Cobb v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1123V
Filed: April 1, 2020
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JEFFREY COBB and KIMBERLY COBB, *
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on behalf of T.C., a minor, * UNPUBLIHSED
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Petitioners, *
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* Special Master Katherine E. Oler
v. *
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SECRETARY OF HEALTH AND * Interim Attorneys’ Fees & Costs
HUMAN SERVICES, *
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Respondent. *
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Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioners.
Laurie Wiesner, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On August 21, 2017, Jeffrey Cobb (“Mr. Cobb”) and Kimberly Cobb (“Ms. Cobb”)
(collectively “Petitioners”) filed a petition on behalf of their son, T.C., a minor, seeking
compensation under the National Vaccine Injury Compensation Program (the “Vaccine
Program”) 2 alleging he suffered from vaccine-induced narcolepsy and cataplexy from the Gardasil
vaccinations he received on August 25, 2014 and August 25, 2015. Pet. at 1, ECF No. 1.
1
This Decision will be posted on the Court of Federal Claims’ website. This means the ruling 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). If, upon review, I agree that
the identified materials fit within this definition, I will redact such material from public access. Otherwise,
the Decision in its present form will be available. 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) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
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On October 31, 2019, Petitioners filed an application for attorneys’ fees and costs,
requesting fees and costs in the amount of $27,722.12. Fees App. at 2, ECF No. 39.
On November 14, 2019, Respondent filed a response stating it is within my discretion to
award interim attorneys’ fees and costs. Fees Resp., ECF No. 43. Respondent “defers to [me] to
determine whether or not petitioner here has met the legal standard for interim fees and costs
award.” Id. at 1-2. Further, Respondent “is satisfied that the statutory requirements for an award
of attorneys’ fees and costs are met in this case.” Id. at 3.
For the reasons discussed below, I hereby GRANT IN PART Petitioners’ application and
award a total of $26,775.97 in interim attorneys’ fees and costs.
I. Legal Standard
A. Interim Attorneys’ Fees and Costs
The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer,
the Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under
the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health
& Human Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).
In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.
Likewise, in Shaw, the Federal Circuit held 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. Avera did not,
however, define when interim fees are appropriate; rather, it has been interpreted to allow special
masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Human Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Human
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it
has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria
as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of
Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,
2015).
A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the
special master finds that a petitioner has brought his petition in good faith and with a reasonable
basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &
Human Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Human Servs., 94
Fed. Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Human Servs., 89 Fed. Cl. 661, 668 (2009);
Bear, 2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Human Servs., No. 97-588V, 2012
WL 1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at
more than just financial involvement of a petitioner; it also looks at any money expended by a
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petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special
Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees
[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.B. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health
& Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993).
Such a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly
believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human Servs.,
No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence
of bad faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health &
Human Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that
his claim could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health &
Human Servs., No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing
Di Roma, 1993 WL 496981, at *1); Turner, 2007 WL 4410030, at *5.
C. Reasonable Basis
Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a
petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at
least be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree
v. Sec’y of Health & Human Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.
Nov. 3, 2015).
While the statute does not define the quantum of proof needed to establish reasonable basis,
it is “something less than the preponderant evidence ultimately required to prevail on one’s
vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of
Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no
evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found
that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to
establish reasonable basis. Id. at 290. See also Turpin v. Sec'y Health & Human Servs., No. 99-
564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis
when petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Human
Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no
reasonable basis when petitioner presented only e-mails between her and her attorney).
Temporal proximity between vaccination and onset of symptoms is a necessary component
in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to
establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.
The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded
that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable
basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636
(Fed. Cir. 2017). Further, an impending statute of limitations should not even be one of several
factors the special master considers in her reasonable basis analysis. “[T]he Federal Circuit
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forbade, altogether, the consideration of statutory limitations deadlines—and all conduct of
counsel—in determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y
of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018).
“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements
for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient
evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Human Servs.,
No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award
compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by
medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal
Claims have interpreted this provision to mean that petitioners must submit medical records or
expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &
Human Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Human Servs.,
35 Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-
Table theory where medical records fail to establish a Table injury).
When determining if a reasonable basis exists, many special masters and judges consider
a myriad of factors. The factors to be considered may include “the factual basis of the claim, the
medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the
theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to
look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of
Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,
2007).
II. Discussion
A. Undue Financial Hardship
Counsel for Petitioners began working on this case since 2016 and has “borne considerable
fees and costs during the many years of prosecuting this case.” Fees App. at 2. Thus, I find it
reasonable to award interim fees and costs at this juncture to avoid any undue financial hardship.
B. Good Faith and Reasonable Basis
Respondent has not raised any specific objection to the good faith or reasonable basis for
this claim and leaves such a determination to my discretion. See Fees Resp. I find that the petition
was filed in good faith.
As discussed above, the threshold for reasonable basis is a much lower standard than the
burden to prove entitlement to compensation by preponderant evidence. In making a reasonable
basis determination, I must look at a totality of the circumstances, taking into account the factual
basis for the claim and the medical and scientific support offered. Petitioners have filed medical
records documenting T.C.’s injuries. See Exs. 1-9. Furthermore, Petitioners have also submitted
two expert reports from Dr. Lawrence Steinman. See Exs. 11, 43. Dr. Steinman is a
neuroimmunologist and has offered a medical opinion supporting Petitioners’ theory and a
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potential mechanism for causation. See generally Exs. 11, 43. Such evidence is sufficient to
justify filing the petition. As such, I find that the petition has a reasonable basis.
As there is no other reason to deny the award of interim attorneys’ fees and costs, I will
award Petitioners’ reasonable fees and costs in this instance.
C. Attorneys’ Fees
Petitioners request a total of $20,615.64 in attorney’s fees. Fees App., Ex. A.
1. Reasonable Hourly Rate
A reasonable hourly rate is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's
attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349).
McCulloch provides the framework for determining the appropriate compensation for
attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Human
Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of
Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for
subsequent years. 3
Petitioners’ counsel, Mr. Mark Sadaka, requests that he be compensated between $362.95
and $405.00 per hour for work performed from 2016 to 2019. Fees App. at 2. Mr. Sadaka’s
requested rates from 2016-2019 are consistent with McCulloch and with what Mr. Sadaka has
previously been awarded in the Program. See, e.g., Nelson v. Sec’y of Health & Human Servs.,
15-615V (Fed. Cl. Spec. Mstr. Jan. 22, 2018); Pasquinelli v. Sec’y of Health & Human Servs.,
No. 14-1156V, 2017 WL 6816707 (Fed. Cl. Spec. Mstr. Dec. 13, 2017); Rolshoven v. Sec’y of
Health & Human Servs., No. 14-439V, 2017 WL 5472577 (Fed. Cl. Spec. Mstr. Oct. 19, 2017);
Ladue v. Sec’y of Health & Human Servs., No. 12-553V, 2018 WL 6978075 (Fed. Cl. Spec. Mstr.
Dec. 14, 2018); Cruz v. Sec’y of Health & Human Servs., No. 17-1167V, 2019 WL 4256277, at
*2 (Fed. Cl. Spec. Mstr. Aug. 14, 2019); Jones v. Sec’y of Health & Human Servs., No. 12-875V,
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.
The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf.
The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf.
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
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2019 WL 4013481, at *4 (Fed. Cl. Spec. Mstr. Jul. 31, 2019); Nemmer v. Sec’y of Health &
Human Serv., No. 17-1464V, Dkt. No. 56 at 5* (Fed. Cl. Spec. Mstr. Feb 18, 2020); Francis v.
Sec’y of Health & Human Serv., No. 15-527, Dkt. No. 49 at 5-6* (Fed. Cl. Spec. Mstr. Mar. 3,
2020).
Mr. Sadaka also requested hourly rates between $140.00 and $156.00 per hour for work
done by paralegals from 2016 to 2019. These rates are consistent with such work previously
awarded in the Program.
Accordingly, I find the requested rates for 2016 to 2019 to be reasonable and that no
adjustment is warranted.
2. Hours Reasonably Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Ultimately, 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.” Saxton ex rel. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1522 (Fed. Cir.
1993). In exercising that discretion, special masters may reduce the number of hours submitted
by a percentage of the amount charged. See Broekelschen v. Sec'y of Health & Human Servs., 102
Fed. Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal
hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special
master's reduction of attorney and paralegal hours). While attorneys may be compensated for non-
attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary.
See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl.
Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of
who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Petitioners’ counsel has provided a breakdown of hours billed and costs incurred. Fees
App., Ex. A. I find the hours to be largely reasonable, however Mr. Sadaka has requested to be
compensated for receiving and reviewing CM/ECF notifications, including filings made by his
paralegals. I have reduced Mr. Sadaka’s hours in previous cases for this type of non-compensable
work. See Nemmer v. Sec’y of Health & Human Serv., No. 17-1464V, Dkt. No. 56 at 6* (Fed. Cl.
Spec. Mstr. Feb 18, 2020); Francis v. Sec’y of Health & Human Serv., No. 15-527, Dkt. No. 49 at
6* (Fed. Cl. Spec. Mstr. Mar. 3, 2020). Thus, I will deduct 0.4 hours for 2017 (entries of 0.1 hours
on 8/22/2017 (3) and 8/23/2017), 1.6 hours for 2018 (entries of 0.1. hours made on 1/29/2018,
4/18/2018, 5/17/2018 (3), 7/16/2018 (2), 8/15/2018 (4), 8/16/2018, 11/16/2018 (2), 12/21/2018
(2)), and 0.4 hours for 2019 (entries of 0.1 hours made on 2/4/2019, 2/6/2019, 4/1/2019, 4/9/2019).
Reductions total to $150.55 (0.4 hours at $376.38/hour) + $633.60 (1.6 hours at $396.00)
+ $162.00 (0.4 hours at $405.00/hour) or $946.15. I award all other requested fees in full.
Total attorneys’ fees to be awarded: $19,669.49
D. Reasonable Costs
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Petitioners request a total of $7,106.48 in costs, which includes obtaining medical records,
postage costs, the Court’s filing fee, and expert witness fees. Fees App., Ex. A at 12. I have
reviewed the supporting documentation and find this request to be reasonable. Accordingly, I award
it in full.
1. Petitioners’ Expert Costs
Petitioners request costs for the work performed by Dr. Lawrence Steinman, M.D. Dr.
Steinman billed for 13 hours at a rate of $500.00 per hour, for a total of $6,500.00. Dr. Steinman
has previously been awarded his requested rate and I see no reason to disturb such a request.
Additionally, Dr. Steinman’s invoice reflects the breakdown of the hours expended in reviewing
T.C.’s medical records, Respondent’s Rule 4(c) Report, and drafting of expert report. See Fees
App., Ex. B at 1. Accordingly, I award Dr. Steinman’s expert costs in full.
2. Miscellaneous Costs
I have reviewed all of the miscellaneous costs for which compensation is requested,
including the supporting documentation, and I find them all to be reasonable. They shall be
reimbursed in full: $606.48.
Total costs to be awarded: $7,106.48
III. Conclusion
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
interim fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioners’
application, as follows:
A lump sum in the amount of $26,775.97, representing reimbursement of Petitioners’
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioners and
their attorney, Mark T. Sadaka.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.
Any questions regarding this Order may be directed to my law clerk, Sydney Lee, by email
at Sydney Lee@cfc.uscourts.gov.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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