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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-313V
Filed: July 15, 2021
UNPUBLISHED
Special Master Horner
ROSA SOTO GALVAN,
Petitioner,
v. Attorneys’ Fees and Costs;
Reasonable Basis; Good Faith
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Kristina Kay Green, Kralovec, Jambois & Schwartz, Chicago, IL,, for petitioner.
Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
On March 20, 2020, petitioner, Rosa Soto Galvan, filed a petition under the
National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012) 2, alleging that
she suffered anaphylaxis and related complications, including serum sickness-like
syndrome, following administration of hepatitis A, hepatitis B, influenza, and
pneumococcal conjugate vaccinations on September 26, 2018. (ECF No. 1, p. 1.) On
July 6, 2020, I issued a decision granting respondent’s motion to dismiss and dismissing
petitioner’s case. (ECF No. 19.) Petitioner filed a motion for review. (ECF No. 22.) On
December 17, 2020, the Court denied petitioner’s motion for review and judgment was
entered. (ECF Nos. 25-26.)
Petitioner now moves for an award of attorneys’ fees and costs. (ECF No. 28.)
Respondent opposes petitioner’s motion on the basis that no reasonable basis existed
for the filing of this petition; however, to the extent any award is made, respondent
1
Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2
Hereinaf ter, all ref erences to “§300aa” ref er to sections of the Vaccine Act.
1
defers to the special master regarding the amount of the award. (ECF No. 29.) For the
reasons discussed below, petitioner is awarded attorneys’ fees and costs in the full
amount of $26,507.98.
I. Petitioner is Eligible for an Award of Attorneys’ Fees and Costs
Section 15(e)(1) of the Vaccine Act allows the special master to award
“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are
eligible for an award of reasonable attorneys' fees and costs if they are entitled to
compensation under the Vaccine Act, or, even if they are unsuccessful, if the special
master finds that the petition was filed in good faith and with a reasonable basis. Avera
v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).
“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human
Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A
petitioner acts in “good faith” if he or she holds an honest belief that a vaccine injury
occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030,
at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). In this instance, petitioner’s good faith is not
challenged. (ECF No. 29, p. 8)
“Reasonable basis,” however, is an objective standard. Unlike the good faith
inquiry, reasonable basis requires more than just petitioner’s belief in his claim. See
Turner, 2007 WL 4410030, at *6. Instead, a reasonable basis analysis “may include an
examination of a number of objective factors, such as 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 v. Sec’y of Health & Human Servs., 138 Fed. Cl.
282, 289 (2018); accord Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337(Fed. Cir. 2020). “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, 971 F.3d at 1346.
Respondent argues both that petitioner has provided nothing more than her own
assertion that she suffered a vaccine injury and further that she has not provided
evidence that she underwent a surgical intervention because of that injury. (ECF No. 29,
p. 8.) Respondent contends that petitioner’s assertion that her knee arthrocentesis
constituted a surgical intervention “defies” prior program caselaw and therefore her
claim was “completely infeasible.” (Id. at 8-9.) Respondent also contends that petitioner
failed to come forward with “more than a scintilla” of evidence supporting causation. (Id.
at 9.)
As discussed in my decision dismissing this case, however, petitioner’s medical
records reflect that both her initial hospitalization and her primary care follow up resulted
in assessments and notations considering whether petitioner experienced a vaccine
reaction. Petitioner’s primary intake diagnosis at the emergency department was “other
complications following immunization, not elsewhere classified,” and she had secondary
diagnoses including “other serum reaction due to vaccination, initial encounter,” and
“adverse effect of other viral vaccines, initial encounter.” (ECF No. 15, p. 7 (quoting Ex.
2
4, p. 219).) Petitioner was discharged with instructions to follow up with her primary
care physician. (Ex. 4, p. 221.) That primary care physician in turn recorded a history
of “serum sickness-like reaction” and recorded an impression of “adverse reaction to
mixed bacteria vaccine.” (Ex. 1, pp. 33, 35.) Although these assessments are not
beyond challenge, given the weight treating physician opinions are typically afforded in
this program, these notations provide more than a mere scintilla of objective evidence
supporting vaccine causation. E.g. Capizzano v. Sec’y of Health & Human Servs., 440
F.3d 1317, 1326 (Fed. Cir. 2006) (“medical records and medical opinion testimony are
favored in vaccine cases, as treating physicians are likely to be in the best position to
determine whether a ‘logical sequence of cause and effect show[s] that the vaccination
was the reason for the injury’.”)
Also important, although further record development would have been
necessary, petitioner’s claim survived respondent’s motion to dismiss on the question of
whether petitioner’s arthrocentesis was an intervention in treatment of petitioner’s
alleged vaccine reaction. (ECF No. 19, pp. 16-18.) Petitioner pointed to medical record
evidence that her arthrocentesis was in treatment of her right knee effusion (and not
merely for diagnosis) and further provided an offer of proof in the form of an internet
publication suggesting that serum sickness can present with rheumatic features,
including arthralgia as well as swelling and pain due to arthritis in a minority of patients. 3
(Ex. 6, p. 8.) Although inchoate, I concluded in effect that petitioner’s claim was
feasible. Accord Cottingham, 971 F.3d at 1346 (concluding that circumstantial evidence
contained in medical records combined with other literature (in that case a vaccine
package insert) can constitute objective evidence supporting reasonable basis).
Nonetheless, respondent further contends that petitioner’s claim remained
infeasible because her assertion that arthrocentesis was surgical in nature was not
supported by prior program case law (discussed at length in the decision dismissing this
case), thereby failing to satisfy the statutory severity requirement for this program. And,
indeed, this was the question that resulted in dismissal of this claim. Petitioner
stresses, however, that the prior program caselaw cited by respondent consisted
entirely of prior decisions of other special masters which are not binding on me. (ECF
No. 30, p. 6-7; see also Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625,
630 (1998).) Petitioner is correct that no binding caselaw dictated the result in this
case. (ECF No. 30, p. 6.) Moreover, the specific procedure of arthrocentesis had never
been addressed. Additionally, the prior decisions by special masters were split,
depending on fact pattern, as to whether the other specific needle-based procedures at
issue in those cases constituted a surgery. In that context, even though petitioner did
not prevail, respondent’s assertion that prior caselaw in itself rendered this case
“completely infeasible” is overstatement. Moreover, although I found the weight of
evidence was against petitioner’s assertion, she did provide some support for the idea
3
Respondent likewise argued that petitioner’s joint effusion resulted from arthritis but contended that it
was unrelated to any serum sickness or vaccine reaction and instead due to osteoarthritis. Respondent
contended that the arthrocentesis was performed solely to rule out septic arthritis. (ECF No. 13, pp. 8-9.)
3
that arthrocentesis is surgical. Specifically, petitioner filed a January 2020 online article
titled “Knee Arthrocentesis” by Akbarnia and Zahn from the National Center for
Biotechnology Information (“NCBI”) “Bookshelf” service (Ex. 7), which characterized
arthrocentesis as “a minor surgical procedure” and a definition of “surgery” as adopted
by the AMA based on a statement from the American College of Surgeons (Ex. 8) that
confirmed that in some instances a surgery can be performed by needle.
In light of all of the above, I conclude that petitioner is eligible for an award of
attorneys’ fees and costs.
II. Amount of the Award of Attorneys’ Fees and Costs
It is “well within the special master’s discretion” to determine the reasonableness
of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir.
1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991)
(“[T]he reviewing court must grant the special master wide latitude in determining the
reasonableness of both attorneys’ fees and costs.”). The Federal Circuit has approved
the lodestar approach to determine reasonable attorneys’ fees and costs under the
Vaccine Act. Avera, 515 F.3d at 1347. This is a two-step process. Id. at 1347-48.
First, a court determines an “initial estimate…by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting
Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second the court may make an upward or
downward departure from the initial calculation of the fee award based on specific
findings. Id. at 1348.
A reasonable hourly rate is “the prevailing market rate 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 (citation and quotation
omitted). The decision in McCulloch provides a further framework for consideration of
appropriate ranges for attorneys’ fees based upon the experience of the practicing
attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motions for recons. denied, 2015
WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office of Special Masters has
subsequently updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015-2016, 2017, 2018, 2019, 2020, and 2021 can be accessed online. 4
Special masters may rely on their experience within the Vaccine Program to
determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 485 (1991), rev’d on other grounds and aff’d in relevant
part¸ 988 F.2d 131 (Fed. Cir. 1993). Special masters have previously reduced the fees
4
Each of the Fee Schedules for 2015 through 2020 can be accessed at
http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived
f rom the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, 2020, and 2021
are adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”).
4
paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec’y of
Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15,
2016) (reduced overall fee award by 10 percent due to excessive and duplicative
billing); Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2016 WL 7212323(Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for
rev. denied, 129 Fed. Cl. 691 (2016). Special masters can reduce a fee request sua
sponte, without providing petitioners notice and opportunity to respond. See Sabella v.
Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
In this case, petitioner is seeking $25,498.00 in attorneys’ fees for work
performed in 2018 through 2020. I have reviewed the billing records submitted with
petitioner’s request, the hourly rates billed for 2018 through 2020 for attorney time,
paralegal time, and law clerk time, have all been set in a prior decision by the Chief
Special Master and I agree that they are all reasonable. Nuss v. Sec’y of Health &
Human Servs., No. 18-1676V, 2020 WL 3498127 (Fed. Cl. Spec. Mstr. May 22, 2020).
Also, I have reviewed the billing records submitted and I find that the hours requested
are all reasonable.
Additionally, attorneys’ costs must be reasonable as well. See Perreira v. Sec’y
of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins
both ‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies
both. Not only must any request for reimbursement of attorneys’ fees be reasonable, so
also must any request for reimbursement of costs.”). I have also reviewed petitioner’s
submission with regard to her requested costs. The costs incurred were all reasonable
and are sufficiently documented.
Accordingly, the requested amount is awarded in full.
III. Conclusion
In light of the above, petitioner’s motion for an award of final attorneys’ fees and
costs is hereby GRANTED and petitioner is awarded $26,507.98, representing
$25,498.00 in attorneys’ fees and $1,009.98 in attorneys’ costs.
Accordingly, I award a total of $26,507.98 as a lump sum in the form of a
check payable to petitioner and her counsel, Kristina Kay Green, Esq.
The clerk of the court shall enter judgment in accordance herewith. 5
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
5
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