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# In the United States Court of Federal Claim s

OFFICE OF SPECIAL MASTERS

No. 14

- 898V

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THEODORE A. BRYAN

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUM AN SERVICES,

Respondent.

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* UNPUBLISHED

Special Master Katherine E. Oler

Filed: June 3, 2021

Interim Attorneys’ Fees and Costs

Richard Gage

, Richard Gage, P.C.

, Cheyenne, WY , for Petitioner
Camille Collett , U.S. Depar tmen t of Justice, Washington, DC, for Respondent

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1

On September 23 , 201 4

, Theodore Bryan (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa

- 10, et seq

. 2 (the “Vaccine Act” or “Program”) alleg ing Petitioner suffered from mental and physical injuries, resulting in permanen t disability from adverse effects of the seasonal influenza (“flu”) vaccine he
received on October 1 0 , 201 1

. Pet. at 1 , ECF No. 1.

1 Becau se this unpublished D ecision contains a reasoned explanation for the action in this case, I intend to post this D ecision on the United States Court of Federal Claims’ website,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 (co dified as amended at 44 U.S.C. § 3501 note (2012)). This means 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 D ecision’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 disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b ). Otherwise, the Decision in its present form will be available. Id.

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

- 660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa

- 10

– 34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.2

On October 9, 2020 , I issued a ruling finding that Petitioner had preponderantly established
that the flu vaccine he received on October 10, 2011 caused him to develop Chronic Fatigue Syndrome (CFS). ECF No. 132.

On August 27 , 2020 , Petitioner filed an application for int erim attorneys’ fees and costs, totaling $ 127

, 40 7 .43 Fees App. at 11 , ECF No. 117 . On September 9 , 2020, Respondent filed a response stating it is within my discretion to award interim attorneys’ fees and costs. Fees Resp.,

ECF No. 1 30

. Respondent “defers to [me] to determine whether or not petitioner here has met the legal standard for interim fees and costs award.” Id. at 2. On October 12, 2020, Petitioner filed a supplement to his Motion for Interim Attorneys’ Fees and Costs, requesting fees for Dr. Steinman’s expert report, a total of $ 8,6 50.00. Mot. to Supp., ECF No. 134. Thus, the total of
Petit ioner ’s request is $13 6

, 0 57.43.

For the reasons discussed below, I hereby GRANT IN PART Petitioner’s application and
award a total of $ 135, 9 22.68 in interim attorneys ’ fees and costs.

I. Legal Standard

A. Interim Attorneys’ Fees and Costs

The Federal Circuit has held that an award of interim attorneys’ fees and costs is permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed. Cir. 2010); Avera v. Sec’y of Health & Hum. Servs. , 515 F.3d 1343 (Fed. Cir. 20 08). In Cloer , the Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health

& Hum. Servs. , 675 F.3d 1358, 1361

- 62 (Fe d. Cir. 2012).

In Avera

, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases where proceedings are protracted, and costly experts must be retained.” Avera , 515 F.3d at 1352. Likewise, in Shaw

, the Federal Circuit held that “where the claimant establishes that the cost of litigation has i mposed 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.” 609 F.3d at 1375. Avera did not, however, define when interim fees are appropriate; rather, it has been inte rpreted to allow special
masters discretion. See Avera , 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs. , No. 08

- 241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.
Servs. , No. 11

- 362V, 2013 WL 691963, at *4 (Fed . Cl. Spec. Mstr. Feb. 4, 2013). Even though it has been argued that a petitioner must meet the three Avera criteria

-- protracted proceedings, costly expert testimony, and undue hardship

-- special masters have instead treated these criteria as possible factors in a flexible balancing test. Avera , 515 F.3d at 1352; see Al

- Uffi v. Sec’y of
Health & Hum. Servs. , No. 13

- 956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30, 2015).

A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the special master finds that a petitioner has brought his petition in good faith and with a reasonable basis. §15(e)(1); Avera , 515 F.3d at 1352; Shaw , 609 F.3d at 1372; Woods v. Sec’y of Health &

Hum. Servs , 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs. , 94 Fed.3

Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs. , 89 Fed. Cl. 661, 668 (2009); Bear

, 2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs. , No. 97

- 588V, 2012 WL 1450520, at *4 ( Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more than just financial involvement of a petitioner; it also looks at any money expended by a petitioner’s counsel. Kirk , 2009 WL 775396, at *2. Referring to Avera , former Chief Spec ial
Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees [is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id

.

Since the petition for compensation was successful, P etitioner is entitled to reasonable attorneys’ fees and costs. See § 15(e)(1)

. Reasonable attorneys’ fees and costs in Vaccine Act cases are determined using the lodestar approach, which begins with an assessment of a reasonable hourly rate multiplied by a reasonable number of hours expended in the case. Avera v. Sec’y of
Health & Hu m. Servs. , 515 F.3d 1343, 1347

- 48 (Fed. Cir. 2008.)

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 & Hum. 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 & Hum. Servs. , 22 Cl. Ct. 750, 753 (1991). Moreover, special masters are entitled to rely on their own experience and understanding o f the issues raised. Wasson

v. Sec’y of Health & Hum. Servs. , 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam)

.

Petitioner “bears the burden of establishing the hours expended” and the reasonableness of
the r equested fee award. Wasson, 24 Cl. Ct. at 484. Notwithstanding respondent’s failure to raise any specific objections to petitioner’s fee application, “the Special Master . . . [is] not limited to endorsing or rejecting respondent’s critique.” Duncan v. Sec ’y of Health & Hum. Servs. , No. 99

- 455V, 2008 WL 4743493 (2008). Furthermore, “the Special Master [has] no additional obligation to warn petitioners that [she] might go beyond the particularized list of respondent’s challenges.”
Id

.

II. Discussion

A. Undue Fi nancial Hardship

Counsel for Petitioner has worked on this case for nearly seven years ; further Petitioner has participated in an entitlement hearing and supplied expert reports from Drs. Marcel
Kinsbourne , Susan Levine, and Charles Lapp. See Exs. 34, 36, 52. Mr. Gage has expended more
tha n $35,000 .00 on the expert reports and other various out

- of

- pocket costs

. See Fees App. Tab A. Petitioner has not provided any specific reasoning why he should be granted an interim award,
however , I find it reasonable to award interim fees and costs at this juncture to avoid any undue financial hardship.

B. Attorneys’ Fees

Petitioner request s a total of $ 90,824.64 in attorneys ’ fees. See Fees App

. Tab A.4 1

. Reasonable Hourly Rate

A reasonable hourly rate is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera , 515 F.3d at 1348 (quoting Blum , 465 U.S. at 896 n.11). I n general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's attorney.” Rodriguez v. Sec'y of Health & Hum. Servs. , 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citin g Avera , 515 F. 3d at 1349).

McCulloch provides the framework for determining the appropriate compensation for attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Hum.
Servs. , No. 09

– 293V, 2015 WL 5634323 (Fed. Cl. S pec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years. 3

Petitioner’s counsel, Mr. Gage requests to be compensated at a n hourly rate of $ 299.64 for
work performed in 2014 ; $300.00 for work performed in 2015 ; $311.00 for work performed in

2016 ; $318.00 for work performed in 2017 ; $326.00 for work performed in 2018 ; $338.00 for work performed in 2019 ; and $350.00 for work performed in 2020. See generally Fee s App. Tab D. Ms. Kristen Blume requests to be compensated an hourly rate of $251.00 for work performed in 2018 and $338.00 for work performed in 2019, and Mr. James Mitchell requests to be compensated at an hourly rate of $251.00 for work performed in 201 5. See Fees App. Tab E and F. Mr. Gage also requests a paralegal hourly rate of $112.00 for work performed in 2014, and $120.00 for 2015

- 2020. These rates are consistent with the Fee Schedule and with what Mr. Gage

, Ms. Blume, Mr. Mitchell, and Mr. Gage’s paralegals has been awarded in the past. See, e.g.

, Pember v. Sec’y of Health & Hum. Servs. , No. 15

- 1005V, 2018 WL 3989514 (Fed. Cl. Spec. Mstr. Jun. 28, 2018); Demitor v. Sec’y of Health & Hum. Servs. , No. 17

- 564V, 2020 WL 1027955 (Fed. Cl. Spec. Mstr. Fe b. 7, 2020); Briggs v. Sec’y of Health & Hum. Servs. , No. 15

- 737V, 2020 WL 6144626 (Fed. Cl. Spec. Mstr. Sept. 28, 2020); Greene v. Sec’y of Health & Hum. Servs. , No. 11

- 631V, 2021 WL 690134 (Fed. Cl. Spec. Mstr. Jan. 7, 2021). I find the requested rates t o be reasonable and that no adjustment is warranted.

2. Hours Reasonably Expended

Attorneys' fees are awarded for the “number of hours reasonably expended on the litigation.”

3 The 2015

– 2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

- Rate

- Fee

- Schedule2015

- 2016.pdf.
The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

- Ra te

- Fee

- Schedule

- 2017.pdf.
The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202018.pdf.
The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/def ault/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.5

Avera , 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion to reduce the hours to a number that, in [her] experience and judgment, [is ] reasonable for the work done.” Saxton ex rel. Saxton v. Sec'y of Health & Hum. Servs. , 3 F.3d 1517, 1522 (Fed. Cir. 1993). In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen v. Sec'y of Health & Hum. Servs. , 102 Fed. Cl. 719, 728

- 29 (2011) (affirming the special master's reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Hum. Servs. , 38 Fed. Cl. 403, 406 (1997) (affirming the special master's
red uction of attorney and paralegal hours). While attorneys may be compensated for non

- attorney

level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Hum. Servs. , No. 08

– 243V, 2015 WL 2399 211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch , 2015 WL 5634323, at *26.

Petitioner’s counsel ha s provided a breakdown of hours billed an d costs incurred. Fees App. at 41

- 7 8 . I find the hours to be reasonable, thus I grant them in full.

Total attorneys’ fees to be awarded: $ 90,824.64

.

C. Reasonable Costs

Petitioner requests a total of $ 4 5

, 232

. 79 4 in costs

.

1. Petitioner ’ s E xpert C osts

Petitioner request s costs for the work performed by Dr s

. Marcel Kinsbourne, Charles Lapp,
Susan Levine , and Regina Smith

.

a. Dr. Marcel Kinsbourne

Petitioner requests a rate of $5 00 .00 per hour for 2 0.3 hours of work performed for a total

o f $ 1 0,15 0.00 . Dr. Kinsbourne graduated from Oxford University Medical S chool and has extensive clinical experience and academic expertise

. See generally Ex. 32

. Dr. Kinsbourne has
been awarded a rate of $500/hour by ot her special masters in the Program. See , e.g. , Martin v

. Sec'y of Health & Hum. Servs.

, No. 17

- 1741V, 2020 WL 5034355 (Fed. Cl. Spec. Mstr. Jul. 17, 2020) (granting all of Dr. Kinsbourne’s requested fees); Dimasi v. Sec'y of Health & Hum. Servs.

, No. 15

- 1455V, 2020 WL 4581287 (Fed. Cl. Spec. Mstr. Jul. 13, 2020) (granting all of Dr. Kinsbourne’s requested fees ); Aagotnes v. Sec'y of Health & Hum. Servs.

, No. 18

- 631V, 2021 WL 815916 (Fed. Cl. Spec. Mstr. Jan. 14, 2021). I find that $500 .00 per hour , as has consistently been
awarded to Dr. Kinsbourne is an appropriate hourly rate.

Dr. Kinsbourne requests compensation for 20.3 hours of work performed, which was well documented and reasonable. I grant those hours in full.

4 This i ncludes the original amount of $3 6

, 582

. 79 and Dr. Marcel Kinsbourne’s expert fees totaling $8,650.00, as his retainer was included in the original request. See Fees App. at 4; Fees App. Supp. at 3.6

Total costs for Dr. Kinsbo urne : $ 10,150.00

.

b. Dr. Charles Lapp

Petitioner requests a rate of $ 400 .00 per hour for approximately 42. 91 hours of work performed by Dr. Lapp for a total o f $ 19,324.08

. Fees App. at 102. Dr. Lapp has practiced in
internal medic in e and pediatrics. Ex. 53 at 1

. Dr. Lapp has also researched chronic fatigue syndrome for many years and is considered an expert in the field, giving talks worldwide on the
disease. See id. Dr. Lapp is also the director of the Hunter

- Hopkins Center, which specializes in
treatment of CFS. See id. Although this is Dr. Lapp’s first case in the Vaccine Program , I believe Dr. Lapp’s extensive knowledge and familiarity with CFS was helpful in my resolution of the case

. Thus, I fin d $400.00 per hour to be an appropriate rate for Dr. Lapp.

Dr. Lapp spent 24.91 hours preparing for the hearing and 9 hours for each day 5 of the two

day hearing. Th is seems reasonable, thus I grant Dr. Lapp’s requested hours in full.

Dr. Lapp requests an additional $1,800.00 for time spent traveling to the hearing. This was

a term i n Dr. Lapp’s “Statement of Professional Services”. Fees App. at 102. Dr. Lapp charges “$3,600/day for out

- of

- office services, plus travel, lodging, and meals”, which was note d as “Travel time @ 1⁄2 rate” for $1,800.00

. Because this expense is the equivalent of one half of Dr. Lapp’s hourly rate, I will grant it.

Dr. Lapp requests $357.08 for other expenses related to his travel for the two

- day entitlement hearing, including mea ls and a rental car. Documentation for these expenses were provided and will be compensated in full.

Total costs for Dr. Lapp : $ 19, 3 24.08

.

c. Dr. Susan Levine

Petitioner requests a rate of $400.00 per hour for 15 hours of work performed, for a total of $ 6,000 .00 , as well as $50.00 in photocopying and $25.00 in mailing charges . Fees App. at 112

- 13 . Dr. Levine is board certified in Internal Medicine and Infectious Diseases. Ex. 37 at 1. Dr.
Levine has also testified in a number of cases in the Vaccine Program and is not a new expert. See,

e.g. , Jane Doe/52 v. Sec'y of Health & Hum. Servs.

, 2009 WL 5206199 (Fed. Cl. Spec. Mstr. Dec. 15, 2009); McCabe v. Sec'y of Health & Hum. Servs.

, No. 13

- 570V, 2018 WL 3029175 (Fed. Cl. Spec. Mstr. May 17, 2018) ; Como v. Sec'y of Health & Hum. Servs.

, No. 18

- 99V, 2020 WL 4219695 (Fed. Cl. Spec. Mstr. Jun. 30, 2020) ; E.S. v. Sec'y of Health & Hum. Servs.

, No. 17

- 480V, 2020 WL 9076620 (Fed. Cl. Spec. Mstr. Nov. 13, 2020). I find that $6,0 75 .00 is a reasonable amount to pay Dr. Levine for the work she performed and the expenses she incurred

.

5 Dr. Lapp requests a total of $17,167.00 for services provided. This includes the documented 1495 minutes, or approximately 24.916 hours, preparing for the hearing, or a total of $9,967.00 (this total is reflected on Dr. Lapp’s “Statement of Professional Services”)

. Fees App. at 102. The remaining balance of $7,200.00, divided by Dr. Lapp’s requested hourly rate of $400.00, totals 18 hours, which I assume is Dr. Lapp’s time spent appearing and testifying during the two

- day entitlement hearing.7

Total costs for Dr. Levine: $ 6,0 75.00

.

d. Dr. Regina Smith

Petitioner requests $2,000.00 for Dr. Smith’s testimony during the two

- day entitlem ent hearing. Fees App. at 81, 110. It is unclear what Dr. Smith’s requested hourly rate is but this charge
is not unreasonable . Additionally, Dr. Smith has provided two letters that have been useful in my
decision

- making process. See Exs. 11 and 28. Theref ore, I will grant this request in full.

Total costs for Dr. Smith: $2,000.00

.

2. Miscellaneous C osts

Petitioner request s costs for copies, medical records, travel expenses, mailing fees, the hearing transcript, and PACER expenses, which total $ 7,683.71

.

Petitioner provided documentation for all costs, with the exception of $134.75 for medical

record s from Intermountain Healthcare. See Fees App. at 81. It is unclear to me what exhibit this is, thus I will defer this cost for a final fees application, where Petitione r can identify this exhibit.

Total miscellaneous costs to be awarded: $ 7,548.96

.

III. Conclusion

Accordingly, in the exercise of the discretion afforded to me in determining the propriety of interim fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner ’s application, as follows:

A lump sum in the amount of $ 13 5
, 9 22

. 68 , represe nting reimbursement of Petitioner ’s interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and h is
attorney, Richard Gage

.

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

Court SHALL EN TER JUDGMENT in accordance with this decision. 6

IT IS SO ORDERED.

s/ Katherine E. Oler
Katherine E. Oler Special Master

6 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review.