Ojeda Colon v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1065V
UNPUBLISHED
RAFAEL FRANCISCO OJEDA Chief Special Master Corcoran
COLON,
Filed: March 4, 2022
Petitioner,
v. Special Processing Unit (SPU);
Attorney’s Fees and Costs;
SECRETARY OF HEALTH AND Reasonable Basis; Influenza (Flu)
HUMAN SERVICES, Vaccine; Guillain-Barré syndrome
(GBS)
Respondent.
Roberto E. Ruiz-Comas, RC Legal & Litigation Services PSC, San Juan PR, for
Petitioner.
Lara A. Englund, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On July 20, 2018, Rafael Francisco Ojeda Colon (“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”). Petitioner alleged that he suffered from Guillain-
Barré syndrome (“GBS”) after receiving an influenza (“flu”) vaccine on October 17, 2013.
Petition at 1.
After a series of briefs from the parties, on June 3, 2021, I issued my decision
dismissing the petition for insufficient proof. (ECF No. 60). Thereafter, on June 22, 2021,
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 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, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all Section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner filed his motion for reconsideration, which I denied on June 30, 2021. (ECF No.
63). Petitioner then filed a motion for review on July 1, 2021. (ECF No. 64). On October
18, 2021, the Court of Federal Claims issued its decision denying Petitioner’s motion for
review. Colon v. Sec’y of Health & Human Servs. 156 Fed. Cl. 534 (Fed. Cl. 2021).
On November 4, 2021, Petitioner filed a motion seeking a total of $67,660.19 in
attorney’s fees and costs. Petition for Reimbursement of Attorneys’ Fees and Costs
(“Fees App.”) (ECF No. 72). Respondent filed a response on November 18, 2021,
indicating that he “respectfully recommends that the Special Master exercise his
discretion and determine whether to award, and/or a reasonable award for, attorneys’
fees and costs” but did not otherwise indicate whether he believed the claim lacked
reasonable basis. Resp. at 4 (ECF No. 73). Petitioner filed a reply on November 19, 2021,
reiterating his belief that the requested fees and costs are reasonable. (ECF No. 74).
For the reasons discussed below, I find there was a reasonable basis for
Petitioner’s claim, and he is otherwise entitled to a fees award despite the dismissal of
his claim.
I. Reasonable Basis
A. Legal Standard
Motivated by a desire to ensure that petitioners have adequate assistance from
counsel when pursuing their claims, Congress determined (consistent with the Vaccine
Act’s liberal fee-shifting provisions) that fees and costs may be awarded in Vaccine Act
claims even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986
U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S.Ct. 1886, 1895 (2013)
(discussing this goal when determining that attorneys’ fees and costs may be awarded
even when the petition was untimely filed); Davis v. Sec’y of Health & Human Servs., 105
Fed. Cl. 627, 634 (2012). Indeed – the Act may be the only federal fee-shifting statute
that permits unsuccessful litigants to recover fees and costs.
However, Congress did not intend that every losing petition automatically result in
an attorney’s fees award. Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377
(Fed. Cir. 1994). And there is a prerequisite to even obtaining fees in an unsuccessful
case. The special master or court may award attorney’s fees and costs in a case in which
compensation was not awarded only if “that the petition was brought in good faith and
there was a reasonable basis for the claim for which the petition was brought.” Section
15(e)(1). Establishing reasonable basis is a first step to a fee award for unsuccessful
cases – but establishing it does not automatically require an award, as special masters
are still empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v.
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Sec'y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these
two requirements are satisfied, a special master retains discretion to grant or deny
attorneys’ fees”).
What is deemed the “reasonable basis” analysis actually involves two
determinations, as the Federal Circuit has explained – a subjective inquiry to assess
whether the petition was brought in good faith, and an objective one to ascertain whether
reasonable basis existed. Simmons, 875 F.3d at 635 (quoting Chuisano v. Sec’y of Health
& Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied
through subjective evidence.” Cottingham, 971 F.3d at 1344. “[T]he ‘good faith’
requirement . . . focuses upon whether petitioner honestly believed he had a legitimate
claim for compensation.” Turner v. Sec’y of Health & Human Servs., No. 99-0544V, 2007
WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).
Cases in which good faith has been found to be lacking often involve petitioners
who failed to produce or actively concealed evidence undermining their claims. Purnell-
Reid v. Sec’y of Health & Human Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl.
Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Human Servs., No. 16-0876V,
2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Human
Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v.
Sec'y of Health & Human Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr.
July 3, 1996).
“Additionally, a petitioner’s attorney’s conduct may also be relevant when
evaluating good faith.” Purnell-Reid, 2020 WL 2203712, at *6. “Counsel still have a duty
to investigate a Program claim even if they reasonably find their client to be a credible
individual.” Cortez v. Sec'y of Health & Human Servs., No. 09-0176V, 2014 WL 1604002,
at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014). Factors, such as a looming statute of limitations
and the conduct of counsel, are properly considered when determining whether good faith
exists – but do not bear on the claim’s objective basis. Simmons, 875 F.3d at 636;
Amankwaa v. Sec'y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018) (“the effort
that an attorney makes to investigate a claim or to ensure that a claim is asserted before
the expiration of the statutory limitations period . . . are properly evaluated in determining
whether a petition was brought in good faith”).
“Reasonable basis, on the other hand, is an objective test, satisfied through
objective evidence.” Cottingham, 971 F.3d at 1344. The reasonable basis requirement
examines “not at the likelihood of success [of a claim] but more to the feasibility of the
claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Human
Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The
Federal Circuit recently explained “that a reasonable basis analysis is limited to objective
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evidence, and that subjective considerations, such as counsel’s subjective views on the
adequacy of a complaint, do not factor into a reasonable basis determination.” James-
Cornelius on Behalf of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed.
Cir. 2021).
Although clearly easier to meet than the preponderant standard required for
compensation, “courts have struggled with the nature and quantum of evidence
necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Human
Servs., --- Fed. Cl. ---, 2021 WL 4188429, at *5 (Fed. Cl. 2021). “[I]t is generally accepted
that ‘a petitioner must furnish some evidence in support of the claim.’” Id. (quoting
Chuisano, 116 Fed. Cl. at 288, emphasis added in Wirtshafter). Citing the prima facie
elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently
instructed that the level of the objective evidence sufficient for a special master to find
reasonable basis should be “more than a mere scintilla but less than a preponderance of
proof.” Cottingham, 971 F.3d at 1345-46. In a prior case, it affirmed a special master’s
determination that reasonable basis was lost after Petitioner’s “expert opinion, which
formed the basis of the claim, was found to be unsupported by either medical literature
or studies.” Perreira, 33 F.3d at 1376.
B. Existence of Reasonable Basis
Good faith is not at issue herein, leaving only for me to determine if the claim
possessed reasonable basis. I previously determined that the evidence in this case did
not preponderantly support the conclusion that Petitioner had suffered the residual effects
of GBS for more than six months. Decision, issued June 3, 2021, ECF No. 60. Petitioner
received the flu vaccine on October 17, 2013. Ex. 2 at 1; Ex. 9 at 1, 3. Although he was
hospitalized for GBS and underwent treatment for this condition, the medical records
reflect that Petitioner was last assessed with GBS sequelae on February 11, 2014 –
approximately four months from onset. Ex. 12 at 9. There are no records thereafter that
document specific treatment or care associated with the GBS that Petitioner experienced
in the fall of 2013.
Nevertheless, Petitioner presented evidence that he suffered from medical issues
that extended well into 2014 and beyond. See, e.g., Ex. 10 at 6 (record from May 1, 2014
documenting “changes in [b]owel habits”); Ex. 10 at 3 (record from July 13, 2015
documenting pelvic fractures). Although I determined that these issues were unrelated to
Petitioner’s GBS diagnosis and that he was unable to satisfy the Vaccine Act’s severity
requirement, there was enough evidence in the record to support bringing the claim – as
this evidence of continued symptoms could have been shown to be GBS-related, and
was reasonably interpreted to support that conclusion in bringing the case. The fact that
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I did not so conclude does not mean that this objective proof did not exist – the core
consideration for determining reasonable basis.
I also note that Respondent has not advanced any argument which challenges the
good faith or reasonable basis of Petitioner’s claim, instead merely noting that special
masters have wide discretion in determining the reasonableness of a petitioner’s request
for attorneys’ fees and costs. I thus find that Petitioner had a reasonable basis to file his
petition in this case, and that reasonable basis continued to exist throughout the time it
was pending before me and the Court of Federal Claims. And there is no other basis for
a denial of fees, despite the claim’s lack of success. Therefore, the only remaining
question is the appropriate amount of the attorney’s fees and costs to be awarded.
II. Appropriate Amount to be Awarded
A. Legal Standard
Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). 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 work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
B. Attorney’s Fees
1. Hourly Rates
Petitioner requests the following rates of compensation for the work of his attorney,
Mr. Roberto Ruiz-Comas: $350 per hour for 2018, $360 per hour for 2019, $370 per hour
for 2020, and $380 per hour for 2021. Motion at 3. These rates are consistent with what
Mr. Ruiz-Comas has previously been awarded for his Vaccine Program work and I find
them to be reasonable for work in the instant case as well. See Rios Morales v. Sec’y of
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Health & Human Servs., No. 18-1190V, 2021 WL 1564460 (Fed. Cl. Spec. Mstr. Mar. 19,
2021). I will therefore apply them in calculating fees.
2. Hours Billed
Upon review, I find the billed hours to be reasonable. The billing entries describe
with sufficient detail the task being performed and the time spent on each task.
Respondent has not identified any particular entries as objectionable and upon review, I
did not find any entries to be objectionable either. Accordingly, Petitioner is entitled to a
final award of attorney’s fees of $62,920.00.
C. Attorney Costs3
Like fees, a request for reimbursement of case-related costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. CL. 1992). Petitioner
requests a total of $4,740.19 in costs, comprised of the Court’s filing fee, translation of
documents, and opinion letters provided by two medical experts, Dr. Jose Carlo and Dr.
Priscilla Llavat. Fees App. at 20. The costs for the filing fee, the translation, and the work
of Dr. Carlo are reasonable, but the work of Dr. Llavat requires further discussion.
Petitioner requests $500.00 for the letter provided by Dr. Llavat. There are two
issues with this cost. First, there is no indication as to how that amount was calculated.
Dr. Llavat’s invoice does not contain an hourly rate, nor does it indicate how much time
Dr. Llavat expended on the preparation of this letter. The invoice is therefore deficient per
the requirements of the Guidelines for Practice Under the National Vaccine Injury
Compensation Program, Section X, which notes that for expert expenses, “the expert’s
services must be identified with particularity in contemporaneous, dated records
indicating the amount of time spent on each task.”4
Second, as I indicated in my Decision denying Petitioner’s motion for
reconsideration, Dr. Llavat’s letter was untimely because Petitioner had ample opportunity
to submit an opinion letter from Dr. Llavat before my Decision. What is more, the letter
did not contain anything which could fairly be construed as new evidence not previously
available. Because it was not reasonable to incur this expense for Dr. Llavat’s letter, I
shall not reimburse it.
3 Petitioner has filed a signed General Order No. 9 statement indicating she incurred no out-of-pocket
litigation costs. (ECF No. 71).
4 The Guidelines are available at www.uscfc.uscourts.gov/sites/default/files/Guidelines-4.24.2020.pdf.
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Conclusion
I have determined that an award of reasonable attorney’s fees and costs is
appropriate in this case even though compensation was not awarded. Section 15(e)(1).
Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a
total of $67,160.19 (representing $62,920.00 in fees and $4,240.19 in costs) as a lump
sum in the form of a check jointly payable to Petitioner and INTOVACC, LLC.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of
the Court), the Clerk shall enter judgment in accordance with this Decision.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
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