Gairdo v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-929V
Filed: March 4, 2020
UNPUBLISHED
LIGIA GAIRDO,
Special Master Horner
Petitioner,
v. Interim Attorneys’ Fees and Costs;
Substitution of Attorney
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ramon Rodriguez, III, Sands Anderson PC, Richmond, VA, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On December 2, 2019, petitioner’s prior counsel, Kayleigh Smith, filed a motion
for interim attorneys’ fees and costs in connection with a contemporaneously-filed
consented motion to substitute attorney Ramon Rodriguez. (ECF Nos. 31-32.) For the
reasons discussed below, petitioner’s motion for interim attorneys’ fees and costs is
GRANTED and petitioner is awarded $15,760.36.
I. Procedural History
On June 28, 2018, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that as a result of her
August 20, 2015 Prevnar vaccination she suffered a Shoulder Injury Related to Vaccine
Administration or “SIRVA.” (Pet.) Respondent recommended that entitlement to
compensation be denied in this case. (ECF No. 21.)
1
Because this decision contains a reasoned explanation for the special master’s 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. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
1
On December 2, 2019, petitioner filed a motion for interim attorneys’ fees and
costs along with a motion to substitute counsel. (ECF Nos. 31-32.) Petitioner stated
that “[b]ecause Petitioner is substituting new counsel, the Special Master should
consider awarding Petitioner interim attorneys’ fees and expenses,” and that “[t]his
situation is an ‘extraordinary circumstance’ where a motion for interim fees is deemed
appropriate in the Program.” (ECF No. 31, p. 5.) Moreover, petitioner averred that the
case was filed in good faith and reasonable basis. (Id.) On December 4, 2019,
petitioner’s motion to substitute counsel was granted and Mr. Rodriguez was added as
counsel of record, replacing Ms. Smith. Petitioner is seeking a total amount of
$15,877.85, representing $14,840.10 in interim attorneys’ fees and $1,037.75 in interim
attorneys’ costs, to be awarded to Ms. Smith of The Greenwood Law Firm.
On December 23, 2019, respondent filed a response to petitioner’s application
for interim attorneys’ fees and costs, deferring to “the Special Master to determine
whether or not petitioner has met the legal standard for an interim fees and costs award
set forth in Avera and the statutory requirements for an award of attorney’s fees and
costs.” (ECF No. 34, p. 2 (citations omitted).) Respondent further requested that “the
special master exercise his discretion and determine a reasonable award for interim
attorneys’ fees and costs.” (Id. at 3.) Petitioner did not file a reply.
Accordingly, petitioner’s motion for interim attorneys’ fees and costs is now ripe
for resolution.
II. Good Faith and Reasonable Basis
Section 15(e)(1) of the Vaccine Act allows for the special master to award
“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are
entitled to an award of reasonable attorneys' fees and costs if they are entitled to
compensation under the Vaccine Act, or, even if they are unsuccessful, if the special
master finds that the petition was filed in good faith and with a reasonable basis. Avera
v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). In order to
qualify for an award of interim attorneys’ fees and costs, the good faith and reasonable
basis requirements must be satisfied. (Id.)
“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human
Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A
petitioner acts in “good faith” if he or she holds an honest belief that a vaccine injury
occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030,
at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). “Reasonable basis,” however, is an
objective standard. Unlike the good faith inquiry, reasonable basis requires more than
just petitioner’s belief in his claim. See Turner, 2007 WL 4410030, at *6. Instead, a
reasonable basis analysis “may include an examination of a number of objective factors,
such as the factual basis of the claim, the medical and scientific support for the claim,
the novelty of the vaccine, and the novelty of the theory of causation.” Amankwaa v.
Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018).
2
There is no evidence that this petition was brought in bad faith. Petitioner filed
medical records that provide some objective evidence supporting her claim, including
contemporaneous medical records from her treating physician observing her alleged
initial vaccine reaction (diffuse erythema over the deltoid, and myalgia) and opining that
petitioner had an allergic reaction (or local cellulitis) related to her Prevnar vaccination.
(Ex. 2, p. 100-02.) Additionally, a later letter by petitioner’s physician relates her
ongoing pain and muscle weakness to her vaccination. (Ex. 4, p. 3.) In any event,
respondent has at this time opted not to challenge petitioner’s good faith and
reasonable basis for filing this claim.2 (ECF No. 21, p. 2.)
III. An Award of Interim Attorneys’ Fees and Costs is Appropriate
Stressing the absence of any prevailing party requirement under the Vaccine Act,
the Federal Circuit has held in Avera that interim awards for attorneys’ fees and costs
are appropriate under the Vaccine Act. 515 F.3d at 1352 (citing §300aa-15(e)(1)).
Nonetheless, the Circuit denied an interim award in Avera, because the appellants had
not suffered “undue hardship.” Id. The Circuit noted that interim awards are
“particularly appropriate in cases where proceedings are protracted and costly experts
must be retained.” Id. Subsequently, in Shaw v. Secretary of Health & Human
Services, the Federal Circuit reiterated its Avera standard, noting that “[w]here the
claimant establishes that the cost of litigation has imposed an undue hardship and that
there exists a good faith basis for the claim, it is proper for the special master to award
interim attorneys’ fees.” 609 F.3d 1372, 1375 (Fed. Cir. 2010).
Although noting that an award of interim attorneys’ fees and costs is within the
“reasonable discretion” of the special master, decisions of the Court of Federal Claims
subsequently emphasized the Federal Circuit’s “undue hardship” language and
cautioned that the Avera decision did not create a presumption in favor of interim fees
and costs in all cases. See, e.g., Shaw v. Sec’y of Health & Human Servs., 110 Fed.
Cl. 420, 423 (2013). Nonetheless, it has also been noted that “the Federal Circuit in
Avera and Shaw did not enunciate the universe of litigation circumstances which would
warrant an award of interim attorney’s fees.” Woods v. Sec’y of Health & Human
Servs., 105 Fed. Cl. 148, 154 (2012).
In Woods, the Court observed that withdrawal of an attorney should be an
important, if not deciding, factor in determining the appropriateness of an interim fee
award. 105 Fed. Cl. at 154. Specifically, “there is no reason to force counsel, who have
ended their representation, to delay receiving fees indefinitely until the matter is
ultimately resolved. The special master articulated a valid concern that it was
‘unknowable’ whether the case would be settled, or extensively litigated to the point of
2 Notably, however, petitioner has a complicated medical history and further record development, likely to
include expert reports, will be necessary to determine what condition is ultimately at issue in this case and
which, if any, of her symptoms may be related to her vaccination. Due to the severity requirement of the
Vaccine Act (§ 300aa-11(c)(1)(D)), the fact that petitioner had an immediate vaccine reaction would not
be sufficient to warrant compensation unless it can be linked by preponderant evidence to sequelae
lasting at least six months. Reasonable basis can be lost as a case progresses. R.K. v Sec’y of Health &
Human Servs., 760 Fed. Appx. 1010, 1012 (Fed. Cir. 2019) (citing Perreira v. Sec’y of Health & Human
Servs., 33 F.3d 1375, 1376-77 (Fed. Cir. 1994)).
3
determining damages. The special master reasonably concluded that delaying a fee
award to counsel who had ended their representation for an indeterminable time until
the case was resolved sufficed to constitute the type of ‘circumstances’ to warrant an
interim fee award.” Id.
Following Woods, special masters have previously observed that “after
withdrawing from a case, it may be difficult for former counsel to receive a fees award,
and, in such circumstances, special masters have often found it reasonable to make
such interim awards. See, e.g., Bear v. Sec’y of Health & Human Servs., No. 11-362V,
2013 WL 691963 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Moreover, outstanding records
remain and expert reports are anticipated. This leaves the ultimate time to resolution
unknowable at this time. For all these reasons, I conclude that an award of interim fees
and costs to prior counsel is appropriate in this case.
IV. Reasonable Attorneys’ Fees and Costs
The determination of the amount of reasonable attorneys' fees is within the
special master's discretion. See, e.g. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1520 (Fed. Cir. 1993). Special Masters have “wide latitude in determining the
reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human
Servs., 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover, special masters are entitled to
rely on their own experience and understanding of the issues raised. Wasson v. Sec’y
of Health & Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991) aff’d in relevant part, 988
F.2d 131 (Fed. Cir. 1993) (per curiam).
In this case, petitioner seeks interim attorneys’ fees of $14,840.10 and interim
attorneys’ costs of $1,037.75, for a total of $15,877.85. Petitioner’s request is
consistent in large part with previously-awarded rates with some limited exceptions
relating to Ms. Smith’s billing entries in 2019. Although overall, petitioner requested an
hourly rate of $225 for Ms. Smith’s work performed in 2019, upon my review of the
billing records, there were four entries3 where work performed by Ms. Smith was billed
at $275 an hour. There is no indication as to why there was a different rate for these
specific tasks, and therefore, I will reduce the rate to reflect the previously-awarded
2019 hourly rate of $225 for Ms. Smith. This results in a reduction of $117.50.
Turning to the number of hours billed in this case, I have reviewed the billing
records submitted with petitioner’s request and found the total hours requested for
interim attorneys’ fees to be reasonable. A special master need not engage in a line-by-
line analysis of petitioner’s fee application when assessing fees. Broekelschen v. Sec’y
of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). Special masters may rely on
their experience with the Vaccine Program to determine the reasonable number of
hours expended. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484
(1991), rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993).
3These entries are for work performed on October 31, 2019, November 27, 2019, and November 30,
2019. (ECF No. 31-1, pp. 8-9.)
4
Additionally, I have reviewed the supporting documentation submitted with the
requested amount for attorneys’ costs. The requested costs are adequately
documented, appear reasonable, and will be awarded in full.
V. Conclusion
In light of the above, petitioner’s motion for an award of interim attorneys’ fees
and costs is hereby GRANTED and petitioner is awarded $15,760.36, representing
$14,722.60 in interim attorneys’ fees and $1,037.75 in interim attorneys’ costs.
Accordingly, I award the total of $15,760.36 as a lump sum in the form of a
check jointly payable to petitioner and The Greenwood Law Firm.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
5