Golmakani v. Secretary of Heath and Human Services ( 2014 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-577V
Filed: May 30, 2014
*********************************** PUBLISHED
D. GOLMAKANI, *
*
Petitioner, * Special Hamilton-Fieldman
*
v. *
* Interim Costs; Protracted Proceedings;
SECRETARY OF HEALTH * Expert Costs.
AND HUMAN SERVICES, *
*
Respondent. *
*
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Lisa A. Roquemore, Law Offices of Lisa A. Roquemore, Irvine, CA, for Petitioner.
Justine E. Daigneault, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING PETITIONER’S INTERIM COSTS1
This matter is before the undersigned on Petitioner’s Motion for Payment of
Personal Costs on an Interim Basis. For the reasons stated herein, the motion is granted
in part.
1
Because this published decision contains a reasoned explanation for the special
master's action in this case, the special master intends to post it on the website of the
United States Court of Federal Claims, in accordance with the E-Government Act of
2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). All decisions of the
special master will be made available to the public unless they contain trade secret or
commercial or financial information that is privileged and confidential, or medical or
similar information the disclosure of which would clearly be an unwarranted invasion of
privacy. When such a decision, ruling or designated substantive order is filed, a party has
14 days to file a motion to redact such information, which should include a proposed
redacted decision, before the document’s disclosure. If the special master, upon review
of a timely filed motion, agrees that the identified material fits within the categories listed
above, the special master shall redact such material from the version made available to
the public. 42 U.S.C. § 300aa–12(d)(4); Vaccine Rule 18(b).
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I. BACKGROUND
On July 17, 2012, Petitioner filed a Motion for Interim Attorneys’ Fees and
Reimbursement of Disbursements and Costs (“Motion for Interim Fees”) for her former
counsel, Robert Krakow, Esq. On May 31, 2013, Respondent filed her Response
objecting to the payment of interim fees and costs at this stage of the litigation, and
urging the court to deny Petitioner’s Motion for Interim Fees until such time as the case
has concluded or upon a determination that an award of interim fees is appropriate, as set
forth in Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (“First
Response”). Respondent noted, however, that if the special master were to award interim
fees and costs over Respondent’s objections, Petitioner’s former counsel had agreed to
reduce his request to $44,961.65 for all fees and costs incurred by him in proceeding on
this petition. Without waiving her objections, Respondent indicated that $44,961.65 was
not an unreasonable amount for fees and costs incurred for the duration of Mr. Krakow’s
prior representation of Petitioner in this matter. Subsequently, the special master held
that an interim award was appropriate, and awarded Petitioner $44,961.65 for the interim
fees and costs incurred by Mr. Krakow. Golmakani v. Sec’y of Health & Human Servs.,
No. 11-577V, 2013 WL 4009664 (Fed. Cl. Spec. Mstr. July 7, 2013).
On July 1, 2013, Petitioner filed her Reply along with a Supplemental Submission
requesting reimbursement for certain costs incurred directly by Petitioner in pursuit of
her claim that had not been included with the initial Motion for Interim Fees. In a
separate order, the special master designated Petitioner’s Supplemental Submission as a
new motion – “Petitioner’s Motion for Payment of Personal Costs on an Interim Basis”
(“Supplemental Motion” or “Suppl. Mot.”) – and afforded Respondent additional time to
respond to Petitioner’s Supplemental Motion.
Respondent objected to the payment of the supplemental interim costs on the basis
that they were not reasonable or necessary. In particular, Respondent objected to the
following costs:
1. MacBook Pro
Petitioner requested reimbursement of $1,462.40 for the cost of a MacBook Pro,
which Petitioner claims was purchased for “video conversion per court request.” Suppl.
Mot., Ref. 18 at 1, ECF No. 52. Respondent’s objection was premised on the fact that
Petitioner was unable to provide the videos in a viewable format, and ultimately the
government had to expend its own resources to access and view the hard drive and its
contents.
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2. Expert Witness Retainer
Petitioner requested reimbursement for a $2,000.00 expert witness retainer, which
she had provided to her counsel, Lisa Roquemore, Esq. Suppl. Mot., Ref. 18 at 1, 3, ECF
No. 52.
Respondent objected to this cost as premature because although the Vaccine Act
provides that the special master shall award costs incurred in any proceeding on a
petition, see 42 U.S.C. § 300aa-15(e)(1), the Act does not authorize the court to
compensate for costs not yet incurred.
3. Visit to Autonomic Expert
Petitioner also requested reimbursement of $528.80 for a “[c]onsultation by
autonomic expert for court case.” Suppl. Mot., Ref. 18 at 1, ECF No. 52. Respondent
objected to this on several grounds. In her Reply to Respondent’s objections, Petitioner
conceded Respondent’s objection and withdrew the request. This issue is therefore moot.
II. APPLICABLE LEGAL STANDARDS
Petitioners who successfully demonstrate their entitlement to compensation for
Vaccine Act claims are entitled to an award of reasonable attorneys’ fees and costs for
that litigation. See § 300aa-15(e)(1). An unsuccessful petitioner may also be awarded
attorneys’ fees and litigation costs if petitioner’s claim was (a) filed in good faith and (b)
with a reasonable basis. Id.
Whether a petitioner was successful or not, special masters have the discretion to
determine what constitutes a reasonable amount for fees and costs. Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); Saunders v. Sec'y of Health
& Human Servs., 90-826V, 1992 WL 700268, at *1 (Cl. Ct. Spec. Mstr. May 26, 1992)
aff'd, 26 Cl. Ct. 1221 (1992), aff'd, 25 F.3d 1031 (Fed. Cir. 1994); Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 31 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994);
Friedman v. Sec'y of Health & Human Servs., 94 Fed. Cl. 323, 332 (Fed. Cl. 2010); Shaw
v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1377 (Fed. Cir. 2010). Ultimately, it
is the Petitioner’s burden to demonstrate that requested attorneys’ fees are reasonable.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 215 (2009); Rupert v. Sec’y of Health & Human Servs.,
52 Fed. Cl. 684, 686 (2002); Wilcox v. Sec’y of Health & Human Servs., No. 90-991V,
1997 WL 101572, at *4 (Fed. Cl. Spec. Mstr. Feb. 14, 1997). The same burden applies to
justifying requests for an award of costs. Perreira, 27 Fed. Cl. at 34 (1992), aff’d, 33 F.3d
1375 (Fed. Cir. 1994).
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In Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (2008), the
U.S. Court of Appeals for the Federal Circuit indicated that an award of interim fees and
costs--that is, an award prior to the entry of a final judgment on the initial question of
whether the petitioner is entitled to compensation for the alleged vaccine injury--can be
appropriate in Vaccine Act cases. The Avera court did not specify in what particular
circumstances such an award might be appropriate, but the court made it clear that such
interim awards can be made. The Federal Circuit gave the same indication again in Shaw
v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1373-74 (2010). In the period since
the issuance of Avera in February of 2008, there has been a plethora of decisions from
special masters awarding interim fees and costs. There was also a previous award of
interim attorneys' fees in this case. The undersigned therefore concludes that this
additional award is appropriate pursuant to Avera.
III. DISCUSSION
As explained below, Petitioner has satisfied the requirements for an interim award
of litigation costs that Petitioner has borne personally.
Respondent’s objection to the $2,000.00 Petitioner seeks for an expert witness
retainer fee was premised on the argument that no expert had been retained at that time
and therefore that no costs had yet been incurred, a statutory prerequisite. As Petitioner
has now filed Dr. Steinman’s report and supportive medical literature that argument is
moot. Petitioner’s motion as to these costs is granted. The motion is also granted as to
the uncontested costs for hard drives and shipping costs in the amount of $219.09.
Petitioner’s remaining request seeks reimbursement for the cost of the MacBook
Pro that Petitioner purchased in attempting to comply with the previous special master’s
orders regarding production of video exhibits in a viewable format.
The undersigned agrees with Petitioner that the previous special master was
adamant that Petitioner bore the burden of producing the exhibits in a viewable format.
Declaration at 3, ECF No. 73. The undersigned also agrees with Petitioner that the
previous special master appeared to endorse the purchase of the computer as a cost-
effective solution to the problem. Id. While the undersigned might not have approached
this problem in a similar manner, the undersigned must now take into consideration the
reasonably established expectation of Petitioner. However, the undersigned must also
take into consideration that Petitioner was ultimately unable to produce viewable video
exhibits using the computer, and that Petitioner retained the computer for her own
personal use after the failed attempt at conversion of the exhibits. Therefore, while the
undersigned agrees that the initial expenditure on the computer should be borne by the
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Program, Petitioner’s retention and use of the computer for non-Program purposes
requires Petitioner to pay the reasonable cost of that use.
The undersigned therefore grants Petitioner’s motion in part, and orders the
payment of Petitioner’s costs for half of the computer, in the amount of $731.20.
IV. CONCLUSION
For the reasons explained above, the undersigned finds that an award of interim
costs to Petitioner is appropriate in this case. Petitioner is awarded costs on an interim
basis as follows:
A check made payable to Petitioner (D. Golmakani) in the amount of
$2,950.29. The interim costs should be mailed to Petitioner in the care of her
attorney, Lisa Roquemore, Law Office of Lisa Roquemore, 19200 Von
Karman Ave., Suite 500, Irvine, CA 92612-7114.
In the absence of a timely-filed motion for review filed pursuant to Appendix B of
the Rules of the U.S. Court of Federal Claims, the clerk of the court shall enter judgment
in accordance herewith.2
IT IS SO ORDERED.
s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
2
Entry of judgment can be expedited by each party’s filing of a notice renouncing
the right to seek review. See Vaccine Rule 11(a).
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