Kerrigan v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-270V
(Not to be Published)
*****************************
JAMES KERRIGAN, and ROSANNA LEPORE, * Special Master Corcoran
Natural Parents of A.K., a minor, *
* Filed: November 7, 2016
Petitioners, *
v. * Attorney’s Fees and Costs;
* Dismissal of Petition.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Carol L. Gallagher, Carol L. Gallagher, Esquire, LLC, Linwood, NJ, for Petitioners.
Sarah C. Duncan, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
DECISION AWARDING ATTORNEY’S FEES AND COSTS1
On February 26, 2016, James Kerrigan and Rosanna LePore filed a petition on behalf of
their minor child, A.K., seeking compensation under the National Vaccine Injury Compensation
Program.2 The Petition alleged that the measles, mumps, and rubella (“MMR”) vaccine that A.K.
received on March 18, 2013, caused her to develop gastrointestinal problems, including celiac
disease/immune system disorder, as well as a regressive expressive language disorder. See Petition
(“Pet.”) at 1. The Petition also alleged that A.K. possessed some kind of underlying metabolic
disorder. Id. at 3.
1
Because this decision contains a reasoned explanation for my actions in this case, I will post it 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).
After filing some documents relevant to the claim, Respondent filed her Rule 4(c) Report
on August 23, 2016, maintaining that the claim could not be substantiated. ECF No. 12. I
subsequently held a status conference where I echoed Respondent’s concerns about the claim’s
overall viability, in light of the record as well as the lack of success for similar claims alleging
developmental regression or autism as a vaccine injury, and directed Petitioners to consider
dismissal. See Order, dated September 16, 2016 (ECF 15). Petitioners thereafter filed an
unopposed motion on September 27, 2016, requesting a decision dismissing their claim, and I
granted it that same day (ECF No. 17).
On October 7, 2016, Petitioners filed a Motion requesting an award of attorney’s fees,
which they subsequently amended on October 25, 2016 (ECF No. 24) (“Fees App.”).3 Petitioners
request attorney’s fees in the amount of $23,870.00, plus related litigation costs in the amount of
$53.25, for a total amount of $23,923.25. Ex. A to Fees App (filed as ECF No. 24-1) at 8, and Ex.
B to Fees App. (filed as ECF No. 24-2) at 1. In accordance with General Order No. 9, Petitioners’
counsel also represented that Petitioners incurred $400.00 in out-of-pocket expenses (specifically
the filing fee). See Ex. C to Fees App. (filed as ECF No. 24-3).
On October 24, 2016, Respondent filed a brief in reaction to Petitioners’ Motion. ECF No.
22 (“Opp.”). Respondent asserts that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates
any role for Respondent in the resolution of a request by a Petitioner for an award of attorney’s
fees and costs,” and therefore declined to comment on any specific elements of Petitioners’ fees.
Opp. at 1. Respondent noted that, although the claim was dismissed, she did not object to the
request’s reasonable basis, largely because the status conference order issued prior to dismissal set
forth my view that reasonable basis existed up to that point. Id. at 2 n.1.
However, Respondent also maintained that a reasonable amount for fees and costs in the
present case would fall between $2,000.00 and $5,000.00, providing some substantiation for the
range. Opp. at 3. In particular, she referenced cases in which the alleged injury was autism, and
where the sum awarded for fees was within the proposed range. See, e.g., Miller v. Sec’y of Health
& Human Servs., No. 02-235V, 2016 WL 3746160 (Fed. Cl. Spec. Mstr. June 3, 2016) (awarding
less than ten percent of over $63,000 in fees requested from autism claim that was unsuccessfully
litigated; evidence demonstrated counsel was on notice of claim’s weakness before trial), mot. for
review den’d, (Fed. Cl. July 8, 2016). Three of the four cited cases were instances in which
Respondent and petitioners stipulated to damages. Opp. at 3 (citations omitted).
Petitioners filed a reply on October 25, 2016 (ECF No. 23) (“Reply”), arguing that the
primary injury alleged was not autism but gastrointestinal issues following an MMR vaccine, and
explaining that A.K. had an MTHFR deficiency that (in combination with a “leaky gut”
3
The only difference between the two versions of the Fees Application is that the amended version seeks $1,260.00
in additional attorney’s fees, reflecting costs incurred in filing a reply to Respondent’s Opposition.
2
exacerbated by the MMR vaccine) made this a reasonable claim to pursue. Reply at 1-2. They
otherwise stressed that the time devoted to the matter by counsel was reasonable given the issues
in dispute. Id. at 2-3.
I have reviewed the billing records submitted with Petitioners’ initial request. Based on my
discretion and Vaccine Program experience, I will award some fees and costs, but less than what
Petitioners request. As my prior order noted, the case possessed sufficient reasonable basis up until
the time its deficiencies were recognized on the record. Nevertheless, as the attorney invoices
reveal, far more work was devoted to the matter before its filing than was reasonable, given the
low likelihood of success. Although this action was filed in February 2016, the billing records
show that Petitioners’ counsel, Carol Gallagher, had possession of the matter for nearly a year
before, as she was first contacted by Ms. LePore in January 2015. Ex. A to Fees App. at 1. In that
time period, Ms. Gallagher billed nearly half of all the time requested herein (33.2 hours out of
68.2 requested) – in a matter that all parties would ultimately deem unviable within six months of
its filing.
Under such circumstances, it is reasonable to conclude that much of this time was misspent
– especially when, as here, a looming limitations period cut-off did not obligate counsel to file the
case before it had been reasonably vetted. The MMR vaccine at issue was administered in March
2013, with alleged onset of A.K.’s symptoms occurring days after the vaccination (Pet. at ¶¶ 8-9)
– making March 2016 the limitations expiration. Section 16 (a)(2). Thus, counsel had ample time
to investigate the claim’s merits.
I also take note of the fact that the Statement of Completion was not filed in this case until
four months after the matter’s initiation. See Statement of Completion, dated June 24, 2016 (ECF
No. 11). Counsel devoted less than ten hours in the intervening period to the matter, and based on
the time entry descriptions, it does not appear that this time involved efforts to obtain missing
documents relevant to the claim. Those materials should have been in hand by the time the case
was filed, thirteen months after Petitioners first contacted Ms. Gallagher, underscoring the
excessive nature of the time devoted to the action.
The case’s viability also factors into my determination. Counsel was on reasonable notice
before seeking these fees that cases involving injuries of autism or developmental regression have
rarely been successful. Miller, 2016 WL 3746160, at *11-12. Indeed, counsel herself
acknowledged as much in her Reply, which noted that many autism actions she had previously
brought had been dismissed. Reply at 1 n.1. I also find Petitioners’ efforts to refashion their claim
as one not primarily alleging injuries of autism or regression unpersuasive. To the contrary, the
Petition itself clearly alleges regression and pervasive developmental delay as injuries, identifying
3
them as the very first temporal evidence that A.K. had experienced a reaction to the MMR vaccine.
Pet. at ¶¶ 9-10.4
Given the above (and in keeping with the fact that I am not obligated, in ruling on fees
requests, to engage in a line-by-line analysis), a reduction of the requested hours is appropriate.
See Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993) (approving
the special master’s elimination of 50 percent of the hours claimed); see also Broekleschen 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). Overall, I find that rough justice supports a reduction
of 50 percent, to account for the combined excessive work devoted to a claim that was unlikely to
be successful from the start, along with some additional time that was devoted to gathering records
– a task that should have been completed prior to the case’s filing. Accordingly, of the 68.2 hours
requested, I will reimburse 34.1 hours of work.
In addition, the rate requested for Ms. Carol Gallagher, the attorney in this matter ($350
per hour), is not justified. In 2015, I had the occasion to rule on Ms. Gallagher’s appropriate hourly
rate, in light of the forum in which she practices and her experience, and I determined that she
should receive $315 an hour for work performed in 2015. See Gonzalez v. Sec’y of Health &
Human Servs., No. 14-1072V, 2015 WL 10435023, at *12 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). I
reached this conclusion in part based upon my determination that Ms. Gallagher practices in a non-
forum location, and therefore is not entitled to a higher forum rate, in accordance with the Federal
Circuit’s directive in Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir.
2008). See Gonzalez, 2015 WL 10435023, at *8-12. Ms. Gallagher is aware of this decision, but it
was not addressed in the present Fees Application.5
4
Specific components of Petitioners’ theory have also repeatedly been rejected in other published decisions. See, e.g.,
Murphy v. Sec’y of Health & Human Servs., No. 05-1063V, 2016 WL 3034047 (Fed. Cl. Spec. Mstr. Apr. 25, 2016)
(denying entitlement for a claim alleging that the MMR vaccine caused an encephalopathy, or encouraged a “leaky
gut,” leading to a developmental regression), mot. for review den’d, 2016 WL 4926207, (Fed. Cl. Sept. 15, 2016),
appeal docketed, No. 17-1047 (Fed. Cir. Oct. 14, 2016); Blake v. Sec’y of Health & Human Servs., No. 03-31V, 2014
WL 2769979 (Fed. Cl. Spec. Mstr. May 21, 2014) (denying entitlement in a case alleging that the MMR vaccine
caused child’s autism spectrum disorder), mot. for reconsideration den’d, 2014 WL 7331948 (Fed. Cl. Spec. Mstr.
Sept. 11, 2014), mot. for review den’d, slip. op., (Fed. Cl. Nov. 13, 2014); Franklin v. Sec’y of Health & Human Servs.,
No. 99-855V, 2013 WL 3755954 (Fed. Cl. Spec. Mstr. May 16, 2013) (rejecting petitioners’ claim that the MMR
vaccine led to an encephalopathy resulting in developmental delay, rather than autism).
5
In another recent case in which fees were requested for Ms. Gallagher’s services, a petitioner attempted to obtain
$350 per hour for Ms. Gallagher, and then sought reconsideration when I awarded the rates set in Gonzalez. See Hepler
v. Sec’y of Health & Human Servs., No. 14-55V, 2016 WL 3571537 (Fed. Cl. Spec. Mstr. May 19, 2016), mot. for
reconsideration den’d, 2016 WL 4483036, (Fed. Cl. Spec. Mstr. June 8, 2016). Ultimately, the petitioner in that matter
accepted my determination.
4
I will therefore apply the $315 per hour rate herein to work performed in 2015, adjusted
upward to $318 (as per the CPI Calculator6) for work performed in 2016, to account for inflation.
In light of the fact that approximately 50 percent of the work performed on the case was incurred
prior to its filing in 2015, I will apply the $315 rate to half of the 34.1 hours awarded, and $318
rate to the remainder of the time. Utilizing these rates, attorney’s fees are adjusted to $10,792.65
((17.05 x $315 = $5,370.75) + (17.05 hours x $318 = $5,421.90)).
There is otherwise nothing objectionable about the costs requested in this case, and they
are awarded in full. Petitioners are also entitled to a separate award of costs they personally
incurred in filing the action.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e).
Based on the reasonableness of Petitioners’ request, I hereby GRANT in part Petitioner’s Motion
for attorney’s fees and costs. I award (a) a total of $10,845.90 as a lump sum in the form of a
check jointly payable to Petitioners and Ms. Carol Gallagher, and (b) the sum of $400.00 in the
form of a check payable to Petitioners.
The clerk of the court shall enter judgment in accordance herewith.7
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
6
CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://data.bls.gov/cgi-bin/cpicalc.pl (last accessed Nov.
2, 2016) (“CPI Calculator”).
7
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the Parties’ joint filing of notice renouncing
the right to seek review.
5