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# eberal C!Claim% OFFICEOF SPECIAL MASTERS Filed: February 15, 2018 

## * * * * * * * * * * UNPUBLISHED A.M., a Minor, by Parents and Natural Guardians: SEAN MILLER and APRIL MILLER, Petitioners, No. 16-883V 

# FILED FEB 1 52018 U

.S

. COURT OF FEDERAL CLAIMS

v. 

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## * * * * * * * ChiefSpecial MasterDorsey SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. 

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## * 

## * * 

## * Mr. Seanand Mrs. April Miller,prose. Petitioners' Costs. Incurred Costs. Paymentfor MRI

.

Ann DonohueMartin, U.S DepartmentofJustice, Washington, D

.C., for respondent. DECISIONAWARDING COSTS 1 On July 25, 2016, Sean and April Miller ("petitioners") filed a pro se petition for compensation in theNational Vaccine Injury CompensationProgram2 ("the Program") on behalf of their minor child, A.M. Petitioners alleged that A.M. suffered skin rashes and Autism Spectrum Disorder ("ASD") as a result ofmultiple vaccinations she received on June 27, 2014,

1 This decision will be posted onthe website ofthe United States Court ofFederal Claims' website, inaccordance with the E-GovernmentAct of2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to theinternet. As provided by 42 U.S

.C. § 300aa-12(d)(4)B), however, the parties may objection to the published Decision's inclusion ofcertain kinds ofconfidential information. Specifically, Under Vaccine Rule 18(b), eachparty has 14 days withinwhich to request redaction "ofany informationfurnished by that pmty: (1) that is a trade secret or commercial orfinancial in substance and is privileged or confidential; or (2) that includes medical files orsimilm· files, the disclosure ofwhichwould constitute a clearlyunwarranted invasion ofprivacy." Vaccine Rule 18(b). Otherwise,the whole decision will be available to thepublic inits current f01m. Id

. 2 TheNational Vaccine Injury CompensationProgramis setforth in Part2 oftheNational Childhood Vaccine Injury Act of 1986,Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) ("VaccineAct" or "theAct"). All citations inthis decision to individμal sections ofthe Vaccine Act are to 42U.S.C. § 300aa

. 

### REISSUED FOR PUBLICATION MAR 12 2018 OSM U.S. COURT OF FEDERAL CLAIMSand August 21, 2014, respectively. Petition at Preamble. On October 31, 2017, the undersigned issued a Decision dismissing petitioners' petition for failure to prosecute. Decision dated Oct. 31, 2017 (ECF No. 24). Judgment entered on December 7, 2017. (ECF No. 26). On December 26, 2017, petitioners filed a Motion for Litigation Costs, wherein they requested atotal of$5,848.31 in reimbursement for medical testing, medical records, copies, and legal work performed by Mr. Miller, a licensed paralegal. Petitioners' Application ("Pet. App.") dated December 26, 2017 (ECF No. 28). On January 9, 2018, respondentfiled aresponse to petitioners' motion for litigation costs. Respondent's Response ("Resp.") dated January 9, 2018 (ECF No. 29). Respondent deferred to the undersigned's discretion to determine the appropriate amount ofpetitioners' costs. Id. at 2. Respondent also argued thatprose litigants are not entitled to receive compensationfor time spent performing legal work. Id. at 3 (citing Uscher v. Sec'y ofHealth & Human Servs., 15-798V, 2017 WL 837693, at *2 (Fed. Cl. Spec. Mstr. March 3, 2017)). Petitioners filed a reply on January 22, 2018. Petitioners' Reply ("Pet. Reply") dated January 22, 2018 (ECF No. 30). Petitioners argue that Mr. Sean Miller holds a Bachelor of Science Degree in Paralegal Services from Kaplan University and was trained in legal research and writing. Id. at 

### 1. Petitioners stated that they researched services ofother attorneys to help them with their case but thatthe "fees range[d] from $100 [per] hour to 33% ofthe reward [plus] an additional $5,000 for retainer fees and administration costs." Id. Petitioners thus argue that Mr. Miller's fees are reasonable and should be paid in full, as he only charged $55.00 per hour for 16 hours of legal research, for a total of $4,400.00. Id. (citing Martinez v. Johary, 2010 WL 4056018 (M.D. Florida Oct. 15, 2010) (in an order awarding attorneys' fees and costs, plaintiffs paralegal was compensated at a rate of $100.00 per hour for work performed on a Fair Labor Standards Act case). Thismatteris nowripe for adjudication. Forthereasons discussedbelow,theundersigned awards petitioners a total of$1,448.31 in costs. I. Relevant Procedural History The initial status conference was held in petitioners' case on August 25, 2016. Order dated August 29, 2016 (ECF No. 7). Petitioners filed additional medical records on September 29, 2016.3 Respondent filed a Rule 4(c) Report on January 26, 2017. During a status conference on February 23, 2017, the undersigned explainedthat petitioners would need to file an expert rep01t. An Order to Show Cause was issued on

3 These records were marked "Supplemental Attachments" and are referenced herein as "Pet'rs' Supp. Att.". 2February 27, 2017, and petitioners were given until April 28, 2017, to file an expe1i report in their case. Order to Show Cause dated Feb. 27, 2017 (ECF No. 15). On March 27, 2017, petitioners requested an extension until October 2017 to file an expert report, in compliance with the undersigned's February 27, 2017 Order to Show Cause. Petitioners stated thatthey inquired at several clinics and hospitals near their home in hopes of retaining an expert. When these attempts proved unsuccessful, petitioners set up an appointment for AM. at the Children's Hospital in Omaha, Nebraska ("Children's Hospital). During a status conference on April 6, 2017, the undersigned grantedpetitioners' motion and ordered them to file a status report by Friday, October 20, 2017, updating the Court as to the diagnosis and testing results from A.M.'s medical appointment at the Children's Hospital. On September 5, 2017, petitioners filed a status report containing information regarding A.M.'s appointments at the Children's Hospital during the summer of2017. Petitioners stated that at an appointment on July 14, 2017, she underwent medical testing. Petitioner filed documentation ofthis visit as Exhibit A. On July 31, 2017, AM. underwent an MRI ofthe brain, and petitioners filed her MRI results as Exhibit B. Petitioners stated that A.M. was diagnosed with gliosis and seizure-like activity on August I, 2017. On October 6, 2017, petitioners filed additional medical records from these visits, where the clinicians notedthat "there is a strong possibility that [AM.'s ASD] is associated with another medical/genetic condition." Pet. Status Report dated Oct. 6, 2017 (ECF No. 22), Ex.Fat 5, 7. II. Discussion

a. Costs for Mr. Miller's Paralegal Work The Vaccine Act provides that a petitioner may be compensated for "(A) reasonable attorneys' fees and (B) other costs, incurred in any proceeding." §ll(e)(l) (emphasis added). The requirement that attorneys' fees be reasonable also applies to costs. McCulloch v. Sec'y of Health & Human Servs., 09-293V, 2015 WL 5634323, at *5 (Fed. Cl. Spec. Mstr. Sept. I, 2015) (citing Perreira v. Sec'y ofHealth & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992)). Past Vaccine Program cases have concluded that a cost is only "incurred" when the petitioner assumes a legal obligation. Kooi v. Sec'y ofHealth & Human Servs., 05-438V, 2007 WL 5161800, at *2 (Fed. Cl. Spec. Mstr. Nov. 21, 2007); see also Black v. Sec'y ofHealth & Human Servs., 90-3l95V, 33 Fed. Cl. 546, 550 (1995) ("One incurs an expense, therefore, at the moment one becomes legally liable

..."), aff'd, 93 F.3d 781 (Fed. Cir. 1996); Jessen v. Sec'y of Health & Human Servs., 1995 WL 561714 (Fed. Cl. 1995) (explaining that losing an oppmiunity to earnmoney is notincurring an expense). This legal obligation arises mostfrequently whenthe petitioner hires another person, such as a lawyer or medical expert, to work on the case. Kooi, 2007 WL 5161800, at *2 (stating that "inthe context ofattorneys' fees, a legal obligation can be established tln·ough an attorney-client relationship"). Petitioners argue that Mr. Miller should be compensated for his paralegal work at arate of 

### 3$55.00 perhour, becausethis rate is cheaperthan therates ofotherattorneys and paralegals whom petitioners contacted to represent them in their case. Pet. Reply at !. While it may be true that Mr. Miller'srate of$55.00 per hour is lower than the rates ofother paralegals who practice in the Vaccine Program, Mr. Miller is not entitled to receive compensation for work performed on his own case, because a special master can only reimburse petitioners for reasonable expenses "incurred" in the prosecution oftheir claim. Petitionersare not legally obligatedto personallydevotetime and moneytowardspursuing a claim. Instead, petitioners' actions reflect a personal desire to help their child. While this behavior is admirable, it is not legally compensable. For this reason, the Vaccine Program consistently denies' petitioners requests to be compensated for their own work, time, and lost wages. For example, in Karbusheva v. Sec'y of Health & Human Servs., 13-040V, 2016 WL 3022101 (Fed. Cl. Spec. Mstr. Feb. 26, 2016), the undersigned ruled that a

### prosepetitioner could not be reimbursed for her own "time spent on the matter." In Kooi, then Chief-Special Master Golkiewicz refused to reimburse the petitioner's husband, a lawyer, for the time he spent researching the Vaccine Program, identifying an experienced attorney to appear in the case, and working on the petition. 2007 WL 5161800. And in Riley v. Sec'yofHealth & Human SErvs., 90-466V, 1992 WL 892300 (Fed. Cl. Spec. Mstr. March 26, 1992), the special master did not reimburse afather for the time spentpursuing avaccine injury claim onbehalfofhis son. Similarly, in this case, petitioners cannot be reimbursed for the paralegal work that Mr. Miller pe1formed. Like the petitioners in Karbusheva, Kooi, and Riley. he was personally invested in the case but was not legally obligated to spend his time on it. Therefore, petitioners did not "incur" the costs ofhis paralegal work. Thus, the undersigned reduces petitioners' costs application 

### by $4,400.00. b. Costs for A.M.'s Medical Testing Petitioners request a total of$1,443.51 in costs for "medical testing," including an MRI and anesthesia. Pet. App. at 1. In supp01t ofthis request, petitioners filed a statement from Children's Hospital and Medical Center in Omaha, Nebraska, stating that their patient account held abalance of$1,443.51. Pet. App. at 3. Petitioners did notprovide any otherdocumentation showing the actual cost ofthese services. The visitto OmahaChildren's Hospital and A.M.'sMRI confirmed her diagnosis ofASD, which was relevant evidence that was important in the undersigned's dismissal of the case. Because the undersigned characterizes the MRI expenses as being incurred for the purposes of resolving the causation issues in this case, she will reimburse petitioners for the $1,443.51 they incurred for A.M.'s MRI.

c. Other Costs Petitioners further request $4.80 in reimbursement for medical record fees and copies. Pet. App. at 1. The undersigned finds this request reasonable and will reimburse it in full. 4III. Conclusion Accordingly, the undersigned awards: A lump sum in theamountof$1,448.31, representingreimbursementfor petitioners' costs, in theform ofa checkpayable to petitioners,Mr. Sean and Mrs. April Miller. In the absence ofa motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALLENTERJUDGMENT in accordancewith this decision.4 

### ITIS SO ORDERED.

Dated: 

## r)

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# d**0/~** Nora Beth Dorsey ChiefSpecial Master

4 Pursuant to Vaccine Rule 1l(a), entry of judgment is expedited bythe parties'jointfiling of noticerenouncing the right to seekreview. 5