# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 89V

Filed: April 11, 2019

* * * * * * * * * * * * * * * JACQUELINE HAIM

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. *

*

*

*

*

*

*

*

* UNPUBLISHED

Decision on Interim Attorneys’ Fees and

Costs

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

Lisa Levine

, Esq.

, Lisa S. Levine, PA

, Weston, FL

, for petitioner.

Althea Davis

, Esq ., U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS 1

Roth , Special Master:

On January 29, 2015

, Jacqueline Haim ( “ petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program. 2 Petitioner allege d that s he suffer s from multiple s clerosis (“MS ”) as a result of the hepatitis A, human papilloma virus (“HPV”), and meningococcal meningitis vaccination s s he received on July 19, 2013

. Petition, ECF No. 1.

On November 6, 2018 , petitioner filed a Motion for Interim Attorneys’ Fees and Costs (“Motion for Interim Fees”), requesting $ 12,152.10 in attorneys’ fees and $ 5,826.50 in attorneys’

costs, for a total of $ 17,978.60

. Motion for Interim Fees at 1

- 2

, ECF No. 104

. On November 16

,

1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the

Court of Federal Claims’s website, in accordance with the E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. However, the partie s 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 s ecret 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 wh ole Decision will be available to the public. Id

.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

2018 , respondent filed a response to petitioner ’ s Motion for Interim Fees that contained no specific objection to the amount requested or hours worked, but instead asked that the undersigned exer cise her discretion in determining whether interim attorneys’ fees and costs are appropriate and whether the statutory requirements for an award of any fees have been met

. Response at 2

, ECF No. 105

. Petitioner did not file a reply to respondent’s response

.

I. Procedural History

Petitioner filed her petition on January 29, 2015. ECF No. 1. This case was originally assigned to Special Maste r Hamilton

- Fieldman on January 3 0, 2015

. 3 ECF No. 4 . Petitioner was

ordered to f

ile complete medical records and a Statement of Completion by Mar ch 12, 2015. Order,

ECF No. 5. Petitioner filed several medical records on February 20, 2015, and a Statement of Completion on March 20, 2015. Petitioner’s Exhibits (“Pet. Ex.”) 1

- 17, ECF No. 7

- 8. Respondent

was ordered to fil e a status report by April 10, 2015. Non

- PDF Order, dated March 20, 2015.

On April 6, 2015, r espondent filed his status report advising that he intended to file his Rule 4(c) Report by April 29, 2015. Respondent’s Status Report (“Resp. S.R.”) at 1, ECF No. 9. Respondent filed his Ru le 4(c) Report on April 29, 2015 and argued that petitioner failed to satisfy

the Althen criteria necessary to prove petitioner’s MS was caused by the vaccines in question. Respondent’s Report at 11, ECF No. 13.

A status co nference was held on May 20, 2015, after which petitioner was ordered to file update d medical records, an affidavit clarifying whether petitioner was being treated for MS or acute disseminated encephalomyelitis (“ADEM”), a s was mentioned in the medical rec ords from petitioner’s treating neurologist, Dr. William Sheremata. See Pet. Ex. 10 at 107. A status report identifying the places in her medical records that document her date of vaccination and date of onset of her symptoms by July 1, 2015 was ordered as well . Order, ECF No. 14. Petitioner was

also ordered to file an expert report by July 29, 2015. Id.

On June 19, 2015, petitioner filed a motion for extension of time to file her affidavits by July 15, 2015 , which was granted. Motion, ECF No. 16; Order, ECF No. 17. Petitioner filed updated medical records on July 1, 2015. Pet. Ex. 22, ECF Nos. 20

- 21.

Petitioner’s counsel was contacted by Special Master Hamilton

- Fieldman’s chambers on July 6, 2015 regarding petitioner’s missed deadline to file a s tatus report identifying the pages in the medical records that contained proof of vaccination and onset of symptoms by July 1, 2015

. Informal Communication, dated July 6, 2015. Petitioner’s counsel advised she would file the documents that day. Id. Petitio ner filed a Statement of Completion and a status report including the requested references the same day. Petitioner’s Status Report (“Pet. S.R.”), EC F No. 23

- 24. Special Master Hamilto n

- Fieldman’s chambers contacted petitioner’s counsel again on July 6,

20 15, advising that several of petitioner’s medical records were filed incorrectly. Informal Communication, dated July 6, 2015. The Court entered four orders striking petitioner’s erroneously filed exhibits the same day . Non

- PDF Orders, dated July 6, 2015.

3 This case was reassigned to t he undersigned on January 14, 2016. ECF No. 52.3

Petitioner filed additional medical records, including MRI imaging , on July 14, 2015. Pet.

Ex. 23

- 24, ECF No. 29. On July 28, 2015, petitioner filed a motion for extension of time to file her expert report. Motion, ECF No. 31. A status conference was held on August 5, 2015, after which petitioner’s motion for extension of time was granted, and she was ordered to file an expert report by September 11, 2015. Order, ECF No. 34.

Petitioner filed updated medical records on August 2 7, 2015, and September 10, 2015 . Pet.

Ex. 29

- 30, ECF No. 35

- 36. On September 11, 2015, petitioner filed an expert report from Dr.

Shere mata . Pet. Ex. 32, ECF No. 37.

A status conference was held October 7, 2015, during which petitioner’s counsel was

advis ed of the shortcomings of Dr. Sheremata’s expert report. Order, ECF No. 45. Special Master

Hamilton

- Fieldman informed petitioner’s counsel that Dr. Sheremata’s report was conclusory; she noted the report did not identify the mechanism by which the vaccines allegedly caused petitioner’s injuries, lacked citations to the medical record s in support of the theory, and did not explain in sufficient detail why it was reasonable to believe that onset occurred so quickly after vaccination.

Id. Accordingly, petition er was ordered to file a supplemental expert report addressing the aforementioned issues by November 25, 2015. Id.

Petitioner filed three motions for extension of time over the following six months. 4
Motions, ECF Nos. 49

- 50, 53. On June 6, 2016 , petitioner incorrectly filed the supplemental report

from Dr. Sheremata seven times. See ECF Nos. 54

- 60. The following day, petitioner filed motions to strike each expert report, Motions, ECF No. 61

- 67, which the unders igned granted. Non

- PDF Order, dated June 8, 2016. P etitioner filed a nother incorrectly filed supplemental expert report 5 authored by Dr. Sheremata, along with supporting medical literature, on June 22, 2016. Pet. Ex.

33

- 40, ECF No. 68

- 76.

A status conference was held on July 26, 2016, dur ing which petitioner was informed that the recently filed expert reports contained several errors, and one filing appeared to begin in the middle of the report. Order at 1, ECF No. 78. The undersigned also advised petitioner that Dr. Sheremata’s report fai led to satisfy the Althen criteria and did not address the quick onset of petitioner’s symptoms following the vaccine. Id. Dr. Sheremata also failed to address which of the vaccinations in question trigged petitioner’s ADEM and how ADEM led to petitioner’s MS diagnosis. Id. Petitioner was ordered to strike the erroneously filed documents by July 29, 2016

and file an expert report that complied with the Althen criteria by August 25, 2016. Id.

On August 22, 2016, petiti oner filed motions to strike t he incorrectly filed exhibits and a

motion for extension of t ime

, requesting a 90

- day extension to file her expert report from Dr. Sheremata as he had recently fallen ill. Motion s , ECF No s . 79

- 81 . The Court granted petitioner’s motions to strike, Non

- PDF Orders, dated August 22, 2016, and granted petitioner’s motion for extension of time in part, allowing a 60

- day extension to file her expert report by October 25, 2016.

Non

- PDF Order, dated August 22, 2016.

4 One of these motions was due to a death in petitioner’s counsel’s family . Motion, ECF No. 50.

5 This expert report was later stricken and re

- filed due to erroneous pagination. See Order, ECF No. 78.4

On October 24, 2016, petitioner filed a supplemental expert report from Dr. Sheremata. Pet. Ex. 41, ECF No. 84. The parties were ordered to file a joint status report by November 30, 2016, indicating whether settlement negotiations were a poss ibility. Non

- PDF Order, dated October 24, 2016.

The parties filed a joint status report on November 23, 2016, advising that respondent was not interested in pursuing settlement at that time. Joint S.R., ECF No. 85. Respondent was ordered to file an exper t report by January 23, 2017. Non

- PDF Order, dated November 23, 2016. After two motions for extension of time, Motions, ECF No. 86

- 87, respondent filed an expert report from Dr. Subramaniam Shriram on April 24, 2017. Respondent’s Exhibit (“Resp. Ex.”) A, E CF No. 88.

A status conference was held on June 29, 2017, during which petitioner’s counsel advised that petitioner’s expert, Dr. Sheremata, had recently passed away. Order, ECF No. 90. As such, petitioner was ordered to file a status report by August 1, 2017, advising the Court on her progress in obtaining a new expert. Id.

After two motions for extension of time, Motions, ECF No. 91

- 92, petitioner filed a motion on December 5, 2017, advising she had obtained a new expert , Dr. Waden Emery, and request ing 60 days to file Dr. Emery’s expert report. Motion, ECF No. 93. Petitioner was granted a 90

- day extension and was ordered to file an expert report by March 5, 2018. Non

- PDF Order, dated December 5, 2017. On March 5, 2018, petitioner filed an expert repo rt from Dr. Emery, ECF No. 94, that was later stricken as it was incorrectly filed. Order, ECF No. 102.

On March 7, 2018, the undersigned issued an order indicating that Dr. Emery’s report failed to address any of the three

- prongs set forth in Althen

. Order, ECF No. 95 . Therefore, petitioner was ordered to file a supplemental report from Dr. Emery that complied with Althen by May 7,

2018. Id. Petitioner filed Dr. Emery’s supplemental report and supporting medical literature on May 7, 2018. ECF No. 97. H owever, the report and the literature were later stricken from the record due to incorrect filing and pagination. Order, ECF No 102.

A status conference was held on July 11, 2018, during which petitioner was advised that

several of her exhibits were filed incorrectly, either out of numerical sequence and/or without appropriate pagination. Order, ECF No. 98. Petitioner was also informed that Dr. Emery’s supplemental expert report failed to address Althen prongs 1 and 2. Id. Petitioner was ordered to

file mo tions to strike the incorrectly filed documents by August 27, 2018 and file either a supplemental expert report that satisfies the Althen criteria or a status report indicating how she intended to proceed by October 9, 2018. Id.

Petitioner filed motions to strike her impro perly numbered and paginated fi lings on August 23, 2018, which were granted. Order, ECF No. 102. Petitioner also re

- filed Dr. Emery’s expert

report that had already been filed in this case on August 23, 2018. ECF No. 100. On October 9,

2 019, petitioner filed a supplemental expert report from Dr. Emery. Pet. Ex. 48, ECF No. 101. Respondent was ordered to file a responsive expert report or a status report advising how he intended to proceed by December 10, 2018. Non

- PDF Order, dated October 9, 2018.5

On November 6, 2018, petitioner filed a Motion for Interim Attorneys’ Fees and Costs (“Interim Fees Motion”), in which she requested attorneys’ fees in the amount of $12,152.10, and costs in the amount of $5,826.50, totaling $17,978.60. Interim Fees Motion at 1

- 2, ECF No. 104. On November 16, 2018, r espondent filed a response to petitioner’s Interim Fees Motion stating, “Respondent defers to the Special Master to determine whether or not petitioner has met the legal

standard for an interim fees and costs award . . . and the statutory requirements for an award of attorneys’ fees.” Response, ECF No. 106. Petitioner did not file a reply to respondent’s response.

Respondent filed an expert report from Dr. Sriram on December 10, 2018. Resp. Ex. C, ECF No. 106. A Rule 5 status conference was scheduled for January 31, 2019. Non

- PDF Order, dated December 17, 2018. Following a lapse in the Department of Justice’s appropriations from December 22, 2018 through January 25, 2019, the Rule 5 status conferenc e was rescheduled for April 17, 2019. Non

- PDF Order, dated February 5, 2019. Respondent filed medical literature on March 22, 2019. Resp. Ex. A1

- 7, C3, ECF No. 107.

On April 2, 2019, petitioner’s counsel contacted the undersigned’ s c hambers advising that

she was now unavailable for the previously schedule Rule 5 status conference. Informal Communication, dated April 2, 2019. Petitioner’s counsel was provided with three possible dates

for the status conference but informed the undersig ned’ s c hambers that she was unavailable on all the proposed dates. Informal Communication, dated April 4, 2019. Petitioner’s counsel, along with respondent’s counsel, were provided with additional dates for a status conference via email the same day, but p etitioner’s counsel has yet to respond with her availability.

This matter is now ripe for determination.

II. Legal Framework

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, petitioner’s counsel is automatically entitled to reasonable attorneys’ fees and costs

. Id. ; see Sebelius v. Cloer , 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlem ent to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Moreover, special masters have discretion to award interim fees while the litigation is ongoing if “the cost of litigation has imposed an undue hardship” and there is “a good

faith basis for the claim.” Shaw v. Sec’y of Health & Humans Servs.

, 609 F.3d 1372, 1375 (Fed. Cir. 2010); see Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 20 08). One instance in which interim fees have been awarded is “where proceedings are protracted.”

Avera , 515 F.3d at 1352.

II I . Discussion

A. Availability of Interim Fees

The court in Avera held that interim fees may be awarded “in appropriate circumstances.”

515 F.3d at 1351. The court then listed some circumstances

— cases involving “protracted” proceedings and “costly experts”

— in which it would be “particularly appropriate” to award6

interim fees. Id. at 1352. But “the Federal Circuit in Avera

. . . did not enunciate the universe of litigation circumstances which would warrant an award of interim attorney’s fees,” Woods , 105 Fed. Cl. at 154, and “special masters [retain] broad discretion in d etermining whether to award” them, Al

- Uffi ex rel. R.B. v. Sec’y of Health & Human Servs. , No. 13

- 956V, 2015 WL 6181669, at *5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). The inquiry is simply whether there is “a good faith basis

for the claim” and the denial o f interim fees would “impose[] an undue hardship” in the

circumstances of the case. Shaw , 609 F.3d at 1375. In making this determination, “the special master may consider any of the unique facts of a case.” Rehn v. Sec’y of Health & Human Servs.

, 126 Fed. Cl. 86, 94 (2016).

Under the circumstances of this case, interim fees are not warra nted. While t his case has been pending for four years, which ordinarily “suffice[s] to constitute the type of ‘circumstances’ to warrant an interim fee award, ” it has not y et been determined whether petitioner meets the statutory requirements for an award of attorneys’ fees and costs

. Woods , 105 Fed. Cl. at 154; see also, e.g.

, Thompson v. Sec’y of Health & Human Servs. , No. 12

- 475V, 2018 WL 1559799, at *1 (Fed. Cl. Spec. Mstr. Feb. 28, 2018) . Further the delays in this case were primarily within the control of petitioner. Petitioner recently filed an expert report that may not satisfy the Althen

criteria. S ee Pet. Ex. 4 8. Though a Rule 5 status conference has been schedule d twice, one adjourned due to the lack of the Department of Justice’ s appropriations, and one rescheduled at petitioner’s counsel’s request, the undersigned has been unable to discuss this matter with counsel and whether petitioner’s expert report is suffi cient in order to proceed.

This matter has been pending before the Court as long as it has due to petitioner’s counsel’s inability to file documents in accordance with the Vaccine Guidelines. See ECF Nos. 27, 30, 54

- 60, 68

- 69, 97. Additionally

, petitioner has failed to file expert reports in compliance with Althen despite several orders issued by the undersigned and Special Master Hamilton

- Fieldman explaining the Althen criteria. See Orders, ECF Nos. 45, 78, 95, 98. Therefore, interim fees and

co sts will not be entertained in this matter, if at all, until an entitlement hearing has been held , if deemed appropriate

. Therefore, petitioner’s Motion for Interim Fees and Costs is DENIED

.

I V

. Conclusion

Based on the foregoing, petitioner’s Motion for Interim Attorneys’ Fees and Costs is

DENIED

. The C lerk of Court shall enter judgment accordingly. 6

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special M aster

6 Pursu ant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.