The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-796V
Filed: March 15, 2017
* * * * * * * * * * * * * * * * UNPUBLISHED
KATHLEEN HARMAN, *
* Special Master Gowen
Petitioners, *
*
v. * Attorneys’ Fees and Costs;
* Reasonable Basis
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Michael A. Baseluos, San Antonio, TX, for petitioner.
Ann D. Martin, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 15, 2013, Kathleen Harman (“petitioner”) filed a petition pro se pursuant to
the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to 34 (2012).
Petitioner alleged that as a result of receiving an influenza (“flu”) vaccine on October 15 or 16,
2010, she developed systemic toxicity injuries. Petition at Preamble. Attorney Sean Greenwood
was substituted as petitioner’s counsel on November 20, 2013. Following unsuccessful efforts to
obtain an expert report, Mr. Greenwood withdrew from the case on May 18, 2015. Petitioner
proceeded pro se until April 19, 2016, when attorney Michael Baseluos was substituted as
petitioner’s attorney. On petitioner’s motion, a Decision dismissing the petition for insufficient
proof was issued January 30, 2017. Petitioner filed a motion for attorneys’ fees and costs on
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, 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 (2012)). As provided by Vaccine Rule 18(b), each party
has 14 days within which to request redaction “of any information furnished by that party: (1) that is a
trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C.A. § 300aa.
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February 21, 2017. Petitioner’s motion for final attorneys’ fees and costs requests $8153.50 in
attorneys’ fees and $3,549.95 in attorneys’ costs, for a total request of $11,703.45 in attorneys’
fees and costs. Pet. Mot. at 2. In accordance with General Order #9, petitioner states that she did
not incur any costs in this matter. Pet. Mot., Supplement (“Supp.”) B, Attachment (“Att.”) 2.
Petitioner also requests the fees and costs for petitioner’s former attorney, Mr. Greenwood, as set
forth in the August 30, 2016, interim fee motion, ruling on which was deferred until the
conclusion of the case. Pet. Mot. at 2. Mr. Greenwood requests $14,657.50 in attorneys’ fees
and $2,631.02 in attorneys’ costs, for a total request of $17,288.52 in attorneys’ fees and costs.
Pet. Interim Mot., Att. 1, at 1. Respondent filed a response on March 7, 2017, stating that
respondent “recommends that the Special Master exercise his discretion and determine a
reasonable award for attorneys’ fees and costs.” Respondent’s (“Resp.”) Response at 3 (internal
footnote omitted).
I. Good Faith and Reasonable Basis
Section 15(e) of the Vaccine Act governs attorneys’ fees. 42 U.S.C. § 300aa-15(e).
When awarding compensation on a petition, the special master “shall also award” reasonable
attorney’s fees and costs. Id. at §15(e)(1)(A)-(B). Even when compensation is not awarded, the
special master “may award” reasonable attorneys’ fees and costs “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.” Id. at § 15(e)(1).
In his response, respondent states that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case,” and the undersigned finds that the case
was brought in good faith and had a reasonable basis. Resp. Response at 3. “Good faith” is a
subjective standard and petitioners are entitled to a presumption of good faith. Hamrick v. Sec’y
of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov.
19, 2007); Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). With regard
to reasonable basis, the Court of Federal Claims has held that the statutory language of 42 U.S.C.
§ 300aa-15(e)(1)(B) grants the special master “maximum discretion in applying the standard.”
Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 402 (Fed. Cl. 2012). Many special
masters and Court of Federal Claims judges have determined that the reasonable basis
requirement is an “objective consideration determined by the totality of the circumstances.”
McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl. 2011); Chuisano,
116 Fed. Cl. at 286. In determining reasonable basis, the court looks “not at the likelihood of
success, but more to the feasibility of the claim.” Di Roma v. Sec’y of Health & Human Servs.,
No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Petitioner must
furnish “some evidence” supporting the claims in the petition, but the evidentiary showing
required is less than a preponderance of the evidence. Chuisano v. Sec’y of Health & Human
Servs., No. 07-452V, 2013 WL 6234660, at *1, *13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013).
Based on the totality of the circumstances, I find that a reasonable basis existed
throughout the pendency of this petition. Petitioner’s list of alleged vaccine-related symptoms
was lengthy, but based on petitioner’s affidavit and medical records, it did appear that petitioner
experienced flu-like symptoms in close temporal proximity following her vaccination. Petitioner
visited the emergency department on October 17, 2010, with complaints of “flu like symptoms.”
Pet. Ex. 3 at 3. The record stated that “[s]ome of her symptoms were likely reaction from flu
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vaccination,” and she was diagnosed with a urinary tract infection. Id. On October 28, 2010,
petitioner visited her primary care physician, Dr. Kristyn Fagerberg, with ongoing complaints of
fever, nausea, headache, and oliguria, and the assessment was “likely rxn to flu shot.” Pet. Ex. 4
at 1. Dr. Fagerberg completed a VAERS report describing petitioner’s fever, child, nausea,
headaches, rash, decreased appetite, and oliguria, starting approximately two days after receiving
the flu shot. Pet. Ex. 6. Thus, petitioner’s medical records contained some evidence that
petitioner experienced an adverse reaction as a result of her vaccination. For a petition to have a
reasonable basis, petitioner must furnish “some evidence” supporting the claims in the petition,
but the evidentiary showing required is less than a preponderance of the evidence. Chuisano v.
Sec’y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at *1, *13 (Fed. Cl. Spec.
Mstr. Oct. 25, 2013). The number and complexity of petitioner’s post-vaccination symptoms
necessitated thorough review by counsel and an expert in order to sort out which of petitioner’s
symptoms may have been vaccine-related.
Both of petitioner’s counsel had a reasonable basis for pursuing the claim to the points
that they did. At the time Mr. Greenwood withdrew as counsel, petitioner had been experiencing
extenuating personal situations that prevented her from communicating fully with counsel or
retaining an expert. See Order, filed Sept. 1, 2015. Once petitioner’s personal situation
resolved, she retained Mr. Baseluos, who worked to clarify her symptoms and retain an expert.
Both counsel consulted with potential experts and withdrew at a sensibly early time when it
became apparent they could not succeed. Several status conferences were held with Ms. Harman
herself during the interval when she proceeded pro se, and she was very insistent on a link
between her problems and the vaccine. It was important for her to be advised by a lawyer and a
consulting expert, which was done by virtue of Mr. Baseluos’ work on the case. After thorough
review by Mr. Baseluos and a consulting expert of issues raised by the undersigned, it became
apparent that causation would be too difficult to prove. A reasonable basis existed for the
prosecution of this petition, and the undersigned will award reasonable attorneys’ fees and costs.
II. Reasonable Attorneys’ Fees and Costs
a. Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
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(1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in
[her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). A special master need not engage
in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v.
Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Just as “[t]rial court
courts routinely use their prior experience to reduce hourly rates and the number of hours
claimed in attorney fee requests . . . [v]accine program special masters are also entitled to use
their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521 (citing Farrar v.
Sec'y of Health & Human Servs., 1992 WL 336502 at * 2-3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)).
i. Hourly Rates
Mr. Baseluos
Petitioner requests the following hourly rates for Mr. Baseluos:
2016: $265
2017: $275
Paralegal tasks: $125
Pet. Mot. at 1; See generally Pet. Mot., Supp. A, Att. 1. The requested rates are consistent with
the rates awarded to Mr. Baseluos in several other recent cases, and the undersigned finds them
reasonable here. See Brown v. Sec’y of Health and Human Servs., No. 16-605V, 2016 WL
8258521, at *1 (Fed. Cl. Dec. 20, 2016); Thompson v. Sec'y of Health & Human Servs., No. 13-
005V, 2015 WL 5542520, at *1 (Fed. Cl. Aug. 11, 2015)).
Mr. Greenwood
Petitioner requests a rate of $325 per hour for Mr. Greenwood for work performed from
October 2013 to June 2016. Pet. Interim Mot., Att. 1, at 5; see generally Pet. Interim Mot., Supp.
B, Att. 3. Mr. Greenwood has approximately 26 years of experience. Pet. Interim Mot., Att.1, at
4. In Garrett v. Sec’y of Health & Human Servs., No. 14-16V, 2014 WL 6237632, at *6 (Fed.
Cl. Spec. Mstr. Oct. 27, 2014), the special master found that Mr. Greenwood was entitled to
forum rates, and awarded him a rate of $300 per hour for work performed in 2013 and 2014.
However, the undersigned finds it reasonable to award Mr. Greenwood a rate of $325 per hour
for the work performed on this case. In Garrett, the rate of $300 per hour represented a partially
negotiated rate, as petitioners noted that Mr. Greenwood’s rate was reduced to $300 per hour
after respondent objected to a higher hourly rate. 2014 WL 6237632, at *6. In addition, in the
time since Garrett, the undersigned set reasonable experience-based forum rate ranges in
McCulloch v. Sec;y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). Pursuant to McCulloch, a reasonable 2014-2015 range for an attorney with
more than 20 years of experience is $350 to $425 per hour. Thus Mr. Greenwood’s awarded
forum rate in Garrett was well below a reasonable McCulloch rate, as is the requested rate here
of $325 per hour. The undersigned finds Mr. Greenwood’s requested rate of $325 per hour
reasonable for work performed from 2013 to 2016.
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ii. Hours
Mr. Baseluos
Petitioner requests compensation for 32 hours of work performed by Mr. Baseluos and
45.10 hours of work performed by Mr. Greenwood. Pet. Mot. at 1; Pet. Interim Mot., Att.1, at 4;
Pet. Interim Mot., Supp. B, Att. 3. Petitioner submitted sufficiently detailed billing statements
for both counsel, which describes the services performed. See generally Pet. Mot., Supp. A, Att.
1; Pet. Interim Mot., Supp. B, Att. 3. On review of counsel’s billing records, the undersigned
finds the hours expended reasonable.
b. Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
$3,549.95 in attorneys’ costs for Mr. Baseluos. The requested costs primarily include the cost of
Dr. Pekoe’s limited review of the case (10 hours at $350 per hour). See Pet. Mot. at 1-2; Pet.
Mot., Supp. A., Att. 1, at 7; Pet. Mot., Supp. C, Att. 3. The undersigned finds Mr. Baseluos’
requested costs reasonable.
Petitioner requests $2,631.02 in attorneys’ costs for Mr. Greenwood. Pet. Interim Mot.,
Att. 1, at 1. These costs consisted of $950.00 for a MedQuest3 retainer, $1550.00 for an expert
review through MedQuest, and $131.02 for medical records from Texas health Resources for
invoice number 58590. Pet. Interim Mot., Supp. B, Att. 3, at 6; Pet. Interim Mot., Supp. C, Att.
4; Supp. Documentation, filed Mar. 11, 2017. The undersigned finds Mr. Greenwood’s
requested costs reasonable.
III. Conclusion
The undersigned awards attorneys’ fees and costs as follows:
(1) A lump sum of $11,703.45 in the form of a check jointly payable to petitioner
and to petitioner’s attorney, Michael Baseluos, for attorneys’ fees and costs; and
(2) A lump sum of $17,288.52 in the form of a check payable jointly to petitioner
and petitioner’s former attorney, Sean Greenwood, for attorneys’ fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance herewith.4
3
MedQuest is an organization that finds and arranges the services of medical experts. Billing for the
experts is typically done through MedQuest.
4
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
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