T. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-1716V

(not to be published)

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*

A.T., * Chief Special Master Corcoran

Mother and Guardian for G.T., a minor, *

* Filed: August 14, 2024

Petitioners, *

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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Carole L. Gallagher, Carol L. Gallagher, Esquire, LLC., Somers Point, NJ, for

Petitioners.

Lauren Kells, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING ATTORNEY’S FEES AND COSTS 1

On December 1, 2020, Petitioner A.T. filed a petition on behalf of her minor son, G.T., for

compensation under the National Vaccine and Injury Compensation Program (the “Vaccine

Program”). 2 (ECF No. 1) (“Pet.”). Petitioner alleged that G.T. was neurologically harmed as a

result of receiving a pneumococcal vaccine on January 28, 2019. Pet. at 1. I denied entitlement via

ruling on the record (Decision (ECF No. 57)), and this determination was not appealed.

1

Although I have not formally designated this Decision for publication, it will nevertheless be posted on the United

States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).

As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain

kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which

to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial

in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which

would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will

be available to the public. Id.

2

The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the

Act”]. Individual section references hereafter will be to Section 300aa of the Act (but will omit the statutory prefix).

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Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion,

dated July 2, 2024 (ECF No. 67) (“Final Fees Mot.”). Petitioner requests a total of $134,826.44,

reflecting $100,101.60 in fees incurred for the services of Ms. Carole Gallagher, plus $34,734.84

in costs. Final Fees Mot. at 2. Respondent reacted to the final fees request on July 16, 2024.

Response, dated July 16, 2024 (ECF No. 68) (“Response”). Respondent agrees that Petitioner has

satisfied the statutory requirements for a fees award, and otherwise defers the calculation of the

amount to be awarded to my discretion. Response at 4-5.

For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and

costs in the total amount of $134,826.44.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Although the Vaccine Act only guarantees a fees award to successful petitioners, a special

master may also award fees and costs in an unsuccessful case if: (1) the “petition was brought in

good faith”; and (2) “there was a reasonable basis for the claim for which the petition was brought.”

Section 15(e)(1). I have in prior decisions set forth at length the criteria to be applied when

determining if a claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Sterling

v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443, at *4 (Fed. Cl. Spec. Mstr. Jan.

3, 2020). Importantly, establishing reasonable basis does not automatically entitle an unsuccessful

claimant to fees, but is instead a threshold obligation; fees can still thereafter be limited, if

unreasonable, or even denied entirely.

A claim’s reasonable basis 3 must be demonstrated through some objective evidentiary

showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)

(citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This

objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may

bulwark good faith). Simmons, 875 F.3d at 635. In addition, reasonable basis inquiries are not

static—they evaluate not only what was known at the time the petition was filed, but also take into

account what is learned about the evidentiary support for the claim as the matter progresses.

Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the

finding that a reasonable basis for petitioners’ claims ceased to exist once they had reviewed their

expert's opinion, which consisted entirely of unsupported speculation). As a result, a claim can

“lose” reasonable basis over time.

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Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable to that fees

prong.

2

The standard for finding the existence of reasonable basis is lesser (and thus inherently

easier to satisfy) than the preponderant standard applied when assessing entitlement, as cases that

fail can still have sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum.

Servs., 144 Fed. Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable

basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v.

Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted)

(affirming special master). The factual basis and medical support for the claim is among the

evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372,

378 (Fed. Cl. 2017). Under the Vaccine Act, special masters have “maximum discretion” in

applying the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed.

Cl. 401, 401–02 (Fed. Cl. 2012). 4

Although Petitioner’s claim was ultimately unsuccessful, I find that there was sufficient

objective basis to entitle her to a fees and costs award. Tourette syndrome (the most likely

diagnostic explanation for the purported vaccine injury) has been connected to immune-mediated

inflammation in some medical literature, even though Petitioner’s causation theory ultimately had

too many logical gaps to link the pneumococcal vaccine specifically to the development of the

syndrome through any posited biologic mechanism. However, in light of the exceedingly-lenient

standard that governs reasonable basis determinations, a final award of fees and costs in this matter

is permissible. And because I find no reason otherwise to deny a fees award, I will allow one

herein.

II. Calculation of Fees

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 & Hum. Servs.,

515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).

The second part involves adjusting the lodestar calculation up or down to take relevant factors into

consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in

most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424,

429–37 (1983).

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the

proper hourly rate to be awarded 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 so-called “Davis exception”). Avera, 515 F.3d at 1348

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See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they

would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is

consistent with the Vaccine Act as a whole).

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(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges

for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine

Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at

*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Petitioner requests the following attorney rates based on the years work was performed:

Attorney 2019 2020 2021 2022 2023 2024

Ms. Carole Gallagher $400.00 $424.00 $424.00 $450.00 $450.00 $500.00

Final Fees Motion at 3-25.

Ms. Gallagher practices in Somers Point, NJ—a jurisdiction that has been deemed “in

forum.” Accordingly, she should be paid forum rates as established in McCulloch. See Morgan v.

Sec'y of Health & Hum. Servs., No. 19-71V, 2024 WL 1617314 (Fed. Cl. Spec. Mstr. Feb. 20,

2024). The rates requested for Ms. Gallagher are also consistent with what has previously been

awarded, in accordance with the Office of Special Masters’ fee schedule. 5 Perez v. Sec'y of Health

& Hum. Servs., No. 18-999V, 2023 WL 7221314 (Fed. Cl. Spec. Mstr. Sept. 28, 2023). I thus find

no cause to reduce them in this instance. And I deem the time devoted to the matter to be

reasonable. I will therefore award all fees requested without adjustment.

III. Calculation of Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must

also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.

Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).

Reasonable costs include the costs of obtaining medical records and expert time incurred while

working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at

*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as

by not providing appropriate documentation to explain the basis for a particular cost, special

masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health

& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioner seeks $34,734.84 in outstanding costs, including the filing fee, medical record

retrieval costs, and the work of two experts. Final Fees Mot. at 25–57. She requests an hourly rate

of $500.00 for the work of both experts who offered opinions (Drs. Huq and Gershwin). Dr. Huq

prepared two reports in this case, billing a total of 50.5 hours (minus a retainer of $4,000.00) for a

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OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited August

14, 2024).

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total of $21,250.00. Final Fees Request at 55-57. Dr. Gershwin prepared one report, and billed a

total of 16.5 hours (minus a retainer of $5,000.00) for a total of $3,250.00. Id. at 54. These rates,

along with the other costs (reflecting common litigation-associated expenses), are reasonable, and

will be awarded.

CONCLUSION

Based on the foregoing, and in the exercise of the discretion afforded to me in determining

the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs

in its entirety and award a total of $134,826.44 reflecting $100,101.60 in attorney’s fees and

$34,734.84 in costs, in the form of a check made jointly payable to Petitioner and her attorney Ms.

Carole Gallagher.

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. 6

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

6

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices

renouncing their right to seek review.

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