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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-729V
************************* *
*
RICARDO RODRIGUEZ, *
* UNPUBLISHED
*
Petitioner, *
* Special Master Katherine E. Oler
v. *
*
* Filed: September 22, 2022
SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Interim Attorneys’ Fees and Costs
*
*
Respondent. *
*
************************* *
Ronald Homer, Conway, Homer, P.C., Boston, MA, for Petitioner
Andrew Henning, U.S. Department of Justice, Washington, DC, for Respondent
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On May 17, 2019, Ricardo Rodriguez (“Petitioner”) filed a petition seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF
No. 1. Petitioner alleges that he suffered GBS as a result of the meningococcal and human
papillomavirus (“HPV”) vaccines he received on July 3, 2017 and second HPV vaccine he received
on August 4, 2017. Pet. at 1.
Petitioner filed a Motion for Interim Attorneys’ Fees and Costs on April 5, 2022, requesting
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to
post this Decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). This means 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 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. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
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a total of $36,250.41. Fees App. at 2, ECF No. 43. Respondent filed a response on April 6, 2022,
stating it is within my discretion to award interim attorneys’ fees and costs. Fees Resp. at 3, ECF
No. 45. Respondent “is satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Id. at 2. Petitioner did not file a reply.
I hereby GRANT Petitioner’s application and award a total of $36,250.41 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 & Hum. Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Hum. 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
& Hum. 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 & Hum. Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.
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 & Hum. 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 &
Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.
Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,
2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. 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
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.2
B. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health
& Hum. 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 & Hum. 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 & Hum.
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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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). The Federal Circuit has
affirmed that “more than a mere scintilla but less than a preponderance of proof could provide
sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health &
Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. Aug. 19, 2020) (finding Petitioner
submitted objective evidence supporting causation when she submitted medical records and a
vaccine package insert); see also James-Cornelius v. Sec'y of Health & Hum. Servs., 984 F.3d
1374, 1380 (Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation did
not by itself negate the claim's reasonable basis.”).
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
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basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. 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 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 &
Hum. 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 & Hum. 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 &
Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. 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 & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,
2007).
II. Discussion
A. Undue Financial Hardship
The undue hardship inquiry looks at more than just financial involvement of a petitioner;
it also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2 (finding
“the general principle underlying an award of interim fees was clear: avoid working a substantial
financial hardship on petitioners and their counsel.”). I also note that the COVID-19 pandemic has
had a significant impact on the United States economy and such impact has been recognized by
this court. See Monge-Landry v. Sec'y of Health & Hum. Servs, No. 14-853V, 2020 WL 4219821*5 (Fed. Cl. Spec. Mstr. Jun. 30, 2020) (recognizing the COVID-19 pandemic's continued
disruption of the airline industry in its calculation of appropriate interim fees). Given these
unprecedented economic circumstances, and the time already spent litigating this case, I find that
the Petitioner would suffer undue hardship in the absence of an award of interim attorneys’ fees
and costs.
B. Good Faith and Reasonable Basis
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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.
With regards to reasonable basis, Petitioner submitted two expert reports from Dr. David
Simpson, a board certified neurologist at the Icahn School of Medicine at Mount Sinai. See Exs.
6, 19; see also Ex. 7 (hereinafter “Simpson CV”). Dr. Simpson provided four mechanisms on how
vaccines could lead to neurotoxic effects, neurologic illness, or autoimmunity: 1) molecular
mimicry; 2) neurotoxic effect; 3) immune complex formation; 4) loss of self-tolerance. Ex. 6 at 3-
4. Dr. Simpson noted Petitioner had no prior neurological symptoms but developed muscle
weakness a day after his second HPV vaccine and had reduced tendon reflexes, indicative of
AIDP/GBS. Id. at 5. The second dose of the HPV vaccine provided a “booster” effect which
contributed to Petitioner’s rapid onset. Ex. 6 at 5. This constitutes sufficient evidence to establish
a reasonable basis for the claim.
As there is no other reason to deny an award of interim attorneys’ fees and costs, I will
award Petitioner’s reasonable fees and costs in this instance.
C. Attorneys’ Fees
Petitioner requests a total of $19,469.90 in attorneys’ fees. Fees App. at 2.
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 & Hum. 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 & Hum.
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
3
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%2
7%20Forum%20Rate%20Fee%20Schedule%202019.pdf.
The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2
7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf
The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo
rum-Rate-Fee-Schedule-2021-PPI-OL.pdf
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
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Petitioner’s primary counsel, Ms. Christina Ciampolillo, requests an hourly rate of $342.00
for work performed in 2018; $350.00 for work performed in 2019; $380.00 for work performed in
2020-2022. Ms. Ciampolillo also requests compensation for her colleagues at Conway Homer:
Ms. Lauren Faga: $330.00/hour for work performed from 2020-2021; Mr. Joseph Pepper:
$325.00/hour for work performed in 2019; Ms. Meredith Daniels: $320.00/hour for work
performed in 2019 and $350.00/hour for work performed in 2020; and Mr. Ronald Homer:
$430.00/hour for work performed in 2019 and $447.00/hour for work performed in 2020-2021.
Lastly, Ms. Ciampolillo requests hourly rates from $138.00-$155.00 for paralegal work performed
between 2018 and 2022. Fees App., Tab A at 10. This request is consistent with what I and other
special masters have previously awarded Ms. Ciampolillo and the Conway Homer firm. See, e.g.,
Agarwal v. Sec’y of Health & Hum. Servs., No. 16-191V, 2022 WL 3025777 (Fed. Cl. Spec. Mstr.
Jul. 1, 2022); McGuinness v. Sec’y of Health & Hum. Servs., No. 17-954V, 2022 WL 524935 (Fed.
Cl. Spec. Mstr. Jan. 26, 2022); Lozano v. Sec’y of Health & Hum. Servs., No. 15-369V, 2020 WL
7869439 (Fed. Cl. Spec. Mstr. Nov. 30, 2020. Accordingly, I find the requested rates are
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 & Hum. 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 & Hum. 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 & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master's
reduction of attorney and paralegal hours). Petitioner bears the burden of establishing that the rates
charged, hours expended, and costs incurred are reasonable. Wasson v. Sec’y of Health & Hum.
Servs., 24 Cl. Ct. 482, 484 (1993). However, special masters may reduce awards sua sponte,
independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum.
Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed.
Cl. 313, 318 (Fed. Cl. 2008), aff’d No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22,
2008).
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 Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.
Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees
and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Hum.
Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993). It is within a special master's discretion to instead make
a global reduction to the total amount of fees requested. See Hines v. Sec'y of Health & Hum.
Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the
reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec'y of Health & Hum. Servs.,
No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011
WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and
endorsing “a global – rather than line-by-line – approach to determine the reasonable number of
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hours expended in this case”).
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 &
Hum. 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.
Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Fees
App., Tab A. I find the hours to be reasonable and award them in full.
Total attorneys’ fees to be awarded: $19,469.90
D. Reasonable Costs
Petitioner requests a total of $16,778.46 in costs, which includes obtaining medical records,
the Court’s filing fee, Dr. Simpson’s expert fees, shipping/postage costs, printing costs, and a flash
drive. Fees App., Tab B.
Specifically, Petitioner requests $177.09 for medical records requests; $400.00 for the
Court’s filing fee; $16,125.00 for Dr. Simpson’s expert reports; $32.42 for FedEx shipping costs;
$18.95 for postage/certified and priority mail costs; $20.00 for printing costs; and $5.00 for a USB
flash drive. Fees App., Tab B at 1. Documentation for the medical record requests, the Court’s filing
fee, and FedEx shipping costs was provided, and these costs will be paid in full. No documentation
was provided for the printing expenses, the USB flash drive, and postage. I will grant these costs as
they are common expenditures associated with litigation but warn Petitioner’s counsel that
documentation must be provided to be awarded in the future.
Petitioner also spent $2.05 to mail documents to his attorney. Fees App., Tab C. This will
be paid in full.
1. Petitioner’s Expert Costs for Dr. David Simpson
Petitioner requests an hourly rate of $500.00 for 32.25 hours of work performed by Dr.
Simpson, for a total of $16,125.00. Dr. Simpson has a medical degree from SUNY at Buffalo
School of Medicine and did his neurology residency at Cornell University Medical Center and a
fellowship in clinical neurophysiology at Massachusetts General Hospital/Harvard Medical
School. Simpson CV at 1. Dr. Simpson is board certified in neurology, electrodiagnostic medicine
and has subspecialities in clinical neurophysiology and neuromuscular medicine. Id. Dr. Simpson
has provided a full accounting of the hours he expended preparing and writing two expert reports.
Fees App., Tab B at 6-7. Dr. Simpson’s hourly rate is consistent with what I and other special
master have previously awarded him. See, e.g., Gonzalez v. Sec’y of Health & Hum. Servs., No.
17-174V, 2022 WL 3135297 (Fed. Cl. Spec. Mstr. Jul. 8, 2022); Franklin v. Sec'y of Health &
Human Servs., No. 16-193V, 2020 WL 6151367 at *2 (Fed. Cl. Spec. Mstr. Sept. 23, 2020); Q.P.
v. Sec'y of Health & Human Servs., No. 15-449V, 2019 WL 4013436 at *2-3 (Fed. Cl. Spec. Mstr.
July 29, 2019). I grant Dr. Simpson’s costs in full.
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Total costs to be awarded: $16,780.51
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 Petitioner’s application, as
follows:
A lump sum in the amount of $36,248.36, representing reimbursement of Petitioner’s
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and his
attorney, Mr. Ronald Homer; and
A lump sum in the amount of $2.05, representing reimbursement of Petitioner’s costs in a
check payable to Petitioner, Ricardo Rodriguez.
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.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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