The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-035V
(not to be published)
************************* Special Master Corcoran
CHRYSTAL DERENZO, parent of A.S., *
a minor, *
*
Petitioner, * Filed: January 9, 2018
*
v. * Decision; Final Fees and Costs.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Lara Ann Englund, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING IN PART ATTORNEY’S FEES AND COSTS1
On January 8, 2016, Chrystal Derenzo filed a petition of behalf of her son, A.S., seeking
compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2
Petitioner alleged that A.S. suffered from uveitis as a result of receiving the meningococcal vaccine
on August 8, 2014. The parties ultimately agreed that the issues before them could be informally
resolved and submitted a stipulation for damages on July 3, 2017 (ECF No. 32), which I adopted
by decision two days later (ECF No. 33).
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the Decision in its present form will be available.
Id
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated
December 19, 2017. See Motion for Attorney’s Fees and Costs, dated Dec. 19, 2017 (ECF No. 42)
(“Fees App.”). Petitioner requests reimbursement of attorney’s fees and costs in the total amount
of $31,714.74 (representing $23,111.80 in attorney’s fees, plus $8,602.94 in costs). Id. at 1. In
accordance with General Order No. 9, Petitioner indicated that he has not incurred any costs related
to the matter. ECF No. 45. Respondent filed a document reacting to the fees request on January 2,
2018, stating that she is satisfied that the statutory requirements for an award of attorney’s fees
and costs are met in this case, but deferring to my discretion in determining the amount to be
awarded. See Response, dated Jan. 2, 2018 (ECF No. 44) at 2-3.
For the reasons stated herein, I hereby GRANT IN PART Petitioner’s Motion, awarding a
total of $31,314.74 (representing $23,111.80 in attorney fees, and $8,202.94 in costs).
Procedural and Factual History
This action has been pending for over roughly one year. As the billing invoices submitted
in support of the fees application reveal, the Conway Homer firm began working on the matter on
January 26, 2015, nearly a year before the case was filed. See Tab A. to Fees App. at 2. During
that period of time, it appears that Mr. Homer and his associates were performing research,
collecting records, and contacting experts. Id. That time appears to have been well-spent, as
Petitioner filed complete medical records by April 2016, within a few months from the case’s
initiation. See Statement of Completion, filed Apr. 6, 2016 (ECF No. 11). Respondent filed his
Rule 4(c) Report on June 6, 2016. See Respondent's Rule 4(c) Report, dated June 6, 2016 (ECF
No. 13).
Thereafter, the parties began filing expert reports. Petitioner filed an expert report, along
with medical literature, from Dr. Frederick Fraunfelder, on August 31, 2016. See Ex. 19 (ECF No.
15-1); Exs. 21-29 (ECF Nos. 18-1 to 18-9). Although Respondent contemplated filing a report,
none was filed. As noted above, the case subsequently settled.
Significant costs have been incurred in this matter for two categories—expert costs and
guardianship costs. The former category amounts to $2,000.00, while the latter is $5,852.92.00.
Tab A to Fees App at 40-42; Fees App. at 2. Petitioner obtained Dr. Frederick Fraunfelder to
review the case and write an expert report in this matter. Dr. Fraunfelder performed 4.0 hours of
work on the case at an hourly rate of $500 per hour for a total of $2,000.00. Fees App. at 2. In
addition, the Conway Homer firm obtained the services of two attorneys from Robinson, Boesch,
Sennott & Masse, P.A. in Portsmouth, New Hampshire, to establish a guardianship for A.S. during
the proceedings related to this matter. Tab A. to Fees App. at 40-42.
2
Analysis
The Vaccine Act permits an award of reasonable attorney’s fees and costs to successful
litigants. Section 15(e). An attorney’s reasonable hourly rate is determined by the “forum rule,”
which bases the award on rates paid to similarly qualified attorneys in the forum in which the
relevant court sits (Washington, DC, for Vaccine Act cases), except where an attorney’s work was
not performed in the forum and there is a substantial difference in rates. Avera v. Sec’y of Health
& Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). The hourly rate ranges for attorneys of
different levels of experience who are entitled to the forum rate in Vaccine Program cases are set
forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19
(Fed. Cl. Spec. Mstr. Sept. 1, 2015).3
Though Respondent has not lodged an objection to the sum requested, special masters have
discretion to determine the reasonableness of a fees award sua sponte. Sabella v. Sec’y of Health
& Human Servs., 96 Fed. Cl. 201, 208-09 (2009); Perreira v. Sec’y of Health & Human Servs., 27
Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Here, I find some adjustment to the
requested amount is warranted.
Amounts Requested for Petitioner’s Attorneys
Petitioner asks that the three attorneys and paralegals from the Conway Homer firm who
worked on this matter be reimbursed at varying rates for work performed from 2015-2017. The
attorneys from Conway Homer have repeatedly been found to be “in forum” and therefore are
entitled to the forum rates established in McCulloch. See McCulloch v. Sec’y of Health & Human
Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). This
determination is consistent with my own decisions. See, e.g., Caruso v. Sec’y of Health & Human
Servs., No. 15-200V, 2017 WL 5381004 (Fed. Cl. Spec. Mstr. Sept. 26, 2017); Sharifipour v. Sec’y
of Health & Human Servs., No. 15-669, 2017 WL 2926617 (Fed. Cl. Spec. Mstr. June 6, 2017);
Johnson v. Sec’y of Health & Human Servs., No. 14-113V, 2016 WL 5224405 (Fed. Cl. Spec.
Mstr. Aug. 19, 2016). Other special masters have awarded forum rates to these attorneys as well.
See, e.g., Cabrera v. Sec’y of Health & Human Servs., No. 13-598V, 2017 WL 656303, at *3 (Fed.
Cl. Spec. Mstr. Jan. 23, 2017).
3
The McCulloch forum rate ranges have been compiled into a list and posted to the Vaccine Claims section of the
United States Court of Federal Claims website. This forum hourly rate fee schedule can be accessed at:
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (“OSM Hourly Rate Chart”).
3
The hourly rates I awarded in Caruso and Sharifipour to the attorneys who worked on this
matter, as well as their paralegals, are the same as those requested herein, and I will likewise award
them. Furthermore, the hours expended on this matter also appear to be reasonable, and
Respondent did not identify any entries as objectionable. I will therefore award the requested
attorney’s fees in full.
Requested Costs
Petitioner also requests costs associated with this matter (including costs associated with
obtaining medical records, postage and shipping costs, and photocopy costs). See Tab A. to Fees
App. (ECF No. 42) at 34-35. These costs appear to be reasonable and will be awarded.
Petitioner also requests expert costs in the amount of $2,000.00 for 4.0 hours of work
completed by Dr. Frederick Fraunfelder at a rate of $500 per hour. Id. at 35. As his CV indicates.
Dr. Fraunfelder is an experienced, and board-certified professor of ophthalmology at the
University of Missouri. See Ex. 20 (“Fraunfelder CV”) (ECF No. 15-2). He received his medical
degree from Oregon Health Sciences University, and completed fellowships with the World Health
Organization and the Food and Drug Administration. Id. at 2. Furthermore, Dr. Fraunfelder has
served on the editorial board of numerous medical journals and has published multiple peer-
reviewed journal articles in the field of ophthalmology. Id. at 3, 5-6.
This appears to be one of Dr. Fraunfelder’s first Program cases, and I must balance his
level of expertise with his lack of experience in the Program. The requested rate of $500 per hour
is at the very top end of hourly rates awarded to highly qualified experts. See, e.g., Rosof v. Sec’y
of Health & Human Servs., No. 14-766, 2017 WL 1649802, at *4 (Fed. Cl. Spec. Mstr. Mar. 31,
2017) (noting that awarding $500 per hour for an expert in the Program is very rare). Petitioner
argues that a higher rate is justified based on Dr. Fraunfelder’s relevant education, training, and
experience. See Fees App. at 2-6. However, while Dr. Fraunfelder is a qualified expert and his
work in this case was helpful, Petitioner has not provided persuasive evidence that Dr. Fraunfelder
is entitled to a rate of $500 per hour in light of his lack of experience in the Vaccine Program.
Indeed, seasoned Vaccine Program experts are compensated at a lower rate. See e.g., Carda v.
Sec’y of Health & Human Servs., No. 14-191, 2017 WL 1709707, at *2 (Fed. Cl. Spec. Mstr. Mar.
23, 2017). I will therefore reduce Dr. Fraunfelder’s requested hourly rate to $400 per hour,
commensurate with other similarity-experienced experts. See, e.g., L.M. v. Sec’y of Health &
Human Servs., No. 14-714V, 2017 WL 5382907, at *4 (Fed. Cl. Spec. Mstr. Sept. 29, 2017)
(reducing rate of two-time Program participant expert from $500 to $350 per hour); DePena v.
Sec’y of Health & Human Servs., No. 13-675V, 2017 WL 1476240, at *5 (Fed. Cl. Spec. Mstr.
Mar. 30, 2017) (reducing rate of first-time Program participant expert from $500 to $325 per hour).
This amounts to a total award of $1,600.00 (representing a reduction of $400.00).
4
Finally, Petitioner requests costs related to establishing a guardianship for A.S. in the
amount of $5,852.92.00. See Tab A. to Fees App. at 34, 40-42. The stipulation requires that a
guardianship to be established within 90 days of entering the stipulation. The billing entries for the
guardianship costs in this matter indicate that the guardianship petition was filed at the end of
August 2017 and completed mid-November 2017, finalizing the process roughly two and a half
months after the stipulation was entered on August 11, 2017. Id. at 40-42.
Special masters typically award costs for establishing a guardianship when it is established
as a condition of the settlement and/or the judgment in the matter. See, e.g., Barrett v. Sec’y of
Health & Human Servs., No. 09-389V, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014);
Torres v. Sec'y of Health & Human Servs., No. 09–867V, 2013 WL 2256136 (Fed. Cl. Spec. Mstr.
Apr. 30, 2013); Cansler v. Sec'y of Health & Human Servs., No. 09–596V, 2011 WL 597791 (Fed.
Cl. Spec. Mstr. Feb. 2, 2011). In this case, the existence of a proper guardianship was a prerequisite
to payment of the stipulation, and therefore was contemplated before entry of judgment. Such costs
incurred in direct connection with a stipulation can be reasonably construed as a “proceeding on a
petition.” See Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773 (2010); Barrett, 2014
WL 2505689, at *5; Section 300aa-15(e)1.
In addition, the costs associated with the guardianship’s creation in the present case are
both modest and in line with similar costs incurred in other cases. See, e.g., Glaser v. Sec’y of
Health & Human Servs., No. 06-764V, 2016 WL 4483022 (Fed. Cl. Spec. Mstr. June 29, 2016)
(awarding $8,329.05 for guardianship costs); Finet v. Sec'y of Health & Human Servs., No. 03–
348V, 2011 WL 597792, at *3 (Fed. Cl. Spec. Mstr. Jan. 31, 2011) (awarding $7,440.00 for
guardianship costs). Furthermore, Respondent did not identify any entries as objectionable. I thus
find that the awarding of this category of guardianship-related costs is both sensible and
permissible in this case, and I will award the requested costs in full.
Conclusion
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for
Final Attorney’s Fees and Costs, and award a total of $31,314.74 (representing $23,111.80 in
attorney fees, and $8,202.94 in costs), in the form of a check jointly payable to Petitioner and
Petitioner’s counsel, Mr. Ronald C. Homer, Esq. In the absence of a motion for review filed
5
pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance
with the terms of this decision.4
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
6