BRIAN H. CORCORAN, Special Master.
On January 9, 2017, Dawn Amankwaa and Benjamin Edwards filed a petition on behalf of their son, B.M.A., seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program"),
After reviewing Respondent's Rule 4(c) Report and independently evaluating the medical records, I expressed to Petitioners my view that their claim (which closely resembles the kind of autism injury claims alleged unsuccessfully many times over in the Vaccine Program was very unlikely to succeed, and thus lacked reasonable basis to go forward. See Scheduling Order, dated Aug. 22, 2017 (ECF No. 20) ("August Order"). I therefore invited the Petitioners to evaluate how they wanted to proceed. In response, present counsel requested that he be permitted to move to withdraw from the action, and I informed him I would act on such a motion in conjunction with any fees request he might make for work performed during the case's pendency. Scheduling Order, dated October 12, 2017 (ECF No. 23).
Petitioners filed the present fees motion on October 28, 2017, with counsel's motion to withdraw following two days later. See Motion for Attorney Fees, filed Oct. 28, 2017 ("Fees App.") (ECF No. 25); Motion to Withdraw, dated Oct. 30, 2017 (ECF No. 26). Petitioners specifically request fees and costs in the total amount of $25,011.58 (representing $24,266.25 in attorney's fees, and $745.33 for costs incurred). See Fees App. at 11; Ex. 19-5 to Reply, dated Nov. 21, 2017 (ECF No. 30-1).
Respondent initially reacted to the motion on November 6, 2017, deferring to my discretion as to whether Petitioners have met the legal standards for an interim fees and costs award. See Response, filed Nov. 6, 2017 (ECF No. 27) at 3. But not long thereafter, Respondent filed an amended response on November 8, 2017, contesting Petitioners' fee request in its entirety on reasonable basis grounds, in light of an intervening Federal Circuit decision. See Simmons v. Sec'y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017); Revised Response, dated Nov. 8, 2017 (ECF No. 29) ("Opp."). I permitted Petitioners the opportunity to reply to Respondent's new arguments in opposition to the fees request, and they did so on November 21, 2017. See Reply, dated Nov. 21, 2017 (ECF No. 30) ("Reply"). The disputed fees request is now fully briefed and ripe for resolution.
For the reasons stated below, I hereby
B.M.A. was born at full term via vaginal delivery on December 31, 2012. Ex. 9. He displayed no developmental problems at his twelve-month well-child pediatric visit on January 10, 2014, at which time he received some of the vaccines alleged in this case to have been causal of his injuries (the Measles-Mumps-Rubella, varicella, Hepatitis A, and influenza ("flu") vaccines). Ex. 1 at 40. He had, however, experienced a fall down a flight of stairs on November 7, 2013, when he was ten months old — hence before the first vaccinations at issue. Ex. 13 at 34-38.
B.M.A. received a second flu vaccine dose in February 2014, and then the DTaP, HiB, IPV, and pneumococcal conjugate vaccines in April 2014. Ex. 1 at 42, Ex. 11 at 15. The medical records from this period reveal no notable concerns about his condition or development, and report no post-vaccine reactions. By July 2014, however, the Petitioners were reporting to pediatric treaters concerns about B.M.A.'s development, and he was not long thereafter referred for an autism evaluation. Ex. 1 at 41, 43. It appears from the records that B.M.A. did not receive that evaluation until September 2014, at which time early intervention was recommended for physical and speech therapy. Ex. 10 at 28-35.
In February 2015 (more than a year after the first vaccinations at issue), Petitioners brought B.M.A. back to his pediatrician expressing concerns about behavioral issues that they reported to have first observed after his November 2013 fall down the stairs. Ex. 1 at 22. That same month, Petitioners brought B.M.A. to a hospital for evaluation of what they feared might have been a seizure, and at this time EEG and MRI testing was performed. Ex. 2 at 5, 41, 51. Although the EEG revealed no epileptic events, the brain MRI revealed possible white matter brain cell damage typical of demyelination. Id. at 5, 8. However, a neurodevelopmental specialist cast doubt on the possibility that B.M.A. suffered from a demyelinating disease, given certain facts gleaned about his medical history. Id. at 49.
B.M.A. continued to receive treatment in 2015 for his developmental problems and possible demyelinating disease, although specialists expressed doubt that he suffered from a white matter demyelinating disease in spite of the earlier MRI findings, or that his developmental problems were otherwise attributable to a neurodegenerative condition. See, e.g., Ex. 8 at 3-4, 8-9. However, by the end of 2015, a different specialist proposed B.M.A. might be suffering from a trigeminal neuralgia
In May 2016, B.M.A. underwent an MRI of the brain due to concern for right-sided trigeminal neuralgia, but it revealed no evidence of neurovascular conflict and produced a stable white matter signal. Ex. 17 at 204. B.M.A. thereafter underwent a surgical procedure to treat nerve compression in his cranium likely causing his trigeminal neuralgia. Id. at 121, 145.
Importantly, there is no evidence in the medical records in which a treater links B.M.A.'s vaccinations to either his developmental problems or his trigeminal neuralgia, or links the two in any other way. In addition, and despite some evidence suggesting the possibility of a white matter demyelinating condition, overall treater opinions contained in the medical record do not support that conclusion, and it is otherwise undeniable that B.M.A. was never so diagnosed.
This action has been pending for just under a year, having been filed on January 9, 2017. Pet. at 1. As the billing invoices submitted in support of the fees application reveal, however, Petitioners' attorney, Robert Krakow, Esq., began working on the matter on December 30, 2016, eleven days before filing. See Ex. 19, Tab 2 to Fees App. (ECF No. 25-2) at 1. Because B.M.A. received the first round of vaccines relevant to his claim on January 10, 2014, the earliest possible limitations cutoff for the claim was January 10, 2017.
Mr. Krakow began reviewing medical records in late December 2016, and continued until the filing of the Joint Statement of Completion on May 30, 2017. ECF No. 17. However, the majority of exhibits in the case (Exhibits 1-10) were filed a day after the case's initiation. ECF No. 5. Respondent filed his Rule 4(c) Report on August 14, 2017, after one extension of time. ECF No. 19. According to the billing invoices, Mr. Krakow specifically reviewed records related to demyelination on December 31, 2016, and immunization, pediatric history, and neurological history documents on January 1, 2017, but then received and reviewed additional records a few months later, in March-April 2017 (specifically, Exhibits 11-18). See Ex. 2 to Fees App. at 1, 4-6. However, it appears from the billing records that counsel was aware that demyelination was an important issue from the start. Id. at 1 (referencing December 31, 2016 "email to client with questions about dysmyelination [sic] and trigeminal neuralgia").
As noted above, a telephonic status conference was held on August 21, 2017 (seven months after filing), during which I raised questions regarding the overall viability of Petitioners' claim. I noted to Petitioners in particular the fact that although they alleged that B.M.A. had experienced some kind of neurologic injury in connection with the vaccination he had received, the medical record did not reflect any complaints of such injury before or congruent with the discovery of B.M.A.'s developmental problems. August Order at 1. I have ruled in several cases alleging an autism injury that claims of a vaccine reaction (for example, in the form of parent complaints of an infant's post-vaccination condition) uncorroborated by record proof of that reaction are not credible (putting aside the more significant problems posed by the causation theories in these cases). See, e.g., Anderson v. Sec'y of Health & Human Servs., No. 02-1314V, 2016 WL 8256278 (Fed. Cl. Spec. Mstr. Nov. 1, 2016), mot. for review den'd, 131 Fed. Cl. 7135 (2017), appeal docketed, No. 17-2209 (Fed. Cir. Nov. 1, 2016); R.V. v. Sec'y of Health & Human Servs., No. 08-504V, 2016 WL 3882519 (Fed. Cl. Spec. Mstr. Feb. 19, 2016), mot. for review den'd, 127 Fed. Cl. 136 (2016), appeal dismissed, No. 16-2400 (Fed. Cir. Oct. 26, 2016).
I thus informed Petitioners and their counsel that in my view the claim lacked reasonable basis going forward. August Order at 2. The next month, counsel filed a motion to withdraw, along with the request for interim fees presently before me.
Petitioners maintain that they had reasonable basis to prosecute their claim until at least August 21, 2017 — the date of the conference preceding my August Order, and first time I expressed concerns about reasonable basis to the parties. Fees App. at 16.
In reacting to the fees request, Respondent originally deferred to my discretion in resolving it, but then amended his response in light of the Federal Circuit decision in Simmons. See Ex. 1 to Opp. Specifically, Respondent reasoned that according to Simmons, a looming statute of limitations deadline does not provide a reasonable basis for Petitioner's claim, and therefore cannot excuse the filing of this case. Opp. at 1. Rather, for the reasons set forth in the Rule 4(c) Report, and my Orders entered on August 22, 2017, and October 12, 2017, Petitioners have failed to establish a reasonable basis for the claim, and therefore no fees should be awarded. Id. at 1-2.
In their Reply, Petitioners argue that Respondent's position wholly ignores the relevant factors that must be considered in the objective evaluation of a reasonable basis determination, and also misinterprets the Simmons decision. Reply at 2. Petitioners' counsel maintains that the present case is "starkly distinguishable" from Simmons, arguing that reasonable basis existed based upon counsel's review of a significant, although incomplete, set of medical records prior to the filing of the Petition. Id. at 13-14. In particular, Petitioners propose that a complete review of medical records was necessary due to the suggestion of white matter demyelination as a potential vaccine-induced cause for B.M.A.'s symptoms. But counsel did not have the benefit of such a review before filing; in fact records of the May 2016 MRI critical to this aspect of Petitioners' theory were not in counsel's possession until April of this year, almost three months after the case's initiation. Id. at 7. Petitioners also assert that even if onset of B.M.A.'s symptoms was deemed to have occurred sometime after his April 2014 vaccinations, a timeframe of up to five months for the start of the alleged demyelination (which was first observed in February 2015 but in Petitioners' view likely began before) has medical support. Id. at 17-18.
I have in prior decisions set forth at length the criteria to be applied when determining if a claim possessed "reasonable basis"
The Court of Federal Claims recently provided further illumination as to the standards that should be used to evaluate whether the totality of the circumstances warrant a finding that reasonable basis existed. Cottingham v. Sec'y of Health & Human Servs., No. 15-1291V, 2017 WL 4546579, at *10 (Fed. Cl. Oct. 12, 2017). As Judge Williams therein stated, a special master should consider "the novelty of the vaccine, scientific understanding of the vaccine and its potential consequences, the availability of experts and medical literature, and the time frame counsel has to investigate and prepare the claim." Id. at *5. An impending statute of limitations deadline may also play a role in a reasonable basis determination as well. Id. at *10.
The even more recent Federal Circuit Simmons opinion, however, casts doubt on the weight to be given to the statute of limitations factor under the "totality of the circumstances" analysis. The claimant in Simmons informed his counsel (whom he contacted in August 2011) that he had developed Guillain-Barré syndrome ("GBS") after receiving the flu vaccine on October 26, 2010. Simmons, 875 F.3d at 634. Counsel thereafter did not contact the claimant for two years, but then the claimant resurfaced in October 2013 (not long before the Act's three-year limitations period was likely to expire on the claim) and expressed the desire to pursue the claim. Counsel accordingly filed the case, based solely on the claimant's assertions — but without corroborating documentary proof, despite the two-year period that had passed since the claim's filing. Id.
The Simmons claim was dismissed for failure to prosecute, but the special master responsible for the case granted a request for attorney's fees, finding special significance in the fact that counsel had had ethical obligations to protect the claim by filing it before it was time barred, even if its objective basis had not been fully vetted. Simmons, 875 F.3d at 635. On review, the Court of Federal Claims disagreed, and the Federal Circuit affirmed. In so doing, the Federal Circuit stated that "whether there is a looming statute of limitations deadline, . . . has no bearing on whether this is a reasonable factual basis for the claim raised in the petition." Id. at 636 (emphasis added). But that determination also took into account several facts, including that (a) the Simmons claimant had never offered any objective proof that he had experienced GBS, despite ample time to do so, and (b) instead, the claimant relied solely on the need to act in the face of the limitations period expiration. Id. Accordingly, "because the special master only found that there was a reasonable basis for [the claim] because of the impending statute of limitations deadline," the award of fees constituted a misapplication of the law, and was a reversible abuse of discretion. Id. (emphasis added).
Simmons is thus best understood to hold that the pending expiration of the Act's limitations period is by itself not grounds for a reasonable basis finding, as it does not constitute objective evidence in support of the claim. But Simmons does not expressly (or even impliedly) abrogate the "totality of the circumstances" test — and therefore does not mean that the circumstances informing an attorney's investigation of a claim's basis (including the fact that an attorney may have insufficient time to complete that investigation due to the need to file a claim expeditiously) are irrelevant. Rather, it emphasizes the need for petitioners to locate objective proof supporting a claim — an inquiry that can take time, as recognized in other decisions observing that claims can possess reasonable basis but then "lose" it later after additional facts are adduced. See, e.g., Curran v. Sec'y of Health & Human Servs., No. 15-804V, 2017 WL 1718791, at * 3 (Fed. Cl. Spec. Mstr. Mar. 24, 2017), aff'd in part and remanded on other grounds, 130 Fed. Cl. 1 (2017); Pannick v. Sec'y of Health & Human Servs., No. 16-0510V, 2016 WL 8376894, at *2 (Fed. Cl. Spec. Mstr. Nov. 8, 2016). The fact that an attorney may have not completed analysis of a claim's viability before filing, thus, matters less than how long the attorney has to do so — and, critically, when it is just and fair to say that attorney should have known the case lacked objective basis.
I am not persuaded by Respondent's argument that the case's lack of reasonable basis should have been determined in the short time counsel had before its filing due to the limitations cutoff. Respondent's reading of Simmons—completely ruling out as irrelevant the fact that counsel must act expeditiously to evade the impact of a pending limitations cutoff—is admittedly consistent with certain language contained in the decision, but ignores the facts of the Simmons case that produced that outcome, i.e. where no objective proof supporting the claim was ever offered. The circumstances here are far different. The fact of B.M.A.'s injury was established by those records in his immediate possession, as was proof of vaccination. See Ex. 1 (ECF No. 5-1) at 11, 22, 40; Ex. 9 (ECF No. 5-9) at 3; Ex. 11 (ECF No. 10-1) at 15, 69-71; Ex. 2 to Fees App. at 1-2. And Petitioner's counsel did begin to evaluate the records and consider the claim's strengths before its filing, but lacked sufficient time (or record evidence) to complete that process. Thus, unlike Simmons, this case was not one where the claim's feasibility could have been fully vetted prior to filing.
In addition, consideration of the limitations cutoff in performing my "totality of the circumstances" analysis is not inconsistent with the Simmons ruling. Simmons references the "totality of the circumstances" test, and it has long been understood in the Vaccine Program that this test considers a variety of factors in assessing reasonable basis — including the context in which an attorney evaluates a claim's viability, before and after filing. See, e.g., Allicock, 2016 WL 3571906, at *4-5, Gonzalez, 2015 WL 10435023, at *5-6; Cortez, 2014 WL 1604002, at *6. The fact that a pending limitations cutoff impels an attorney to file a claim later revealed to be weak has often been considered one relevant consideration. While Simmons clearly states that this cannot be the "sole" factor (since it does not stand as objective evidence supporting the claim — the sine qua non of a reasonable basis determination), the Federal Circuit in Simmons did not abrogate that test.
Thus, although the inquiry into the validity of Petitioners' claim herein was not completed before the time to file arrived
This does not mean, however, that these same facts do not also militate against a full award of attorney's fees through August 2017, as requested by Petitioners. Well-reasoned decisions have noted that even cases that begin with reasonable basis can lose it over time, once more evidence comes in that reveals a claim's weaknesses. See, e.g., Pannick, 2016 WL 8376894, at *2. I have ruled that reasonable basis ceased to exist for certain claims that initially had it for this very reason. See, e.g., Curran, 2017 WL 1718791; see also Fieselman v. Sec'y of Health & Human Servs., No. 17-170V, 2017 WL 5398625 (Fed. Cl. Spec. Mstr. Sept. 14, 2017); Butler v. Sec'y of Health & Human Servs., No. 16-1620V, 2017 WL 3811134 (Fed. Cl. Spec. Mstr. Aug. 3, 2017).
The billing invoices offered in support of the present fees motion demonstrate that counsel filed this claim without the benefit of a full review of the record. The record counsel did possess, however, reveals numerous facial deficiencies with Petitioners' claims — all of which should have been warning signals as to the claim's viability. For instance, Petitioners allege that B.M.A. suffered from a "brain injury manifesting as demyelination, nerve damage, trigeminal neuralgia, and other neurological injuries." Pet. at 1-2. However, the medical records generally support diagnoses related to an autism spectrum disorder and trigeminal neuralgia only — and there is no record support linking either to any vaccination B.M.A. received. See Ex. 11 (ECF No. 10-1) at 69-71. There are also numerous instances in which Petitioners informed treaters that they observed B.M.A.'s developmental problems to have manifested as a result of his November 2013 fall, and thus before he received the January 2014 vaccines. Ex. 1 (ECF No. 5-1) at 22.
The records counsel possessed at the time of filing do raise the issue of demyelination (Ex. 2 (ECF No. 5-2) at 8), but it does not appear that B.M.A. was ever diagnosed with a demyelinating condition or that testing would support such a diagnosis. And although Petitioners stated that B.M.A. began to exhibit symptoms in the spring and summer of 2014, the medical records indicate that he did not present to a physician with relevant complaints associated with his trigeminal neuralgia until February 2015, almost a year from the April 2014 vaccinations. Ex. 1 (ECF No. 5-1) at 22. Thus, even if records that counsel lacked at the outset of the case might have helped him better understand the claim's possible issues, counsel had more than enough to know that the claim was going to be very difficult to prosecute successfully.
The timeline revealed by the invoices submitted with this fees application bulwarks the conclusion that the claim's reasonable basis could have been determined long before August 2017. Mr. Krakow possessed Exhibits 1-10 (367 pages) prior to the filing of the case, gaining additional records in March-April 2017. See Ex. 2 to Fees App. at 1-2. But Mr. Krakow could have assessed the claim's significant deficiencies without those additional records (even if the additional records received in March 2017 shed some light on the trigeminal neuralgia diagnoses). Furthermore, Mr. Krakow did have in the initial records evidence of the alleged white matter demyelination (or lack thereof). Regardless, the documents Petitioners now cite as supporting their allegations of causation facially do not support their claim. The billing records reveal that Mr. Krakow devoted 18.15 attorney hours to file review before the end of January — more than enough time to determine the case's deficiencies, regardless of how complete the record was at this time. The fact that the case was filed due to the looming limitations cut-off should have encouraged counsel to act promptly, given the risk the claim would prove to lack objective proof. Curran, 2017 WL 1718791, at *3 (counsel filing a Vaccine Act claim right before limitations cut-off must act immediately thereafter to fully vet the claim's objective basis).
A final and significant consideration is the autism/developmental nature of the injury alleged. Claims alleging that vaccines cause autism have failed repeatedly, as reflected in the decisions rendered in the Omnibus Autism Proceedings (the "OAP") as well as those thereafter, and Petitioners offered no medical or scientific evidence to suggest this claim would be the one to result in a different outcome.
Given all of the above, this claim's lack of reasonable basis should have been determined far sooner. Indeed, the deficiencies revealed by the medical records in counsel's possession at the time of filing could be determined in a day's review (a timeframe that special masters often are forced to adhere to in becoming conversant with a case). ECF No. 1-10. I also dispute the asserted need for an expert to weigh in on the strength of the claim. Again, Mr. Krakow's experience with this very kind of alleged vaccine injury (having represented petitioners in many entitlement hearings involving autism) suggests he possessed sufficient expertise to at least assess the overall legal viability of the claim.
Accordingly, even if counsel were justified, due to the looming statute of limitations cutoff, in filing the claim before he had completed a full review of the record, once the case was filed it was incumbent upon him to perform and complete that review immediately, obtaining as quickly as possible any documents necessary for that inquiry. I therefore find that reasonable basis for this claim ended January 31, 2017, by which time it should have been clear to Petitioners that the claim lacked objective support. I will not award any hours of attorney or paralegal work performed following that date (with the exception of costs relevant to winding down the case and preparing it for dismissal, including some of the costs associated with preparing the Reply). See Curran, 2017 WL 1718791, at *3-4 (awarding modest fees associated with winding down the case).
My ruling herein is, if anything, generous to the Petitioners and their counsel. Should the same counsel file another autism injury claim in which its deficiencies are as self-evident in the records initially possessed, I am not likely to allow any fee award at all.
Because I have determined that the matter possessed reasonable basis for some period of its existence, I must now evaluate what amount of award is proper. As a threshold matter, I find that the circumstances of Mr. Krakow's withdrawal from the case do justify an interim award.
Whether a fee award is made on an interim basis or after a case's conclusion, the requested sum must be "reasonable." Section 15(e)(1). Special masters may in their discretion reduce attorney hours sua sponte, apart from objections raised by Respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (2009); Perreira, 27 Fed. Cl. at 34 (special master has "wide discretion in determining the reasonableness" of attorney's fees and costs).
Determining the appropriate amount of an award of reasonable attorney's fees is a two-part process. The first part involves application of the lodestar method — "multiplying the number of hours reasonably expended
Petitioners ask that Mr. Krakow and paralegals who worked on this matter be reimbursed at varying rates for work performed from 2016-2017, as detailed above ($425 per hour for Mr. Krakow for work completed in 2016, and $435 per hour for work in 2017; and $125 per hour, with an increase to $140 per hour, for paralegal work in 2016-2017, respectively). Mr. Krakow's firm, located in New York, has repeatedly been found to be "in-forum" and therefore he is entitled to the forum rates established in McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
In light of my reasonable basis determination, however, I will make an adjustment to the time awarded for attorney services. As mentioned above, I will not award any hours of attorney or paralegal work performed after January 31, 2017 (with the exception of costs relevant to winding down the case and preparing it for dismissal, plus some of the costs associated with preparation of the Reply, as requested therein)
Therefore, I will compensate Petitioners and their counsel for 18 hours of attorney work (including the three-hour increase added to Mr. Krakow's fee award), the additional $2,000.00 awarded for work associated with the Reply, and 7.5 hours of paralegal work representing pre-January 31, 2017, work plus wind-down costs. This amounts to a total of $10,798.50 (representing $9,801.00 in attorney fees and $997.50 in paralegal fees) — a total fees reduction of $13,467.75.
Petitioners' requested costs include reimbursement for the filing fee, mailing and postage costs, and costs associated with obtaining medical records. See Ex. 19, Tab 2 to Fees App. at 9. These costs are reasonable and will be reimbursed in full. Therefore, I will award a total of $745.33 in costs.
The Vaccine Act permits an award of reasonable attorney's fees and costs. 42 U.S.C. § 300aa-15(e). Accordingly, I award a total of
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). This "Davis" exception is inapplicable here, however, because I have previously found the attorneys in question should receive forum rates.
