In the United States Court of Federal Claims

Case No. 01-707V

(Filed: April 16, 2013)

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

MICHAEL STEPHEN SHAW,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

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

Vaccine Act; Interim fees;

Avera; McKellar

Ronald C. Homer, Boston, MA, for plaintiff.

Voris E. Johnson, United States Department of Justice, Civil Division,

Washington, D.C., with whom were Tony West, Assistant Attorney General,

Mark W. Rogers, Acting Director, Vincent J. Matankoski, Acting Deputy

Director, and Catharine E. Reeves, Assistant Director for defendant.

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OPINION

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This is an action brought under the National Vaccine Injury

Compensation Program. See 42 U.S.C. §§ 300aa-1 to -34 (2006) (the “Act”).

The matter is still pending before the Office of Special Masters awaiting a

decision on the merits. Before the court now, however, is a motion for review

In accord with the Rules of the Court of Federal Claims, App. B, Rule

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18(b), this opinion was initially filed under seal on February 14, 2012. The

parties were afforded fourteen days in which to propose redactions. Neither

party proposed any redactions.
of a decision by the special master to award only some of the fees and costs

sought by petitioner on an interim basis. Petitioner requested over $175,000

and was awarded a little less than $13,000. The matter is fully briefed. Oral

argument is deemed unnecessary. For the reasons set out below, we deny the

motion for review.

BACKGROUND

The petition for compensation was filed in December 2001. It became

part of a large group of cases involving the assertion of injury flowing from

administration of the Hepatitis B vaccine. The resulting omnibus proceeding

understandably delayed resolution of the associated cases, including this one.

A hearing on the merits was held on March 12, 2008. Petitioner filed his

request for an award of interim fees and costs on August 19, 2008. He sought

approximately $175,000. The government opposed the fee and cost request as

“excessive,” agreeing only that it would not dispute approximately $13,000.

On March 27, 2009, the special master awarded $12,632.59 and denied the rest

of the amount sought, at least on an interim basis. The special master noted

thatshe anticipated “vigorous” objection from respondent at the time petitioner

put in his final fee request and that pausing to assess in detail the disputed

portions of the interim fee request would “further delay a decision on

petitioner’s petition for fees and costs.” Shaw v. Sec’y Health & Human

Servs., No. 01-707V, 2009 U.S. Claims LEXIS 188, *8-9 (Fed. Cl. Spec. Mstr.

Mar. 27, 2009).

Petitioner moved for reconsideration of the March 27, 2009 interim fee

decision. The special master denied the motion for reconsideration, and wrote

that “the undersigned is preparing a ruling on entitlement in this matter.” Shaw

v. Sec’y Health & Human Servs., No. 01-707V, 2 (Fed. Cl. Spec. Mstr. May

1, 2009) (order denying motion for reconsideration). In explaining her

decision to defer consideration of anything other than the undisputed amounts,

the special master explained that “A significant issue in the entitlement ruling

is whether [petitioner’s expert] Dr. Tenpenny, as an osteopathic doctor and one

of petitioner’s many treating physicians was qualified to opine on the cause of

petitioner’s neurologic injury.” Id. She went on to write that “[t]he

undersigned has expressed serious concerns . . . related to the reasonableness

of the fees sought, particularly as it relates to petitioner’s expert, Dr.

Tenpenny.” Id. at 3.

The special master’s statements were prophetic in two respects. First,

as predicted, the special master issued her opinion on the merits denying the

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petitioner’s claim on August 31, 2009, fairly soon after the decision on

reconsideration. Also as anticipated, she rejected Dr. Tenpenny’s testimony

as illogical and concluded that Dr. Tenpenny was not qualified to testify as an

expert. She also emphasized the link between the merits decision and attorney

fees:

The undersigned observes here, and will address in

further detail upon submission of petitioner’s request for

attorneys’ fees and costs, that although presented as a treating

doctor, Dr. Tenpenny effectively offered an expert opinion

without the requisite qualifications to do so. On this ground, the

reasonableness of the requested fees for Dr. Tenpenny, when

submitted, will be closely examined.

Shaw v. Sec’y Health & Human Servs., No. 01-707V, 2009 U.S. Claims

LEXIS 534, *84 n.40 (Fed. Cl. Spec. Mstr. Aug. 31, 2009).

Petitioner subsequently moved for reconsideration of the merits

decision based on new evidence that was admittedly previously available.

That request was denied and petitioner sought review of the special master’s

merits decision here. We rejected the petition for review insofar as it

challenged the merits of the causation determination, but, in the interest of

justice, we remanded for the special master to consider the new evidence.

Shaw v. Sec’y Health & Human Servs., 91 Fed. Cl. 715 (2010). The merits

redetermination on remand is pending before the Office of Special Masters. 

DISCUSSION

Petitioner’s principal argument is that litigation of vaccine claims has,

in general, become more complex than anyone, including Congress,

anticipated. This can lead to long periods between filing and disposition and,

in many cases, the accrual of substantial costs and fees. No doubt that is true.

We note that in this case, however, the one which matters, petitioner sought a

stay of this action pending the outcome of the omnibus proceedings. That stay

lasted five years. Moreover, of the 164 entries on the docket sheet as of this

ruling, more than two dozen relate only to the matter of interim fees.

Petitioner also contends that it was arbitrary and capricious for the

special master not to proceed to resolution of the interim fee request in its

totality because “she will have no more evidence with respect to the interim

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fee request than she does today.” Pet’r’s Mem. in Supp. Mot. Review 11,

ECF. No. 91. According to petitioner, the special master has, in effect, failed

to exercise her discretion by deferring to the respondent’s unexamined

opposition.

Respondent arguesthat none of the special circumstances cited in Avera

v. Secretary of Department of Health & Human Services, 515 F.3d 1343 (Fed.

Cir. 2008), were present to warrant an interim award in this case. It also

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contends that the special master was well within her discretion to award only

those fees which were uncontested and to undertake a full consideration only

after an examination of the evidence in the context of ruling on the merits.

In Avera, the Federal Circuit held that “subsection 300aa-15(f)(1) did

not limit the award of attorneys’ fees only to situations where an election has

been made. . . . There is nothing in the Vaccine Act that prohibits the award of

interim fees.” 515 F.3d at 1351. In its decision in this action holding that we

have jurisdiction to consider a challenge to a denial of interim fees, the Federal

Circuit noted that a petitioner is entitled to attorneys’ fees “as long as he or she

brings the action in good faith and with a reasonable basis, regardless of the

ultimate outcome of the case.” Shaw, 609 F.3d at 1377. With respect to

interim fees, it noted that a special master can “often determine at an early

stage of the proceedings whether a claim was brought in good faith and with

a reasonable basis.” Id. (quoting Avera, 515 F.3d at 1352).

“Often,” however, is not “always.” The upshot of the Avera and Shaw

decisions is that, because fees may be recoverable even if the petitioner

ultimately loses, and because the special master may be in a position to assess

the bona fides of the claim even before the end of the litigation, then, under

appropriate circumstances, the special master may award interim fees. Factors

recognized by the Federal Circuit in Avera as relevant to consider include

whether the litigation has been protracted or whether it was necessary to

engage costly experts. Avera, 515 F.3d at 1352. Thus, as we noted in

McKellar v. Secretary of Health & Human Services, if “mere good faith and

Respondent’s principal argument in opposition to the interim fee

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request initially was that the court lacked jurisdiction to hear a decision of the

special master with respect to an interim request for fees. That theory was

ultimately rejected by the Federal Circuit. See Shaw v. Sec’y Health & Human

Servs., 609 F.3d 1372, 1378 (Fed. Cir. 2010).

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reasonable basis were all that is necessary, the Avera factors become

superfluous and interim fees would be the norm.” 2011 U.S. Claims LEXIS

2209, *12 (Fed. Cl. Nov. 4, 2011) (construing Avera to require “that some

special showing is necessary to warrant interim fees, including but not limited

to the delineated factors of protracted proceedings, costly experts, or undue

hardship”). As we intimated in McKellar, there may well be other relevant

factors, but by no means does Avera hold that interim fees are presumptively

available merely because the vaccine program in general has become more

complex than Congress anticipated.

Most relevant to the present dispute, however, was the Federal

Circuit’s observation in this case: “[t]he special master may determine thatshe

cannot assess the reasonableness of certain fee requests prior to considering

the merits of the vaccine injury claim.” Shaw, 609 F.3d at 1377. That is

precisely what the special master did in reserving ruling on the bulk of

petitioner’s interim fee request. She had misgivings about the testimony of Dr.

Tenpenny and those misgivings later lead to her denial of relief. That

skepticism about Dr. Tenpenny was not the basis for our remand. Presumably,

therefore, it was not necessary to engage Dr. Tenpenny. We note in particular

some of the cost items as to which the special master expressed concern: the

$25,800 which Dr. Tenpenny billed for expertservices; the $1,169.50 spent on

airline tickets for Dr. Tenpenny to fly from Cleveland to Houston to Salt Lake

City on March 16, 2008, when the entitlement hearing was held in Sacramento

on March 12, 2008; and the $139.19 billed for two meals consumed by Dr.

Tenpenny and petitioner’s counsel. She also noted that 260 hours were billed

by petitioner’s counsel to prepare for a one day hearing. Her reluctance to rule

on whether such items were recoverable until she ruled on entitlement is

certainly reasonable.

CONCLUSION

The special master’s decision to defer consideration of most of the

interim fee and cost request until final resolution of the merits was well within

her reasonable discretion. The motion for review of the orders of March 27,

2009 and May 1, 2009 is denied.

s/ Eric G. Bruggink

ERIC G. BRUGGINK

Judge

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