LAURA D. MILLMAN, Special Master.
On June 9, 2014, prior to the withdrawal of Mark L. Krueger, Esq. ("Mr. Krueger") as attorney of record, petitioner filed a Motion for Interim Payment of Attorneys' Fees, requesting that the Court award petitioner $29,929.26 in interim attorneys' fees and costs. Petitioner is currently pro se and is seeking an expert report to support her allegations. No decision on entitlement has been issued.
For the reasons set forth below, the undersigned awards petitioner $27,364.96 for interim attorneys' fees and costs incurred up to and including June 9, 2014.
On November 29, 2012, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2006), alleging that she suffered multiple sclerosis ("MS") and an immune deficiency that was caused in fact by the influenza vaccination she received on December 18, 2009. Pet. at 4. From January 2013 through March 2013, petitioner filed twenty-eight exhibits of medical records. On March 11, 2013, the undersigned ordered petitioner to obtain outstanding pre-vaccination records, which were filed in May and July 2013.
On August 27, 2013, the undersigned ordered petitioner to file an expert report by November 26, 2013. Petitioner subsequently requested and was granted five extensions of time to file an expert report. During a status conference on May 14, 2014, Mr. Krueger reported that he had consulted with multiple experts, none of whom would agree to provide an expert report, and he had engaged in multiple conversations with petitioner about either withdrawing from or dismissing the case. The undersigned ordered Mr. Krueger to tell the court whether he would file an expert report, a motion to withdraw as counsel, or a motion to dismiss by June 12, 2014.
On June 9, 2014, petitioner filed an application for interim attorneys' fees and costs, requesting $29,929.26, consisting of $26,580.00 in attorneys' fees and $3,349.96 in costs. The application requests a rate of $300 per hour for Mr. Krueger and $150 per hour for his paralegal. Petitioner submitted an invoice of fees and costs incurred.
Later on June 9, 2014, Mr. Krueger filed a motion to withdraw as counsel, stating that counsel and petitioner had "reached an impasse with respect to the objectives and course of litigation pending before this Court." Pet'r's Mot. Withdraw at 1. The motion was granted, and petitioner became pro se.
Respondent filed her response to petitioner's motion for interim attorneys' fees and costs on August 21, 2014, raising her objection to any award of interim attorneys' fees and costs under the Vaccine Act, and also arguing that petitioner has not established that her claim is supported by a reasonable basis.
Mr. Krueger filed a reply on September 24, 2014. Although Mr. Krueger is no longer petitioner's attorney of record, the undersigned accepts the filing as information relevant, reasonable, and necessary to the proceeding.
Respondent's counsel informed the undersigned's law clerk that she did not wish to file a sur-response. This matter is now ripe for adjudication.
Petitioner has a history of proctitis and ulcerative colitis. Med. recs. Ex. 24, at 4, 7. On January 24, 2012, she reported that she has a history of chronic fatigue and experienced escalating symptoms around age forty (four years earlier). Med. recs. Ex. 13, at 1. She also has a history of recurrent infections. She visited Dr. Kenneth Bergman, an allergist, three months before her vaccination, complaining of "difficulty with multiple sinus infections which occur on a year round basis." Med. recs. Ex. 39, at 10. In 2008, she had a urinary tract infection and recurrent sinusitis. Med. recs. Ex. 41, at 13, 17, 19.
On December 3, 2009, approximately two weeks before her vaccination, petitioner visited her primary care doctor, Dr. Gregory Adams, for an upper respiratory infection. Med. recs. Ex. 2, at 5-7. She had head and chest congestion with a cough for four days and a temperature of 98.6 degrees, although she reported she had had a low-grade fever for two days.
Petitioner received trivalent influenza vaccine and H
In her affidavit, petitioner alleges that she had sore axillae (armpits) with lumps in them one-and-a-half to two weeks after her vaccinations (which would have been in late December 2009 or early January 2010). Ex. 28, at 1. However, petitioner does not appear to have sought any medical treatment until February 2010. On February 19, 2010, she visited the Union Hospital Emergency Room ("ER"), during which she complained of shortness of breath, chest pain for the past five days, and heart palpitations. Med. recs. Ex. 19, at 6. She was discharged with a diagnosis of atypical chest pain.
On March 25, 2010, petitioner visited Glasgow Medical Clinic with a possible sinus infection. Med. recs. Ex. 2, at 7-8. She had a headache, cough, nasal discharge, and swollen lymph nodes in her axillae and groin and reported these symptoms had been present since mid-January 2010.
Petitioner visited the emergency room again on March 29, 2010, complaining of fatigue, enlarged lymph nodes, "throat fullness" with pain, and occasional shortness of breath. Med. recs. Ex. 14, at 18. Enlarged lymph nodes were observed in her right axilla, left neck, and groin.
Petitioner had a CT scan of her chest, abdomen, and pelvis on April 1, 2010, which showed no significant lymphadenopathy in her chest and no enlargement of lymph nodes in her abdomen. Med. recs. Ex. 2, at 47-49. She had an increased number of perirectal lymph nodes, which were believed to be consistent with proctitis.
On May 6, 2010, Dr. Stephanie Lee, an infectious disease specialist, found no palpable lymphadenopathy, although petitioner reported painful lymph nodes. Med. recs. Ex. 16, at 6. Dr. Lee's impression was that petitioner had extreme anxiety, although her main complaint was swollen lymph nodes that were not evident on exam or prior imaging.
Petitioner saw another infectious disease specialist, Dr. Tuesdae Stainbrook, on June 9, 2010, who was also unable to observe lymphadenopathy. Med. recs. Ex. 12, at 14. Petitioner recounted she felt worse after receiving vaccinations for seasonal flu and H
Rheumatologist Dr. Marc Levesque examined petitioner on August 3, 2010, and diagnosed her with fibromyalgia and/or chronic fatigue syndrome, as well as possible mild depression. Med. recs. Ex. 3, at 4.
Petitioner consulted with a surgeon on September 13, 2010, who performed a right axillary node excision and biopsy on October 4, 2010. Med. recs. Ex. 6, at 55, 63. These revealed only benign findings.
On February 10, 2011, petitioner visited Dr. Aldino Pierotti, whom she told she had a compromised immune system, poor sleep, headaches, dizziness, gas, no energy, irritability, and decreased memory. Med. recs. Ex. 9, at 11. On examination, she had tender left posterior neck nodes.
On February 28, 2011, petitioner saw a neurologist, Dr. John Carlson. Med. recs. Ex. 43, at 284. He noted her history of a motor vehicle accident.
On July 12, 2011, Dr. Carlson wrote a letter to Dr. Baltizar Corcino, petitioner's primary care physician. Med. recs. Ex. 25, at 105-06. Dr. Carlson noted that petitioner's MRI scan findings were consistent with MS.
On February 7, 2012, petitioner saw Dr. James DeAngelo, an allergy/immunology specialist, and complained of chronic fatigue, adenopathy, frequent sinopulmonary infections, facial pressure, and headaches that began to escalate when she turned 40 (which would have been in 2007) but "may have been present prior to that." Med. recs. Ex. 13, at 1.
On February 27, 2012, petitioner saw her neurologist, Dr. Carlson, again. Med. recs. Ex. 43, at 403-04. He listed diagnoses of MS, immunodeficiency, and sinus tachycardia.
On September 25, 2012, Dr. Henry DelaTorre, petitioner's new primary care physician, wrote, "Symptoms of VIDs [variable immune deficiency syndrome] started after she had H1N1 virus and later got the Flu/H1N1 immunization. This probably caused the immune deficiency." Med. recs. Ex. 10, at 56.
On October 1, 2012, petitioner reported to rheumatologist Dr. Frederick Murphy's physician's assistant that she had been a lead government investigator of biologic war in Maryland. Med. recs. Ex. 27, at 3. The physician's assistant wrote, "Patient believes that she may have been exposed to biologic agents either accidental or intentional via the nature of this position. Patient has also received vaccinations for unusual biologic agents."
Petitioner retained Mr. Krueger as her attorney around August 3, 2012 to investigate and file a claim relating to injuries she allegedly sustained as a result of her seasonal flu vaccine. Reply at 3. Mr. Krueger and his paralegal sent requests for medical records in October 2012 and filed the petition on November 29, 2012 before receiving all of the medical records.
Under the Vaccine Act, a special master or the Court of Federal Claims may award fees and costs for an unsuccessful petition if "the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." 42 U.S.C. § 300aa-15(e)(1);
"Good faith" is a subjective standard.
"Reasonable basis" is not defined in the Vaccine Act or Program rules. It has been determined to be an "objective consideration determined by the totality of the circumstances."
The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act in
Subsequently, a number of judges and many special masters have found interim fee awards permissible under various circumstances.
In
In
Petitioner is entitled to a presumption of good faith, and respondent does not contest that the petition was filed in good faith. There is no evidence that this petition was brought in bad faith; therefore, the undersigned finds that the good faith requirement is present.
In contrast, respondent does contest that this petition is supported by a reasonable basis. Respondent asserts that petitioner has the burden to affirmatively demonstrate reasonable basis.
In contrast, Mr. Krueger asserts that petitioner has met her burden to demonstrate reasonable basis. Mr. Krueger argues that the Vaccine Act's fee-shifting provision should be interpreted broadly, citing cases in which the Supreme Court ruled that attorneys' fees may be provided even when a petition is filed after the statute of limitations and the Court of Federal Claims ruled that fees may be awarded for bringing a petition relating to a vaccine that is not covered by the Vaccine Act.
This petition was filed nineteen days prior to the expiration of the three-year statute of limitations. Claims filed near the expiration of the statute of limitations have traditionally received the most lenient treatment when analyzing reasonable basis.
Petitioner has filed medical records showing that she received the seasonal flu vaccine, a vaccine covered in the Vaccine Injury Table, on December 18, 2009. Med. recs. Ex. 2, at 53-54. There is some support in the medical records that she suffered her alleged injuries, MS and an immune deficiency. Med. recs. Ex. 14, at 18-19; Med. recs. Ex. 10, at 7;
Additionally, interim attorneys' fees and costs are appropriate because waiting for the conclusion of the case would place an undue hardship on petitioner. As previously mentioned, many special masters have found that the withdrawal of counsel can constitute undue hardship.
The Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act.
The lodestar approach requires that the reasonable hourly rate be multiplied by the number of hours "reasonably expended on the litigation."
Attorneys' costs must also be reasonable.
Petitioner requests fees and costs for Mark L. Krueger of Baraboo, Wisconsin. Petitioner filed an invoice dating from July 2012 through June 2014. This invoice includes fees billed for Mr. Krueger and for Renee Nehring, a paralegal. Petitioner seeks reimbursement for 37.3 hours of work completed by Mr. Krueger, billed at a rate of $300 per hour, and 102.6 hours of work completed by Ms. Nehring, billed at a rate of $150 per hour. Petitioner also seeks $3,349.96 for attorneys' costs incurred from August 2012 to June 2014. An invoice for costs is also included with petitioner's application.
A reasonable hourly rate is "`the prevailing market rate,' defined as the rate `prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'"
Petitioner submits that her counsel, Mr. Krueger, should be compensated at hourly rates of $300 per hour. Mr. Krueger has been practicing law since 1985 and has been practicing in the U.S. Court of Federal Claims since 1996. Petitioner submits that an hourly rate of $300 is appropriate, as it has been agreed upon by the Department of Health and Human Services in previous vaccine cases.
Respondent does not contest Mr. Krueger's hourly rate.
The undersigned finds that petitioner's counsel is entitled to the forum rate in Washington, DC, rather than the local geographic hourly rate in Baraboo, Wisconsin.
After reviewing Mr. Krueger's years of experience, reputation, and skill, and comparing this with other attorneys with comparable factors, the undersigned finds that an hourly rate of $300 for 2012 to 2014 is reasonable. This rate is comparable to the forum rates the undersigned found in 2011.
Petitioner seeks an hourly rate of $150 for work performed by Renee Nehring. Petitioner asserts that this rate is appropriate, as it has been agreed upon by the Department of Health and Human Services in previous vaccine cases. App. at 2.
Respondent does not contest this hourly rate. However, the special master may reduce fees sua sponte, apart from objections raised by respondent and without providing petitioner notice and opportunity to respond.
A review of the invoice shows that Ms. Nehring performed tasks consistent with standard paralegal duties (requesting and reviewing medical records, communicating with the client and potential experts, preparing exhibit sheets, etc.). The undersigned and other special masters in the Vaccine Program have determined that paralegal rates of up to $125 per hour are reasonable forum rates.
The undersigned finds that an hourly rate of $125 for Ms. Nehring for 2012 to 2014 is reasonable. Petitioner has presented no evidence as to why Ms. Nehring has particular skills that make her more qualified than the typical paralegal and would thus merit a higher rate than what has previously been deemed reasonable by the undersigned and other special masters.
Respondent does not contest the amount of hours expended. After reviewing the invoice, the undersigned does not consider any of the billed items to be duplicative. Based on her experience in the Program, the undersigned finds the number of hours expended by Mr. Krueger and Ms. Nehring to be reasonable.
Petitioner requests $3,349.96 in interim costs. Respondent does not object to any of petitioner's interim costs. After reviewing the invoice, the undersigned finds the costs requested to be reasonable.
The undersigned finds an award of interim fees appropriate. In sum, undersigned awards to petitioner the following amount for interim attorneys' fees and costs:
The undersigned finds this amount to be reasonable and awards
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.
