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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-785V
(Not to be published)
*****************************
*
CYNTHIA HAMILTON and ROBERT *
HAMILTON, parents and natural guardians of *
R.M.H., a minor, *
* Filed: April 12, 2018
Petitioners, *
* Attorney’s Fees & Costs; Reasonable
v. * Basis; Final Award.
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*****************************
Robert Joel Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioners
Ann Donohue Martin, U.S. Dep’t of Justice, Washington, DC, for Respondent
DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On August 28, 2014, Cynthia and Robert Hamilton filed an action on behalf of their minor
child, R.M.H., seeking compensation under the National Vaccine Injury Compensation Program.
The Petition alleged that the Haemophilus Influenza Type B (“Hib”), MMR, Pneumococcal
(“Prevnar”), and Hepatitis B vaccines that R.M.H. received on August 30, 2011, and the Varicella,
DTaP, and Influenza (“flu”) vaccines received on November 2, 2011, caused R.M.H to develop
chronic encephalopathy, manifesting as autism-like symptoms. See Petition (“Pet.”) at 1-4.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s 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 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
1
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated March
12, 2018. See generally Final Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 45).
Petitioners request reimbursement of attorney’s fees in the amount of $26,269.94 (representing
$25,657.80 in attorney’s fees and $612.14 in costs). Id. at 2.
For the reasons stated below, I hereby GRANT Petitioner’s Motion, awarding attorney’s fees in
the total amount of $26,269.94.
Factual and Procedural History
A. Case Facts Relevant to Dismissal
As the August 2014 Petition alleged, R.M.H received a variety of vaccinations in August
2011 and November 2011, which Petitioners argue caused R.M.H. to develop chronic
encephalopathy subsequently manifesting as developmental regression/autism-like symptoms.
Although it is now well settled in the Vaccine Program that claims alleging a link between
vaccinations are highly likely to be unsuccessful, given the results of the Omnibus Autism
Proceedings (“OAP”) cases plus numerous cases decided since then, Petitioners filed their claim
in 2014 alleging a purportedly new causation theory based on a vaccine-induced aggravation of an
underlying mitochondrial disorder and a resulting encephalopathy. This “new” theory of causation,
however, mirrored arguments set forth in many post-OAP cases, which resulted in decisions
denying entitlement due to the insufficiencies in the scientific evidence offered in support. See,
e.g., Anderson v. Sec’y of Health & Human Servs., No. 02-1314V, 2016 WL 8256278 (Fed. Cl.
Spec. Mstr. Nov. 1, 2016), mot. for review den’d, 131 Fed. Cl. 735 (2017), aff’d, 2018 WL 1673373(Fed. Cir. Apr. 6, 2018); T.M. v. Sec’y of Health & Human Servs., No. 08-284V (Fed. Cl. Spec.
Mstr. Aug. 9, 2016), mot. for review den’d, 133 Fed. Cl. 78 (2017); Holt v. Sec’y of Health &
Human Servs., No. 05-136V, 2015 WL 4381588, at *2-3 (Fed. Cl. Spec. Mstr. June 24, 2015).
Consistent with the above, Petitioners were unable herein to show that R.M.H. suffered
any type of acute encephalopathic injury after receipt of his vaccinations – and furthermore could
not provide reliable evidence linking the vaccines at issue to R.M.H.’s resulting developmental
problems. More specifically, R.M.H. showed no signs of an encephalopathy following vaccination.
Rather, doctor’s notes from close-in-time visits indicate that he received treatment for itchy skin
and allergies (Ex. 38 at 15), dermatitis (Ex. 38 at 10), and otitis media (Ex. 38 at 7). Furthermore,
it does not appear that any of R.M.H.’s treating physicians linked his regression/autism-like
symptoms to his vaccinations. See, e.g., Ex. 38 at 2; Ex. 10-1 at 3; Ex. 45 at 3.
B. Case Progression and Dismissal
2
This action was initiated roughly three and half years ago. Pet. at 1. According to the billing
record, Petitioners’ counsel, Mr. Robert Krakow, began reviewing the file and obtaining medical
records in early August 2014 (about two weeks prior to filing the case). Mr. Krakow filed the case
on August 28, 2014, and thus continued to work to obtain additional medical records in the
following months. Because R.M.H. received his first round of vaccinations relevant to this claim
on August 30, 2011, the earliest possible limitations cutoff for the claim was August 30, 2014.2
Thus, from the start of his involvement in this case, Mr. Krakow was under some time pressure to
evaluate its merits.
Mr. Krakow began reviewing medical records in early August 2014, although the record
reveals that the majority medical records were filed between late November 2014 and June 2015
(it appears that counsel filed records intermittently thereafter, or through April 2016). See ECF
No. 37. Respondent filed the Rule 4(c) Report on August 31, 2015 (ECF No. 31). According to
the billing invoices, Mr. Krakow specifically reviewed pediatric records and clinic notes on August
13, 2014. Ex. 51, Tab 2 (ECF No. 45-2) to Fees App. at 1. Thus, it is likely that counsel was aware
of some of the claim’s deficiencies at this time. Id. (referencing August 13, 2014 telephone
conversation with Petitioners “re case mito [sic], and chronology and contemporaneous records
issue”). I note, however, that as of August 2014, I had not heard or decided any cases alleging
autism as an injury as a result of an encephalopathic injury caused by underlying mitochondrial
dysfunction (although other special masters had heard such a theory - and found it wanting. See
Bast v. Sec’y of Health & Human Servs., No. 01-565V, 2012 WL 6858040 (Fed. Cl. Spec. Mstr.
Dec. 20, 2012), aff’d, 117 Fed. Cl. 104 (2014).
Following a telephonic status conference on April 25, 2016, I issued an Order staying this
matter until August 31, 2016, due to other parallel proceedings involving autism injury claims then
pending review at the Court of Federal Claims or the Court of Appeals for the Federal Circuit that
might bear on the case’s resolution. See Order, dated Apr. 27, 2016 (ECF No. 39). Despite these
pending cases, I informed Petitioners that their claim might have reasonable basis problems,
because portions of Petitioners’ causation theory had been repeatedly rejected in numerous recent
post-OAP cases. In that same Order, I also explained to Petitioners that the medical record
evidence offered in the present matter largely did not support their claim. Id. Upon preliminary
review, the medical records showed little evidence of a vaccine-induced encephalopathic reaction.
Id.The case remained stayed until June 30, 2017. On July 6, 2017, I issued an Order directing
Petitioners to discuss with counsel the likelihood that their claim remained viable in light of the
2
See Section 16(a)(2). Careful Program counsel often make sure to file a claim no later than three years from the date
of administration of the vaccine at issue, even though the statute runs from the onset of symptoms (whether or not
they are recognized at the time as such.)
3
decisions from the Court of Federal Claims (dismissing similar causation theories as
unpersuasive). Petitioners thereafter filed a motion to dismiss on August 18, 2017, acknowledging
that they did not expect to be able to establish entitlement in this case. ECF No. 40. I issued a
decision dismissing the case for insufficient proof on September 11, 2017 (ECF No. 41).
C. Fee Application
On March 12, 2018, Petitioners filed a motion seeking a final award of attorney’s fees and
costs. Motion, dated Mar. 12, 2018 (ECF No. 45) (“Fees App.”). The present fees motion requests
an award for time incurred for work on the matter between August 2014 and March 2018.
Petitioners seek fees for the work of counsel, Mr. Robert Krakow, plus some paralegal tasks
performed by the same counsel (but billed at a paralegal rate). In particular, Petitioners request
$26,269.94 (representing $25,657.80 in attorney’s fees and $612.14 in costs). Ex. 51, Tab 2 to
Fees App. (ECF No. 45-2) at 17. In accordance with General Order No. 9, Petitioners indicate that
they have incurred costs related to the matter, totaling $400.00. Fees App. at 2.3
Respondent filed a document reacting to the fees request on March 26, 2018, indicating
that she is satisfied that the statutory requirements for an award of attorney’s fees and costs are
met in this case, but deferring to my discretion the determination of the amount to be awarded.
ECF No. 47 at 2-4. Petitioner filed a Reply on that same day, affirming that he fully relies on the
facts, law, and arguments set forth in his fee application. (ECF No. 48).
Although Respondent did not challenge Petitioners’ fee request on reasonable basis
grounds, Petitioners argue that an award of attorney’s fees and costs is nonetheless warranted in
this case. Fees. App. at 3. In their fee application, Petitioners maintain counsel acted expeditiously
in reviewing R.M.H.’s records and in monitoring developments in the case law and medical
research related to the medical theory relied on to support causation in this matter. Id. Petitioners
assert that counsel performed the majority of his work on this matter prior to my Order staying the
case (pending resolution of other post-OAP cases centering on a similar medical theory). Id.Thereafter, Petitioners note that counsel performed only wind-down actions following the stay,
once I raised concerns regarding the claim’s overall viability. Id. at 3-4, 8.
Analysis
3
Petitioners stated in their fee application that they directly incurred the $400 filing fee pursuant to the General Order
No. 9. Fees App. at 2. Petitioners indicated that the General Order No. 9 Statement was filed as Ex. 51, Tab 5 to their
application. Id. However, Tab 5 was never filed. I will reimburse Petitioners for the filing fee, but I deem all other
personal costs waived in light of Petitioners’ failure to file the correct documentation.
4
I. Reasonable Basis Standard
I have in prior decisions set forth at length the relevant legal standards governing attorney’s
fees awards in unsuccessful cases, and in particular the criteria to be applied when determining if
a claim possessed “reasonable basis.”4 See, e.g., Allicock v. Sec’y of Health & Human Servs., No.
15-485V, 2016 WL 3571906 at 4-5 (Fed. Cl. Spec. Mstr. May 26, 2016), aff’d on other grounds,
128 Fed. Cl. 724 (2016); Gonzalez v. Sec’y of Health & Human Servs., No. 14-1072V, 2015 WL
10435023, at *5-6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short, a petitioner can receive a fees
award even if his claim fails, but to do so he must demonstrate the claim’s reasonable basis through
some objective evidentiary showing and in light of the “totality of the circumstances.” The nature
and extent of an attorney’s investigation into the claim’s underpinnings, both before and after
filing, is a relevant consideration. Cortez v. Sec’y of Health & Human Servs., No. 09-176V, 2014
WL 1604002, at *6 (Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma v. Sec’y of Health & Human
Servs., No. 90–3277V, 1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993) (citing Lamb
v. Sec'y of Health & Human Servs., 24 Cl. Ct. 255, 258–59 (1991)).
The Court of Federal Claims recently provided further illumination as to the standards that
should be used to evaluate if the totality of the circumstances warrant a finding that reasonable
basis existed. Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567 (2017), remanded
to 2017 WL 6816709 (Fed. Cl. Spec. Mstr. Dec. 12, 2017), appeal docketed, No. 15-1291V (Fed.
Cl. Jan. 1, 2018). As Judge Williams therein stated, a special master should consider “the novelty
of the vaccine, scientific understanding of the vaccine and its potential consequences, the
availability of experts and medical literature, and the time frame counsel has to investigate and
prepare the claim.” Id. at 574.
An even more recent Federal Circuit decision also casts doubt on the weight to be given to
the statute of limitations factor under the “totality of the circumstances” analysis. Simmons v. Sec’y
of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (finding “[w]hether there is a
looming statue of limitations deadline . . . has no bearing on whether there is a reasonable factual
basis for the claim raised in the petition”).5 In a past decision, I determined that Simmons is best
4
Although good faith is one of the two criteria that an unsuccessful petitioner requesting a fees award must satisfy, it
is an easily-met one – and Respondent does not question it in this case. Grice v. Sec’y of Health & Human Servs., 36
Fed. Cl. 114, 121 (1996) (in the absence of evidence of bad faith, special master was justified in presuming the
existence of good faith).
5
The Simmons decision also took into consideration a number of facts that bear on its conclusion, including that (a)
the Simmons claimant had never offered any objective proof that he had experienced GBS, despite ample time to do
so, and (b) instead, the claimant relied solely on the need to act in the face of the limitations period expiration.
Simmons, 875 F.3d at 635. Thus, the Court determined that “because the special master only found that there was a
reasonable basis for [the claim] because of the impending statute of limitations deadline,” the award of fees constituted
a misapplication of the law, and was a reversible abuse of discretion. Id. (emphasis added). In the present case, I find
such facts to be wholly distinguishable. Here, counsel possessed adequate objective proof (in the form of medical
5
understood to hold that the pending expiration of the Vaccine Act’s statute of limitations period is
“by itself not grounds for a reasonable basis finding, as it does not constitute objective evidence in
support of the claim.” Amankwaa v. Sec’y of Health & Human Servs., No. 17-036V, 2018 WL
1125853, at *7 (Fed. Cl. Spec. Mstr. Jan. 5, 2018), appeal docketed, No. 17-036V (Fed. Cl. Jan.
31, 2018). Thus, in my view, Simmons does not expressly or impliedly alter or abrogate the totality
of the circumstances test, but rather “emphasizes the need for petitioners to locate objective proof
supporting a claim[,]” exclusive from the claim’s looming expiration of statute of limitations
period. Id.II. Petitioners’ Claim Had Sufficient Reasonable Basis for a Fees Award
Although Respondent does not challenge reasonable basis in this case, I find it necessary
to address the topic in my analysis. Based on my review of the case history, coupled with the
evidence of counsel’s course of representation of Petitioner as set forth in the billing records, I find
that the claim did possess sufficient reasonable basis at the relevant time for a fees award, despite
its evident underlying weakness.
To begin, a significant consideration is the autism/developmental nature of the injury
alleged in the preset matter. As noted above, Petitioners allege that R.M.H. suffered from a
vaccine-induced encephalopathy (manifesting as autism-like symptoms) due to an underlying
mitochondrial disorder. There is no doubt that claims involving a vaccine-induced autism injury
have been unsuccessful in the Vaccine Program. Claims alleging that vaccines cause autism have
failed repeatedly, as reflected in the decisions rendered in the OAP as well as those thereafter.6
Thus, the special masters have been applying heightened scrutiny to any newly-filed autism injury
cases (given the countless ones previously, and unsuccessfully, litigated), and often encourage
petitioners asserting such claims to dismiss because of the high likelihood that the claim will fail,
resulting in a waste of judicial resources. Having represented many such claimants in the past, Mr.
Krakow is well-versed in the deficiencies surrounding such a claim. See, e.g., R.V., 2016 WL
3882519; T.M. v. Sec’y of Health & Human Servs., No. 08-284V (Fed. Cl. Spec. Mstr. Aug. 9,
2016), mot. for review den’d, 133 Fed. Cl. 78 (2017).
record evidence) to file the claim and determine that additional documentation was needed to further investigate the
underlying causation theory.
6
Other special masters have invoked reasonable basis as a justification for dramatically cutting back fees requests in
unsuccessful autism cases even where the claims were tried, in whole or part. See, e.g., Hardy v. Sec'y of Health &
Human Servs., No. 08–108V, 2016 WL 4729530 (Fed. Cl. Spec. Mstr. Aug. 16, 2016) (awarding less than $8,000 of
request for approximately $41,000 in fees and costs in autism claim that was tried, where special master determined
case lacked reasonable basis despite trial); Hashi v. Sec'y of Health & Human Servs., No. 08–307V, 2016 WL 5092917(Fed. Cl. Spec. Mstr. Aug. 25, 2016) (awarding less than half of request for approximately $31,000 in fees and costs
in unsuccessful autism case, based on lack of reasonable basis).
6
At the time this case was filed in 2014, however, the relevant medical records contained
evidence supporting in some respects the new causation theory on which Petitioners relied. As
noted previously, Petitioners described this theory as a significant aggravation of a “metabolic
disorder and/or a mitochondrial disorder” resulting in a “chronic encephalopathy manifested as
autism-like symptoms and related conditions.” Pet. at 23-24. This theory of causation mirrored
arguments set forth in many former OAP cases (that resulted in decisions denying entitlement and
dismissing the theory as unpersuasive), but which had not been decided at this time. See, e.g., Pope
v. Sec’y of Health & Human Servs., No. 14-078V, 2017 WL 2460503 (Fed. Cl. Spec. Mstr. May
1, 2017); Cunningham v. Sec’y of Health & Human Servs., No. 13-483V, 2016 WL 4529530 (Fed.
Cl. Spec. Mstr. Aug. 1, 2016), mot. for review den’d, 2017 WL 1174448 (Fed. Cl. Jan. 25, 2017);
Holt v. Sec’y of Health & Human Servs., No. 05-136V, 2015 WL 4381588, at *2-3 (Fed. Cl. Spec.
Mstr. June 24, 2015). Thus, at the time this case was filed, the theory was still pending review
before other special masters—the very reason I proposed to stay the case until decisions were
issued. I thus do not find that Mr. Krakow erroneously pursued this claim in light of its underlying
nature, given what was then known about this claim.
I also agree with Petitioners that counsel acted appropriately in attempting to represent
Petitioners while taking note of my concerns about the claim’s viability. As the billing record
reveals, Mr. Krakow expeditiously reviewed Petitioners’ claim and worked to determine its
likelihood of success in light of the new causation theory. See generally Ex. 51, Tab 2 to Fees App.
He obtained medical records in August 2014, reviewed those, and determined that additional
records were needed to properly evaluate the claim. Mr. Krakow continued to work expeditiously
up until I issued a stay in the case in April 2016 and sought dismissal promptly when I voiced my
concerns about the claim’s viability following the pending decisions issued in similar cases.
Although the billing invoices offered in support of the present fees motion demonstrate
that counsel filed this claim without the benefit of a full review of the record, the records counsel
did possess revealed some possible deficiencies with Petitioners’ claim. For instance, in the
Petition, Petitioners allege that R.M.H. suffered from “a neurodevelopmental disorder,” but then
later claim that R.M.H suffered from an encephalopathy manifesting as autism-like symptoms.
Pet. at 2-4. Upon review, however, the medical records generally support diagnoses related to
developmental regression/autism only – not evidence of an encephalopathic reaction. See, e.g., Ex.
25, 27; Ex. 38 at 17; Ex. 38 at 2-3; Ex. 45 at 3-5; Ex. 46 at 1-2. However, the records counsel did
possess at the time of filing (including records from the Frye Clinic and other pediatric records)
showed evidence of developmental regression and the possibility of an underlying mitochondrial
disorder (a theory which, at the time of filing, was being litigated in other Program cases). See Ex.
51, Tab 2 to Fees App. at 1. Thus, this case is not one where the claim’s feasibility could have
been fully vetted prior to its filing, and did warrant additional investigation.
7
My analysis is not complete, however. I must determine, based on the totality of the
circumstances and the evidentiary showing, if reasonable basis ended sometime after filing but
before dismissal. It is recognized that cases can lose reasonable basis as they progress, and as
evidence is adduced casting doubt on a claim’s strength. Curran v. Sec'y of Health & Human
Servs., No. 15–804V, 2016 WL 4272069 (Fed. Cl. Spec. Mstr. June 22, 2016), aff'd in part and
remanded on other grounds, 130 Fed. Cl. 1, 11 (Jan. 3, 2017). I find that reasonable basis existed
through the time I ordered the matter stayed. Until then, counsel’s prosecution of this claim was
proper; he subsequently performed only wind-down costs following my own warnings regarding
the claim’s overall viability (and the release of pending decisions dismissing Petitioners’ causation
theory).
This claim likely would not have been successful considering the underlying injury alleged,
and therefore was properly dismissed. But it has long been understood that the success of a claim
is not determinative of the claim’s reasonable basis, an inquiry which considers whether objective
proof exists to support it. See Livingston v. Sec’y of Health & Human Servs., No. 12-268V, 2015
WL 4397705, at *6 (Fed. Cl. Spec. Mstr. June 26, 2015) (“An assessment of reasonable basis looks
not to the likelihood of success but more to the feasibility of the claim.” (internal quotation marks
omitted)). Here, that test is satisfied, and therefore the case had sufficient reasonable basis through
its dismissal for a fees award.
Determining here that counsel should receive fees for an autism claim like that asserted
herein presents a close case. Had the claim been filed after some of my own autism decisions (all
of which have been upheld on appeal), I would likely take a more dim view at awarding any fees,
and would also likely cut back the fees to be awarded. However, because counsel in this case was
amenable to the matter being stayed thereby demonstrating, and because the filing of the claim (as
well as counsel's initial investigation of the claim's viability) preceded the bulk of the decisions
bearing on the theory at issue, I do not find that reasonable basis should have ended sooner than
my stay order - and hence an award of fees through that date is appropriate.
III. Calculation of Fee Award
Determining the appropriate amount of a fees award is a two-part process. The first part
involves application of the lodestar method – “multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888
(1984)). The second part involves adjusting the lodestar calculation up or down. Avera, 515 F.3d
at 1348.
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
8
proper hourly rate on the forum in which the relevant court sits (Washington, DC, for Vaccine Act
cases), except where an attorney’s work was not performed in the forum and there is a substantial
difference in rates (the Davis exception). Avera, 515 F.3d at 1348 (Fed. Cir. 2008, citing Davis
Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169
F.3d 755, 758 (D.C. Cir. 1999)). As the Federal Circuit stated in Avera, inclusion of the Davis
exception ensures against a “windfall” – meaning paying a lawyer in a rural or less expensive
locale more than she would otherwise earn, simply because she is litigating a case in a court of
national jurisdiction. Avera, 515 F.3d at 1349. After the hourly rate is determined, the
reasonableness of the total hours expended must be determined. Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 205-06 (2009). This inquiry mandates consideration of the work
performed on the matter, the skill and experience of the attorneys involved, and whether any waste
or duplication of effort is evident. Hensley v. Eckerhart, 461 U.S. 424, 437(1983).
With all of the above in mind, I turn to Petitioners’ request. Petitioners ask that counsel,
Mr. Krakow, be reimbursed at varying rates for work performed from 2014-2018. Petitioners
request $396 per hour for Mr. Krakow’s work in 2014, with increases to $413 per hour in 2015,
$425 per hour in 2016, and $435 per hour in 2017-2018. See Ex. 51, Tab 2 to Fees App. at 18.
Petitioners request rates ranging from $125-$140 per hour for paralegal work (completed by Mr.
Krakow, but billed at a lower rate) completed in 2015-2018. Id.In my past decisions, I have determined that Mr. Krakow’s firm, located in New York, is
entitled to forum rates. See, e.g., Laderer v. Sec’y of Health & Human Servs., No. 09-097V, 2016
WL 3044838, at *3 (Fed. Cl. Spec. Mstr. Apr. 20, 2016). In addition, Chief Special Master Dorsey
recently awarded the increased rate requested herein for 2017 for Mr. Krakow and his paralegal
time (which he sometimes performs but bills at the lower rate). See Moxley v. Sec’y of Health &
Human Servs., No. 006-213V, 2017 WL 5080289 (Fed. Cl. Spec. Mstr. Oct. 12, 2017).
Furthermore, Mr. Krakow’s request of $435 per hour for work completed in 2018 (which is the
same as his rate for 2017) is reasonable, and consistent with the form rate chart set forth on the
Court of Federal Claims’s website,7 and will be awarded.
The majority of the hours expended on this matter (76.50 hours in total) appear to be
reasonable in light of the facts discussed above, since they reflect work performed on this matter
before mid-2016. Petitioners’ counsel also efficiently used his time to resolve the case. I do not
find any particular billing entries to be objectionable, nor has Respondent identified any as such.
Therefore, the requested hours will be reimbursed in full.
7
See Office of Special Masters Attorneys’ Hourly Rate Fee Schedule: 2018,
https://www.uscfc.uscourts.gov/node/2914 (last accessed on Apr. 3, 2018).
9
Finally, Petitioners also request that counsel be reimbursed for $612.14 in costs
(representing the filing fee, medical records requests, and postage costs). Ex. 51, Tab 2 to Fees
App. at 18. The costs requested by Petitioners also appear to be reasonable and will be awarded.
CONCLUSION
For the aforementioned reasons, I award a total of $25,869.94 (representing $25,657.80 in
attorney’s fees and $212.14 in costs) as a lump sum in the form of a check jointly payable to
Petitioners and Petitioners’ counsel, Robert Krakow, Esq. A check for $400.00 should also be
made payable to Petitioners directly for costs personally incurred during this matter. In the absence
of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to
enter judgment herewith.8
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
8
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.
10