Fouch v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-799V
Filed: February 22, 2016
Not for Publication
*************************************
JESSICA FOUCH, *
*
Petitioner, *
* Interim attorneys’ fees and costs
v. * decision; respondent objects to
* interim fee award; good faith;
SECRETARY OF HEALTH * reasonable basis; reasonable hourly
AND HUMAN SERVICES, * rate; hours reasonably expended,
* reasonable costs; billing for
Respondent. * administrative work
*
*************************************
Diana L.S. Sedar, Sarasota, FL, for petitioner.
Jennifer L. Reynaud, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1
On September 25, 2015, petitioner filed her Motion for Interim Attorneys’ Fees and
Costs, requesting $54,442.50 in interim attorneys’ fees and $18,909.13 in costs. No decision on
entitlement has been issued.
For the reasons set forth below, the undersigned awards petitioner $48,247.88 for interim
attorneys’ fees and costs incurred up to and including September 13, 2015, when petitioner’s
prior attorney, Jaime Moss, withdrew from the case.
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Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
PROCEDURAL HISTORY
On October 15, 2013, petitioners Elizabeth and Andrew Fouch filed a petition on behalf
of their daughter, Jessica Fouch, under the National Childhood Vaccine Injury Act, 42 U.S.C. §§
300aa-10–34 (2012) (“Vaccine Act”). Petitioners alleged that their daughter suffered
anaphylaxis as a result of the tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccination she
received on June 18, 2011. Pet. at 1.
The initial status conference was held on January 13, 2014. During the status conference,
the undersigned reviewed the medical records with the parties. Petitioners’ counsel expressed
the desire to make a demand for a small amount and the undersigned ordered her to do so.
On January 17, 2014, the undersigned redacted Jessica Fouch’s name from the case
caption, because Jessica was a minor. On the same date, petitioners’ counsel contacted the
undersigned’s law clerk and said her clients did not wish to make a demand on respondent.
Petitioners’ counsel also made an oral motion for leave to file an amended petition, which the
undersigned granted in her January 17, 2014 Order.
Petitioners filed the amended petition on February 21, 2014. In their amended petition,
petitioners alleged that Jessica’s receipt of Tdap vaccine led her to develop chronic headaches,
inability to focus, chronic fatigue, joint pain, and a host of other symptoms. See Am. Pet. at ¶
46. Petitioners also alleged that Jessica’s injuries were caused by the vaccine adjuvants
contained in the Tdap vaccine under the autoimmune/inflammatory syndrome induced by
adjuvants (“ASIA”) theory. Id at ¶¶ 48-54. Along with the amended petition, petitioners filed a
letter from Dr. Deborah McCurdy stating that Tdap vaccine had caused Jessica to develop ASIA
syndrome. Ex. 28, at 1.
On March 25, 2014, petitioners filed a supplemental expert report by Dr. McCurdy. Ex.
30. In her report, Dr. McCurdy expounded on why she believed the Tdap vaccine had caused
Jessica’s injuries. Id. Her reasoning was based on the fact that Jessica was generally healthy and
had no symptoms before her Tdap shot, but had a fever and swollen arm the evening after the
vaccination and developed chronic headaches, fatigue, and weakness in the weeks following her
vaccination. Id. at 3.
On April 11, 2014, the undersigned held a telephonic status conference in which
petitioners’ counsel reported Jessica had appointments with a neuropathologist and a pain clinic.
Petitioners filed these records on June 11, 2014. See med. recs. Ex. 31, 32.
On June 27, 2014, petitioners filed photographs of Jessica as a healthy young woman
before the Tdap vaccination and looking emaciated after her receipt of the vaccine. Ex. 33.
On September 10, 2014, respondent filed expert reports by Dr. Edward W. Cetaruk, a
toxicologist, and Dr. J. Lindsay Whitton, an immunologist. See Exs. A and C. Dr. Cetaruk’s
report discussed the ASIA theory, specifically whether there is a “causal relationship between
vaccine adjuvants and the development of autoimmune disease,” as Dr. Yehuda Shoenfeld,
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whose theory Dr. McCurdy followed in her expert report, proposes. Ex. A, at 1. Dr. Cetaruk
concluded that Dr. Shoenfeld “fails to establish a reliable basis to support his causation theory
that adjuvants found in vaccines cause ASIA syndrome and/or autoimmune disease.” Id. at 10.
Dr. Whitton came to the same conclusion in his expert report. Ex. C, at 16.
On September 17, 2014, respondent filed her Rule 4(c) Report, along with an expert
report by Dr. Carlos D. Rose, a professor of pediatrics. Resp’t’s Rep.; Ex. E. In his report, Dr.
Rose noted that Jessica had reported headaches before her Tdap vaccine, that headaches are
extremely common in children and adolescents, and, that even though Jessica reported more
frequent and severe headaches after the vaccination than she did before the vaccination, this was
not related to her vaccination because her medical records do not reveal any autoimmune or
inflammatory condition. Ex. E, at 17.
During a status conference on September 24, 2014, the undersigned ordered petitioners to
file a second supplemental report from Dr. McCurdy responding to respondent’s expert reports.
In her supplemental report filed on December 3, 2014, Dr. McCurdy proposed that while
“science is not yet advanced sufficiently to accurately determine individuals who will have an
aberrant immune response to vaccines and adjuvants in certain vaccines,” the temporal
relationship between Jessica’s receipt of the Tdap vaccine and her symptoms shows that the
vaccine caused Jessica’s injuries. Ex. 34, at 2; Id. at 8. Petitioners filed a letter from Dr. Joshua
Davidson, an immunologist, who linked Jessica’s injuries to the Tdap vaccine using the ASIA
theory, as well as letters from Dr. Ruth Demonteverde, a pediatrician, Galina Marinova, Jessica’s
gymnastics coach, and Andrew Fouch, Jessica’s father. Exs. 36, 38, 39, 40.
On December 11, 2014, the undersigned ordered respondent to file supplemental reports
from her experts. Respondent filed the supplemental reports on March 26, 2015. Exs. G, H, and
I. All of respondent’s experts rejected petitioner’s ASIA theory and rejected the notion that the
Tdap vaccination caused Jessica’s injuries. See Exs. I, at 7 (“Dr. McCurdy’s report’s reference
to ASIA does not properly examine this condition either generally as the cause of any post-
vaccination illness or injury or specifically as the cause of Jessica Fouch’s headaches.”).
On April 1, 2015, the undersigned held a telephonic status conference in which she asked
the parties to provide possible hearing dates for this case.
On May 20, 2015, petitioners filed a motion to amend the case caption in the case
because Jessica had reached the age of majority. The undersigned granted their motion on the
same day.
On June 11, 2015, the undersigned issued an Order informing the parties of a decision in
a similar case, in which a judge on the U.S. Court of Federal Claims affirmed a special master’s
dismissal of a claim alleging injuries from an HPV vaccination based on the ASIA theory.
Rowan v. Sec'y of HHS, No. 10-272V, 2014 WL 3375588 (Fed. Cl. Spec. Mstr. June 19, 2014),
aff'd, 2015 WL 3562409 (Fed. Cl.), appeal dismissed, No. 15-5119 (Fed. Cir. 2015) (petitioner
failed to file appellate brief within time allotted; dismissed for failure to prosecute).
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The undersigned conducted a status conference on July 7, 2015, during which petitioner’s
counsel informed the undersigned that petitioner was seeking specialists to determine the correct
diagnosis and treatment for her condition. Petitioner filed updated medical records on September
1, 2015. She stated that her new doctor, Dr. William P. Stuppy, had diagnosed her with
dysautonomia, which is a disease of the nervous system. See med. recs. Ex. 41, at 2.
During a status conference on September 1, 2015, the undersigned reviewed the medical
records with the parties and asked petitioner to update her medical records.
On September 25, 2015, petitioner filed a Motion for Interim Attorneys’ Fees and Costs.
Petitioner filed a Motion to Substitute Attorney on October 12, 2015, asking to substitute Diana
L. Stadelnikas Sedar for Jaime E. Moss, which was granted on October 13, 2015. Respondent
filed her response to petitioner’s interim attorneys’ fees application on November 9, 2015.
Petitioner filed her reply to respondent’s response on November 13, 2015. On January 29, 2016,
after several requests from the undersigned, petitioner filed an invoice for Dr. McCurdy’s work
on this case.
This matter is now ripe for adjudication.
FACTUAL HISTORY
Jessica was generally healthy before receiving Tdap vaccine on June 18, 2011, when she
was fourteen years old. Med. recs. Ex. 2 at 1.
On June 22, 2011, four days after receiving the Tdap vaccination, petitioner visited the
emergency room due to pain and swelling in her arm. Med. recs. Ex. 4, at 1. Dr. Peter J.
Georgio diagnosed her with a possible reaction to the preservative in Tdap vaccine. Id. During a
check up on June 28, 2011, petitioner reported to Dr. Maria Lui, her pediatrician, that she had
experienced chronic headaches and dizziness since receiving Tdap vaccine. Med. recs. Ex. 5, at
1-2. Dr. Lui thought Jessica’s headaches could be related to the preservative in Tdap vaccine.
Id. at 3.
Petitioner visited a variety of doctors reporting headaches, dizzy spells, and fatigue in the
next few years, including pediatric neurologists, immunologists, a pediatric rheumatologist, a
psychotherapist, an ENT, and a pediatric gastroenterologist. See med. recs. Exs. 6-9, 11-12, 15,
31. Between November 19, 2013 and May 21, 2014, Jessica lost 28 pounds, weighing 77 pounds
during her visit to pediatric gastroenterologist Dr. Elaheh Vaheabnezhad on May 21, 2014. Med.
recs. Ex. 31, at 42. Dr. Vaheabnezhad diagnosed Jessica with gastroparesis. Id. at 44.
DISCUSSION
I. Entitlement to Fees Under the Vaccine Act
Under the Vaccine Act, a special master or the U.S. Court of Federal Claims may award
fees and costs for an unsuccessful petition if “the petition was brought in good faith and there
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was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-
15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013).
“Good faith” is a subjective standard. Hamrick v. Sec’y of HHS, No. 99-683V, 2007 WL
4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in “good faith” if he or
she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS, No. 99-544V,
2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioners are “entitled to a
presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (Fed. Cl. 1996).
“Reasonable basis” is not defined in the Vaccine Act or Program rules. It has been
determined to be an “objective consideration determined by the totality of the circumstances.”
McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 303 (Fed. Cl. 2011). In determining reasonable
basis, the court looks “not at the likelihood of success [of a claim] but more to the feasibility of
the claim.” Turner, 2007 WL 4410030, at *6 (citing Di Roma v. Sec’y of HHS, No. 90-3277V,
1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). Factors to be considered include
factual basis, medical support, jurisdictional issues, and the circumstances under which a petition
is filed. Turner, 2007 WL 4410030, at *6–*9. Traditionally, special masters have been “quite
generous” in finding reasonable basis. Turpin v. Sec’y of HHS, No. 99-564V, 2005 WL
1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); see also Austin v. Sec’y of HHS, 10-362V,
2013 WL 659574, at *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“The policy behind the Vaccine
Act’s extraordinarily generous provisions authorizing attorney fees and costs in unsuccessful
cases—ensuring that litigants have ready access to competent representation—militates in favor
of a lenient approach to reasonable basis.”). Special masters have found reasonable basis to file
a claim absent medical records or opinions supporting vaccine causation. See Austin, 2013 WL
659574, at *8; Hamrick, 2007 WL 4793152.
A. Interim Fee Awards are Appropriate Under the Vaccine Act
The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act
in Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1352 (Fed. Cir. 2008). The
Federal Circuit again found interim fee awards appropriate under the Vaccine Act in Shaw v.
Secretary of Health and Human Services, 609 F.3d 1372 (Fed. Cir. 2010). See also Cloer v.
Sec’y of HHS, 675 F.3d 1358, 1361–62 (Fed. Cir. 2012), aff’d sub nom. Sebelius v. Cloer, 133
S. Ct. 1886 (“Congress made clear that denying interim attorneys’ fees under the Vaccine Act is
contrary to an underlying purpose of the Vaccine Act.”); Vaccine Rule 13(b) (mentioning
“interim fees”).
Subsequently, a number of judges and many special masters have found interim fee
awards permissible under various circumstances. See, e.g., Woods v. Sec’y of HHS, 105 Fed.
Cl. 148, 154 (Fed. Cl. 2012) (Judge Williams affirmed the special master’s award of interim fees
and suggested that when counsel withdraws, and it is unclear how long case resolution might
take, an interim award may be appropriate); Friedman v. Sec’y of HHS, 94 Fed. Cl. 323, 334
(Fed. Cl. 2010) (Judge Damich found that the statute permits interim fee awards and that the
special master acted within his discretion in choosing not to award interim fees); Doe/11 v. Sec’y
of HHS, 89 Fed. Cl. 661, 668 (Fed. Cl. 2009) (Judge Williams reversed the special master’s
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denial of interim fees); Bear v. Sec’y of HHS, No. 11-362V, 2013 WL 691963, at *5 (Fed. Cl.
Spec. Mstr. Feb. 4, 2013) (Special Master Hastings awarded interim fees over respondent’s
objection in a case where petitioner’s counsel was going to withdraw, and the petition had been
pending for more than 19 months); Lumsden v. Sec’y of HHS, No. 97-588, 2012 WL 1450520,
at *6 (Fed. Cl. Spec. Mstr. Mar. 28, 2012) (former Chief Special Master Vowell awarded interim
fees in an autism case over respondent’s objection when petitioner’s attorney was withdrawing
from the case); Edmonds v. Sec’y of HHS, No. 04-87V, 2012 WL 1229149, at *13 (Fed. Cl.
Spec. Mstr. Mar. 22, 2012) (then-Chief Special Master Campbell-Smith awarded interim fees
over respondent’s objection in an autism case in which petitioner’s counsel was preparing to
withdraw); Dudash v. Sec’y of HHS, No. 09-646V, 2011 WL 1598836, at *6 (Fed. Cl. Spec.
Mstr. Apr. 7, 2011) (Special Master Moran found an award of interim fees appropriate); Burgess
v. Sec’y of HHS, No. 07-258V, 2011 WL 159760, at *2 (Fed. Cl. Spec. Mstr. Jan. 3, 2011)
(Former Special Master Lord awarded interim attorneys’ fees in a case where petitioners were
soon to be represented by other counsel).
B. Interim Fees are Appropriate in This Case
In Avera, the Federal Circuit held that while interim fees are not banned by the statute,
they were not appropriate in that case because appellants sought only higher fees after dismissal
of their case. 515 F.3d at 1352. The Federal Circuit stated, “[i]nterim fees are particularly
appropriate in cases where proceedings are protracted and costly experts must be retained.” Id.In denying an interim fee award, the Federal Circuit reasoned, “The amount of fees here was not
substantial; appellants had not employed any experts; and there was only a short delay in the
award pending the appeal.” Id.In Shaw, the Federal Circuit clarified that “where the claimant establishes that the cost of
litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is
proper for the special master to award interim attorneys’ fees.” 609 F.3d at 1375. The U.S.
Court of Federal Claims and several special masters have found an interim fee award appropriate
when petitioner’s counsel withdraws from the case. See Woods, 105 Fed. Cl. at 154; Bear, 2013
WL 691963 at *5; Lumsden, 2012 WL 1450520 at *6; Edmonds, 2012 WL 1229149 at *13;
Burgess, 2011 WL 159760 at *2.
1. Good Faith & Reasonable Basis
Petitioner is entitled to a presumption of good faith, and respondent does not contest that
the petition was filed in good faith. Resp. at 6. There is no evidence that this petition was
brought in bad faith. Therefore, the undersigned finds that the good faith requirement is met.
However, respondent does contest that this petition is supported by a reasonable basis.
Respondent asserts that petitioner has the burden to affirmatively demonstrate reasonable basis,
citing McKellar v. Secretary of Health and Human Services, 101 Fed. Cl. 297, 305 (2011). She
argues that there was no reasonable basis in this case because petitioner’s former counsel was
unable to demonstrate that petitioner “has a compensable, medically-recognized injury.”
Resp’t’s Response at 6. Petitioner first claimed Tdap vaccine caused her to suffer anaphylaxis,
6
but later amended the petition to say she suffers from ASIA. According to the status report
petitioner filed on July 10, 2015, she is still searching for the correct diagnosis of her condition.
In contrast, petitioner asserts that she has met her burden of demonstrating reasonable
basis. Petitioner argues that the undersigned should take into consideration that petitioner is
suffering from an autoimmune illness. As autoimmune illnesses have similar symptoms and
often involve periods of remission and flare-ups, they are “difficult to diagnose,” petitioner
contends. Reply at 4. Petitioner also notes that her claim was supported by the expert reports of
Dr. McCurdy and Dr. Davidson. Id.Petitioner’s medical records support that she had the injuries complained of in the
petition, namely chronic headaches, inability to focus, chronic fatigue, and joint pain. See, e.g.,
med. recs. Ex. 5, at 3 (petitioner complained to her pediatrician that she had chronic headaches);
med. recs. Ex. 8, at 1 (during a visit to a neurologist, Jessica said she was suffering from fatigue);
med. recs. Ex. 31, at 19 (petitioner’s father noted to Dr. McCurdy that his daughter had
experienced “weakness, brain fog, vision changes, myopathy, and abdominal pain”). Moreover,
as demonstrated in petitioner’s Exhibit 33, Jessica lost an extreme amount of weight after
receiving Tdap vaccine, suggesting that she was ill. See Ex. 33. Dr. McCurdy was willing to
support petitioner’s claim that the vaccine caused Jessica’s symptoms using the ASIA theory.
While ASIA is not widely accepted by the medical community, Dr. McCurdy is a reputable
doctor with excellent credentials, and her support of petitioner’s theory gave petitioner a
reasonable basis to move forward with her claim. See generally Ex. 35 (Dr. McCurdy has been
the director of the rheumatology division of the Children’s Hospital of Orange County since
1997, is a clinical professor at UCLA Medical School, and has published over 50 peer-reviewed
research papers). Dr. Davidson was also willing to support petitioner’s case. Therefore, the
undersigned finds that petitioner had a reasonable basis to bring this claim, at least up until the
withdrawal of her former attorney, Ms. Moss.
2. Protracted Proceedings
Additionally, interim attorneys’ fees and costs are appropriate because waiting for the
conclusion of the case would place an undue hardship on petitioner. As previously mentioned,
many special masters have found that the withdrawal of counsel can constitute undue hardship.
See Woods, 105 Fed. Cl. at 154; Bear, 2013 WL 691963 at *5; Lumsden, 2012 WL 1450520 at
*6; Edmonds, 2012 WL 1229149 at *13; Burgess, 2011 WL 159760 at *2. Petitioner’s case has
been pending for more than two years. While petitioner has retained new counsel, her new
counsel is seeking medical records from ten doctors. See Order dated September 1, 2015. As of
her last status update on September 2, 2015, petitioner is still seeking the correct diagnosis of her
condition. If petitioner decides to continue pursuing this claim, it may be months to years before
an entitlement ruling is issued. Thus, the undersigned rejects respondent’s objection to an award
of interim fees and costs at this juncture and finds an award of interim fees and costs appropriate.
II. Reasonableness of Requested Attorneys’ Fees and Costs
A. Reasonable Attorneys’ Fees
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Counsel must submit fee requests that include contemporaneous and specific billing
entries indicating the task performed, the number of hours expended on the task, and who
performed the task. See Savin v. Sec’y of HHS, 85 Fed. Cl. 313, 316–18 (Fed. Cl. 2008).
Counsel must not include in their fee requests hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton v. Sec’y of HHS, 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce
the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.”
Id. Furthermore, the special master may reduce fees sua sponte, apart from objections raised by
respondent and without providing petitioners notice and opportunity to respond. See Sabella v.
Sec’y of HHS, 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009). A special master need not engage in a
line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y
of HHS, 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).
1. Hourly Rates
A reasonable hourly rate is “the prevailing market rate defined as the rate prevailing in
the community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Id. (citation and quotation omitted). In Avera, the Federal Circuit found that in
Vaccine Act cases, a court should use the forum rate, i.e., the DC rate, in determining an award
of attorneys’ fees. 515 F.3d 1343 at 1349. At the same time, the court adopted the Davis County
exception to prevent windfalls to attorneys who work in less expensive legal markets. Id. (citing
Davis County Solid Waste Mgmt. & Energy Recovery Spec. Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755 (D.C. Cir. 1999)). In cases where the bulk of the work is completed
outside the District of Columbia, and there is a “very significant difference” between the forum
hourly rate and the local hourly rate, the court should calculate an award based on local hourly
rates. Id. (finding the market rate in Washington, DC to be significantly higher than the market
rate in Cheyenne, Wyoming).
Ms. Moss asks for a rate of $350.00 for her work on this case. She bases her request
partly on the rate awarded for her work on a case in the United States District Court for the
Central District of California. See Fee App. at 3; Nestade v. AstraZeneca Pharmaceuticals LP et
al., No. 5:14-cv-01088-VAP-JPR (Order Granting Request for Attorney Fees, Dec. 16, 2014).
Respondent contends that the rate is unreasonable, as this is petitioner’s first case in the Vaccine
Program. Resp’t’s Resp. at 9. Respondent also disagrees with petitioner’s contention that Ms.
Moss received $300.00 for the work she performed in Nestade in 2014, as, while Ms. Moss
asked for a rate of $300.00, the Court reduced the attorneys’ fees and costs award by 20%. Id.Respondent also notes that the undersigned should focus on rates awarded in the Vaccine
Program, not in other federal courts, as the work done in the Vaccine Program is very different
from that done in other federal courts. Id. at 10 (citing Isaac v. Sec’y of HHS, No. 08-601V,
2012 WL 3609993, at *18 (Fed. Cl. Spec. Mstr. July 30, 2012), mot. for review den’d, 108 Fed.
Cl. 743 (2013), aff’d, 5490 Fed. App’s 999 (Fed. Cir. 2013)). She notes that Lisa A. Roquemore,
a lawyer with “extensive familiarity with the Vaccine Program,” was awarded $355.00 an hour
for her attorney work, and $135.00 for paralegal work. See id. at 10; Guerro v. Sec’y of HHS,
No. 12-689V, 2015 WL 3745354 (Fed. Cl. Spec. Mstr. May 22, 2015).
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In her reply to respondent’s response, petitioner argues that Ms. Moss’s requested hourly
rate is reasonable because, while she was admitted to the Bar in December 2012, she “graduated
at the top of her UCLA undergraduate class, top of her law school class, and was published.”
Reply at 6. Ms. Moss states that what she “lacks in experience and years admitted to the bar, she
makes up for in determination, diligence, and dedication in pursuing this claim.” Id. She also
notes that she took on the case herself instead of requesting assistance from a senior attorney.
Finally, she agrees with McCulloch that plaintiff’s personal injury work is the type of legal work
that is most similar to the work done in the Vaccine Program, and states that her law practice
focuses on plaintiffs’ pharmaceutical litigation. Id. at 7; McCulloch v. Sec’y of HHS, No. 09-
293V, 2015 WL 5634323, at *12 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
The undersigned agrees with respondent’s assertion that the analysis of Ms. Moss’s
hourly rate should focus on the hourly rates awarded in the Vaccine Program. While petitioner is
correct that McCulloch said that the work done by lawyers in the Vaccine Program is most
analogous to plaintiff’s personal injury work, McCulloch also noted that the comparison “has
many dissimilarities and suffers from the same lack of comparability as most other areas of
practice,” because most personal injury work involves contingent fees. 2015 WL 5634323, at
*18. As the work done in the Vaccine Program is “highly specific in its form and substance,” the
undersigned will focus on rates awarded in the Vaccine Program. Isaac, 2012 WL 3609993, at
*18. Moreover, the undersigned will determine Ms. Moss’s appropriate hourly fee based on
forum rates because the bulk of Ms. Moss’s work was performed in Los Angeles, California, and
there is not a “very significant difference” between the Washington, DC hourly rate and the
hourly rate in Los Angeles. Avera, 515 F.3d at 1349.
This was Ms. Moss’s first case in the Vaccine Program. Her requested hourly rate of
$350.00 is just $5.00 less than the rate awarded to Ms. Roquemore, who has had many years of
experience in the Program. See Guerro, 2015 WL 3745354. Moreover, in McCulloch, Special
Master Gowen awarded Mr. Homer and Ms. Chin-Caplan, attorneys with more than 20 years of
experience, $400.00 in attorneys’ fees. McCulloch, 2015 WL 5634323, at * 28. While the
undersigned has no doubt that Ms. Moss is a determined, diligent, and dedicated attorney, her
inexperience in the Vaccine Program is obvious as she records many hours researching the
Program’s rules and procedures (which, as the undersigned will explain below, Ms. Moss cannot
bill for). Moreover, Ms. Moss argues that her hourly rate is justified partly because she did not
request assistance from a more senior attorney. However, the undersigned can only compensate
Ms. Moss based on the amount of experience that she herself has. Due to Ms. Moss’s
inexperience in the Vaccine Program, the undersigned finds that an hourly fee of $350.00 is not
justified, and awards $275.00 per hour for her work, which is $5.00 less than the rate awarded to
attorneys in Homer, Conway, and Chin-Caplan with four to seven years’ experience in
McCulloch. Id. Therefore, using an hourly rate of $275.00 for the 155.55 hours Ms. Moss
billed for working on this case, the total amount that petitioner requests is $42,776.25.
2. Hours Reasonably Expended
The lodestar approach requires that the reasonable hourly rate be multiplied by the
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number of hours "reasonably expended on the litigation." Avera, 515 F.3d at 1347-48(quotation and citation omitted). Counsel must submit fee requests that include
contemporaneous and specific billing entries, indicating the task performed, the number of
hours expended on the task, and who performed the task. See Savin ex rel. Savin v. Sec'y
of HHS, 85 Fed. Cl. 313, 315-18 (Fed. Cl. 2008). Counsel must not include in their fee
request hours that are "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d at
1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is "well within the
special master's discretion to reduce the hours to a number that, in [her] experience and
judgment, [is] reasonable for the work done." Id. Furthermore, the special master may
reduce hours sua sponte, apart from objections raised by respondent and without providing
petitioner notice and opportunity to respond. See Sabella v. Sec'y of HHS, 86 Fed. Cl.
201, 208-09 (Fed. Cl. 2009).
Respondent has a number of specific objections to items in petitioner's fee
application. In particular, respondent objects to the amount of time Ms. Moss billed for
drafting the petition and the amended petition, researching and drafting a request for expedited
settlement track, and administrative tasks. Resp’t’s Resp. at 10-11. In response to all of
respondent’s objections to the amount of time Ms. Moss billed, petitioner states that the time
billed was reasonable and supported by specific and clear documentation. Reply at 5-6.
Petitioner argues that if respondent had an issue with the attorneys’ fees she asked for, “a
negotiation would have been warmly welcomed,” which petitioner says respondent refused to
do despite petitioner’s several attempts to reach out to respondent, even though the
“Guidelines encourage discussions.” Id. The undersigned notes that, while the Guidelines for
Practice do encourage discussion, discussion is not required for the undersigned to award
attorneys’ fees and costs. The undersigned will address each of respondent’s objections to
items in petitioner’s fee application in turn. The undersigned also sua sponte finds that it is
appropriate to reduce the hour Ms. Moss billed for time spent researching the Vaccine Rules.
i. Drafting the petition and amended petition
Respondent argues that the hours Ms. Moss billed for drafting the petition and
amended petition are unreasonable. See Resp’t’s Resp. at 10. Specifically, respondent objects
to the time Ms. Moss spent drafting the original petition, because petitioners claimed Jessica
had anaphylaxis when that contention was not supported by the medical records. Id. at 11.
Petitioner spent approximately 36 hours researching and drafting the petition (respondent
states that Ms. Moss spent 36.25 hours drafting the original petition but the billings indicate
that she spent 36 hours drafting the petition). Ms. Moss then spent about 20 hours researching
and drafting the amended petition.
The undersigned finds that the time Ms. Moss billed for drafting the petition and the
amended petitioner is excessive. Petitioner spent approximately 56 hours drafting the original
and amended petitions, which, as respondent noted, is approximately one-third of the time Ms.
Moss spent on this case. Resp’t’s Resp. at 10. The undersigned reduces the amount Ms.
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Moss billed for drafting the original and amended petitions, which is $15,400.00 using her
adjusted rate of $275.00, by 25%. Therefore, the undersigned reduces Ms. Moss’ fees by
$3,850.00.
ii. Administrative work
Billing for clerical and other secretarial work is not permitted in the Vaccine Program.
See Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (denying an award of fees or time
billed by a secretary, finding that these “services . . . should be considered as normal overhead
office costs included within the attorneys’ fee rates”). Ms. Moss billed approximately 14.5
hours performing administrative work. 2 This includes time billed for tasks such as picking up
medical records from petitioner’s porch, printing respondent’s expert reports, scanning and
copying medical records, and waiting on hold to speak to a doctor for 20 minutes and
ultimately not being able to reach him that day. Fee App. Ex. A, at 1-5. Petitioner will not be
compensated for this time. Therefore, the undersigned reduces Ms. Moss’ fees by $3,987.50.
iii. Researching the Vaccine Rules
Finally, the undersigned sua sponte reduces petitioner’s fee request for the time Ms.
Moss billed for researching the Vaccine Program and Vaccine Rules. Ms. Moss spent
approximately 6.5 hours on researching the Vaccine Rules. For example, on June 24, 2013,
Ms. Moss billed time for “perform[ing] research on filing a petition in Vaccine Court.” Fee
App. Ex. A, at 1. On September 11, 2013, she billed time for “look[ing] through all rules to
determine requirements for filing.” Id. On June 26, 2016, Ms. Moss billed time for
researching the Vaccine Court Rules and Guidelines when drafting petitioner’s application for
interim attorneys’ fees and costs. Id. at 6.
Many special masters, including the undersigned, have held that it is inappropriate for
counsel to bill time for educating themselves about basic aspects of the Vaccine Program. In
Calise v. Secretary of Health and Human Services, the undersigned reduced petitioner’s
counsel’s billings for “research into the elementary principles of vaccine litigation,” noting,
2
The undersigned had to estimate the hours spent by Ms. Moss on administrative tasks due to the way
Ms. Moss’ billing entries are written. The undersigned appreciates that Ms. Moss described the time she
billed in detail. However, many of Ms. Moss’ billing entries lump several different tasks into one block
of time. For example, on June 27, 2014, Ms. Moss billed 2.50 hours, noting she “[c]ontinued to study
[medical records] in preparation for status [conference] call. Had status conference call 11 am-11:50 am.
Took notes after. Composed/formatted exhibit, and filed the picture of Jessica before/after the vaccine as
Exhibit 33. Emailed Fouch with the update on the case.” Fee App. Ex. A, at 3. The Vaccine Program’s
Guidelines for Practice state, “[e]ach task should have its own line entry indicating the amount of time
spent on that task. Several tasks lumped together with one time entry frustrates the court’s ability to
assess the reasonableness of the request.” Guidelines for Practice Under the National Vaccine Injury
Compensation Program at 68 (revised January 7, 2016) found at
http://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-1-7-16.pdf (last visited
on February 10, 2016) (Section X, Chapter 3, Part B(1)(b)).
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“basic education [is] not compensable under the Program.” No. 08-865V, 2011 WL 2444810,
at *5 (Fed. Cl. Spec. Mstr. June 13, 2011). In Tison v. Secretary of Health and Human
Services, former Special Master Baird found that petitioner’s counsel had “spent an excessive
amount of time researching and reviewing the statute and legislative history.” No. 89-43V,
1990 WL 293369, at *2 (Cl. Ct. Spec. Mstr. May 25, 1990). In another case, Special Master
Hamilton-Fieldman reduced petitioner’s counsel’s fees for time spent on basic legal research,
stating that one test for whether the hours billed by counsel are reasonable is “whether a
hypothetical petitioner, who had to use his own resources to pay his attorney for Vaccine Act
representation, would be willing to pay for such expenditure,” citing Riggins v. Secretary of
Health and Human Services, No. 99–382V, 2009 WL 3319818, at *3 (Fed. Cl. Spec. Mstr.
June 15, 2009), mot. for rev. denied (Fed. Cl. Dec. 10, 2009), aff'd, 406 Fed. Appx. 479 (Fed.
Cir. 2011). O'Neill v. Sec'y of HHS, No. 08-243V, 2015 WL 2399211, at *2 (Fed. Cl. Spec.
Mstr. Apr. 18, 2015). Petitioner would surely not find it reasonable to pay for her counsel to
perform basic research on the Vaccine Rules.
This reasoning also applies to the time Ms. Moss billed for researching and drafting a
request for expedited settlement track. Ms. Moss billed 9.5 for researching and preparing a
request for expedited settlement track, even though respondent had not indicated she was
interested in pursuing expedited settlement. The undersigned finds that the time petitioner
spent on these tasks was not reasonable. Therefore, the undersigned reduces petitioner’s fee
request by $4,400.00.
B. Reasonable Attorneys’ Costs
Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of HHS, 27 Fed. Cl.
29, 34 (Fed. Cl. 1992) (“The conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’
and the word ‘reasonable’ necessarily modifies both. Not only must any request for
reimbursement of attorneys’ fees be reasonable, so also must any request for reimbursement of
costs.”).
1. Expert Fees
Respondent objects to the request for $18,000.00 in expert fees for Dr. Deborah
McCurdy, arguing that “no invoice has been provided that would support the reasonableness of
the time spent,” and that, as petitioner’s treating rheumatologist, Dr. McCurdy should have
already been familiar with petitioner’s medical history and diagnosis. Resp’t’s Resp. at 12. In
her reply, petitioner asserts that she filed Dr. McCurdy’s CV to substantiate her rate of $450.00
per hour. Reply at 5; Tab C. Petitioner filed Dr. McCurdy’s invoice on January 29, 2016. Ex.
46. In an e-mail sent to the undersigned’s law clerk on February 4, 2016, respondent stated that
she maintains her objections to the reasonableness of Dr. McCurdy’s fees, arguing that the
“skeletal invoice” that is obviously “not a contemporaneous record” does not provide sufficient
detail to support the reasonableness of petitioner’s request.
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Dr. McCurdy indicates she spent eighteen hours reviewing medical literature, ten hours
preparing her expert report, and fourteen hours reviewing respondent’s expert reports and
preparing a responsive expert report. Id. at 1. While it is true that as petitioner’s treating
rheumatologist, Dr. McCurdy should have had more familiarity with petitioner’s medical records
than an expert who did not treat petitioner, the undersigned considers a total of 42 hours to
review medical records and research and draft an opinion to be reasonable.
However, there is a discrepancy between petitioner’s interim attorneys’ fees and costs
application and the invoice petitioner filed. Petitioner’s motion indicates that Dr. McCurdy
worked on the case for 40 hours and asked for a rate of $450.00 per hour, for a total of
$18,000.00. Fee App. at 4. The invoice indicates that Dr. McCurdy worked on the case for 42
hours at a rate of $400.00 per hour, for a total of $16,800.00. Ex. 46, at 1. The undersigned
finds that it is most appropriate to award Dr. McCurdy a rate of $400.00 an hour for 42 hours of
work, as that is the amount substantiated by her invoice. Therefore, the undersigned reduces
petitioner’s award for interim costs by $1,200.00.
CONCLUSION
The undersigned finds an award of interim attorneys’ fees and costs appropriate. In sum,
the undersigned awards petitioner the following amount for attorneys’ fees and costs:
Initial Fee Application:
Requested Attorneys’ Fees: $54,442.50
Adjustment for rate of $275.00 per hour: $11,666.25
Reductions: $12,237.50
Attorneys’ Fees Awarded: $30,538.75
Requested Attorneys’ Costs: $18,909.13
Reductions: $1,200.00
Attorneys’ Costs Awarded: $17,709.13
Total Requested Fees & Costs: $73,351.63
Total Fees & Costs Awarded: $48,247.88
Accordingly, the court awards $48,247.88, representing interim attorneys’ fees and costs.
The award shall be in the form of a check made payable jointly to petitioner and Lenze Kamerrer
Moss, PLC, in the amount of $48,247.88.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 3
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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IT IS SO ORDERED.
Dated: February 22, 2016 /s/ Laura D. Millman
Laura D. Millman
Special Master
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