Larson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-633V

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MELISSA LARSON, *

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Petitioner, * Special Master Katherine E. Oler

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v. *

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SECRETARY OF HEALTH AND * Filed: July 18, 2024

HUMAN SERVICES, *

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Respondent. *

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John F. McHugh, Law Office of John McHugh, New York, NY, for Petitioner

Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

Oler, Special Master:

On May 27, 2016, Melissa Larson (“Petitioner”) filed a petition for compensation under

the National Vaccine Injury Compensation Program2 alleging that she suffered from fibromyalgia

as result of the influenza (“flu”) vaccination she received on November 6, 2013. Pet. at 1, ECF

No. 1. Without amending her petition, Petitioner subsequently asserted that the flu vaccine she

received caused her to develop Guillain-Barré syndrome (“GBS”). Pet’r’s Pre-Hearing Brief, ECF

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Because this Decision contains a reasoned explanation for the action in this case, it must be made publicly

accessible and will be posted on the United States Court of Federal Claims' website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government

Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government

Services). This means the Decision will be available to anyone with access to the internet. In accordance

with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,

the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that

the identified material fits within this definition, I will redact such material from public access.

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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) (“Vaccine

Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that

statutory prefix).

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No. 91 at 1-2, 8. On April 28, 2023, I issued a decision dismissing the petition. ECF No. 110.

Petitioner has appealed to the Federal Circuit. Larson v. Sec’y of Health & Hum. Servs., No. 16-

633V, mot. rev. den’d,168 Fed. Cl. 24 (2023), appeal docketed, No. 2024-1185 (Fed. Cir. Nov.

27, 2023).

Petitioner filed her first motion for interim attorneys’ fees and costs on May 6, 2020. ECF

No. 71. I issued a decision awarding interim attorneys’ fees and costs on August 4, 2021. Larson

v. Sec’y of Health & Hum. Servs., No. 16-633V, 2021 WL 4735871 (Fed. Cl. Spec. Mstr. Aug. 4,

2021) (hereinafter “Larson I”).

Petitioner filed a second motion for interim attorneys’ fees and costs on February 5, 2024,

requesting a total of $74,057.50.3 ECF No. 129 (hereinafter “Fees Application”). Respondent filed

a response on February 16, 2024, deferring to me as to whether Petitioner has met the legal

standard for an award of interim attorneys’ fees and costs. ECF No. 130 (hereinafter “Fees Resp.”)

at 2. Petitioner did not file a reply.

I hereby GRANT IN PART Petitioner’s second application for interim fees and costs and

award a total of $74,874.50.

I. Legal Standard

A. Interim Attorneys’ Fees and Costs

The Federal Circuit has held that an award of interim attorneys’ fees and costs is

permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.

Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the

Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under

the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health

& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).

In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases

where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.

Likewise, in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of

litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is

proper for the special master to award interim attorneys' fees.” 609 F.3d at 1375. Avera did not,

however, define when interim fees are appropriate; rather, it has been interpreted to allow special

masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V,

2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.

Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it

has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,

costly expert testimony, and undue hardship -- special masters have instead treated these criteria

as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of

Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,

2015).

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The correct total is $75,062.50. See infra fn. 5.

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A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the

special master finds that a petitioner has brought his petition in good faith and with a reasonable

basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &

Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.

Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,

2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL

1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more

than just financial involvement of a petitioner; it also looks at any money expended by a

petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special

Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees

[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.

B. Good Faith

The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health

& Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such

a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly believed

he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-

544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad

faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum.

Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that his claim

could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs.,

No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993

WL 496981, at *1); Turner, 2007 WL 4410030, at *5.

C. Reasonable Basis

Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a

petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at least

be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v.

Sec’y of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.

Nov. 3, 2015).

While the statute does not define the quantum of proof needed to establish reasonable basis,

it is “something less than the preponderant evidence ultimately required to prevail on one’s

vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of

Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no

evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found

that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to

establish reasonable basis. Id. at 290; see also Turpin v. Sec'y Health & Hum. Servs., No. 99-564V,

2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when

petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No.

99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis

when petitioner presented only e-mails between her and her attorney). The Federal Circuit has

affirmed that “more than a mere scintilla but less than a preponderance of proof could provide

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sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health &

Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. 2020) (finding Petitioner submitted

objective evidence supporting causation when she submitted medical records and a vaccine

package insert); see also James-Cornelius v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1380

(Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation did not by itself

negate the claim's reasonable basis.”).

Temporal proximity between vaccination and onset of symptoms is a necessary component

in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to

establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.

The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded

that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable

basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed.

Cir. 2017). Further, an impending statute of limitations should not even be one of several factors

the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade,

altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in

determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health &

Hum. Servs., 138 Fed. Cl. 282, 289 (2018).

“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements

for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient

evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs., No.

15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award

compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by

medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal

Claims have interpreted this provision to mean that petitioners must submit medical records or

expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &

Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. Servs., 35

Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table

theory where medical records fail to establish a Table injury).

When determining if a reasonable basis exists, many special masters and judges consider

a myriad of factors. The factors to be considered may include “the factual basis of the claim, the

medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the

theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to

look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of

Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,

2007).

II. Discussion

A. Good Faith and Reasonable Basis

I discussed good faith in Larson I and found that Petitioner had filed the petition in good

faith. See Larson, at *3. Since that decision, I held an entitlement hearing where Drs. Kinsbourne

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and Shoenfeld testified on behalf of the Petitioner. Although I did not find the experts persuasive

for purposes of entitlement, their testimony constitutes sufficient evidence to satisfy the reasonable

basis standard. See Decision Dismissing Petition, ECF No. 110.

B. Attorneys’ Fees

Petitioner requests a total of $60,517.50 in attorney’s fees. See generally Fees App. at 1;

Ex. 100.

1. Reasonable Hourly Rate

A reasonable hourly rate is defined as the rate “prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d

at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for

the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's

attorney.” Rodriguez v. Sec'y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)

(citing Avera, 515 F. 3d at 1349).

McCulloch provides the framework for determining the appropriate compensation for

attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Hum.

Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of

Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for

subsequent years.4

Petitioner’s counsel, Mr. McHugh, requests to be compensated at a rate of $460.00 per

hour for 2020; $470.00 per hour for 2021; $480.00 per hour for 2022; $490.00 per hour for 2023.

See generally Ex. 100. Mr. McHugh’s 2020-2022 requested rates are consistent with what he has

been previously awarded. See, e.g., O’Neal v. Sec’y of Health & Hum. Servs., No. 16-122V, 2023

WL 4183465 at *2 (Fed. Cl. Spec. Mstr. May 23, 2023); Larson, at *4. Regarding Mr. McHugh’s

2023 hourly rate, an increase of $10 seems warranted given inflation and his general work product.

I will grant Mr. McHugh his requested hourly rates.

2. Hours Reasonably Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the

litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion

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The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2

7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf

The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo

rum-Rate-Fee-Schedule-2021-PPI-OL.pdf

The 2022 Fee Schedule can be accessed at: https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%

27-Forum-Rate-Fee-Schedule-2022-%28Final%29.pdf.

The 2023 Fee Schedule can be accessed at: https://www.cofc.uscourts.gov/sites/default/files/Attorneys-

Forum-Rate-Fee-Schedule-2023.pdf

The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL

5634323.

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to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work

done.” Saxton ex rel. Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993).

In exercising that discretion, special masters may reduce the number of hours submitted by a

percentage of the amount charged. See Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed.

Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours);

Guy v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master’s

reduction of attorney and paralegal hours). Petitioner bears the burden of establishing that the rates

charged, hours expended, and costs incurred are reasonable. Wasson v. Sec’y of Health & Hum.

Servs., 24 Cl. Ct. 482, 484 (1993). However, special masters may reduce awards sua sponte,

independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum.

Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed.

Cl. 313, 318 (Fed. Cl. 2008), aff’d No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22,

2008).

A special master need not engage in a line-by-line analysis of petitioner’s fee application

when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.

Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees

and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Hum.

Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). It is within a special master's discretion to instead make

a global reduction to the total amount of fees requested. See Hines v. Sec’y of Health & Hum.

Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the

reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec’y of Health & Hum. Servs.,

No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011

WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and

endorsing “a global – rather than line-by-line – approach to determine the reasonable number of

hours expended in this case”).

Petitioner’s counsel has provided a breakdown of hours billed. Fees App., Ex. 100. I find

an adjustment is necessary for administrative tasks such as: “File Ex. 104” (0.2 hours) and “File

Kinsbourne CV” (0.2 hours) in 2021. These tasks are non-compensable whether they are

performed by an attorney or a paralegal. See McCulloch, 2015 WL 5634323, at *26. That is

reduction of $470 x 0.4 hours, or $188.00.

Total attorneys’ fees to be awarded: $60,329.50

C. Reasonable Costs

Petitioner requests a total of $14,545.005: $12,500.00 for Dr. Yehuda Shoenfeld’s expert

costs; $2,000.00 for Krueger & Hernandez’s payment of Dr. Shoenfeld’s retainer; and $45.00 for a

wire transfer fee.

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The Fee Application erroneously requests $11,500.00 for Dr. Shoenfeld’s expert costs and $2,040.00

owed to the Krueger & Hernandez firm. Fees App. at 1.

In Petitioner’s Fee Application, Mr. McHugh notes that in O’Neal and Larson I, I and Special Master

Dorsey criticized him for “sloppiness.” Fees App. at 4. Mr. McHugh noted that he had refiled documents

filed erroneously by prior counsel in O’Neal. In awarding Mr. McHugh a final award of attorneys’ fees and

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Documentation was provided for Dr. Shoenfeld’s 36 hours of work in this case. Ex. 101.

Other Special Masters and I have previously awarded Dr. Shoenfeld his requested hourly rate of

$500.00 per hour and I see no reason to disturb this request. See, e.g., Phillips v. Sec'y of Health

& Hum. Servs., No. 16-906V, 2019 WL 3409975 (Fed. Cl. Spec. Mstr. May 16, 2019);

Hendrickson v. Sec’y of Health & Hum. Servs., No. 17-269V, 2021 WL 2371257 (Fed. Cl. Spec.

Mstr. May 7, 2021). I note that Dr. Shoenfeld had an entry of block billing on Invoice 118: “Reading

patient’s files and literature review (3rd – 21st July 2016).” Ex. 101 at 1. I will not reduce Dr.

Shoenfeld’s costs but warn Petitioner’s counsel to request more accurate invoices from experts in

the future.

I award Petitioner a total of $14,545.00 in attorneys’ costs.

III. Conclusion

Accordingly, in the exercise of the discretion afforded to me in determining the propriety of

interim fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner’s

application, as follows:

• A lump sum in the amount of $74,874.50 representing reimbursement of Petitioner’s interim

attorneys’ fees and costs in the form of a check jointly payable to Petitioner and her attorney,

Mr. John McHugh.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of

Court SHALL ENTER JUDGMENT in accordance with this decision.6

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler

Special Master

costs, Special Master Dorsey noted that “this issue has persisted (e.g., needing to file the instant amended

fees motion because some costs were initially excluded) and counsel has also missed some deadlines for

filings (e.g., a missed status report necessitating a scheduling order from the undersigned on September 7,

2022).” O’Neal, at *2.

Mr. McHugh has demonstrated a lack of attention to detail with this Fees Application. In listing out his

requested costs, Mr. McHugh wrote that Dr. Shoenfeld’s expert costs were $11,500.00 when the invoices

demonstrate he is owed $12,500.00 (Invoice 118: $7,000.00 and Invoice 162: $5,500.00; Invoice 145 was

paid in Larson I) and costs of the Krueger & Hernandez firm were $2,040.00, which should instead be

$2,045.00 ($2,000.00 retainer and $45.00 wire transfer fee). While I understand that Mr. McHugh is a solo

practitioner, I encourage him to devote more time to his fees applications so that he can produce a more

accurate product.

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Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice

renouncing their right to seek review.

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