Frepan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 22-1606V

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PATRICK A. FREPAN, *

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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 9, 2024

HUMAN SERVICES, *

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Respondent. *

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Kathy Lee, Christie Farrell Lee & Bell, P.C., Indianapolis, IN, for Petitioner

Julia Collison, U.S. Department of Justice, Washington, DC, for Respondent

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

Oler, Special Master:

On November 27, 2022, Patrick A. Frepan (“Petitioner”) filed a petition for compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the

“Vaccine Act” or “Program”). ECF No. 1 (“Pet.”). Petitioner alleges he suffered from a subtype

of Guillain-Barré syndrome (“GBS”) as a result of the influenza (“flu”) vaccination he received

on October 30, 2019. Pet. at 1. On November 27, 2023, Petitioner was awarded $245,000.00 for

pain and suffering pursuant to a stipulation. ECF No. 22 (hereinafter “Stipulation Decision”) at 2.

1 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.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter

“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the

pertinent subparagraph of 42 U.S.C. § 300aa.

1

Petitioner filed a motion for final attorneys’ fees and costs on January 5, 2024, requesting

a total of $70,592.42. ECF No. 27 (hereinafter “Fees Application”). Respondent responded to the

motion on January 8, 2024, stating that “Respondent is satisfied the statutory requirements for an

award of attorneys’ fees and costs are met in this case” and requesting that the Court “exercise its

discretion and determine a reasonable award for attorneys’ fees and costs.” ECF No. 28 (“Fees

Resp.”) at 2, 3. Petitioner filed a reply on January 9, 2024. ECF No. 29.

I hereby GRANT Petitioner’s application and award a total of $70,592.42 in attorneys’ fees

and costs.

I. Legal Standard

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable

attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of

reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,

even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition

was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515

F.3d 1343, 1352 (Fed. Cir. 2008). Here, although the petition was eventually dismissed, the

undersigned finds that the claim possessed good faith and reasonable basis while it was pending

before the Court and notes that Respondent has also indicated in his response that he is satisfied

both have been met as well. Accordingly, Petitioner is entitled to a final award of reasonable

attorneys’ fees and costs.

It is “well within the special master's discretion” to determine the reasonableness of fees.

Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines

v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant

the special master wide latitude in determining the reasonableness of both attorneys' fees and

costs.”). Applications for attorneys' fees must include contemporaneous and specific billing

records that indicate the work performed and the number of hours spent on said work. See Savin

v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the

relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”

is akin to the rate “in the community for similar services by lawyers of reasonably comparable

skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing

adequate evidence to prove that the requested hourly rate is reasonable. Id.

A. 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.

2

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

B. Reasonable Basis

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

petitioner’s belief in his claim. Turner v. Sec’y of Health & Hum. Servs., No. 99-544V, 2007 WL

4410030, at *6-7 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Instead, the claim must be supported by

objective evidence. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017).

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

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

Hum. Servs., 971 F.3d 1337, 1346 (Fed. Cir. Aug. 19, 2020) (finding Petitioner submitted objective

evidence supporting causation when she submitted medical records and a vaccine package insert);

see also James-Cornelius, 984 F.3d at 1380 (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.

“[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).

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

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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

Petitioner received a stipulated award of $245,000.00 for his pain and suffering. Because

Petitioner was awarded compensation pursuant to a stipulation, he is entitled to an award of

reasonable attorneys’ fees and costs.

B. Attorneys’ Fees

Petitioner retained Ms. Kathy Lee to represent him in this matter. See Fees App. Petitioner

requests a total of $65,709.80 in attorneys’ fees. Id. at 1.

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. 3

3 The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%

27%20Forum%20Rate%20Fee%20Schedule%202018.pdf.

The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2

7%20Forum%20Rate%20Fee%20Schedule%202019.pdf.

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.

4

Petitioner requests compensation for his attorney, Ms. Lee at the following hourly rates:

$404.00 per hour for work performed in 2020; $424.00 per hour for work performed in 2021;

$466.00 per hour for work performed in 2022; $508.00 per hour for work performed in 2023; and

$508.00 per hour for work performed in 2024. Fees App., Ex. 2 at 1.

Petitioner also requests compensation for Barbara Sharp, a paralegal at the following

hourly rates: $140.00 per hour for work performed in 2020; $147.00 per hour for work performed

in 2021; $153.00 per hour for work performed in 2022; $168.00 per hour for work performed in

2023; and $168.00 per hour for work performed in 2024. Fees App., Ex. 2 at 1. Ms. Lee and Ms.

Sharp have been previously awarded their 2020-2023 rates by other Special Masters. See, e.g.,

Gonso v. Sec’y of Health & Hum. Servs., No. 19-1389V, 2024 WL 693035 (Fed. Cl. Spec. Mstr.

Jan. 24, 2024); Beyers v. Sec’y of Health & Hum. Servs., No. 17-1406V, 2022 WL 20402684 (Fed.

Cl. Spec. Mstr. June 28, 2022)4 (awarding Ms. Lee her requested 2022 and 2023 hourly rates); cf.

Lew v. Sec’y of Health & Hum. Servs., No. 19-679V, 2022 WL 16543848 (Sep. 30, 2022)

(awarding Ms. Lee an hourly rate of $448.00 in 2022 and Ms. Sharp an hourly rate of $155.00 in

2022). I will award both Ms. Lee and Ms. Sharp requested hourly rates. 5

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

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

4 This decision was published on June 28, 2023 (and not 2022).

5 I note that Ms. Lee and Ms. Sharp did not request a higher 2024 rate, and instead applied their 2023 hourly

rates to the two days of work performed in 2024. I defer setting Ms. Lee and Ms. Sharp’s 2024 hourly rates.

5

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. I find the hours to be

reasonable so I will grant them in full.

I award Petitioner a total of $66,245.40 in attorneys’ fees.

C. Reasonable Costs

Petitioner requests a total of $4,347.02 in attorneys’ costs: $3,899.18 for medical record

requests; $45.84 for shipping costs; and $402.00 for the Court’s filing fee. Petitioner provided

documentation for all of these expenses so I award them in full. See Fees App., Ex. 6.

I award Petitioner a total of $4,347.02 in attorneys’ costs.

III. Conclusion

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

fee and cost awards, and based on the foregoing, I GRANT Petitioner’s application, as follows:

• A lump sum in the amount of $70,592.42, representing reimbursement of Petitioner’s

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

Ms. Kathy Lee.

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

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

renouncing their right to seek review.

6