Domke v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: March 12, 2018)
* * * * * * * * * * * * * * * UNPUBLISHED
HEIDI DOMKE, *
* No. 16-307V
Petitioner, *
*
v. * Chief Special Master Dorsey
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Remand;
AND HUMAN SERVICES, * Reasonable Basis.
*
Respondent. *
*
* * * * * * * * * * * * * * *
Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON REMAND1
On March 9, 2016, Heidi Domke (“petitioner”) filed a petition for compensation in the
National Vaccine Injury Compensation Program2 alleging that she suffered from an anaphylaxis
reaction and brachial neuritis after receiving the Tetanus, Diphtheria, Pertussis (“Tdap”)
vaccination on March 13, 2013. Petition at Preamble. Alternatively, petitioner alleged that she
“suffered an immune-mediated inflammatory condition,” “aggravated ongoing environmental
allergies,” and “increased sensitivity to environmental and chemical irritants,” as a result of the
Tdap vaccination. Id. On June 27, 2017, the case was dismissed for failure to prosecute.
1
This decision will 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). 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 objection to the published Decision’s inclusion of
certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b), each party
has 14 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 in its current form. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
Petitioner filed a motion for attorneys’ fees and costs on October 10, 2017, requesting a
total of $25,905.09 in attorneys’ fees and costs. Petitioner’s Application (“Pet. App.”) dated Oct.
10, 2017 (ECF No. 34). On October 24, 2017, Special Master Millman issued a decision
denying attorneys’ fees and costs, finding that the claim had no reasonable basis. Decision dated
Oct. 24, 2017 (ECF No. 36). Petitioner filed a motion for review on November 21, 2017. On
February 8, 2018, petitioner filed a supplemental application for attorneys’ fees, requesting an
additional $10,913.403 for the appeal, bringing the total amount requested to $36,818.49. The
case was remanded to the undersigned on February 13, 2018, for further consideration in light of
the Federal Circuit’s recent decision in Simmons v. Sec’y of Health & Human Servs., 875 F.3d
632 (Fed. Cir. 2017).
For the reasons discussed below, the undersigned GRANTS petitioner’s motion for
attorneys’ fees and costs and awards a total of $33,447.69.
I. Relevant Facts4
Petitioner received the Tdap vaccination on March 13, 2013. Pet. Ex. 4 at 1. On March
15, 2013, she presented to an urgent care center complaining of a possible reaction to Tdap,
stating that on the evening that she received her vaccination, she began experiencing problems
breathing and felt weak. Id. at 2. She was diagnosed with a “tetanus vaccination reaction,” and
was discharged with instructions to rest and take ibuprofen and acetaminophen. Id. at 4.
The following day, petitioner visited a different urgent care clinic, where Narda Sherman,
a physician’s assistant, noted that petitioner reported that “within 50 minutes and since” her Tdap
vaccination on March 13, 2013, she had been experiencing rash and muscle weakness. Ex. 5 at
17. Ms. Sherman also stated that petitioner’s face and chest were flushed. Id. Petitioner began
taking Prednisone that day. Id.On March 22, 2013, petitioner was referred to Dr. Scott Cameron, an allergist, for an
evaluation. He noted that petitioner had a “possible vaccine reaction,” and that she had
previously experienced “fever and malaise” following a Tdap vaccination in 1997. Pet. Ex. 5 at
3. Dr. Cameron stated that after petitioner received the March 13, 2013 Tdap vaccination, she
“developed a headache, [and] … felt she was short of breath,” and “developed rhinitis, and
started to get itchy,” within 45 minutes of receiving the vaccination. Id. He also noted that
petitioner developed hives within 72 hours of her vaccination. Id. Although the epicutaneous
testing to Tdap performed during this visit was negative, Dr. Cameron stated that “[a] reaction to
Tdap cannot be ruled out based on today’s testing.” Id. at 4.
3
In the text of petitioner’s supplemental motion for fees, counsel requested $10,813.40 in
supplemental fees for time spent preparing the motion for review. Pet. Notice dated Feb. 8, 2018
(ECF No. 43) at 3. However, counsel’s invoice stated the total was $10,913.40. Id., Tab D at 1.
The undersigned used the higher amount referenced on counsel’s supplemental invoice, not the
number stated in the motion.
4
The undersigned has reviewed the entire record but recites only the facts which are relevant to
her determination of reasonable basis.
2
Petitioner saw an internist, Dr. Stephen Roome, on April 17, 2013, for complaints of
weakness and pain in her deltoid and pectoral muscles. Pet. Ex. 11 at 10. Dr. Roome stated that
petitioner was “having further fallout from her vaccination reaction. She initially had severe
hives and difficulty breathing and pain through her upper axial muscles …. About five days after
she developed muscle weakness in the shoulders and the arms …. This has persisted.” Id. Dr.
Roome noted at a visit on June 25, 2013, that petitioner “continued [to experience]
neuromuscular symptoms post vaccination reaction,” and that she had weakness in her arms and
legs. Id. at 6. Petitioner continued to follow up with Dr. Roome throughout 2013 with continued
complaints of arm and leg weakness and pain. Id. at 1-11.
On December 19, 2013, petitioner saw a neurologist, Dr. Wayne Shtybel, who noted that
although her neurologic examination was normal, petitioner “has a picture that is suggestive of
multiple chemical sensitivities, multiple environmental allergies, and she has had reactions after
both TDP vaccinations.” Pet. Ex. 11 at 26. He recommended that petitioner forego further Tdap
vaccinations. Id.On January 13, 2014, petitioner saw another allergist, Dr. Liliane Gendreau-Reid, who
noted that petitioner experienced significant respiratory symptoms year round, including “itchy,
watery, red eyes; sneezing …; nasal congestion and no sense of smell (pre-vaccine; acute sense
of smell post [Tdap] vaccine); sinus pressure and headache; post nasal drip; chest tightness; and
a cough from the chest.” Pet. Ex. 11 at 23. Dr. Gendreau-Reid further noted that “[b]ecause of
[these] sinus problem[s] she has not been feeling well for 10 months since the [Tdap] vaccine
and she is more sensitive to environmental irritants such as chemical smells; she tastes chlorine
etc.” Id. Dr. Gendreau-Reid’s diagnosis was “probabl[e] non-IgE mediated reaction to Td.”
Pet. Ex. 3 at 2.
Petitioner saw Dr. Agnieszka Thompson for a dermatology consult at the Mayo Clinic on
February 8, 2015, complaining of “intermittent facial flaking, erythema, and inflammatory
papules and pustules, particularly around her mouth,” for the past 23 months since her Tdap
vaccination. Pet. Ex. 8 at 10. Dr. Thompson also noted that petitioner has “some skin sensitivity
to irritants in the air such as perfumes and truck exhaust,” which cause rashes. Id. at 11. Dr.
Thompson stated that petitioner’s symptoms “could suggest an allergic process.” Id. at 14.
II. Procedural History
Petitioner filed her petition on March 9, 2016, alleging that the Tdap vaccination she
received on March 13, 2013, caused anaphylaxis, brachial neuritis, or alternatively, “an immune-
mediated inflammatory condition resulting in pain, tightness and weakness in her left arm,
shoulder and chest[,] as well as aggravated ongoing environmental allergies and increased
sensitivity to environmental and chemical irritants.” Petition at Preamble. The case was
assigned to the Special Processing Unit (“SPU”). On March 21, 2016, petitioner filed medical
records in support of her petition as Exhibits 1-18. Petitioner filed additional medical records
and a statement of completion on April 26, 2016. Statement of Completion dated April 26, 2016
(ECF No. 12).
3
Respondent requested additional medical records on May 9, 2016, which were filed on
July 11, 2016. On October 17, 2016, respondent filed a Rule 4(c) Report recommending against
compensation. Thereafter, the case was reassigned from SPU to Special Master Millman for
further proceedings, as the case no longer fit the criteria for SPU. Petitioner was ordered to file
an expert report by March 24, 2017. Petitioner subsequently filed three unopposed motions for
extension of time to file an expert report from an immunologist. During a status conference held
on June 27, 2017, petitioner indicated that she was unable to retain an expert to opine as to
causation in her case and requested that the case be dismissed. The case was dismissed the same
day. Decision dated June 27, 2017 (ECF No. 30). Judgment entered on July 28, 2017.
On October 10, 2017, petitioner filed a motion for attorneys’ fees and costs. Petitioner
requested $21,556.90 in attorneys’ fees and $4,348.19 in attorneys’ costs, for a total of
$25,905.09. Pet. App. at 1. Counsel stated that petitioner did not incur any costs in pursuit of
the litigation. Id. Respondent filed a response on October 23, 2017, deferring to the special
master’s discretion with regard to attorneys’ fees and costs. Respondent’s Response (“Resp.”)
dated Oct. 23, 2017 (ECF No. 35) at 3. Respondent did not raise the issue of reasonable basis
and instead stated that he was “satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case.” Id. at 2.
On October 24, 2017, Special Master Millman issued a decision denying attorneys’ fees
and costs. Decision dated Oct. 27, 2017 (ECF No. 36). While the special master found that the
petition was filed in good faith, she found that the claim lacked reasonable basis, reasoning that
the medical records did not demonstrate that petitioner suffered from an adverse reaction from
the Tdap vaccination for more than six months. Id. at 4. The special master also discussed
counsel’s duty to investigate a claim prior to its filing and pointed to several entries in
petitioner’s counsel’s billing records which showed that counsel delayed seeking medical records
until months after he was contacted by petitioner. Id. at 4-5. Special Master Millman concluded
that if counsel had reviewed the medical records prior to the filing of the petition, he would have
realized that there was no reasonable basis for petitioner’s claim. Id. at 5.
Petitioner filed a motion for review of the special master’s decision on November 21,
2017, and the case was assigned to Chief Judge Susan Braden. Petitioner argued that Special
Master Millman incorrectly applied the totality of the circumstances test in determining that
petitioner’s counsel was not entitled to fees and costs. Pet. Memorandum dated Nov. 21, 2017
(ECF No. 39) at 5. Respondent filed a response on December 21, 2017, arguing that the totality
of the circumstances test no longer applied due to the Federal Circuit’s recent decision in
Simmons, 875 F.3d 632. Respondent’s Response dated Dec. 21, 2017 (ECF No. 41) at 6.
Nevertheless, respondent argued that Special Master Millman correctly decided that the case
lacked reasonable basis, because her decision “focused on whether the objective evidence
provided a factual basis for petitioner’s case.” Id.On February 5, 2018, Chief Judge Braden issued an order directing petitioner to file
additional documentation, including a description of the work performed by counsel; a
description of the attorneys working on the case and the explanation for their hourly rates;
information regarding the compensation of attorneys employed by Chicago Kent Law School,
4
petitioner’s counsel’s employer; and further information regarding the payment of experts.
Order dated Feb. 5, 2018 (ECF No. 42).
Petitioner filed the information requested by Chief Judge Braden on February 8, 2018.
Notice dated Feb. 8, 2018 (ECF No. 43). Petitioner provided an invoice with further detail as to
the work performed. Id. at 1. Petitioner’s counsel also provided information regarding the
background and experience of Professor Kraus and Ms. Kraus, as well as citations to previous
cases in which they have been awarded their requested hourly rates. Id. at 2-3; see also id., Tab
B. Counsel further stated that the law school clinic in which they practice, known as CK Law
Group, “functions as a fee generating firm,” at Chicago Kent Law School. Id. at 2. Professor
Kraus’ contract with the law school requires him to generate fees from the clinic to cover his
salary and the salaries of his associates. The attorneys are not otherwise compensated by the law
school for their work. Id. Ms. Jennifer Huerta, CK Law Group’s paralegal, is compensated by
the law school, and Professor Kraus’ contract also entitles him to legal administrative services,
from which he receives fees for her work. Id.Petitioner’s February 8, 2018 filings also provided an explanation of petitioner’s expert
costs. Notice at 3. Petitioner included a check requisition and a cancelled check for Dr. Byers,
showing that $2,000.00 was paid for her services. Id., Tab C. Counsel further explained that
while an invoice for Dr. Axelrod’s expert work was filed, evidence of payment to Dr. Axelrod
was not filed, as Dr. Axelrod agreed to accept payment of his invoice after petitioner’s counsel
was awarded fees in the case. Id. at 3. Counsel explained that some experts in the Vaccine
Program are willing to defer payment on their invoices until after a decision awarding fees and
costs has been entered so as to ease the financial burden of counsel, who may incur costs for
several years before being reimbursed. Id.Along with this additional information, petitioner also filed a supplemental application
for an additional $10,913.40 in attorneys’ fees related to the filing of the motion for review.
Notice at 20. Petitioner thus requests a total of $36,818.49 in attorneys’ fees and costs.
On February 13, 2018, Chief Judge Braden issued an order remanding the case to the
undersigned, finding that due to the Federal Circuit’s ruling in Simmons, 875 F.3d 632, “there is
insufficient analysis for the Court to properly review the Special Master’s finding that the …
case lacked a reasonable basis.” Order dated Feb. 13, 2018 (ECF No. 44). Chief Judge Braden
requested that the undersigned adjudicate petitioner’s motion for attorneys’ fees and costs in
light of the Federal Circuit’s recent decision in Simmons and the additional information provided
by petitioner’s counsel. Id.III. Good Faith and Reasonable Basis
Under the Vaccine Act, an award of reasonable attorneys’ fees and costs is mandatory
where a petitioner is awarded compensation. But where compensation is denied, as it was in this
case, the special master must first determine whether the petition was brought in good faith and
the claim had a reasonable basis. § 15(e)(1).
5
a. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of
Health & Human Servs., 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18,
1993). 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 the
petitioner had an honest belief that her claim could succeed, the good faith requirement is
satisfied. See Riley v. Sec’y of Health & Human Servs., 2011 WL 2036976, at *2 (Fed. Cl.
Sepc. Mstr. Apr. 29, 2011) (citing Di Roma at *1); Turner v. Sec’y of Health & Human Servs.,
2007 WL 4470030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). In this case, the record supports
the supposition that petitioner brought the claim in a sincere belief that she was injured by the
Tdap vaccination she received on March 13, 2013. See Petition at Preamble. As such, the
undersigned finds good faith.
b. Analysis of Reasonable Basis
Regarding the reasonable basis requirement, it is incumbent on petitioner to
“affirmatively demonstrate a reasonable basis,” which is an objective inquiry. McKellar v. Sec’y
of Health & Human Servs., 101 Fed. Cl. 297, 305 (2011); Di Roma, 1993 WL 496981, at *1.
Unlike the good faith inquiry, reasonable basis requires more than just petitioner’s belief in the
claim. See Turner, 2007 WL 4410030, at 6. Instead, the claim must at least be supported by
medical records or a medical opinion. Sharp-Roundtree v. Sec’y of Health & Human Servs.,
2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr. Nov. 3, 2015). The court expects the attorney to
make a pre-filing inquiry into the claim to ensure that it has a reasonable basis. See Turner at *6-
7.
The undersigned was asked to evaluate petitioner’s fee application in light of the
additional evidence submitted by petitioner and the Federal Circuit’s recent decision in
Simmons. The Circuit held in Simmons that while a looming statute of limitations deadline may
excuse an attorney’s duty to investigate a claim prior to filing a Vaccine Act petition, this does
not create a reasonable basis for the claim. 857 F.3d at 636. The Circuit stated, “Whether there
is a looming statute of limitations deadline, however, has no bearing on whether there is a
reasonable factual basis for the claim raised in the petition. That is an objective inquiry
unrelated to counsel’s conduct.” Id. at 636 (internal quotations omitted).
The undersigned has reviewed the records, and based on an objective inquiry, finds that
reasonable basis existed in this case for two reasons. First, respondent did not object to
petitioner’s application on reasonable basis grounds. To the contrary, in his response to
petitioner’s motion for attorneys’ fees and costs, respondent stated that he was “satisfied that the
statutory requirements for an award of attorneys’ fees and costs [were] met in this case.” Resp.
at 2 (citing 42 U.S.C. §300aa-15(e)(1)(A)-(B)). The fact that respondent did not object to
reasonable basis suggests that respondent concluded that there were sufficient facts set forth in
petitioner’s medical records to support the allegations in the petition. While respondent’s
position is not determinative, it is noteworthy.
6
Second, the undersigned’s review of the medical records shows that there are statements
to support the allegation that petitioner suffered an immune-mediated condition which allegedly
caused her to suffer increased environmental sensitivity. The undersigned agrees with Special
Master Millman and respondent’s Rule 4(c) Report on the point that petitioner’s medical records
do not demonstrate that she suffered from either brachial neuritis or anaphylaxis. See Decision
at 2. However, an objective review of the records shows that there is sufficient evidence to
provide reasonable basis for the filing of the petition on the grounds that petitioner allegedly
suffered increased environmental sensitivity.5
Two of petitioner’s treating physicians noted a worsening of petitioner’s condition after
her receipt of the Tdap vaccine. Medical records from a visit with Dr. Lilian Gendreau-Reid,
M.D., petitioner’s allergist, on January 13, 2014, document that approximately 10 months after
she received the Tdap vaccination, petitioner had an “acute sense of smell post … vaccine,” and
that she was more sensitive to irritants in the environment such as chemical smells. Pet. Ex. 3 at
2. Dr. Gendreau-Reid’s working diagnosis was “non-IgE mediated reaction to Td.” Id.
Petitioner was advised to avoid further Tdap vaccinations. Id. Further, at a dermatology consult
with Dr. Agnieszka Thompson at the Mayo Clinic on February 13, 2015, petitioner complained
of “intermittent facial flaking, erythema, and inflammatory papules,” for the last 23 months.6
Pet. Ex. 8 at 10. Dr. Thompson noted that petitioner “also note[d] some skin sensitivity to
irritants in the air such as perfumes and truck exhaust,” which caused her to develop rashes. Id.
at 11. Dr. Thompson stated that petitioner’s symptoms “could suggest an allergic process.” Id.
at 14. Thus, physician statements in the medical records establish a reasonable basis for
petitioner’s counsel to file the petition and pursue an expert opinion.
Petitioner was ultimately unable to find an expert to opine that the Tdap vaccination
caused her to suffer from anaphylaxis, brachial neuritis, or an immune-mediated inflammatory
condition resulting in pain, left arm weakness, and increased sensitivity to environmental and
chemical irritants. After having the claim reviewed by two different expert immunologists,
counsel concluded that petitioner would not be able to preponderantly prove causation in her
case. Petitioner then timely dismissed her case. The undersigned finds that, based on her review
of the medical records and respondent’s lack of objection, a reasonable basis existed at the time
the claim was filed and continued until expert opinions could not be obtained and the case was
dismissed.
IV. Evaluation of Requested Attorneys’ Fees and Costs
Attorneys’ fees in the Vaccine Program are calculated using the lodestar method, which
involves multiplying a reasonable hourly rate by a reasonable number of billed hours. Avera v.
5
Because the undersigned finds reasonable basis in the medical records, she does not reach the
issue discussed in Simmons regarding the interplay between counsel’s conduct and the statute of
limitations.
6
Based on entries of problems at 10 and 23 months post vaccination, there was a reasonable
basis for petitioner’s counsel to believe that the six month severity requirement was satisfied. 42
U.S.C. §300aa-11(c)(1)(D)(i).
7
Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008). An attorney
representing a petitioner in the Program is paid the forum rate unless the bulk of the work was
performed in a locale other than the form (i.e., the District of Columbia), and the local rate is
very significantly lower than the forum rate. Id. at 1349. If these two requirements are met, the
Davis exception applies, and the attorney is paid according to the local rate. Id. (citing Davis
County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. V. United States Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Although not explicitly stated in the statute, the requirement that only reasonable
amounts be awarded applies to costs as well as fees. See Perriera v. Sec’y of Health & Human
Servs., 27 Fed. Cl. 29, 34 (1992), aff’d 33 F.3d 1375 (Fed. Cir. 1994).
Special Masters have “wide latitude in determining the reasonableness of both attorneys’
fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). They
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 ex rel. 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 v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991) aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993) (per curiam).
Petitioner “bears the burden of establishing the hours expended, the rates charged, and
the expenses incurred.” Wasson, 24 Cl. Ct. at 484. Adequate proof of the claimed fees and costs
should be presented when the motion is filed. Id. at 484, n.1. Counsel “should make a good
faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from
his fee submission.” Hensley v. Eckhart, 461 U.S. 424, 434 (1983).
a. Reasonable Hourly Rates
Petitioner requests compensation for Professor Kraus at a rate of $375.00 per hour for
work performed in 2015, $389.00 per hour for work performed in 2016, and $398.00 per hour for
work performed in 2017. Pet. App., Tab A. Petitioner also requests compensation for Ms. Kraus
at a rate of $311.00 per hour for work performed in 2016 and $318.00 per hour for work
performed in 2017. Id. These hourly rates fall within the appropriate ranges listed on the Office
of Special Masters’ Hourly Rate Fee Schedules for 2015-2017.7 The undersigned and other
special masters have previously found these hourly rates for Professor Kraus and Ms. Kraus to be
reasonable. Freedman v. Sec’y of Health & Human Servs., 16-1357V, 2017 WL 7688082 (Fed.
Cl. Spec. Mstr. Oct. 20, 2017); Jackson v. Sec’y of Health & Human Servs., 14-1217V, 2017
WL 2243092 (Fed. Cl. Spec. Mstr. April 26, 2017). The undersigned thus awards the requested
hourly rates in full.
7
The 2015-2016 Hourly Rate Fee Schedule can be accessed at:
www.uscfc.uscourts.gov/sites/.../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.
8
b. Reasonable Hours
After closely reviewing petitioner’s original fee application, the undersigned finds that
counsel appropriately billed paralegal work at a paralegal hourly rate, 8 and the overall amount of
time billed is not unreasonable. The undersigned will thus reimburse counsel in full for the
original fee application, a total of $21,556.90 in attorneys’ fees. Pet. App. at 1.
However, the undersigned finds petitioner’s supplemental fee application for fees related
to the motion for review to be excessive because of duplicative billing by Professor Kraus and
Ms. Kraus. Petitioner’s counsel requests $10,913.40 in fees for 30.1 hours of work on her
motion for review and memorandum. Professor Kraus billed a total of 14.6 hours to draft and
edit petitioner’s memorandum, and Ms. Kraus similarly billed 10.6 hours for drafting and editing
the same memorandum.9 In the undersigned’s experience in the Vaccine Program as well as
with the work of Professor Kraus and Ms. Kraus, this request appears excessive.
The undersigned has previously found it reasonable to reduce the fees paid to counsel due
to duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., 10-103V, 2016 WL
447770 (Fed. Cl. Spec. Mstr. Jan 15, 2016); Bondi v. Sec’y of Health & Human Servs., 12-
474V, 2017 WL 1046526 (Fed. Cl. Spec. Mstr. Feb. 23, 2017). The undersigned and other
special masters have previously noted the inefficiency that results when multiple attorneys work
on one task and have reduced fees accordingly. See Sabella v. Sec’y of Health & Human Servs.,
86 Fed. Cl. 201, 209 (Fed. Cl. 2009). The undersigned reduces petitioner’s supplemental fee
request for the time Ms. Kraus billed for drafting and editing the 15 page memorandum related to
the motion for review, as she finds these billing entries excessive and duplicative of the time
billed by Professor Kraus. This results in a reduction of $3,370.80 in petitioner’s
supplemental fee application.
c. Costs
Petitioner requests a total of $4,348.19 in attorneys’ costs for expenses such as payment
for medical records and the filing fee, as well as costs paid to two experts for reviewing the case.
Pet. App. at 1. Petitioner requests $2,000.00 to compensate Dr. Vera Byers, M.D., Ph.D., for
reviewing the case.10 Pet. App., Tab B at 36. The undersigned finds Dr. Byers’ costs reasonable
and will reimburse petitioner in full for them.
8
The undersigned notes her appreciation that petitioner’s counsel billed at a paralegal’s hourly
rate when performing paralegal work and at an attorney’s hourly rate when performing attorney
work. The undersigned further finds petitioner’s counsel’s paralegal rates reasonable.
9
The memorandum in support of the motion for review is 15 pages in length. See Pet.
Memorandum dated Nov. 21, 2017 (ECF No. 39).
10
Dr. Byers billed five hours of work at $400.00 per hour for reviewing medical records, but her
invoice reflects that she spent a total of eight hours working on petitioner’s case. Id. Dr. Byers
did not charge for reviewing other Vaccine Program cases or for discussing the case with
Professor Kraus. Id.9
Petitioner also requests $1,200.00 for work performed by Dr. David Axelrod, who
reviewed the case after Dr. Byers. Dr. Axelrod performed a total of three hours of work, billed at
$400.00 per hour, for “chart review,” and “research.” Pet. App., Tab B at 37.11 The undersigned
also reimburses this cost in full.
V. Conclusion
For the reasons set forth above, the undersigned finds that petitioner is entitled to an
award of attorneys’ fees and costs as follows:
Attorneys’ Fees
Original Application Total: $21,556.90
Reductions: ($0.00)
Supplemental Application Total: $10,913.40
Reduction for Duplicative Billing ($3,370.80)
Total Fees Awarded: $29,099.50
Costs
Requested: $4,348.19
Reductions: ($0.00)
Total Costs Awarded: $4,348.19
Accordingly, the court awards $33,447.69, in the form of a check payable jointly to
petitioner, Ms. Heidi Domke, and her attorney, Mr. Edward Kraus.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
court shall enter judgment in accordance herewith.12
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
11
While petitioner provided an invoice for Dr. Axelrod, the invoice was bare bones and was not
descriptive of the work he performed. The undersigned compensates Dr. Axelrod for reviewing
the case but cautions that further invoices should contain more detail regarding the work
performed.
12
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either
separately or jointly, filing a notice renouncing the right to seek review.
10