Temes v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1465V
(Not to be published)
*************************
GERALD TEMES, *
* Chief Special Master Corcoran
Petitioner, *
* Filed: April 15, 2021
v. *
*
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************
Renée J. Gentry, Vaccine Injury Clinic, George Washington University Law School,
Washington, DC, for Petitioner.
Alexa Roggenkamp, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEY’S FEES AND COSTS 1
On November 7, 2016, Gerald Temes filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”) 2 alleging that he
experienced cryoglobulinemia, 3 a blood disorder than can lead to vasculitis, as a result of receiving
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its current form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
3
Cryoglobulinemia is a condition in which certain immunoglobulins (antibodies) found in the blood precipitate under
cool conditions. Dorland’s Illustrated Medical Dictionary 438, 908 (33d ed. 2020) (hereinafter Dorland’s).
the influenza and pneumococcal (Prevnar 13) 4 vaccines on October 19, 2015. Petition (“Pet.”)
(ECF No. 1) at 1. I issued a decision denying entitlement in the case on May 12, 2020. (ECF No.
59). Petitioner filed a Motion for Review of my decision on June 11, 2020 (ECF No. 60), but the
motion was denied and dismissal of the matter sustained. (ECF No. 65).
On March 26, 2021, Petitioner filed a motion seeking a final award of attorney’s fees and
costs. Mot. for Final Attorney’s Fees and Costs (ECF No. 69) (“Mot.”). Petitioner requests an
award of $171,287.55 in attorney fees and costs for the work of Ms. Renée Gentry, Esq., and Mr.
Clifford Shoemaker, Esq. (now retired), as well as law students at The Vaccine Injury Litigation
Clinic at The George Washington University Law School, plus $1,057.21 for Petitioner’s personal
out-of-pocket costs associated with his appearance at the hearing. Mot. at 1; Fees Invoice, dated
March 26, 2021 (ECF No. 69-1), at 39. Fees reflect all work performed on the matter between May
2016 and the present date, and costs include expenses associated with travel, experts, and record
retrieval. Fees Invoice at 27-53.
Respondent reacted to the fees request on April 1, 2021. See Response, dated Feb. 4, 2021
(ECF No. 70). Respondent is satisfied that the statutory requirements for an attorney’s fees and
costs award are met in this case, but defers the calculation of the amount to be awarded to my
discretion. Id. at 3–4.
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and
costs in the total amount of $ 171,287.55, plus $ 1,057.21 for costs personally incurred by Petitioner.
ANALYSIS
I. Petitioner’s Claim had Reasonable Basis
Although the Vaccine Act only guarantees a reasonable award of attorney’s fees and costs
to successful petitioners, a special master may also award fees and costs in an unsuccessful case
if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for the claim
for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth at length
the criteria to be applied when determining if a claim possessed “reasonable basis” sufficient for a
fees award. See, e.g., Sterling v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443,
at *4 (Fed. Cl. Spec. Mstr. Jan. 3, 2020).
In short, the claim’s reasonable basis must be demonstrated through some objective
4
Prevnar13 is a sterile suspension pneumococcal vaccine targeted against thirteen strains of the Streptococcus
pneumoniae bacterium. It also contains non-toxic diphtheria protein and aluminum adjuvants. Prevnar 13 Package
Insert, filed as Court Ex. 1 on May 12, 2020 (ECF No. 58) at 25–26.
2
evidentiary showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed.
Cir. 2020) (citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)).
This objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may
bulwark good faith). Simmons, 875 F.3d at 635. Reasonable basis inquiries are not static—they
evaluate not only what was known at the time the petition was filed, but also take into account
what is learned about the evidentiary support for the claim as the matter progresses. Perreira v.
Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the finding that a
reasonable basis for petitioners’ claims ceased to exist once they had reviewed their expert's
opinion, which consisted entirely of unsupported speculation).
The standard for reasonable basis is lesser (and thus inherently easier to satisfy) than the
preponderant standard applied when assessing entitlement, as cases that fail can still have
sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 144 Fed.
Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable basis is a standard
that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of Health &
Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) (affirming special
master). The factual basis and medical support for the claim is among the evidence that should be
considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 378 (Fed. Cl. 2017). Under
the Vaccine Act, special masters have “maximum discretion” in applying the reasonable basis
standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401, 401–02 (Fed. Cl.
2012). 5
Even though Petitioner’s claim was ultimately unsuccessful, it had more than sufficient
objective basis to entitle him to a fees and costs award. Petitioner was able to offer a causation
theory based on reliable scientific concepts plus a reasonable expert opinion, and Petitioner’s good
faith arguments were backed by objective support in the record for core matters like proof of
vaccination and the nature of Petitioner’s injury. There was also treater support for aspects of the
claim, and the injury at issue was not one that has regularly been litigated in the past, such that
counsel might have been on notice that the claim would likely not succeed. Respondent for his
part does not otherwise contest reasonable basis. Accordingly, a final award of fees and costs in
this matter is appropriate.
II. Calculation of Fees
Determining the appropriate amount of the fees award is a two-part process. The first part
involves application of the lodestar method - “multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs.,
5
See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they
would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is
consistent with the Vaccine Act as a whole).
3
515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
The second part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in
most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424,
429–37 (1983).
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,
for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there
is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348
(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges
for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine
Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at
*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Petitioner requests the following rates for his attorney and support staff, based on the years
work was performed:
2016 2017 2018 2019 2020
Ms. Renée $415.00 $424.00 $435.00 $445.00 $464.00
Gentry,
Esq.
Mr. $430.00 $440.00 $450.00 $460.00 -
Clifford
Shoemaker,
Esq.
George $145.00 $145.00 $145.00 $145.00 $145.00
Washington
University
Law
Student-
Attorneys
Fees Invoice at 1-20.
Ms. Gentry (and Mr. Shoemaker prior to his retirement) practices in Vienna, Virginia (a
jurisdiction that has been deemed “in forum”), as well as Washington, DC, in cases where the GW
Law School Clinic is involved. Accordingly, she plus the attorneys and students who assisted her
are entitled to the rates established in McCulloch. See Jaffri v. Se’y of Health & Human Servs.,
No. 13-484V, 2016 WL 7319407, at *5–6 (Fed. Cl. Spec. Mstr. Sept. 30, 2016). The rates
requested for Ms. Gentry and Mr. Shoemaker are also consistent with what has previously been
4
awarded them in accordance with the Office of Special Masters’ fee schedule.6 I thus find no cause
to reduce them in this instance. I also deem the time devoted to the matter reasonable, and therefore
award fees for all work performed on the case as requested in the fees application.
III. Calculation of Attorney’s Costs
Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.
Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).
Reasonable costs include the costs of obtaining medical records and expert time incurred while
working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at
*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as
by not providing appropriate documentation to explain the basis for a particular cost, special
masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health
& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioner seeks $25,758.80 in costs incurred since the claim’s filing, including medical
record retrieval, fees for the work of expert Joseph Bellanti, M.D., and travel expenses associated
with the hearing. Fees Invoice at 27. Dr. Bellanti provided two expert reports in the matter, working
at a rate of $400.00 per hour for 55 hours, totaling $22,200.00 in fees. Id. at 29. I find Dr. Bellanti’s
rate and total hours expended to be reasonable, and find no reason to make any reductions for his
work. Medical record retrieval and travel costs are typical in Program cases and are thus eligible
for reimbursement and I do not find any of the requested costs in this matter unreasonable. Thus,
they shall also be awarded in full without reduction. And I also award in full the expenses
personally incurred by Dr. Temes in attending the hearing.
CONCLUSION
Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs
in its entirety, and award a total of $171,287.55, reflecting $145,528.75 in attorney’s fees and
$25,758.80 in costs, in the form of a check made jointly payable to Petitioner and his attorney Ms.
Renée Gentry. Additionally, I award $1,057.21, representing costs personally incurred by
Petitioner, in the form of a check payable to Petitioner and Petitioner’s counsel.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
6
OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Mar.
22, 2021).
5
court SHALL ENTER JUDGMENT in accordance with the terms of this decision.7
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
6