DECISION DENYING INTERIM COSTS REQUEST1

BRIAN H. CORCORAN, Special Master..

Bruce and Donald Anderson filed this petition on behalf of their child, R.A., over 13 years ago, alleging that as a result of the administration of the measles-mumps-rubella ("MMR") vaccination on December 13, 1999, R.A. suffers from a disorder of energy metabolism associated with autistic regression and multi-system dysfunction, and therefore seeking compensation under the National Vaccine Injury Compensation Program [hereinafter, the "Vaccine Program" or "Program"].2 The case is scheduled for an entitlement hearing on December 8-9, 2015.

On September 18, 2015, the Andersons filed a request for interim costs. ECF No. 85 [hereinafter, "Costs Pet."]. In it, they ask for an award of $2,995.40 to reimburse their counsel and expert for travel expenses (hotel and airfare). As justification for this request, Petitioners reference the fact that (as of the time of the filing of the costs petition) their counsel (the law firm of Conway, Homer & Chin-Caplan, P.C. [hereinafter, the "Homer Firm"]) was embroiled in a dispute with Respondent's counsel at the Department of Justice over the proper hourly rate that the Homer Firm attorneys should be paid for their work in Vaccine Program cases. Because the Homer Firm feared that it could not "operate business as usual" (Costs Pet. at 3), given that the fee dispute was preventing it from obtaining sums necessary to operate, Petitioners ask for reimbursement of these costs in advance of the December entitlement hearing.

Respondent weighed in on the merits of Petitioners' costs requests on September 25, 2015. ECF No. 86 [hereinafter, "Response"]. While not opposing the request in substance, Respondent pointed out that (since the case has not yet been adjudicated) any costs award would require a determination of whether the claim had a reasonable basis. See Section 15(e). Respondent also invoked the factors set forth by the Federal Circuit in Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008), for an interim award, which include determining if the matter has been protracted, or has involved the retention of "costly experts." Response at 2. No reply was filed by the Petitioners.

It is plainly the case that interim fees and costs awards are available to Vaccine Program petitioners. Cloer v. Sec'y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera, 515 F.3d at 1352; see also McKellar v. Sec'y of Health and Human Servs., 101 Fed. Cl. 297, 302 (2011). However, although there is debate as to how the factors set forth in Avera are to be applied, at bottom the appropriateness of an interim award is a matter left to the special master's discretion. 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 as setting a "broad, discretionary vehicle for ensuring that petitioners are not punished financially while pursuing their vaccine claim"); 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).

Another important consideration in determining the propriety of any fee or cost request is whether a cost has been "incurred." See 42 U.S.C. § 300aa-15(e)(1) (special masters may only award reimbursement for costs "incurred in any proceeding on [the vaccine injury] petition") (emphasis added). Although the Vaccine Act does not explicitly define the term "incurred," it has been interpreted to mean "legally liable to pay." Klein v. Sec'y of Health & Human Servs., No. 12-560V, 2013 WL 5428471, at *4 (Fed. Cl. Spec. Mstr. Aug. 14, 2013) (quoting Black v. Sec'y of Health & Human Servs., 33 Fed. Cl. 546, 550 (1995)). An anticipated cost thus is not equivalent to an incurred cost.

Here, I find in the exercise of my discretion that an interim costs award is not appropriate. First, Petitioners' primary basis for the request — the Homer Firm's dispute with Respondent over attorneys' hourly rates — appears to have been resolved by Special Master Gowen's recent decision in McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Homer Firm's concerns that the delay in resolving fee disputes with Respondent was jeopardizing their representation of the Andersons herein (as well as all other Vaccine Program clients) have been greatly lessened (if not fully addressed) since the issuance of that decision.

Second, I find that the present circumstances do not justify an interim award of the costs requested. The total sum is itself not especially large, and thus does not reflect the kind of expense hardship that it is unfair to expect counsel to bear in advance of trial. Most of the total, moreover ($2,061) (see Costs Pet. at 9 n.11 and Tab A), reflects the anticipated cost of a hotel stay in Washington, DC during the pending hearing — and thus reflects a cost that has not yet been incurred. Klein, 2013 WL 5428471, at *4 (a "price quote" for an anticipated evidentiary cost is not an incurred cost). The remainder of the requested costs are airfare for counsel and Petitioners' experts ($934.40), but the attachments to Petitioners' interim costs request do not substantiate that they have been paid. And even if they have been incurred as that term is defined in the Program, I do not find that the facts of this case make an interim award that effectively advances the Petitioners the costs of travel to the hearing appropriate.

Petitioners may of course renew their costs requests after the hearing (at which time they could also request attorney's fees generated to date, as well as other expert costs relating to substantive expert tasks rather than travel). But the present request is premature and not justified by the circumstances. I therefore DENY Petitioners' interim costs request.

IT IS SO ORDERED.