Spahn v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

FORREST Q. SPAHN, *

* No. 09-386V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: August 11, 2017

*

SECRETARY OF HEALTH * Costs; interim award;

AND HUMAN SERVICES, * reasonable basis, expert fee.

*

Respondent. *

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Paul Dannenberg, Huntington, VT, for petitioner;

Voris E. Johnson, Jr., United States Dep’t of Justice, Washington, DC, for

respondent.

PUBLISHED DECISION GRANTING MOTION FOR AN

AWARD OF COSTS ON AN INTERIM BASIS 1

Forrest Spahn seeks an award of costs on an interim basis and the Secretary

opposes that award. He is awarded $14,650.00.

Background

Mr. Spahn’s medical history and the procedural history have been set forth

in earlier decisions and opinions by judicial officers. Spahn v. Sec’y of Health &

Human Servs., No. 09-386V, 2014 WL 12721080 (Fed. Cl. Spec. Mstr. Sept. 11,

2014); Opinion and Order, filed July 27, 2017. Only the most relevant details are

included in this decision.

1

The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and

Promotion of Electronic Government Services), requires that the Court post this decision on its

website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing

redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).

Any redactions ordered by the special master will appear in the document posted on the website.

In preparation for entry into high school, Mr. Spahn saw a pediatrician for a

physical in which no health concerns were identified and he received a dose of the

tetanus-diphtheria (“Td”) vaccine. Late summer 2007, Mr. Spahn developed tics

and subsequently met with a clinical psychologist who confirmed the tics and

possible mild autism. Mr. Spahn’s condition continued to progress over the next

several months culminating in a diagnosis of autistic spectrum disorder, obsessive

compulsive disorder, and tic disorder.

On June 12, 2009, Mr. Spahn’s mother filed a petition on his behalf alleging

that the Td vaccination he received on June 17, 2007, resulted in Mr. Spahn

developing tics. After Mr. Spahn filed medical records, the Secretary filed his

report, pursuant to Vaccine Rule 4, arguing that Mr. Spahn was not entitled to

compensation because an expert had not opined that the Td vaccine caused his tics.

Therefore, Mr. Spahn was ordered to file an expert report.

The next several years proceeded with the parties filing several expert

reports. Mr. Spahn filed reports from two experts – Dr. Burk Jubelt, a neurologist,

and Dr. H. Vasken Aposhian, a toxicologist. The parties also engaged in

settlement discussions and participated in alternative dispute resolution.

Ultimately, a resolution was not reached and the case was set for a hearing in

November 2013. The Secretary attempted to preempt this hearing by filing a

motion for summary judgment on August 23, 2013. Generally, the Secretary

asserted that Mr. Spahn could not establish the reliability of the medical theories

Dr. Jubelt and Dr. Aposhian set forth and, thus, a hearing was not appropriate.

Resp’t’s Mot. for Summ. J., filed July 23, 2013. Mr. Spahn filed an opposition to

the Secretary’s motion on August 23, 2013, and the Secretary replied on

September 12, 2013.

On August 30, 2013, Mr. Spahn filed the instant motion for an award of

costs on an interim basis. Mr. Spahn’s motion requested $51,440.00, comprised of

$3,900.00 as reimbursement for work done by Dr. Jubelt, $47,290.00 as

reimbursement for work done by Dr. Aposhian, and $250.00 in costs personally

incurred. See Pet’r’s Mot. for Interim Costs. The Secretary objected, arguing that

the petition lacked a reasonable basis and that Dr. Aposhian had billed an

excessive number of hours. See Resp’t’s Resp. to Pet’r’s Mot. for Interim Costs,

filed Sept. 12, 2013. On June 3, 2014, Mr. Spahn filed a second motion requesting

expedited payment of costs. See Pet’r’s Mot. for Expedited Payment of Costs.

2

The Secretary filed a response maintaining his position that because Mr. Spahn’s

claim lacked reasonable basis, Mr. Spahn was not entitled to an award of costs.

Resp’t’s Resp. to Pet’r’s Mot. for Expedited Payment of Costs, filed June 24, 2014.

Meanwhile, Mr. Spahn attempted to gather additional evidence. Because the

evidence could influence the outcome of the Secretary’s motion for summary

judgment and Mr. Spahn’s motion for interim costs, those motions were held in

abeyance. On June 27, 2014, Mr. Spahn stated that he would not submit any

additional evidence, making the Secretary’s motion for summary judgment ripe for

adjudication.

On September 11, 2014, the undersigned issued a decision granting the

Secretary’s motion for summary judgment and denying compensation. 2014 WL

12721080. Mr. Spahn filed a motion to redact the September 11, 2014 decision, to

which the Secretary responded. The undersigned issued an order granting-in-part

and denying-in-part Mr. Spahn’s request for redaction. Order, filed Oct. 29, 2014.

Mr. Spahn filed a motion for review of the undersigned’s September 11,

2014 decision granting the Secretary’s motion for summary judgment and a motion

for review of the undersigned’s October 29, 2014 order granting-in-part and

denying-in-part petitioner’s motion to redact. The Secretary filed responses to

both motions for review on November 10, 2014 and December 29, 2014,

respectively.

The judge to whom the case was initially assigned heard oral argument on

Mr. Spahn’s motions on February 4, 2015. Over the next year, additional briefing

was ordered. On May 18, 2017, Mr. Spahn filed a motion for leave to file new

evidence to which the Secretary filed an opposition.

On July 27, 2017, the judge at the Court of Federal Claims to whom the case

was recently re-assigned issued an Opinion and Order. The Opinion and Order

denied Mr. Spahn’s motion for review of the undersigned’s September 11, 2014

decision denying compensation, denied Mr. Spahn’s motion for review of the

undersigned’s October 29, 2014 order denying redaction in part, denied Mr.

Spahn’s motion for leave to file new evidence, and remanded the case back to the

undersigned for resolution of the pending motions for costs for 90 days. Opinion

and Order, filed July 27, 2017.

3

The matter is now ripe for adjudication.2

Analysis

Adjudicating a motion for an award of costs on an interim basis involves

answering a series of sequential questions, each of which requires an affirmative

answer to the previous question.3 First, whether the petitioner has submitted

evidence that makes him eligible to receive an award of costs? Second, whether,

as a matter of discretion, the petitioner should be awarded his costs on an interim

basis? Third, what is a reasonable amount of costs? These questions are addressed

below.

1. Eligibility for An Award of Costs

A petitioner who has not received compensation may be awarded

“compensation to cover petitioner’s 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.” 42 U.S.C. § 300aa-15(e)(1).

Respondent does not argue that Mr. Spahn lacks good faith, and there is no

evidence to indicate he did not believe the claim is valid. Thus, the undersigned

finds the petition was brought in good faith.

On the other hand, the Secretary challenged reasonable basis. In his motion

for summary judgment and subsequent responses to Mr. Spahn’s request for

interim costs, the Secretary argued that Mr. Spahn’s claim lacked a reasonable

2

Although Mr. Spahn filed two motions, he seeks the same relief.

3

Following the Court’s July 27, 2017 Opinion and Order, the Court entered judgment on

Mr. Spahn’s petition. Arguably, this turns Mr. Spahn’s motion into a motion for final (not

interim) costs.

However, the undersigned is treating the motion as one requesting interim costs because

that is how Mr. Spahn filed it. In addition, because Mr. Spahn has not yet sought attorney’s fees,

he is likely to file another motion, which will be for final fees. Finally, given the outcome in this

decision, classifying the decision as one for “interim” costs or “final” costs has no practical

difference.

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basis due to the unreliability of the medical theories presented. See, e.g., Resp’t’s

Resp. to Pet’r’s Mot. for Expedited Payment of Costs.

The presiding judge, however, agreed with Mr. Spahn that the expert reports

and supporting medical literature established the reasonable basis for bringing the

claim. Opinion and Order, at 25. This finding of fact is binding. Therefore, Mr.

Spahn has satisfied the reasonable basis standard.

2. Appropriateness of an Interim Award

When a petitioner meets the eligibility requirements for an award of costs on

an interim basis, the special master has discretion to make such an award. See

Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 92 (2016) (even after

good faith and reasonable basis have been established, the special master must

determine “whether to exercise his or her discretion to award attorneys’ fees and

costs”); cf. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed.

Cir. 2008) (holding that even though permitted under the Vaccine Act, an interim

award was not appropriate in that case). When determining the appropriateness of

an interim award, the Federal Circuit has considered such factors as protracted

proceedings, costly experts, and undue hardship. Shaw v. Sec’y of Health &

Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010); Avera v. Sec’y of Health &

Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).

Here, the Secretary has not made any specific argument regarding the Avera

factors. The proceedings have already been protracted as Mr. Spahn filed this case

in 2009, and filed motions for review in 2014, which were resolved in 2017.

Throughout the proceedings Mr. Spahn’s counsel filed medical records and expert

reports, participated in settlement negotiations, filed pre-hearing briefs, presented

an oral argument, and filed supplemental briefs. The presiding judge found that

counsel was “diligent in prosecuting this matter.” Opinion and Order, at 25 n.8.

For these reasons, an interim award is appropriate.

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3. Reasonableness of Requested Amounts

Mr. Spahn requests a total of $51,440.00 for costs related to experts plus

$250.00 in costs incurred personally by Mr. Spahn. Mr. Spahn’s personally

incurred costs are reasonable.

The statutory requirement that only reasonable amounts be awarded applies

to costs. See Perriera v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34

(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable expert costs are

calculated using the same lodestar method as is used when calculating attorneys’

fees. Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009 WL

1838979, at *37 (Fed. Cl. Spec. Mstr. June 12, 2009).

Dr. Burk Jubelt is a board-certified neurologist and professor of neurology,

microbiology/immunology, and neuroscience at SUNY Upstate Medical

University. He has authored over 170 articles, papers, and book chapters, has

received numerous research grants, and has participated in several professional

activities over his career. Exhibit 14. Dr. Jubelt’s proposed rate of $300 per hour

is accepted as reasonable. With respect to the number of hours, Dr. Jubelt’s charge

of 13 hours is also reasonable. The Secretary did not object to the amount

requested by Dr. Jubelt. Resp’t’s Resp., filed Sept. 12, 2013, at 2. Dr. Jubelt’s

costs of $3,900.00 are awarded in full.

Dr. Aposhian is an emeritus professor of molecular and cellular biology at

the College of Science University of Arizona and an emeritus professor of

pharmacology at the College of Medicine University of Arizona. During his

career, Dr. Aposhian has written over 100 papers and abstracts in toxicology and

microbiology and received several awards in the field. He retired in 2008.

Exhibits 21-22. Although Dr. Aposhian is a pharmacologist, he is not a medical

doctor. Exhibit 21; see also Hazlehurst v. Sec’y of Health & Human Servs., No.

03-654V, 2009 WL 332306, at *5 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot. for

rev. denied, 88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010).

Dr. Aposhian proposed a rate of $500 per hour for 94.5 hours (plus 5

minutes) of work totaling $47,290.00. The Secretary challenged the

reasonableness of the hours billed by Dr. Aposhian, arguing that the time spent was

excessive when compared to the literature reviewed and length of the report

produced. Resp’t’s Resp., at 2. Dr. Aposhian testified on behalf of petitioners in

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the Omnibus Autism Proceeding (OAP). However, the special masters largely

discredited his opinions and distinguished him from board-certified medical

toxicologists. See, e.g., Hazlehurst, 2009 WL 332306, at *5, *8.

With respect to a reasonable hourly rate, Mr. Spahn did not present any

evidence. While Dr. Aposhian has provided opinions previously in Vaccine

Program cases, his actual compensation rate is unknown. See King v. Sec’y of

Health & Human Servs., No. 03–584V, 2009 WL 2252534, at *5 n.9 (Fed. Cl.

Spec. Mstr. July 10, 2009). In the absence of evidence from Mr. Spahn, the

undersigned may rely on his experience to find a reasonable rate. Saxton v. Sec’y

of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993).

The undersigned conducted an independent review of toxicologist rates.

Based on this review, the undersigned’s experience in determining reasonable

hourly rates for a variety of experts, and the quality of Dr. Aposhian’s work in

presenting an opinion that did not withstand a motion for summary judgment, a

reasonable rate is $350 per hour. See Frederick v. Columbia Univ., 212 F.R.D.

176, 177 (S.D.N.Y. 2003) (awarding toxicologist with a medical degree $375 per

hour).

With respect to a reasonable number of hours, the undersigned finds the

Secretary’s critique that Dr. Aposhian spent an excessive amount of time

persuasive. Dr. Aposhian’s report was nine substantive pages and cited 30

references. An expert with Dr. Aposhian’s background, including his previous

testimony about mercury in the OAP, should not require this much time. Based on

the undersigned’s experience, the number of hours is reduced to 30, which is still

more than twice as many hours billed by Dr. Jubelt.

For Dr. Aposhian’s services, a reasonable amount of compensation is

$10,500.00.

Conclusion

The undersigned finds an interim award of costs appropriate at this time.

Mr. Spahn is awarded $14,650.00 as reimbursement for costs. Accordingly, the

undersigned awards:

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a. A lump sum of $14,400.00 in the form of a check made payable to

petitioner and petitioner’s attorney, Paul Dannenberg.

b. A lump sum of $250.00 in the form of a check made payable to

Forrest Spahn for costs personally incurred in pursuit of this

litigation.

The Clerk’s Office is instructed to issue judgment in accord with this

decision. Pursuant to Vaccine Rule 28.1(a), the Clerk’s Office is also instructed to

transmit this decision to the presiding judge. 4

IT IS SO ORDERED.

S/Christian J. Moran

Christian J. Moran

Special Master

4

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint

filing of notice renouncing the right to seek review.

8