Blaise v. Secretary of Health and Human Services
Opinion
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-670V ************************* * * TARA BLAISE, * * UNPUBLISHED * Petitioner, * * Special Master Katherine E. Oler v. * * * Filed: January 26, 2021 SECRETARY OF HEALTH AND * HUMAN SERVICES, * Interim Attorneys’ Fees and Costs * * Respondent. * * ************************* * Anne Toale, Maglio Christopher and Toale, Sarasota, FL, for Petitioner.
James Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1 On May 6, 2019, Tara Blaise (“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”) alleging she suffered from Guillain-Barré syndrome as a result of receiving an influenza vaccination on September 21, 2018. Pet. at 1, ECF No. 1.
Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to post this Decision on the United States Court of Federal Claims’ website, in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 (codified 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 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 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. The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100
On June 15, 2020, Petitioner’s former counsel, Mr. Michael Pottetti, filed an application for interim attorneys’ fees and costs, totaling $8,370.56. First Fees App. at 5, ECF No. 32. On June 23, 2020, Respondent filed a response stating it is within my discretion to award interim attorneys’ fees and costs. Fees Resp., ECF No. 33. 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 January 26, 2021, Petitioner filed a Revised Motion for Interim Attorneys’ Fees and Costs, requesting a total of $9,705.56.3 Second Fees App., ECF No. 46. This motion included a revised fees invoice to correct mathematical errors in the prior motion. See id.; Ex. 26.
For the reasons discussed below, I hereby GRANT IN PART Petitioner’s application and award a total of $7,748.06 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. 2008). 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 (Fed. 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 imposed 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 interpreted 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).
Despite resubmitting a Motion for Interim Attorneys’ Fees and Costs as a result of mathematical errors in his prior motion, Mr. Pottetti’s revised invoice incorrectly reflects the number of hours of paralegal work performed (.2 + .4 + .9 + 2 + 5 + .7 = 9.2 hours, not 9 hours) and the total amount of fees and costs requested ($7,200 + $1,380 + $450 + $255.56 = $9,285.56, not $9,705.56).
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. 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 Special 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. B. Good Faith The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99- 544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum.
Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that his claim could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs., No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993 WL 496981, at *1); Turner, 2007 WL 4410030, at *5.
C. Reasonable Basis Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at least be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v. Sec’y of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.
Nov. 3, 2015).
While the statute does not define the quantum of proof needed to establish reasonable basis, it is “something less than the preponderant evidence ultimately required to prevail on one’s vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to establish reasonable basis. Id. at 290. See also Turpin v. Sec'y Health & Hum. Servs., No. 99- 564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis when petitioner presented only e-mails between her and her attorney).
Temporal proximity between vaccination and onset of symptoms is a necessary component in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.
The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017). Further, an impending statute of limitations should not even be one of several factors the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade, altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 282, 289 (2018).
“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs., No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal Claims have interpreted this provision to mean that petitioners must submit medical records or expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health & Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. Servs., 35 Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table theory where medical records fail to establish a Table injury).
When determining if a reasonable basis exists, many special masters and judges consider a myriad of factors. The factors to be considered may include “the factual basis of the claim, the medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19, 2007).
II. Discussion A. Undue Financial Hardship Mr. Pottetti withdrew as counsel from this case. See Pet’r’s Mot. to Sub. Attorney of Record, ECF No. 29. Although Mr. Pottetti has provided no specific reasoning as to why he should be granted interim fees, per my Initial Order, interim fees will be resolved “as quickly as circumstances permit”, when counsel withdraws from a case that remains active. See Fees App.; see also Init. Order at 4, ECF No. 8. Thus, I find it reasonable to award interim fees and costs at this juncture to avoid any undue financial hardship.
B. Good Faith and Reasonable Basis
Respondent has not raised any specific objection to the good faith or reasonable basis for this claim and leaves such a determination to my discretion. See Fees Resp. I find that the petition was filed in good faith.
As discussed above, the threshold for reasonable basis is a much lower standard than the burden to prove entitlement to compensation by preponderant evidence. In making a reasonable basis determination, I must look at a totality of circumstances, taking into account the factual basis for the claim, and the medical and scientific support offered. Petitioner has filed an extensive amount of medical records. See Exs. 5-9, 12-16, 18-25. Additional medical records are still being obtained but the medical records submitted thus far seem to indicate Petitioner suffered neurological symptoms after she received the flu vaccine. With the medical records provided, such evidence is sufficient to justify the filing on this petition, thus I find the petition was filed with reasonable basis.
As there is no other reason to deny the award of interim attorneys’ fees and costs, I will award Petitioner’s reasonable fees and costs in this instance.
C. Attorneys’ Fees Petitioner requests a total of $9,030.004 in attorneys’ fees. See Ex. 26 at 1.
i. 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). In 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) (citing 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. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.5 This total is based on the calculations in fn. 3. Infra fn. 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-Rate-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/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202019.pdf.
Petitioner’s counsel, Mr. Pottetti requests to be compensated at a rate of $225.00 per hour and requests that his paralegal be compensated at a rate of $150.00 per hour. See Ex. 26 at 1. Mr. Pottetti also requests a “mixed paralegal/attorney” rate of $187.50 per hour, for the administrative work he performed. Mr. Pottetti did not articulate why a “partial attorney and paralegal rate” was appropriate. The sole entry with the “partial attorney and paralegal rate” of $187.50 shows this activity was partially administrative in nature (“part reviewing medical records and partially organizing records.”). Because this entry does not indicate how much time was spent reviewing medical records versus organizing records, I reduce Mr. Pottetti’s requested rate to that of the paralegal rate of $150.00 per hour for this 2.4 hour block of time.
Mr. Pottetti is a new attorney in the Vaccine Program and his requested rate is consistent with McCulloch and the Vaccine Program Fee Schedule. The requested paralegal rate is also reasonable. Accordingly, I award both rates in full.
ii. Hours Reasonably Expended Attorneys' fees are awarded for the “number of hours reasonably expended on the litigation.” 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 reduction 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 2399211, 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. It is clearly established that secretarial work “should be considered as normal overhead office costs included within the attorneys’ fee rates.”
Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08- 579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.” Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387).
“[I]t is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health & Hum. Servs., No. 14-1111V, 2016 WL The 2020 Fee Schedule can be accessed at: http://www.uscfc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202020.pdf The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his client to learn about an area of law in which he is unfamiliar. If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of Health & Hum. Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr.
July 13, 2007).
Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Ex. 26 at 1-3. I find the hours to be largely reasonable, however I find a reduction is appropriate for time billed by attorneys and paralegals for administrative tasks, such as organizing exhibits, bates stamping, scanning exhibits, and combining documents into one exhibit. These tasks were completed by both Mr. Pottetti and his paralegal. Regarding paralegal hours, I will deduct 7.1 hours for the entries on 2/15/2019 (0.1 hours), 4/29/2019 (2 hours), 5/2/2019 (5 hours). The total number of paralegal hours awarded is 4.5 hours, or $675.00.
Mr. Pottetti has two entries of an administrative nature on 5/30/2019. The first entry, “combining all documents into one exhibit as Exhibit 12” (0.2 hours) is not compensable. The second entry, “drafting main petition, combining pdfs documents, bates numbering and did motion to strike Exhibit 8 supplemental filings and accept exhibit 12 and 13 which are supplementing exhibit 8 and 7”, is partially administrative in nature (combining PDFs and bates stamping), thus warrants a 0.5 hour deduction. The deductions for administrative tasks total 0.7 hours.
In addition to reduction for the administrative work done by Mr. Pottetti, I will additionally deduct one hour for Mr. Pottetti’s 2/25/2019 entry. Mr. Pottetti “reached out to VIP bar members regarding [this case] and also read past decisions on GBS”. Ex. 26 at 1. The total number of attorney hours awarded will be (32 hours - 0.7 hours for administrative tasks - 1 hour for learning about the Vaccine Injury Program) a total of 30.3 hours or a total of $6,817.50.
Total attorneys’ fees to be awarded: $7,492.50 D. Reasonable Costs Petitioner requests a total of $255.56 in costs, which includes printing and mailing the Petition to the Court, and CM/ECF fees. Petitioner has provided a receipt for mailing expenses and his printing and CM/ECF expenses do not seem unreasonable. Accordingly, I award costs in full.
Total costs to be awarded: $255.56 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 $7,748.06, representing reimbursement of Petitioner’s interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and her former attorney, Michael Pottetti.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this decision.6 IT IS SO ORDERED.
s/ Katherine E. Oler Katherine E. Oler Special Master
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.
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