Dalton v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ASHLEY DALTON, *
* No. 15-1465V
* Special Master Christian J. Moran
Petitioner, *
v. * Filed: January 30, 2019
*
SECRETARY OF HEALTH * Attorneys’ Fees, Interim Award
AND HUMAN SERVICES, *
*
Respondent. *
*********************
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Justine Walters, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1
Ms. Dalton filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa–10 through 34 (2012) on December 3, 2015. Ms. Dalton
claims that a human papillomavirus vaccine (HPV) vaccine she received on
January 23, 2013 caused her to develop headaches, loss of appetite, insomnia,
numbness and tingling in her extremities, behavioral and mood changes, brain fog,
dizziness, inability to focus, an autoimmune disorder, chronic fatigue, and myalgia.
Petition at 1-2. The underlying injury appears to be dysautonomia. Her counsel of
record is Mr. Andrew Downing.
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
Petitioner filed a motion for an award of attorneys’ fees and costs, requesting
$38,334.50 in fees and $21,798.09 in costs, for a total of $60,132.59. Petitioner is
awarded $52,460.09.
* * *
The procedural history is relatively straightforward. After the Secretary
found the evidence insufficient for compensation (Resp’t’s Rep., filed May 2,
2016), Ms. Dalton developed her case by adding reports from experts. She has
presented reports from four experts: Gireesh Velugubanti (a neurologist), Jill R.
Schofield (an expert in autoimmune disorders), Gordon Miglis (another
neurologist), and Yehuda Shoenfeld (another expert in autoimmune disorders).
The Secretary has responded with reports from two experts: Kenneth Mack (a
neurologist) and James Moy (an immunologist). Presently, Ms. Dalton is planning
to file supplemental reports from Dr. Miglis and Dr. Shoenfeld.
Ms. Dalton filed her pending motion on October 15, 2018. Respondent filed
his response to petitioner’s motion two weeks later. In his response, respondent
did not provide any objection to petitioner’s request. Resp’t’s Resp., filed Oct. 29,
2018, at 2. Instead, respondent stated that he “defers to the Special Master to
determine whether or not petitioner has met the legal standard for an interim costs
award” and whether “the statutory requirements for an award of attorney’s fees and
costs have been met.” Id. Ms. Dalton filed a brief reply, very similar to replies her
attorney has filed in other cases.
This matter is now ripe for adjudication.
* * *
The pending motion raises a series of sequential questions, each of which
requires an affirmative answer to the previous question. First, whether Ms. Dalton
is eligible under the Vaccine Act to receive an award of attorneys’ fees and costs?
Second, whether, as a matter of discretion, Ms. Dalton should be awarded her
attorneys’ fees and costs on an interim basis? Third, what is a reasonable amount
of attorneys’ fees and costs? These questions are addressed below.
1. Eligibility for An Award of Attorneys’ Fees and Costs
As an initial matter, interim fee awards are available in Vaccine Act cases.
Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).
Since Ms. Dalton has not received compensation from the Program, she may be
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awarded “compensation to cover petitioner’s reasonable attorneys’ fees and other
costs incurred in any proceeding on such petition if the special master or court
determines that the petition was brought in good faith and there was a reasonable
basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). As the Federal Circuit has
stated, “good faith” and “reasonable basis” are two separate elements that must be
met for a petitioner to be eligible for attorneys’ fees and costs. Simmons v. Sec'y
of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).
“Good faith” is a subjective standard. Id.; 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 honestly believes 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). The Secretary has
not challenged petitioner’s good faith here, and there is little doubt that petitioner
brought the claim with an honest belief that a vaccine injury occurred.
In contrast to good faith, reasonable basis is purely an objective evaluation
of the weight of the evidence. Simmons, 875 F.3d at 636. Because evidence is
“objective,” the Federal Circuit’s description is consistent with viewing the
reasonable basis standard as creating a test that petitioners meet by submitting
evidence. See Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013
WL 6234660 at *12-13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that
reasonable basis is met with evidence), mot. for rev. denied, 116 Fed. Cl. 276
(2014). Collectively, the reports from the experts constitute a reasonable basis.
2. Appropriateness of an Interim Award
Interim awards should not be awarded as a matter of right. Avera, 515 F.3d
at 1352 (Fed. Cir. 2008). Instead, petitioners must demonstrate “undue hardship.”
Id. The Federal Circuit noted that interim fees “are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” Id.
The Circuit has also considered whether petitioners faced “only a short delay in the
award” before a motion for final fees could be entertained. Id.
The Federal Circuit has not attempted to specifically define what constitutes
“undue hardship” or a “protracted proceeding.” In the undersigned’s practice,
interim fees may be appropriate when the amount of attorneys’ fees exceeds
$30,000 and the case has been pending for more than 18 months. Ms. Dalton
clears both hurdles. It is also notable that Ms. Dalton is not likely to have a
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hearing on entitlement held prior to 2021. Accordingly, an interim fee award for
Ms. Dalton is appropriate.
3. Reasonableness of the Requested Amount
Under the Vaccine Act, a special master may award reasonable attorneys’
fees and costs. 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are
calculated by multiplying a reasonable hourly rate by a reasonable number of hours
expended on litigation, the lodestar approach. Avera, 515 F.3d at 1347-48
(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton ex rel. v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). The undersigned is
obligated to assess the reasonableness of the request for attorneys' fees and costs
regardless of the lack of objection from the Secretary. See McIntosh v. Sec'y of
Health & Human Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rate
A petitioner’s counsel in the Vaccine Program is paid the forum rate unless
the bulk of the work is performed in a locale other than the forum (District of
Columbia) and the local rate is significantly lower than the forum rate. Avera, 515
F.3d at 1349. If these two requirements are met, the Davis County exception
applies, and petitioner’s counsel is paid according to the local rate to avoid a
“windfall.” Id.; see Davis Cty. Solid Waste Mgmt. and Energy Recovery Special
Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755, 757-60 (D.C. Cir.
1999).
Reasonable hourly rates for Mr. Downing and his associates have been set
previously. See Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 2017
WL 2480936 (Fed. Cl. Spec. Mstr. May 11, 2017). To adjust for the excessive
hourly rates proposed here, $1,672.50 is deducted.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary did not challenge any of the requested hours as unreasonable.
The billing entries are sufficiently detailed to conclude that the time Mr.
Downing, his associate, and his paralegals spent working on Ms. Dalton’s case was
reasonable.
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C. Costs
Ms. Dalton requests $21,798.09 in costs incurred by her attorney. Pursuant
to General Order No. 9, Ms. Dalton filed a statement confirming that she did not
incur any costs personally. Exhibit 136. The requested amount includes costs
associated with retrieving medical records, the court filing fee, shipping, and
expert fees. The routine (non-expert) costs, which total $1,458.09 are reasonable.
The remainder, $20,340.00, concerns the costs for expert reports. These
costs include: $1,750.00 for Dr. Schofield (Pet’r’s Fees Mot., exhibit A, at 66);
$8,090.00 for Dr. Shoenfeld (id. at 70); and, $4,500.00 for Dr. Miglis (id. at 72-
74).2 The amounts requested for these three experts are reasonable.
Ms. Dalton also seeks $6,000.00 for work Dr. Velagubanti performed. This
cost is DENIED WITHOUT PREJUDICE to renew the request. When and if Ms.
Dalton resubmits an invoice for Dr. Velagubanti, she should address his
background and suitability as an expert witness.
* * *
Accordingly, petitioner is awarded:
A lump sum of $52,460.09 in the form of a check made payable to
petitioner and petitioner’s attorney, Andrew Downing.
This amount represents reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). 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.
s/Christian J. Moran
Christian J. Moran
Special Master
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In future requests, Dr. Miglis should show how he billed against a retainer.
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