Becker v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13-687V

Filed: September 11, 2014

For Publication

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

DAVID BECKER, Parent of D.B., a Minor, *

*

Petitioner, * Interim attorneys’ fees and costs decision;

* Respondent objects to interim fee award;

v. * Excessive Fees and Costs; Attorney’s hourly

* rate; Paralegal’s hourly rate

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Robert J. Krakow, New York, NY, for petitioner.

Ryan D. Pyles, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING INTERIM ATTORNEYS’ FEES1

Prior to the withdrawal of Patricia Finn, Esq. (“Ms. Finn”) as attorney of record,

petitioner filed a Motion for Interim Payment of Attorneys’ Fees, requesting that the Court award

petitioner $8,858.50 in interim attorneys’ fees. Petitioner’s new attorney of record, Robert

Krakow, is currently seeking an expert report in support of petitioner’s allegations. No decision

on entitlement has been issued.

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Because this unpublished decision contains a reasoned explanation for the special master’s action in this

case, the special master intends to post this unpublished decision on the United States Court of Federal

Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat.

2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be

made available to the public unless they contain trade secrets or commercial or financial information that

is privileged and confidential, or medical or similar information whose disclosure would constitute a

clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify

and move to redact such information prior to the document=s disclosure. If the special master, upon

review, agrees that the identified material fits within the banned categories listed above, the special

master shall redact such material from public access.

For the reasons set forth below, the undersigned awards petitioner $6,063.00 for interim

attorneys’ fees incurred up to and including February 18, 2014.

PROCEDURAL HISTORY

On September 16, 2013, petitioner filed a petition under the National Childhood Vaccine

Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that his son, D.B., suffered a Table

encephalopathy “and thereafter chronic encephalopathy which was ‘caused in fact’” by the

Hepatitis A, Varicella, and MMR vaccinations he received on September 17, 2010. Pet. at 1. On

September 30, 2013 and January 17, 2014, petitioner filed medical records and a two-page

affidavit. Petitioner also filed an amended petition on January 17, 2014.

The initial telephonic status conference was held on January 28, 2014, during which the

undersigned explained the difficulty of petitioner prevailing on a theory that D.B. suffered a

Table encephalopathy because, according to the medical records, his injury did not meet the

timing and symptoms specified in the Vaccine Injury Table. 42 C.F.R. § 100.3 (2011). She

further explained that petitioner would need to prove both causation in fact and that D.B.

suffered more than six months of sequelae following a vaccine injury if he wished to proceed

with the case. The undersigned ordered petitioner to file updated medical records.

On February 18, 2014, petitioner filed a Motion for Interim Payment of Attorneys’ Fees,

requesting that the Court award petitioner $8,858.50 in interim attorneys’ fees for work done by

Patricia Finn. Petitioner stated that he had retained new counsel in the case, and “it would create

undue hardship” for Ms. Finn to wait until the case was completed to be paid for her services.

Pet’r’s Mot. at 1. Petitioner also stated that the claim was brought in good faith and upon

reasonable basis because “the Court’s ruling [that D.B. did not suffer a Table injury] did not

deprive Petitioner with a good faith basis for their [sic] claim since the court permitted them [sic]

to proceed with a cause in fact theory.” Id. at 2. Petitioner submitted an invoice of fees incurred.

Petitioner filed a motion to substitute counsel on February 27, 2014. The motion was

granted, and Robert Krakow was substituted as attorney of record.

Respondent filed her Response to Motion for Interim Payment of Attorneys’ Fees on

March 7, 2014, objecting to petitioner’s motion on three bases: (1) petitioner has not established

a reasonable basis for his claim or the manner in which Ms. Finn pleaded the claim; (2) an award

of interim fees at this juncture is inappropriate; (3) the amount Ms. Finn seeks in fees is

unreasonable. Respondent argues that the amount of fees requested is unreasonable because Ms.

Finn’s hourly rate and her paralegal’s hourly rate are both excessive, and current counsel will be

required to duplicate most of Ms. Finn’s efforts.

Petitioner filed a reply on March 17, 2014. Petitioner argues that there is a reasonable

basis to support his claim because medical records have been filed, which support an allegation

that the vaccines caused in fact petitioner’s injuries. He also argues that case law supports an

award of interim fees. He argues that the amount of fees requested is justified by Ms. Finn’s and

her paralegal’s experience in vaccine litigation.

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This matter is now ripe for adjudication.

DISCUSSION

I. Entitlement to Fees Under the Vaccine Act

Under the Vaccine Act, a special master or the Court of Federal Claims may award fees

and costs for an unsuccessful petition if “the petition was brought in good faith and there was a

reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e)(1)

(2006); Cloer v. Sec’y of HHS, 133 S. Ct. 1886, 1893 (2013).

“Good faith” is a subjective standard. Hamrick v. Sec’y of HHS, No. 99-683V, 2007 WL

4793152 at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in “good faith” if he or she

holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS, No. 99-544V,

2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioners are “entitled to a

presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (Fed. Cl. 1996).

“Reasonable basis” is not defined in the Vaccine Act or Program rules. It has been

determined to be an “objective consideration determined by the totality of the circumstances.”

McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 303 (Fed. Cl. 2011). In determining reasonable

basis, the court looks “‘not at the likelihood of success [of a claim] but more to the feasibility of

the claim.’” Turner, 2007 WL 4410030, at *6 (citing Di Roma v. Sec’y of HHS, No. 90-3277V,

1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). Factors to be considered include

factual basis, medical support, jurisdictional issues, and the circumstances under which a petition

is filed. Turner, 2007 WL 4410030, at *6–*9. Traditionally, special masters have been “quite

generous” in finding reasonable basis. Turpin v. Sec’y of HHS, No. 99-564V, 2005 WL

1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); see also Austin v. Sec’y of HHS, 10-362V,

2013 WL 659574, at *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“The policy behind the Vaccine

Act’s extraordinarily generous provisions authorizing attorney fees and costs in unsuccessful

cases—ensuring that litigants have ready access to competent representation—militates in favor

of a lenient approach to reasonable basis.”). Special masters have found reasonable basis to file

a claim absent medical records or opinions supporting vaccine causation. See Austin, 2013 WL

659574, at *8; Hamrick, 2007 WL 4793152.

II. Interim Fee Awards are Appropriate Under the Vaccine Act

The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act

in Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1352 (Fed. Cir. 2008). The

Federal Circuit again found interim fee awards appropriate under the Vaccine Act in Shaw v.

Secretary of Health and Human Services, 609 F.3d 1372 (Fed. Cir. 2010). Subsequently, a

number of judges and many special masters have found interim fee awards permissible under

various circumstances. See, e.g., Woods v. Sec’y of HHS, 105 Fed. Cl. 148, 154 (Fed. Cl. 2012)

(Judge Williams affirmed the special master’s award of interim fees and suggested that when

counsel withdraws, and it is unknowable how long case resolution might take, an interim award

may be appropriate); Friedman v. Sec’y of HHS, 94 Fed. Cl. 323, 334 (Fed. Cl. 2010) (Judge

Damich found that the statute permits interim fee awards and that the special master acted within

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his discretion in choosing not to award interim fees); Doe/11 v. Sec’y of HHS, 89 Fed. Cl. 661,

668 (Fed. Cl. 2009) (Judge Williams reversed the special master’s denial of interim fees); Bear v.

Sec’y of HHS, No. 11-362V, 2013 WL 691963, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2013)

(Special Master Hastings awarded interim fees over respondent’s objection in a case where

petitioner’s counsel was going to withdraw, and the petition had been pending for more than 19

months); Lumsden v. Sec’y of HHS, No. 97-588, 2012 WL 1450520, at *6 (Fed. Cl. Spec. Mstr.

Mar. 28, 2012) (Special Master Vowell awarded interim fees in an autism case over respondent’s

objection when petitioner’s attorney was withdrawing from the case); Edmonds v. Sec’y of HHS,

No. 04-87V, 2012 WL 1229149, at *13 (Fed. Cl. Spec. Mstr. Mar. 22, 2012) (Then-Chief

Special Master Campbell-Smith awarded interim fees over respondent’s objection in an autism

case in which petitioner’s counsel was about to withdraw); Dudash v. Sec’y of HHS, No. 09-

646V, 2011 WL 1598836, at *6 (Fed. Cl. Spec. Mstr. Apr. 7, 2011) (Special Master Moran

found an award of interim fees appropriate); Burgess v. Sec’y of HHS, No. 07-258V, 2011 WL

159760, at *2 (Fed. Cl. Spec. Mstr. Jan. 3, 2011) (Former Special Master Lord awarded interim

attorneys’ fees in a case where petitioners were soon to be represented by other counsel).

III. Interim Fees are Appropriate in This Case

In Avera, the Federal Circuit held that while interim fees are not banned by the statute,

they were not appropriate in that case because appellants only sought interim fees pending

appeal. 515 F.3d at 1352. The Federal Circuit stated, “Interim fees are particularly appropriate

in cases where proceedings are protracted and costly experts must be retained.” Id. In denying

an interim fee award, the Federal Circuit reasoned, “The amount of fees here was not substantial;

appellants had not employed any experts; and there was only a short delay in the award pending

the appeal.” Id.

In Shaw, the Federal Circuit clarified that “where the claimant establishes that the cost of

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

proper for the special master to award interim attorneys’ fees.” 609 F.3d at 1375. The Court of

Federal Claims and several special masters have found an interim fee award appropriate when

petitioner’s counsel withdraws from the case. See Woods, 105 Fed. Cl. at 154; Bear, 2013 WL

691963 at *5; Lumsden, 2012 WL 1450520 at *6; Edmonds, 2012 WL 1229149 at *13; Burgess,

2011 WL 159760 at *2.

a. Good Faith & Reasonable Basis

Petitioner is entitled to a presumption of good faith, and respondent does not contest that

the petition was filed in good faith. There is no evidence that this petition was brought in bad

faith; therefore, the undersigned finds that the good faith requirement is present.

In contrast, respondent does contest that this petition has a reasonable basis. Respondent

asserts that petitioner has the burden to affirmatively demonstrate reasonable basis. McKellar,

101 Fed. Cl. at 305. She argues that Ms. Finn had no reasonable basis to plead a Table injury

and even admitted herself in the initial status conference that she had miscalculated the timing of

the onset of D.B.’s first seizure. Resp. at 4. Respondent further argues that the record only

supports the fact that D.B. had a benign febrile seizure four days after his vaccination in the

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context of pneumonitis, and that there is no evidence of any residual effects of that seizure. Id.

Respondent further notes that the record is incomplete, given that medical records are still

outstanding. Id.

Petitioner asserts that he has met this burden to demonstrate reasonable basis by filing

medical records. Pet’r’s Resp. at 3. He states that there is still a plausible causation-in-fact case

even though it has been established that there was no Table injury. Id. at 3–4.

Petitioner has filed medical records showing that D.B. received Hepatitis A, Varicella,

and MMR vaccinations on September 17, 2010, at around 9:30 a.m. Med. recs. Ex. 2, at 4–5.

The medical records show that on September 21, 2010, at or around 1:37 p.m., approximately

100 hours after receiving MMR vaccine, D.B. had a febrile seizure in the context of 104-degree

fever. Med. recs., Ex. 3, at 6–7. He was diagnosed with pneumonitis. Id. at 6. Following the

seizure, D.B. had a speech defect for which he received private speech therapy. Med. recs. Ex.

4, at 10. D.B. visited the emergency room on June 22, 2012, a year and nine months after his

first seizure, for another reported seizure. Med. recs. Ex. 5, at 7. The medical records note that

he had a fever and viral illness and a past history of febrile seizures. Id. He visited the

emergency room for seizures again in September 2012 and February 2013. Id. at 13, 23.

D.B. did not suffer encephalopathy after MMR vaccine as defined in the Vaccine Injury

Table (“Table”). See 42 C.F.R. § 100.3 (2011). Neither D.B.’s symptoms nor the timing of his

symptoms meet the Table definition. The timing of D.B.’s febrile seizure does not fall within the

“5–15 days” onset outlined in the Table. 42 C.F.R. § 100.3(a)(III)(B). Furthermore, the medical

records do not reflect that he had a “significantly decreased level of consciousness persist[ing]

beyond 24 hours” following his first febrile seizure on September 21, 2010. 42 C.F.R. §

100.3(b)(2)(i)(A).

However, even though Ms. Finn erroneously pleaded a Table injury in the petition, she

also pleaded a causation-in-fact theory, contrary to respondent’s assertion. The record is clear

that D.B. received vaccinations, suffered a seizure four days later, experienced speech delay after

his first seizure, and suffered subsequent seizures. D.B.’s first seizure occurred in the context of

a fever and pneumonitis. D.B.’s fever could have been caused by his pneumonitis or by either of

his vaccinations. The Federal Circuit has ruled that a vaccination need not be the sole cause of a

vaccine injury—a petitioner may recover if the vaccine was a “substantial factor” in causing a

vaccine injury. See Shyface v. Sec’y of HHS, 165 F.3d 1344 (Fed. Cir. 1999) (finding that DTP

vaccination was a “substantial factor” because the vaccine in conjunction with an E.coli infection

caused high fever and death). Thus, the undersigned finds there was a reasonable basis to file

the petition even though the records show D.B.’s seizure occurred in context of a fever and

pneumonitis, since the vaccinations still may have been a substantial factor in causing the

seizure.

Moreover, the petition was filed five days prior to the expiration of the three-year statute

of limitations. Claims filed near the expiration of the status of limitations have traditionally

received the most lenient treatment when analyzing reasonable basis. See Austin, 2013 WL

659574, at *9. (“[S]pecial masters have recognized that the ability to investigate adequately a

claim is constrained by the need to file quickly to preserve the claim, and have found the balance

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between these competing obligations favors filing.”). Id. Reasonable basis that exists in the

early stages of a case, especially when a petition is filed quickly in order to comply with the

statute of limitations, may be lost as more information is obtained. See id.; Hamrick, 2007 WL

4793152, at *7. Here, given the looming statute of limitations and the fact that petitioner’s

counsel withdrew in the early stages of the case, a lenient approach to assessing reasonable basis

is appropriate.

Thus, the undersigned finds that the facts demonstrated in the medical records combined

with the impending expiration of the statute of limitations gave Ms. Finn a reasonable basis for

filing the petition and attempting to find an expert to support petitioner’s allegations. An award

of reasonable attorneys’ fees is merited.

b. Protracted Proceedings

Additionally, interim attorneys’ fees are appropriate because waiting for the conclusion

of the case would place an undue hardship on petitioner. The petition has been pending for

almost a year. Petitioner’s counsel, Mr. Krakow, is currently seeking an expert report, which is

due October 15, 2014. This case could conceivably proceed to hearing, in which case it might be

months to years before a damages decision is issued.

Respondent contends that petitioner himself, as opposed to counsel, must incur undue

hardship to justify the payment of interim fees. However, as previously mentioned, many special

masters have found that the withdrawal of counsel can constitute undue hardship. See Woods,

105 Fed. Cl. at 154; Bear, 2013 WL 691963 at *5; Lumsden, 2012 WL 1450520 at *6; Edmonds,

2012 WL 1229149 at *13; Burgess, 2011 WL 159760 at *2.

The undersigned rejects respondent’s objection to an award of interim fees and costs at

this juncture and finds an award of interim fees appropriate.

IV. Reasonableness of Requested Interim Attorneys’ Fees

The Federal Circuit has approved the lodestar approach to determine reasonable

attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1347. The lodestar

approach involves a two-step process. First, a court determines an “initial estimate . . . by

‘multiplying the number of hours reasonably expended on the litigation times a reasonable

hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the

court may make an upward or downward departure from the initial calculation of the fee award

based on specific findings. Id. at 1348.

The lodestar approach requires that the reasonable hourly rate be multiplied by the

number of hours “reasonably expended on the litigation.” Avera, 515 F.3d at 1347–48

(quotation and citation omitted). Counsel must submit fee requests that include

contemporaneous and specific billing entries indicating the task performed, the number of hours

expended on the task, and who performed the task. See Savin v. Sec’y of HHS, 85 Fed. Cl. 313,

316–18 (Fed. Cl. 2008). Counsel must not include in their fee requests hours that are “excessive,

redundant, or otherwise unnecessary.” Saxton v. Sec’y of HHS, 3 F.3d 1517, 1521 (Fed. Cir.

1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special

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master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is]

reasonable for the work done.” Id. Furthermore, the special master may reduce hours sua

sponte, apart from objections raised by respondent and without providing petitioner notice and

opportunity to respond. See Sabella v. Sec’y of HHS, 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009).

Petitioner requests fees for Patricia Finn, Esq. of Piermont, New York. Petitioner filed an

invoice dating from July 2013 through January 2014. This invoice includes fees billed for Ms.

Finn and for Jessica Lucas Paradies, a paralegal. Petitioner seeks reimbursement for 14.3 hours

of work completed by Ms. Finn, billed at a rate of $420 per hour, and 16.3 hours of work

completed by Ms. Paradies, billed at a rate of $175 per hour.

a. Patricia Finn’s Hourly Rate

A reasonable hourly rate is “‘the prevailing market rate,’ 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 888). In Avera, the Federal

Circuit found that in Vaccine Act cases, a court should use the forum rate, i.e., the District of

Columbia rate, in determining an award of attorneys’ fees. Id. at 1349. At the same time, the

court adopted the Davis County exception to prevent windfalls to attorneys who work in less

expensive legal markets. Id. (citing Davis Cnty. Solid Waste Mgmt. & Energy Recovery Special

Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In cases where the

bulk of the work is completed outside the District of Columbia and there is a “very significant

difference” between the forum hourly rate and the local hourly rate, the court should calculate an

award based on local hourly rates. Id. (finding the market rate in Cheyenne, Wyoming to be very

significantly lower than the market rate in Washington, DC). The Davis County exception does

not apply when the forum rates are lower than an attorney’s local rate. Id.; Rodriguez v. Sec’y of

HHS, 2009 WL 2568468, at *19 (Fed. Cl. Spec. Mstr. July 27, 2009).

Petitioner submits that his counsel, Ms. Finn, should be compensated at hourly rates of

$420 per hour. He submits this rate is appropriate because Ms. Finn practices in an affluent

suburb of New York City and has ten years of experience practicing law, with eighty percent of

her cases involving vaccine injury and vaccine exemption. Pet’r’s Resp. at 5–6.

Respondent contends that Ms. Finn’s experience does not merit a rate of $420 per hour.

Respondent compares Ms. Finn to other attorneys with greater experience who were awarded

forum rates in recent years. For example, John F. McHugh, who has more than forty years of

legal experience and over ten years of Vaccine Program experience, was awarded $340 per hour

for work done in 2010 and 2011. Rodriguez v. Sec’y of HHS, No. 06-559V, 2013 WL 1189451,

at *17 (Fed. Cl. Spec. Mstr. Mar. 1, 2013); Garcia v. Sec’y of HHS, No. 07-286V, 2011 WL

6941702, at *7 (Fed. Cl. Spec. Mstr. Dec. 13, 2011). Respondent contends that due to her lesser

experience, Ms. Finn should be paid significantly less than the $340 hourly rate awarded to Mr.

McHugh.

Respondent also discusses other recent cases where special masters have awarded forum

rates. In 2009, Special Master Moran stated the forum rate range for attorneys with more than

ten years of experience was $250–$375 per hour. Mastias v. Sec’y HHS, No. 99-697V, 2009

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WL 1838979, at *25 (Fed. Cl. Spec. Mstr. June 12, 2009), aff’d, 654 F.3d 1283 (Fed. Cir. 2011).

In 2011, the undersigned found that a forum rate for attorneys in 2006–11 was between $275 and

$360 per hour, and awarded an attorney with 13 years of experience and no previous Vaccine

Program experience $256.00 to $293.00 for work done from 2005 to 2009. Carcamo v. Sec’y of

HHS, No. 07-483V, 2011 WL 2413345, at *5 (Fed. Cl. Spec. Mstr. May 20, 2011).

The undersigned finds that petitioner’s counsel is entitled to the forum rate in

Washington, DC, rather than the local geographic hourly rate in New York City or its suburbs.

Avera, 515 F.3d at 1349. In accordance with the Davis County exception, the local rate is

applied when it is “very significantly lower” than the forum rate in order to prevent windfalls to

attorneys. Id. Hourly rates in New York City and its suburbs are not “very significantly lower”

than Washington, DC rates. Rather, Ms. Finn is requesting a rate of $420 per hour, which is

higher than or at least at the high end of the forum rate range. The reasoning of the Davis

County exception, to prevent windfalls to attorneys in markets where hourly rates are

significantly lower than the forum rate, does not apply when the local rate is higher than the

forum rate. See Rodriguez v. Sec’y of HHS, No. 06-559V, 2009 WL 2568468, at *15 (Fed. Cl.

Spec. Mstr. Jul. 27, 2009), aff’d, 91 Fed. Cl. 453 (Fed. Cl. 2010); aff’d, 632 F.3d 1381 (Fed. Cir.

2011) (finding Mr. McHugh, an attorney practicing in New York City, did not merit a “higher

cost” exception to the forum rate and awarding him a forum rate of $310–335). Thus, Ms. Finn

merits a forum rate commensurate with her experience, reputation, and skill.

Two recent decisions have awarded Ms. Finn an hourly rate of $300–$310 per hour for

work done between 2010 and 2014. DiMatteo v. Sec’y of HHS, No. 10-566V, 2014 WL

1509320, at *6 (Fed. Cl. Spec. Mstr. March 27, 2014) (awarding $300 per hour for the period of

2010–12); Rowan v. Sec’y of HHS, No. 10-272V, 2014 WL 3375588, at *3 (Fed. Cl. Spec. Mstr.

June 19, 2014) (awarding $300 per hour for 2010–11 and $310 per hour for 2012–14). While

these decisions are not binding on the undersigned, their reasoning is persuasive. This rate is

comparable to the forum rates the undersigned found in 2011. Carcamo, 2011 WL 2413345.

After reviewing Ms. Finn’s years of experience, reputation, and skill, and comparing this

with other attorneys with comparable factors, the undersigned finds that an hourly rate of $310

for 2013 to 2014 is reasonable.

b. Jessica Lucas’s Hourly Paralegal Rate

Petitioner seeks an hourly rate of $175 for work performed by Jessica Lucas Paradies.

Respondent contends this rate is unsubstantiated and too high for what appears to be paralegal

tasks. Resp. at 12. Respondent cites Garcia, 2011 WL 6941702, at *12, in which the petitioner

was awarded a paralegal rate of $95 for work completed in lower Manhattan. Respondent states

that while Ms. Paradies has a juris doctor, the record does not indicated that she is licensed to

practice law in any state. Resp. at 12. Petitioner states that a rate of $175 is justified based on

Ms. Paradies’ J.D. and her five years of experience in vaccine injury litigation. Pet’r’s Resp. at 6.

A review of the invoice shows that Ms. Paradies performed tasks consistent with standard

paralegal duties (requesting and reviewing medical records, communicating with the client, and

drafting affidavits). The undersigned and other special masters in the Vaccine Program have

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determined that paralegal rates of up to $125 per hour are reasonable forum rates. See Yang v.

Sec’y of HHS, No. 10-33V, 2013 WL 4875120, at *4 (Fed. Cl. Spec. Mstr. Aug. 22, 2013);

Brown v. Sec’y of HHS, No. 09-426V, 2012 WL 952268, at *3 (Fed. Cl. Spec. Mstr. Feb. 29,

2012); Broekelschen v. Sec’y of HHS, No. 07-137V, 2011 WL 2531199, at *3 (Fed. Cl. Spec.

Mstr. June 3, 2011), aff’d, 102 Fed. Cl. 719, 723 (Fed. Cl. 2011). Two special masters recently

found an hourly rate of $100 to $110 for Ms. Paradies to be reasonable. Dimatteo, 2014 WL

1509320, at *6 (awarding Ms. Paradies $110 per hour for 2010–13); Rowan, 2014 WL 3375588,

at *4 (awarding Ms. Paradies $100 per hour for 2012–14).

After reviewing Ms. Paradies’ experience and comparing this with other paralegal rates,

the undersigned finds that an hourly rate of $100 for 2013 to 2014 is reasonable.

c. Reasonable Hours Expended

Respondent argues that the hours expended in this case are unreasonable since “new

counsel will be required to duplicate most of previous counsel’s efforts . . . [b]ecause previous

efforts have not advanced this case substantively before the Court.” Resp. at 12.

Ms. Paradies spent 16.3 hours on the case, primarily communicating with petitioner and

obtaining and reviewing medical records. Ms. Finn spent 14.3 hours communicating with

petitioner, drafting the petition, and preparing for and participating in the initial status

conference. During the time Ms. Finn acted as petitioner’s counsel, she filed the petition, seven

exhibits of medical records, petitioner’s affidavit, and an amended petition. The parties and the

court will continue to use the previously filed medical records, affidavit, and amended petition as

new counsel represents petitioner. Additionally, the time Ms. Finn spent during the initial status

conference was not wasted, as the undersigned memorialized the conference with an Order that

can be of use to new counsel as he proceeds with this case. Accordingly, the previous efforts of

counsel are not redundant as respondent suggests. Based on her experience in the Program, the

undersigned finds the number of hours expended by Ms. Finn and Ms. Paradies to be reasonable.

CONCLUSION

The undersigned finds an award of interim fees appropriate. In sum, undersigned awards

to petitioner the following amount for attorneys’ fees:

Attorney’s fees for Patricia Finn:

Requested: 14.3 hours at $420 per hour = $6,006.00

Awarded: 14.3 hours at $310 per hour = $4,433.00

Paralegal fees for Jessica Lucas:

Requested: 16.3 hours at $175 per hour = $2,852.50

Awarded: 16.3 hours at $100 per hour = $1,630.00

Total fees:

Requested: $8,858.50

Awarded: $6,063.00

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The undersigned finds this amount to be reasonable and awards $6,063.00, representing

reimbursement for interim attorneys’ fees and costs. The award shall be in the form of a check

made payable jointly to petitioner and Patricia Finn, Esq. in the amount of $6,063.00.

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

the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

Dated: September 11, 2014 s/ Laura D. Millman

Laura D. Millman

Special Master

2

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or

jointly, filing a notice renouncing the right to seek review.

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