Onikama v. Sec'y of Health & Human Servs.

JEANNIE ONIKAMA, mother of I.O., a minor, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 15-1348V

United States Court of Federal Claims

April 3, 2017

OFFICE OF SPECIAL MASTERS

UNPUBLISHED

Special Master Gowen

Interim Attorneys' Fees and Costs; Reasonable Hourly Rate; Forum Rate; Local Rate; Reasonable Hours Expended

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.

Camille M. Collett, United States Department of Justice, Washington, DC, for respondent.

DECISION ON INTERIM ATTORNEYS' FEES AND COSTS¹

On November 9, 2015, Jeannie Onikama ("petitioner") filed a petition on behalf of her minor child, I.O., pursuant to the National Vaccine Injury Compensation Program.² Petitioner alleged that as a result of receiving hepatitis A, diphtheria, tetanus, and pertussis ("DTaP"), pneumococcal conjugate, varicella, and Haemophilus influenzae vaccines on November 20, 2012, I.O. suffered a seizure disorder and developmental delay. See Petition at ¶¶ 4-7.

Following an initial status conference on February 24, 2016, petitioner was ordered to file an expert report by April 25, 2016. Thereafter, petitioner requested and was granted four extensions of time, until July 27, 2016, to file her expert report. Petitioner did not file a report and on August 17, 2016, filed a motion for interim attorneys' fees and costs. Petitioner's motion states that petitioner's counsel, Richard Gage, plans to withdraw as counsel. Memorandum in Support of Application for Payment of Attorneys' Fees and Costs ("Pet. Memo.") at 1. Petitioner requests a total of $13,647.24 in attorneys' fees and costs. Petitioner's ("Pet.") Motion ("Mot.") at 1. The rates billed by counsel are based on forum rates. See Pet. Mot., Tab C-E.

On September 6, 2016, respondent filed a response to petitioner's fee motion. Respondent objected to the payment of interim fees and costs at this time, but stated that if and when it is appropriate for the special master to award fees and costs in this case, based on his judgment and experience in similar cases and his "overall sense" of what is reasonable for the work performed in this case to date, respondent believes reasonable attorneys' fees and costs would fall between $8,000.00 and $12,000.00. Resp. Response at 1, 5-6. Respondent "recommend[ed] that the special master exercise his discretion and determine a reasonable award for attorneys' fees and costs within that range." Id. at 2 (internal footnote omitted). With regard to Mr. Gage's hourly rate, respondent also stated that "other experienced Program petitioners and Mr. Gage himself, who practice law in less-populated states in the western United States have consistently been denied the forum rate by the Federal Circuit." Id. (citing Masias v. Sec'y of Health & Human Servs., 634 F.3d 1283, 1288 (Fed. Cir. 2011) (holding that the special master did not err in awarding attorneys' fees to Mr. Robert Moxley at the local Cheyenne, Wyoming, rate) (Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1354 (Fed. Cir. 2011) (affirming the special master's decision awarding Mr. Gage local rates)).

A status conference was held on September 22, 2016, to discuss petitioner's fee motion. During the status conference, the undersigned directed petitioner to file a supplemental brief discussing the issue of whether Mr. Gage should be awarded the local Cheyenne, Wyoming, rate or the forum rate. Order, filed Sept. 26, 2016, at 1. The undersigned noted that in 2008, the Federal Circuit upheld a special master's decision awarding local rates to another attorney in Cheyenne, Wyoming, Mr. Robert Moxley.³ Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). Therefore, petitioner was instructed to address "whether the Cheyenne, Wyoming rate has changed since Avera and provide support for such contention." Order, filed Sept. 26, 2016 (emphasis in original). During the conference, petitioner's counsel contended that "there is not a great deal of fee shifting litigation in Wyoming to enable the provision of decisional data points." Id. Accordingly, the undersigned stated that petitioner could address attorney rates that have been set or approved by the United States District Court of Wyoming, by Wyoming state courts, and in neighboring jurisdictions such as Colorado. Id. at 1-2.

On November 11, 2016, petitioner filed a supplemental memorandum responding to the September 26, 2016, Order, setting forth additional information to support petitioner's asserted local rates and demonstrate that local rates are not "very significantly different" than forum rates.Respondent filed a response to petitioner's supplemental memorandum on December 14, 2016. Petitioner filed additional documents in support of her attorneys' fees and costs on January 18, 2017. This matter is now ripe for adjudication.

I. Interim Attorneys' Fees and Costs

Interim fee awards are permissible under the Vaccine Act. See Avera, 515 F.3d at 1352. A special master may award reasonable interim attorneys' fees and costs before judgment on an entitlement decision is entered, so long as the claim was brought in good faith and with a reasonable basis. § 15(e)(1); Shaw v. Sec'y of Health & Human Servs., 609 F.3d 1372, 1374-75 (Fed. Cir. 2010). The Federal Circuit has identified examples of circumstances under which an award of interim fees may be appropriate, which include "cases where proceedings are protracted and costly experts must be retained," or where petitioner would otherwise suffer an "undue hardship." Avera, 515 F.3d at 1352. However, Avera has been interpreted as allowing special masters broad discretion in determining whether to award interim fees. See, e.g. Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015) (internal citations omitted); 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, leaving the special masters broad discretion to consider many factors in considering whether an interim award is appropriate in a particular case") (emphasis in original); Kirk v. Sec'y of Health & Human Servs., No. 08-241V, 2009 WL 775396, at *1 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (reading Avera to set a "broad, discretionary vehicle for ensuring that petitioners are not punished financially while pursuing their vaccine claim").

a. Good Faith and Reasonable Basis

Respondent does not dispute that this claim was filed in good faith and with a reasonable basis. "Good faith" is a subjective standard and petitioners are entitled to a presumption of good faith. Hamrick v. Sec'y of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007); Grice v. Sec'y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). The undersigned finds that this claim was brought in good faith.

With regard to reasonable basis, the Court of Federal Claims has held that the statutory language of 42 U.S.C. § 300aa-15(e)(1)(B) grants the special master "maximum discretion in applying the standard." Silva v. Sec'y of Health & Human Servs., 108 Fed. Cl. 401, 402 (Fed. Cl. 2012). Many special masters and Court of Federal Claims judges have determined that the reasonable basis requirement is an "objective consideration determined by the totality of the circumstances." McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl. 2011); Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276, 286 (2014). Factors to be considered include factual basis, medical support, and the circumstances under which a petition is filed. Turner v. Sec'y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *6-9 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioner must furnish "some evidence" supporting the claims in the petition, but the evidentiary showing required is less than a preponderance of the evidence. Chuisano v. Sec'y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at *1, *13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013).

In this case, petitioner filed extensive medical records that facially support the facts as set forth in the petition. See, e.g. Pet. Ex. 1 at 42-43 (11/21/2012 ER visit for febrile seizures), 63 (chief complaint: seizures and developmental delay); Pet. Ex. 4 at 39 (documenting recurrent "spells of going limp with eyes open and staring" and history of global developmental delay). Petitioner filed four motions for extensions of time to file an expert report, in which petitioner indicated that her expert was very close to producing a final report. On April 25, 2016, petitioner stated that her expert was "reviewing the records in this case." On June 10, 2016, petitioner stated that her expert report "[was] not yet complete" but that she anticipated having it filed within two weeks. On June 24, 2016, petitioner stated that her expert "[was] awaiting further information from Petitioner which she is attempting to get," and again stated that petitioner anticipated having an expert report filed within two weeks. On July 7, 2016, petitioner again stated that "Petitioner's expert is awaiting further information from Plaintiff which she has not received as of this date," and requested an additional twenty days to file the report. No expert report was filed and petitioner filed a motion for interim attorneys' fees on August 17, 2016. The motion indicated that Mr. Gage planned to withdraw as counsel, but did not detail the reasons for Mr. Gage's planned withdrawal, and it is unclear why no expert report was ever filed. Petitioner's requested costs include those for Dr. Marcel Kinsbourne, whose invoice indicates that he spent two hours for "[r]eview of medical literature and preparation of report." Given the fact that no expert report was filed, the undersigned infers that petitioner has been unable to secure an expert report at this time. If so, Mr....