Rehfeld v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 19, 2021
* * * * * * * * * * ** *
URSULA REHFELD * Unpublished
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Petitioner, * No. 16-1048V
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v. * Special Master Gowen
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SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Dismissal.
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Respondent. *
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Robert Hanreck, Robert J. Hanreck, P.A., for petitioner.
Catherine E. Stolar, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On November 16, 2020, Ursula Rehfeld (“petitioner”), filed a motion for attorneys’ fees
and costs. Petitioner’s Second Motion for Interim Attorneys’ Fees-Updated (“Fees App.”) (ECF
No. 107).2 For the reasons discussed below, I GRANT petitioner’s motion for attorneys’ fees
and costs and award a total of $36,575.42.
I. Procedural History
On August 24, 2016, Urusla Rehfeld (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. (the
“Vaccine Act”).3 Petitioner alleged that a combined tetanus-diphtheria-acellular pertussis and
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website can be accessed at http://www.uscfc.uscourts.gov/aggregator/sources/7.
Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a
proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the
decision will be posted on the court’s website without any changes. Id.2
As a result of the petition being dismissed on November 24, 2020, petitioner’s application for interim attorneys’
fees and costs will be treated as her a request for final attorneys’ fees and costs. See Decision (ECF No. 110).
3
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of
citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).
inactivated polio vaccine (“Repevax”) she received on August 28, 2013, caused her “significant
injuries including but not restricted to anaphylactic shock, anaphylactic reactions, shock-
collapse, nervous system disorders, atrial fibrillation, weakness, fatigue, headaches,
gastrointestinal disorders, and diarrhea.” Petition at ¶¶ 4-5 (ECF No. 1).
I previously had granted interim attorneys’ fees and costs to petitioner’s counsel on
August 1, 2018. Decision on Interim Attorneys’ Fees and Costs (ECF No. 69). On October 2,
2018, I issued a Rule 5 Order, directing petitioner to file an additional expert report. Rule 5
Order (ECF No. 75). Petitioner file an expert report from Dr. Joseph A. Bellanti on December
28, 2018. Petitioner’s Exhibit (“Pet. Ex.”) 40 (ECF No. 77). Petitioner filed updated medical
records on March 4, 2019.
I held another status conference in this case on March 5, 2019. During this status
conference, I raised concern that petitioner would be unable to connect her ongoing heart
condition to her alleged vaccine injury. Scheduling Order (ECF No. 80). I ordered petitioner to
file additional evidence or expert reports relating petitioner’s present condition with her vaccine
injury. Id. On April 12, 2019, petitioner filed a supplemental expert report from Dr. Bellanti.
Pet. Ex. 59.
On August 7, 2019, respondent filed a supplemental expert report. Respondent Exhibit
(“Resp. Ex.) I. Another status conference was held in this case on January 14, 2020. Scheduling
Order (ECF No. 92). During this status conference, I raised the issue that petitioner may not be
able to establish that she had six months residual symptoms following her initial reaction to the
vaccine and that it would be difficult for her to establish the relationship between her current
cardiac condition to the initial reaction, without additional evidence. Id. at 2.
On November 13, 2020, petitioner’s counsel filed a motion to withdraw as attorney of
record. Pet. Motion to Withdraw (ECF No. 106). I held another status conference on November
17, 2020, where petitioner, petitioner’s counsel and respondent’s counsel participated.
Scheduling Order (ECF No. 108). When I explained the difficulties with the case to the
petitioner, she understood my explanation and agreed to dismiss her petition. I ordered petitioner
to file the appropriate motion to dismiss her petition. Id. On March 24, 2020, petitioner filed a
motion to dismiss her petition. Pet. Mot. (ECF No. 109). Petitioner’s motion was granted, and I
entered a decision dismissing her petition for insufficient proof. Decision (ECF No. 110).
Prior to the petition being dismissed, petitioner filed an updated motion for interim fees.
Fees App. Petitioner is requesting $22,541.00 in attorneys’ fees and $13,793.65 in attorneys’
costs. Fees App. at 3-4.
On November 30, 2020, respondent filed an updated response to petitioner’s motion for
attorneys’ fees and costs. Resp. Response to Pet. Mot. (ECF No. 111). In the updated response
to petitioner’s motion, respondent stated, “In this case, respondent defers to the special master to
determine whether or not petitioner has met the legal standard for an interim fees and costs
award….respondent also defers to the special master regarding whether the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Resp. Response at
2
2. Respondent concluded, “…..therefore, respectfully requests that the Court exercise its
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
This matter is now ripe for adjudication.
II. Legal Standard
Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable
attorneys’ fees and costs “if the special master determines that the petition was brought in good
faith and there was a reasonable basis for which the petition was brought” even when a petition
does not result in compensation for petitioner. 42 U.S.C. §300aa-15(e).
“Good faith” and “reasonable basis” are two distinct requirements. Simmons v. Sec’y of
Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (citing Chuisano v. Sec’y of Health
& Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith” is a subjective test, satisfied
through subjective evidence. Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337(2020). The “good faith” requirement is satisfied if a petitioner genuinely believes that he or she
suffered a compensable vaccine-related injury. See Riley v. Sec’y of Health & Human Servs.,
No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011); Turner v. Sec’y of
Health & Human Servs., No. 99-554, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30,
2007).
Reasonable basis, on the other hand is an objective test, satisfied through objective
evidence. Cottingham, 971 F. 3d at 1344 (citing Simmons, 875 F.3d at 635). This evaluation
may include various objective factors such as “the factual basis of the claim, the novelty of the
vaccine, and the novelty of the theory of causation.” Amankwaa v. Sec’y of Health & Human
Servs., 138 Fed. Cl. 282, 289-90 (2018). However, a Special Master may not consider subjective
evidence, such as attorney conduct and a looming statute of limitations in a reasonable basis
analysis. Cottingham at 1345. “[I]n deciding reasonable basis the Special Master 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). Medical
records can support causation even where the records provide only circumstantial evidence of
causation. Harding v. Sec’y of Health & Human Servs., 146 Fed. Cl. 381, 403 (Fed. Cl. 2019).
A petitioner must furnish some evidence in support of the claim. Bekiaris v. Sec’y of Health &
Human Servs., 140 Fed. Cl. 108, 115 (2018) (reasoning that the petitioner must “adduce medical
evidence going to causation beyond temporal proximity”). The burden of proof to establish
reasonable basis for attorney fees, however, is lower than the preponderant evidence standard
required to prove entitlement to compensation. Cottingham at 1346 (citing Chuisano, 116 F. Cl.
at 287). More than a mere scintilla but less than a preponderance of proof could provide
sufficient grounds for a special master to find reasonable basis. Id.The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. §300aa-
15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human
Servs., 515 F. 3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first
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determines the reasonable hourly rate, which is then applied to the number of hours reasonable
expended on the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct.
482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the
motion is filed. Id. at 484 n.1. The special master has the discretion to reduce awards sua
sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human
Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99-537V, 2008 WL 2066611 (Fed. Cl. Spec.
Mstr. Apr. 22, 2008). Special masters may look to their experience and judgment to reduce the
number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the
billing records is not required. Wasson, 24 Cl. Ct., aff’d in relevant part, 988 F.2d 131 (Fed Cir.
1993) (per curiam).
III. Analysis
a. Good Faith and Reasonable Basis
Petitioner alleges that as a result of receiving the Repevax vaccination on August 28,
2013, she suffered anaphylactic shock/reactions, nervous system disorders, atrial fibrillation,
gastrointestinal disorders and diarrhea. Petition at ¶ 5. The medical records clearly document
that petitioner experienced a reaction immediately after receiving the vaccination on August 28,
2013. Pet. Ex. 1 at 5, 21. Petitioner obtained expert reports from a family physician and an
immunologist. I do not doubt petitioner’s good faith or reasonable basis for this bringing this
claim. Although, she ultimately was not successful, petitioner filed sufficient objective evidence
to support her claim, including proof of vaccination, medical records and expert opinions.
Additionally, respondent did not contest reasonable basis. Accordingly, a final award for
attorneys’ fees and costs in this matter is appropriate.
b. 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. 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 petitioner’s attorney.” Rodriquez v. Sec’y
of Health & Human Servs., 632 F.3dd 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at
1349).
Petitioner requested for her attorneys, Mr. Robert Hanreck, Ms. Michelle Williams, and
Mr. Andreas Baerlin. Fees App. at 3. Mr. Hanreck requested a rate of $350.00 per hour for
work performed in this case; Ms. Williams requested a rate of $350.00 per hour; and Mr. Baerlin
also requested a rate of $350.00 per hour. In addition to her attorneys, petitioner also seeks
compensation for paralegals who worked on her case at a requested rate of $80.00 per hour. Id.4
I previously awarded these rates to petitioner’s counsel in interim fees and will do the same in
this instance. Thus, I will award the requested hourly rates for the attorneys in full.
c. Hours Reasonable Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983).
Petitioner requests a total of $22,541.00 in attorneys’ fees incurred from April 8, 2018 to
November 11, 2020. I reviewed the billing entries and find that the overall hours spent on this
matter to be reasonable. The entries are reasonable and accurately describe the work being
performed and the length of time it took to perform each task. Respondent also has not identified
any particular entries as being objectionable. Therefore, petitioner is entitled to final attorneys’
fees of $22,541.00.
d. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total
of attorneys’ costs in the amount of $13,793.65. Fees App. at 4. These costs consist of acquiring
medical records, postage, work performed by petitioner’s expert, Dr. Joseph Bellanti, translation
services and requesting an additional expert, Dr. Gerswhin to review petitioner’s case. Id. The
majority of these costs are associated with petitioner’s expert, Dr. Joseph Bellanti. Petitioner is
requesting reimbursement of $11,000.00 for services rendered by Dr. Bellanti. Dr. Bellanti
charged $500.00 per hour for his services. Additionally, Dr. Bellanti provided two expert reports
in this case. Even though this case was ultimately dismissed, filing these reports was reasonable.
Concerning the remaining costs, petitioner has provided adequate supporting documentation for
all the costs, and they appear to be reasonable upon review. Accordingly, petitioner is awarded
the full amount of attorneys’ costs of $14,034.42.
IV. Conclusion
In accordance with the above, petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested: $22,541.00
(Reduction of Fees) ----
Total Attorneys’ Fees Awarded: $22,541.00
Attorneys’ Costs Requested: $14,034.42
(Reduction of Costs) -----
Total Attorneys’ Costs Awarded: $14,034.42
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Total Attorneys’ Fees and Costs: $36,575.42
Accordingly, I award a lump sum in the amount of $36,575.42, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to
petitioner and her attorney, Mr. Robert Hanreck.4
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).
6