REISSUED FOR PUBLICATION
AUG 25 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
]n tbe mlntteb ~tates Id. at 1. The School Health Center records also included
dispensary notes that documented Petitioner's regular visits beginning in September of2013 and
continuing through May of2014. See generally
id. On September 28, 2013, Petitioner was
treated for sinus pressure and headaches.
Id. at 4. Petitioner took ibuprofen for his pain and
reported congestion and vomiting.
Id. Petitioner also complained of headaches in November
and December of 2013, and January and February of 2014.
Id. at 6.
Prior to his vaccinations in 2013, Petitioner had been seeking treatment for face and back
acne and other skin problems with Sadick Dermatology. Pet' r's Ex. 10, ECF No. 7-10.
Available medical records from Sadick begin in 2012 and continue through 2015. Id.
Petitioner went to Sadick Dermatology on January 4, 2014 for acne treatment.
Id. at 7.
Although Petitioner complained of headache to Dr. Barash during examinations in December of
3
The records filed by Petitioner from Dr. Barash' s office were the physician' s hand-written
notes, which were sometimes difficult to read.
4
Focalin XR is a Central Nervous System (CNS) stimulant indicated for the treatment of
Attention Deficit Hyperactivity Disorder (ADHD) in patients aged 6 years and older.
Physicians ' Desk Reference ("PDR") 2239 (66th ed. 2012).
2
2013 and January of2014, he denied headaches to medical professionals at Sadick. Pet'r's Ex. 4
at 5; Pet' r's Ex. I 0 at 7.
When Petitioner experienced congestion and a prolonged headache that lasted two days,
he returned to his pediatrician on March 1, 2014. Pet'r's Ex. 3 at 5. Dr. Barash renewed
Petitioner's prescription for Focalin. Id. On September 12, 2014, Petitioner saw Dr. Barash with
complaints of photophobia, diarrhea, nausea, and headache.
Id. Dr. Barash diagnosed Petitioner
with migraines.
Id. On October 7, 2014, Petitioner again sought treatment from Dr. Barash for
severe migraines.
Id. Dr. Barash noted "[the] need to discontinue Focalin in face of severe
migraines," but renewed the prescription.
Id. Petitioner's Focalin prescription was renewed
again by Dr. Barash on March 6, 2015.
Id. Petitioner denied experiencing headaches at that
time.
Id. Dr. Barash diagnosed Petitioner with otitis 5 on March 26, 2015 and prescribed
Petitioner Augmentin.
Id. Petitioner's otitis persisted, and Dr. Barash renewed his prescription
on May 11, 2015.
Id. Petitioner sought treatment the following day from ear, nose, and throat
physician, Dr. Michael Ditkoff, for his continued otitis. Pet'r' s Ex. 6, ECF No. 7-6. During Dr.
Ditkoff's examination, Petitioner complained of nasal congestion, sore throat and other sinus
issues, but again denied headaches or fatigue .
Id. at 5. Petitioner also denied headaches during a
visit to Sadick Dermatology on June 22, 2015, and in July on the 6th and the 20th. Pet' r's Ex. 10
at 9, 11, 13.
Petitioner returned to Dr. Barash with complaints of stomach and digestion issues on
August 5, 2015. Pet' r's Ex. 3 at 5. Petitioner was referred to Dr. Anthony Celifarco of
Gastrointestinal Associates on October 16, 2015 and described a "long standing history of
intermittent abdominal pain ... over the last 2 -3 years." Pet' r' s Ex. 7 at 9, ECF No. 7-7.
Petitioner also described occasional headaches. Id. at 11. Dr. Celifarco' s records noted
Petitioner' s denial of diarrhea, vomiting, nausea, and dysphagia.
Id. at 9. Dr. Celifarco' s
medical impression was that Petitioner suffered from "progressive weight loss and satiety
without any other constitutional symptoms" and performed a gastroscopy.
Id. at I 0.
Petitioner saw Dr. Raphael Kellman of The Kellman Center for Integrative and
Functional Medicine, on December 29, 2015, for "fatigue, chronic infections, and cystic acne."
Pet'r's Ex. 5 at 3, ECF No. 7-5. Dr. Kellman ran several tests to measure inflammation markers
and antibody levels for specific pathogens. Id. at 1. The results revealed elevated ammonia
levels and elevated antibodies for mycoplasma, Parvovirus and Epstein-Barr Virus.
Id. Dr.
Kellman noted, " the symptoms began shortly after Petitioner received multiple vaccines in
2013."
Id. It should be noted that a disclaimer, similar to the one that warns "results are to be
used for research purposes or in attempt to understand ... immune, infectious or inflammatory
disorders," are repeated throughout the report. Pet'r' s Ex. 5 at 16. Dr. Kellman ultimately
5
Otitis is inflammation of the ear, often with pain, fever, hearing loss, tinnitus, and vertigo.
Dorland 's Illustrated Medical Dictionary 1338 (30th ed. 2003).
3
diagnosed Petitioner with hypothyroidism,6 autonomic neuropathy, 7 and chronic fatigue on
March 9, 2016. Id. at 19. Dr. Kellman stated, " [B]y lifestyle and diet modification [Petitioner' s]
symptoms have improved and recent blood work shows significant improvement in
inflammation markers in lab work from May 10, 2016."
Id. at 1.
B. Claim Procedure and Motion to Withdraw
Petitioner filed his first set of medical records on August 3, 2016, approximately one
month after he filed his petition. Pet'r's Exs. 1-11, ECF No. 7-8. A Statement of Completion
was filed by the Petitioner on August 4, 2016. ECF Nos. 9. Respondent filed a status report on
August 25, 2016, and requested additional information to confirm Petitioner' s receipt of the
vaccines at issue. Status Rep., ECF No. 10. In response, Petitioner filed the receipts for the
Menactra and Gardasil vaccines from Manhasset Park Drug Corporation on August 26, 2016.
Pet' r's Ex. 12, ECF No. 11. Petitioner filed his amended Statement of Completion on August
30, 2016. ECF No. 12. Respondent subsequently filed his Rule 4(c) Report on October 11,
2016, and recommended the case be dismissed due to " insufficient evidence of vaccine
causation." Resp ' t's Report, ECF No. 15. A Rule 5 status conference was held on October 27,
2016, and Special Master Hamilton-Fieldman discussed the potential causation issues with
Petitioner's case. Rule 5 Order, ECF No . 16. Special Master Hamilton-Fieldman gave Petitioner
a deadline of December 29, 2016 to file an expert report and an amended petition. Id. On
December 30, 2016, Petitioner filed his first motion to extend this deadline to January 30, 2017.
Pet'r's Mot. , ECF No. 17. The case was reassigned to the undersigned who granted Petitioner's
motiononJanuary9, 2017. ECFNo.19.
On January 30, 2017, Petitioner filed his second unopposed Motion for Extension of
Time and requested until March 1, 2017 to submit an expert report and an amended Petition.
Pet'r's Mot., ECF No. 20. The undersigned granted Petitioner's motion and declared that further
extensions will not be granted without good cause. Id. Despite this warning, Petitioner missed
the March 1, 2017 filing deadline and was contacted by chambers. Informal Comm., dated Mar.
2, 2017. Petitioner consequently filed his amended petition on March 6, 2017. ECF No. 21.
Petitioner alleged in his amended petition that he suffered from autonomic dysfunction with
symptoms to include stomach pains, chronic fatigue, headaches, and weight loss, as a result of
the administration of multiple vaccines in July of201 l. Amend. Pet. 3, 7. Petitioner did not
however, file an expert report. See Docket Rep. As Petitioner failed to meet the filing deadline
with respect to the amended petition and never submitted an expert report, the undersigned
issued a Non-Compliance Order and required Petitioner to submit an expert report no later than
March 27, 2017. ECF No. 22.
On March 13, 2017, Petitioner filed his third unopposed Motion for Extension of T ime
until, "April 28, 2017 to submit an expert report." Pet' r' s Mot. , ECF No. 24. The undersigned
granted the third motion and informed Petitioner that no further extensions would be granted.
6 Hypothyroidism deficiency of thyroid activity, characterized by decrease in basal metabolic
rate, fatigue, and lethargy. Dorland's Illustrated Medical Dictionary 900 (30th ed. 2003).
7Autonomic Neuropathy is a functional disturbance or pathological change of the autonomic
nervous system. Dorland's Illustrated Medical Dictionary 1257 (30th ed. 2003).
4
Order, ECF No. 25. Four days before the expert report deadline, Petitioner filed his Motion for
Interim Attorneys ' Fees, and Petitioner's attorney filed a Motion to Withdraw. Mot. Att'ys'
Fees; Mot. Withdraw. To prevent procedural and standing issues, the undersigned ordered on
April 25, 2017, that "Mr. Downing's Motion to Withdraw as attorney will remain pending until
after the interim fees decision is issued." Order, ECF No. 29.
C. Motion for Attorneys' Fees and Costs
In his motion for interim attorneys' fees, Petitioner requested $15,820.50 in fees and
$1 ,905.24 in costs, totaling $17,725.74. Mot. Att'ys' Fees 1. Petitioner 's attorney, Mr.
Downing, requested an hourly rate of$350 for his work performed in 2015 and 2016. See
generally ECF No. 27-1. Mr. Downing increased his requested rate to $375 per hour for 2017.
Id. Mr. Downing also moved for compensation for the work of one other attorney and two
paralegals. Ms. Courtney Van Cott requested an hourly rate of $195 for her work performed in
2015 and 2016, and the paralegals, Mr. Robert Cain and Ms. Danielle Avery, both requested
hourly rates of $100 for 2016 and $135 for 2017.
Id.
Respondent filed his Response to Petitioner's Motion for Interim Attorney' s Fees and
Costs on May 11, 2017. Resp., ECF No. 30. Respondent requested "the Court deny Petitioner' s
application in toto because ... the petition lacked a reasonable basis as required (under] 42
U.S.C. § 300aa-15(e) (1) (B)."
Id. Respondent did not contest the good faith basis for
Petitioner' s filing.
Id. However, Respondent did recommend compensation be denied for lack
of a definitive diagnosis.
Id. Respondent argued that, "months and years" had passed before
Petitioner developed symptoms that are being attributed to his vaccination.
Id. at 2. Respondent
argued because, "[P]etitioner' s medical records did not substantiate his claims, nor was he able
to find an expert to opine on vaccine causation," Petitioner did not have a reasonable basis for his
claim.
Id. at 6.
Respondent argued that Mr. Downing failed to make basic inquiries prior to filing the
petition. Id. at 4. Respondent claimed, " [D]espite an attorney's belief in the statements of his
clients, he needs facts upon which to ground his own knowledge, information, or belief as to the
merits of his client's claim under law."
Id. at 5. Respondent asserted, " [P]rior to accepting a
case, an attorney should be able to distinguish a case that has reasonable underpinnings from one
that does not. Rather than waste the court's time and efforts, an attorney should use reasoned
judgement in determining whether to accept or pursue a claim."
Id.
Respondent argued further that even if the undersigned determines that there was a
reasonable basis for Petitioner to file his claim, "an award for interim fees is not appropriate."
Id. at 8. Respondent claimed that the Court of Appeals for the Federal Circuit in Avera provided
a narrow set of circumstances in which an award of interim fees would be appropriate:
"protracted proceedings, where ' costly experts must be retained, or where the petitioner had
suffered undue hardship."
Id. at 9 (citing Avera v. Sec'y ofHealth & Human Servs., 515 F .3d
1343, 1352 (Fed. Cir. 2008)). Respondent posited that none of these circumstances exist in this
case.
Id. Respondent further argued that Mr. Downing ' s request is "too high," and asked the
undersigned to "exercise her discretion and determine a reasonable award for attorneys' fees and
costs."
Id. at 9-10.
5
In Petitioner's reply filed on May 18, 2017, Petitioner asserted that his petition was filed
with good faith and objected to Respondent's conclusion that the claim lacked a reasonable
basis. Reply at 5, ECF No. 32. Although Respondent did not argue that Petitioner's filing
lacked good faith, Petitioner asserted that his petition was filed in good faith and referred to his
"under-oath" affidavit. Id. Petitioner stated that his symptoms were consistent with a vaccine-
induced condition, and that the claim was filed with the belief that Petitioner suffered a vaccine-
related injury.
Id.
Petitioner responded to Respondent's reasonable basis argument by reiterating that, "the
reasonable basis requirement is objective . . . and factors to be considered are the factual basis,
medical support, jurisdictional issues, and circumstances under which the petition is filed."
Id. at
6. Petitioner referenced the medical records obtained from Dr. Barash and noted his symptoms
(i.e., wheezing, coughing, and congestion) that are consistent with a vaccine-induced reaction.
Id. at 8. Petitioner also quoted Dr. Kellman' s observation that Petitioner "had autonomic
neuropathy and symptoms began after having the vaccines at issue."
Id. at 9. Petitioner further
asserted, "Dr. Kellman . . . links Mr. Toes ' s symptoms to the vaccinations at issue."
Id. Finally,
Petitioner' s Reply cited autonomic testing results and articles that would support a reasonable
basis for the petition.
Id. at 9-14. Petitioner argued that "both branches of the autonomic
nervous system display signs of impairment, which account for Mr. Toes' symptomology ....
[F]urthermore, autonomic dysfunction can have an insidious onset that occurs weeks or months
post-vaccination."
Id. at 11.
Petitioner contested Respondent' s claims that interim fees were inappropriate and that the
fee request was "too high." Id. at 1, 12. Petitioner first argued that the fees and costs incurred in
this case created an "undue hardship" for Petitioner and Mr. Downing sufficient for an award of
interim fees.
Id. at 2-4. Petitioner's Reply explains that Mr. Downing must withdraw from the
case, and Petitioner is " searching for alternative Counsel."
Id. at 3. Mr. Downing's withdrawal,
combined with his firm's practice of Mr. Downing personally advancing case expenses, creates
an undue burden for Mr. Downing.
Id. (citing Edmonds v. Sec '.Y of Health & Human Servs., 04-
87V,
2012 WL 1229149, at *9 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (" It is clearly incorrect to
suggest that it is not an undue hardship for a small firm to loan thousands of dollars for years.")).
Petitioner added that the factors enumerated in Avera are not exhaustive, and special masters
have "broad discretion" in awarding interim attorneys ' fees. Id. at 5 (quoting Al-Uffi v. Sec'y of
Health & Human Servs., No. 13-956V,
2015 WL 6181669, at *9 (Fed. Cl. Spec. Mstr. Sept. 30,
2015)).
Petitioner then argued that his requested total amount is appropriate and should be
granted in full. Id. at 13-14. Petitioner's Reply suggested that Mr. Downing "would have been
willing to address any specific concerns Respondent had" regarding Mr. Downing's fee request;
however, "Respondent failed to devote a single sentence to support" his argument that Mr.
Downing's request was inflated.
Id. at 13. Petitioner argued that Respondent' s position was
therefore "specious and should receive no consideration."
Id. at 13. Mr. Downing requested the
total amount of $17,725.74 for attorneys' fees and costs, plus "the additional fees in having to
respond to Respondent's objection."
Id. Mr. Downing filed no billing records for this additional
amount. See Docket Rep .
6
This matter is now ripe for a decision.
II. ST AND ARDS FOR ADJUDICATION
A. Reasonable Basis
The Vaccine Act permits an award ofreasonable attorneys' fees and costs if "the petition
was brought in good faith and there was reasonable basis for which the petition was bought." §
15(e)(l); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). Petitioners are presumed to have acted
in good faith in the absence of bad faith evidence. See Grice v. Sec 'y ofHealth & Human Servs.,
36Fed.Cl.114, 121 (1996).
There is no presumption of a petition's reasonable basis, however. McKellar v. Sec '.Y of
Health & Human Servs., 101 Fed. Cl. 297, 304 (2011). Reasonable basis is typically viewed as
"an objective standard determined by the 'totality of the circumstances.'" Chuisano v. United
States,
116 Fed. Cl. 276. 286 (2014) (citations omitted). This somewhat amorphous standard has
often been defined not by what is included in the record, but rather by what is lacking in cases
where reasonable basis has been found not to exist. The statute's use of the phrase "reasonable
basis for which the petition was brought" is consistent with other portions of the statute that
require the petition to be filed with evidence. See Chuisano v. Sec '.Y ofHealth & Human Servs.,
No . 07-452V,
2013 WL 6234660, at *8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot.for rev.
denied,
116 Fed. Cl. 276 (2014). Evidence that is relevant to this inquiry may include medical
records, affidavits from percipient witnesses, and opinions from retained experts. See 42 U.S.C.
§ 300aa- l l ( c). In considering the totality of circumstances, factors to be examined are '"the
factual basis, the medical support, and jurisdictional issues,' and the circumstances under which
a petition is filed."
Chuisano, 116 Fed. Cl. at 288. "[T]he burden is on the petitioner to
affirmatively demonstrate a reasonable basis."
McKe/lar, 101 Fed. Cl. at 305; see also Moran v.
Sec'y ofHealth & Human Servs. , No. 07-363V,
2008 WL 8627380, at *5 (Fed. Cl. Spec. Mstr.
Dec. 12, 2008) (petitioner "bears the burden of showing he is entitled" to attorneys' fees and
costs).
Typically, reasonable basis is not found when "fundamental inquiries are not made." Di
Roma v. Sec '.Y ofHealth & Human Servs., 90-377, 1993 WL 496981 at *2 (Fed. Cl. Spec. Mstr.
Nov . 18, 1993). Additionally, a case may have reasonable basis when filed , but may lose
reasonable basis during the pendency of the case. Perreira v. Sec 'y of Health & Human Servs. ,
33 F.3d 1375, 1376-77 (Fed. Cir. 1994); McNett v. Sec'y of Health & Human Servs., No. 99-
684V, 2011WL760314, at *6. (Fed. Cl. Spec. Mstr. Feb. 4, 2011). The nature and extent of
counsel's investigation into the claim's grounds, both before and after filing, is a relevant
consideration. Cortez v. Sec'y ofHealth & Human Servs., No. 09-176,
2014 WL 1604002, at *6
(Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma,
1993 WL 496981 at *2 (citing Lamb v. Sec '.Y
Health & Human Servs. ,
24 Cl. Ct. 255, 258-59 (1991)).
7
B. Interim Fees Award
In Avera, the Federal Circuit stated that a special master may award fees on an interim
basis, and that such awards "are particularly appropriate in cases where proceedings are
protracted and costly experts must be retained." Avera, 515 F.3d at 1352. In Shaw, the Federal
Circuit held that"[ w]here the claimant establishes that the cost of litigation has imposed an
undue hardship and that there exists a good faith basis for the claim, it is proper for the special
master to award interim attorneys' fees." Shaw v. Sec '.Y of Health & Human Servs.,
609 F.3d
13 72, 13 75 (Fed. Cir. 2010). An appropriate circumstance in which to award interim fees can
occur when petitioner's counsel withdraws from a case. Faup v. Sec '.Y of Health & Human
Servs., No. 12-87V,
2017 WL 2257429, at *5 (Fed. Cl. Spec. Mstr. Apr. 21, 2017) (citing Davis
v. Sec'y of Health & Human Servs., No. 15-2777V,
2016 WL 3999784, at *3 (Fed. Cl. Spec.
Mstr. July 5, 2016)).
The Federal Circuit has approved the lodestar approach to determine reasonable
attorneys' fees and costs under the Vaccine Act. Avera, 515 F.3d at 1348. This is a two-step
process.
Id. First, a court determines an "initial estimate ... by 'multiplying the numbers of
hours reasonably expended on the litigation times a reasonable hourly rate. "'
Id. at 1347-48
(quoting Blum v. Stenson,
465 U.S. 886, 888 (1984)). Second, the court may make an upward or
downward departure from the initial calculation of the fee award based on specific findings.
Id.
at 1348.
It is "well within the special master' s discretion" to determine the reasonableness of fees.
Saxton v. Sec '.Y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also
Hines v. Sec 'y of Health & Human Servs.,
22 Cl. Ct. 750, 753 (1991) ("[T]he reviewing court
must grant the special master wide latitude in determining the reasonableness of both attorneys'
fees and costs."). Applications for attorneys' fees must include contemporaneous and specific
billing records that indicate the work performed and the number of hours spent on said work.
See Savin v. Sec'y ofHealth & Human Servs., 85 Fed. Cl. 313, 3 16-18 (2008).
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys' fees based upon the experience of the practicing attorney. McCulloch v. Sec '.Y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at* 19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied,
2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). In
McCulloch, Special Master Gowen held that an attorney with twenty or more years of experience
has a reasonable hourly rate between $350 and $425.
Id. The Court recently updated the
McCulloch rates for 2017. 8 For attorneys with twenty to thirty years of experience, the
reasonable hourly fee range for work performed in 2017 is $358 to $424. The revised rate
schedule also contains increased rates for attorneys with more than thirty-one years of
experience.
8 The 2017 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/file s/Attomeys-Forum-Rate-Fee-Schedule-2017.pdf.
The hourly rates contained in the 2017 Fee Schedule are updated from the decision McCulloch v.
Secretary ofHealth and Human Services.
2015 WL 5634323 at* 19.
8
III. DISCUSSION
In the absence of evidence that Petitioner acted in bad faith, Petitioner is entitled to a
presumption of good faith. Grice v. Sec '.Y ofHealth & Human Servs., 36 Fed. Cl. 114, 121
(1996). It is undisputed by Respondent that Petitioner acted in "good faith." Therefore, the
"good faith" requirement is satisfied.
A. Reasonable Basis
After a careful review of the case record, I conclude that this matter had sufficient
reasonable basis at the time the original petition was filed. Petitioner was vaccinated by Dr. Fred
S. Barash on July 11, 2013 with a varicella vaccine and on July 18, 2013 with Gardasil and
Menactra vaccines. Pet'r's Ex. 2 at 2. Approximately eight weeks after the vaccinations,
Petitioner's medical records reflect a continuing complaint of headaches and stomach concerns
throughout a period of approximately 3 years. Pet' r's Ex. 3. Although Petitioner's physician,
Dr. Barash, did not attribute any of Petitioner's general symptoms to the vaccinations, he did not
discontinue the medication that he suggested may be the cause of Petitioner' s symptoms. See
Pet'r's Ex. 3 at 5. It is therefore plausible that he believed the symptoms may have been
attributed to some other cause. Additionally, primary care physicians are often not the individual
who correctly identifies a patient 's injury as an adverse vaccine reaction. In this case, Petitioner
was referred to various specialists for his skin, stomach, and sinus conditions.
Petitioner argued that a temporal association shows a reasonable basis in this case, and
Petitioner quoted Dr. Kellman' s note that Petitioner " has autonomic neuropathy and symptoms
began after receiving the vaccines at issue." Pet'r's Ex. 5 at 1. Petitioner further asserts, "Dr.
Kellman ... links Mr. Toes's symptoms to the vaccinations at issue." Reply 9. Finally,
Petitioner's reply cited autonomic testing results and research articles that suggest Petitioner has
autonomic dysfunction connected to Gardasil vaccination. Id. at 11. Petitioner' s symptoms were
chronic and he did seek testing for autoimmune abnormalities consistent with an adverse vaccine
reaction. While this evidence may be sufficient to establish reasonable basis temporal
association is not sufficient to establish causation-in-fact. Grant v Sec '.Y ofHealth & Human
Servs.,
956 F.2d 1144, 1148 (Fed. Cir. 1992). Dr. Kellman did not provide a medical or
scientific theory that would suggest Petitioner suffered from adverse effects of vaccination.
Petitioner failed to provide an expert report, a medical record, or a medical opinion that
presented a theory that the vaccinations were the cause of an adverse effect. This is
notwithstanding Petitioner's multiple requests for extensions of time to amend the facts alleged
in the petition, obtain an expert, and provide a causation theory. Petitioner missed the extended
deadline to file an amended petition with a clearly described injury and diagnosis, and failed to
provide evidence of a vaccine-induced injury to sustain his claim. Petitioner bears the burden of
showing he is entitled to attorneys' fees and costs by establishing a reasonable basis for his
petition. Petitioner's medical record does not link his condition to any vaccine, and it is
inconsistent regarding the chronic nature of Petitioner' s symptoms.
Although I do find that there was sufficient reasonable basis for the case to be filed
initially, an examination of the complete medical record, coupled with Petitioner's inability to
procure a medical expert has seriously called into question a reasonable basi s to continue with
9
this claim. This concern is further exacerbated by Petitioner's third request for an extension of
time to file an expert report that ultimately resulted in a motion for withdrawal by Petitioner's
counsel. Although Vaccine Program petitioners may file a claim based on limited information,
there is an expectation that Petition and counsel "act responsibly" in continuing to evaluate the
viability of a claim as more information becomes available. This is particularly important in a
case such as this, where Respondent identified causation issues that were echoed by the presiding
Special Master, fairly early in the process.
B. Interim Fees
a. Reasonable Hourly Rate
For the reasons stated above, Petitioner has established a reasonable basis for filing his
claim sufficient to support Mr. Downing's motion for interim fees. In addition to a reasonable
basis, Petitioner must also establish a good faith basis for the claim and an undue hardship
endured by Petitioner and his counsel. Shaw, 609 F.3d at 1375. A good faith basis exists for
this claim, and Mr. Downing's billing records show sizable time and costs were expended in the
litigation of this case and borne by Mr. Downing personally. See ECF No. 27-1. Although this
case is neither protracted, nor involves expert report, the undersigned finds that Mr. Downing is
entitled to interim attorneys ' fees and costs.
Following the lodestar approach in Avera, the first step involves determining an estimate
by calculating "the numbers of hours reasonably expended on the litigation times a reasonable
hourly rate." Avera, 515 F.3d at 1347-48 (quotation omitted). Mr. Downing's requested rates
have recently been found reasonable. Bales v. Sec'y of Health & Human Servs., No. 15-882V,
2017 WL 2243094, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2017); see also Brannigan v. Sec 'y of
Health & Human Servs., No. 14-675V,
2017 WL 2644696, at *4 (Fed. Cl. Spec. Mstr. May 26,
2017) (adopting Bales). Mr. Downing ' s requested rates are within the Court's Attorneys' Forum
Hourly Fee Rate Schedule, 9 and the undersigned finds them reasonable.
Mr. Downing failed to provide the undersigned with any information related to his co-
workers other than their initials. See ECF No. 27-1. Fortunately for Mr. Downing, Special
Master Gowen articulated the experience levels and full names of Mr. Downing's peers in Bales.
No. 15-882, 2017 WL 2243094, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2017). The undersigned
agrees with Special Master Gawen' s analysis, and therefore finds that the rates requested for Ms.
Van Cott, Ms. Avery, and Mr. Cain are also reasonable. See
id. The undersigned would caution
Mr. Downing in the future against failing to include this background information when
requesting fees. The lack of this information could result in delayed processing times and the
reduction of fee awards.
b. Hours Expended
The second step in Avera is for the Court to make an upward or downward modification
based upon specific findings. 515 F.3d at 1348. In a review of Mr. Downing's billing records,
9
See supra note 8.
10
the undersigned found no unnecessary billing requests. His fee request will therefore be awarded
in full.
c. Costs
Like attorneys ' fees, a request for reimbursement of costs must be reasonable. Perreira
v. Sec '.Y ofHealth & Human Servs., 27 Fed. Cl. 29, 34 (1992). Mr. Downing's costs request
consists of charges related to the collection of medical records and consultations with possible
experts. See ECF 27-1 at 21-24. A review shows these records to be reasonable, and the
undersigned awards Mr. Downing's costs in full.
IV. CONCLUSION
Petitioners in Vaccine Act litigation must show that their petition was filed in good faith
and on a reasonable basis in order to be eligible for attorneys' fees and costs. Petitioner in the
present case established a reasonable basis for his petition at this time of the initial filing.
Petitioner's Motion for Attorneys' Fees is therefore GRANTED. It is not clear that Petitioner will
be able to continue to argue the reasonableness of this claim moving forward.
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned
awards Mr. Downing $15,820.50 for fees and $1,905.24 for costs. Accordingly, the undersigned
awards the total of $17,725. 74 to be issued in the form of a check payable jointly to Petitioner
and P etitioner's counsel, Andrew D. Downing, of Van Cott & Talamante, PLLC, for interim
attorneys' fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the above decision. 10
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
10
Pursuant to Vaccine rule l l(a), entry of judgment is expedited by the parties' joint filing of a
notice renouncing the right to seek review.
11
