LAURA D. MILLMAN, Special Master.
On August 30, 2017, petitioner filed an Application for Payment of Petitioners' [sic] Interim Expenses, requesting $79,034.50
On September 7, 2017, respondent filed his response.
For the reasons set forth below, the undersigned awards petitioner $58,144.84 in attorneys' interim costs and $21,216.65 in personal costs incurred up to and including August 30, 2017, when petitioner filed his application for attorneys' interim costs and personal costs.
On April 18, 2012, petitioner Mark Miles filed a petition on behalf of his son, J.M., under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2012) ("Vaccine Act"). Petitioner alleged that the influenza ("flu") vaccine his son received on October 1, 2009 triggered a sudden relapse of his nephrotic syndrome. Pet. Preamble and ¶ 2. The case was assigned to the undersigned on April 18, 2012.
The initial status conference was held on May 25, 2012. The undersigned ordered petitioner to file the medical records, petitioner's affidavit, and the treating doctor's report and CV by July 7, 2012. The undersigned issued an Order on July 18, 2012 granting petitioner's motion for an extension of time until August 8, 2012 to submit medical records and an expert report, which petitioner filed on August 6, 2012.
A telephonic status conference was held on August 21, 2012. The undersigned discussed the timeline of J.M.'s chronic recurrent nephrotic syndrome which began on August 15, 2007.
On July 10, 2013, respondent filed his Rule 4(c) Report. On November 15, 2013, respondent filed Dr. Levinson's immunological expert report.
On December 3, 2013, a telephonic status conference was held. Petitioner expressed an interest in finding an immunological expert to counter Dr. Levinson.
On February 18, 2014, petitioner filed a Motion for Interim Attorney Fees and Costs and a Motion for Substitution of Counsel. On February 19, 2014, the parties filed a stipulation of facts in which they agreed on an appropriate amount for interim attorneys' fees and costs. The undersigned issued her decision awarding interim attorneys' fees and costs on the same day. On March 11, 2014, the undersigned consented to petitioner's Motion to Substitute Attorney John F. McHugh in place of attorney Michael Baseluos.
The undersigned held a status conference on March 21, 2014, during which petitioner's new counsel Mr. McHugh reported that petitioner has retained Dr. Bellanti, an immunologist, to prepare an expert report.
On June 5, 2014, petitioner filed an expert report from Dr. Bellanti. The undersigned held a status conference on June 25, 2014. The undersigned ordered respondent to obtain and file responsive supplemental reports from his experts by August 15, 2014. On August 12, 2014, respondent filed supplemental reports from his experts Dr. Kaplan and Dr. Levinson.
On August 29, 2014, the undersigned held a telephonic status conference. The undersigned discussed the supplemental expert reports filed by respondent. She ordered petitioner to file supplemental expert report(s) by November 10, 2014. Petitioner filed Dr. Bellanti's supplemental expert report on January 12, 2015. After filing three motions for extension of time, petitioner filed Dr. Quan's letter in response to Dr. Kaplan's expert report on January 26, 2015.
On January 30, 2015, the undersigned held a telephonic status conference, in which she discussed petitioner's supplemental expert reports from Dr. Bellanti and Dr. Quan. Petitioner's counsel said he will communicate a settlement demand to respondent and file a status report by February 12, 2015. On September 29, 2015, respondent filed supplemental expert reports in response to petitioner's supplemental expert reports. During the status conference on October 22, 2015, the parties expressed that they were unable to settle because their valuations of damages in this case are too far apart.
On November 5, 2015, petitioner filed a life care plan assessed by Jane Mattsen. The undersigned discussed the life care plan in a telephonic status conference on November 6, 2015.
During a telephonic status conference on January 14, 2016, the parties informed the undersigned that they agreed to mediate this case. The parties were trying to decide who should be the mediator. The undersigned ordered the parties to decide on whom they want to mediate by February 19, 2016. On August 24, 2016, respondent filed a status report saying the parties participated in mediation in Dallas, Texas on August 23, 2016 and the mediation was not successful. Respondent believed any further settlement negotiations would not be beneficial. On September 20, 2016, a two-day entitlement hearing was set to begin on October 17, 2017 before the undersigned.
On August 30, 2017, petitioner filed an Application for Payment of Petitioners' [sic] Interim Expenses, asking for $79,034.50 in attorneys' costs and $25,438.65 in petitioner's personal costs. Respondent filed his response to petitioner's motion on September 7, 2017.
The matter of petitioner's interim expenses application is now ripe for adjudication.
In September 2007, J.M. was diagnosed with nephrotic syndrome. J.M. was put on prednisone which he continued taking until February 4, 2008. J.M.'s first relapse of his nephrotic syndrome occurred in February 2008. Ex. 1, at 24; Ex. 10, at 77. Following the first relapse, J.M. was put back on steroids which he took until March 24, 2008. Ex. 1, at 38. J.M. suffered from his second relapse on June 2009. Ex. 1, at 24; Ex. 10, at 77. He was weaned to a normal level of steroids in two weeks. Ex. 1, at 24. He went off the steroids in September 2009.
J.M. received his seasonal flu vaccination on October 1, 2009.
The timing of J.M.'s third relapse is in dispute. On October 9, 2009, Dr. Mouin Seikaly, J.M.'s primary care provider, wrote that J.M. was doing well until the past two weeks when he had an increase in his urine protein and developed edema. Ex. 10, at 72. The note was filed on October 24, 2009 but was taken on October 9, 2009, suggesting that J.M. had increased urine protein in late September before he received the flu vaccine. On the other hand, petitioner states in his affidavit that prior to his vaccination, J.M. had negative labs for three weeks. Petitioner states that after J.M.'s vaccination, his urine protein levels increased immediately and were markedly higher the next day. Ex. 5, at 1-2. This would be one week, not two weeks, before the October 9th visit to Dr. Seikaly. J.M.'s urine protein levels remained high for the following two weeks, at which point Dr. Seikaly confirmed it was a relapse of J.M.'s nephrotic syndrome. Ex. 5, at 2.
By November 4, 2009 and in less than two weeks, J.M. was weaned down to 10 mg of steroids. Ex. 10, at 7. When J.M. was weaned down to 10 mg every other day in December 2009, he experienced his fourth relapse. Ex. 2, at 12. He had his fifth relapse in March 2010. Ex. 7, at 1. He was not weaned off prednisone until April 20, 2010. Ex. 4, at 5.
J.M. started taking Prograf, an immunosuppressant medication, on June 25, 2010. Ex. 3, at 2. J.M. seemed to be doing better while on Prograf: he did not have any proteinuria or edema through January 2011 and had a normal appetite. Ex. 3, at 2. In late June 2011, J.M. was taken off Prograf. Ex. 5, at 2. His protein levels gradually climbed during July 2011, indicating a relapse. On August 15, 2011, J.M. started taking steroids again in an attempt to control the relapse. Ex. 10, at 82. He then suffered from three strokes which resulted in full paralysis on his left side. Ex. 10, at 82; Ex. 5, at 3.
Under the Vaccine Act, a special master or the U.S. 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
Respondent did not raise any specific objections to petitioner's fee application in his response to petitioner's Application for Payment of Petitioners' [sic] Interim Expenses. Instead, respondent said he "defers to the [undersigned] to determine whether or not petitioner has met the legal standard for an interim award as set forth in
Petitioner is entitled to a presumption of good faith. There is no evidence that this petition was brought in bad faith. Therefore, the undersigned finds that the good faith requirement is met.
The undersigned also finds that petitioner had a reasonable basis to file the petition. J.M.'s medical records support that he had the injuries complained of in the petition, namely a relapse of his nephrotic syndrome. Dr. Quan, a reputable doctor with excellent credentials, was willing to write three medical expert reports supporting petitioner's claim.
Additionally, interim attorneys' fees and costs are appropriate because waiting for the conclusion of the case would place an undue hardship on petitioner. Petitioner's case has been pending for almost five and a half years. A two-day entitlement hearing is set to begin on October 17, 2017.
Petitioner is not seeking attorneys' fees at this time. Petitioner requests attorneys' interim costs in the amount of $79,034.50 and petitioner's personal costs in the amount of $25,438.65, for a total request of $104,473.15. Attorneys' costs must be reasonable.
Petitioner asks for $26,275 in costs for the time that his immunological expert, Dr. Bellanti, spent working on the case. Ex. 80, at 2. Dr. Bellanti expended 52.55 hours on the case and charged a rate of $500.00 per hour.
Dr. Bellanti was compensated at the rate of $350.00 per hour by other special masters.
According to Dr. Bellanti's invoice, he was working on the case from August 11, 2013 through June 3, 2014. However, no records indicate Dr. Bellanti started working on this case before March 2014, when Mr. McHugh became petitioner's counsel. On November 15, 2013, respondent filed an immunological expert report from Dr. Levinson. On December 3, 2013, the undersigned held a telephonic status conference, during which petitioner's prior counsel Mr. Michael Baseluos expressed an interest in using Dr. David Axelrod, an immunologist, to counter Dr. Levinson's expert report.
The undersigned does not have any problem with the other attorneys' expenses.
Petitioner's life care planner Jane Mattsen charged a total of $24,222.00. Ex. 88, at 1. Ms. Mattsen provided neither the number of hours she spent on the case nor her hourly rate. The undersigned finds a total of 80 hours and an hourly rate of $250.00 reasonable in the instant case.
In 2007, the undersigned compensated the petitioner for the services of life care planner Linda K. Graham at an hourly rate of $150.00 and 116 hours in the amount of $17,400.00.
In 2013, the undersigned compensated petitioner's life care planner Liz Holakiewicz at an hourly rate of $225.00 and 169.83 hours for a total of $38,210.64.
Moreover, Ms. Mattsen failed to provide her hourly rate and specific billing entries, indicating the tasks performed and the number of hours she expended on the task, for the undersigned to evaluate her fee request. Therefore, the undersigned finds that it is reasonable to compensate at an hourly rate of $250.00 and a total of 80 hours for Ms. Mattsen's service. The total amount of compensation for Ms. Mattsen's fees is $20,000.00. Since this is a decision for awarding attorneys' interim costs, Ms. Mattsen can supplement her fee request with details after the case is decided.
The undersigned has no problem with the $1,216.65 for miscellaneous expenses.
The undersigned finds an award of attorneys' interim and petitioner's personal costs appropriate. She also finds that the majority of the amount petitioner asks for in his application for attorneys' interim and petitioner's personal costs is reasonable.
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.
