BRIAN H. CORCORAN, Chief Special Master.
On September 26, 2018, Karen Goldie filed a Petition seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").
On November 5, 2019, Petitioner filed a motion seeking a final award of attorney's fees and costs. Mot. for Final Att'ys' Fees and Costs (ECF No. 20) ("Mot."). Ms. Goldie requested $38,613.75
Respondent reacted to the fees request on November 19, 2019. See Response, dated Nov. 19, 2019 (ECF No. 23). He indicates in his Response that he is satisfied that the statutory requirements for an attorney's fees and costs award are met in this case but defers to my discretion the calculation of a proper amount to be awarded. Id. at 2-3.
Now, having had the opportunity to review all filings in light of the medical record, I hereby (and for the reasons set forth below) GRANT IN PART AND DENY IN PART Petitioner's motion.
Petitioner received the flu vaccine on October 16, 2015. Pet. at 1. Several months later, on January 6, 2016, Petitioner presented to the emergency department of Miami Valley Hospital and complained of upper body weakness that had persisted since its onset on December 18, 2015. Ex.
3 at 5-6, 12. A physical examination revealed equal, but diminished strength in both upper extremities as well as mild weakness in her lower extremities. Id. at 14, 16. Despite these findings, Petitioner's overall appearance was good, and she was discharged home with instructions to follow-up with neurology and her primary care physician. Id. at 16. She was also told to return to the emergency department if her symptoms worsened. Id.
Petitioner returned to the emergency department at Miami Valley Hospital on January 9, 2016 and complained of worsening weakness. Id. at 43. Her lower extremity weakness was so severe that she was unable to ambulate and required mobility assistance. Id. at 53. She was admitted for "further monitoring, evaluation, and continued diagnostic testing for her generalized weakness and inability to ambulate." Id. at 43-44.
An EMG and nerve conduction study performed on January 13, 2016 showed evidence of a peripheral polyneuropathy. Id. at 75. That same day, Ms. Goldie underwent a lumbar puncture. Id. at 76. The results of the lumbar puncture showed elevated protein levels. Id. at 123. Acute inflammatory demyelinating polyneuropathy ("AIDP")—a common GBS variant—became the most favored etiology for Ms. Goldie's condition. Id. at 76, 80. Additionally, her treating physicians noted that she "did report recent vaccinations in [September]. This could be an atypical presentation." Id. at 80. Ms. Goldie was treated with a five-day course of IVIG with marked improvements in her condition. Id. at 89, 102. She was discharged home on January 18, 2016. Id. at 162.
In the months that followed, Ms. Goldie experienced several relapses in her GBS-like symptoms requiring hospitalization and continued treatment with IVIG. See id. at 599, 946. Given the persistent relapsing and remitting nature of her symptoms, Ms. Goldie was diagnosed with CIDP. Id. at 946; see also Ex. 6 at 40, filed Sept. 26, 2018 (ECF No. 5-6). Following her diagnosis, Ms. Goldie continued to experience several more relapses that required hospitalization and IVIG treatment. Ex. 3 at 1143, 2389, 2654. In an effort to further limit the number of relapses she was experiencing, Ms. Goldie began plasma exchange treatments in April 2017. Id. at 3293. Despite experiencing significant improvements with weekly plasma exchange, Ms. Goldie still experienced relapses requiring hospitalization in September and October 2017, as well as January 2018. Id. at 4057-58, 4901-02, 5757-58; Ex. 7 at 16, filed Sept. 26, 2018 (ECF No. 5-7).
Following her January 2018 hospital admission, Ms. Goldie experienced improvement in her condition. See Affidavit of Karen Goldie at 6, filed as Ex. 2 on Sept. 26, 2018 (ECF No. 5-2). She regained mobility and the ability to perform most activities of daily living without difficulty. Id. On March 15, 2018, she had a follow-up appointment as well as a colonoscopy. Ex. 3 at 6386. The colonoscopy revealed a neuroendocrine carcinoid tumor, which was subsequently removed. Id.
Vaccine Program attorneys are not automatically entitled to a fees award in unsuccessful cases like this one. Rather, such a claim must be shown to have possessed "reasonable basis"— meaning that it had some objective basis upon which to proceed, in light of the "totality of the circumstances." See, e.g., Chuisano v. Sec'y of Health & Human Servs.,
Here, I find Petitioner's claim had sufficient objective basis to entitle her to a fee award under the applicable reasonable basis analysis. Claims that vaccines can cause GBS and CIDP are common enough in the Program to have facial credibility. Even though this claim was unsuccessful (due primarily to the lack of expert support for Petitioner's proposed theory of causation following the discovery of her neuroendocrine carcinoid tumor), it was based on evidence, including diagnostic test results and treater support, of GBS and CIDP following vaccine administration. In addition, the claim's objective deficiencies were only revealed after an expert pointed them out. Mot. at 2. There was enough evidence in the record to support bringing the claim, and Respondent for his part does not otherwise contest reasonable basis.
Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—"multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Avera v. Sec'y of Health & Human Servs.,
An attorney's reasonable hourly rate is determined by the "forum rule," which bases the proper hourly rate on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney's work was not performed in the forum and there is a substantial difference in rates (the Davis exception). Avera,
Mr. Kelly is a named partner of Robbins, Kelly, Patterson & Tucker, LPA, located in Cincinnati, Ohio, a jurisdiction that has been deemed "in forum." See Mollica on behalf of A.M. v. Sec'y of Health & Human Servs., No. 15-1520V,
While I find the rates requested in this case to be reasonable, I find certain of the hours expended in this matter unreasonable. In assessing the number of hours eligible for reimbursement, the courts must exclude those "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. Eckerhart,
But what tasks constitute "excessive, redundant, or otherwise unnecessary" hours expended? The instant matter provides two examples: performing medical research and performing general research regarding the Vaccine Program.
Prior to filing a claim in the Vaccine Program, attorneys are encouraged to perform independent research on filing procedures to ensure an efficient and complete review of the claim. They are also encouraged to research the merits of the case before them. But this kind of generalized background work is not compensable. See Curran v. Sec'y of Health & Human Servs., No. 15-804,
General research conducted for the purpose of familiarizing oneself with medical terminology, filing procedures, and case law are not recoverable tasks under the Vaccine Act. See Helton v. Sec'y of Health & human Servs., No. 16-0234V,
Mr. Kelly reported a total of 10.2 hours of research related to "GBS and CIDP medical conditions," "GBS, CIDP symptomology and treatment," vaccine court rules," "case research on vaccine docket, CIDP cases, decisions and settlements," and "article on paraneoplastic syndromes secondary to neuroendocrine tumors." Ex. 1 to Mot. Similarly, Mr. Kelly's paralegal reported a total of 7.6 hours of research related to "GBS and AIDP," "medical procedure," "CIDP cases and awards," "GBS and CIDP cases filed with vaccine court," "CIDP cases heard before special master[] Corcoran," "paraneoplastic syndrome," "carcinoid and paraneoplastic neuropathies," and "Loving elements of proof of aggravation of injury." Id. Though counsel no doubt needed to familiarize himself with Program requirements and the facts of this case, the nearly eighteen hours spent researching general information about the alleged injury and associated treatments, Vaccine Program rules, prior fee decisions, and prior entitlement decisions alleging GBS and CIDP far exceed the scope of compensable research contemplated by the Vaccine Act. See Helton,
I will next turn to costs. Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Perreira v. Sec'y of Health & Human Servs.,
Petitioner requests $5,635.86 in overall costs. Mot. at 4; Ex. 3 to Mot.; Ex. 4 to Mot. This amount includes the cost of postage, expert consultation fees, and medical record requests. Mot. at 3-4; Ex. 3 to Mot.; Ex. 4 to Mot. These costs are typical of Vaccine Program litigation, and Petitioner has provided adequate documentation supporting them. Additionally, the medical expert retained in this matter provided services that assisted in the resolution of this case. Therefore, I find reimbursement of the requested expert costs reasonable. I thus find the requested costs to be reasonable and shall award them without reduction.
I hereby GRANT IN PART Petitioner's motion for attorney's fees and costs. An award of
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of this decision.
