# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 02-1314V (Not to be Published)

* * * * * * * * * * * * * * * * * * * * * * * * * BRUCE ANDERSON and * DONNA ANDERSON, as parents and * natural guardians of R.A., a minor , * Filed: October 29, 2015 * Petitioners, * Special Master Brian H. Corcoran * v. * Decision; Interim Attorney’s Fees * and Costs; Measles-Mumps-Rubella SECRETARY OF HEALTH AND * (“MMR”) Vaccination; Autistic HUMAN SERVICES, * Regression * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * *

Ronald C. Homer

, Conway, Homer & Chin-Caplan, P. C., Boston, MA, for Petitioners.

Lynn E. Ricciardella , U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION DENYING INTERIM COSTS REQUEST 1

Bruce and Donald Anderson filed this petition on behalf of their chil d, R.A., over 13 years ago, alleging that as a result of the admini stration of the measles-mumps-rubella (“MMR”) vaccination on December 13, 1999, R.A. suffers from a disorder of energy metabolism associated with autistic regression and multi-system dysf unction, and therefore seeking compensation under

1 Because this decision contains a reas oned explanation for my actions 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, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published decisions inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each pa rty 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, th e whole decision will be available to the public. Id

.2 the National Vaccine Injury Compensation Progr am [hereinafter, the “Vaccine Program” or “Program”]. 2 The case is scheduled for an enti tlement hearing on December 8-9, 2015.

On September 18, 2015, the Andersons filed a request for interim costs. ECF No. 85 [hereinafter, “Costs Pet.”]. In it, they ask fo r an award of $2,995.40 to reimburse their counsel and expert for travel expenses (hotel and airfare). As justification for th is request, Petitioners reference the fact that (as of the time of the filing of the costs petition) their counsel (the la w firm of Conway, Homer & Chin-Caplan, P.C. [hereinafter, the “H omer Firm”]) was embroiled in a dispute with Respondent’s counsel at the Depart ment of Justice over the proper hourly rate that the Homer Firm attorneys should be paid for their work in Vaccine Program cases. Because the Homer Firm feared that it could not “operate busines s as usual” (Costs Pet. at 3) , given that the fee dispute was preventing it from obtaining sums necessary to oper ate, Petitioners ask for reimbursement of these
costs in advance of the D ecember entitlement hearing.

Respondent weighed in on the merits of Petit ioners’ costs requests on September 25, 2015. ECF No. 86 [hereinafter, “Respons e”]. While not opposing the reque st in substance, Respondent pointed out that (since the case has not yet been adjudicated) a ny costs award would require a
determination of whether the claim had a reasonable basis. See Section 15(e). Respondent also invoked the factors set forth by the Federal Circuit in Avera v. Sec’y of Health & Human Servs.

, 515 F.3d 1343, 1352 (Fed. Cir. 2008), for an interi m award, which include determining if the matter has been protracted, or ha s involved the retenti on of “costly experts. ” Response at 2. No reply was filed by the Petitioners.

It is plainly the case that interim fees and costs awards are available to Vaccine Program petitioners. Cloer v. Sec’y of Health and Human Servs. , 675 F.3d 1358, 1362 (Fed. Cir. 2012);
Avera , 515 F.3d at 1352; see also McKellar v. Sec’y of Health and Human Servs. , 101 Fed. Cl. 297, 302 (2011). However, although there is deba te as to how the factors set forth in Avera are to be applied, at bottom the appropriateness of an interi m award is a matter left to the special master’s
discretion. Kirk v. Sec’y of Health & Human Servs.

, No. 08-241V, 2009 WL 775396, at *1 (Fed. Cl. Spec. Mstr. Ma r. 13, 2009) (reading Avera as setting a “broad, di scretionary vehicle for ensuring that petitioners are not punished fina ncially while pursuing their vaccine claim”); Bear v. Sec’y of Health & Human Servs ., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) ( Avera provides only “ examples and general guidance concerning when interim fees and costs might be awarded, leavi ng the special masters broad discretion to consider many factors in considering whether an interim awar d is appropriate in a particular case”) (emphasis in original).

2 The Vaccine Program comprises Part 2 of the National Chil dhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as am ended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereina fter “Vaccine Act” or “the Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).3 Another important consideration in determining the propriety of any fee or cost request is
whether a cost has been “incurred.” See 42 U.S.C. § 300aa-15(e)(1) (special masters may only
award reimbursement for costs “ incurred in any proceeding on [the vaccine injury] petition”) (emphasis added). Although the Vaccine Act does not explicitly define the term “incurred,” it has been interpreted to mean “legally liable to pay.” Klein v. Sec’y of He alth & Human Servs.

, No. 12- 560V, 2013 WL 5428471, at *4 (Fed. Cl. Spec. Mstr. Aug. 14, 2013) (quoting Black v. Sec'y of
Health & Human Servs

., 33 Fed. Cl. 546, 550 (1995)). An anticipated cost thus is not equivalent
to an incurred cost.

Here, I find in the exercise of my discretion th at an interim costs awar d is not appropriate. First, Petitioners’ primary basis for the request – the Homer Firm’s dispute with Respondent over attorneys’ hourly rates – appears to have been resolved by Special Master Gowen’s recent decision
in McCulloch v. Sec’y of Health & Human Servs. , No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Homer Firm’s concerns th at the delay in resolving fee disputes with Respondent was jeopardizing their representation of the Andersons herein (as well as all other Vaccine Program clients) have been greatly lessen ed (if not fully addressed) since the issuance of
that decision.

Second, I find that the present circumstances do not justify an interim award of the costs requested. The total sum is itself not especially la rge, and thus does not re flect the kind of expense hardship that it is unfair to expect counsel to bear in advance of trial. Most of the total, moreover ($2,061) ( see Costs Pet. at 9 n.11 and Tab A), reflects th e anticipated cost of a hotel stay in Washington, DC during the pending hearing – and thus reflects a cost that has not yet been
incurred. Klein , 2013 WL 5428471, at *4 (a “price quote” for an anticipated evidentiary cost is not an incurred cost). The remainder of the request ed costs are airfare for counsel and Petitioners’ experts ($934.40), but the attachment s to Petitioners’ interim costs re quest do not substantiate that they have been paid. And even if they have been incurred as that term is defined in the Program, I
do not find that the fact s of this case make an interim aw ard that effectively advances the
Petitioners the costs of travel to the hearing appropriate.

Petitioners may of course rene w their costs requests after the hearing (at which time they could also request attorney’s fees generated to date, as well as other expert costs relating to substantive expert tasks rather than travel). But the present request is premature and not justified by the circumstances. I therefore DENY Petitioners’ interim costs request.

IT IS SO ORDERED.

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