BRIAN H. CORCORAN, Special Master.
On December 7, 2016, Daniele Strawmyre Butler filed a petition on behalf of her minor child, C.B., seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program").
After Petitioner had filed some relevant medical records to her case, completing the process by the end of December, Respondent filed his Rule 4(c) Report indicating that he did not deem this claim appropriate for compensation. ECF No. 12. I thereafter expressed my own concerns about the claim's viability in April, based on my initial view that the records did not appear to support Petitioner's claim, and also brought to Petitioner's attention previous Vaccine Program decisions that rejected her exact causation theory. After two extensions of time, Petitioner filed a Motion for a Decision Dismissing the Petition on June 14, 2017 (ECF No. 16), which I granted on June 16, 2017. ECF No. 17. The claim thus existed for approximately six months.
Petitioner has now filed a motion requesting final attorney's fees and costs, dated July 25, 2017. See ECF No. 22 ("Fees App."). Petitioner requests reimbursement of attorney's fees and costs in the total amount of $14,865.79 (representing $13,688.50 in attorney's fees, plus $1,177.29 in costs). Id. at 1; Ex. A to Fees App. at 17, 19. Respondent filed a document reacting to the fees request on July 25, 2017, indicating that he is satisfied that the statutory requirements for an award of attorney's fees and costs are met in this case, but deferring to my discretion the determination of the amount to be awarded. ECF No. 23.
I have in prior decisions set forth at length the relevant legal standards governing attorney's fees awards in unsuccessful cases, and in particular the criteria to be applied when determining if a claim possessed "reasonable basis."
Though counsel noted in the petition that he filed this claim due to a looming expiration of the statute of limitations, the billing records actually reveal that he received the claim four months prior to filing it. Ex. A to Fees App. at 1. While counsel (Mr. Andrew Downing and Ms. Courtney Van Cott) had not obtained all of the relevant medical records at the time of filing, the billing records demonstrate that in fact some records had been obtained and reviewed, with records gathering completed by the end of December 2016 — the month the case was filed. See generally id. at 1-4. Overall, counsel billed 88.70 hours to the matter, with 58.2 hours billed by the time of the case's filing. Ex. A to Fees App. at 17. Thus, Petitioner's counsel had sufficient time to research the claim and also review the potential problems revealed in the medical records, even before the case's filing.
Those same records laid bare deficiencies in the claim. For instance, Petitioner's medical records show that C.B.'s alleged reaction did not occur until four or five weeks following vaccination (at the earliest) — a significantly long time period from which to infer causation. And similar claims alleging that the DTaP vaccine can cause infantile spasms and/or epileptic encephalopathy (West Syndrome) have been rejected in the Program. See, e.g., Taylor v. Sec'y of Health & Human Servs., 108 Fed. Cl. 807 (2013); Grace v. Sec'y of Health & Human Servs., 2006 WL 3499511 (Fed. Cl. Spec. Mstr. Nov. 30, 2006). Accordingly, the problems with this claim (and the fact that it likely lacked reasonable basis) could have been evaluated far sooner.
The record also reveals some dilatory conduct in Petitioner's determination to abandon the claim. Once I raised my concerns about the strength of the case to Petitioner's counsel, counsel still required two extensions of time in order to decide how to proceed. See ECF No. 14-15. I have previously ruled that attorneys with facially weak claims must act expeditiously to evaluate a claim's strength, and are properly tasked with making such determinations on their own. Curran v. Sec'y of Health & Human Servs., No. 15-804V, 2016 WL 4272069 (Fed. Cl. Spec. Mstr. June 22, 2016), aff'd in part and remanded on other grounds, 130 Fed. Cl. 1, 11 (Jan. 3, 2017). Counsel had sufficient time before filing, and then during the immediately-following months, to recognize this claim's probable lack of success, and I am not persuaded that this case required such an extended amount of time in order to be resolved.
Based on my review of the case history, coupled with the evidence of counsel's course of representation of Petitioner as set forth in the billing records, I conclude that this matter's reasonable basis weaknesses should have been evaluated much sooner. I am also troubled by the amount of time it took Mr. Downing to evaluate this case given his experience in Vaccine Program matters. This is not the first case I have been asked to award fees in a case in which Mr. Downing filed a matter close to the limitations cut-off, but then did not act expeditiously thereafter in evaluating the claim's strengths. See, e.g., Curran, 2016 WL 4272069; Allicock, 2016 WL 3571906. He has been warned in the past about the dangers of so acting. Moreover, the billing records reveal that counsel in fact did have several months' time prior to the claim's filing to consider its viability. At a minimum, that evaluation could have been completed by the end of January, obviating the need for 17.9 hours of additional attorney time.
The amount of time spent on this case does not warrant full reimbursement. I find that reasonable basis for this claim ended at the end of January 2017, and I will not award any hours of work performed following that date (with the exception of events clearly revealed in the billing records as associated with winding down the case and preparing it for dismissal). See Curran v. Sec'y of Health & Human Servs., No. 15-804V, 2017 WL 1718791, at *3-4 (Fed. Cl. Spec. Mstr. Mar. 24, 2017) (awarding modest fees associated with winding down the case). This results in a reduction of 6.6 hours' work. I will also reduce the remaining 82.1 hours (representing pre-January 31st work and wind-down work) by 30 percent, in order to achieve the "rough justice" that I am empowered to effect when making fees awards in the Program.
Petitioner requests $350 per hour for Mr. Downing's work performed in 2016, with an increase to $375 per hour in 2017; $195 per hour for Ms. Van Cott's work performed in 2017; and $100 per hour for two paralegals' work performed in 2016, with an increase to $135 per hour in 2017. Ex. A to Fees App. at 19-20. The hourly rates requested herein are reasonable and have been previously awarded (see, e.g., Brannigan v. Sec'y of Health & Human Servs., No. 14-675V, 2017 WL 2644696, at *4 (Fed. Cl. Spec. Mstr. May 26, 2017)), and thus will also be awarded here. Taking into account the above reductions, I will award attorney's fees in the total amount of $8,756.65. Finally, I find that the amount of costs requested ($1,177.29) is reasonable and will be awarded in full.
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of attorney's fees and costs awards, and based on the foregoing, I