D. Golmakani v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-577V
Filed: July 7, 2013
************************************* TO BE PUBLISHED
D. GOLMAKANI, *
*
Petitioner, * Special Master Zane
*
v. *
* Interim attorneys’ fees and costs;
SECRETARY OF HEALTH * Withdrawal of counsel; Protracted
AND HUMAN SERVICES, * proceedings; Undue hardship
*
Respondent. *
*
*************************************
Zane, Special Master.
Lisa Roquemore, Law Offices of Lisa A. Roquemore, Irvine, CA, for Petitioner;
Justine E. Daigneault, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM
ATTORNEYS’ FEES AND COSTS1
Pending before the special master is Petitioner’s Motion for Interim Fees and Costs, in
connection with work performed by her former counsel, to which Respondent objects. As
explained below, upon consideration of the record as a whole, the motion is GRANTED as to
the amounts to which Respondent does not object.
1
Because this decision contains a reasoned explanation for the special master's action in this
case, the special master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). All decisions of the special master will be made available to the public
unless they contain trade secret or commercial or financial information that is privileged and
confidential, or medical or similar information the disclosure of which would clearly be an
unwarranted invasion of privacy. When such a decision, ruling or designated substantive order is
filed, a party has 14 days to file a motion to redact such information, which should include a
proposed redacted decision, before the document’s disclosure. If the special master, upon review
of a timely filed motion, agrees that the identified material fits within the categories listed above,
the special master shall redact such material from the version made available to the public. 42
U.S.C. § 300aa–12(d)(4); Vaccine Rule 18(b).
1
I. BACKGROUND
A. Initial Filing and Submission of Medical Records
On September 9, 2011, D. Golmakani2 (“Petitioner”), represented by her former counsel,
Robert J. Krakow, filed a petition for compensation under the National Childhood Vaccine
Injury Act of 1986, 42 U.S.C. §300aa-1, et seq., as amended (“Vaccine Act”).3 Petitioner alleges
as a result of receiving the influenza (“flu”) vaccination on August 23, 2009 she suffers from “an
auto-immune injury affecting the autonomic nervous system characterized by symptoms of
postural orthostatic tachycardia syndrome, postprandial hypotension and continuous cerebral
hypoprefusion” as well as a cognitive disorder and other symptoms. Petition, ¶¶ 9, 40-41.
For ten (10) months following the filing of the petition, Petitioner was represented by
Robert J. Krakow. During that time, Mr. Krakow procured and filed hundreds of pages of
medical records and other documentation required by the Vaccine Act. See Petitioner’s Exhibit
1-59. Mr. Krakow experienced particular difficulty in procuring medical records from one
physician, who refused to release records to Petitioner. See, e.g., Petitioner’s Exhibit 56 at 2;
Petitioner’s Status Report Regarding Medical Record Production, ¶ 14. As a result, it was not
until December 2012, fifteen (15) months after the filing of the petition, that Petitioner advised
the Court that all outstanding medical documents had been filed. Statement of Completion at 1-
2. Moreover, Mr. Krakow exerted a significant amount of effort in attempting to convert
pertinent video files into a proper format for submission to the Court.4 By January 2013,
Petitioner had submitted over 700 video files, 650 of which are viewable. See Petitioner’s
Exhibit 58.
B. Petitioner’s Former Counsel’s Motion to Withdraw and Motion for Interim Fees
and Costs
On June 15, 2012, Petitioner’s former counsel, Mr. Krakow informed the Court that
Petitioner no longer wished that he represent her in this case. On July 16, 2012, Mr. Krakow
filed his Motion to Withdraw as Attorney of Record for Petitioner (“Motion to Withdraw”). One
day later, on July 17, 2012, Mr. Krakow filed his Motion for Interim Attorney’s Fees and
Reimbursement of Disbursements and Costs (“Motion for Interim Fees”).
2
Petitioner recently notified the Court that she had changed her surname from “Golmakani” to
“Guerriére,” but she has not filed a Motion to Amend the Caption. Petitioner’s Exhibit 63 at 1.
3
Part 2 of the Vaccine Act established the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10 through § 300aa-34 (2006) (“Vaccine Program”).
4
Initially, Petitioner possessed approximately fifty (50) hours of video, stored in 100 separate
files. These files were in three formats, a Windows-compatible format, a MAC-compatible
format and proprietary format, Final Cut Pro. Because the format available for Court filings is
Windows-based, originally, the Mac and Final Cut Pro compatible versions could not be viewed
by the Court or Respondent’s counsel. Subsequently, after several months and with the
assistance of the Court’s IT staff, most of the videos are viewable with the exception of those in
the Final Cut Pro format.
2
On that same day, a status conference was held with Petitioner, Mr. Krakow, and Ms.
Debra Begley, who appeared on behalf of Respondent. The parties discussed Mr. Krakow’s
Motion to Withdraw as well as his Motion for Interim Fees. Petitioner stated that she had no
objection to Mr. Krakow’s Motion to Withdraw or Motion for Interim Fees. Petitioner advised
that she was in the process of obtaining new counsel. Respondent did not object to Mr.
Krakow’s Motion to Withdraw, but she opposed Mr. Krakow’s Motion for Interim Fees.
Mr. Krakow agreed to remain counsel of record until Petitioner either obtained new
counsel or resolved to proceed pro se. As an officer of the Court, Mr. Krakow agreed to
facilitate the filing of additional medical records while he remained counsel of record although
he informed the special master that he would take no position with respect to substantive matters
in the case. Eventually, on October 2, 2012, Petitioner filed a Motion to Substitute Attorney of
Record, and Lisa A. Roquemore became Petitioner’s new counsel.
Petitioner initially requested $62,817.00 for interim fees and costs. This consisted of
$62,355.35 in attorney’s fees and $461.65 for expenditures such as the procurement of medical
records and postage. Motion for Interim Fees at 2, 4.5
On May 31, 2013, Respondent responded to the Motion for Interim Fees (“Respondent’s
Response to Motion for Interim Fees”). First, Respondent argued that interim fees are not
appropriate prior to either an award of compensation or entry of judgment denying
compensation. Respondent’s Response to Motion for Interim Fees at 4. Second, Respondent
argued that even if interim fees are authorized, it appeared that Petitioner’s former counsel was
seeking payment of fees solely due to his withdrawal and that withdrawal alone was not a reason
for awarding fees on an interim basis. Id. at 6.
As to the amounts requested, Respondent initially objected to the hourly rates and
number of billed hours employed. Respondent’s Response to Motion for Interim Fees at 7-8.
However, Respondent informed the Court that after some discussion, Mr. Krakow informally
agreed to decrease his request for fees and costs incurred by $17,855.35. As a result, Petitioner
now requests $44,961.65, an amount to which Respondent does not object. Id. at 8.
On July 1, 2013, Petitioner filed her reply to Respondent’s Opposition. Petitioner
disputed Respondent’s positions regarding the appropriateness of an award of interim fees in this
case. Petitioner acknowledged agreement to the amount of $44,961.65 for former counsel’s fees.
5
Petitioner’s Motion for Interim Fees was initially stayed until the time Petitioner’s former
counsel actually withdrew. This was, in part, to determine whether Petitioner would continue
with the case or seek a ruling on the record. If Petitioner had sought a ruling on the record and
the case decided, the request for interim fees would have been transformed into a request for
final fees. Moreover, following the appearance of new counsel and a status conference, a
schedule was set for the filing of Respondent’s response. Respondent requested 90 days to
respond and later requested additional time, eventually filing her response on May 31, 2013.
3
Petitioner’s Motion for Interim Fees is now ready for decision.6
II. APPLICABLE LEGAL STANDARDS
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42
U.S.C. § 300aa-15(e)(1). This provision permits an award of fees even when a petitioner does
not prevail. Id. In so doing, this provision ensures the existence of a competent bar willing to
represent those potentially injured by vaccinations. Saunders v. Sec’y of Health & Human
Servs., 25 F.3d 1031, 1035-36 (Fed. Cir. 1994) (a secondary purpose of the Vaccine Act, to
ensure that vaccine-injury claimants will have readily available a competent bar to prosecute
their claims under the Act, is effected by permitting the award of attorneys’ fees and costs both
to prevailing and non-prevailing claimants).
When compensation is not awarded, reasonable fees can still be awarded as long as it is
shown that the petition was filed in good faith and there was a reasonable basis for it. 42 U.S.C.
§ 300aa-15(e)(1); Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir.
2010). Good faith requires only a subjective belief that a vaccine claim exists. A presumption of
good faith is afforded petitioners in Vaccine Act cases. See Grice v. Sec’y of Health & Human
Servs., 36 Fed. Cl. 114, 121 (1996).
The Vaccine Act does not define what constitutes a reasonable basis, but case law
provides guidance. In contrast to the subjective standard relating to the good faith requirement,
the reasonable basis requirement is “objective, looking not at the likelihood of success of a claim
but more to the feasibility of the claim.” McKellar v. Sec’y of Health & Human Servs., 101 Fed.
Cl. 297, 303 (2011) (citing DiRoma v. Sec’y of Health & Human Servs., No. 90-3277, 1993 WL
496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). A determination of reasonableness is
appropriate at the various stages of the proceeding, and such determination is informed by
looking to the totality of the circumstances. McKellar, 101 Fed. Cl. at 303. Although a claim
may have had a reasonable basis at the time of its filing, the reasonableness of further pursuing
the claim may come into question when new evidence becomes available or the lack of
supporting evidence becomes apparent. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl.
29, 33 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
As to the timing of an award of fees, the United States Court of Appeals for the Federal
Circuit explicitly recognized that the Vaccine Act permitted the award of attorneys’ fees and
costs on an interim basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed.
Cir. 2008). Following Avera, the Federal Circuit has clarified that an interim fee award may be
made prior to a decision on entitlement. Shaw, 609 F.3d at 1374-75 (“A special master can often
determine at an early stage of the proceedings whether a claim was brought in good faith and
with a reasonable basis.”) (quoting Avera, 515 F.3d at 1352).
6
With her reply, filed by Petitioner’s former counsel, Petitioner filed a supplemental request in
which she seeks reimbursement of costs that she has personally incurred in the amount of
$4,322.81. Respondent has not had an opportunity to provide her position regarding this request.
As such, this portion of Petitioner’s request will be treated as a separate request and a briefing
schedule in connection with it shall be set by separate order.
4
In Avera, the Federal Circuit provided examples of circumstances where an interim fee
award may be appropriate, such as when the case involved protracted legal proceedings, when
costly experts had been retained, or when there was undue hardship. Avera, 515 F.3d at 1352;
see also McKellar, 101 Fed. Cl. at 301 (“some special showing is necessary to warrant interim
fees, including but not limited to delineated [Avera] factors . . . .”); Vaccine Rule 13(b). Since
Avera, cases have clarified that an award of interim fees is in the special master’s discretion and
that there are various circumstances under which an interim award is appropriate. See
Crutchfield v. Sec’y of Health & Human Serv., No. 09-39V, 2011 WL 3806351, at *5-7 (Fed.
Cl. Spec. Mstr. Aug. 4, 2011) (listing cases). One circumstance that has been recognized as
appropriate for an award of interim fees is where a petitioner’s attorney is withdrawing. Woods
v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 154 (2012).
Once it is established that an award of fees is appropriate, the appropriate amount of fees,
the “reasonable attorneys’ fees,” must be determined. 42 U.S.C. § 300aa-15. The determination
of the amount of reasonable attorneys’ fees is also in the special master’s discretion. Shaw, 609
F.3d at 1377 (citing Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir.
1993)). In cases where there is no dispute as to the amount of fees claimed, special masters have
awarded a petitioner’s counsel that undisputed amount generally. See, e.g., Shaw, 609 F.3d at
1377.
III. DISCUSSION
As explained below, Petitioner has satisfied the requirements for an award of interim
fees.
A. Petitioner Has Acted in Good Faith and Has Established a Reasonable Basis
for the Claim to the Time of Former Counsel’s Withdrawal.
A review of the record as a whole indicates that the claim was brought in good faith and
there was a reasonable basis for the claim. With regard to good faith, it is clear that Petitioner
has a subjective belief that the vaccination caused her injury. Respondent has not challenged the
presumption of good faith here, and the undersigned is satisfied that Petitioner filed this claim
earnestly believing that she suffered a vaccine-related injury.
As to reasonable basis, the evidence indicates that Petitioner had a reasonable basis for
filing the claim and for pursuing it to the point of withdrawal.7 The relevant time here is the
period Petitioner’s former counsel was counsel of record. Although Petitioner has yet to file an
expert report, the medical records indicate that within a few days of her receipt of the flu
vaccination, Petitioner began to experience a sore throat, fevers, fatigue, headaches, body aches,
weakness, neck pain, joint pain, pseudoseizures, and she had trouble concentrating. See
7
The special master concludes that a reasonable basis existed to the point of Petitioner’s former
counsel’s withdrawal only. Whether a reasonable basis existed beyond this point and continues
to exist to date cannot be decided based on the record at present, and this decision should not be
construed as making any such decision.
5
Petitioner’s Exhibit 2 at 11; Petitioner’s Exhibit 5 at 1, 6, 9-10, 14-15; Petitioner’s Exhibit 9 at 2;
Petitioner’s Exhibit 22 at 50, 56, 58; Petitioner’s Exhibit 24 at 1. Roughly three weeks later, on
September 12, 2009, Petitioner was admitted to the hospital with complaints of hyperventilation,
shakes, weakness, dizziness, and lightheadedness, among others. See Petitioner’s Exhibit 5 at 1-
2, 9-10, 14-15. At the hospital, Petitioner was diagnosed with rhabdomyolysis, leukocytosis,
near syncope, recurrent respiratory issues, elevated liver function tests, and a heart murmur. See
id. at 6-7; Petitioner’s Exhibit 51 at 128. Upon Petitioner’s third visit to the hospital in one
month, Petitioner’s treating physician noted that Petitioner had “multiple somatic complaints
following seasonal flu vaccine.” Petitioner’s Exhibit 9 at 4.
Additionally, over the course of the next two years, several doctors and specialists made
note of a possible causal relationship between Petitioner’s receipt of the flu vaccination and her
symptoms. See, e.g., Petitioner’s Exhibit 13, 25-26, 38. On October 15, 2009, neurologist
Ruben Cintron expressed that in his opinion, Petitioner’s symptoms are “causally related to
[Petitioner’s] flu vaccination, which is not unknown to cause post-vaccination neuropathies,
which can present with autonomic instability.” Petitioner’s Exhibit 26 at 1. In addition, Dr.
Pradeep Nayak of The Cardiovascular Group, P.C. documented Petitioner’s “[a]pparent
vaccination-induced motor disorder.” Petitioner’s Exhibit 13 at 5. In March of 2010,
electrophysiologist Walter Atiga reported that “[Petitioner’s] symptom complex does certainly
time out with her receiving the flu vaccination.” Petitioner’s Exhibit 13 at 2. On July 29, 2011,
Dr. Blair Grubb, a specialist in the Cardiac and Autonomic Function Clinic at the University of
Toledo suggested that “it sounds as though [Petitioner] has developed an autonomic neuropathy
as a consequence of a reaction to the vaccination.” Petitioner’s Exhibit 38 at 1-2.
The foregoing medical records provide some indication at the outset of a possible causal
relationship between the vaccine and Petitioner’s injuries. In view of the foregoing, Petitioner’s
former counsel had a reasonable basis for filing this claim on behalf of the Petitioner, procuring
and filing medical records, and proceeding to the point of his withdrawal.
B. An Interim Fee Award Is Appropriate Here.
Respondent objects to Petitioner’s Motion for Interim Fees, arguing that the express
terms of 42 U.S.C. § 300aa-15(e)(1) require that attorneys’ fees and costs are to be awarded “as
part of such compensation.” Respondent’s Response to Motion for Interim Fees at 4.
Respondent believes that there is nothing in the statute which authorizes attorneys’ fees and costs
to be awarded on an “interim” basis, prior to either an award of compensation or entry of
judgment denying compensation. Id. This argument was rejected by the Federal Circuit, which
determined that interim fees may be awarded prior to a decision of entitlement. Shaw, 609 F.3d
at 1732. Accordingly, an interim fee award at this stage, where no decision on entitlement has
yet been entered, is permissible.
Because interim fees can be awarded at this stage, it must now be determined whether it
is appropriate to award interim fees in this case. In Avera, the court provided three examples of
circumstances where an interim fee award may be appropriate, e.g., when the case involves
protracted legal proceedings, when costly experts had been retained, or when there is undue
hardship. Avera, 515 F.3d 1343, 1352 (Fed. Cir. 2010). Respondent contends that these
6
circumstances recognized as appropriate for interim fees are not present here. Respondent’s
Response to Motion for Interim Fees at 5. However, the undersigned finds that at least two of
the circumstances recognized in Avera, are present.8
1. Protracted Proceedings
First, an award of interim fees is appropriate because these proceedings are protracted.
These proceedings have been ongoing for nearly two (2) years. Mr. Krakow did much to move
the case forward, procuring and filing numerous medical records and affidavits and working to
have the pertinent video clips placed in a format that would make them accessible to the Court
and counsel. Indeed, new counsel continued to obtain and file additional medical records and
seek to review and make available for review the videos.
However, despite this process, it has been approximately a year since Mr. Krakow
advised of his intent to withdraw. And, it was not until fifteen (15) months after the filing of the
petition, in December 2012, that Petitioner advised that all outstanding medical records had been
filed. Statement of Completion at 1-2. In addition, it was not until January 2013, nearly 1-1/2
years after the filing of the petition, that Petitioner’s video files were submitted in a proper
format. Thus, given the length of time this action has already been pending and the length of
time it is anticipated to remain pending, these proceedings are clearly protracted.
2. Undue Hardship
Additionally, there will be a significant undue hardship suffered, within the meaning of
Avera, if Petitioner is forced to wait until Petitioner’s claim is resolved before her former counsel
is paid his fees. In Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 154 (2012), the
Court recognized that once counsel has withdrawn from a case, there is a hardship that warrants
payment of interim fees. That hardship exists because former counsel is limited ethically from
further participation. As such, former counsel may find it difficult to keep apprised of the
progress of the case and may not be able to anticipate when he will be paid. Woods, 105 Fed. Cl.
at 154. Here, as in Woods, it is a hardship for Petitioner not to have her former counsel paid for
his vigorous and diligent representation for a lengthy period of time after he no longer represents
Petitioner.
The circumstances recognized in Avera as justifying an interim fee award—protracted
proceedings and undue hardship—are present here. Thus, interim fees are appropriate and may
be awarded prior to a decision of entitlement. Payment of interim fees is justified.
C. The Amounts Requested Are Reasonable.
Having determined that Petitioner’s former counsel is entitled to fees, the amount that is
reasonable must be determined. Respondent does not object to an award of $44,961.65.
Respondent’s Response to Motion for Interim Fees at 7-8. The undersigned finds that the
8
In McKellar, 101 Fed. Cl. at 30, the Court recognized that factors other than those enumerated
in Avera could be the basis for an award of interim fees.
7
amount of $44,961.65 in attorneys’ fees and costs, to which there is no objection, is reasonable
based on this stage of the proceedings. Based on the request’s reasonableness, the undersigned
GRANTS the Petitioner’s request for an award of interim fees incurred by her former counsel.
IV. CONCLUSION
For the reasons explained above, the undersigned finds that an award of interim
attorneys’ fees and costs to Petitioner’s former counsel, Mr. Krakow, is appropriate in this case.
The decision shall reflect that Petitioner is awarded attorneys’ fees and costs on an interim basis
as follows:
in a check made payable jointly to Petitioner (D. Golmakani) and Petitioner’s
former counsel (Robert Krakow of the Law Office of Robert J. Krakow, P.C.), the
amount of $44,961.65. The interim award check shall be mailed directly to Robert
J. Krakow, Esquire, Law Office of Robert J. Krakow, P.C., 233 Broadway, Suite
2320, New York, NY 10279-2320.
IT IS SO ORDERED.
s/ Daria Zane
Daria J. Zane
Special Master
8