Schilling v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-527V
(not to be published)
************************* Chief Special Master Corcoran
*
GARY SCHILLING, *
* Filed: June 1, 2022
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************
Ronald C. Homer, Conway Homer, P.C., Boston, MA, for Petitioner.
Ronalda E. Kosh, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING ATTORNEY’S FEES AND COSTS 1
On April 29, 2016, Gary Schilling filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (the “Vaccine Program”). 2 He alleged that he experienced
reactivation of a latent varicella zoster virus (“VZV”) infection, leading to shingles and associated
encephalomyelitis, due to his receipt of an influenza (“flu”) vaccine on October 16, 2013. (ECF
No. 1) (“Pet.”) at 1.
1
Although I have not formally designated this Decision for publication, it will nevertheless be posted on the United
States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).
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. 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).
The claim was litigated over several years, and after reviewing the evidence I determined
that the matter could be efficiently and fairly resolved by ruling on the record, inviting briefing on
the claim from the parties. I subsequently issued a decision denying entitlement to compensation.
See Decision, dated March 17, 2022. ECF No. 37 (the “Decision”). Petitioner did not opt to appeal
my determination.
Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion,
dated May 16, 2022 (ECF No. 62). Petitioner requests a total of $52,280.46 in attorney’s fees and
costs ($36,305.90 in fees, plus $15,974.56 in costs) for the work of multiple attorneys, including
Mr. Ronald Homer, Ms. Christina Ciampolillo, Ms. Meredith Daniels, Mr. Joseph Pepper, Mr.
Patrick Kelly, Ms. Lauren Faga, law clerks and paralegals, from May 2014 to the present date.
ECF No. 38 at 25. Respondent reacted to the fees request on May 31, 2022. See Response, May
31, 2022 (ECF No. 64). Respondent defers the calculation of the amount to be awarded to my
discretion. Id. at 2.
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and
costs in the total amount of $52,280.46.
ANALYSIS
I. Petitioner’s Claim had Reasonable Basis
Although the Vaccine Act only guarantees a reasonable award of attorney’s fees and costs
to successful petitioners, a special master may also award fees and costs in an unsuccessful case
if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for the claim
for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth at length
the criteria to be applied when determining if a claim possessed “reasonable basis” sufficient for a
fees award. See, e.g., Sterling v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443,
at *4 (Fed. Cl. Spec. Mstr. Jan. 3, 2020). Importantly, establishing reasonable basis does not
automatically entitle an unsuccessful claimant to fees, but is instead a threshold obligation; fees
can still thereafter be limited, if unreasonable, or even denied entirely.
A claim’s reasonable basis 3 must be demonstrated through some objective evidentiary
showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)
(citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This
objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may
3
Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable to that fees
prong.
2
bulwark good faith). Simmons, 875 F.3d at 635. In addition, reasonable basis inquiries are not
static—they evaluate not only what was known at the time the petition was filed, but also take into
account what is learned about the evidentiary support for the claim as the matter progresses.
Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the
finding that a reasonable basis for petitioners’ claims ceased to exist once they had reviewed their
expert's opinion, which consisted entirely of unsupported speculation). As a result, a claim can
“lose” reasonable basis over time.
The standard for finding the existence of reasonable basis is lesser (and thus inherently
easier to satisfy) than the preponderant standard applied when assessing entitlement, as cases that
fail can still have sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum.
Servs., 144 Fed. Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable
basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v.
Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted)
(affirming special master). The factual basis and medical support for the claim is among the
evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372,
378 (Fed. Cl. 2017). Under the Vaccine Act, special masters have “maximum discretion” in
applying the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed.
Cl. 401, 401–02 (Fed. Cl. 2012). 4
Petitioner’s claim was ultimately unsuccessful, but I find it possessed sufficient objective
basis to justify a fees and costs award. Petitioner’s medical history established that he was properly
diagnosed with shingles and subsequent neurologic symptoms, and that he received the vaccine at
issue. Petitioner also made some effort to a causation theory that the flu vaccine could cause VZV
reactivation, and utilized the service of a competent expert, though the theory itself was not
preponderantly supported by reliable evidence. In light of the extremely lenient standard that
governs reasonable basis determinations, I can easily find the claim possessed sufficient reasonable
basis. And otherwise I find no reason to deny a fees award.
II. Calculation of Fees
Determining the appropriate amount of the fees award is a two-part process. The first part
involves application of the lodestar method - “multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs.,
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
4
See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they
would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is
consistent with the Vaccine Act as a whole).
3
most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424,
429–37 (1983).
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,
for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there
is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348
(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges
for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine
Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at
*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Petitioner requests the following rates for his attorneys, based on the years work was
performed: 5
2014 2015 2016 2017 2018 2019 2020 2021 2022
Ronald - - $400 $409 $421 $430 6 - $447 $475
Craig
Homer
Chistina $213 $300 $300 $307 $342 $350 $380 $380 $425
Ciampolillo
Meredith - - - $286 - $320 - $350 $410
Daniels
Joseph - - - - - - - - $415
Pepper
Patrick - - - - - $205 - - -
Kelly
Lauren - - - $271 - - - - -
Faga
5
Additionally, Conway, Homer, P.C. had paralegals submit 14.3 hours at an hourly rate of $112.00 per hour; 45.7
hours at an hourly rate of $135.00 per hour; 4.9 hours at an hourly rate of $138.00 per hour; 0.3 hours at an hourly
rate of $142.00 per hour; 9 hours at an hourly rate of $145.00 per hour; 0.2 hours at an hourly rate of $155.00 per
hour; and 5.7 hours at an hourly rate of $170.00 per hour. Id. at 25. The firm also had law clerks showing 10.9 hours
expended on this case at an hourly rate of $145.00 per hour. Id.6
Between August 27-28, 2019, Mr. Homer billed a half rate for travel, as his time was split between this matter and
another case. ECF No. 62 at 21.
4
ECF No. 62 at 5–25.
Attorneys at Conway, Homer, P.C. have long been recognized to practice in forum,
entitling them to commensurate rates established in McCulloch. See Lozano v. Sec'y of Health &
Hum. Servs., No. 15-369V, 2020 WL 7869439, at *3 (Fed. Cl. Spec. Mstr. Nov. 30, 2020). The
requested rates for the attorneys are also consistent with what has previously been awarded in
accordance with the Office of Special Masters’ fee schedule. 7 See McGuinness v. Sec. of Health
& Human Servs., No. 17-0954V, 2022 WL 524935, at *3 (Fed. Cl. Spec. Mstr. Jan. 26, 2022). I
thus find no cause to reduce them in this instance. I also deem the time devoted to the matter
reasonable, and will therefore award it without adjustment.
III. Calculation of Costs
Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.
Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).
Reasonable costs include the costs of obtaining medical records and expert time incurred while
working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at
*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as
by not providing appropriate documentation to explain the basis for a particular cost, special
masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health
& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).
Petitioner seeks $15,974.56 in outstanding costs, including travel, medical record retrieval
costs, and the work performed by a single expert, Lawrence Steinman, M.D. ECF No. 38 at 27–
58. Dr. Steinman authored two expert reports (ECF Nos. 26, 35), and submitted an invoice for a
total of $13,125.00 (for 26.25 hours of work at an hourly rate of $500.00). ECF No. 38 at 58. The
total amount for his services was wholly reasonable for the work performed, and I do not find any
reason to make any reductions. Id. 8 All other requested costs in this matter appear reasonable, and
they shall also be awarded in full without reduction.
7
OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Mar.
22, 2021).
8
In other cases involving Dr. Steinman, I have had occasion to take note of his propensity for commenting on Program
legal standards, or for unnecessary argumentation with his opposing expert – but none of these objectionable behaviors
occurred in this case.
5
CONCLUSION
Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs
in its entirety, and award a total of $52,280.46, reflecting $36,305.90 in attorney’s fees and
$15,974.56 in costs in the form of a check made jointly payable to Petitioner and his attorney Mr.
Ronald Homer.
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. 9
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
6