The opinion
REISSUED FOR PUBLICATION
DEC 12 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
JJn tbe W:niteb ~tates <!ourt of jfeberal <!lai1ns
OFFICE OF SPECIAL MASTERS
Filed: November 17, 2017
* **** * *** **** ***** * UNPUBLISHED
RETA ERXLEBEN, *
* No. 14-385V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Attorneys' Fees and Costs;
AND HUMAN SERVICES, * Special Master's Discretion;
* Former Counsel's Standing
Respondent. * To Resolve Attorneys' Fees
******************* And Costs.
Reta Erxleben, Fairfield, OH, prose.
Sarah C. Duncan, U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION ON STANDING AND ON ATTORNEY ' FEES AND COSTS 1
On May 6, 2014, Reta Erxleben ("petitioner") filed a petition pursuant to the National
Vaccine Injury Compensation Program. 2 Petition (ECF No. 1). Petitioner alleged that she
suffered from dysphagia, vocal cord dysfunction, and laryngeal dystonia caused-in-fact by an
influenza ("flu") vaccine administered on September 14, 2011. Petition at Preamble. I
dismissed the case on May 10, 2017. After the Court of Federal Claims denied petitioner's
motion for review, judgment was entered on the dismissal decision. I now GRANT the motion
for standing for resolving attorneys' fees and costs filed by petitioner's former counsel Mr. Ed
Kraus before he withdrew from the case. I also GRANT the motion for attorneys' fees and costs
and direct that the check be sent to petitioner's former counsel Mr. Kraus.
1
Pursuant to the E-Govemment Act of2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court's website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court's website, each party has 14 days to file a motion requesting 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 l 8(b). "An objecting party must provide the court with a proposed
redacted version of the decision." Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court's website without any changes. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et seq .
(hereinafter "Vaccine Act" or "the Act"). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the
Act.
Also on June 9, 2017, he filed a motion for "standing for the limited purpose ofresolving
the pending motion for attorneys' fees and costs." (ECF No. 56). Mr. Kraus explained the
circumstances set forth above: that he filed a motion for attorneys' fees, to which respondent had
not yet filed a response; he then filed a motion to withdraw; and he had wished to resolve those
issues so petitioner would be able to file a motion for review on her own behalf. Because the
Court had not had an opportunity to rule on the motion for attorneys' fees and costs, having not
received an answer from respondent, Mr. Kraus requested standing for the limited purpose of
resolving the motion. Respondent did not respond to that motion.
Also on June 9, 2017, I granted Mr. Kraus's motion to withdraw from the case. (ECF
No. 57). I did not address the motion for standing or the underlying motion for attorneys' fees
and costs as the deadlines for answering those motions had not yet passed.
The Court received petitioner's motion for review of the dismissal decision on the same
day - the deadline of June 9, 2017. (ECF No. 58). It refers to "the prose petitioner of this
action." Id. at 1. On the same day, the motion for review was assigned to the Honorable Chief
Judge Braden. (ECF No. 59). On June 22, 2017, respondent filed a response to the pending
motion for attorneys' fees and costs. (ECF No. 61). Respondent was "satisfied that the statutory
requirements for an award of attorneys' fees and costs are met in this case." Id. at 2.
Respondent "respectfully recommend[ ed] that the special master exercise his discretion and
determine a reasonable award for attorneys' fees and costs." Id. at 3 (internal citations omitted).
On July 10, 2017, respondent filed a response to the motion for review. (ECF No. 62).
On October 17, 2017, Chief Judge Braden issued a memorandum opinion and final order
denying petitioner's motion for review. (ECF No. 63). On the same day, the Clerk of the Court
entered judgment on the dismissal decision. (ECF No. 64).
II. Petitioner's Former Counsel's Standing to Resolve Attorneys' Fees and Costs
As detailed above, I granted petitioner's counsel Mr. Kraus's motion to withdraw from
the case in order to accommodate petitioner's pro se appeal. I did not address the motion for
standing and the motion for attorneys' fees and costs, as respondent's deadline for responding to
those motions had not yet passed. Now that Chief Judge Braden has denied petitioner's motion
for review and judgment has entered dismissing the petition, I may address the outstanding
issues.
I will first consider Mr. Kraus's motion for standing for the limited purpose of resolving
the pending motion for attorneys' fees. In March 2017, petitioner and Mr. Kraus obtained a
qualified expert's opinion that did not support her claim. Mr. Kraus appropriately did not want
to remain as counsel, but remained in the case at my request to facilitate communication with
petitioner and assist her filing of a response to my order to show cause. He completed this task
in late April 2017. After I dismissed the case, he filed a motion for attorneys' fees and costs. He
then filed a motion to preserve his standing regarding attorneys' fees and costs and a motion to
withdraw from the case, before petitioner filed her pro se motion for review of the dismissal
decision.
3
I. Procedural History
While currently petitioner is prose, for the majority of the case she was represented by
counsel, Mr. Edward Kraus. With his representation, petitioner filed the petition and complete
medical records; retained an expert; and agreed to an entitlement hearing in March 2017. In
November 2016, petitioner informed that her original expert was no longer available to serve as
an expert in this case and the hearing was cancelled. Petitioner received several extensions of
time to secure another expert. The case was reviewed by at least two qualified experts who were
not able to support a theory of causation.
On March 30, 2017, I convened a status conference with petitioner Ms. Erxleben, her
counsel Mr. Kraus, and respondent's counsel Ms. Duncan. Mr. Kraus communicated his desire
to withdraw from the case, based on the difficulty with securing an expert and Dr. Marcel
Kinsbourne's opinion that Ms. Erxleben's condition is not immune-related and there have been
no reports associating this condition with vaccinations. Petitioner expressed a desire to attempt
to locate an expert on her own. At my request, Mr. Kraus agreed to continue as petitioner's
attorney for the next 30 days, while petitioner had the opportunity to file an expert report and
supportive medical literature or otherwise respond to my preliminary opinion that the case
should be dismissed. Order to Show Cause (ECF No. 50). On April 26, 2017, petitioner, by her
counsel Mr. Kraus, filed her self-authored answer to the Order to Show Cause without support of
an expert opinion. (ECF No. 52).
On May 10, 2017, I issued a decision dismissing petitioner's claim. (ECF No. 53).
Under Vaccine Rule 23, petitioner had 30 days to file a motion for review of my dismissal
decision. No extensions of time are permitted under this rule and failure to file a motion for
review constitutes a waiver of that right. 3 Thus, petitioner's absolute deadline to file a motion
for review was June 9, 2017.
On June 6, 2017, petitioner filed a motion for attorneys' fees and costs. (ECF No. 54).
The motion requests attorneys' fees in the amount of $53,626.30 and attorneys' costs in the
amount of $14,651.85, for a total attorneys' fees and costs request of$68,278.15. Id. at 1. The
motion provides that petitioner has not incurred any fees or costs related to the litigation of this
case. Id. Further, Mr. Kraus represents that he will reimburse petitioner for any additional
litigation costs paid to him by petitioner from the award of attorneys' fees and costs in this case.
Id. Pursuant to Vaccine Rule 20(b)( 1), respondent had 14 days, until June 19, 2017, to file any
response or objection to the motion for attorneys' fees and costs.
On June 9, 2017, Mr. Kraus filed a motion to withdraw as attorney ofrecord on the
grounds that: "Petitioner [had] recently informed [Mr. Kraus] that she intended to continue
prosecuting her case prose and that she would be filing by mail a motion for review by June 9,
2017." Motion to Withdraw (ECF No. 55). Mr. Kraus represented that respondent did not object
to the motion to withdraw.
3
Vaccine Rule 10 also allows a party to file a motion for reconsideration by the special master, within 21 days of the
decision being issued. However, filing a motion for reconsideration does not toll the deadline for a motion for
review. Vaccine Rule 10(e)(3)(B); Vaccine Rule 23(a).
2
Mr. Kraus had an interest in his attorneys' fees and costs which includes the opportunity
to reply to any objections raised by respondent, file additional documentation as required by the
Court, or file an appeal on that issue. He also filed the motion to preserve his standing in
recognition before withdrawing as counsel. Based on these particular facts and the lack of
objection from respondent, Mr. Kraus's motion for standing for the limited purpose ofresolving
the pending motion for attorneys' fees and costs is GRANTED.
III. Reasonable Attorneys' Fees and Costs
Section 15(e) of the Vaccine Act governs attorneys' fees. Section 300aa-15(e). When
awarding compensation on a petition, the special master "shall also award" reasonable attorney's
fees and costs. Section 15(e)(l)(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." Section 15(e)(l). Each determination is within the
discretion of the special master. Saxton v. ec' y of Health & Human Servs., 3 F.3d 1517, 1520
(Fed. Cir. 1993); see also Shaw v. Secy of Health & Human Servs., 609 F.3d 1372, 1377 (Fed.
Cir. 2010).
I find that there was a reasonable basis throughout the pendency of petitioner's claim.
The petition and the medical records reflect a temporal association between the vaccinations and
changes in petitioner's state of health. Her condition is rare (like many others seen in the
Vaccine Program) but she was initially able to secure an expert who supported her claim. After
that expert withdrew, I granted additional time to retain a substitute expert or show other cause
why the claim should continue. After reviewing petitioner's further efforts to retain an expert,
the opinion from Dr. Kinsbourne, and petitioner's self-authored response to the Order to Show
Cause, I decided to dismiss the case. Petitioner is only seeking attorneys' fees and costs up until
that point, as counsel subsequently withdrew from the case. Additionally, respondent has not
objected to the award of attorneys' fees and costs. Upon denying petitioner's motion for review,
the Honorable Chief Judge Braden did not indicate that the claim lacked reasonable basis. Based
on all of the above, I find that there was reasonable basis for the relevant period and therefore,
reasonable attorneys' fees and costs should be awarded.
Based on my experience and my review of the motion and supporting documentation, the
request appears reasonable. The requested hourly rates are consistent with my decision in
McCulloch v. Secy of Health & Human Servs., No. 9-293v, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015), the Office of Special Masters' fee schedule; and my previous decisions
awarding attorneys' fees to Mr. Kraus and his staff. I find that they should also be awarded in
this case. Neither do I find cause to adjust the time expended or the costs, which are well-
documented. Thus, the requested attorneys' fees and costs should be awarded in full.
4
IV. Conclusion
In accordance with the foregoing, Mr. Kraus's motion for standing for the limited
purpose of resolving the pending motion for attorneys' fees and costs is GRANTED. The
motion for attorneys' fees and costs is also GRANTED. Attorneys' fees and costs are awarded
as follows:
Attorneys' Fees Awarded $53,626.30
Attorneys' Costs A warded $14,651.85
Total Attorneys' Fees and Costs Awarded $68,278.15
Accordingly, I award the following:
1) A lump sum in the amount of $68,278.15, representing reimbursement for
attorneys' fees and costs, in the form of a check payable jointly to petitioner and
her former counsel, Edward M. Kraus of the Law Offices of Chicago-Kent
College of Law. 4
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court is directed to enter judgment forthwith. 5
The Clerk of the Court is directed to mail a courtesy copy of this decis ·
petitioner's former counsel, Mr. Kraus. The check should a sent t
IT IS SO ORDERED.
Thomas L. Gowen
Special Master
4
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, "advanced costs," and fees for legal services rendered. Furthermore,§ 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec'y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
Pursuant to Vaccine Rule l l(a), entry of judgment is expedited by the parties' joint filing of a notice renouncing
their right to seek review.
5