than ten hours). D r . Kemper charged $900.00 for an evaluation that plaintiffs do not attempt to explain; does the charge reflect ten hours of work at the hourly rate, or was the charge based on a higher than usual hourly rate, and was all the time spent really necessary?

5 Plaintiffs’ supporting materials are neither particularly well organized nor particularly informative, and the disclosed costs have a decided appearance of overkill and imprudent unnecessary spending relative to the proceeding and issues at hand. While some costs, such as charges for the experts to attend the due process hearing, were no doubt “necessary,” the court finds that the total amount requested fails under both the necessary and reasonableness tests. See Bailey,

(“When extravagant costs are undocumented, the court questions whether they are truly necessary and often disallows them.”)

Plaintiffs, who bear the burden to do s o , have not provided sufficient information in useable form to permit the court to cull out “necessary and reasonable” charges from the others on anything but a rough estimate basis. Accordingly, the court will subtract from the total claimed specific charges deemed unnecessary or unreasonable and reduce the remaining amount requested by one half to reflect a more reasonable amount of time and effort that reasonably should have been expended in this case. Plaintiffs are awarded $1,500.00 toward the fees charged by D r . LaMora and $1642.50 toward those charged by D r . Kemper.

B. Caryl Patten

Plaintiffs seek a total of $1,185.64 in reimbursement for

fees charged by Caryl Patten, who is described as an “educational

advocate” with whom plaintiffs had consulted about their child’s

6 educational needs. Plaintiffs state that M s . Patten charged $32.00 per hour for her services, but they do not offer an explanation of her expertise or any rates of comparable experts to provide a context for evaluating the reasonableness of her hourly rate.

Although it is unclear, plaintiffs seem to contend that only M s . Patten’s work in October and her testimony at the due process hearing were “necessary” for their case. (“Plaintiffs submit that the services provided by M s . Patten during the administrative due process hearing, in terms of her post September, 1994 preparatory and consultative work and her testimony was not only necessary to the preparation of the S.’s case . . . but is also a traditional [sic] incurred in the course of litigating a case such as this . . .”) M s . Patten’s bill, which is included in the records submitted by plaintiffs and totals the amount sought in reimbursement, includes a substantial number of charges in September as well as October 1994. Her charge for time testifying at the hearing on October 13 was $56.00.

M s . Patten, however, apparently testified as a hostile witness for the school district and was not called as a witness by plaintiffs. Plaintiffs have not sufficiently defined Patten’s role in their preparation for the due process hearing, nor have they explained the benefit of her consultation or her testimony. In sum, plaintiffs have not met their burden of showing that the charges by M s . Patten were either reasonable or necessary within

7 the applicable standard. Plaintiffs are not awarded

reimbursement for those charges.

C. Richard Dufresne

Plaintiffs describe Richard Dufresne, a social worker, as a

“professional consultant” involved in plaintiffs’ child’s

education. Dufresne anticipated testifying at the hearing, but

did not. Plaintiffs seek reimbursement of $1,600.00,

representing Dufresne’s charges for counseling between August

1993 and September 1994 and $540.00 for his time preparing for

and set aside for the hearing. The counseling, which is not

explained, appears to be for treatment unrelated to the hearing.

As Dufresne did not testify at the hearing, his services such as

they might have been, and his preparation were neither necessary

to plaintiffs’ case nor was the expense reasonably incurred. No

reimbursement is allowed.

D. Evaluation by Dr. Sarah Brophy

Although it is not entirely clear, it seems from the hearing

officer’s decision that D r . Brophy’s evaluation of the child was used productively by both plaintiffs and the school district to

advocate programs and placement for the child. Plaintiffs

request $475.00 as D r . Brophy’s fee for evaluating the child,

conducted over two days, and for her report. However, plaintiffs

have not pointed to any billing records or other documentation in

the record that establish D r . Brophy’s charges for the

8 evaluation. Instead, plaintiffs rely on their own answer to

defendant’s interrogatory that provided the dates and cost of D r .

Brophy’s evaluation. Although plaintiffs’ showing would not

ordinarily be sufficient to support their request for

reimbursement for D r . Brophy’s services, because this amount does

have the facial indicia of reasonableness and necessity lacking

in plaintiffs other claims, the court will allow reimbursement

for the cost of D r . Brophy’s evaluation.

E. Additional Attorneys’ Fees

Plaintiffs also seek reimbursement for fees billed by

Attorney Jeffrey Taylor, who provided an expert opinion by

affidavit regarding the reasonableness of plaintiffs’ attorneys’

fees. Plaintiffs assert that Taylor spent sixteen hours and

charged $100.00 per hour to prepare his opinion affidavit, and

charged an additional $1,458.83 to prepare for and give a

deposition (requested by defendants). Taylor’s billing records,

which plaintiffs have submitted, present two lump sum amounts

with a general summary of work done in sixteen and twelve hour

billing periods, and a third bill for 2.4 hours and $18.83 for photocopying, postage, and telephone calls. In this court’s

order of September 3 0 , 1996, plaintiffs were cautioned that

Attorney Taylor’s lump sum bills were not sufficiently detailed

to support a request for reimbursement. His efforts and charges

related to this assignment are facially excessive, unreasonable,

and insufficiently documented by date, task, and time to justify

9 the amount charged. Plaintiffs are awarded $400.00 as reasonable reimbursement for Attorney Taylor’s work in preparing his affidavit; no more than four hours should have been necessary to review the rates charged and the services provided by plaintiffs’ attorneys and to prepare an opinion affidavit.

No one has explained the necessity for defendants’ deposing Attorney Taylor, but even though they bear the burden of demonstrating their entitlement to reimbursement, plaintiffs should not bear the cost of that apparently unnecessary and questionable expense. On the other hand, plaintiffs should not recover unreasonable or unnecessary charges for Attorney Taylor’s preparation for the deposition. The time Taylor should reasonably have spent preparing his affidavit should also have been adequate preparation for the deposition, given the limited nature of any relevant inquiry. Unfortunately, once again, the undifferentiated state of the billing records does not provide a reliable means by which to determine what time Attorney Taylor actually spent giving the deposition. The court finds that three hours would be a more than reasonable estimate of the time required to exhaust the subject and awards $300.00 as a reasonable charge for time necessarily spent in the deposition.

Plaintiffs also request an award of $1,531.25 in attorney’s fees for preparing the current motion for reimbursement. As the present motion should have been entirely unnecessary had counsel properly presented plaintiffs’ request for expert witness fees in the first motion, and given that they still have not filed a

10 properly supported motion, plaintiffs are not entitled to

reimbursement for fees related to this motion. The court is not

inclined to exercise its discretion to award fees under these

circumstances for fear of encouraging inadequate preparation in

the future, and rewarding practices that unduly burden and waste

public resources.

CONCLUSION

Plaintiffs’ motion for expenses and costs of litigation

(document n o . 24) is granted in part and denied in part.

Plaintiffs are awarded and defendant shall pay $3,592.50 as

reimbursement for costs incurred in obtaining experts’ services

related to the hearing, and $700.00 for costs billed by Attorney

Jeffrey Taylor. All other claims for reimbursement are denied.

The Clerk of Court is instructed to close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge February 1 2 , 1997

cc: Louis W . Helmuth, Esq. Grant C . Rees, Esq.

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