CHRISTIAN J. MORAN, Special Master.
On May 5, 2002, Christopher and Carla Loving filed a petition for compensation on behalf of their daughter, Camille Loving, alleging that the diphtheria tetanus-acellular pertussis ("DTaP") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a), and which Camille received on December 5, 2000, and March 27, 2001, significantly aggravated Camille's pre-existing infantile spasms and caused her to suffer a seizure disorder and developmental delays. After extensive proceedings, petitioners were awarded compensation pursuant to the parties' stipulation.
The Lovings, acting pro se, filed their petition on May 9, 2002. Mr. Dobreff became counsel of record in December 2002. The process of gathering medical records and obtaining an expert report took several years. The Lovings filed a report from Dr. Robert M. Shuman on December 23, 2005, and a supplemental report on January 18, 2006.
In her February 27, 2006 Rule 4 report, respondent denied that the Lovings were entitled to compensation and presented a responsive report from Dr. Michael Kohrman. The Lovings filed a supplemental report from Dr. Shuman, and a hearing was scheduled for November 17, 2006, in Chicago, Illinois. During this hearing, Dr. Shuman testified but did not complete his testimony. Dr. Kohrman also testified, providing a response to a portion of Dr. Shuman's testimony. Then, the hearing was suspended.
Following the first session of the hearing, the Lovings filed another supplemental report from Dr. Shuman and respondent filed a supplemental report from Dr. Kohrman. With this record, another hearing was held on November 14, 2007, approximately one year after the first. During the second hearing, both Dr. Shuman and Dr. Kohrman completed their oral testimony.
The parties were given an opportunity to settle the case and also to file post trial briefs. By the end of June 2008, the parties had submitted their posthearing briefs. A decision denying compensation was issued on October 6, 2008.
After this decision, the Lovings filed a motion for review with the Court of Federal Claims. The Court of Federal Claims vacated and remanded the October 6, 2008 decision.
On remand, the undersigned determined that the Lovings had established that Camille's condition was worse after receiving the third dose of DTaP, and gave the parties an opportunity to develop evidence "to distinguish problems that the DTaP caused from problems that Camille would have experienced due to her pre-existing infantile spasms. When this process concludes, another decision will issue."
The Lovings filed a motion for reconsideration or clarification of the undersigned's July 30, 2009 ruling.
Proceedings slowed dramatically by mid-2011. Petitioners were repeatedly ordered to file status reports and information requested by respondent for the furtherance of settlement discussions.
On February 19, 2014, petitioners filed their first motion for attorney's fees and costs. After several requests for extension to allow the parties to attempt an informal resolution of petitioners' requested fees and costs, the Secretary filed her response on July 16, 2014. In her response, the Secretary stated that although she does not object to an award for attorneys' fees and costs in the amount of $140,000.00, she objects to the petitioners' request $279,403.07 in expert fees and costs.
During a status conference held on September 2, 2014, the parties expressed an interest in seeking mediation to resolve the expert fees and costs currently in dispute. Taking into consideration this case's long duration and the parties' continued negotiations, the undersigned recommended an interim award of the undisputed amount of attorney's fees and costs. Respondent did not object to the recommendation.
Broadly speaking, there are two issues. The first is whether petitioners should receive any attorneys' fees and costs at this time. The second question is assuming that some award is appropriate, what is a reasonable amount.
Because petitioners were found to be entitled to compensation, they are entitled to an award of attorneys' fees and costs. 42 U.S.C. § 300aa-15(e). In
A subsidiary question is whether an award of attorneys' fees and costs should be made now, that is, on an interim basis. This issue involves consideration of various factors, including protracted proceedings, costly experts, and undue hardship.
Petitioners satisfy these factors. The case has been pending for over twelve years without any previous award of interim fees and costs. Additionally, petitioners have personally incurred costs and there seems to be little reason to force petitioners to wait for reimbursement of these costs while the remaining disputed expert fees and costs are resolved. Consequently, petitioners will be awarded the undisputed amount of attorneys' fees and costs on an interim basis.
The second issue is determining a reasonable amount for attorneys' fees and costs. The Lovings seek an award of $145,087.69 in attorneys' fees and costs, and $5,950.00 as reimbursement for costs they personally incurred in proceeding on the petition in this matter. The Secretary does not object to an award of $140,000.00 for attorneys' fees and costs and $1,150.00 for costs personally incurred by the Lovings.
A review of the material indicates that the components of the Lovings' request are reasonable. They are awarded the amount to which the Secretary has not objected, $1,150.00 for petitioners' personally incurred costs and $140,000.00 in attorneys' fees and costs.
Petitioners are entitled to an award of interim attorneys' fees and costs. The special master determines that there is no just reason to delay the entry of judgment on interim attorneys' fees and costs.
After reviewing the request, petitioners are awarded the following:
The Clerk shall enter judgment accordingly.