Toes v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION

AUG 25 2017

OSM

U.S. COURT OF FEDERAL CLAIMS

]n tbe mlntteb ~tates <!Court of jfeberal <!Claims

OFFICE OF SPECIAL MASTERS

Filed: July 31 , 2017

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

CONNOR TOES, * No. 16-819V

*

Petitioner, * Special Master Sanders

*

v. *

*

SECRETARY OF HEALTH * Interim Attorneys' Fees and Costs;

AND HUMAN SERVICES, * Reasonable Basis.

*

Respondent. *

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

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Christine M. Becer, United States Department of Justice, Washington, DC, for Respondent.

DECISION GRANTING INTERIM ATTORNEYS' FEES AND COSTS 1

On July 11, 2016, Connor Toes ("Petitioner") filed a petition for compensation under the

National Vaccine Injury Program, 42 U.S.C. § 300aa-10 to -34 2 (the "Vaccine Act" or

"Program"). Pet., ECF No. 1. Petitioner alleged that he developed "stomach pains, chronic

fatigue, headaches and weight loss due to a severe adverse reaction he suffered after receiving

the Gardasil, varicella and Menactra vaccinations on July 11 , 2013 [and July 18, 2013]." Pet. 1-

2.

On April 24, 2017, Petitioner's counsel moved to withdraw from the claim. Mot.

Withdraw, ECF No. 28. On the same day, Petitioner moved for an award of interim attorneys'

fees and costs. Mot. Att'ys' Fees, ECF No. 27. Respondent replied to Petitioner's fees motion

on May 11, 2017, and argued that "any award of fees and costs is inappropriate in this case

because the petition lacked a reasonable basis, as required by 42 U.S.C. § 300aa-15(e)(l)(B)."

1

This decision shall be posted on the website of the United States Court of Federal Claims, in

accordance with the E-Government Act of2002, 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

l 8(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

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 (2012).

Resp. I, ECF No. 30. Petitioner filed a reply and argued that "evidence indicates that the claim

was feasible" because Petitioner experienced diminished health after vaccination. Reply 6, ECF

No. 32.

After careful consideration, the undersigned has determined that at the time of filing, there

was a reasonable basis for the Petitioner's claim that weakened as the case developed and

additional evidence became available. For the reasons set forth below, Petitioner's motion for

interim fees and costs is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Medical Records

Petitioner had just turned 16 years-old when his pediatrician, Dr. Fred Barash,

administered varicella, Gardasil, and Menactra vaccines in July of2013. Pet'r' s Ex. 2 at 2, ECF

No. 7-2; Pet'r' s Ex. 4 at 3, ECF No. 7-4; Pet'r's Ex. 12 at 1, ECF No. 11-1. Records from Dr.

Barash's office3 detail Petitioner' s medical history, which included prescriptions of Epiduo and

Focalin4 for acne and attention deficit disorder, respectively. Pet'r's Ex. 3 at 3, ECF No. 7-3.

Petitioner remained on Focalin following his vaccinations, and there is no evidence Petitioner

visited a medical professional for any vaccine-related complaints or injuries during the remaining

weeks of July or the entirety of August. See generally Pet'r' s Ex. 3; Pet'r' s Ex. 4. Dr. Barash's

records from August of 2013 include a notation indicating that Petitioner's prescription for

Epiduo was renewed. Pet'r's Ex. 3 at 4.

Petitioner also filed medical records from Avon Old Farms School Health Centers that

began with the school year in September of 2013. Pet' r' s Ex. 4. Petitioner' s Physical Exam for

New Students revealed normal system findings and listed cat and pollen allergies, a history of

asthma, and a prescription for Focalin. Id. at 1. The School Health Center records also included

dispensary notes that documented Petitioner's regular visits beginning in September of2013 and

continuing through May of2014. See generally id. On September 28, 2013, Petitioner was

treated for sinus pressure and headaches. Id. at 4. Petitioner took ibuprofen for his pain and

reported congestion and vomiting. Id. Petitioner also complained of headaches in November

and December of 2013, and January and February of 2014. Id. at 6.

Prior to his vaccinations in 2013, Petitioner had been seeking treatment for face and back

acne and other skin problems with Sadick Dermatology. Pet' r's Ex. 10, ECF No. 7-10.

Available medical records from Sadick begin in 2012 and continue through 2015. Id.

Petitioner went to Sadick Dermatology on January 4, 2014 for acne treatment. Id. at 7.

Although Petitioner complained of headache to Dr. Barash during examinations in December of

3

The records filed by Petitioner from Dr. Barash' s office were the physician' s hand-written

notes, which were sometimes difficult to read.

4

Focalin XR is a Central Nervous System (CNS) stimulant indicated for the treatment of

Attention Deficit Hyperactivity Disorder (ADHD) in patients aged 6 years and older.

Physicians ' Desk Reference ("PDR") 2239 (66th ed. 2012).

2

2013 and January of2014, he denied headaches to medical professionals at Sadick. Pet'r's Ex. 4

at 5; Pet' r's Ex. I 0 at 7.

When Petitioner experienced congestion and a prolonged headache that lasted two days,

he returned to his pediatrician on March 1, 2014. Pet'r's Ex. 3 at 5. Dr. Barash renewed

Petitioner's prescription for Focalin. Id. On September 12, 2014, Petitioner saw Dr. Barash with

complaints of photophobia, diarrhea, nausea, and headache. Id. Dr. Barash diagnosed Petitioner

with migraines. Id. On October 7, 2014, Petitioner again sought treatment from Dr. Barash for

severe migraines. Id. Dr. Barash noted "[the] need to discontinue Focalin in face of severe

migraines," but renewed the prescription. Id. Petitioner's Focalin prescription was renewed

again by Dr. Barash on March 6, 2015. Id. Petitioner denied experiencing headaches at that

time. Id. Dr. Barash diagnosed Petitioner with otitis 5 on March 26, 2015 and prescribed

Petitioner Augmentin. Id. Petitioner's otitis persisted, and Dr. Barash renewed his prescription

on May 11, 2015. Id. Petitioner sought treatment the following day from ear, nose, and throat

physician, Dr. Michael Ditkoff, for his continued otitis. Pet'r' s Ex. 6, ECF No. 7-6. During Dr.

Ditkoff's examination, Petitioner complained of nasal congestion, sore throat and other sinus

issues, but again denied headaches or fatigue . Id. at 5. Petitioner also denied headaches during a

visit to Sadick Dermatology on June 22, 2015, and in July on the 6th and the 20th. Pet' r's Ex. 10

at 9, 11, 13.

Petitioner returned to Dr. Barash with complaints of stomach and digestion issues on

August 5, 2015. Pet' r's Ex. 3 at 5. Petitioner was referred to Dr. Anthony Celifarco of

Gastrointestinal Associates on October 16, 2015 and described a "long standing history of

intermittent abdominal pain ... over the last 2 -3 years." Pet' r' s Ex. 7 at 9, ECF No. 7-7.

Petitioner also described occasional headaches. Id. at 11. Dr. Celifarco' s records noted

Petitioner' s denial of diarrhea, vomiting, nausea, and dysphagia. Id. at 9. Dr. Celifarco' s

medical impression was that Petitioner suffered from "progressive weight loss and satiety

without any other constitutional symptoms" and performed a gastroscopy. Id. at I 0.

Petitioner saw Dr. Raphael Kellman of The Kellman Center for Integrative and

Functional Medicine, on December 29, 2015, for "fatigue, chronic infections, and cystic acne."

Pet'r's Ex. 5 at 3, ECF No. 7-5. Dr. Kellman ran several tests to measure inflammation markers

and antibody levels for specific pathogens. Id. at 1. The results revealed elevated ammonia

levels and elevated antibodies for mycoplasma, Parvovirus and Epstein-Barr Virus. Id. Dr.

Kellman noted, " the symptoms began shortly after Petitioner received multiple vaccines in

2013." Id. It should be noted that a disclaimer, similar to the one that warns "results are to be

used for research purposes or in attempt to understand ... immune, infectious or inflammatory

disorders," are repeated throughout the report. Pet'r' s Ex. 5 at 16. Dr. Kellman ultimately

5

Otitis is inflammation of the ear, often with pain, fever, hearing loss, tinnitus, and vertigo.

Dorland 's Illustrated Medical Dictionary 1338 (30th ed. 2003).

3

diagnosed Petitioner with hypothyroidism,6 autonomic neuropathy, 7 and chronic fatigue on

March 9, 2016. Id. at 19. Dr. Kellman stated, " [B]y lifestyle and diet modification [Petitioner' s]

symptoms have improved and recent blood work shows significant improvement in

inflammation markers in lab work from May 10, 2016." Id. at 1.

B. Claim Procedure and Motion to Withdraw

Petitioner filed his first set of medical records on August 3, 2016, approximately one

month after he filed his petition. Pet'r's Exs. 1-11, ECF No. 7-8. A Statement of Completion

was filed by the Petitioner on August 4, 2016. ECF Nos. 9. Respondent filed a status report on

August 25, 2016, and requested additional information to confirm Petitioner' s receipt of the

vaccines at issue. Status Rep., ECF No. 10. In response, Petitioner filed the receipts for the

Menactra and Gardasil vaccines from Manhasset Park Drug Corporation on August 26, 2016.

Pet' r's Ex. 12, ECF No. 11. Petitioner filed his amended Statement of Completion on August

30, 2016. ECF No. 12. Respondent subsequently filed his Rule 4(c) Report on October 11,

2016, and recommended the case be dismissed due to " insufficient evidence of vaccine

causation." Resp ' t's Report, ECF No. 15. A Rule 5 status conference was held on October 27,

2016, and Special Master Hamilton-Fieldman discussed the potential causation issues with

Petitioner's case. Rule 5 Order, ECF No . 16. Special Master Hamilton-Fieldman gave Petitioner

a deadline of December 29, 2016 to file an expert report and an amended petition. Id. On

December 30, 2016, Petitioner filed his first motion to extend this deadline to January 30, 2017.

Pet'r's Mot. , ECF No. 17. The case was reassigned to the undersigned who granted Petitioner's

motiononJanuary9, 2017. ECFNo.19.

On January 30, 2017, Petitioner filed his second unopposed Motion for Extension of

Time and requested until March 1, 2017 to submit an expert report and an amended Petition.

Pet'r's Mot., ECF No. 20. The undersigned granted Petitioner's motion and declared that further

extensions will not be granted without good cause. Id. Despite this warning, Petitioner missed

the March 1, 2017 filing deadline and was contacted by chambers. Informal Comm., dated Mar.

2, 2017. Petitioner consequently filed his amended petition on March 6, 2017. ECF No. 21.

Petitioner alleged in his amended petition that he suffered from autonomic dysfunction with

symptoms to include stomach pains, chronic fatigue, headaches, and weight loss, as a result of

the administration of multiple vaccines in July of201 l. Amend. Pet. 3, 7. Petitioner did not

however, file an expert report. See Docket Rep. As Petitioner failed to meet the filing deadline

with respect to the amended petition and never submitted an expert report, the undersigned

issued a Non-Compliance Order and required Petitioner to submit an expert report no later than

March 27, 2017. ECF No. 22.

On March 13, 2017, Petitioner filed his third unopposed Motion for Extension of T ime

until, "April 28, 2017 to submit an expert report." Pet' r' s Mot. , ECF No. 24. The undersigned

granted the third motion and informed Petitioner that no further extensions would be granted.

6 Hypothyroidism deficiency of thyroid activity, characterized by decrease in basal metabolic

rate, fatigue, and lethargy. Dorland's Illustrated Medical Dictionary 900 (30th ed. 2003).

7Autonomic Neuropathy is a functional disturbance or pathological change of the autonomic

nervous system. Dorland's Illustrated Medical Dictionary 1257 (30th ed. 2003).

4

Order, ECF No. 25. Four days before the expert report deadline, Petitioner filed his Motion for

Interim Attorneys ' Fees, and Petitioner's attorney filed a Motion to Withdraw. Mot. Att'ys'

Fees; Mot. Withdraw. To prevent procedural and standing issues, the undersigned ordered on

April 25, 2017, that "Mr. Downing's Motion to Withdraw as attorney will remain pending until

after the interim fees decision is issued." Order, ECF No. 29.

C. Motion for Attorneys' Fees and Costs

In his motion for interim attorneys' fees, Petitioner requested $15,820.50 in fees and

$1 ,905.24 in costs, totaling $17,725.74. Mot. Att'ys' Fees 1. Petitioner 's attorney, Mr.

Downing, requested an hourly rate of$350 for his work performed in 2015 and 2016. See

generally ECF No. 27-1. Mr. Downing increased his requested rate to $375 per hour for 2017.

Id. Mr. Downing also moved for compensation for the work of one other attorney and two

paralegals. Ms. Courtney Van Cott requested an hourly rate of $195 for her work performed in

2015 and 2016, and the paralegals, Mr. Robert Cain and Ms. Danielle Avery, both requested

hourly rates of $100 for 2016 and $135 for 2017. Id.

Respondent filed his Response to Petitioner's Motion for Interim Attorney' s Fees and

Costs on May 11, 2017. Resp., ECF No. 30. Respondent requested "the Court deny Petitioner' s

application in toto because ... the petition lacked a reasonable basis as required (under] 42

U.S.C. § 300aa-15(e) (1) (B)." Id. Respondent did not contest the good faith basis for

Petitioner' s filing. Id. However, Respondent did recommend compensation be denied for lack

of a definitive diagnosis. Id. Respondent argued that, "months and years" had passed before

Petitioner developed symptoms that are being attributed to his vaccination. Id. at 2. Respondent

argued because, "[P]etitioner' s medical records did not substantiate his claims, nor was he able

to find an expert to opine on vaccine causation," Petitioner did not have a reasonable basis for his

claim. Id. at 6.

Respondent argued that Mr. Downing failed to make basic inquiries prior to filing the

petition. Id. at 4. Respondent claimed, " [D]espite an attorney's belief in the statements of his

clients, he needs facts upon which to ground his own knowledge, information, or belief as to the

merits of his client's claim under law." Id. at 5. Respondent asserted, " [P]rior to accepting a

case, an attorney should be able to distinguish a case that has reasonable underpinnings from one

that does not. Rather than waste the court's time and efforts, an attorney should use reasoned

judgement in determining whether to accept or pursue a claim." Id.

Respondent argued further that even if the undersigned determines that there was a

reasonable basis for Petitioner to file his claim, "an award for interim fees is not appropriate."

Id. at 8. Respondent claimed that the Court of Appeals for the Federal Circuit in Avera provided

a narrow set of circumstances in which an award of interim fees would be appropriate:

"protracted proceedings, where ' costly experts must be retained, or where the petitioner had

suffered undue hardship." Id. at 9 (citing Avera v. Sec'y ofHealth & Human Servs., 515 F .3d

1343, 1352 (Fed. Cir. 2008)). Respondent posited that none of these circumstances exist in this

case. Id. Respondent further argued that Mr. Downing ' s request is "too high," and asked the

undersigned to "exercise her discretion and determine a reasonable award for attorneys' fees and

costs." Id. at 9-10.

5

In Petitioner's reply filed on May 18, 2017, Petitioner asserted that his petition was filed

with good faith and objected to Respondent's conclusion that the claim lacked a reasonable

basis. Reply at 5, ECF No. 32. Although Respondent did not argue that Petitioner's filing

lacked good faith, Petitioner asserted that his petition was filed in good faith and referred to his

"under-oath" affidavit. Id. Petitioner stated that his symptoms were consistent with a vaccine-

induced condition, and that the claim was filed with the belief that Petitioner suffered a vaccine-

related injury. Id.

Petitioner responded to Respondent's reasonable basis argument by reiterating that, "the

reasonable basis requirement is objective . . . and factors to be considered are the factual basis,

medical support, jurisdictional issues, and circumstances under which the petition is filed." Id. at

6. Petitioner referenced the medical records obtained from Dr. Barash and noted his symptoms

(i.e., wheezing, coughing, and congestion) that are consistent with a vaccine-induced reaction.

Id. at 8. Petitioner also quoted Dr. Kellman' s observation that Petitioner "had autonomic

neuropathy and symptoms began after having the vaccines at issue." Id. at 9. Petitioner further

asserted, "Dr. Kellman . . . links Mr. Toes ' s symptoms to the vaccinations at issue." Id. Finally,

Petitioner' s Reply cited autonomic testing results and articles that would support a reasonable

basis for the petition. Id. at 9-14. Petitioner argued that "both branches of the autonomic

nervous system display signs of impairment, which account for Mr. Toes' symptomology ....

[F]urthermore, autonomic dysfunction can have an insidious onset that occurs weeks or months

post-vaccination." Id. at 11.

Petitioner contested Respondent' s claims that interim fees were inappropriate and that the

fee request was "too high." Id. at 1, 12. Petitioner first argued that the fees and costs incurred in

this case created an "undue hardship" for Petitioner and Mr. Downing sufficient for an award of

interim fees. Id. at 2-4. Petitioner's Reply explains that Mr. Downing must withdraw from the

case, and Petitioner is " searching for alternative Counsel." Id. at 3. Mr. Downing's withdrawal,

combined with his firm's practice of Mr. Downing personally advancing case expenses, creates

an undue burden for Mr. Downing. Id. (citing Edmonds v. Sec '.Y of Health & Human Servs., 04-

87V, 2012 WL 1229149, at *9 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (" It is clearly incorrect to

suggest that it is not an undue hardship for a small firm to loan thousands of dollars for years.")).

Petitioner added that the factors enumerated in Avera are not exhaustive, and special masters

have "broad discretion" in awarding interim attorneys ' fees. Id. at 5 (quoting Al-Uffi v. Sec'y of

Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *9 (Fed. Cl. Spec. Mstr. Sept. 30,

2015)).

Petitioner then argued that his requested total amount is appropriate and should be

granted in full. Id. at 13-14. Petitioner's Reply suggested that Mr. Downing "would have been

willing to address any specific concerns Respondent had" regarding Mr. Downing's fee request;

however, "Respondent failed to devote a single sentence to support" his argument that Mr.

Downing's request was inflated. Id. at 13. Petitioner argued that Respondent' s position was

therefore "specious and should receive no consideration." Id. at 13. Mr. Downing requested the

total amount of $17,725.74 for attorneys' fees and costs, plus "the additional fees in having to

respond to Respondent's objection." Id. Mr. Downing filed no billing records for this additional

amount. See Docket Rep .

6

This matter is now ripe for a decision.

II. ST AND ARDS FOR ADJUDICATION

A. Reasonable Basis

The Vaccine Act permits an award ofreasonable attorneys' fees and costs if "the petition

was brought in good faith and there was reasonable basis for which the petition was bought." §

15(e)(l); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). Petitioners are presumed to have acted

in good faith in the absence of bad faith evidence. See Grice v. Sec 'y ofHealth & Human Servs.,

36Fed.Cl.114, 121 (1996).

There is no presumption of a petition's reasonable basis, however. McKellar v. Sec '.Y of

Health & Human Servs., 101 Fed. Cl. 297, 304 (2011). Reasonable basis is typically viewed as

"an objective standard determined by the 'totality of the circumstances.'" Chuisano v. United

States, 116 Fed. Cl. 276. 286 (2014) (citations omitted). This somewhat amorphous standard has

often been defined not by what is included in the record, but rather by what is lacking in cases

where reasonable basis has been found not to exist. The statute's use of the phrase "reasonable

basis for which the petition was brought" is consistent with other portions of the statute that

require the petition to be filed with evidence. See Chuisano v. Sec '.Y ofHealth & Human Servs.,

No . 07-452V, 2013 WL 6234660, at *8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot.for rev.

denied, 116 Fed. Cl. 276 (2014). Evidence that is relevant to this inquiry may include medical

records, affidavits from percipient witnesses, and opinions from retained experts. See 42 U.S.C.

§ 300aa- l l ( c). In considering the totality of circumstances, factors to be examined are '"the

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

a petition is filed." Chuisano, 116 Fed. Cl. at 288. "[T]he burden is on the petitioner to

affirmatively demonstrate a reasonable basis." McKe/lar, 101 Fed. Cl. at 305; see also Moran v.

Sec'y ofHealth & Human Servs. , No. 07-363V, 2008 WL 8627380, at *5 (Fed. Cl. Spec. Mstr.

Dec. 12, 2008) (petitioner "bears the burden of showing he is entitled" to attorneys' fees and

costs).

Typically, reasonable basis is not found when "fundamental inquiries are not made." Di

Roma v. Sec '.Y ofHealth & Human Servs., 90-377, 1993 WL 496981 at *2 (Fed. Cl. Spec. Mstr.

Nov . 18, 1993). Additionally, a case may have reasonable basis when filed , but may lose

reasonable basis during the pendency of the case. Perreira v. Sec 'y of Health & Human Servs. ,

33 F.3d 1375, 1376-77 (Fed. Cir. 1994); McNett v. Sec'y of Health & Human Servs., No. 99-

684V, 2011WL760314, at *6. (Fed. Cl. Spec. Mstr. Feb. 4, 2011). The nature and extent of

counsel's investigation into the claim's grounds, both before and after filing, is a relevant

consideration. Cortez v. Sec'y ofHealth & Human Servs., No. 09-176, 2014 WL 1604002, at *6

(Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma, 1993 WL 496981 at *2 (citing Lamb v. Sec '.Y

Health & Human Servs. , 24 Cl. Ct. 255, 258-59 (1991)).

7

B. Interim Fees Award

In Avera, the Federal Circuit stated that a special master may award fees on an interim

basis, and that such awards "are particularly appropriate in cases where proceedings are

protracted and costly experts must be retained." Avera, 515 F.3d at 1352. In Shaw, the Federal

Circuit held 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." Shaw v. Sec '.Y of Health & Human Servs., 609 F.3d

13 72, 13 75 (Fed. Cir. 2010). An appropriate circumstance in which to award interim fees can

occur when petitioner's counsel withdraws from a case. Faup v. Sec '.Y of Health & Human

Servs., No. 12-87V, 2017 WL 2257429, at *5 (Fed. Cl. Spec. Mstr. Apr. 21, 2017) (citing Davis

v. Sec'y of Health & Human Servs., No. 15-2777V, 2016 WL 3999784, at *3 (Fed. Cl. Spec.

Mstr. July 5, 2016)).

The Federal Circuit has approved the lodestar approach to determine reasonable

attorneys' fees and costs under the Vaccine Act. Avera, 515 F.3d at 1348. This is a two-step

process. Id. First, a court determines an "initial estimate ... by 'multiplying the numbers 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.

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

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

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

must grant the special master wide latitude in determining the reasonableness of both attorneys'

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

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

See Savin v. Sec'y ofHealth & Human Servs., 85 Fed. Cl. 313, 3 16-18 (2008).

The decision in McCulloch provides a framework for consideration of appropriate ranges

for attorneys' fees based upon the experience of the practicing attorney. McCulloch v. Sec '.Y of

Health & Human Servs., No. 09-293V, 2015 WL 5634323, at* 19 (Fed. Cl. Spec. Mstr. Sept. 1,

2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). In

McCulloch, Special Master Gowen held that an attorney with twenty or more years of experience

has a reasonable hourly rate between $350 and $425. Id. The Court recently updated the

McCulloch rates for 2017. 8 For attorneys with twenty to thirty years of experience, the

reasonable hourly fee range for work performed in 2017 is $358 to $424. The revised rate

schedule also contains increased rates for attorneys with more than thirty-one years of

experience.

8 The 2017 Fee Schedule can be accessed at:

http://www.uscfc.uscourts.gov/sites/default/file s/Attomeys-Forum-Rate-Fee-Schedule-2017.pdf.

The hourly rates contained in the 2017 Fee Schedule are updated from the decision McCulloch v.

Secretary ofHealth and Human Services. 2015 WL 5634323 at* 19.

8

III. DISCUSSION

In the absence of evidence that Petitioner acted in bad faith, Petitioner is entitled to a

presumption of good faith. Grice v. Sec '.Y ofHealth & Human Servs., 36 Fed. Cl. 114, 121

(1996). It is undisputed by Respondent that Petitioner acted in "good faith." Therefore, the

"good faith" requirement is satisfied.

A. Reasonable Basis

After a careful review of the case record, I conclude that this matter had sufficient

reasonable basis at the time the original petition was filed. Petitioner was vaccinated by Dr. Fred

S. Barash on July 11, 2013 with a varicella vaccine and on July 18, 2013 with Gardasil and

Menactra vaccines. Pet'r's Ex. 2 at 2. Approximately eight weeks after the vaccinations,

Petitioner's medical records reflect a continuing complaint of headaches and stomach concerns

throughout a period of approximately 3 years. Pet' r's Ex. 3. Although Petitioner's physician,

Dr. Barash, did not attribute any of Petitioner's general symptoms to the vaccinations, he did not

discontinue the medication that he suggested may be the cause of Petitioner' s symptoms. See

Pet'r's Ex. 3 at 5. It is therefore plausible that he believed the symptoms may have been

attributed to some other cause. Additionally, primary care physicians are often not the individual

who correctly identifies a patient 's injury as an adverse vaccine reaction. In this case, Petitioner

was referred to various specialists for his skin, stomach, and sinus conditions.

Petitioner argued that a temporal association shows a reasonable basis in this case, and

Petitioner quoted Dr. Kellman' s note that Petitioner " has autonomic neuropathy and symptoms

began after receiving the vaccines at issue." Pet'r's Ex. 5 at 1. Petitioner further asserts, "Dr.

Kellman ... links Mr. Toes's symptoms to the vaccinations at issue." Reply 9. Finally,

Petitioner's reply cited autonomic testing results and research articles that suggest Petitioner has

autonomic dysfunction connected to Gardasil vaccination. Id. at 11. Petitioner' s symptoms were

chronic and he did seek testing for autoimmune abnormalities consistent with an adverse vaccine

reaction. While this evidence may be sufficient to establish reasonable basis temporal

association is not sufficient to establish causation-in-fact. Grant v Sec '.Y ofHealth & Human

Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992). Dr. Kellman did not provide a medical or

scientific theory that would suggest Petitioner suffered from adverse effects of vaccination.

Petitioner failed to provide an expert report, a medical record, or a medical opinion that

presented a theory that the vaccinations were the cause of an adverse effect. This is

notwithstanding Petitioner's multiple requests for extensions of time to amend the facts alleged

in the petition, obtain an expert, and provide a causation theory. Petitioner missed the extended

deadline to file an amended petition with a clearly described injury and diagnosis, and failed to

provide evidence of a vaccine-induced injury to sustain his claim. Petitioner bears the burden of

showing he is entitled to attorneys' fees and costs by establishing a reasonable basis for his

petition. Petitioner's medical record does not link his condition to any vaccine, and it is

inconsistent regarding the chronic nature of Petitioner' s symptoms.

Although I do find that there was sufficient reasonable basis for the case to be filed

initially, an examination of the complete medical record, coupled with Petitioner's inability to

procure a medical expert has seriously called into question a reasonable basi s to continue with

9

this claim. This concern is further exacerbated by Petitioner's third request for an extension of

time to file an expert report that ultimately resulted in a motion for withdrawal by Petitioner's

counsel. Although Vaccine Program petitioners may file a claim based on limited information,

there is an expectation that Petition and counsel "act responsibly" in continuing to evaluate the

viability of a claim as more information becomes available. This is particularly important in a

case such as this, where Respondent identified causation issues that were echoed by the presiding

Special Master, fairly early in the process.

B. Interim Fees

a. Reasonable Hourly Rate

For the reasons stated above, Petitioner has established a reasonable basis for filing his

claim sufficient to support Mr. Downing's motion for interim fees. In addition to a reasonable

basis, Petitioner must also establish a good faith basis for the claim and an undue hardship

endured by Petitioner and his counsel. Shaw, 609 F.3d. at 1375. A good faith basis exists for

this claim, and Mr. Downing's billing records show sizable time and costs were expended in the

litigation of this case and borne by Mr. Downing personally. See ECF No. 27-1. Although this

case is neither protracted, nor involves expert report, the undersigned finds that Mr. Downing is

entitled to interim attorneys ' fees and costs.

Following the lodestar approach in Avera, the first step involves determining an estimate

by calculating "the numbers of hours reasonably expended on the litigation times a reasonable

hourly rate." Avera, 515 F.3d at 1347-48 (quotation omitted). Mr. Downing's requested rates

have recently been found reasonable. Bales v. Sec'y of Health & Human Servs., No. 15-882V,

2017 WL 2243094, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2017); see also Brannigan v. Sec 'y of

Health & Human Servs., No. 14-675V, 2017 WL 2644696, at *4 (Fed. Cl. Spec. Mstr. May 26,

2017) (adopting Bales). Mr. Downing ' s requested rates are within the Court's Attorneys' Forum

Hourly Fee Rate Schedule, 9 and the undersigned finds them reasonable.

Mr. Downing failed to provide the undersigned with any information related to his co-

workers other than their initials. See ECF No. 27-1. Fortunately for Mr. Downing, Special

Master Gowen articulated the experience levels and full names of Mr. Downing's peers in Bales.

No. 15-882, 2017 WL 2243094, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2017). The undersigned

agrees with Special Master Gawen' s analysis, and therefore finds that the rates requested for Ms.

Van Cott, Ms. Avery, and Mr. Cain are also reasonable. See id. The undersigned would caution

Mr. Downing in the future against failing to include this background information when

requesting fees. The lack of this information could result in delayed processing times and the

reduction of fee awards.

b. Hours Expended

The second step in Avera is for the Court to make an upward or downward modification

based upon specific findings. 515 F.3d at 1348. In a review of Mr. Downing's billing records,

9

See supra note 8.

10

the undersigned found no unnecessary billing requests. His fee request will therefore be awarded

in full.

c. Costs

Like attorneys ' fees, a request for reimbursement of costs must be reasonable. Perreira

v. Sec '.Y ofHealth & Human Servs., 27 Fed. Cl. 29, 34 (1992). Mr. Downing's costs request

consists of charges related to the collection of medical records and consultations with possible

experts. See ECF 27-1 at 21-24. A review shows these records to be reasonable, and the

undersigned awards Mr. Downing's costs in full.

IV. CONCLUSION

Petitioners in Vaccine Act litigation must show that their petition was filed in good faith

and on a reasonable basis in order to be eligible for attorneys' fees and costs. Petitioner in the

present case established a reasonable basis for his petition at this time of the initial filing.

Petitioner's Motion for Attorneys' Fees is therefore GRANTED. It is not clear that Petitioner will

be able to continue to argue the reasonableness of this claim moving forward.

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned

awards Mr. Downing $15,820.50 for fees and $1,905.24 for costs. Accordingly, the undersigned

awards the total of $17,725. 74 to be issued in the form of a check payable jointly to Petitioner

and P etitioner's counsel, Andrew D. Downing, of Van Cott & Talamante, PLLC, for interim

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 with the terms of the above decision. 10

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders

Special Master

10

Pursuant to Vaccine rule l l(a), entry of judgment is expedited by the parties' joint filing of a

notice renouncing the right to seek review.

11