County Superior Court
Plaintiff: Michael A. Kelly, Esq.
Defendant: Michael W. Field, Esq.; Joseph K. Alston, Esq.;
Mariana E. Ormonde, Esq.; Julie Ann Sacks, Esq.; Adam Sholes,
matter came to be heard on June 29, 2016 before the Superior
Court, Procaccini, J., on Appellant Leo Blais, R.Ph.'s
(Appellant or Mr. Blais) Motion for Litigation Expenses under
the Equal Access to Justice for Small Businesses and
Individuals Act (EAJA), G.L. 1956 §§ 42-92-1 et
seq. Appellant's motion comes before this Court
following his successful appeal to the Rhode Island Superior
Court from a decision of the Director of the Rhode Island
Department of Health (the Department), Michael Fine, M.D.
(Director Fine), (collectively, Appellees) that permanently
revoked Appellant's license to practice pharmacy in the
State of Rhode Island (Final Decision). For the reasons set
forth in this Decision, this Court finds that Appellant is
legally entitled to recover reasonable litigation expenses
arising out of and related to Appellant's appeal of
Director Fine's Final Decision.
facts underlying this case are essentially undisputed and set
out in further detail in Blais v. R.I. Dep't of
Health, No. PC 2012-5791, 2014 WL 7368789 (R.I. Super.
Dec. 22, 2014) (Nugent, J.). On March 14, 2012, a mother of
an infant child sought to file a complaint against Apothecare
Compounding Solutions (Apothecare), a compounding
pharmaceutical shop, with the State Board of Pharmacy (the
Board). Id. at *1. The mother had filled a
prescription for her infant at Apothecare for Omeprazole,
stomach medication for acid reflux. Id. After the
infant became lethargic, the mother took her child to the
hospital and was informed that the Omeprazole contained
morphine. Id. Morphine does not belong in
Omeprazole. Id. The Office of Compliance and
Regulatory for the Board sent the prescribed Omeprazole to
the State Toxicology Lab and confirmed that the drug
contained morphine. Id.
investigation was conducted of Apothecare, including speaking
to the pharmacist in charge, Mr. Blais, and inspecting the
physical location of the pharmacy. Id. at *1-2. Mr.
Blais has been a pharmacist for approximately thirty-five
years and was President of the Rhode Island Pharmacist
Association. Id. at *1. He additionally served as a
member of the Board for twelve years. Id. Upon
investigation of Apothecare, Dr. Patrick Kelly (Dr. Kelly),
Chief of Compliance and Regulatory, found the compounding
area to be cluttered and disorganized. Id. at *1-2.
Dr. Kelly also noted that many drugs were stored on the
floor, without any sign of markers separating one drug from
another. Id. at *2. Finally, the investigation
revealed that another child had received and ingested the
adulterated Omeprazole. Id. Mr. Blais admitted that
the adulterated drug was a result of the disordered state of
the pharmacy. Id.
March 23, 2012, Director Fine summarily suspended Mr.
Blais' license in accordance with § 42-35-14(c).
Id. at *3. Mr. Blais and the Board attempted to
enter into a Consent Order, agreeing to a two-year
suspension, with the commencement of the first year dating
back to the issuance of the summary suspension. Id.
However, Director Fine rejected this Consent Order.
Id. The Board ultimately delegated its authority to
hear Mr. Blais' appeal to a hearing officer, Catherine
Warren (Hearing Officer Warren). Id. After a
multi-day hearing, Hearing Officer Warren issued a
twenty-nine page decision, finding: (1) the drug labeled as
Omeprazole inappropriately contained morphine; (2) the
pharmacy was kept in an unsanitary and disorderly condition;
and (3) drugs without expiration dates were not properly
labeled or segregated. Hearing Officer Warren's Decision
15-18; see also Blais, 2014 WL 7368789, at *3-4.
Based upon her factual findings, Hearing Officer Warren
recommended a thirty-month license suspension (fifteen months
active, with the remainder stayed), two-year probationary
period, and continuing education classes. Hearing Officer
Warren's Decision 26-27.
Fine accepted Hearing Officer Warren's findings of fact
but found that Hearing Officer Warren failed to adequately
weigh "the potential danger morphine poses to a baby or
infant child." Final Decision 4; see also
Blais, 2014 WL 7368789, at *4. Director Fine also found
Mr. Blais' newly installed safety measures unpersuasive,
as Mr. Blais had numerous chances to improve the organization
of his pharmacy but failed to do so. Final Decision 4. As a
result, Director Fine permanently revoked Mr. Blais'
license to practice pharmacy. Id. This was the first
and only time a pharmacist's license was permanently
revoked by the Department for a dispensing error.
Blais, 2014 WL 7368789, at *4.
Blais timely appealed Director Fine's Final Decision to
revoke his license on July 16, 2013. Id. Mr. Blais
argued that Director Fine's Final Decision failed to give
adequate deference to Hearing Officer Warren's findings
and imposed sanctions in excess of Director Fine's
statutory authority. Id. The matter was heard on
November 25, 2014 before Judge Stephen Nugent. Id.
In a carefully crafted decision, the Court held that
"Director Fine acted in excess of his statutory
authority and abused his discretion in revoking Mr.
Blais' license to practice pharmacy." Id.
at *7. The Court reasoned that Director Fine failed to give
proper deference to Hearing Officer Warren's findings of
fact and that the record did not support a deviation from
such findings. Id. at *5-7. The Court noted that
Hearing Officer Warren did in fact consider the dangers of a
dispensing error, as well as assess the credibility of the
witnesses and Mr. Blais' competency to safely practice.
Id. at *6-7. The Court also recognized that
pharmacists cannot be held to a standard of perfection, and,
at least since 1980, the Board has never suspended a
pharmacist for a dispensing error. Id. at *7.
Finally, the Court acknowledged Mr. Blais' long-standing
credentials and his willingness to adopt remedial measures
and admit his errors. Id. As a result, the Court
found that "Director Fine's 'mere philosophical
differences' as to the proper discipline in the wake of
such an incident served as the fulcrum upon which he uprooted
Hearing Officer Warren's well-grounded sanction" in
direct contradiction of administrative law. Id. at
*6. See generally Envtl. Scientific Corp. v. Durfee,
621 A.2d 200 (R.I. 1993). The Court ultimately modified the
agency decision to impose Hearing Officer Warren's
recommended suspension and probation. Blais, 2014 WL
7368789, at *8.
after Judge Nugent's decision was rendered, Appellant
moved for litigation expenses under the EAJA. However, the
present motion was set aside for quite some time as
Appellee's Petition for a Writ of Certiorari (Writ) to
the Supreme Court was pending. On June 18, 2015, the Supreme
Court denied Appellee's Amended Petition for a Writ.
See Appellant's Mem., Ex. 8. The parties have
recently completed additional discovery. On May 3, 2016,
Appellant again moved for litigation expenses under the EAJA.
Appellant seeks a total of $63, 323.48 in litigation
expenses, $55, 056.25 in attorneys' fees and $8, 267.23
in expert and stenographer fees. See Appellant's
Mem., Ex. 3. These litigation expenses were incurred in
connection with Appellant's administrative proceeding,
administrative appeal, and defense against Appellee's
Petition for a Writ. See Appellant's Mem. 14.
Litigation Expenses Under the EAJA
EAJA "'was propounded to mitigate the burden placed
upon individuals and small businesses by the arbitrary and
capricious decisions of administrative agencies made during
adjudicatory proceedings.'" Tarbox v. Zoning Bd. of
Review of Jamestown, Nos. 2014-188-Appeal,
2014-189-Appeal, 2016 WL 984044, at *6 (R.I. Mar. 15, 2016)
(quoting Krikorian, 606 A.2d at 673). The act
encourages individuals and small business to challenge agency
actions that are not substantially justified. See
id. Section 42-92-3(a) outlines a party's
application for litigation expenses under the EAJA:
"Whenever the agency conducts an adjudicatory proceeding
subject to this chapter, the adjudicative officer shall award
to a prevailing party reasonable litigation expenses incurred
by the party in connection with that proceeding. The
adjudicative officer will not award fees or expenses if he or
she finds that the agency was substantially justified ...