Austin v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 05-579V

(Not to be Published)

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

HOLLY AUSTIN, as parent of K.A., *

a minor, *

* Special Master Corcoran

Petitioner, *

* Dated: July 31, 2019

v. *

* Attorney’s Fees and Costs;

* Interim Fees; Autism Claim.

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

Robert J. Krakow, Law Office of Robert Krakow, P.C., New York, NY, for Petitioner.

Mollie D. Gorney, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING INTERIM AWARD OF ATTORNEY’S FEES AND COSTS1

On May 27, 2005, Holly Austin filed a petition seeking compensation under the National

Vaccine Injury Compensation Program (“Vaccine Program”).2 In it, Mrs. Austin alleged that a

number of childhood vaccines, including the DTaP, Hep B, and pneumococcal vaccines that K.A.

received on July 28, 2003; the influenza vaccine he received on December 15, 2003; the Hib

vaccine he received on June 1, 2004; and the DT vaccine he received on June 8, 2004, caused him

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Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the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 that 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 whole Decision will be available to the public.

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).

to experience an encephalopathic reaction (accompanied by increased seizure activity), later

manifesting as developmental regression and autism spectrum disorder. Petition (ECF No. 1)

(“Pet.”) at 1; Amended Petition (ECF No. 123) (“Am. Pet.”) at 1-2. I issued a decision denying

entitlement on May 15, 2018 (ECF No. 130), which was subsequently upheld on appeal (ECF No.

138). The case is now currently pending review by the Court of Appeals for the Federal Circuit,

although present counsel has indicated that he is withdrawing from the matter (ECF No. 149).

Petitioner has requested a second interim award of attorney’s fees and costs for her current

counsel in the total amount of $121,644.59 (representing $104,769.95 in attorney’s fees, plus

$16,874.64 in costs). See generally Motion for Interim Attorney’s Fees and Costs, filed Mar. 22,

2019 (ECF No. 144) (“Interim Fees App.”); Supplemental Motion for Interim Attorney’s Fees,

filed Apr. 26, 2019 (ECF No. 147) (“Supp. Interim App.”).

For the reasons stated below, I hereby GRANT IN PART Petitioner’s request, awarding

at this time interim fees and costs in the total amount of $100,690.60 (representing $83,815.96 in

attorney’s fees, plus $16,874.64 in costs).

PROCEDURAL HISTORY

As noted above, this action was initiated in May 2005, nearly thirteen years ago. Pet. at 1.

Petitioner filed this claim in conjunction with the Omnibus Autism Proceedings (“OAP”)3,

resulting in a long hiatus in the progress of this matter while the OAP was concluded. The case

was formally separated from the OAP on January 12, 2011, in light of Petitioner’s expressed desire

to proceed on an alternate theory. See Order, dated Jan. 12, 2011 (ECF No. 15); Order, dated Sept.

30, 2011 (ECF No. 18). Petitioner filed the majority of the medical records associated with this

case in February 2012 (ECF No. 27), and the parties thereafter began filing expert reports.

Petitioner’s original counsel withdrew from the case on August 7, 2012 (ECF No. 38),4 and

she subsequently obtained present counsel in early mid-2013 (ECF Nos. 52-53).5 Petitioner asks

that her current counsel, Mr. Robert Krakow, be reimbursed at varying rates for work performed

from 2013-2019 (from the time he appeared in the case to the present) for a total of $104,769.95.

Interim Fees App. at 16. Specifically, Petitioner requests $385 per hour for Mr. Krakow’s work in

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In the OAP, thousands of petitioners’ claims that certain vaccines caused autism were joined for purposes of efficient

resolution. A total of eleven lengthy decisions by special masters, the judges of the U.S. Court of Federal Claims, and

the panels of the U.S. Court of Appeals for the Federal Circuit unanimously rejected these claims. The decisions found

no persuasive evidence that the MMR vaccine or thimerosal-containing vaccines caused autism. The OAP proceedings

concluded in 2010.

4

Interim fees were awarded to Petitioner’s original counsel on July 25, 2011 (ECF No. 34).

5

Present counsel began work on this matter on or about August 1, 2013 (and thus only requests fees from this period

forward). Interim Fees App. at 5.

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2013, with increases to $396 per hour in 2014; $413 per hour in 2015; $425 per hour in 2016; $435

per hour in 2017; $450 per hour in 2018; and $464 per hour in 2019. Id. In addition, Petitioner

requests rates ranging from $125-$156 per hour for paralegal work (at times completed by Mr.

Krakow, but billed at a lower rate) completed from 2013-2019. Id.

Petitioner also requests $16,874.64 in attorney’s costs (for obtaining medical records,

expert fees, copy costs, and postage charges). Ex. 2 to Interim Fees App. at 33. Petitioner does not

request personal costs in connection with this matter. Ex. 4 to Interim Fees App. at 1 (General

Order No. 9 Statement).

Respondent reacted to the request on March 27, 2019, and May 1, 2019, respectively,

deferring to my discretion as to whether Petitioner has met the legal standards for an interim fees

and costs award. See Response, dated Mar. 27, 2019 (ECF No. 145) at 2; Response, dated May 1,

2019 (ECF No. 148) at 1. Respondent otherwise represents that the statutory and other legal

requirements for an award of attorney’s fees and costs are met, and he recommends that if an

interim award is appropriate, I calculate a reasonable award.

ANALYSIS

I. Reasonable Basis

At the time this case was filed, Petitioner’s theory of causation (arguing that multiple

childhood vaccines resulted in an encephalopathic reaction, later manifesting as autism or autism-

like symptoms) mirrored arguments set forth in many former OAP cases that resulted in decisions

denying entitlement and dismissing the theory as unpersuasive. Although Respondent did not

challenge Petitioner’s interim fees request on reasonable basis grounds, Petitioner maintained in

her fees application that present counsel acted expeditiously in reviewing the claim herein and

monitoring the developments in the case law related to the medical theory relied upon to support

causation in the matter. Interim Fees App. at 11-14.

Despite this claim’s underlying deficiencies, I find the matter had sufficient reasonable

basis to justify an interim award of fees (and Respondent has not argued otherwise). In two recent

parallel decisions, I specifically analyzed Mr. Krakow’s actions with regard to filing an autism

claim (asserting a causation theory similar to the one alleged in the present case), and I took note

of his efforts to investigate the claim’s viability in light of prior unsuccessful claims, and to modify

his proposed theory in light of the OAP’s conclusion. See Johnson v. Sec’y of Health & Human

Servs., No. 15-643, 2018 WL 2772684 (Fed. Cl. Spec. Mstr. Apr. 13, 2018); Hamilton v. Sec’y of

Health & Human Servs., No. 14-785V, 2018 WL 2772197 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

The facts of this case are similar to those referenced above. It is certainly the case that at the time

Mr. Krakow appeared in this matter, many post-OAP claims were still pending in the Program,

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and therefore the kinds of facts asserted in this claim – facts I would now deem, in 2019, to

not constitute objective evidence in support of a reasonable Program claim – would then have been

considered as objective support sufficient for reasonable basis to exist. Even so, I conclude that

sufficient reasonable basis existed for Petitioner’s claim, despite its patent underlying weaknesses.

In making this award, however, I note that Petitioner benefits somewhat from the case's

protracted life, and existence throughout the time period in which the Office of Special Masters

has resolved countless autism claims asserting a variety of causation theories. Had the claim been

filed in the past year or two, I would readily find it lacked reasonable basis entirely – and deny

all fees. Counsel should take due notice not to bring such claims in the future (absent a stunning

and reliable medical discovery that changes the existing analysis entirely).

II. Legal Standard Applicable to Interim Fees and Costs Requests

I have previously discussed at length the legal standards, and other relevant considerations,

applicable to interim fees requests. See generally Auch v. Sec'y of Health & Human Servs., No.

12-673V, 2016 WL 3944701, at *6-9 (Fed. Cl. Spec. Mstr. May 20, 2016). The best way of

evaluating the propriety of an interim award is by considering all the factors together and balancing

them out. See, e.g., Al–Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669,

at *5-6 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). In addition, as numerous special masters have

observed, an attorney's withdrawal can be an appropriate occasion for an interim award, even

though it is not automatically so. Smirniotis v. Sec'y of Health & Human Servs., No. 14-617V,

2016 WL 859057, at *2 (Fed. Cl. Spec. Mstr. Feb. 12, 2016) (citations omitted).

Based on my review, Petitioner has made a showing sufficient to justify an award of interim

fees and costs. Criteria that I have found to be important in determining whether an interim award

should be permitted include: 1) if the amount of fees requested exceeds $30,000; 2) where expert

costs are requested, if the aggregate amount is more than $15,000; or 3) if the case has been

pending for more than 18 months. See, e.g., Knorr v. Sec’y of Health & Human Servs., No. 15-

1169V, 2017 WL 2461375 (Fed. Cl. Spec. Mstr. Apr. 17, 2017). The facts relevant to this matter

meet these criteria: the case has been pending since 2005, and the total amount of attorney and

expert fees and costs requested exceeds the minimum thresholds that I find to be appropriate.

Counsel's withdrawal concludes his involvement in the matter, and I find such circumstances

present an appropriate occasion for a fees award even if the matter itself continues for some time.

III. Amounts Requested for Petitioner’s Attorney

I must now determine the magnitude of Petitioner’s attorney’s fee award. Whether an

award is made on an interim basis or after a case’s conclusion, the requested sum must be

“reasonable.” Section 15(e)(1). Special masters may in their discretion reduce attorney hours sua

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sponte, apart from objections raised by Respondent and without providing a petitioner notice and

opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09

(2009); Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992) (special master has

“wide discretion in determining the reasonableness” of attorney’s fees and costs).

Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part

process. The first part involves application of the lodestar method – “multiplying the number of

hours reasonably expended6 on the litigation times a reasonable hourly rate.” Avera v. Sec’y of

Health & Human Servs., 515 F.3d 1343, 1347-48 (2008) (quoting Blum v. Stenson, 465 U.S. 886,

888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant

factors into consideration. Id. at 1348. This standard for calculating a fee award is considered

applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,

461 U.S. 424, 429-37 (1983).

Petitioner asks that her counsel be reimbursed at varying rates for work performed from

2013-2019, as detailed above. In my past decisions, I have determined that Mr. Krakow’s firm,

located in New York, is entitled to forum rates. See, e.g., Laderer v. Sec’y of Health & Human

Servs., No. 09-097V, 2016 WL 3044838, at *3 (Fed. Cl. Spec. Mstr. Apr. 20, 2016). The rates

requested herein (spanning from 2013 through 2018) are also in line with the rates I have awarded

to Mr. Krakow in the past (as well as decisions issued by other special masters). See, e.g., Johnson

v. Sec’y of Health & Human Servs., No. 15-643V, 2018 WL 2772684 (Fed. Cl. Spec. Mstr. Apr.

13, 2018); Moxley v. Sec’y of Health & Human Servs., No. 006-213V, 2017 WL 5080289 (Fed.

Cl. Spec. Mstr. Oct. 12, 2017). Furthermore, Mr. Krakow’s request of $464 per hour for work

completed in 2019 is reasonable, and consistent with the forum rate chart set forth on the Court of

Federal Claims’s website,7 as well as a recent decision issued by Chief Special Master Dorsey. See

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An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant

forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at

*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir.

2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly

qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,

515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be

considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed

on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is

evident. Hensley, 461 U.S. at 434, 437.

In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is

a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum

in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,

(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.

1999)). This “Davis” exception is inapplicable here, however, because I have previously found the attorneys in

question should receive forum rates.

7

See Office of Special Masters Attorneys’ Hourly Rate Fee Schedule: 2019,

https://www.uscfc.uscourts.gov/node/2914 (last accessed on July 26, 2019).

5

Lubin v. Sec’y of Health & Human Servs., No. 17-1147V, slip op. (Fed. Cl. Spec. Mstr. May 17,

2019). I will thus award the rates requested herein without reduction.

Based on my review of counsel’s billing log, the majority of the hours expended on this

matter by Mr. Krakow appear to be reasonable for work spanning a five-year period (and requiring

expert report filing). Despite the underlying nature of the claim, I do not find any particular billing

entries to be objectionable, nor has Respondent identified any as such. However, the nature of the

claim presented justifies some reduction in award. Mr. Krakow appeared in this case after the

OAP's resolution – and hence was on notice that autism injury claims were not likely to succeed.

He has since litigated the claim for over five years. I subsequently dismissed the claim via ruling

on the record, based on my finding that (a) the facts did not establish that K.A. ever experienced

an encephalopathy, and (b) the claim was no different in terms of theory presented than countless

autism claims before it. That ruling was appealed and upheld – but still the matter lives on

(although counsel's withdrawal while the Federal Circuit appeal is pending does suggest his

awareness that further pursuit will be futile).

Under such circumstances, where counsel should recognize a claim's issues but litigates on

despite diminishing returns, it is unjust to award full fees. See, e.g., Anderson v. Sec’y of Health &

Human Servs., No. 02-1314V, 2018 WL 6787880, at *1-2 (Fed. Cl. Spec. Mstr. Nov. 16, 2018);

Pope v. Sec’y of Health & Human Servs., No. 14-078V, 2017 WL 5380926, at *3 (Fed. Cl. Spec.

Mstr. Sept. 11, 2017); R.V. v. Sec’y of Health & Human Servs., No. 08-504V, 2016 WL 7575568,

at *4-5 (Fed. Cl. Spec. Mstr. Nov. 28, 2016). Accordingly (and consistent with my discretion in

appropriate circumstances as discussed in Perreira, 27 Fed. Cl. at 34 and Raymo v. Sec’y of Health

& Human Servs., 129 Fed. Cl. 691, 702-03 (2016) for example), I will cut the total award (which

I am otherwise not reducing) by twenty percent. This means Petitioner shall receive interim fees

in the sum of $83,815.96 (resulting in an overall reduction of $20,953.99).

IV. Requested Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must

also demonstrate that requested litigation costs are reasonable. Perreira, 27 Fed. Cl. at 34;

Presault v. Sec’y of Health & Human Servs., 52 Fed. Cl. 667, 670 (2002). Reasonable costs include

the costs of obtaining medical records and expert time incurred while working on a case. Fester v.

Sec’y of Health & Human Servs., 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).

The requested costs herein (totaling $16,874.64) can be sorted into various categories –

costs to obtain medical records (including mailing and copying charges), transcript fees, and expert

costs. Interim Fees App. at 21-22; Ex. 2 to Interim Fees App. at 33. As to expert costs, Petitioner

requests a total of $16,100.00 for an expert review conducted by Dr. Yuval Shafrir that resulted in

a filed expert report. Interim Fees App. at 21-22; Ex. 5 to Interim Fees App. at 1-2. Dr. Shafrir

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billed for over forty hours of work in the present matter at a rate of $350 per hour. Ex. 5 to Interim

Fees App. at 1-2. This rate is consistent with what I have awarded Dr. Shafrir in my past decisions.

See, e.g., Berrett v. Sec’y of Health & Human Servs., No. 16-011V, 2019 WL 1451308 (Fed. Cl.

Spec. Mstr. Mar. 1, 2019). In addition, I find that Dr. Shafrir’s report offered reasonable guidance

to counsel in reviewing the case (despite its ultimate deficiencies). I will therefore compensate him

in full for his work on this matter at the rate requested.

The copying, filing, and other litigation-related costs are also reasonable, and unopposed

in substance by Respondent. Therefore, I will award a total of $16,874.64 in costs related to the

above-captioned matter.

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 request for

interim attorney’s fees and costs. I therefore award a total of $100,690.60 (representing $83,815.96

in attorney’s fees, plus $16,874.64 in costs) as a lump sum in the form of a check jointly payable

to Petitioner and Petitioner’s counsel, Mr. Robert Krakow, Esq.

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 this decision.8

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

8

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.

7