Iannotti v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-782V
(Filed: July 7, 2014)
NOT TO BE PUBLISHED
************************
KENDRA IANNOTTI, *
* Special Master Corcoran
Petitioner, *
*
v. * Vaccine Act Interim Fees and Costs;
* Withdrawal of Counsel
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
************************
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner
Gordon Elliot Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1
In this case under the National Vaccine Injury Compensation Program (hereinafter the
“Vaccine Program”), Petitioner Kendra Iannotti requests, pursuant to 42 U.S.C. § 300aa-15(e),
an interim award for attorneys’ fees and costs incurred by her counsel in attempting to obtain
Program compensation. After careful consideration, I have decided to grant the request for the
reasons set forth below.
1
Because this decision contains a reasoned explanation for my 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, Pub. L. No. 107-347, §
205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule 18(b), each party has 14 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 whole decision will be available to
the public. (Id).
1
BACKGROUND
Petitioner’s Medical History
On November 13, 2012, Ms. Iannotti, as a pro se litigant, filed a petition under the
Vaccine Program alleging that she had developed Guillain-Barré syndrome (“GBS”) after
receiving the influenza (“flu”) vaccine on August 19, 2011 (Pet. at 1; Ex. 10). As the medical
records filed in the case indicate, Ms. Iannotti presented to Yale-New Haven Hospital on
December 5, 2011, at which time she described to her treating physicians “a history of [one]
month of progressive muscle weakness” ascending from her legs to her arms. (Ex. 4 at 52; Ex. 9
at 413).
The results of tests performed on Ms. Iannotti at Yale Hospital were consistent with GBS
and diabetic polyradiculoneuropathy. (Ex. 9 at 486). Ms. Iannotti was discharged from Yale to
Gaylord Hospital in Wallingford, Connecticut on December 9, 2011 with a presumptive
diagnosis of post-vaccination GBS versus diabetic polyradiculoneuropathy (taking into account
Ms. Iannotti’s reported prior history of Type 1 diabetes). (Ex. 4 at 52-53, 56-57, and 63-64).
Treating physicians considered the flu vaccine a potential trigger for Petitioner’s presumed GBS.
(Ex. 4 at 56, 63-64). The notes of some treating physicians suggest that, at the outset of
diagnosing Ms. Iannotti, they deemed GBS unlikely because the onset of her symptoms was too
long after she had received her flu vaccination, and because she denied any antecedent viral
infections. (Ex. 9 at 413). 2 GBS was later favored as the most likely diagnosis, however, due to
Petitioner’s overall presentation. (Id. at 485-86).
Ms. Iannotti’s subsequent medical history is inconclusive as to whether her illness was in
fact GBS related to her August 2011 vaccination. Thus, there are suggestions in the record that
the diagnosis of polyradiculoneuropathy attributable to diabetes was the more accurate one. 3
Confirmation of that diagnosis depended on results from an autoimmune blood panel. (Ex. 4 at
197). But Petitioner was later discharged from Gaylord on December 24, 2011 without a
definitive diagnosis and with the results of that blood panel test still pending. (Id. at 4, 221).
Ultimately, Ms. Iannotti’s medical records from January 6, 2012 reflect a persistent diagnosis of
GBS. (Ex. 9 at 562). 4
2
In a treating physician’s differential diagnosis from December 6, 2011, the possibility that Ms. Iannotti had a cyst
that became infected was also referenced as a possible trigger for her suspected GBS (Ex. 9 at 443). Ms. Iannotti
was treated for a pilonidal cyst on October 26, 2011; though no signs of infection were found, a high risk of
infection was noted. (Id. at 999, 1017).
3
Ms. Iannotti’s December 9, 2011 Gaylord admission form specifically indicates the view of the admitting
physician that polyradiculoneuropathy was more likely than GBS. (Ex. 4 at 14). Similarly, Gaylord records from
December 12, 2011 state, without elaboration, “LE poliradiculo-neuropathy: presumably from diabetes and/or
demyelinating process. Doubt GBS.” (Ex. 4 at 197).
4
Only the notes of one record physician, Dr. Boroumand, from July 26, 2012 suggest that GBS was not properly
diagnosed. (Ex. 9 at 1036). Dr. Boroumand appears to have reviewed Petitioner’s chart and concluded that her
symptoms were at best “certainly consistent” with GBS. Id. This record was later signed by Dr. Oray-Schrom, the
attending physician throughout Petitioner’s December 2011 hospitalization at Yale. (Id. at 408, 536, 1036-37).
2
After Ms. Iannotti’s December 2011 GBS diagnosis, the medical records indicate that she
continued to suffer from chronic pain and weakness. (Ex. 9 at 1053). Tests to determine the
cause of these chronic symptoms are mentioned in the filed records, although the records appear
incomplete because they do not set forth the results of such tests. (Id. at 1056, 1085, 1151). Also
mentioned but missing from the record are a neurology appointment in February 2012, blood
tests conducted on March 21, 2012, and EMG 5 and nerve conduction studies ordered on April
20, 2012. See Id. As of July 2013, Petitioner’s medical history includes “[GBS status post] flu
vaccine.” (Id. at 2676). There is no present record of further tests to determine the etiology of her
illness.
Procedural History
After filing the petition on her own and representing herself in this matter for several
months, Ms. Iannotti retained attorney Ronald C. Homer, who appeared in the action on her
behalf on April 8, 2013. (ECF No. 9). With Mr. Homer’s aid Ms. Iannotti obtained by subpoena
various medical records to support her claim. (See ECF Nos. 14 and 18). Ten such exhibits were
filed in December 2013 (Exs. 1-10; ECF No. 21), although Petitioner later reported that, based
on review of these records, she was aware that her filed medical records were incomplete (see
March 5, 2014 Status Report (ECF No. 27)).
As of January 2014, Ms. Iannotti was reporting to this forum her expectation that she
would soon be filing a Statement of Completion, thus triggering the date for the Respondent’s
Rule 4(c) Report. (See January 6, 2014 Status Report (ECF No. 24)). However, in her very next
status report, Petitioner stated that her counsel had determined that he would be withdrawing
from the action entirely. (ECF No. 27). Mr. Homer has since filed motions both to withdraw as
counsel (motion dated May 15, 2014 (ECF No. 34)) and also for an interim award of attorneys’
fees (motion dated April 24, 2014 (ECF No. 30) (“Fee App.”)). The former motion specifically
states that Ms. Iannotti now intends to revert to her original pro se status. (ECF No. 34 at 1).
Petitioner’s present application for interim fees and costs seeks (a) an award of
$14,494.50 in fees, and (b) $2,448.41 in interim costs, for a total of $16,942.91. (Fee App. at 1).
Although Respondent opposed the application on May 12, 2014 (“Fee App. Opp.”), arguing that
an award of interim fees is not appropriate at this stage because the Petitioner failed to
demonstrate undue hardship as required by Avera v. Sec’y of Health & Human Servs., 515 F.3d
1343 (Fed. Cir. 2008), she expressly does not challenge most of the sum requested – nor does she
question whether the claim has a reasonable basis or was asserted in good faith. (Fee App. Opp.
5
EMG refers to electromyography, “an electrodiagnostic technique for recording the extracellular activity (action
potentials and evoked potentials) of skeletal muscles at rest, during voluntary contractions, and during electrical
stimulation.” Dorland’s Illustrated Medical Dictionary 602 (32d ed. 2012).
3
at 3 n.2 and 4 n.3). 6 Petitioner subsequently replied on May 15, 2014, arguing that interim fees
are appropriate in this case. (“Reply”). This matter is therefore ready to be decided. 7
ANALYSIS
I. Legal Standard for Award of Attorneys’ Fees
Special masters are required to award reasonable attorneys’ fees and litigation costs for
Vaccine Act claims which successfully demonstrate a petitioner’s entitlement to compensation.
See § 300aa-15(e)(1). But special masters may also, in the exercise of their discretion, award
attorneys’ fees and litigation costs to unsuccessful litigants as long as the petition was (a) filed in
good faith and (b) with a reasonable basis. Id. Whether a petitioner was successful or not, special
masters have the discretion to determine what constitutes a reasonable amount for fees and costs.
Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1377 (Fed. Cir. 2010); Saxton v. Sec’y
of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); Friedman v. Sec'y of Health &
Human Servs., 94 Fed. Cl. 323, 332 (Fed. Cl. 2010); Perreira v. Sec’y of Health & Human
Servs., 27 Fed. Cl. 29, 31 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); Saunders v. Sec'y of
Health & Human Servs., No. 90-826V, 1992 WL 700268, at *1 (Cl. Ct. Spec. Mstr. May 26,
1992), aff'd, 26 Cl. Ct. 1221 (1992), aff'd, 25 F.3d 1031 (Fed. Cir. 1994). 8
Petitioner has the burden to demonstrate that requested attorneys’ fees are reasonable.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 215 (2009); Rupert v. Sec’y of Health & Human Servs., 52 Fed. Cl. 684,
686 (2002); Wilcox v. Sec’y of Health & Human Servs., No. 90-991V, 1997 WL 101572, at *4
(Fed. Cl. Spec. Mstr. Feb. 14, 1997). The same burden applies to justifying requests for an award
of costs. Perreira, 27 Fed. Cl. at 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for
interim awards, as is the case here, must satisfy the same good faith and reasonable basis
requirements applicable to the fee requests of unsuccessful petitioners. Avera, 515 F.3d at 1352;
Shaw, 609 F.3d at 1375; Franklin v. Sec’y of Health & Human Servs., No. 99-0855V, 2009 WL
2524492, at *4 (Fed. Cl. Spec. Mstr. July 28, 2009).
Although Respondent takes pains to reiterate her objection to the awarding of interim
fees, controlling decisions of the Federal Circuit clearly permit the recovery of interim fees and
costs in Vaccine Act cases. Avera, 515 F.3d at 1352; Cloer v. Sec’y of Health and Human Servs.,
675 F.3d 1358, 1362 (Fed. Cir. 2012); McKellar v. Sec’y of Health and Human Servs., 101 Fed.
6
Respondent has no objection to the total sum of costs requested, but only with respect to $14,214.50 of the total
amount of $14,494.50 requested – meaning Respondent objects to $280 of the total fee application. (Fee App. Opp.
at 4 n.3).
7
Petitioner has also filed a supplemental motion for the $567.10 in fees incurred in briefing the Fee Application. See
May 15, 2014 Supplemental Motion (ECF No. 33). Respondent never objected or responded to the supplemental
motion, and (for the same reasons stated above with respect to Petitioner’s initial fee application) I am including
these additional sums in the total fee award.
8
In this decision, I reference or rely upon both the decisions of special masters as well as the judges of the Court of
Federal Claims, all of which constitute persuasive, but not binding authority. Hanlon v. Sec’y of Health & Human
Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit decisions are binding on special masters. Guillory v.
Sec’y of Health & Human Servs., 59 Fed. Cl. 121, 124 (2003), aff’d, 104 Fed. App’x 712 (Fed. Cir. 2004).
4
Cl. 297, 302 (2011) (“interim fees are permitted even before an entitlement decision is made”).
The Avera court followed the Supreme Court’s construction of other fee-shifting statutes, which
also allow the award of interim fees in appropriate circumstances. Avera, 515 F.3d at 1351-52. In
fact, the Avera court determined that the justification for an award of interim fees is greater in
Vaccine Act cases because the Act does not have a “prevailing party” requirement (and thus
petitioners can obtain fee awards even where they do not establish entitlement to a damages
award), and because the underlying purposes of the Vaccine Act are better served if petitioners
have access to competent legal representation – a goal that is aided if attorneys appearing for
petitioners in the Program have assurances that their fees will be satisfied. Id. at 1352; see also
H.R. Rep. No. 99-908 at 22 (1986).
Avera, however, did not define the circumstances in which an interim award might
appropriately be issued – leading other special masters to observe that the standards for granting
an interim fee award “remain somewhat muddled.” Small v. Sec’y of Health & Human Servs.,
No. 02-1616V, 2014 WL 308297, at *1 (Fed. Cl. Spec. Mstr. Jan. 7, 2014), citing Shaw, 609
F.3d at 1375. Thus, although the Avera court identified certain conditions under which an interim
fee award may be appropriate, such as “where proceedings are protracted and costly experts must
be retained” (Id. at 1352), the case has been interpreted as allowing special masters broad
discretion in awarding interim fees. See, e.g., Kirk v. Sec’y of Health & Human Servs., No. 08-
241V, 2009 WL 775396, at *1 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (reading Avera to establish a
“broad, discretionary vehicle for ensuring that petitioners are not punished financially while
pursuing their vaccine claim”); Bear v. Sec’y of Health & Human Servs., No. 11-362V, 2013 WL
691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) (Avera provides only “examples and general
guidance concerning when interim fees and costs might be awarded, leaving the special masters
broad discretion to consider many factors in considering whether an interim award is appropriate
in a particular case”) (emphasis in the original).
Since Avera, there has been a considerable amount of case law discussing when interim
fee awards are appropriate. In some cases, interim awards have been granted after taking into
account the amount of time that has passed in the case as well as the amount of work performed.
See, e.g., Franklin 2009 WL 2524492, at *4 (awarding interim fees where the petition had been
pending for years, petitioner’s counsel had paid significant amounts to experts, and the final
resolution of the case was likely to take some time); MacNeir v. Sec’y of Health & Human
Servs., No. 03-1914V, 2010 WL 891145, at *1-4 (Fed. Cl. Spec. Mstr. Feb. 12, 2010) (granting
an interim award of fees and costs of $12,062 when counsel had expended most of the costs and
fees while obtaining and filing medical records). But there is no defined period of time that must
have passed from the time a petition was filed to justify an interim fee award. See, e.g., Bear,
2013 WL 691963 at *4-5 (interim fee awarded when case was pending for nineteen months);
Broekelschen v. Sec’y of Health & Human Servs., No. 07-137V, 2008 WL 5456319, at *2-3
(Fed. Cl. Spec. Mstr. Dec. 17, 2008) (interim fees awarded when case was pending for less than
one year).
5
II. The Criteria for an Attorneys’ Fee Award are Satisfied
In this case, I find that both the general criteria required to obtain a fee award where no
entitlement decision has been made – good faith and reasonable basis - are satisfied. 9 First, the
petition appears to have been brought in good faith. As discussed in Lamar v. Sec’y of Health &
Human Servs., No. 99-584V, 2008 WL 3845157 (Fed. Cl. Spec. Mstr. July 30, 2008), a
determination of good faith can be made at the start of the case, and is the more easily
established of the two factors. See also Austin v. Sec’y of Health & Human Servs., No. 10-
0362V, 2013 WL 659574, at *7 n.20 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“[d]ue to its subjective
nature, the standard for good faith is very low”). 10 Analyzing it “requires a special master to
delve into the circumstances surrounding the filing of the petition, rather than rely on its
content.” Lamar, 2008 WL 3845157, at *3. Thus, good faith has been found even when
petitioner’s counsel did not file the petition with any medical records, given evidence that the
petitioner honestly believed that he had suffered a vaccine related injury and that he had a claim.
Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *5-6 (Fed. Cl.
Spec. Mstr. Nov. 30, 2007).
Ms. Iannotti has established she received the flu vaccine. (Ex. 10). Her records further
memorialize that she did in fact visit the hospital several weeks after receiving the vaccine, and
that her treating physicians voiced the suspicion that the vaccine might have played a role in her
GBS-like symptoms. Because there is no other evidence of misrepresentation by the Petitioner, I
conclude that the Petitioner has fulfilled the good faith requirement.
Second, I find that there is a reasonable basis for Ms. Iannotti’s claim. Determining
whether reasonable basis exists involves application of an objective test that can be satisfied by
providing or pointing to evidence supporting the existence of a relationship between the
vaccination and the alleged injury. Franklin, 2009 WL 2524492 at *4; Di Roma v. Sec’y of
Health & Human Servs., No. 90-3277, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18,
1993). Reasonable basis does not look at the likelihood of the claim’s success, but at the
feasibility of the claim. Id.; see also Turner, 2007 WL 4410030 at *6 (“[c]ounsel may file a
claim on grounds that are reasonable but ultimately are determined not to merit Program
compensation.”). 11
9
As noted above, Respondent does not dispute either Petitioner’s good faith or reasonableness. Fee App. Opp. at 3
n.2. That fact, however, does not deprive me of the general discretion to evaluate the appropriateness of a fee award
request. Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 218 (2008) (special master did not abuse her
discretion in reducing portion of fee application not otherwise objected to by Respondent).
10
Indeed, some cases have asserted that good faith should be presumed. See, e.g., Grice v. Sec’y of Health & Human
Servs., 36 Fed. Cl. 114, 121 (1996).
11
There is no explicit instruction from the Federal Circuit as to the precise nature of the evidentiary burden imposed
on a petitioner attempting to establish reasonable basis. Other special masters have considered whether a claim has
support in the contemporaneous medical records, a medical opinion, or if the petitioner can demonstrate at least that
“fundamental inquiries” were made to locate evidentiary support for the claim. Melbourne v. Sec’y of Health &
Human Servs., No. 99-694V, 2007 WL 2020084, at *6 (Fed. Cl. Spec. Mstr. June 25, 2007) (petitioner cannot obtain
fee award once reasonable basis ceases to exist, based upon counsel’s awareness that the medical record or expert
opinion fails to support the claim); Di Roma, 1993 WL 496981 at *2.
6
Although in the history of the Program special masters have tended to be “quite generous
in finding a reasonable basis for petitioners” when granting fee awards in unsuccessful cases,
that generosity wanes where it is evident that counsel failed to investigate sufficiently the facts
underlying the claim. Riley v. Sec’y of Health & Human Servs., No. 09-276V, 2011 WL
2036976, at *3 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citation omitted); see also Murphy v. Sec’y
of Health & Human Servs., 30 Fed. Cl. 60, 62 (1993) (affirming denial of attorneys’ fees where
contemporaneous records provided no basis for alleged injury), aff’d, 48 F.3d 1236 (Fed. Cir.
1995); Di Roma, 1993 WL 496981, at *3 (denying attorneys’ fees and costs where “[m]inimal
research and good sense should have indicated that th[e] case had no basis under the law”). Thus,
proof of an adequate investigation into a claim’s viability also can persuasively establish
reasonable basis.
Here, the record presents sufficient proof for me to determine that reasonable basis exists
(at least as of this date). 12 The medical records filed in this case substantiate that Ms. Iannotti’s
treating physicians initially opined that there was likely a relationship between the vaccine she
received and her subsequent illness. Those records were obtained with Mr. Homer’s assistance
shortly after his appearance in this case in April 2013. This is therefore not a case in which
counsel was on notice at the outset of his engagement that little evidence supported Ms.
Iannotti’s otherwise good faith contentions that a vaccine had injured her.
It may well be that Petitioner’s case is not likely to be successful in the long run.
Petitioner’s case is complicated by her uncertain diagnosis, and the fact that her ongoing GBS-
like symptoms may be more appropriately attributable to her preexisting diabetes. More
fundamentally, and as some of the initial treatment records suggest, the apparent November
onset of Petitioner’s illness may be too attenuated in time from her August vaccination to satisfy
the third prong of the causation test set forth in Althen v. Sec’y of Health & Human Servs., 418
F.3d 1274, 1278-9 (Fed. Cir. 2005). 13
But the reasonable basis test should not be confused with a petitioner’s ultimate, and
heavier, burden of proof in a Program case – which is to prove causation by a preponderance of
the evidence. Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed.Cir.2010)
(petitioner is required to prove that the vaccine was “not only [the] but-for cause of the injury but
also a substantial factor in bringing about the injury”) (quoting Shyface v. Sec'y of Health &
Human Servs., 165 F.3d 1344, 1352–53 (Fed.Cir.1999)). An interim fee award request should
therefore not be declined simply because it “seems” as if the Petitioner is likely to lose, as long
as this sense of weakness in the underlying claim is not glaringly evident from the record.
Compare Austin, 2013 WL 659574, at *11 (finding reasonable basis until petitioner failed to
obtain a favorable expert opinion when one medical record from one treating physician
12
Reasonable basis can fluctuate during the course of a proceeding, such that a claim that has sufficient reasonable
basis at the time of its filing can “lose” that status if evidence later comes to light undermining the claim. See, e.g.,
Perreira, 33 F.3d at 1377 (“when the reasonable basis that may have been sufficient to bring the claim ceases to
exist, it cannot be said that the claim is maintained in good faith”).
13
In Althen, the Federal Circuit set forth a three-pronged test for causation, in which the petitioner must establish (1)
a medical theory causally connecting the vaccination to the injury (i.e., that the vaccine “can cause” the injury); (2) a
logical sequence of cause and effect showing the vaccination was the reason for the injury (i.e., that in this case the
vaccine “did cause” the injury); and (3) a proximate temporal relationship between the vaccination and the injury.
Althen, 418 F.3d at 1278-9.
7
supported vaccine causation), and Sease v. Sec’y of Health & Human Servs., No. 11-228V, 2012
WL 5921066, at *9 (Fed. Cl. Spec. Mstr. Nov. 6, 2012) (same when treating physicians noted a
“potential” vaccine injury), with Cortez v. Sec’y of Health & Human Servs., No. 09-176V, 2014
WL 1604002, at *9 (Fed. Cl. Spec. Mstr. Mar. 26, 2014) (finding no reasonable basis when there
was no documentation that petitioner received the alleged vaccination); and Schmidt v. Sec’y of
Health & Human Servs., No. 11-401V, 2012 WL 1392632, at *1 (Fed. Cl. Spec. Mstr. Mar. 30,
2012) (no reasonable basis when petitioner did not receive a vaccine listed on the Vaccine Injury
Table). To so act would make the reasonable basis test more stringent than it should be.
Here, I find that Mr. Homer acted reasonably in representing Ms. Iannotti (originally a
pro se litigant) for the 12 to 13-month period in which he appeared as counsel of record, helping
her advance her claim in ways she might have found difficult on her own. Nor does the
magnitude of the fee request seem excessive, especially given the context of this case.
Accordingly, Petitioner has established grounds for a fee award generally.
III. Overall Appropriateness of Interim Fee Award
As noted above, and separate from exercising my discretion to decide whether the nature
of an underlying claim and counsel’s pursuit of it make a Petitioner eligible for an attorneys’ fee
award at all, I must also determine whether to award fees on an interim basis. Respondent argues
against an interim fee award by calling for a narrow interpretation of Avera. Fee App. Opp. at 3.
I do not find such arguments persuasive. Avera provides special masters the discretion to
make interim fee awards based on broader circumstances, including the occasion of an attorney’s
withdrawal from a case. See generally Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl.
148, 154 (2012). Moreover, in numerous other similar circumstances special masters have
permitted withdrawing attorneys to recover their fees even when the petitioner expects to go
forward with her claim, whether as a pro se litigant or with new counsel. See, e.g., Bear, 2013
WL 691963, at *4-5 (the fact that counsel is withdrawing from representation does not in itself
justify an interim award, but is a persuasive factor to be entered into the analysis); Edmonds v.
Sec’y of Health & Human Servs., No. 04-87V, 2012 WL 1229149 (Fed. Cl. Spec. Mstr. March
22, 2012) (requiring counsel who have withdrawn from representation to wait until the
conclusion of a case to receive fees would create a hardship that would in the future discourage
counsel from representing petitioners in the Vaccine Program).
The remedial goals of the Vaccine Program, and the concomitant need for effective
attorneys familiar with the Program to be available to help petitioners, are best served if
withdrawing counsel who have otherwise represented a petitioner in a demonstrably able fashion
are allowed to recover their fees before resolving the merits of a petitioner’s underlying claim. I
therefore find that the present circumstances of Mr. Homer’s withdrawal do not disqualify him
from receiving an interim fee award.
IV. Calculation of Fee Award
All that remains to be done is to calculate the proper amount for the fee award. Normally,
the lodestar method (in which a proper hourly rate for the attorney’s services is multiplied by the
8
reasonable hours expended) is used to determine fee awards in the Vaccine Program. Avera, 515
F.3d at 1347-48, citing Blum v. Stenson, 465 U.S. 886, 888 (1984); Hensley v. Eckerhart, 461
U.S. 424, 432-33 (1983). 14 Once the Special Master calculates a reasonable hourly rate and the
number of hours reasonably expended, he/she may then adjust the fee award upward or
downward based on other specific findings. Avera, 515 F.3d at 1348.
In this case, however, Respondent has not specifically challenged either Mr. Homer’s
requested hourly rate or the number of attorney hours claimed. (Fee App. Opp. at 4 n.3). 15 I have
also conducted my own review of the submitted fee application, and I do not find that the
requested hours or billing rates are objectionable or otherwise should be revised.
CONCLUSION
It is appropriate to make an interim award of fees and costs to the Petitioner at this time.
The amount of the award is the sum of the amounts requested in counsel’s original fee
application, plus the supplemental motion, for a total of $17,510.01. 16 The award shall be made
in the form of a check made payable jointly to Petitioner and the law firm of Conway, Homer &
Chin-Caplan, P.C. 17
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Special Master
14
The lodestar method provides that a reasonable fee is calculated by first determining “the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433-34. If hours
could not have been properly billed to one’s client, they cannot be billed to one’s adversary. Id. Discretion is granted
to the special master to use his experience to determine what a reasonable rate is. Saxton, 3 F.3d at 1521 (Fed. Cir.
1993). The special master is not required to make a line by line evaluation of the attorney fee application. Riggins v.
Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *4 (Fed. Cl. Spec. Mstr. June 15, 2009).
15
Respondent objects only to $280 of the total fee application. (Fee App. Opp. at 4 n.3). But Respondent has not
articulated the basis for this objection, or even what subcomponent of the billing records it reflects. Accordingly,
because this particular objection is inadequately substantiated, I will allow this sum to be recovered over
Respondent’s objection.
16
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing (either jointly or
individually) notices renouncing their respective rights to seek review.
17
As noted above, Petitioner’s counsel has also filed a motion to withdraw as counsel of record in this case, to
which Respondent has not objected or otherwise responded. I am prepared to grant that motion, but only after
existing counsel either files any remaining medical records relating to Ms. Iannotti’s claim of which he is aware, or
files a certification that all such records in his possession have already been filed.
9