NORA BETH DORSEY, Chief Special Master.
On October 8, 2015, Maurice Hoss ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.
Approximately six months later, petitioner moved for a decision dismissing his petition, acknowledging that the evidence showed he received the trivalent influenza vaccination (Fluvirin) in his left arm and the adult pneumococcal vaccination (Pneumovax 23) in his right arm where he sustained his injury. Petitioner's Motion to Dismiss, filed Apr. 7, 2016, at 1 (ECF No. 17). Petitioner further acknowledged that because the adult pneumococcal vaccination is not covered by the Vaccine Act,
On May 27, 2016, petitioner filed a motion requesting $16,502.75 in attorneys' fees and $429.57 in attorneys' costs for a total amount of $16,932.32. Motion for Attorneys' Fees and Costs ("Pet. Motion") at 1-2, 12 (ECF No. 21). On November 3, 2016, petitioner filed a signed statement in compliance with General Order #9, indicating he incurred no out-of-pocket expenses. (ECF No. 29). For the reasons discussed below, the undersigned awards the amount requested,
Petitioner filed his petition shortly before expiration of the Vaccine Act's statute of limitations.
During the call, the OSM staff attorney questioned whether petitioner received the trivalent influenza vaccine which is covered by the Program in his injured right arm.
Over the subsequent five months, petitioner's counsel encountered difficulty obtaining these documents. See Order, issued Mar. 3, 2016 (ECF No. 14). In April 2016, he obtained a more detailed vaccination record from Walgreens which showed petitioner received the pneumococcal vaccination in his injured right arm and the influenza vaccination in his left arm. See Exhibit 8, filed Apr. 7, 2016 (ECF No. 15). Petitioner filed this record and a motion requesting a dismissal decision. The undersigned dismissed petitioner's claim, and judgment entered on May 24, 2015. (ECF Nos. 18, 20).
Petitioner filed his motion for attorneys' fees and costs on May 27, 2016. Petitioner maintains that his claim was brought in good faith and there was a reasonable basis for his claim. Pet. Motion at 2-4. Citing to and including a copy of a recent decision from one of my colleagues, Garrison,
Respondent opposes petitioner's motion for attorneys' fees and costs. On June 13, 2016, he filed his response, asserting the undersigned "should deny petitioners' application in toto." Respondent's Opposition to Petitioner's Application for Fees and Costs ("Res. Opp.") at 1 (ECF No. 25). Additionally, respondent argues that, if the undersigned finds a reasonable basis for filing the petition existed, she should award attorneys' fees based upon a local or geographical hourly rate for petitioner's counsel. Id.
A few days later, petitioner filed a reply, reiterating the arguments contained in his motion. Petitioner's Reply to Response to Motion for Attorneys' Fees and Costs ("Pet. Reply"), filed June 23, 2016 (ECF No. 26). The undersigned issued an order on July 21, 2016, informing the parties that she did not intend to issue a decision on fees and costs in this claim until a final decision was entered in Garrison regarding the appropriate hourly rate for petitioner's counsel. (ECF No. 27).
The issue is ripe for adjudication.
Motivated by a desire to ensure that petitioners have adequate assistance from counsel when pursuing their claims, Congress determined that attorneys' fees and costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S.Ct. 1886, 1895 (2013) (discussing this goal when determining that attorneys' fees and costs may be awarded even when the petition was untimely filed). As Judge Lettow noted in Davis, "the Vaccine Program employs a liberal fee-shifting scheme." Davis v. Sec'y of Health & Human Servs., 105 Fed. Cl. 627, 634 (2012). It may be the only federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs.
However, "Congress did not intend that every losing petition be automatically entitled to attorneys' fees." Perriera v. Sec'y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). The Vaccine Act requires an unsuccessful litigant to establish that their petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought before attorneys' fees and costs may be awarded. § 15(e)(1).
"[T]he `good faith' requirement. . . is a subjective standard that focuses upon whether petitioner honestly believed he had a legitimate claim for compensation." Turner v. Sec'y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioners are entitled to a presumption of good faith. Grice v. Sec'y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996); see also Di Roma v. Sec'y of Health & Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993).
This presumption does not extend to reasonable basis which must be affirmatively demonstrated by the petitioner. McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297, 305 (2011). "In contrast to the subjective standard afforded the `good faith' requirement, the `reasonable basis' requirement `is objective, looking not at the likelihood of success [of a claim] but more to the feasibility of the claim.'" Turner, 2007 WL 4410030, at *6 (quoting Di Roma, 1993 WL 496981, at *1). "[R]easonable basis is an objective standard determined by the "totality of the circumstances" inquiry." Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276, 286 (2014). It should not be rigidly applied. Id. at 285; see also Silva v. Sec'y of Health & Human Servs., 108 Fed. Cl. 401, 405 (2012) (emphasizing that "[a] special master's determination . . . is entitled to deference").
After it has been determined that an award of attorneys' fees and costs is appropriate, the special master must determine the amount to be awarded. As the Federal Circuit noted, attorneys' fees and costs were "not expected to be high" due to the "no-fault, non-adversarial system" set forth in the Vaccine Act. Saxton ex rel. v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993) (quoting H.R. REP. NO. 99-908, at 36 reprinted in 1986 U.S.C.C.A.N. 6344, 6377). Reasonable attorneys' fees are calculated by multiplying a reasonable hourly rate by a reasonable number of hours expended on litigation, the lodestar approach. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton, 3 F.3d at 1521. A petitioner's counsel in the Vaccine Program is paid the forum rate unless the bulk of the work is performed in a locale other than the forum (District of Columbia) and the local rate is very significantly lower than the forum rate. Avera, 515 F.3d at 1349. If these two requirements are met, the Davis exception applies, and petitioner's counsel is paid according to the local rate. Id.; see Davis County Solid Waste Management and Energy Recovery Special Service District v. United States Environmental Protection Agency, 169 F.3d 755 (D.C. Cir. 1999).
Although not explicitly stated in the statute, the requirement that only reasonable amounts be awarded applies to costs as well as fees. See Perriera v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375. Reasonable expert costs are calculated using the same lodestar method as is used when calculating attorneys' fees. Masias v. Sec'y of Health & Human Servs., No. 99-697V, 2009 WL 1838979, at *37 (Fed. Cl. Spec. Mstr. June 12, 2009).
Special masters have "wide latitude in determining the reasonableness of both attorneys' fees and costs." Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). They are entitled to rely on their prior experience and, based on experience and judgment, may reduce the number of hours to an amount reasonable for the work performed. Saxton, 3 F.3d at 1521. A line-by-line evaluation of the billing records is not required. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991) aff'd in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).
The petitioner "bears the burden of establishing the hours expended, the rates charged, and the expenses incurred." Wasson, 24 Cl. Ct. at 484. She "should present adequate proof [of the attorneys' fees and costs sought] at the time of the submission." Id. at 484 n.1. Petitioner's counsel "should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley v. Eckhart, 461 U.S. 424, 434 (1983).
Petitioner argues that his claim "was brought in good faith and there was a reasonable basis for his claim because his October 14, 2012 trivalent influenza vaccination was implicated as the likely cause of his SIRVA if the information from the pharmacist who had given the vaccination had been accurate (and applicable to his vaccinations)." Pet. Motion at 3-4 (emphasis omitted). Petitioner further argues that his claim "is not analogous to Program cases in which the petitioner did not receive a vaccination covered by the National Vaccine Injury Compensation Program . . . [because petitioner] did receive a covered vaccine." Id. (emphasis omitted). Petitioner maintains that reasonable basis existed until April 4, 2016, when Walgreens found the more detailed vaccination record (see exhibit 8) which showed he received the pneumococcal vaccination in his injured right arm. Pet. Reply at 3.
Opposing petitioner's request, respondent argues that petitioner's claim lacked reasonable basis because he "consistently reported that he suffered an injury in the right arm after a pneumovax vaccination." Res. Opp. at 8 (emphasis omitted). Respondent maintains that "filing a petition in order to preserve the statute of limitations does not equate to the claim itself having a reasonable basis." Id. at 9 (emphasis omitted). Respondent avers that the statement from the pharmacist regarding her general practice when administering vaccinations, by itself, is not sufficient to establish reasonable basis for filing the claim. Id. at 9-10.
A review of the medical records reveals that immediately after vaccination, petitioner attributed his shoulder pain to the pneumococcal vaccination, indicting he had received that vaccination in his right arm. See Exhibits 3 at 2-3 (October 14, 2012 visit to the orthopedist); 4 at 3-4 (November 15, 2012 VAERS Report). This information is repeated in later entries but there is no evidence petitioner himself repeated his earlier assertion. See, e.g., Exhibit 3 at 4 (petitioner's orthopedist appears to be repeating the information provided by petitioner almost two years earlier). When petitioner spoke to petitioner's counsel in September 2015, almost three years had passed since his injury. Thus, petitioner's assertion that he could not recall in which arm he received which vaccination is reasonable, and the information obtained by petitioner's counsel from the Walgreens pharmacist would have only increased petitioner's uncertainty. There is nothing in the record to indicate petitioner lacked the requisite good faith when filing his claim. The undersigned finds petitioner has satisfied the statutory requirement of good faith and turns to the more difficult issue of reasonable basis.
It is well established that claims filed on the eve of the expiration of the Vaccine Act's statute of limitations are subject to a more lenient standard when determining if reasonable basis exists. Hamrick v. Sec'y of Health & Human Servs., No. 99-683V, 2008 WL 4793152, at *5 (Fed. Cl. Spec. Mstr. Jan. 9, 2008) (noting this "long recognized" proposition). Petitioner's counsel in these cases often do not have the time needed to properly research petitioner's claim prior to filing the petition.
However, this greater latitude should not be interpreted to allow for a finding of reasonable basis for every claim filed in this manner.
A review of the billing records in this case shows petitioner first contacted petitioner's counsel on September 10, 2015, slightly more than a month prior to the expiration of the Vaccine Act's statute of limitations. Attachment to Pet. Motion, filed May 27, 2016, at 5 (ECF No. 21-1); see supra note 4 (for a discussion regarding the applicable statute of limitations). On September 17, 2015, petitioner's counsel met with petitioner, reviewed his medical records, and discussed the site of his vaccination with the Walgreens pharmacist by telephone. After that meeting, petitioner's counsel spoke to petitioner by telephone twice and reviewed the medical records again on October 5, 2015. He drafted the petition on October 6, 2015, and filed it two days later, approximately six days prior to the expiration of the statute of limitations. Id. at 5-6.
Thus, it is clear that petitioner's counsel had little time to obtain further evidence regarding the injection site of the vaccinations received by petitioner almost three years earlier. Even in this short amount of time, petitioner's counsel did manage to contact the pharmacist who administered the vaccinations and review the medical records currently available before filing the petition.
After the petition was filed, petitioner's counsel worked diligently to obtain additional documentation establishing which vaccination was administered in which arm and confined himself to tasks related to this issue. See Attachment to Pet. Motion at 6-7. Although it required numerous telephone calls and letters,
As stated in Chuisano, a determination regarding reasonable basis should not turn solely on evidentiary standards but should be "informed by a totality of circumstances." 116 Fed. Cl. at 287. In addition to the available evidence, factors such as the statute of limitations and conduct of petitioner's counsel should be considered. Id. at 288.
Furthermore, an examination of the evidentiary record in this case reveals the evidence supporting a conclusion that petitioner received the non-covered pneumococcal vaccination in his injured right arm is not as strong as it initially appears. Respondent correctly asserts that immediately following vaccination, petitioner himself indicated he received the pneumococcal vaccination in his right injured arm. Occurring far closer in time to petitioner's injury, this earlier assertion should be accorded more weight than petitioner's later uncertainty.
Respondent argues a reasonable basis for filing this claim did not exist because the information initially sought by petitioner's counsel regarding the general practice of the Walgreens pharmacist, even if procured, would not have been sufficient to overcome the evidence of petitioner's earlier assertions found in the contemporaneously created medical records. Res. Opp. at 9. Respondent may be correct, but that is a determination the undersigned would have made if petitioner had obtained the evidence he sought. The standard used in determining if reasonable basis exists "is something less than the preponderant evidence ultimately required to prevail on one's vaccine-injury claim." Chuisano, 116 Fed. Cl. at 287 (citing McKellar, 101 Fed. Cl at 304). Considered alongside the impending expiration of the statute of limitations and appropriate conduct of petitioner's counsel, the verbal description provided by the Walgreens pharmacist on September 17, 2015, was sufficient to justify the filing of this petition and further efforts on this issue.
Petitioner filed his claim on the eve of the expiration of the Vaccine Act's statute of limitations. Although an extremely close call, the undersigned finds enough evidence existed at that time to justify the petition's filing. Subsequently, petitioner pursued his claim in a timely manner, limiting his efforts to the weaknesses plaguing the case. As soon as he obtained reliable evidence to show that he received the non-covered adult pneumococcal vaccination in his injured arm, petitioner filed a motion requesting the undersigned dismiss his claim. The undersigned finds the reasonable basis which existed at the time the petition was filed continued through the conclusion of this case. Petitioner is entitled to an award of attorneys' fees and costs.
When calculating the appropriate amount of attorneys' fees and costs in this case, petitioner asks the undersigned to utilize a forum hourly rate for petitioner's counsel rather than a local or geographical rate. Pet. Motion at 5. To support this request, petitioner filed the Garrison decision (see supra note 8), a reasoned decision by one of my colleagues who determined the hourly rate for petitioner's counsel should be based on forum rates. Pet. Motion at 13-25 (copy of Garrison decision). The petitioner in Garrison was awarded attorneys' fees for work performed by petitioner's counsel in 2014-15 at an hourly rate of $387.50. 2016 WL 3022076, at *8.
Respondent argues that if the undersigned determines an award of attorneys' fees and costs is appropriate in this case, attorneys' fees should be awarded utilizing a local or geographical hourly rate. Res. Opp. at 1. Noting it was under review at the time, respondent criticizes the decision in Garrison. Specifically, respondent maintains my colleague used incorrect forum and local rates for petitioner's counsel and applied an improper standard when determining forum rates were applicable to respondent's counsel. Id. at 10-20. Regarding the total amount of fees and costs to be awarded, respondent asks the undersigned to rely on her experience and discretion to determine a reasonable amount. Id. at 20-21.
Subsequent to the arguments made in this case, respondent's motion for review in Garrison was denied. Garrison v. Sec'y of Health & Human Servs., 128 Fed. Cl. 99 (Aug. 17, 2016). Adopting the reasoning in Garrison, the undersigned recently awarded attorneys' fees in another SPU case based upon an hourly forum rate of $387.50 for work performed by petitioner's counsel in 2014-15 and $409.00 for work performed by petitioner's counsel in 2016-17. Brooks v. Sec'y of Health & Human Servs., No. 14-0563V. In this case, petitioner seeks an award of attorneys' fees based upon the same hourly rates requested and awarded in Brooks, $387.50 for work performed in 2014-15 and $409.00 for work performed in 2016. The undersigned finds these rates appropriate and awards attorneys' fees based upon the hourly rates requested by petitioner. Additionally, the undersigned finds the amount of hours billed by petitioner's counsel is reasonable and thus, awards the full amount of attorneys' fees requested by petitioner.
Regarding the costs sought by petitioner, the undersigned finds them to be reasonable and related to proceedings in this case. Thus, the undersigned also awards the full amount of costs requested by petitioner.
The Vaccine Act permits an award of reasonable attorneys' fees and costs even to an unsuccessful litigant as long as the litigant establishes the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought. § 15(e)(1). The undersigned finds petitioner in this case has satisfied both requirements. Additionally, the amount sought by petitioner is reasonable. Thus, the undersigned
The undersigned awards
The clerk of the court shall enter judgment in accordance herewith.
