Midnight v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
CHRISTINE MIDNIGHT, *
*
* No. 17-905V
* Special Master Christian J. Moran
Petitioner, *
*
v. *
* Filed: June 29, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs,
* reasonable basis
Respondent. *
*************************
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for
petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Christine Midnight sought compensation through the Vaccine Program, 42
U.S.C. § 300aa-10 through 34 (2012), but her case was dismissed. 2021 WL
6426427 (Fed Cl. Spec. Mstr. Nov. 23, 2021). Ms. Midnight has sought an award
of attorneys’ fees and costs that the Secretary opposes because Ms. Midnight has
not established that reasonable basis supported the claim set forth in the petition.
However, a review of the evidence shows that Ms. Midnight has satisfied the
relatively low threshold for reasonable basis. As such, she is eligible for an award
1
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.
of attorneys’ fees and costs. A reasonable amount of these fees and costs totals
$46,225.30.
I. Background
A. Medical Chronology
Before receiving the vaccines at issue, Ms. Midnight suffered from various
problems, including mental health problems. See, e.g., exhibit 3 at 20-30, exhibit 4
at 40-47. Some of those problems also occurred after the vaccinations, but Ms.
Midnight alleges she experienced new problems after the vaccinations. Thus, for
sake of simplicity, the problems that are arguably the same before and after
vaccination are not discussed in this decision.
Ms. Midnight received the first set of relevant vaccines on July 9, 2014.
This set included the mumps-measles-rubella (“MMR”) vaccine, tetanus-
diphtheria-acellular pertussis (“Tdap”) vaccine, and the varicella vaccine. Exhibit
5 at 1.
About one month later, Ms. Midnight saw a psychiatrist with whom she had
a standing relationship, Robert Franklin. Dr. Franklin noted that Ms. Midnight was
complaining about increased anxiety due to a new job as a nurse contractor.
Exhibit 3 at 19 (Aug. 7, 2014).
On that same day, August 7, 2014, Ms. Midnight also had an appointment
with her primary care physician, Brian White. Dr. White diagnosed Ms. Midnight
as suffering from chronic pain, likely fibromyalgia. Exhibit 4 at 29-30.
Ms. Midnight received the second set of relevant vaccines on August 15,
2014. This set included repeat doses of the MMR and varicella vaccines. Exhibit
5 at 1. Although Ms. Midnight’s claim is not entirely clear, it appears that she
focuses her arguments on the August 15, 2014 vaccinations.
Ms. Midnight sought medical care from Concerta Urgent Care on August 26,
2014. She complained about a fever for one month and a “very strong headache.”
Exhibit 11 at 8. Ms. Midnight also reported that she “always has [a] reaction to
vaccines.” Id. Her physical exam was normal. Id. at 2-3. She was referred to an
emergency room for further work up. Id. at 4, 7. According to Ms. Midnight’s
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attorney, the referral indicates that the staff at the urgent care center could not
handle her complaints. Tr. from Oral Arg. on May 17, 2022 (“Tr.”) 4.
Ms. Midnight went to the Sandoval Regional Medical Center, which is
associated with the University of New Mexico. As at urgent care, Ms. Midnight
reported low-grade fevers since her immunizations at the beginning of the month
and a high fever of 102 degrees the previous night. Exhibit 24 at 32. She also had
a headache, which she seems to have rated as a 3 out of 10. Id. at 25, 32. Both
legs were tender on palpation, id. at 31, and Ms. Midnight described her leg
problems as new. Exhibit 24 at 20. During this visit, Ms. Midnight said that “her
heart is ‘flip flopping’ in her chest.” Id. at 10. Her blood pressure was high. Id. at
31-32. After an examination, Ms. Midnight was discharged with a diagnosis of
hypertension and advised to consult her doctor. Id. at 29.
Ms. Midnight returned to her doctor, Dr. White, on September 5, 2014. She
told Dr. White that “shortly after receiving recent immunizations,” she had a new
headache and fever. Exhibit 4 at 24-26. Ms. Midnight also said that she had not
had a fever for the “last few days” and her headache “improved significantly about
3 or 4 days ago.” Id. at 26. In Dr. White’s assessment and plan, he stated that Ms.
Midnight’s “symptoms . . . seem fairly characteristic for many viral illnesses,
including mild encephalitis.” Id. at 27. He added that Ms. Midnight’s acute illness
“seems fairly unlikely to be a vaccine reaction.” Id.
Dr. White’s September 5, 2014 report, as discussed below, is a primary
aspect of the disagreement between the parties regarding reasonable basis. Ms.
Midnight points to Dr. White’s diagnosis of “encephalitis.” Contrastingly, the
Secretary emphasizes Dr. White’s determination that a vaccine reaction was “fairly
unlikely.”
Ms. Midnight’s medical chronology continues on September 16, 2014, when
she saw her psychiatrist, Dr. Franklin, for an “emergency meeting.” Exhibit 3 at
18. Ms. Midnight informed Dr. Franklin that she had been diagnosed with
“Guillain Barré + encephalitis.” Id. The reference to “Guillain Barré” appears to
be a mistake as no medical record substantiates that diagnosis. Ms. Midnight more
accurately also informed Dr. Franklin that she experienced “bad [headaches] +
fever” for two months. Id. Her current symptoms included “irritable,” “forgetful –
getting a little better,” and “confusion.” Id. Dr. Franklin recommended that Ms.
Midnight restart valium and continue other medications. Id.
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Approximately six weeks later, Ms. Midnight had another appointment with
Dr. White. The history of present illness states that she experienced “tingling in
fingers, headaches, [and] weakness” and she was “diagnosed with possible
encephalitis.” Exhibit 3 at 23. On examination, Dr. White detected a slightly
diminished ability to detect sensations distally. Id. Dr. White recommended an
evaluation by a neurologist to see if any causes for her problems could be
determined. Id. at 24.
The visit with the neurologist, Douglas Barrett, took place on January 2,
2015. Exhibit 6. Dr. Barrett obtained a detailed account of Ms. Midnight’s
headaches. According to this history, Ms. Midnight “was in her usual state of
health until early July when she received some vaccinations.” Exhibit 6 at 6. The
neurologic examination was normal. Id. at 7. Because of the normal neurologic
exam, Dr. Barrett did not order any neurodiagnostic imaging or any testing on her
cerebrospinal fluid. Id. at 8. Dr. Barrett’s impression was that Ms. Midnight had
“a reaction to her vaccinations that produced, based on her history alone, a sterile
meningitis with a component of encephalitis.” Id. at 7.
The parties place different emphasis on this report from Dr. Barrett. Ms.
Midnight argues that he said that she had a reaction to her vaccinations. But, the
Secretary maintains that this conclusion merits little weight because it is based
upon a history from Ms. Midnight alone.
Dr. Barrett sent his evaluation to Dr. White, who reviewed it in conjunction
with an appointment on February 18, 2015. Ms. Midnight told Dr. White that she
was having headaches and some difficulty retrieving words. Exhibit 4 at 20. In
the assessment / plan, Dr. White, after mentioning Dr. Barrett’s note, stated that
Ms. Midnight likely has sterile meningoencephalitis, “probably vaccine related,
suspect measles.” Id.
Following this February 18, 2015 visit with Dr. White, the parties have not
emphasized any medical records until a March 15, 2017 appointment with Dr.
Barrett. In that visit, Ms. Midnight told Dr. Barrett that she has had persistent
headaches and the nature of her headaches has changed. Exhibit 6 at 3. In
addition to assessing Ms. Midnight with headaches, Dr. Barrett stated she had a
“mild cognitive impairment.” Id. at 4. He indicated: “She is continuing to
experience cognitive complaints unchanged from her prior exam as well as
worsening problems of depression. This is not the usual natural history of a
presumed post [vaccinal] meningoencephalitis and the possibility of alternative
problems, e.g. nonconvulsive seizures will be considered.” Id.
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B. Procedural History
Dr. Barrett’s March 15, 2017 evaluation occurred about three months before
the litigation began. Represented by attorney Mark Sadaka, Ms. Midnight alleged
that the MMR, Tdap, and varicella vaccines she received on July 9, 2014, and the
second set of MMR and varicella vaccines she received on August 15, 2014,
caused her to develop encephalitis, speech-regression, blurred vision, and reduced
cognitive ability. See Pet., filed July 5, 2017, at Preamble; ¶¶ 2, 13. Ms. Midnight
alleged that after her second set of vaccinations, she developed headaches, fevers,
and pain in her arms and legs. Id. ¶ 3. Ms. Midnight filed initial medical records
in July 2017, August 2017, and September 2017. She filed a statement of
completion on September 27, 2017, and a damages affidavit on October 16, 2017.
Subsequently, she filed more medical records in April 2018, May 2018, June 2018,
and April 2020.
The Secretary recommended against compensation, questioning Ms.
Midnight’s encephalitis diagnosis and asserting that Ms. Midnight’s headaches,
speech regression, and reduced cognitive ability predated vaccination. Resp’t’s
Rep., filed July 26, 2018, at 11-12. Ms. Midnight was ordered to file expert reports
from a neurologist and neuroradiologist clearly identifying the injury Ms. Midnight
allegedly suffered as a result of vaccination and her medical theory of causation.
See order, filed Aug. 6, 2018.
Ms. Midnight was given multiple opportunities to obtain the report from an
expert. Because these details are not relevant to the evaluation of the motion for
attorneys’ fees and costs, they are not set forth here. However, they are found in
the Decision Denying Entitlement, issued November 23, 2021. Ms. Midnight’s
case was eventually dismissed because she appeared not interested in maintaining
her case.
While Ms. Midnight’s claim for compensation was pending, she submitted a
motion for an award of attorneys’ fees and costs on an interim basis. Pet’r’s Initial
Mot., filed June 22, 2020. Ms. Midnight subsequently renewed her motion to seek
final fees. Pet’r’s Renewed Mot., filed Nov. 30, 2021. The Secretary opposed Ms.
Midnight’s eligibility for attorneys’ fees and costs. See Resp’t’s Resp., filed Dec.
13, 2021. An oral argument was held on May 17, 2022. This argument helped
clarify the parties’ positions regarding reasonable basis.
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II. Eligibility for Attorneys’ Fees and Costs
A. Standards for Adjudication
Petitioners who have not been awarded compensation (like Ms. Midnight
here) are eligible for an award of attorneys’ fees and costs when “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. Secʼy of Health & Hum. Servs.,
875 F.3d 632, 635 (Fed. Cir. 2017). Here, the Secretary has not raised a challenge
to Ms. Midnight’s good faith. Thus, the disputed issue is reasonable basis.
In Cottingham v. Secretary of Health & Human Services, the Federal Circuit
stated that the evidentiary burden for meeting the reasonable basis standard “is
lower than the preponderant evidence standard.” 971 F.3d 1337, 1346 (Fed. Cir.
2020). Something “more than a mere scintilla” might establish the reasonable
basis standard. Id. at 1346. Petitioners meet their evidentiary burden with
“objective evidence.” Id. at 1344. In categorizing medical records as objective
evidence, the Federal Circuit stated, “[m]edical records can support causation even
where the records provide only circumstantial evidence of causation.” Id. at 1346.
Finally, the Federal Circuit in Cottingham specified that “we make no
determination on the weight of the objective evidence in the record or whether that
evidence establishes reasonable basis, for these are factual findings for the Special
Master and not this court.” Id. at 1347.
In its most recent opinion regarding the reasonable basis standard, the
Federal Circuit stated that medical records, affidavits, and sworn testimony all
constitute objective evidence to support reasonable basis. James-Cornelius v.
Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379-81. The Federal Circuit
further clarified that “absence of an express medical opinion on causation is not
necessarily dispositive of whether a claim has reasonable basis, especially when
the case is in its early stages and counsel may not have had the opportunity to
retain qualified experts.” Id. at 1379 (citing Cottingham, 971 F.3d at 1346). These
two most recent decisions guide the analysis regarding what types of evidence
constitute objective evidence of reasonable basis, as originally articulated in
Simmons, though the ultimate weighing of such evidence is left up to the special
master.
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B. Evaluation of the Evidence
In simple terms, the parties differ in how they value the records Ms.
Midnight’s treating doctors created. Ms. Midnight tends to accept various
statements on their face. For example, Ms. Midnight cites Dr. Barrett’s diagnosis
of “meningoencephalitis” as a “reaction to her vaccination[s].” Pet’r’s Reply, filed
Dec. 20, 2021, at pdf 4-5 (citing exhibit 6 at 7). The Secretary, in contrast,
examines these statements at a deeper level. For example, the Secretary maintains
Dr. Barrett’s diagnosis should carry minimal weight because Dr. Barrett made his
conclusion “based on [Ms. Midnight’s] history alone.” Resp’t’s Resp., filed Dec.
13, 2021, at 7 (quoting exhibit 6 at 7).
One judge of the Court of Federal Claims provided some guidance about the
level of scrutiny to give to statements of treating doctors when determining
whether reasonable basis supports the claims set forth in the petition in Wirtshafter
v. Secretary of Health & Human Services, 155 Fed. Cl. 665 (2021). In that case,
the (undersigned) special master had reviewed statements from treating physicians
and had declined to credit them because, in part, the treating doctors received
inaccurate information. Wirtshafter, No. 18-1562V, 2021 WL 1906258, at *7
(Fed. Cl. Spec. Mstr. Apr. 16, 2021). However, after a motion for review was
filed, the Court held, as a matter of law, that the special master’s evaluation
constituted an abuse of discretion. 155 Fed. Cl. at 672. In the Court’s view, the
finding of “inaccurate information” was not accurate despite the presence of
“conflicting information.” Id. at 673. Thus, based upon the statements of treating
doctors who suspected that Ms. Wirtshafter’s neurologic problem was triggered by
a vaccination, the Court found that the evidence in that case satisfied the
reasonable basis standard. Id. at 675.
Wirtshafter was raised with the parties during the May 17, 2022 oral
argument. See order, issued May 12, 2022. The Secretary’s response was,
essentially, three-fold. First, the Secretary stated that as an opinion from the Court
of Federal Claims that is not a remand, Wirtshafter does not establish precedent
that binds the outcome in this case. Tr. 22. On this point, the Secretary is
technically correct. See Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d
1351, 1358 (Fed. Cir. 2019); Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl.
625, 630 (1998), aff’d in non-relevant part, 191 F.3d 1344 (Fed. Cir. 1999).
However, the Secretary fails to appreciate that Wirtshafter constitutes a persuasive
precedent from a tribunal that oversees decisions of special masters. It, therefore,
remains relevant based upon its power to persuade.
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Wirtshafter’s (lack of) persuasiveness is the Secretary’s second point. The
Secretary maintained that the Court’s opinion constituted bad law because it was
not consistent with the Federal Circuit’s opinion in Perreira v. Sec’y of Health &
Hum. Servs., 33 F.3d 1375 (Fed. Cir. 1994). Tr. 28. However, the Secretary could
have challenged the outcome of Wirtshafter by appealing to the Federal Circuit.
The Secretary’s failure to file an appeal, although not dispositive, certainly induces
some hesitancy for the undersigned to question the outcome of Wirtshafter.
As a third and final point, the Secretary attempted to distinguish Wirtshafter
by arguing that the evidence from treating doctors in Wirtshafter was, in some
ways, stronger than the evidence from Ms. Midnight’s treating doctors. Tr. 24-25.
However, a lesson from Wirtshafter is that statements from treating doctors, at
least those statements that are rendered in the course of treatment, should not be
examined very critically in determining whether a reasonable basis supports the
claim set forth in the petition.
Here, Ms. Midnight’s July 5, 2017 petition alleged the MMR and varicella
vaccines she received on August 15, 2014 caused her to develop encephalitis. See
Pet. at Preamble; ¶¶ 2, 13. Dr. Barrett’s January 2, 2015 report and Dr. White’s
February 8, 2015 report indicate that Ms. Midnight had meningoencephalitis due to
the vaccinations. Exhibit 6 at 7; exhibit 4 at 20. These reports, taken together,
constitute more than a scintilla of evidence supporting a claim set forth in the
petition.
A judge of the Court of Federal Claims has recognized that even when a
petitioner produces more than a scintilla of evidence, a special master may find
that the petitioner, nevertheless, failed to meet the threshold for establishing
reasonable basis. Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328(2022), appeal docketed, No. 22-1737 (Fed. Cir. Apr. 28, 2022). Such is not the
case here. “[D]espite the enigma that surrounds the amount and quality of
evidence necessary to establish a reasonable basis for a vaccine compensation
claim,” Wirtshafter, 155 Fed. Cl. at 672, Ms. Midnight’s evidence crosses the line.
She has met her burden to establish that her claim was supported by reasonable
basis and, therefore, she is eligible for an award of attorneys’ fees and costs. 42
U.S.C. § 300aa-15(e).
Technically, being eligible for an award of attorneys’ fees and costs does not
necessarily entitle a petitioner to an award of attorneys’ fees and costs. Because
the Vaccine Act states that a special master “may” (not “shall”) award attorneys’
fees and costs to eligible petitioners, special masters retain some discretion not to
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award attorneys’ fees and costs. See Wirtshafter, 155 Fed. Cl. at 675-76. But, the
Secretary has not identified any ground to deny attorneys’ fees and costs. See Tr.
30-31. Accordingly, the undersigned finds an award of attorneys’ fees and costs
appropriate.
III. Reasonable Amount of Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
42 U.S.C. § 300aa-15(e). The Federal Circuit has approved the lodestar approach
to determine reasonable attorneys’ fees and costs under the Vaccine Act. This is a
two-step process. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1348
(Fed. Cir. 2008). First, a court determines an “initial estimate . . . by ‘multiplying
the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
However, when the bulk of the work is done outside the District of Columbia and
the attorneys’ rates are substantially lower, the Davis County exception applies,
and petitioner’s counsel is paid according to the local rate. Id. at 1349 (citing
Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S.
Env’t Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the
attorneys’ work was done in New Jersey. The local rate is substantially similar to
the forum rate. Therefore, the Davis County exception does not apply.
Ms. Midnight requests the following hourly rates for the work of her
counsel, Mr. Sadaka: $362.95 per hour for work performed in 2016; $376.78 per
hour for work performed in 2017; $396.00 per hour for work performed in 2018;
$405.00 per hour for work performed in 2019; $422.00 per hour for work
performed in 2020; and $440.00 per hour for work performed in 2021. Pet’r’s
Initial Mot. at 5; Pet’r’s Renewed Mot. at 5. These rates are consistent with what
Mr. Sadaka has previously been awarded for his Vaccine Program work. See, e.g.,
Dew v. Sec’y of Health & Hum. Servs., No. 16-1238V, 2019 WL 2317303, at *2
9
(Fed. Cl. Spec. Mstr. Apr. 30, 2019); Miller v. Sec’y of Health & Hum. Servs., No.
18-587V, 2021 WL 3674659, at *3 (Fed. Cl. Spec. Mstr. July 20, 2021). Petitioner
also requests reasonable hourly rates for work performed by the firm’s paralegal.
Accordingly, the requested hourly rates are reasonable.
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, 3 F.3d at 1521. The Secretary did not directly challenge any of the
requested hours as unreasonable.
The undersigned has reviewed the submitted billing records and finds the
time billed to be reasonable. The timesheets provide sufficiently detailed
descriptions of the work performed. See fee exhibits A (requesting $38,576.90)
and C (requesting $4,942.70).
Mr. Sadaka submitted his invoices before the oral argument. Mr. Sadaka
was prepared and advocated persuasively. The undersigned will award an
additional $1,500 for Mr. Sadaka’s work.
Accordingly, a reasonable amount of attorneys’ fees and costs is $45,019.60.
C. Costs
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992),
aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of $3,205.70 in
attorneys’ costs. This amount is comprised of acquiring medical records, postage,
the Court’s filing fee, and expert fees for Dr. Kinsbourne. The bulk of the costs
represent fees incurred by counsel in attempting to secure an expert opinion by Dr.
Kinsbourne. See fee exhibit B.
The costs associated with Dr. Kinsbourne are not reasonable. Preliminarily,
the undersigned has commented that Dr. Kinsbourne’s usefulness as an expert has
declined because he has not practiced neurology in decades and the quality of his
opinions has slipped. See, e.g., Ellis v. Sec’y of Health & Hum. Servs., No. 13-
336V, 2019 WL 3315326, at *9 (Fed. Cl. Spec. Mstr. June 24, 2019); Hoskins v.
Sec’y of Health & Hum. Servs., No. 15-071V, 2017 WL 3379270, at *5 (Fed. Cl.
Spec. Mstr. July 12, 2017) (“[A]ttorneys representing petitioners are placed on
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notice that compensation for Dr. Kinsbourne should not be assumed
automatically.”).
More importantly, Ms. Midnight has not evidenced a justification for his
work. Dr. Kinsbourne’s invoice is a single line, noting he received a retainer of
$2,000. Fee exhibit B at pdf 19. A retainer does not evidence the work Dr.
Kinsbourne performed. See Guidelines for Practice Under the National Vaccine
Injury Compensation Program, Section X. Chapter 3. ¶ A (“With regard to
attorneys’ fees and experts’ fees, the particular tasks for which fees are claimed,
the amount of time spent on that task, the person who performed the task, and that
person’s billed hourly rate must be identified in contemporaneous, dated
records.”); see also Dahl v. Sec’y of Health & Hum. Servs., No. 13-98V, 2018 WL
6818741, at *8 (Fed. Cl. Spec. Mstr. Nov. 30, 2018). Without some information
from Dr. Kinsbourne, the undersigned cannot evaluate whether his proposed
hourly rate is reasonable and cannot determine whether the number of hours he
spent is reasonable. Accordingly, due to the deficiency in the submission
regarding Dr. Kinsbourne’s work, this requested item cannot be allowed.
For the remainder of the costs, Ms. Midnight has provided adequate
documentation supporting all of the requested costs, and all appear reasonable in
the undersigned’s experience. Ms. Midnight is therefore awarded $1,205.70 in
costs.
IV. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $46,225.30 (representing
$45,019.60 in attorneys’ fees and $1,205.70 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to Ms. Midnight and Ms. Midnight’s counsel,
Mr. Mark Sadaka. 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. 2
2
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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IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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