Solak v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-869V
************************* *
*
DIANE SOLAK, *
* UNPUBLISHED
*
Petitioner, *
* Special Master Katherine E. Oler
v. *
*
* Filed: October 30, 2020
SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Interim Attorneys’ Fees and Costs
*
*
Respondent. *
*
************************* *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Colleen C. Hartley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On September 7, 2017, Diane Solak (“Ms. Solak” or “Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.2 (the “Vaccine Act” or “Program”) alleging that she suffered a severe adverse reaction from
the influenza (“flu”) vaccination she received on September 30, 2011. Pet. at 1, ECF No. 1. At
the time she filed the petition, Petitioner was represented by Mr. Jeffrey Pop.
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to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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On March 10, 2015, Petitioner filed a motion for interim fees for work performed by Mr.
Pop, which was subsequently granted by Special Master Corcoran. ECF Nos. 12, 16. Mr. Pop
withdrew from representation on July 20, 2015. On October 16, 2015, Mr. Andrew Downing was
substituted as Petitioner’s counsel of record. ECF No. 25.
On April 30, 2020, Petitioner filed an application for interim attorneys’ fees requesting
$37,105.00 in attorneys’ fees and $8,789.43 in costs, for a total of $45,894.43. Fees App. at 6,
ECF No. 83. On April 30, 2020, Respondent filed a response stating it is within my discretion to
award interim attorneys’ fees and costs. Fees Resp., ECF No. 84. Respondent “defers to [me] to
determine whether or not petitioner here has met the legal standard for interim fees and costs
award.” Id. at 2-3.
For the reasons discussed below, I hereby GRANT IN PART Petitioner’s application
award a total of $44,864.43 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 & Human Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Human 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
& Human 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 & Human Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Human
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 & Human 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 &
Human Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Human Servs., 94
Fed. Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Human Servs., 89 Fed. Cl. 661, 668 (2009);
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Bear, 2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Human 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.
B. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health
& Human 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 & Human 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 &
Human 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 &
Human 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 & Human 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 & Human 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 & Human
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).
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 & Human 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 & Human 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 & Human 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 &
Human Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Human 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 & Human 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.”). As her Interim Motion points out, by the
time post-hearing briefing concluded in this case, Petitioner, and her counsel have been litigating
this claim for more than nine years. ECF No. 127 at 1.
Successive motions for awards of interim fees are typically disfavored absent compelling
circumstances. See e.g. Kottenstette v. Sec'y of Health & Human Servs., No. 15-1016V, 2019 WL
5709372, at *2 (Fed. Cl. Spec. Mstr. Oct. 11, 2019) (granting a second interim fee award only in
light of a motion for review which would inevitably add “an indefinite period of…litigation
before…resolution of the case); Heinzelman v. Sec'y of Health & Human Servs, No. 07–01V, 2012
WL 1119389 (Fed. Cl. Spec. Mstr. Mar. 13, 2012) (Petitioner was not entitled to a third award of
interim attorneys’ fees because she failed to establish the special circumstances needed for such
an award); see also Otto v. Sec'y of Health & Human Servs., No. 16-1144, 2020 WL 1304189 (Fed.
4
Cl. Spec. Mstr. Feb. 10, 2020) (holding that granting successive interim awards strains judicial
resources and is contrary to the underlying intent of the Vaccine Act). To demonstrate undue
hardship, a Petitioner must demonstrate a compelling reason for a successive award of interim fees
and costs.
Although an award of interim fees has already been granted in this case, Petitioner had
different counsel at that time. This is therefore Petitioner’s first interim fee application with respect
to work performed by Mr. Downing. Petitioner and her counsel have been litigating this case for
over five years.
I also note that the COVID-19 epidemic 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
& Human Servs, No. 14-853V, 2020 U.S. Claims LEXIS 1250 at *14-15 (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 a second award of attorneys’ fees and costs.
B. Good Faith and Reasonable Basis
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.
As discussed above, the threshold for reasonable basis is a much lower standard than the
burden to prove entitlement to compensation by preponderant evidence. In making a reasonable
basis determination, I must look at a totality of circumstances, taking into account the factual basis
for the claim, and the medical and scientific support offered. Petitioner has filed an extensive
amount of medical records. See Exs. 2-24, 27, 59-61. Furthermore, Petitioner has submitted three
expert reports from Dr. Robert Stark, M.D., and one expert report from Dr. David Axelrod, M.D.
See Exs. 25, 28, 29, 58. Dr. Stark is board certified in internal medicine and cardiology and Dr.
Axelrod is board certified in internal medicine, adult rheumatology, and allergy and immunology.
See Exs. 26, 30. Both experts have opined that Petitioner suffered from a myocardial infarction
and have presented medical theories as to how the influenza vaccine can cause Petitioner’s alleged
injury. See generally Exs. 25, 29. With the medical records and expert reports provided, such
evidence is sufficient to justify the filing on this Petition, thus I find the petition was filed with
reasonable basis.
As there is no other reason to deny the 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 $37,105.00 in attorneys’ fees. Fees App. at 6.
i. Reasonable Hourly Rate
5
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 & Human 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 & Human
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
Petitioner’s counsel, Mr. Andrew Downing, requests to be compensated between $350.00
and $385.00 per hour for work performed from 2015-2020 and Courtney Van Cott requests to be
compensated between $205.00 and $270.00. See Fees App., Ex. A at 37-38. Mr. Downing’s and
Ms. Van Cott’s requested rates are consistent with McCulloch and with what both attorneys have
been previously awarded in the Program. See, e.g., Olschansky v. Sec’y of Health & Human Servs.,
No. 17-1096, 2020 WL 1027681 at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2020); Butler v. Sec'y of
Health & Human Servs., No. 16-1027V, 2019 WL 1716073, at *2 (Fed. Cl. Spec. Mstr. Mar. 20,
2019); Carey on behalf of C.C. v. Sec'y of Health & Human Servs., No. 16-828V, 2018 WL
1559805, at *6 (Fed. Cl. Spec. Mstr. Feb. 26, 2018); Bales on behalf of J.B.A. v. Sec'y of Health
& Human Servs., No. 15-882V, 2017 WL 2243094, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2017).
Petitioner also requests an hourly rate between $100.00 and $135.00 per hour for work done by
paralegals from 2017-2020.
These rates are consistent with such work previously awarded in the Program.
Accordingly, I find the requested rates reasonable and that no adjustment is warranted.
ii. 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
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.
The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
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%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf.
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
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work done.” Saxton ex rel. Saxton v. Sec'y of Health & Human 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 & Human
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 & Human Servs., 38 Fed. Cl. 403, 406 (1997) (affirming
the special master's reduction of attorney and paralegal hours). 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 & Human 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., Ex. A. I find the hours to be largely reasonable, however I find a reduction is appropriate
for excessive time billed by paralegals for administrative tasks, such as organizing/updating files,
preparing files for filing with the court, and processing payment for medical record requests. Mr.
Downing has been warned previously about these billing practices. See, e.g., Olschansky v. Sec’y
of Health & Human Servs., No. 17-1096, 2020 WL 1027681 at *2 (Fed. Cl. Spec. Mstr. Feb. 21,
2020); Goff v. Sec'y of Health & Human Servs., No. 17-259V, 2019 WL 3409976, at *4 (Fed. Cl.
Spec. Mstr. Mar. 29, 2019); Sheridan v. Sec'y of Health & Human Servs., No. 17-669V, 2019 WL
948371, at *3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec'y of Health & Human Servs., No.
16-538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Accordingly, I will deduct
8.9 hours for entries billed by timekeeper DPA4 for a total deduction of $1,030.00 (4.9 hours x
$100.00 for entries billed before January 1, 2017 + 4.0 hours x $135.00 for entries billed after
January 1, 2017).
Total attorneys’ fees to be awarded: $36,075.00.
D. Reasonable Costs
Petitioner requests a total of $8,789.43 in costs, which includes obtaining medical records,
medical literature, postage costs, the Court’s filing fee, and expert report fees. Fees App., Ex. A. at
25-36. I have reviewed the supporting documentation and find this request to be reasonable.
Accordingly, I award costs in full.
i. Petitioner’s expert costs
Petitioner requests $8,650 for costs related to expert David Axelrod. Dr. Axelrod billed
21.625 hours for his review of Petitioner’s medical records, research, and preparation of his three
expert reports at a rate of $400.00 per hour. Fees App., Ex. A. at 30, 35, 36. Dr. Axelrod has been
previously awarded his requested rate and I see no reason to disturb this request. See generally
4
See entries on 10/29/2015 (0.1 hours), 11/9/2015 (0.2 hours), 11/25/2017 (0.2) hours, 12/7/2015 (0.3
hours), 1/7/2016 (0.5 hours), 2/24/2016 (0.3 hours), 9/9/2016 (0.3 hours), 9/20/2016 (2.2 hours), 9/20/2016
(0.4 hours), 9/27/2016 (0.4 hours), 1/25/2018 (2 entries totaling 0.7 hours), 2/1/2018 (0.8 hours), 3/13/2018
(0.3 hour), 9/14/2018 (4 entries totaling 1.6 hours), 8/22/2019 (0.2 hours), and 4/27/2020 (2 entries totaling
0.4 hours).
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Leandro v. Sec’y of Health & Human Servs., No. 18-1097, 2020 WL 3046114 (Fed. Cl. Spec.
Mstr. May 11, 2020); Dean on behalf of I.D. v. Sec’y of Health & Human Servs., No. 13-808, 2018
WL 774252 (Fed. Cl. Spec. Mstr. Jan. 2, 2018). I also find the time Dr. Axelrod billed to complete
his work on this case to be reasonable. Accordingly, I award Dr. Axelrod’s expert costs in full.
ii. Miscellaneous costs
I have reviewed all miscellaneous costs for which compensation is requested as well as the
supporting documentation. I note that documentation regarding postage was not provided, other
than a notation on the corresponding medical records payment. These postage expenditures parallel
the United States postage prices throughout the years and do not seem unreasonable. See, e.g., Fees
App. Ex. A at 29. Thus, I award Petitioner’s requested costs in full.
Total costs to be awarded: $8,789.43.
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 IN PART Petitioner’s
application, as follows:
A lump sum in the amount of $44,864.43, representing reimbursement of Petitioner’s
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and her
attorney, Andrew Downing.
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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