Kottenstette v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1016V
Filed: October 26, 2020
UNPUBLISHED
MARYELLEN KOTTENSTETTE and Special Master Horner
NICHOLAS KOTTENSTETTE, as best
friends of their daughter (CK), Interim Attorneys’ Fees and
Costs Decision; Undue
Petitioners, Hardship
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John F. McHugh, Law Office of John McHugh, New York, NY, for petitioners.
Camille M. Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION DENYING INTERIM ATTORNEYS’ FEES AND COSTS1
On October 9, 2020, petitioners moved for a third award of interim attorneys’ fees
and costs. (ECF No. 150.) Petitioners seek $67,840.40 for attorney’s fees incurred
from August 1, 2019 through July 31, 2020 and $4,325.00 for the fees of Dr. Marcel
Kinsbourne. (Id. at 1.) Petitioners further indicate that “[t]his application begins with the
motion for review filed by respondent through the decision sustaining the decision on
remand. A notice of appeal has been filed but no work on the appeal is within this
application.”2 (Id.)
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.
2 This characterization of petitioners’ third motion for interim attorneys’ fees and costs is not strictly
accurate. Petitioners’ second interim fee request, discussed below, included billing for petitioners’
response to respondent’s motion for review, which was awarded in a reduced amount. Billing filed with
this third motion begins several months later with work performed in response to Judge Firestone’s
issuance in October of 2019 of an order to show cause why the case should not be stayed.
Although attorneys’ fees and costs are generally payable at the conclusion of an
action, the Federal Circuit has concluded that interim fee awards are also permissible
and appropriate under the Vaccine Act upon a showing of undue hardship. Shaw v.
Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010) (noting that
“where the claimant establishes that the cost of litigation has imposed an undue
hardship and there exists a good faith basis for the claim, it is proper for the special
master to award interim attorneys’ fees.”). In Avera v. Secretary of Health & Human
Services, the Federal Circuit explained that “[i]nterim fees are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” 515
F.3d 1343, 1352 (Fed. Cir. 2008). In denying an interim fee award, the Avera court
reasoned that “[t]he amount of fees here was not substantial; appellants had not
employed any experts; and there was only a short delay in the award pending the
appeal.” Id.
In this case, petitioners have already received two awards of interim attorneys’
fees and costs totaling $174, 525.67. On November 30, 2017, petitioners were
awarded $117,303.38 by Special Master Millman. (ECF Nos. 71, 75.) This amount
included petitioners’ own personal costs as well as attorneys’ fees and costs inclusive of
work performed through the entitlement hearing and some life care planning expenses.
(ECF No. 71.) Subsequently, after respondent filed his motion for review, petitioners
filed a second motion for interim attorneys’ fees and costs on August 9, 2019, which I
granted.3 (ECF Nos. 111, 116.) Petitioners were awarded an additional $57,222.29
relating to fees and costs pertaining to work performed through the damages phase of
this case as well as completion of petitioner’s response to respondent’s motion for
review. (ECF No. 119.)
The prior awards cover all fees and costs incurred through August 9, 2019, a little
over one year ago. They also include the vast majority of expert costs incurred to date.
Moreover, the Federal Circuit in Avera indicated that a delay pending appeal is not
enough standing alone to constitute an undue hardship. Avera, 515 F.3d at 1352.
Accordingly, upon my review of petitioners’ motion, a third award of interim fees and
costs is not appropriate as they have not shown undue hardship consistent with the
above-cited caselaw. Therefore, petitioners’ motion for interim attorneys’ fees and costs
is DENIED.4
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3 I noted in my decision that, although successive motions for interim fees and costs are disfavored, the
damages phase of this case involved life care planning expenses and was itself an extended period of
litigation. (ECF No. 116, pp. 3-4.) I also noted that at the time of the decision there was a pending order
to show cause why the case should not be stayed. (Id. at n.4.)
4 In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter
judgment accordingly.
2