Pearson v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-489V
(not to be published)
************************* Chief Special Master Corcoran
SONJA PEARSON, *
* Filed: October 29, 2019
Petitioner, *
*
v. *
* Attorney’s Fees and Costs;
SECRETARY OF HEALTH AND * Non-Admitted Counsel.
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Steven H. Jesser, Steven H. Jesser Attorney at Law, P.C., Glenview, IL, for Petitioner.
Adriana Teitel, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
DECISION AWARDING ATTORNEY’S FEES AND COSTS 1
On April 6, 2017, Sonja Pearson filed a petition under the National Vaccine Injury
Compensation Program (“Vaccine Program”) 2 alleging that she suffered an allergic reaction after
receipt of the influenza (“flu”) vaccine on December 19, 2014. ECF No. 1.
Following the submission of several medical records, I ordered Petitioner to file an expert
report in support of her claim. Order, filed Feb. 21, 2018. On August 6, 2018, however, Petitioner
submitted a status report indicating that she would not be engaging an expert in the case. Status
Report, filed Aug. 6, 2018 (ECF No. 21). Additionally, she requested I resolve this case on the record.
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Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court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) (“Vaccine Act” or “the Act”). Individual
section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Id. To that end, the parties submitted briefs in support of their respective positions in the fall of 2018.
See generally Prehearing Submissions, filed Oct. 14, 2018 (ECF No. 22); Resp. to Prehearing
Submissions, filed Nov. 9, 2018 (ECF No. 23). I subsequently dismissed Petitioner’s claim in a
Decision dated February 7, 2019. ECF No. 24 (“Decision”). Petitioner did not seek review of
dismissal.
Petitioner has now filed an application for a final award of attorney’s fees and costs incurred
in connection with this case. Mot. for Atty’s Fees & Costs, filed Aug. 12, 2019 (ECF No. 30) (“Fees
App.”). She requested a total award of $22,185.00, reflecting attorney’s fees in the amount of
$2,450.00 for work completed by solo practitioner, Steven Jesser, Esq., plus $19,735.00 for work
completed by Neal Gainsberg, Esq., Nicholas Kreitman, Esq., and Nathan Smith, a paralegal, of
Gainsberg Law, P.C. Id. at 4–5; Fees App. Ex. A; Fees App. Ex. F. Respondent offered no objection
to Petitioner’s request for an award of fees to Mr. Jesser, but objected to such an award for work
completed by attorneys at Gainsberg Law, P.C. Respondent’s Response to Amended Motion for
Attorney’s Fees and Costs (“Fees Response”), filed Sept. 9, 2019 (ECF No. 31) at 3–4. Respondent
also indicated that neither Mr. Gainsberg nor Mr. Kreitman are admitted to the United States Court
of Federal Claims (“USCFC”), and are therefore not entitled to any fees for work performed in this
case under Vaccine Rules 14(a)(1) and 14(b)(1). Id. at 4. In addition, Mr. Gainsberg’s and Mr.
Kreitman’s involvement in the case was not disclosed until October 14, 2018. Id.
On September 9, 2019, Petitioner filed her reply in response to Respondent’s opposition,
arguing that such a strict interpretation of Vaccine Rules 14(a)(1) and 14(b)(1) would drastically
reduce access to competent legal representation within the Program. Reply to Government’s
Response (“Fees Reply”), filed Sept. 9, 2019 (ECF No. 32) at 5–6. She also maintained that, at a
minimum, Mr. Gainsberg and Mr. Kreitman should be awarded fees for the work performed by
Gainsberg Law, P.C. prior to Mr. Jesser’s involvement and the filing of the Petition. Id. at 3 (citing
Avila v. Sec’y of Health and Human Servs., No. 14-605V, 2016 WL 6995372 (Fed. Cl. Spec. Mstr.
Nov. 4, 2016). Shortly thereafter, Respondent filed a sur-reply in which he reiterated his opposition
to compensation for attorneys not admitted to the USCFC. Sur-reply, filed Sept. 13, 2019 (ECF. No.
33).
Ms. Pearson’s application for fees and costs is now ripe for decision. As set forth in greater
detail herein, it is my reasoned decision that Petitioner is entitled to some of her attorney’s fees
request, but her award is subject to reductions for the work done by Mr. Gainsberg and Mr. Kreitman
due to their not being admitted to the USCFC.
ANALYSIS
I. Principles Governing Attorney’s Fees and Costs Award Eligibility
In order to be eligible to practice in the Vaccine Program, an attorney must be admitted to
practice in the USCFC, and thus a non-admitted attorney cannot recover attorney’s fees. Underwood
2
v. Sec’y of Health & Human Servs., No. 00-357V, 2013 WL 3157525, at *4 (Fed. Cl. Spec. Mstr.
May 31, 2013); see also Vaccine Rule 14(a)(1). Attorneys who refer cases to practitioners in the
Vaccine Program, however, are eligible to receive fees for work that contributed to the litigation of a
petitioner’s claim. See Avila, 2016 WL 6995372, at *2 (citing Barrett v. Sec’y of Health & Human
Servs., No. 09-389V, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014) (awarding fees to an
attorney whose work on petitioner’s claim predated the filing of the petition)). The amount of fees
awarded to a referring attorney is determined using the same method and standards used to award
fees to practitioners in the Vaccine Program. Avila, 2016 WL 6995372, at *2.
In instances where an attorney’s involvement extends beyond the filing of the petition despite
their not being admitted to the USCFC, other special masters have found it appropriate to award fees,
but only at a rate consistent with a non-attorney, supportive role akin to a paralegal. 3 See Mackey v.
Sec’y of Health & Human Servs., No. 16-1289V, 2018 WL 3596801, at *5–6 (Fed. Cl. Spec. Mstr.
May 10, 2018) (declining to compensate a non-admitted attorney at an attorney rate, but instead
awarding fees for non-attorney-level work for work performed in a supportive role); Razka v. Sec’y
of Health & Human Servs., No. 14-1224V, 2017 WL 3165479, at *3 (Fed. Cl. Spec. Mstr. June 30,
2017) (citation omitted) (distinguishing rates of compensation available to admitted and non-admitted
attorneys practicing in the Vaccine Program).
II. Demonstrating Reasonable Basis for Unsuccessful Claims
Even unsuccessful Program claims can merit a fees and costs award—but to establish grounds
for fees in such a case, the petitioner must demonstrate the claim’s “reasonable basis” through some
objective evidentiary showing and in light of the “totality of the circumstances,” including all facts
relevant to the to the case, as well as the evidence actually supporting the claim itself. See Chuisano
v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 286 (2014) (citing McKellar v. Sec’y of Health
& Human Servs., 101 Fed. Cl. 303, 303 (2011)). I have in prior decisions set forth at length the criteria
to be applied when determining if a claim possessed “reasonable basis” 4 sufficient for a fees award.
See, e.g., Allicock v. Sec’y of Health & Human Servs., No. 15-485V, 2016 WL 3571906, at *4–5 (Fed.
Cl. Spec. Mstr. May 26, 2016), aff’d on other grounds, 128 Fed. Cl. 724 (2016); Gonzalez v. Sec’y of
Health & Human Servs., No. 14-1072V, 2015 WL 10435023, at *5–6 (Fed. Cl. Spec. Mstr. Nov. 10,
2015).
The Court of Federal Claims recently provided further illumination as to the standards that
should be used to evaluate whether the totality of the circumstances warrant a finding that reasonable
3
This approach has similarly been applied to the Laffey Matrix by the District Court of the District of Columbia in
instances where attorneys not admitted to the D.C. Bar litigated claims brought under the Individuals with Disabilities
Education Act. See Yodie v. D.C. Public Schools et al., 823 F. Supp. 2d 1, 11–12 (D.D.C. 2011); Irving v. D.C. Public
Schools et al., 815 F. Supp. 2d 119, 132–33 (D.D.C. 2011).
4
Although good faith is one of the two criteria that an unsuccessful petitioner requesting a fees award must satisfy, it is
an easily-met one. Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996) (in the absence of evidence of
bad faith, special master was justified in presuming the existence of good faith).
3
basis existed. Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 578 (2017), appeal
docketed, No. 19-1596 (Fed. Cir. Feb. 26, 2019). As Judge Williams therein stated, a special master
should consider “the novelty of the vaccine, scientific understanding of the vaccine and its potential
consequences, the availability of experts and medical literature, and the time frame counsel has to
investigate and prepare the claim.” 5 Id. at 574.
At bottom, reasonable basis is something less than sufficient proof to meet the preponderance
evidentiary burden, consistent with the concept that even where a Petitioner is found not to have
established their claim by a preponderance, they may nevertheless be able to muster sufficient
objective proof to demonstrate reasonable basis. Braun v. Sec’y of Health & Human Servs., No. 17-
1571V, 2019 WL 3228040, at *4 (Fed. Cl. June 19, 2019) (explaining that reasonable basis standard
is “less exacting than the preponderance of the evidence stand and thus, is easier to satisfy”).
III. Calculation of Fees Award
Here, I find that Petitioner’s claim possessed reasonable basis. Although the claim’s
weaknesses were rendered insurmountable without expert testimony to support the allegation that the
flu vaccine caused Petitioner’s injury, I have previously found reasonable basis for similar kinds of
claims. See e.g., Morris v. Sec’y of Health & Human Servs., No. 13-601V, 2017 WL 5382881, at *1
(Fed. Cl. Spec. Mstr. Oct. 10, 2017) (awarding attorney’s fees despite petitioner’s failure to prove a
causal relationship between receipt of the Hepatitis B vaccine and subsequent itching and vitiligo).
Additionally, Petitioner’s medical record provided support for the contention that she experienced an
acute adverse reaction following receipt of the flu vaccine, though the record contained little to
support sequelae beyond a few hours post-vaccination. See Decision at 2–3. Thus, Petitioner is
entitled to an award of reasonable attorney’s fees and costs, despite her inability to prevail.
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 & Human Servs., 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 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 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)).
5
The existence of an impending statute of limitations deadline, however, has been removed from consideration under the
“totality of the circumstances” analysis, as it does not constitute an objective factor relevant to the claim’s underlying
validity. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017).
4
McCulloch 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 & Human
Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
A. Hourly Rates for Mr. Jesser
Mr. Jesser was the only attorney to formally appear on Petitioner’s behalf. Petitioner asks that
Mr. Jesser be awarded $2,450.00 for work performed between April 2017 (the time of the claim’s
filing) and February 2019. Fees App. at 5; Fees App. Exhibit F. Respondent has not opposed the fees
sought for work performed by Mr. Jesser and has deferred to my judgment in determining whether
the statutory requirements for an award of attorney’s fees has been satisfied and whether the amount
sought as it relates to Mr. Jesser is appropriate. Fees Response, at 3.
Mr. Jesser has over forty years of experience practicing law in Chicago, Illinois. Petitioner,
however, has requested Mr. Jesser be compensated at a rate of $350/hour for the work performed in
this case. I find this rate to be reasonable and an accurate reflection of Mr. Jesser’s overall experience
but limited experience in the Vaccine Program. Fees App. at 5. Thus, I find that Mr. Jesser is entitled
to the full award of $2,450.00.
B. Hourly Rates for Mr. Gainsberg, Mr. Kreitman, and Mr. Smith
Petitioner requests a fee award nearly ten times larger than what is sought on behalf of Mr.
Jesser (in the total amount of $19,735.00) for work performed by Mr. Gainsberg (hourly rate of
$350/hour) and Mr. Kreitman (hourly rate of $250/hour) as well as paralegal services provided by
Mr. Smith (hourly rate of $50/hour). Id. 4–5. Respondent, however, opposes awarding any attorney’s
fees for the work performed by Gainsberg Law, P.C. because neither Mr. Gainsberg or Mr. Kreitman
are admitted to practice in the USCFC. Fees Response, at 4; see also Vaccine Rule 14(a)(1).
While Respondent is technically correct that non-admitted attorneys are not entitled to an
award of attorney’s fees, I do not find a complete disallowance appropriate under the circumstances.
Rather, a full award of fees for the work performed by Mr. Gainsberg, Mr. Kreitman, and Mr. Smith
prior to the filing of the Petition on April 6, 2017 is appropriate, for the reasons outlined in Avila. See
Avila, 2016 WL 6995372, at *2. However, the work performed by Gainsberg Law, P.C. after Mr.
Jesser became involved was done to support Mr. Jesser’s primary prosecution of the case, and should
therefore be compensated at a rate compatible solely with the supportive, indirect function they served
as non-admitted attorneys. See Mackey, 2018 WL 3596801, at *5–6; Razka, 2017 WL 3165479, at
*3.
The next issue to resolve is the appropriate rates to be awarded. Mr. Gainsberg has been
licensed to practice law since 1996 and “has extensive experience in insurance matters and other civil
litigation,” but is not admitted to practice in the USCFC and has not previously participated in the
Vaccine Program. Fees App. at 3–4. I find that an hourly rate of $350 for work performed between
5
January 5, 2016 and April 5, 2017 (the time period prior to the claim’s filing) appropriate. 6 For the
supportive work performed after the claim’s filing, the applicable hourly rate is limited to what non-
admitted personnel (paralegals) receive under the Office of Special Masters’ Hourly Rate Fee
Schedules—i.e., $148/hour for 2017, $153/hour for 2018, and $156/hour for 2019. 7 Thus, I will award
Mr. Gainsberg a total award of $5,435.30 for the sum of his contributions to the resolution of this
matter.
Mr. Kreitman has been licensed to practice law since 2013, and states that he “has worked on
dozens of cases involving medical malpractice, personal injury, and insurance disputes.” Fees App.
Ex. C at 2. Like Mr. Gainsberg, however, Mr. Kreitman is not admitted to practice before the USCFC
and has no prior experience in the Vaccine Program. Id. Petitioner has requested that Mr. Kreitman
be compensated at an hourly rate of $250/hour. Fees App. at 4.
While I find Mr. Kreitman is entitled to compensation at an attorney rate for work performed
prior to April 6, 2017, I do not find the proposed rate of $250/hour appropriate. For an attorney with
3–4 years of experience, the 2016 and 2017 Hourly Rate Fee Schedules prescribe hourly rates of $200
and $230 respectively. 8 Therefore, I will award Mr. Kreitman attorney’s fees at the hourly rates of
$200 and $230 for work performed prior to April 6, 2017. And as with Mr. Gainsberg, I find that Mr.
Kreitman is also entitled to compensation for work performed after Mr. Jesser became involved in
the case, but only at a rate compatible with his supportive role rather that that of an attorney—i.e.,
$148/hour for 2017, $153/hour for 2018, and $156/hour for 2019. 9 Thus, I will award Mr. Kreitman
a total award of $7,148.90 for the sum of his contributions to this matter.
Lastly, Petitioner requests Mr. Smith, a paralegal, be compensated at a rate of $50/hour for
administrative services. Fees App. at 4. I deem that rate appropriate and award paralegal fees in full—
a total amount of $315.
6
Fee schedules are posted on this Court’s website. See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee
Schedule: 2015-2016, https://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-
2016.pdf (last visited Oct. 28, 2019); Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017,
https://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf (last visited Oct. 28,
2019).
7
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017, supra at n.7; Office of Special
Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2018,
https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202018.pdf
(last visited Oct. 28, 2019); See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2019,
https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.pdf
(last visited Oct. 28, 2019).
8
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016, supra at n.7; Office of Special
Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017, supra at n.7.
9
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017, supra at n.7; Office of Special
Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2018, supra at n.8; Office of Special Masters, Attorneys’ Forum
Hourly Rate Fee Schedule: 2019, supra at n.8.
6
CONCLUSION
Requested Amount Amount Awarded Difference
Steven Jesser, Esq. $2,450.00 $2,450.00 $0.00
Neal Gainsberg, Esq. $8,995.00 $5,435.30 $3,559.70
Nicholas Kreitman, Esq. $10,425.00 $7,148.90 $3,276.10
Nathan Smith $315.00 $315.00 $0.00
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
fees and costs awards, and based on the foregoing, I GRANT IN PART AND DENY IN PART
Petitioner’s Motion for Attorney’s Fees and Costs, awarding $2,450.00 in fees and costs in the form
of a check payable to Petitioner’s counsel, Mr. Steven H. Jesser, Esq., and $12,899.20 in fees and
costs in the form of a check payable to Gainsberg Law, P.C. In the absence of a motion for review
filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in
accordance with the terms of this decision. 10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10
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.
7