# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17

- 168 V ( Not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * * PATRICK HOCK

, *

* Chief Special Master Corcoran Petitioner, *

*

v. * Filed: April 8 , 2021 *

* SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * * * * * * * * * * * * * *

Amy Senerth

, Muller Brazil, LLP, Philadelphia, PA, for Petitioner.

Dhairya Jani

, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1

On February 3, 2017

, Patrick Hock filed a petition seeking compensation under the National Vaccine Injury Comp ensation Program (“Vaccine Program”) 2 alleging that he developed polyarthritis/rheumatoid arthritis (“RA”) as a result of receiving the seasonal influenza (“flu”)
vaccine on October 20, 2015 . Petition at 1 (ECF No. 1). A hearing in this matter was held on March 12, 2020. ECF No. 64. After consideration of the filings in this case, I denied entitlement on September 30, 2020. Decision, filed Sept. 30, 2020 (ECF No. 68). This determination was not

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012). This means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa

12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 dis closure 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

.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986 , Pub. L. No. 99

- 660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (20 12 ) [hereinafter “Vaccine Act” or “the Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix)

.2 appealed.

Prior to the entitlement hearing, Petitioner filed an interim fees and costs application. Interim Fees and Costs Application, filed Jan uary 4, 2019 (ECF No. 3 1 ) (“Interim Fees App.”). I granted Petitioner’s motion, and issued an interim fees award of $ 44,7 44.90 (representing $ 26,482.40 in attorney’s fees, plus $ 18,262.50 in costs). Hock v. Sec’y of Health & Hum. Servs.

, No. 17

- 168 V , 2019 WL 4744768 (Fed. Cl. Spec. Mstr. Aug. 12, 2019)

.

Petitioner has now filed a motion for a final award of attorney’s fees a nd costs for all work performed in the case since December 2018. Motion, filed March 30, 2021 (ECF No. 70) (“Mot.”). Petitioner requests a final award of $75,922.36

— $30,852.10 in attorney’s and paralegal’s fees

, plus $45,070.26 in costs

— for the work of Ms. Amy Senerth, Esq.

, and Mr. Max Muller , Esq.
, in addition to the supportive work of two paralegal s

. Mot . at 1

- 2. The costs requested include expenses associated with travel and expert fees

. Id. Respondent reacted to the fees request on
M arch 30, 2021

. See Response, dated March 30, 2021 (ECF No. 7 4 ). Respondent is satisfied that the statutory requirements for an attorney’s fees and costs award are met in this case, and otherwise defers to my discretion in calculating the amount to be awarde d. Id. at 2

– 3

. For the reasons below, I hereby GRANT IN PART Petitioner’s motion, awarding fees and
costs in the total amount of $ 6 9 ,622.36

.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Under the Vaccine Act, a special master may award fees and costs to an unsuccessful petitioner if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). I ha ve in prior decisions set forth at length the criteria to be applied when determining if a claim possessed “reasonable basis”
sufficient for a fees award. See, e.g.

, Sterling v. Sec’y of Health & Hum. Servs ., No. 16

- 551V, 2020 WL 549443, at *4 (Fed. Cl. Sp ec. Mstr. Jan. 3, 2020).

In short, a claim’s reasonable basis must be demonstrated through some objective evidentiary showing. Cottingham v. Sec’y of Health & Hum. Servs. , 971 F.3d 1337, 1344 (Fed. Cir. 2020) (citing Simmons v. Sec’y of Health & Hum. Serv s ., 875 F.3d 632, 635 (Fed. Cir. 2017))

. This objective inquiry is focused on the claim

— counsel’s conduct is irrelevant (although it may bulwark good faith). Simmons , 875 F.3d at 635. Reasonable basis inquiries are not static

— they evaluate not only what wa s known at the time the petition was filed, but also take into account what is learned about the evidentiary support for the claim as the matter progresses. Perreira v. Sec’y of Health & Hum. Servs ., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the findi ng that a3 reasonable basis for petitioners’ claims ceased to exist once they had reviewed their expert's opinion, which consisted entirely of unsupported speculation).

The standard for evaluating reasonable basis is lesser (and thus inherently easier to s atisfy) than the preponderant standard applied when assessing entitlement, since cases that fail can still have sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs. , 144 Fed. Cl. 72, 77 (Fed. Cl. 2019). Under the Vaccine Act, special masters have “maximum discretion” in applying the reasonable basis standard. See, e.g.

, Silva v. Sec’y of Health & Hum. Servs. , 108 Fed. Cl. 401, 401

– 02 (Fed. Cl. 2012). The Court of Federal Claims has affirmed that “[r]easonable basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of Health & Hum. Servs. , 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) (affirming special master). The factual basis and medica l support for the claim is among the evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs. , 132 Fed. Cl. 372, 378 (Fed. Cl. 2017).

Petitioner’s claim in this case had sufficient objective basis to entitle h im to a fees and costs

awar d

, even though he did not receive a favorable entitlement determination

. Petitioner’s good faith arguments were backed by many solid items of proof, and there was objective support in the record for core matters like proof of vaccination and the nature of Petitioner’s injury. Petitioner
was also able to offer credible and scientifically

- reliable treater and expert opinions in support of
h is claim , though neither were ultimately sufficient to find in Petitioner’s favor

. Respondent for his part does not other wise contest reasonable basis. Accordingly, a final award of fees and costs in this matter is appropriate.

II. Calculation of Fees

Determining the appropriate amount of the fees award is a two

- part process. The first part involves application of the lodestar method

— “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs

., 515 F.3d 1343, 1347

– 48 (Fed. Cir. 2008) (quoting Blum v. Stenson , 465 U.S. 886, 888 (1984)).
T he second part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal stat ute. Hensley v. Eckerhart , 461 U.S. 424,
429

– 37 (1983).

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the proper hourly rate on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), exc ept where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the Davis exception). Avera

, 515 F.3d at 1348 (citing Davis Cty

. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency , 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with different levels of experience who are entitled to the forum r ate in the Vaccine Program. See4 McCulloch v. Sec’y of Health & Hum. Servs. , No. 09

- 293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Petitioner requests the following rates for his attorney and support staff, based on the years work was p erformed:

2018 2019 2020 2021

Mr. Max Muller (Attorney)

- $325

- -
Ms. Amy Senerth (Attorney) $233 $250 $275 $300

M r
. Erik Pavlacsek (Paralegal) - - $125

-

Ms. Tereza Pavlacsek (Paralegal) $140 $140 $140

-

The attorneys from Muller Brazil (who practice in Philadelphia, Pennsylvania) have repeatedly been found to be “in forum,” and are therefore entitled to the rates established in
McCulloch . The rates requested for Mr. Muller and Ms. Senerth (as well as the paralegal work performed in this case) are also consistent with what they have previously been awarded in accordance with the Office of Special Masters’ fee schedule

. 3 See Hlad v. Sec’y of Health & Hum.
Servs. , No. 17

- 1818V, 2020 WL 3620224, at *2 (Fed. C l. Spec. Mstr. June 22, 2020 ); Hock , 2019 WL 4744768, at *3 . I find no cause to reduce them in this instance. I also deem the time devoted to the matter reasonable, and therefore award fees for all work performed on the case as requested in the fees applic ation.

III. Calculation of Attorney’s Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Presault v. United States , 52 Fed. Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs. , 27 Fed. Cl. 29, 34 (1992). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Hum. Servs. , No.10

- 243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as by not providing appropriate documentation to explain the basis for a particular cost, special
masters have refrai ned from paying the cost at issue. See, e.g.

, Gardner

- Cook v. Sec’y of Health

3 OS M Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Dec. 9

, 2020).5 & Hum. Servs. , No. 99

- 480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

As noted above, Petitioner seeks $45,070.26 in costs. See Exhibit B to Fees App. at 14

. T he bulk of this amount reflects expenses associated with his testifying expert
, Dr. Paul Utz

. Id. at 16

- 18 . Petitioner also requests $ 2,500 .00 for a review of the claim previously completed by Dr. Eric Gershwin in 2017

. See Exhibit 12, dated April 7, 2021 (ECF No. 75

- 1) (five hours at a rate of $500 per hour, totaling $2,500.00)

. The invoice submitted in connection with Dr. Gershwin’s work indicates that he was paid a retainer that was sufficient to compensate him in full for his time. The remainder of the costs represent travel expenses associated with the hearing and transcript costs

. See Exhibit B to Fees App. at 14.

Although Dr. Gershwin did not ultimately offer an opinion in this case, it was reasonable for Petitioner to seek his i nput

— and the fact that he declined to support the case does not diminish the value of his input or the claim’s ultimate reasonable basis, since Petitioner subsequently identified an expert who provided a scientifically/medically reliable opinion. In addi tion, the rate requested for Dr. Gershwin’s time is consistent with what he has received for his work in other

cases. I will therefore approve reimbursement to Petitioner of this retainer expense.

Some adjustment is necessary with respect to the requested expert costs associated with Dr. Utz, however. Petitioner requests that Dr. Utz be compensated at a rate of $650 per hour for 63 hours of work, totaling $40,950.00. Exhibit B to Fees App. at 16

- 18. This rate is not only high
for what experts usually receive in the Program, but exceeds what Dr. Utz has received in other

recent cases. See, e.g., Sartain v. Sec'y of Health & Hum. Servs., No. 16

- 41V, 2020 WL 1893478 (Fed. Cl. Spec. Mstr. Mar. 4, 2020) (Dr. U tz awarded a rate of $500/hour); Parker v. Sec'y of Health & Hum. Servs., No. 14

- 979V, 2020 WL 1304182, at *4 (Fed. Cl. Spec. Mstr. Feb. 7, 2020) (same)

. Petitioner has otherwise not made a showing as to why the requested rate is appropriate in
this case

. It is unquestionably the case that the rates paid to qualified and competent Program experts like Dr. Utz should not be static figures, never subject to adjustment, but should be permitted to
increase

— both to account for inflation as well as market reali ties of what experts are receiving in other courts. I am therefore amenable in any case to entertaining requests to raise an expert’s rate above what he or she has received in prior Vaccine Act fees determinations. But such requests
must substantiate the b asis for the increase, and the rate change should not proportionately exceed what the expert has received in the past.

Taking all of the above into account, I shall award an hourly rate of $550 per hour for all hours of work performed by Dr. Utz on this matter

. This adjustment results in a total r eduction of $6,300 .00 for this cost element.6 CONCLUSION

Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of a final fees awa rd, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for Attorney’s Fees and Costs. I therefore award a total of $ 6 9 ,622.36 reflecting $30,852.10 in attorney’s fees and $ 38,770.26 in costs , in the form of a check made jointly payable to Peti tioner and his attorney Ms. Amy Senerth

. Requested Awarded Difference

Attorney Fees $30,852.10 $30,852.10 $0.00

Attorney Costs $45,070.26 $38,770.26 $6,300.00

Total $75,922.36 $ 69,622.36 $6,300.00

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

court SHALL ENTER JUDGMENT in accordance with the terms of this decision. 4

IT IS SO ORDERED.

s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices renouncing their r ight to seek review.