Erica Fester, Parent of B.A.B., a Minor v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 10-243V

Filed: August 27, 2013

To be Published1

****************************

ERICA FESTER, parent of *

B.A.B., a minor, *

* Advance Payment of

Petitioner, * Interim Costs

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

****************************

Erica Fester, Wrightsville Beach, N.C., pro se petitioner.

Voris E. Johnson, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

DECISION DENYING PETITIONER’S MOTION FOR ADVANCE PAYMENT OF

INTERIM COSTS2

Vowell, Special Master:

On April 15, 2010, Ms. Erica Fester [“Ms. Fester” or “petitioner”], acting pro se,

filed a petition for Vaccine Compensation under the National Vaccine Injury

1

Because this published decision contains a reasoned explanation for the action in this case, I intend to

post this decision on the United States Court of Federal Claims' website, in accordance with the E-

Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44

U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and

move to delete 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

delete such material from public access.

2

In Shaw v. Sec’y, HHS, 609 F.3d 1372, 1375 (Fed. Cir. 2010), the Federal Circuit indicated that “a

decision on attorneys’ fees and costs is a decision on compensation” and, following the terminology used

by that court, my action in this case is thus characterized as a “decision,” albeit one not on the merits of

the underlying petition.

Compensation Program, 42 U.S.C. § 300aa-10, et seq.3 [the “Vaccine Act” or

“Program”], on behalf of her son, B.A.B. Petitioner alleges that the combined measles,

mumps, rubella, and varicella [“MMRV”] vaccine4 which B.A.B. received on April 18,

2007 caused B.A.B. to suffer “a fever, a rash, uncontrollable crying, and loss of

language.” 5 Petition at 1. The petition was filed along with an application to proceed in

forma pauperis. That application was granted on June 4, 2010.

In this decision, I deny petitioner’s request for advance payment of interim costs

in order to pay the retainer fee demanded by one of B.A.B.’s treating physicians before

commencing work on an expert opinion regarding vaccine causation.

I. Procedural History.

In the 14 months between the filing of the petition and the unusual request that is

the subject of this order, efforts of the court, petitioner, and respondent’s counsel in this

case have focused on collecting a complete set of B.A.B.’s medical records, so that

respondent and the special master could evaluate the merits of the case.6 Additionally,

3

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2006).

4

On April 18, 2007, B.A.B. received one dose of the vaccine Proquad which contains the measles,

mumps, rubella, and varicella vaccines. Petitioner’s Exhibits [“Pet. Exs.”] 3, pp. 2-3; 6, p. 15.

5

Petitioner contends that B.A.B. “suffered an encephalopathy which was caused-in-fact by the MMRV

vaccine” and resulted in B.A.B.’s “loss of prior skills and his current developmental delay.” Petition at 1.

Although petitioner contends that she is not claiming that the MMRV vaccine causes autism spectrum

disorders [“ASDs”], medical records indicate that B.A.B. has a diagnosis on the autism spectrum.

Compare Petitioner’s Letter [“Letter”], filed Aug. 31, 2011, at 1-2 (reiterating that although B.A.B. has an

autism diagnosis, her theory is that vaccines caused encephalopathy which resulted in a serious brain

injury causing [B.A.B’s] regression and delay in development) with Pet. Ex. 12, p. 1 (referring to B.A.B.’s

diagnosis of autism at 18 months of age). Based on my experience on what is often termed this court’s

“autism docket,” I am aware that some petitioners chose, in spite of an ASD diagnosis, to characterize

their children’s injuries as “encephalopathy,” “acute disseminated encephalomyelitis,” or as seizure

disorders accompanied by developmental delay, based on a belief that claims alleging autism will not be

compensated, but that claims alleging these other conditions may be compensated. Recharacterizing a

condition as an “encephalopathy”—a term that can encompass conditions ranging from intoxication to a

coma—when another diagnosis is more specific and appropriate does little to advance a vaccine injury

claim. Whether the evidence supports vaccine causation of the actual condition from which the vaccinee

suffers is the question before the special master in each case. In this case, petitioner acknowledges that

her son has an autism diagnosis, but claims he has symptoms “uncharacteristic of a child with autism,

and some may even be an (sic) impossible characteristics of a person with true autism.” Letter, filed Aug.

31, 2011, at 1.

6

Because the petition was filed without all the required medical records and an affidavit, the special

master then assigned to this case ordered petitioner to complete the evidentiary record to support her

claims. See Order, issued June 4, 2010. Petitioner filed some medical records and video evidence. See

Pet. Exs. 1-15 (medical records), filed July 14, 2010; Pet. Exs. 16-17 (video evidence), filed Aug. 19,

2010. Two sets of records, those of Dr. Robert Perry and Dr. Karen Harum, were still missing at the time

this case was reassigned to me on February 9, 2011. Petitioner filed Dr. Perry’s records on April 14,

2

petitioner has attempted to obtain representation, without success. The special master

originally assigned to this case and I have conducted numerous status conferences with

petitioner, respondent’s counsel, and B.A.B.’s father.7

The medical records are now largely complete. In her Vaccine Rule 4(c) report,

respondent recommended against compensation. In support of her recommendation,

respondent noted the statutory prohibition in § 13(a)(1) against a finding in favor of

petitioner based on her claims alone, unsubstantiated by medical records or medical

opinion, and pointed out that the medical records “do not contain a medical theory

causally connecting vaccination and injury, nor do they provide a logical sequence of

cause and effect showing that the vaccination was the reason for the injury.”

Respondent’s Rule 4(c) Report [“Res. Report”], filed Sept. 10, 2010, at 9 (citing Althen

v. Sec’y, HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005)). Respondent also noted the lack

of a “reliable medical opinion demonstrating that [B.A.B.’s] MMRV vaccination either

could be, or was the cause of [B.A.B.’s] alleged injuries.” Res. Report at 9.

Petitioner responded to the Rule 4(c) report, providing her own recitation of

B.A.B.’s medical history. She stated that “[i]t was the opinions of three doctors, Dr.

Robert Perry, Dr. Karen Harum and Dr. Lynn Wagner [sic], that [B.A.B.] suffered from

encephalopathy. All three could not rule out a vaccine injury, two stated that in their

professional opinion, [B.A.B.] had received a vaccine injury.” Response to

Respondent’s Rule 4(c) Report [“Response to Res. Report”], filed Feb. 8, 2011, at 3-4.8

However, none of the filed medical records reflects these opinions regarding causation.

See Res. Ex. A (medical records from Dr. Karen Harum); Pet. Ex. 12 (medical records

from Dr. Lynn Wegner); and Pet. Ex. 18 (medical records from Dr. Robert Perry).

My own review of the evidence submitted to date discloses no evidence

supportive of vaccine causation of B.A.B.’s condition. The records do not support

petitioner’s assertions regarding symptoms in close temporal proximity to B.A.B.’s 12

and 18 month vaccinations. See infra Section III, Part C.2.a. No record from any

treating health care provider attributes B.A.B.’s condition to a vaccine injury.

2011. See Pet. Ex. 18. Because Dr. Harum was not responsive to petitioner’s efforts to obtain B.A.B.’s

medical treatment records (see Petitioner’s Status Report [“Pet. Status Report”], filed Apr. 14, 2011,

noting no response to several phone calls, messages, and email messages to Dr. Harum), I authorized

respondent’s counsel to sign and serve a subpoena in order to obtain and file those records. Doctor

Harum is the same physician whose retainer fee is the subject of this order. Respondent filed Dr.

Harum’s medical records on June 17, 2011. See Respondent’s Exhibit [“Res. Ex.”] A.

7

Although B.A.B.’s father is not named as a petitioner in this action, he has fully participated, at the

request of Ms. Fester, in the telephonic status conferences in this case (most of which have been digitally

recorded), and for this reason, some of my orders refer to “petitioners,” rather than to “petitioner.”

Respondent has interposed no objection to his participation.

8

The pages of this document are unnumbered, but this quotation appears on the bottom of the third and

the top of the fourth pages of the document.

3

Nevertheless, in numerous status conferences and in her written filings, petitioner has

expressed her firm belief that B.A.B.’s condition is the result of his MMRV vaccine at 12

months of age, and possibly the DTaP vaccine he received at 18 months of age. See,

e.g., Letter, filed Aug. 31, 2011, at 1-2.

Petitioner acknowledges that the report of a medical expert is necessary in order

to prove her case,9 and has suggested on several occasions that an expert should be

provided for her. In my initial status conference, held on March 1, 2011, petitioner

inquired about government funding of an expert, and seemed to expect that funding for

an expert would be made available or that an expert would be appointed for her. I

explained that, while interim costs were available and “costly experts” were one of the

examples our appellate court had given as warranting an interim award, all of the

decisions awarding interim fees and costs involved reimbursement, not advancement,

of fees and costs. That is, interim costs had been awarded only after the expert had

submitted a bill for services actually rendered, and had been paid by petitioners or their

attorneys. I noted that the issue of advancing costs had arisen in one of my other

cases, and in that case, respondent had objected to any award of costs in advance of

petitioner’s payment of such costs.

In a July 7, 2011 status report, petitioner reported her lack of success in finding

an attorney.10 She tied her lack of representation to lack of an expert evaluation,

stating: “I believe it would be helpful in my search for legal representation to have an

objective expert witness, who has examined [B.A.B.] and his medical records, write up a

report complete with a summary indicating a probability of a specific cause for [B.A.B.’s]

injury. I would imagine that at some point a similar witness for the Respondent will be

provided by public funding or via the Court to review [B.A.B.’s] medical records.” Status

Report, filed July 7, 2011, at 1. “We are unable to pay for an expert witness and would

hope that the Court could assist in this.” Id.

Much of the ensuing July 28, 2011 status conference was focused on petitioner’s

status report comments. Petitioner confirmed that her status report statement should be

construed as a request for the court to appoint an expert witness to assist her. I

explained that it was petitioner’s burden to support her claim of a vaccine injury. I also

explained that independent medical examinations were occasionally performed, but

their use was generally limited to resolving disputes among experts concerning a

9

In my initial status conference with petitioner on March 1, 2011, I explained that once missing medical

records were filed, petitioner would need to find an expert willing to opine on vaccine causation, and that

a causation hearing would likely be necessary if she was successful in finding a doctor to opine. See,

e.g., Order, issued July 28, 2011, at 1.

10

Petitioner indicated that she was looking for an attorney within a two-hour drive of her home because “it

would be much more productive to have face to face meetings rather than phone conversations. . . .”

Status Report, filed July 7, 2011, at 1. In a status conference on July 28, 2011, I encouraged her to

broaden her search, noting that many, if not most, Vaccine Act petitioners are represented by attorneys

who do not practice in the same geographical location as their clients.

4

diagnosis or the nature and extent of injuries for purposes of determining damages. I

indicated that, based on the posture of her case,11 I would not appoint an expert to

conduct an evaluation of B.A.B.

During this status conference, we also discussed the use of interim costs to pay

for an expert and how to go about finding an expert willing to opine. I noted that the law

on payment of interim costs was not yet well-developed, and that there was no

precedent in the Vaccine Program supporting payment of those costs in advance, but

that I would hear any arguments she might make concerning such payment.

Although none of B.A.B.’s treating physicians had indicated that B.A.B.’s

problems were vaccine-caused, I suggested that petitioner begin her search for an

expert by approaching those physicians to see if they could suggest an expert who

might be willing to review the case. If petitioner found an expert willing to review the

case, she was to provide the court with information regarding the expert’s qualifications,

the expert’s hourly rate, and how many hours the expert would expect to need to

formulate an opinion. If the expert required some payment in advance of reviewing the

case (a retainer fee), petitioner was directed to provide evidence concerning her inability

to pay a retainer.12 Finally, I indicated that I had no doubt about petitioner’s good faith

belief that vaccines were somehow responsible for B.A.B.’s condition, but the law

required that I also find a reasonable basis for the claim in order to award any costs.

See Order, issued July 28, 2011.

II. The Request for Advance Funding.

A. Petitioner’s Request for Advance Funding.

On September 26, 2011, petitioner notified the court that Dr. Harum had agreed

“to develop an opinion as to the cause of” B.A.B.’s injury. Notice, filed Sept. 26, 2011,

at 2. Petitioner indicated that Dr. Harum’s requested rate was $300 per hour and that

Dr. Harum had estimated it would take 30 to 40 hours to develop her expert report. Id.

Petitioner requested that the court provide the funds necessary to pay Dr. Harum. Id.

11

As discussed more completely in Section III, Part C.2 below, the filed medical records are not

supportive of petitioner’s claims of a reaction to the April 17, 2007 vaccinations. Her own statements,

made prior to filing this claim, initially attributed B.A.B.’s condition to causes other than the MMRV

vaccine, and first mentioned the measles vaccination as a cause in 2009. See Pet. Ex. 12, p. 6.

12

Petitioner failed to provide this evidence until January 26, 2012 when she filed a response to my

December 13, 2011 Order. In her response, petitioner indicated that she filed for bankruptcy on October

14, 2010, reported $4,792.00 in income on her 2010 income tax return, expected to report income of less

than $10,000.00 on her 2011 income tax return, and was currently caring for B.A.B. full time as he could

not attend school due to behavioral issues. Response, filed Jan. 26, 2012, at 2. Petitioner added that

B.A.B.’s father once provided generous support but he had “suffered a life threatening injury at the end of

2010,” was unable to work for a year, and was currently unemployed. Id.

5

I ordered petitioner to file Dr. Harum’s curriculum vitae, as well as a statement

from Dr. Harum indicating: (1) her willingness to opine; (2) the amount of any required

retainer fee; (3) the date when Dr. Harum could complete her expert report; and (4) Dr.

Harum’s hourly rate for expert services in other cases. Order, issued Sept. 28, 2011, at

1.

During a status conference on December 9, 2011, I reiterated that petitioner

needed to file all of the information concerning Dr. Harum identified in my September

28, 2011 Order, as well as evidence demonstrating petitioner’s inability to pay for an

expert. On January 26, 2012, petitioner filed additional medical records, a statement of

completion, and the information concerning Dr. Harum. See Pet. Exs. 20-22.

In petitioner’s exhibit 22, Dr. Harum indicated that: (1) she was willing to opine in

this case; (2) she charges $300 per hour to testify as an expert or to prepare an expert

report; (3) she estimated an expert report in this case would require approximately 20

hours of her time; and (4) she would charge a retainer fee of $600 (10% of the total

anticipated fee). Pet. Ex. 22 at 7. In a February 24, 2012 status conference,

respondent’s counsel indicated that respondent would oppose an award of interim costs

covering the requested retainer. I therefore urged petitioner to exhaust all other options

for obtaining funds for the $600 retainer fee.

Respondent filed her written opposition to petitioner’s request for advance

payment of expert costs on March 8, 2012. See Respondent’s Opposition to

Petitioner’s Request for an Advance of Interim Expert Costs [“Res. Opp.”] at 1.

On April 13, 2012, petitioner reported that she was unable to secure funds for the

retainer fee. Response to Respondent’s Opposition to Petitioner’s Request for an

Advance of Interim Expert Costs [“Response to Res. Opp.”] at 2. Petitioner reiterated

her request for advance payment of interim costs. Id. at 5.

B. Arguments Advanced by the Parties Regarding Petitioner’s Request.

1. Petitioner’s Position.

In essence, petitioner’s arguments are equitable. She acknowledges that she

cannot prevail in her claim without an expert opinion. Based on her financial need, she

contends that the Program should provide advance funding of costs because there are

no other alternatives available to her. Reading between the lines of her request,

petitioner appears to be arguing that because respondent has access to tax-supported

experts, she should as well, in the interest of fairness. Petitioner argues that “[t]he need

for detailed affidavits by a medical expert is clear” and asserts that she is “unable to

afford an expert witness.” Response to Res. Opp. at 2. Furthermore, she claims that

her ability to find an attorney to represent her is affected by the lack of an expert’s

6

review. She asserts that she has “made every attempt to retain legal representation”13

and to secure the funds necessary to obtain an expert report.14 Id.

Petitioner believes that “respondent’s use of the term ‘scant evidence’ [indicates]

that [respondent] has made some kind of informed opinion as to the scientific

authentication of the petitioner’s claim.” Response to Res. Opp. at 2. Petitioner

requests a copy of “any such scientific evidence the respondent has obtained on her

behalf in order to make such an opinion” and any expert report that respondent has. Id.

at 2-3. Finally, petitioner questions “what the respondent believes a reasonable cost for

an expert opinion might be” and argues that advance payment of Dr. Harum’s $600

retainer is reasonable. Id. at 2.

2. Respondent’s Position.

In opposing petitioner’s request, respondent contends that interim fees and costs

are not authorized until entitlement to compensation has been either awarded or denied;

that costs must be actually incurred before they can be paid by the Program; that the

record before me does not support a reasonable basis for this claim; that Dr. Harum’s

qualifications to provide an expert report are lacking; and that fees she proposes to

charge have not been established to be reasonable. Res. Opp. at 1. Respondent does

not address petitioner’s position that the government’s access to experts mandates a

level playing field nor does she address the request for disclosure of the results of any

medical review performed by respondent.15

13

Whether petitioner has truly exhausted all efforts to obtain representation is not easily determined.

With regard to her position that no attorney will take her case because of the lack of an expert report, I

note that Vaccine Act practitioners routinely accept cases lacking an expert’s report. Although, it is true

that most of the attorneys who once represented autism petitioners have withdrawn from representation

of clients who continue to pursue autism claims, the refusal to pursue these cases is not universal.

Based on my own docket, which includes about one-half of the autism or similar neurological injury claims

still pending in the Program, I am aware that at least half a dozen attorneys are still pursuing such claims.

Several of these attorneys have taken over cases for pro se litigants. Nevertheless, for purposes of

determining whether I have the authority to order advance payment of her expert’s retainer fee, I will treat

petitioner’s statements regarding her efforts to obtain representation as correct.

14

Petitioner explained her financial circumstances in a response filed on January 26, 2012. See supra at

note 12. Petitioner also claims that she “has made every attempt to secure the necessary funds to

produce an expert witness’ opinion . . . [and] has been unable to do so,” but fails to describe her efforts in

any detail. Response to Res. Opp. at 2.

15

Petitioner’s request for disclosure of any medical review performed by respondent is DENIED. Until

filed with the court as an exhibit or as an attachment to a Vaccine Rule 4(c) report, any medical review by

respondent’s expert would not be discoverable under the Rules of the United States Court of Federal

Claims [“RCFC”]. RCFC 26(b)(3)(A)&(B); see also RCFC 26(b)(4)(B) (discussing draft reports); Deseret

Mgmt. Corp. v. U.S., 76 Fed. Cl. 88, 92-93 (2007) (discussing the application of the work-product privilege

to RCFC 26(b)(3)).

7

III. Analysis of the Arguments.

The Vaccine Act is extraordinarily generous in its provisions for payment of fees

and costs. Motivated by a desire to ensure that petitioners have adequate assistance

from counsel when pursuing their claims, Congress determined that attorneys’ fees and

costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22

reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Cloer v. Sec’y, HHS, 133 S.Ct.

1886, 1895 (2013); Saunders v. Sec’y, HHS, 25 F.3d 1031, 1035 (Fed. Cir. 1994). As

Judge Lettow noted in Davis, “the Vaccine Program employs a liberal fee-shifting

scheme.” Davis v. Sec’y, HHS, 105 Fed. Cl. 627, 634 (2012). It may be the only

federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs.

In more than 24 years of Vaccine Act litigation, very few unsuccessful litigants have

been denied fees and costs awards, so long as jurisdictional requirements for payment

were met.16

Ms. Fester seeks to extend that generosity by asking me to provide advance

funding for the expert she has chosen. In essence, petitioner is saying that, because

she cannot establish causation of B.A.B.’s case without an expert opinion and cannot

afford to pay an expert, the Program should provide the funds in advance to enable her

to retain an expert.

I analyze Ms. Fester’s request by looking to the statute itself, its legislative

history, the arguments of the parties, the requirements for an interim award of fees and

costs, and the effects of granting or denying petitioner’s request. I conclude that

although the evidence supporting a reasonable basis for this claim is not strong, it is

sufficient to support an award of interim costs once the costs have been incurred, but

that I lack the authority to advance Program funds to petitioner for the purpose of

retaining an expert.

A. The Statutory Compensation Scheme.

The Vaccine Act provides:

If the judgment of the United States Court of Federal Claims

on such a petition does not award compensation, the special

master or court may award an amount of compensation to

cover petitioners’ reasonable attorneys’ fees and other costs

incurred in any proceeding on such petition if the special

master or court determines that the petition was brought in

good faith and there was a reasonable basis for the claim for

which the petition was brought.

16

See Jessen v. Sec’y, HHS, No. 94-1029V, 1997 WL 48940, at *4-5 (Fed. Cl. Spec. Mstr. Jan. 17, 1997)

(providing a detailed discussion of the fee structure under the Vaccine Act and its effect on the behavior

and motivation of attorneys practicing in the Vaccine Program).

8

§ 15(e)(1).

The statute explicitly provides for payment of reasonable attorney fees. Although

it does not explicitly state that costs must be reasonable as well, context suggests, and

caselaw mandates, that only reasonable costs may be paid. See Perreira v. Sec’y,

HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994) (indicating the

description of reasonable applies to both costs as well as attorneys’ fees); Gruber ex

rel. Gruber v. Sec’y, HHS, 91 Fed. Cl. 773, 796 (2010) (citing § 15(e)(1) and specifying

that “[p]etitioners are entitled to compensation for reasonable costs incurred in bringing

their Vaccine Act petition”). Special masters determine reasonable hourly rates for

experts (a “cost”) in the same manner in which reasonable hourly rates for attorneys are

determined. Sabella v. Sec’y, HHS, 86 Fed. Cl. 201, 206 (2009).

The statute also requires unsuccessful litigants to demonstrate that their claim

was brought in good faith,17 a subjective standard, and upon a reasonable basis, an

objective standard. Perreira v. Sec’y, HHS, No. 90-847V, 1992 WL 164436, at *1 (Cl.

Ct. Spec. Mstr. June 12, 1992) (describing good faith as subjective and reasonable

basis as objective), aff’d, 27 Fed. Cl. 29 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).

The third statutory requirement, that the fees and costs must be “incurred in any

proceeding on such petition,” has been invoked to deny compensation for work

performed on litigation in other courts, such as when a petitioner files a civil suit for a

vaccine injury before filing a petition under the Vaccine Act. See Stewart ex rel.

Stewart-Sotelo v. Sec’y, HHS, No. 06-287V, 2011 WL 5330388, at *22-25 (Fed. Cl.

Spec. Mstr. Oct. 17, 2011) (citing § 15(e)(1)(b) and determining that “costs associated

with previous, civil litigation unrelated to [the proceedings under the Vaccine Act] are not

compensable”). Special Master Golkiewicz also discussed the meaning of incurred

when he denied a fee award for research and legal work performed by a petitioner’s

spouse (an attorney) prior to retaining counsel familiar with the Vaccine Program. Kooi

v. Sec’y, HHS, No. 05-438V, 2007 WL 5161800 (Fed. Cl. Spec. Mstr. Nov. 21, 2007).

The main issue in the decision was whether the work done by Mr. Kooi was an

“incurred" cost or unreimbursable “self-help” work. Id. at 1-2, 5. Both decisions

involved requests for final fees and costs.

Here, respondent focuses on the word “incurred” to argue that costs may not be

advanced before the work on the case is performed. The definition of “incurred” as

used in § 15(e)(1) and applied to an application for interim costs appears to be an issue

of first impression. This argument is addressed in more detail in Part E below.

B. May Interim Awards be Made before Entitlement is Determined?

17

Absent some evidence to the contrary, good faith is presumed. Grice v. Sec’y, HHS, 36 Fed. Cl. 114,

121 (1996).

9

1. Interim Awards in General.

Although the statute itself is silent regarding interim awards, the Federal Circuit

has held that such awards are permissible. See Shaw v. Sec’y, HHS, 609 F.3d 1372

(Fed. Cir. 2010); Avera v. Sec’y, HHS, 515 F.3d 1343 (Fed. Cir. 2008). To be eligible

for an interim award, a petitioner must demonstrate not only the good faith and

reasonable basis required of unsuccessful claimants, but such factors as “protracted

proceedings,” “undue hardship,” and that the fees and costs sought are substantial.

Avera, 515 F.3d at 1352. In Shaw, the Federal Circuit ruled that interim fees could be

awarded in advance of a decision on the merits of the petition so long as the need for

an interim award could be demonstrated and there was sufficient evidence for the

special master to conclude that good faith and a reasonable basis existed. Shaw, 609

F.3d at 1375. The court further indicated that “[w]here the claimant establishes that the

cost of litigation has imposed an undue hardship and that there exists a good faith basis

for the claim, it is proper for the special master to award interim attorneys’ fees.” Id.

In both Avera and Shaw, the Federal Circuit noted that interim fees and costs

need not be awarded in all circumstances. Shaw, 609 F.3d at 1375; Avera, 515 F.3d at

1352. The Federal Circuit explained that “[t]he special master may determine that she

cannot assess the reasonableness of certain fee requests prior to considering the

merits of the vaccine injury claim.” Shaw, 609 F.3d at 1377. Even if a petitioner can

establish the statutory good faith and reasonable basis requirements for payment of

fees for her as yet unadjudicated claim, the petitioner still must show why an interim

award is appropriate. See Avera, 515 F.3d at 1352 (holding that although the Vaccine

Act allows for interim awards, an award was not appropriate in that case). The factors

that delineate when an interim award is appropriate remain somewhat amorphous. The

Federal Circuit has indicated only that an interim award is appropriate when, as stated

in Shaw, “the cost of litigation has imposed an undue hardship,” or, as stated in Avera,

“proceedings are protracted” or “costly experts must be retained.” Shaw, 609 F.3d at

1375; Avera, 515 F.3d at 1352.

2. Revisiting Shaw.

In spite of Shaw, respondent contends, citing § 15(e)(1), that interim fees and

costs are not authorized under the Vaccine Act unless entitlement to compensation has

been either awarded or denied. Res. Opp. at 3. Respondent bases her argument on

the language “[i]f the judgment . . . on such a petition does not award compensation”

(emphasis added), contained in § 15(e)(1) and refers to this argument as her statutory

argument. Res. Opp. at 3-4. Respondent contends that the Federal Circuit’s holding in

Avera is consistent with her position because a decision on entitlement had been made

in that case. Res. Opp. at 4-6.

The first line of the statute appears to support respondent’s position that such

awards may not be made until after judgment on the merits, implying that the discretion

to award fees and costs to unsuccessful litigants does not attach until after judgment

10

has issued. By implication, a petitioner is not “unsuccessful” until a determination of the

merits of a petition has occurred. However, this reading cannot be reconciled with the

panel decision in Shaw in which the Federal Circuit held that “the Court of Federal

Claims has jurisdiction to review interim fee decisions prior to the decision on the merits

of the underlying claim.” Shaw, 609 F.3d at 1376. Thus, the Circuit rejected implicitly

respondent’s position here that a judgment on the merits is necessary before fees and

costs can be awarded.

Respondent acknowledges that “a number of special masters” and Judge

Bruggink at the Court of Federal Claims [“CFC”] have relied on the Federal Circuit’s

holding in Shaw to reject respondent’s statutory argument, but she contends that she

failed to present this statutory argument to the Federal Circuit in Shaw. Res. Opp. at 6.

Respondent further contends that her failure to raise this statutory interpretation

argument in Shaw does not prohibit her from raising it in this case. Res. Opp. at 6

(citing United States vs. Mendoza, 464 U.S. 154, 162 (1984)). Respondent also argues

that the panel in Shaw failed to address an earlier decision by another panel (Martin v.

Sec’y, HHS, 62 F.3d 1403 (Fed. Cir. 1995)), a decision which respondent interprets as

requiring a judgment on the merits before a special master can award fees and costs.

Res. Opp. at 7.

3. Conclusion on Interim Awards in the Absence of an Entitlement Decision.

I reject respondent’s position that a decision on entitlement is required before

interim costs may be awarded. Notwithstanding respondent’s arguments, I read Avera

and Shaw together as indicating that interim fees may be awarded before entitlement is

determined, provided that good faith and a reasonable basis for the claim are

demonstrated on the record and adequate justification for making an interim award

exists.

C. Has Petitioner Established Adequate Justification for an Interim Award?

To justify an interim award of fees and costs, a petitioner must demonstrate that

her claim was brought in good faith and upon a reasonable basis. Additionally, because

she is seeking an interim award, she must demonstrate circumstances warranting an

interim award. Although the precise parameters of these circumstances have not yet

been defined, the Federal Circuit has referred to “protracted proceedings,” “costly

experts,” and “undue hardship.” Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1375.

Whether these factors are absolute requirements or merely examples of circumstances

warranting an award of interim costs (a process that, of necessity, competes for time

and attention with the process of deciding entitlement to compensation and awarding

damages to petitioners who prevail, and which largely benefits the attorney rather than

the petitioner) remains unclear. I need not address this issue in Ms. Fester’s case

because she is clearly asserting that she is experiencing “undue hardship.”

11

1. Good Faith.

Respondent “does not dispute that petitioner filed the claim in good faith.” Res.

Opp. at 9 n.7. I agree that petitioner has a good faith belief in the merits of her case.

2. Reasonable Basis.

Whether this claim has a reasonable basis is more difficult to ascertain.

Respondent argues that it does not, Res. Opp. at 9-10, and has moved to dismiss the

case because the evidentiary record does not support petitioner’s contentions. Res.

Report at 8-9.

For purposes of this motion, respondent also contends that I cannot yet

determine if a reasonable basis for this claim exists. Res. Opp. at 10. Respondent

points out that the medical records do not support petitioner’s claim that B.A.B. suffered

an encephalopathy caused by his MMRV vaccination. Id. at 9. Although petitioner has

indicated that Dr. Harum’s expert opinion will support her claim, respondent argues that,

in the absence of such a report, “it is premature” for me to determine that a reasonable

basis exists. Id. at 9-10.

I agree there is scant evidence to support a reasonable basis for this claim,

based on the evidence filed to date. The following summary of the medical records

illustrates the contradictions between the assertions made in the petition and the

records filed.

a. Analyzing Petitioner’s Assertions in Light of the Filed Medical Records.

Petitioner contends that the MMRV vaccine which B.A.B. received on April 18,

2007 caused B.A.B. to suffer “a fever, a rash, uncontrollable crying, and loss of

language.” She also alleges that B.A.B. “suffered an encephalopathy which was

caused-in-fact by the MMRV vaccine” and resulted in B.A.B.’s “loss of prior skills and

his current developmental delay.” Petition at 1.

The medical records present a different picture. After the April 2007

vaccinations, B.A.B. was next seen by health care providers some three months later in

the emergency room for a laceration to his upper lip.18 No mention was made of any

health or behavior concerns since his last health care visit, but, given the nature of the

treatment sought, behavioral concerns might not be raised.

18

Although petitioner characterized this laceration as “gaping,” the ER staff described a one cm

superficial laceration which was closed using steri-strips. Pet. Exs. 4, p. 17; 5, pp. 1, 5. The next day,

B.A.B. was seen by his pediatrician who described the injury as a shallow laceration with a scab already

formed, adding “[t]here is no evidence that it was ever gaped open.” Pet. Ex. 6, p. 3.

12

B.A.B. was next taken to his primary care provider in mid-August 2007, when he

was about 15 months of age, for a high fever the night before and some increased

fussiness. He was diagnosed with a viral syndrome. Pet. Ex. 6, p. 3. No mention was

made of any earlier high fever, uncontrollable crying, or loss of language or other skills.

Ms. Fester called the pediatrics office in mid-September, 2007 complaining of

B.A.B.’s fever19 and two weeks of bloody nasal discharge. She indicated that B.A.B.

was acting normally, but had less appetite. Pet. Ex. 4, pp. 13-15. B.A.B. was seen at

the practice two days later. His eardrums were red, but there was no discharge. Once

again, he was diagnosed with a probable viral syndrome. Pet. Ex. 6, p. 4.

At B.A.B.’s 18 month well child visit on October 19, 2007, he was noted to say at

least three words, in addition to “mama” and “dada,” but his mother was concerned

about his speech development. She reported that his speech was at the same level as

it was at one year of age. B.A.B. was “[s]aying quite a few words,” Pet. Ex. 6, p. 4, but

they were the same words he had previously used and he did not seem to be interested

in acquiring new words. She also reported that although he appeared to have normal

hearing, B.A.B. was not responding to his name.20 Id., p. 4. The pediatrician suggested

waiting until January, 2008, before taking any further action. Id. No prior side effects

following immunizations were noted, and B.A.B. received a DTaP vaccination at this

visit. Pet. Exs. 3, pp. 2-3; 6, p. 16.

B.A.B.’s records contain a handwritten entry for November 6, 2007, but I cannot

decipher it. Pet. Ex. 6, p. 4. On November 23, 2007, B.A.B. was scheduled for an

influenza booster, but he had a fever the night before, with a temperature of 104°

Fahrenheit, and he seemed lethargic. On examination, B.A.B. was cranky but easily

consoled, and his right ear was normal except for a slight redness. Id. During the visit,

the pediatrician questioned petitioner about B.A.B.’s speech because he did not speak

at all during the examination. Ms. Fester reported that B.A.B. did not point and did not

try to show things to his parents.21 This pediatrician suggested investigating the

possibility of ASD. Pet. Ex. 6, p. 4.

Later that same day, Ms. Fester called to report that B.A.B. was running a fever

of 103.5°, had blotchy skin, an intermittent blue tinge to his lips, and a runny nose. Pet.

19

She indicated it had been 102° in the morning, and reduced to 99° after she gave B.A.B. Motrin.

20

Both the plateau in language development and the lack of response to his name are early symptoms of

an ASD, and are often the first symptoms noticed by parents or other caregivers. See White v. Sec’y,

HHS, No. 04-337V, 2011 WL 6176064 (Fed. Cl. Spec. Mstr. Nov. 22, 2011) (discussing symptoms of

ASDs).

21

Lack of pointing to share, as opposed to pointing to express wants or needs, is an early symptom of

ASD often noted by caregivers or health care providers. See White, 2011 WL 6176064, at *7 (discussing

this early symptom of ASDs).

13

Ex. 4, pp. 11-12. He was seen in the office that evening. His pulse oxygen level was

96-98% on room air, and he was described as alert and interactive, but crying. He

was assessed as having a possible reaction to the antibiotic given for treatment of his

otitis media. Pet. Ex. 6, p. 5.

B.A.B. continued to run a fever and was seen again on November 29, 2007. Ms.

Fester also shared concerns about his behavior, and reported that she had been in

touch with an ASD diagnosis and treatment program to arrange for an evaluation. Pet.

Ex. 6, p. 5. With regard to his fevers, she was worried that B.A.B. might have leukemia

instead of otitis media or a viral illness. She reported that he seemed to be feeling well

in general and was eating and drinking well. She also expressed concern about

possible seizure activity, as he sometimes stiffened and appeared unresponsive, but he

did not shake and was not incontinent after the episodes. She observed that B.A.B.

would wake up screaming during the night and during naps. She wondered if his history

of high fevers might have affected his brain. Id.

The physician noted that many of Ms. Fester’s numerous concerns appeared to

have been prompted by her internet research and that she was quite preoccupied with

what she saw as B.A.B.’s behavioral disorders. Pet. Ex. 6, p. 5. He explained that a

temperature of under 100.4° was not considered a fever and that the complete blood

count performed in April had been normal. Id., p. 6. He reassured petitioner that

B.A.B.’s behavior was “alert and energetic” and he was not exhibiting “any signs of

systemic illness.” Id. He encouraged petitioner to rely only on resources recommended

by “reliable health care professionals.” Id.

B.A.B. was evaluated for possible autism by North Carolina’s Children’s

Developmental Services Agency [“CDSA”] on December 6, 2007. Ms. Fester reported

that he had reached most milestones early, that he was able to identify shapes and

colors at three months of age,22 and that he was talking in two to three word phrases23

22

In a short video clip filed as Pet. Ex. 16, B.A.B., then six months of age, was shown pointing to the

green card when presented with both a red and green card. However, Ms. Fester was required to make

her request several times before B.A.B. pointed and, there is no evidence that the way the cards were

presented to B.A.B. was ever varied. Thus, other than this parental report, there is no indication that

B.A.B. knew his colors at three months of age.

23

Later, in the same report from B.A.B.’s December 6, 2007 evaluation, it is recorded that B.A.B. was

using two to three words at eight to nine months of age, rather than using two to three word phrases. Pet.

Ex. 7, p. 1. The report of two to three words, rather than the use of phrases, is more consistent, with both

normal child development and petitioner’s report to B.A.B.’s pediatrician about his failure to progress in

language at B.A.B.’s 18 month well child visit. NELSON TEXTBOOK OF PEDIATRICS (19th ed. 2011)

[“NELSON’S”], at 28, 30-31, 34 (noting that the average child begins using repetitive consonant sounds by

10 months of age and uses a few words other than “mama” and “dada” by one year of age, four to six

words by 15 months of age, and multiple word phrases beginning at two years of age). The number of

words in a sentence generally equals the age of the child in years. Id. at 34. Although B.A.B. was

reported to have “lots of words” at his nine month checkup, Pet. Ex. 6, p. 14, a later report suggests that

he was echoing words rather than using them independently and spontaneously at this point. See Pet.

Ex. 7, p. 5.

14

at eight to nine months of age. Pet. Ex. 7, p. 1. She also reported that he stopped

talking at all at around 10 months of age. Id.

Based on her report, B.A.B.’s plateau in language occurred about two months

before the allegedly causal MMRV vaccine. B.A.B.’s parents attributed his loss of

verbal and social skills to a sudden high fever24 of 107.5°. Pet. Ex. 7, p. 1. B.A.B.’s

father expressed concern about his son’s fascination with the ceiling fan, pulling books

off shelves, and inability to cease an activity until physically stopped. Id., p. 2. Ms.

Fester noted that he was a picky eater. Based on their internet research on autism,

they had recently placed B.A.B. on a gluten-free diet, with improvement in social

behavior and talking as a result. Id., p. 1. B.A.B. was assessed with delays in social

skills and language, but was not definitively diagnosed with ASD. Id., p. 3.

Later that same day, B.A.B. was seen by his pediatrician. The reason for the

visit was a red to pink rash on his torso, and a red, dry, scaly rash on his thighs.25 Ms.

Fester reported that she had placed B.A.B. on a gluten-free diet, and that an evaluation

earlier that day had assessed B.A.B. as on “the low end” of autism spectrum disorders,

with speech at an eight-month level. Pet. Ex. 6, p. 6. The rash was assessed as likely

eczema. Id.

24

There were no fevers reported for almost four months after B.A.B.’s April 2007 vaccinations,

administered when he was one year old. However, a fever that allegedly reached 107° occurred when

B.A.B. was about eight and one half months old, more than three months before B.A.B.’s MMRV

vaccination. Ms. Fester called the afterhours service at the pediatrician’s office on December 31, 2006,

reporting that a fever began at about 8:20 PM and reached a peak at 102.5° measured tympanically.

B.A.B. was drinking, eating, and urinating normally, and had not been vomiting or experiencing diarrhea,

and had no rash. His father had been ill recently. Pet. Ex. 4, pp. 22-26.

The next day, B.A.B.’s father placed a call to the pediatric practice’s afterhours number, indicating

that he was at the emergency room with B.A.B., who had a fever of 107°. He wanted one of the

pediatricians to meet him in the emergency room. Id., pp. 19-21. At the emergency room, B.A.B.’s

temperature was recorded as 105.9°, and he was observed to have decreased activity, excessive crying,

congestion, and nasal discharge. Tylenol and Motrin were administered. Pet. Ex. 5, pp. 6-8. B.A.B.’s

father reported that his pediatrician had agreed to meet them at his office, and he and the child left the

emergency room against medical advice. B.A.B. was then seen at the pediatrician’s office. He had a

minimal runny nose and cough. He was well-appearing, but tired and sleepy. The physician assessed

B.A.B. as likely having a viral fever. Pet. Ex. 6, p. 2.

On January 3, B.A.B. was seen again by the same physician. B.A.B. continued to have a runny

nose, but was well-appearing and in no apparent distress. A complete blood count confirmed the

physician’s suspicion that the fever was viral in nature, as the blood results were “reassuringly viral.”

B.A.B. had an ulcer on his tongue and one papule on his wrist. Id.

25

Although petitioner contends that B.A.B. experienced a rash as the result of his April 2007 MMRV

vaccination, this was the first report of any rash after the 12 and 18 month immunizations. His mother

also indicated that he routinely developed rashes after fevers. Pet. Ex. 6, p. 6.

15

In histories provided to specialists diagnosing, evaluating, or treating B.A.B. from

January 2007 to July 2008, his parents never attributed his speech stagnation or

regression to his vaccinations. See, e.g., Pet. Exs.10, p. 3 (speech therapy evaluation

on January 17, 2008, in which his parents reported that B.A.B. was using more words at

one year of age, but had since stopped using them and indicating that there were no

significant events or changes at the time); 7, pp. 5-6 (CDSA evaluation on January 24,

2008, in which his parents reported a history of mimicking words at six months of age,

and regression beginning “after roseola fever with temperature of 107.5°”); Res. Ex. A,

p. 113 (an email message to Dr. Harum on July 18, 2008, in which B.A.B.’s father

reported that B.A.B. went from being able to say “I love you” at 10 months of age to only

one or two words in November 2007, and which indicated that he had no problems after

the 107.5° fever, but had developed changes five to six months later). The first mention

of any fever or regression associated with his MMRV vaccination did not occur until

April 14, 2009. See Pet. Ex. 12, p. 6.

b. Determining if a Reasonable Basis Exists.

Whether these deficiencies in petitioner’s case are sufficient to conclude that the

claim lacks a reasonable basis is a difficult call. Certainly, there is nothing in the record

to date to suggest vaccine causation. However, I have seen many cases in which an

expert opined in favor of vaccine causation, in spite of the lack of such indications in the

medical records, and it is not uncommon for fees and costs to be awarded at the

conclusion of a case in that procedural and evidentiary posture.

Petitioner filed B.A.B.’s claim a few days before the statute of limitations would

have expired, assuming that B.A.B. had the relatively immediate reaction to his April 18,

2007 vaccinations claimed.26 Thus, giving petitioner the leeway normally accorded to

petitions filed on the eve of the expiration of the statute of limitations, it is appropriate to

conclude that petitioner had a reasonable basis to file the petition. See Hamrick v.

Sec’y, HHS, No. 99-683V, 2007 U.S. Claims LEXIS 415, at *14 (Fed. Cl. Spec. Mstr.

Nov. 19, 2007) (discussing the more liberal standard for finding a reasonable basis for

petitions filed just prior to the expiration of the Vaccine Act’s statute of limitations).

However, the Federal Circuit has required something more than “unsupported

speculation” to continue to pursue a petition. Perreira v. Sec’y, HHS, 33 F.3d 1375,

1377 (Fed. Cir. 1994); see also Hamrick, 2007 U.S. Claims LEXIS 415, at *15

(distinguishing reasonable basis needed to file a petition from that needed to continue a

claim). If petitioner’s causation theory is not premised on facts supported by the record,

or is not grounded in reputable medical evidence, his (or his expert’s) espousal of that

theory is insufficient to maintain a reasonable basis. See Perreira, 27 Fed. Cl. at 33-34,

26

The petition was filed on April 15, 2007, just three days short of 36 months after administration of the

allegedly causal vaccinations.

16

aff’d, 33 F.3d 1375 (Fed. Cir. 1994); Stevens v. Sec’y, HHS, No. 90-221V, 1992 WL

159520, at *4 (Cl. Ct. Spec. Mstr. June 9, 1992).

Many cases filed in the Vaccine Program suffer from the same infirmities as does

this one. That is, most petitions, like the one in the instant case, are filed based on a

belief in vaccine causation, unsupported by the medical records or by expert opinion. In

the typical Vaccine Act case, it takes months for petitioners to produce sufficient

medical records to allow respondent and the special master to assess whether the claim

is colorable. Only rarely is a petition accompanied by sufficient medical records to

permit respondent to file a substantive report as contemplated by Vaccine Rule 4(c)

within 90 days of the petition’s filing. Even more rarely is a petition accompanied by an

expert report or a statement from a treating physician regarding vaccine causation. Yet,

in the vast majority of cases, respondent does not challenge the reasonable basis for

the claim when petitioners seek payment of final fees and costs for an unsuccessful

claim.

Fees and costs have been paid, often without opposition by respondent, in cases

in which petitioners have been unable to find an expert willing to opine as well as in

those in which petitioners have obtained an unfavorable opinion. Experts have been

paid simply to review and summarize the medical records. Savin v. Sec’y, HHS, No.

99-537V, 2008 WL 2066611, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 22, 2008); Lamar v.

Sec’y, HHS, No. 99-583V, 2008 WL 3845165, at *12-13 (Fed. Cl. Spec. Mstr. July 30,

2008).

In this case, a physician who has seen and treated B.A.B. in the past has agreed

to opine on whether vaccines are responsible for his condition.27 In the absence of any

evidence that she is doing so for reasons unrelated to the vaccine injury claim process, I

cannot distinguish this case from hundreds of those in the posture of final fees in which

fees and costs have been paid, in spite of the lack of an expert report or evidence of

vaccine causation in the medical records filed.

3. Is the Cost Reasonable?

Respondent asserts that I cannot determine if the interim costs sought by

petitioner are reasonable. Res. Opp. at 10; see also § 15(e)(1). According to

respondent, the petitioner is, in essence, asking me to pre-certify Dr. Harum as an

expert and pre-approve her rate. Res. Opp. at 10-11 and n.9. Respondent contends

that I do not have enough evidence to make such a determination without seeing Dr.

Harum’s report. Id. at 11.

27

It is a matter of some concern to me that this particular physician, Dr. Harum, earlier refused to provide

petitioner with a copy of B.A.B.’s medical records. To obtain Dr. Harum’s records after she was not

responsive to petitioner’s requests, I authorized respondent’s counsel to sign and serve a subpoena on

Dr. Harum. See Order, issued Apr. 21, 2011.

17

It is true that Dr. Harum does not have a “track record” as an expert in the

Vaccine Program, and based on the somewhat vague statements in the Notice filed

September 26, 2011 and Pet. Ex. 22, I cannot determine if she has ever testified as an

expert witness regarding causation of an injury or has filed an expert report in any other

court. She is, however, a board certified pediatrician, Pet. Ex. 22 at 3, and has seen

and treated B.A.B. There is no prohibition in the Vaccine Program against treating

physicians testifying as experts. In fact, special masters are abjured to carefully

consider the opinions of treating physicians when considering whether vaccine

causation has been established. Althen, 418 F.3d at 1280; Capizzano v. Sec’y, HHS,

440 F.3d 1317, 1326 (Fed. Cir. 2006). While her training and experience appear to be

less than that of most experts who have testified regarding vaccine causation of ASDs

or encephalopathies, generally speaking, her qualifications would affect the weight

given her opinion under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

rather than its admissibility.28 Her training and experience would certainly be a factor in

assessing the hourly rate to be awarded.

Based on my experience in the Vaccine Program, most experts who require

retainers before rendering an opinion request more money in advance than does Dr.

Harum. The average retainer amount in the fees and costs applications I have

reviewed, which involve experts in a variety of disciplines, is nearly twice what Dr.

Harum is requesting. The requested retainer is, therefore, quite reasonable.

Respondent argues that paying the retainer amount would equate to pre-

approval of Dr. Harum and her rate. I do not agree. Approving payment of the retainer

sought by Dr. Harum does not commit me to accept Dr. Harum’s hourly rate or her

estimate of the total cost involved. Thus, should Dr. Harum’s report be of poor quality or

the additional hours requested be unreasonable, advance payment of a retainer does

not commit the court to approve additional funds. However, whether Dr. Harum’s hourly

rate and the number of hours sought are reasonable is secondary to determining

whether petitioner can receive Program funds for Dr. Harum’s services in advance of

expending payment to acquire those services.

28

Although special masters can decline to consider an expert’s opinion based on lack of qualifications

and other factors, such cases are rare. Veryzer v. Sec’y, HHS, No. 06-522V, 2010 WL 2507791 (Fed. Cl.

Spec. Mstr. June 15, 2010) (granting respondent’s motion to exclude petitioner’s expert report). More

frequently, special masters consider all of the evidence and testimony produced by the parties, and rather

than using the Daubert criteria to screen out evidence at the gate to the courthouse, they use the non-

exhaustive Daubert criteria to determine what, if any, weight to give to expert opinions. Terran v. Sec’y,

HHS, 195 F.3d 1302, 1316 (Fed. Cir. 1999) (approving a special master’s use of the Daubert factors “as a

tool or framework for conducting the inquiry into the reliability of the evidence”); Cedillo v. Sec’y, HHS,

617 F.3d 1328, 1339 (Fed. Cir. 2010) (noting that special masters are to consider all relevant and reliable

evidence filed in a case and may use Daubert factors in their evaluation of expert testimony); Davis v.

Sec’y, HHS, 94 Fed. Cl. 53, 67 (2010) (describing the Daubert factors as an “acceptable evidentiary-

gauging tool with respect to persuasiveness of expert testimony already admitted . . . by special masters

in vaccine cases”).

18

D. Do the Circumstances of this Case Justify an Interim Award?

1. Protracted Proceedings.

This petition has been pending for about 40 months. During the first 15 months,

the focus of the efforts of petitioner, respondent, and two special masters was on

obtaining sufficient medical records to evaluate the claim. The focus then shifted to

petitioner’s efforts to obtain representation and to find an expert willing to opine.

Twenty-four months after filing her claim, petitioner reported that she had exhausted her

effort to obtain funding for her expert’s retainer fee, and requested that I rule on her

application for interim costs.29

In Avera, the Federal Circuit included “protracted proceedings” as a basis for

awarding interim fees and costs but did not elaborate on what amount of time would be

considered protracted. Avera, 515 F.3d at 1352. The Circuit held that an interim award

was not warranted in that case in part because petitioners only sought the award

pending appeal. Following the Federal Circuit’s logic, I have awarded interim fees and

costs in cases in which further proceedings were likely to be protracted, such as those

involving withdrawal of an attorney, and when the damages phase is expected to take

some time. Other special masters have awarded interim fees and costs in cases

pending for shorter periods of time. See, e.g., Bear v. Sec’y, HHS, No. 11-362V, 2013

WL 691963 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) (awarding interim fees in a case

pending for 19 months). In these cases, the request for interim fees and costs

accompanied a motion to withdraw as attorney of record.30 While petitioner’s claim has

been pending for longer than the statutory “opt out” period, whether this case qualifies

as “protracted” is not clear. See § 21(b) (for a description of the statute’s “opt out”

period).

2. Undue Hardship and Costly Experts.

Before an interim award is appropriate, petitioners must show “that they have

suffered undue hardship.” Avera, 515 F.3d at 1352; accord. Shaw, 609 at 1375.

Although neither Avera or Shaw contains an example of what undue hardship would

entail, the Federal Circuit in Avera specifically held that undue hardship did not exist

29

Unfortunately, my decision on her application has been unduly delayed by entitlement hearings in other

cases and efforts to resolve informally approximately 1,000 outstanding final attorney fee applications in

the “Cloer hold cases” (cases in which respondent had challenged the award of fees and costs because

the claims were untimely filed). At the February 24, 2012 status conference, I did inform petitioner that

adjudication of her interim costs application was likely to be delayed. I regret this decision was delayed

longer than I had anticipated.

30

The fact that an attorney has filed a motion to withdraw has been viewed as circumstances which

warrant an interim fee award. Wood v. Sec’y, HHS, 105 Fed. Cl. 148, 154 (2012). But cf. McKellar v.

Sec’y, HHS, 101 Fed. Cl. 297, 302 (2011) (holding that “the mere fact that an attorney plans to withdraw

is not necessarily a hardship that triggers an award of interim attorneys' fees and costs”).

19

because “the amount of the fees here was not substantial; appellants had not employed

any experts; and there was only a short delay in the award pending the appeal.” Avera,

515 F.3d at 1352. Thus, the Circuit appeared to focus on the hardship of carrying

unreimbursed costs for extended periods rather than the financial situation of the

petitioner or counsel.

Whether expert costs are “expensive” can be evaluated either objectively, i.e.,

considered in light of other expert costs in the Program, or subjectively, i.e., based on

petitioner’s counsel or a pro se petitioner’s ability to carry those costs until final

resolution of the case. It makes considerable practical sense to evaluate such costs on

an objective basis. A petitioner or petitioner’s counsel who has expended $100,000 in

expert costs in a case that may be on review or appeal for several more years certainly

presents a more compelling case for an interim award than one who has only a $1,000

expert retainer cost outstanding.31 To look at such cases subjectively would require

delving into a law firm’s or expert’s financial situation,32 a requirement that would likely

be repellant to the court and law firm alike.33 Using an objective standard, the cost of

Dr. Harum’s retainer is not expensive. It does, however, represent a hardship to

petitioner.34

Whether it constitutes an “undue” hardship is less clear, particularly when viewed

in light of the statutory requirement to file a petition supported by evidence of vaccine

causation.

31

In more than seven years of experience as a special master, I am aware that a retainer is often the only

expert witness expenditure actually paid at the time a case is resolved without the need for testimony.

Because of the relative certainty that expert costs will ultimately be paid even in cases where causation is

not established, some experts have been willing to opine based on only a retainer payment, and await the

award of fees and costs at a later date in order to collect the remainder of their expert fee.

32

When considering the hourly rate which should be awarded to an attorney, the argument that a law

firm’s profitability should be examined has been rejected on the grounds that this further examination was

not relevant to that issue. Masias v. Sec’y, HHS, 2009 WL 1838979, at *29 (Fed. Cl. Spec. Mstr. June

12, 2009), aff’d 634 F.3d 1283 (Fed. Cir. 2011).

33

A law firm’s bottom line is not only affected by income but by expenditures and an evaluation of “need”

could involve a close look at salaries, benefits, and highly discretionary expenditure decisions.

34

I do realize that because of her financial situation, petitioner’s application to proceed in forma pauperis

was granted on June 4, 2010. However, the waiver of a filing fee or court costs required for an indigent

person to obtain access to the courts does not thereby compel a court to authorize payment of the expert

witness costs necessary to obtain relief. See, e.g., Victor v. Lawler, 2011 WL 722387, at *2 (M.D.Pa.);

see also infra Section III, Part F.3. The statute that authorizes me to waive a filing fee does not similarly

authorize me to waive expert costs or to provide funding for expert assistance. 28 U.S.C. § 1915 (1996);

see also Wiley v. United States, 69 Fed. Cl. 733, 734 (2006) (reiterating the special master’s ruling that

although he waived the filing fee, allowing the petitioner in that case to proceed in forma pauperis, he did

not have the authority to appoint an attorney for the petitioner).

20

E. The “Incurred” Costs Issue.

Respondent’s strongest argument is that the Vaccine Act requires a petitioner to

have actually incurred costs before such costs can be paid as part of an interim award.

Res. Opp. at 8; see also § 15(e)(1). Respondent defines “incur” to mean become

“legally liable to pay.” Res. Opp. at 8 (citing Black v. Sec’y, HHS, 33 Fed. Cl. 546, 550

(1995)). Respondent contends that “petitioner has not incurred any costs for Dr.

Harum’s services [as an expert], because Dr. Harum has yet to perform those services.”

Res. Opp. at 8.

1. Meaning of “Incurred” within the Vaccine Act.

The statute uses the term “incurred,” but does not define it. The common rule of

statutory construction is that words are given their plain and ordinary meaning in the

absence of any indication otherwise. See Cloer, 133 S.Ct. at 1893 (quoting BP America

Production Co. v. Burton, 549 U.S. 84, 91 (2006)). Black’s Law Dictionary defines the

word “incur” to mean “[t]o suffer or bring on oneself (a liability or expense).” Black’s Law

Dictionary 771 (7th ed. 1999).

The Court of Federal Claims has interpreted the word “incur” as it was used in

§ 11(c)(1)(D)(i), a subsection of the Act that has since been amended to omit the

provision containing the word. See Black, 33 Fed. Cl. at 546 (discussing the provision

requiring that a petitioner “has incurred in excess of $1,000 in unreimbursable

expenses” as a prerequisite for bringing a claim). The court indicated that “[o]ne incurs

an expense, therefore, at the moment one becomes legally liable, not at the moment

one pays off the debt, nor at the moment when one decides that an expense will

become necessary one day in the future.” Id. at 550. In quoting another case, the court

observed that “‘[t]o incur means to become liable for or subject to; it does not mean to

actually pay for.’” Id. (quoting Quarles Petroleum Co. v. United States, 213 Ct. Cl. 15, 22

(1977)).

In 1996, the Federal Circuit heard a combined appeal that included the petitioner

from Black and petitioners from two other cases in which the court considered the

application of § 11(c)(1)(D)(i). See Black v. Sec’y, HHS, 93 F.3d 781 (Fed. Cir. 1996).

In the appeal, petitioners relied on the definition of “incur” found in the Webster’s

Dictionary, “to become liable or subject to,” to argue for reversal of the dismissal of their

petitions for failing to have satisfied the $1,000 expense prerequisite. Id. at 785

(quoting Webster’s Third New International Dictionary 1146 (1968)). Petitioners argued

that given the severity of their injuries they faced the “near-certain prospect of ultimately

suffering unreimbursable expenses of more than $1000,” and thus “had incurred”

$1,000 in expenses at the time of their injury. Black, 93 F.3d at 785.

The Federal Circuit rejected petitioners’ interpretation of “incurred” and held that

incurred costs meant “expenses for which payment has been made or for which liability

has attached.” Id. at 786. The Court noted that § 15(a)(1)(A) distinguished between

21

unreimbursable expenses incurred at a certain time and those “reasonable projected

unreimbursable expenses that have been or will be incurred,” and that adoption of

petitioners’ definition would therefore result in superfluous language in § 15 because

there would be no difference between the projected expenses that “have been” or “will

be” incurred. Id.

2. Application of Definition to Dr. Harum’s Retainer.

It does not appear from the documents submitted35 that petitioner is currently

obligated or legally liable to pay Dr. Harum. Conversely, Dr. Harum is not legally

obligated to begin performance (review of B.A.B.’s case and preparation of an expert

report to be filed with the court) until the retainer is paid.

Doctor Harum has offered to serve as an expert in this case, but has made

payment of the $600 retainer a condition precedent36 for her to begin reviewing the

medical records. As Dr. Harum indicated in her letter, she can “have a document

prepared within 90 days from the date that I am retained. A retainer fee of $600 will be

accepted . . . .” Pet. Ex. 22 at 8 (emphasis added). Until petitioner pays the retainer,

Dr. Harum is not obligated to begin performance.

Because petitioner has neither made a payment to Dr. Harum nor become legally

liable for a payment at this time, petitioner cannot be considered to have incurred a

cost.

F. Is a Request for Advance Funding Distinguishable from Interim Awards of Fees and

Costs?

Assuming, arguendo, that petitioner has met all the requirements for payment of

interim costs, there are three factors that could militate against advancing payment in

this case. First, the legislative history for § 15 of the Act suggests that the provision for

payment of fees and costs in unsuccessful cases was included in order to ensure that

those seeking compensation for a vaccine injury would have ready access to a

competent attorney to represent them, not to ensure that funding would be available to

obtain experts. Second, the contemporaneous records and the early reports by

petitioner and her husband to health care providers about the onset of B.A.B.’s

symptoms differ markedly from the claims now made regarding vaccine causation.

Comments by petitioner and B.A.B.’s father suggest that part of the reason for filing and

35

Only the January 22, 2012 letter Dr. Harum wrote regarding her willingness to serve as an expert has

been filed. See Pet. Ex. 22. A copy of any formal retainer agreement between Ms. Fester and Dr. Harum

has not been provided to the court.

36

As the Court of Federal Claims has noted, “[a] condition precedent is either an act of a party that must

be performed or a certain event that must happen before a contractual right accrues or contractual duty

arises.” Haddon Housing Assoc., LLC v. U.S., 99 Fed. Cl. 311, 326 (2001) (quoting R. Lord, 13 Williston

on Contracts § 38:7 (4th ed. 2000)).

22

pursuing this claim was to obtain a definitive diagnosis and the probable etiology of

B.A.B.’s disorder. Payment of fees and costs in advance could encourage the filing of

cases in order to obtain expert evaluations that might not otherwise be affordable.

Finally, court involvement in the “pre-selection and payment” of experts could greatly

burden the Vaccine Program and complicate a process meant to be a quick and less

complex means to compensate those injured by vaccination. See H.R. REP. NO. 99-

908, at 3 reprinted in 1986 U.S.C.C.A.N. 6344, 6344.

1. Legislative History - Encouraging Involvement by Competent Counsel.

By paying attorneys’ fees to unsuccessful litigants, the Act encourages counsel

to represent petitioners in Vaccine Act cases and, in particular, the off-Table injury

claims where petitioners must perform the “heavy lifting” to demonstrate that a vaccine

is more likely than not responsible for their injuries. H.R. REP. NO. 99-908, at 22

reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Hodges v. Sec’y, HHS, 9 F.3d

958, 961 (Fed. Cir. 1993) (referring to the heavy burden placed on petitioners

presenting causation in fact claims). An attorney representing petitioners in Vaccine Act

cases performs many roles and, sometimes, after a careful examination of the evidence

and the law, the most important of those is providing a candid assessment of the merits

of a case to a petitioner whose firm, fixed belief in vaccine causation is unsupported by

evidence. In these cases, fees are almost invariably awarded in order to effectuate the

policy behind the fees provisions of the Act.

It is clear from the legislative history of the Vaccine Act that Congress wanted to

provide an incentive to attorneys to represent Vaccine Act petitioners. H.R. REP. NO.

99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Cloer, 133 S.Ct. at

1895; Saunders, 25 F.3d at 1035. Interim fees help effectuate this purpose. However,

it is by no means clear that Congress intended to advance funds from the Vaccine Trust

Fund to allow petitioners to establish a prima facie case. To the contrary, the statutory

scheme requires that petitioners present a comprehensive case for entitlement to

compensation at the time the petition is filed.37 See § 11(c) (specifying the contents of a

petition filed under the Program). Advance payment of costs could encourage the filing

of “bare bones” petitions, with the expectation that the court will approve advance

payment for obtaining the statutorily-required records and opinions necessary to

demonstrate causation, only to be followed by the dismissal of a jurisdictionally

defective or meritless petition.

37

I recognize that this provision is more honored in the breach than in the practice. It is not uncommon

for petitioners to file a “bare bones” petition, unaccompanied by medical records or medical opinions as to

causation, although that practice is now discouraged by special masters. The autism and hepatitis B

omnibus proceedings have demonstrated the importance of locating and filing all relevant medical

records at the earliest possible point in the proceedings. Past practice does not, however, negate the

clear expressed intent of the legislature that petitioners file the evidence showing vaccine causation at the

time of filing the petition itself. In most cases filed in the last four to five years, at least some medical

records are filed either with the petition or as soon as the case is converted to electronic filing.

23

In this case, petitioner has yet to find an attorney who meets her requirements.

She claims that the lack of an expert opinion is one of the reasons no attorney has yet

been willing to take her case. However, the evidence filed to date suggests another

reason: the filed evidence simply does not support petitioner’s claim that B.A.B.

experienced fever, a rash, uncontrollable crying, and loss of language, constituting an

“encephalopathy” after his MMRV vaccination at one year of age. Although the records

reflect several high fevers and rashes at periods of time both before and after the April,

2007 vaccinations as well as numerous calls and visits to the pediatrician for other more

minor concerns,38 they do not reflect any visits or telephone calls reporting such

concerns after the April 2007 vaccinations.

2. Motivation in Seeking Expert Review.

I have discussed the conflicts between the petition and B.A.B.’s records

regarding onset and cause of his condition, whether it is characterized as an ASD or an

encephalopathy, with petitioner at several status conferences. In her response to

respondent’s motion to dismiss, petitioner argued about what various physicians have

said regarding vaccine causation, but failed to identify anywhere in the medical records

filed that such statements appear.

It is true that an expert could base a causation opinion on something other than

the medical records filed. Such opinions are unlikely to be persuasive to a special

master unless there are reasons to reject the contemporaneous records (or lack of such

records when the severity of symptoms would suggest that caring and concerned

patients would seek treatment). See Burns v. Sec’y, HHS, 3 F.3d 415, 417 (Fed. Cir.

1993) (holding that “the special master did not err in accepting the contemporaneous

medical records over the testimony of fact witnesses”). Our caselaw suggests that

contemporaneous records are strongly favored over affidavits or testimony elicited

years later. See, e.g., Cucuras v. Sec'y, HHS, 993 F.2d 1525, 1528 (Fed. Cir. 1993).

B.A.B.’s parents were not shy about contacting the afterhours number when he was ill,

and during the illness in which B.A.B.’s fever was reported as 107°, they induced their

pediatrician to meet B.A.B. and his father at the pediatrician’s office in the late evening

of New Year’s Day or in the early morning hours of the day following.

Reading between the lines, it appears that petitioner’s financial difficulties have

interfered with her ability to have B.A.B. continue treatment with Dr. Harum, and what

she and B.A.B.’s father really seek is a firm diagnosis and an identified cause for

B.A.B.’s condition. This would be a matter of high priority for nearly any parent, and the

record establishes that both of B.A.B.’s parents are caring and concerned and seek only

the best for their child. A lawsuit, however, is not a vehicle for seeking medical care or

such answers. Unsophisticated in the law as they are, their statements indicating their

38

See, e.g., Pet. Exs. 4, pp. 4, 13-15; 6, pp. 6-7.

24

expectation that the court would appoint an expert or that it should provide them with

the funds necessary to evaluate B.A.B.’s condition strongly suggest that they did not

understand their legal obligation to present a case for entitlement at the time B.A.B.’s

case was filed. See Status Conference held July 28, 2011 (asking for an expert

evaluation of B.A.B.); Status Conference held Dec. 9, 2011 (requesting an order be

issued or letter provided to Dr. Harum telling her she will be paid at the end of the case).

3. Practical and Policy Concerns.

If funds are advanced, there is no way of ensuring that the funds are used for

their intended purpose.39 When reimbursement is sought for funds already expended,

there is a motivation to exercise judgment in selecting the expert and in monitoring that

expert’s work and expenditures. When a petitioner (or his or her attorney) expends

funds or time on the case to secure an expert opinion, someone other than the court is

monitoring the hourly rate paid and the hours authorized. See Perreira, 1992 WL

164436, at *4, aff’d, 27 Fed. Cl. 29 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994) (referring

to counsel’s obligation to monitor expert costs).

In contrast, when advance payment is sought, the court must, of necessity, insert

itself in such matters. What happens when the court determines that the hourly rate

requested is too high, that the hours proposed are excessive, or that the expert is not

sufficiently qualified to opine? Petitioners may be denied thereby the only expert who is

willing to favorably opine on their case. Of course, when final or interim costs are

requested, the court may well come to similar conclusions, but it does so at a time when

the expert’s bill is before the court, his or her qualifications have been presented and

challenged (either in a hearing or a motion) and, most importantly, the expert’s work

product is available for review.

Advance payment of costs would open the door to advance payment of fees. It

would not be unreasonable to expect that an attorney, experiencing cash flow problems,

might request an advance payment for work he or she expects to do on a case to

prepare it for a hearing, to answer a motion to dismiss, or simply to collect and file the

medical records expected to accompany the petition itself. If financial hardship is a

consideration in advancing costs for this pro se petitioner, then should not the court

consider the financial hardship for an attorney representing a petitioner?

In other contexts, courts do authorize payment for expert witnesses. In criminal

cases, there is a due process right, grounded in the Fourteenth Amendment, for an

39

While the government might institute proceedings to recoup payment, an impecunious defendant is

effectively judgment-proof. I do not imply that I think this petitioner is likely to misuse funds provided to

her for purposes of securing an opinion on vaccine causation, but a determination that advance payment

of costs is available would impact on more cases than B.A.B.’s claim alone.

25

indigent defendant to obtain expert assistance at trial40 or materials necessary to

prepare an appeal.41 However, the state must provide only the assistance needed to

satisfy due process. See Ross v. Moffitt , 417 U.S. 600, 601 (1974) (determining that

an indigent defendant must be given “an adequate opportunity to present his claims

fairly in the context of the State's appellate process,” but need not be given the same

resources available to a wealthier defendant); United States ex rel. Smith v. Baldi, 344

U.S. 561, 570 (1953) (finding that although the defense was not provided with an expert

witness, due process was not violated because a neutral psychiatrist had examined the

defendant). A specific level of remedy is not dictated, but a variety of approaches may

be used to satisfy a defendant’s due process right. Griffin, 351 U.S. at 20 (indicating a

variety of methods to provide defendants with a report of trial proceedings could be

employed). For example, in a case before the Third Circuit, the Department of Justice

was not required to reimburse a defendant for all expert costs, only those costs

associated with determining his competency to stand trial as required under 18 U.S.C. §

4244 (1976). United States v. Rogalsky, 575 F.2d 457, 461 (3d Cir. 1978). The expert

costs stemming from examinations used to establish his defense of insanity were

deemed more appropriately paid from the public defender’s budget. Id.; see also 18

U.S.C. § 3006A(e) (1976).

The Supreme Court has also applied a Fourteenth Amendment due process right

in the context of the “quasi-criminal” proceedings of a paternity suit. The Supreme

Court held that to determine paternity, Connecticut should have provided blood tests

without cost to an indigent putative father. Little v. Streater, 452 U.S. 1, 10 (1981). The

Supreme Court reasoned that the putative father’s future costs for child support would

be a taking of property under the Fourteenth Amendment. Little, 452 U.S. at 6.

However, the right has not been extended to civil litigation to recoup damages, even

when the damages sought were for an alleged due process violation. See Boring v.

Kozakiewicz, 833 F.2d 468 (3d Cir. 1987) (finding no right to public funding of an expert

witness for former pretrial detainees suing the county for medical malpractice while

incarcerated); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987)

(prevailing party in a civil rights suit may not claim expert witness fees as costs).

I note that in Avera when the Federal Circuit ruled that interim fees were

available in Vaccine Act cases, the Court looked to other fee-shifting statutes in which

interim fees had been authorized in spite of the statutes’ silence. Avera, 515 F.3d at

1351-52. The Circuit examined cases involving the Emergency School Aid Act, the Civil

Rights Attorney's Fees Awards Act of 1976, the Freedom of Information Act, and Title

40

Ake v. Oklahoma, 470 U.S. 68, 86-87 (1985) (explaining that “mere access to the courthouse doors

does not by itself assure a proper functioning of the adversary process”).

41

Griffin v. Illinois, 351 U.S. 12, 17 (1956) (holding that “due process and equal protection both call for

procedures in criminal trials which allow no invidious discriminations between persons and different

groups of persons”).

26

VII of the Civil Rights Act of 1964. Although all statutes were found to allow for interim

awards, I could find no case in which litigation costs were advanced. Similarly, when

expanding my research to statutes such as the Black Lung Benefits Act, I could find no

instance of advance payment of attorney fees or costs.42

IV. Conclusion.

Approximately a quarter century ago, Congress authorized an experiment in tort

reform. It created a no-fault compensation scheme in which petitioners had only to

prove vaccine causation of their injury in order to obtain generous compensation.43 In

some cases, based on the vaccine, the timing, and the nature of the injury,

compensation was presumed. To ensure that vaccine-injured claimants had ready

access to attorneys willing to take their cases, Congress did something unprecedented.

It authorized attorneys’ fees and costs even when petitioners do not prevail. Congress

also mandated that petitioners present a documented and supported case for vaccine

causation at the time the claim was filed. Read in pari materia, these statutory

provisions do not support granting the relief petitioner seeks.

Petitioner’s request for advance funding of interim expert costs is DENIED.

Petitioner shall file by no later than Thursday, September 26, 2013, a status report

informing the court how petitioner intends to proceed.

The clerk of the court shall forward a copy of this Decision to petitioner by

certified mail, return receipt requested and a second copy by regular mail.

IT IS SO ORDERED.

Denise K. Vowell

Special Master

42

Although this is the first case in which I decide the issue of advancement of costs to an indigent pro se

litigant, the issue of advance payment of litigation costs has been raised in at least two recent rulings,

Klein and Mostovoy. See Klein v. Sec’y, HHS, No. 12-560V (soon to be posted on the Court’s website)

(denying petitioners’ request for $500, the fee required to obtain autopsy slides); Mostovoy v. Sec’y, HHS,

No. 02-10V, 2013 WL 3368236, at *27 (denying petitioners’ request for advance funding of expert costs

and research). From informal discussions with my colleagues, I also am aware of two other cases with

pending requests for advance funding of expert fees and testing.

43

Although there are statutory “caps”: on pain and suffering, § 15(a)(4), and on lost wage claims for those

who were minors at the time of injury, § 15(a)(3)(B), the statute authorizes full payment for actual or

projected unreimbursable expenses, § 15(a)(1). Moreover, in civil tort suits filed on a contingent fee

basis, an attorney may take between 25%-50% of the damages awarded as attorney fees, effectively

wiping out the higher pain and suffering awards received in civil litigation.

27