McDonald v. Secretary of Health and Human Services

CORRECTED

Sn the Gnited States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-1204V

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; TOBE PUBLISHED

MEGAN MCDONALD, as best friend ofher ,

daughter M.G.M. *

. : Special Master Katherine E. Oler

Petitioner, .

*

Vv. : Filed: June 23, 2021

SECRETARY OF HEALTH AND :

HUMAN SERVICES, x Attorneys’ Fees & Costs;

* Reasonable Basis

Respondent :

*

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Patricia A. Finn, Patricia Finn, P.C., Nanuet, N.Y., for Petitioner.

Mary E. Holmes, U.S. Department of Justice, Washington, D.C., for Respondent.

DECISION ON FINAL ATTORNEYS’ FEES AND COSTS!

On August 14, 2018, Megan McDonald (“Petitioner”) filed a petition for compensation

under the National Vaccine Injury Compensation Program,’ alleging that her daughter (“M.G.M.”)

suffered from “neurologic injury, evidenced by her seizures” following the DTaP, HIB and Rotarix

vaccines she received on June 24, 2015 and/or the DTaP, PCV and HIB vaccines she received on

August 25, 2015. Pet., ECF No. 1. At the time, Petitioner was acting pro se. Ms. Finn was retained

by Petitioner and substituted as counsel on March 22, 2019. ECF No. 12. On September 17, 2020,

' This Decision will be posted on the Court of Federal Claims’ website. 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). If, upon review, I agree that the

identified materials fit within this definition, I will redact such material from public access. Otherwise, the

Decision in its present form will be available. Id.

> 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) (“Vaccine

Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that

statutory prefix).

Petitioner filed the instant Motion for attorneys’ fees and costs, requesting $21,053.90 in fees and

$558.65 in costs for a total of $21,612.55. Fees App. Ex 1 at 5, ECF No. 33.

For the reasons discussed below, I hereby GRANT IN PART Petitioner’s application and

award a total of $14,243.68 in final attorneys’ fees and costs.

I Procedural History

Petitioner filed a statement of completion on June 24, 2019. ECF No. 18. On August 27,

2019, Respondent filed a status report indicating that several medical records were still missing

from the record. ECF No. 19. On September 3, 2019, Petitioner was ordered to file any outstanding

records and an amended statement of completion. See Non-PDF Scheduling Order of September

3, 2019. On January 29, 2020, Petitioner filed the outstanding medical records and an amended

statement of completion. Exs. 12-18, ECF Nos. 22-23.

Petitioner filed several medical records in support of her claim. Exs. 1-10, 12-18. Petitioner

also filed an affidavit. Ex. 11.

On April 30, 2020, Respondent filed his Rule 4(c) report, indicating he believed that this

case was “not appropriate for compensation under the terms of the Act.” Resp.’s Rep. at 2, ECF

No. 27. Respondent argued that (1) Petitioner had not established that her daughter was diagnosed

with seizures; and (2), even if she had, Petitioner did not establish that her daughter’s seizures

occurred in a medically appropriate time frame following vaccination. /d. at 13-14.

On May 26, 2020, I held a status conference in this case. See Scheduling Order of May 27,

2020, ECF No. 28. I explained to Ms. Finn that the record did not establish that M.G.M.

experienced seizures; further, there was no clear connection between M.G.M.’s alleged seizures

and her development of headaches more than two years after vaccination. I stated that I found this

temporal gap to be insurmountable. Because Petitioner did not establish a connection between

M.G.M.’s shaking and her headaches, she had not provided proof of severity. I strongly

recommended to Ms. Finn that the case be dismissed because Petitioner had no reasonable chance

of prevailing on the petition. /d. at 1.

Petitioner filed a motion to voluntarily dismiss on June 23, 2020, indicating that “in these

circumstances, to proceed further would be unreasonable and would waste the resources of the

Court, the Respondent, and the Vaccine Program.” Pet’r’s Mot., ECF No. 29 at 1. Petitioner further

indicated that she “understands that a decision by the Special Master dismissing her petition will

result in a judgment against her and the she “has been advised that such a judgment will end all of

her rights in the vaccine program.” Jd. at 2-3.

Petitioner filed this Motion for Attorneys’ Fees and Costs on September 17, 2020. Fees

App., ECF No. 33. On October 5, 2020, Respondent filed a response opposing the motion on the

grounds that Petitioner had failed to establish a reasonable basis for the claim. Fees Resp., ECF

No. 36. Petitioner filed a reply on October 27, 2020. Fees Reply, ECF No. 38.

The matter of final attorneys’ fees and costs in this case is now ripe for a decision.

I. M.G.M.’s Relevant Medical History

M.G.M. was born on February 23, 2015. Ex. 1 at 1. She received DTaP vaccinations on

April 24, 2015, June 24, 2015, and August 25, 2015. /d. She received Prevnar vaccinations on May

22, 2015, July 28, 2015 and August 25, 2015. /d. She also received Hib vaccinations on April 24,

2015, June 24, 2015, and August 25, 2015. Jd.

On August 29, 2015, M.G.M. was seen at SV Pediatrics. Ex. 8 at 3. M.G.M. was reported

to be “shaking x 7-10 seconds, whole body — eyes were closed as she was drinking. Mom pulled

bottle out & she started crying for more.” /d. M.G.M. was diagnosed with a “shaking episode >

R/O seizure” and Petitioner was instructed to take M.G.M. to the emergency room if it repeated.

Id. Her EEG at this visit was considered normal. Ex. 3 at 1.

On September 1, 2015, M.G.M. was seen by Dr. Shefali Karkare. Ex. 14 at 5. Dr. Karkare

assessed that M.G.M. suffered “possible seizure though a shuddering spell/sleep myoclonus or

reflux are in the differential.” Ex. 7 at 3.

On September 24, 2015, M.G.M. was again seen at Stony Brook University Hospital for

“seizure-like activity.” Ex. 3 at 1. Dr. Tulka Narain described the episode as characterized with

“stiff extended arms that shook for 5-6 seconds then patient fell asleep for about 10 min and was

appear[ing] foggy upon awakening. The patient returned to baseline after about 15min.” Dr. Narain

noted that M.G.M. was up to date on her vaccinations and meeting her developmental milestones.

Id. at 3. M.G.M. was given an EEG and instructed to follow up within 3-5 days. /d. at 4.

On September 27, 2015, M.G.M. was seen by Dr. Faiz Ahmed for a cough. Dr. Ahmed

wrote that “Pt was brought to the hospital 3 days ago for 2 episodes of shaking, and seizures were

ruled out.”

On November 2, 2015,> M.G.M. was seen for an MRI at SV Pediatrics. Ex. 17 at 23. On

the diagnosis line is written “seizure-like activity.” /d.

On November 21, 2017, Dr. Nachman saw M.G.M. for a follow up regarding her possible

seizures following her DTaP vaccination. Ex. 16 at 39. Regarding this visit, Dr. Nachman noted

that:

I do not believe that these seizures were specific to that vaccine. [W]hile we

consider any reaction within 4 weeks of a vaccine to be possibly related, in the

literature, all vaccine reported seizures occur with[in] 72 hours. [T]he interval

between vaccine and seizure was outside that window. [I]t is possible that they were

related to an intercurrent viral illness, but I have no evidence that this was

investigated (either ruled in or ruled out).

Id.

> This procedure took place on either November 2, 2015 or October 29, 2015. The date of the procedure is

listed as November 2, 2015, but the “date examined” is listed as October 29, 2015. Ex. 17 at 23.

3

On January 23, 2018, M.G.M. was seen by Dr. Ivan Pavkovic for headaches. Dr. Pavkovich

noted in the medical history that M.G.M. was “seen previously in the neurology clinic due to

seizure like activity that occurred after pertussis immunization.” Ex. 12 at 10.

On April 23, 2018, Dr. Pavkovik wrote a letter indicating that he had again seen M.G.M.

for headaches. He noted that she had “possible seizure after pertussis immunization” and the

medical literature indicated that receipt of the DTaP vaccine “did not show an increased risk for

seizures.” Ex. 12 at 5.

On July 3, 2018, M.G.M. was seen for a follow up visit with Dr. Nachman for “seizure

soon after receiving DTAP vaccine.” Ex. 5 at 1. The notes from this visit indicate that M.G.M.’s

blood tests “show good response to MMR, HepA, diphtheria, and tetanus vaccine, but poor

response to pertussis vaccine.” Ex. 5 at 1. At this visit, Dr. Nachman diagnosed M.G.M. with

“other serum reaction due to vaccination.” Ex. 16 at 26.

On the same day, Dr. Nachman wrote a letter on behalf of M.G.M., explaining that:

M.G.M was seen on July 3, 2018. [S]he has documented responses to many of her

vaccinations, including MMR, Hep A and tetanus. [S]he has a poor response to pertussis

vaccine. [D]ue to seizures associated with DTAP, she will not be getting any additional

pertussis vaccines.

Ex. 4 at 1.

On July 12, 2018, Dr. Pavkovic wrote a letter on behalf of M.G.M. stating that “M.G.M. is

under my care for headaches. MR imaging of the brain was normal. She does have a past history

of possible seizure activity at about 6 months.” Ex. 6 at 1. Dr. Pavkovic further stated that

“migraines and epilepsy do occur more commonly together during childhood. The exact

relationship between these disorders is not known but there are likely common genetic factors that

predispose to both disorders.” /d.

Tl. Petitioner’s Affidavit

On January 29, 2020, Petitioner submitted an affidavit. Ex. 11. Petitioner stated that “Ever

since M.G.M. was vaccinated on August 25, 2015, and experienced her seizures, she has never

been the same. M.G.M. is often tired and irritable and appears to be in pain.” /d. at 2. Petitioner

further stated that “I have observed these episodes of head pain consistently which appear to be

very painful for M.G.M. since the onset of the first seizure three days after vaccination on August

25, 2015.” /d. Finally, Petitioner confirmed that M.G.M. continues to suffer from head pain today.

Id.

IV. Parties’ Arguments

Respondent argues that Petitioner has failed to establish a reasonable basis for her claim

and is not eligible for an award of attorneys’ fees and costs. Fees Resp. at 6. Citing the Federal

Circuit’s decision in Perreira, Respondent argues that in a reasonable basis inquiry, “a court

should look not at the likelihood of success, but instead assess the feasibility of the claim, and

[P]etitioner must offer more than an unsupported assertion that a vaccine caused an injury.” /d. at

8 (citing Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375

(Fed. Cir. 1994). Respondent argues that prior to accepting a case, “an attorney should be able to

distinguish a case that has reasonable underpinnings from one that does not.” /d. at 5 (citing

Murphy v. Sec’y of Health & Hum. Servs., 30 Fed. Cl. 60, 62 (1993), aff'd, 48 F.3d 1236 (Fed. Cir.

1995)). Respondent further points out that the evaluation of whether there is a reasonable basis for

the claim must focus on whether there is evidentiary support set forth in the petition. /d. at 6 (citing

Simmons vy. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017)).

Respondent argues that Petitioner’s claim “lacked proof of diagnosis, severity, and

causation,” and therefore lacks reasonable basis. Fees Resp. at 6. Respondent further argues that

“the evidence in the record does not establish that M.G.M. suffered a neurologic injury or that her

two shaking episodes documented in 2015 were, in fact, seizures,” and therefore “lacking objective

evidence of any definable injury, petitioner’s claims cannot be found to have reasonable basis.”

Id. at 7.

Petitioner replied to Respondent arguing that a reasonable basis did exist at the time the

petition was filed. See Fees Reply. Petitioner points to medical records showing documentation

recording M.G.M.’s seizure activity and a previous “poor response to pertussis vaccine, due to

seizures associated with DTAP...”. Fees Reply at 5. Petitioner also argues that the Petition cites

to Dr. Nachman’s July 3, 2018 letter which stated that M.G.M. was exempt from receiving any

further pertussis.” /d. at 4; see also Ex. 2 at 1.

Vv. Legal Standard

Under the Vaccine Act, an award of reasonable attorneys’ fees and costs is presumed where

a petition for compensation is granted. Where compensation is denied, or a petition is dismissed,

as it was in this case, the special master must determine whether the petition was brought in good

faith and whether the claim had a reasonable basis. § 15(e)(1).

A. Good Faith

The good faith requirement is met through a subjective inquiry. Di Roma vy. Sec’y of Health

& Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such

a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly believed

he had a legitimate claim for compensation.” 7urner v. Sec’y of Health & Hum. Servs., No. 99-

544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad

faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum.

Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that her claim

could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs.,

No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993

WL 496981, at *1); Turner, 2007 WL 4410030, at *5.

B. Reasonable Basis

Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a

petitioner’s belief in her claim. Zurner, 2007 WL 4410030, at *6-7. Instead, the claim must at least

be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v.

Sec’y of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.

Nov. 3, 2015).

While the statute does not define the quantum of proof needed to establish reasonable basis,

it is “something less than the preponderant evidence ultimately required to prevail on one’s

vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of

Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no

evidence would not be found to have reasonable basis....” /d. at 286. The Court in Chuisano found

that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to

establish reasonable basis. /d. at 290; see also Turpin v. Sec'y Health & Hum. Servs., No. 99-564V,

2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when

petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No.

99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis

when petitioner presented only e-mails between her and her attorney). The Federal Circuit has

affirmed that “more than a mere scintilla but less than a preponderance of proof could provide

sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health &

Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. Aug. 19, 2020) (finding Petitioner

submitted objective evidence supporting causation when she submitted medical records and a

vaccine package insert); see also James-Cornelius v. Sec'y of Health & Hum. Servs., 984 F.3d

1374, 1380 (Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation did

not by itself negate the claim's reasonable basis.”).

Temporal proximity between vaccination and onset of symptoms is a necessary component

in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to

establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.

The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded

that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable

basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed.

Cir. 2017). Further, an impending statute of limitations should not even be one of several factors

the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade,

altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in

determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health &

Hum. Servs., 138 Fed. Cl. 282, 289 (2018).

“{I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements

for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient

evidence to make a feasible claim for recovery.” Santacroce v. Sec 'y of Health & Hum. Servs., No.

15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award

compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by

medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal

Claims have interpreted this provision to mean that petitioners must submit medical records or

expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &

Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. Servs., 35

Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table

theory where medical records fail to establish a Table injury).

When determining if a reasonable basis exists, many special masters and judges consider

a myriad of factors. The factors to be considered may include “the factual basis of the claim, the

medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the

theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to

look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of

Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,

2007).

C. Attorneys’ Fees and Costs

The Vaccine Act permits reimbursement of “reasonable” attorneys’ fees and costs. §

15(e)(1). Special masters have “wide latitude in determining the reasonableness of both attorneys’

fees and costs.” Hines v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750, 753 (1991). The Federal

Circuit has endorsed the use of the lodestar approach, in which a court first determines “an initial

estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably expended

on the litigation times a reasonable hourly rate.’” Avera v. Sec’y of Health & Hum. Servs., 515

F.3d 1343, 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The court may then

make an upward or downward departure from the initial calculation based on other specific

findings. /d. at 1348. Although not explicitly stated in the statute, attorneys’ costs are also subject

to a reasonableness requirement. See Perreira, 27 Fed. Cl. 29 at 34.

Petitioner bears the burden of establishing that the rates charged, hours expended, and costs

incurred are reasonable. Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1993).

However, special masters may reduce awards sua sponte, independent of enumerated objections

from the respondent. Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl.

2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 318 (Fed. Cl. 2008), aff'd No. 99-

573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008). Special masters may look to their

experience and judgment to reduce an award of fees and costs to a level they find reasonable for

the work performed. Saxton v. Sec ’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993).

VI. Discussion

A. Good Faith

Petitioner is entitled to a presumption of good faith. See Grice, 36 Fed. Cl. 114 at 121.

Respondent has not represented that they are contesting good faith in this matter. See generally

Fees Resp. Based on my own review of the case, I find that Petitioner acted in good faith when

filing this petition.

B. Reasonable Basis

As noted above, the standard for establishing reasonable basis is lower than that required

to prevail on a vaccine-injury claim. Chuisano, 116 Fed. Cl. 276 at 287. For the following reasons,

I find that a reasonable basis existed for filing this petition.

M.G.M.’s medical records indicate that (1) she received the DTaP vaccine on August 25,

2015 and (2) she suffered from two “shaking” or “seizure-like” episodes shortly thereafter. See

Exs. 1 and 3. The provider notes from one appointment following this visit indicate that that one

of M.G.M.’s treating physicians contemplated a link between the DTaP vaccine and M.G.M.’s

seizure-like activity. See Ex. 12 at 10 (M.G.M. was “seen previously in the neurology clinic due

to seizure like activity that occurred after pertussis immunization.”). Furthermore, Dr. Nachman

exempted M.G.M. from further pertussis vaccines (Ex. 4 at 1) and Dr. Pavkovic suggested that a

link may exist between M.G.M.’s past possible seizure activity and her current headaches. Ex. 6

at 1.

Respondent argued that “By the time Dr. Nachman provided the 2018 note, she had already

acknowledged that a seizure diagnosis had been ruled out and determined that M.G.M.’s shaking

episodes were not related to her vaccinations.” Fees Resp. at 7, citing Ex. 16 at 37-39. First, it does

not appear that Dr. Nachman noted that a seizure diagnosis was ruled out.* See Ex. 16 at 39 (Dr.

Nachman indicating “I do not believe these seizures were specific to that vaccine”).°

Additionally, Dr. Nachman wrote the July 3, 2018 letter after the visit cited by Respondent,

which took place on November 21, 2017. In her letter dated July 3, 2018, Dr. Nachman specifically

expressed her medical opinion that M.G.M. should not receive further pertussis vaccinations. /d.

It is clear that the November 21, 2017 record from Dr. Nachman is at least partially inconsistent

with the letter she wrote on July 3, 2018. Had Dr. Nachman drafted her letter exempting M.G.M.

from pertussis vaccines before her November 21, 2017 visit with M.G.M., where she wrote “I do

not believe these seizures were specific to that vaccine”, I would likely have given the July 2018

letter less weight. As it stands, I have credited this exemption as some evidence that supports

Petitioner’s reasonable basis to file the petition.

M.G.M.’s medical records also include a letter from Dr. Ivan Pavkovic dated July 12, 2018.

Ex. 6. Dr. Pavkovic stated that “M.G.M. is under my care for headaches. MR imaging of the brain

was normal. She does have a past history of possible seizure activity at about 6 months. /d. at 1.

Dr. Pavkovic further stated that “migraines and epilepsy do occur more commonly together during

childhood. The exact relationship between these disorders is not known but there are likely

common genetic factors that predispose to both disorders.” /d. This letter at least contemplates a

connection between M.G.M.’s headaches and her seizure-like activity.

* Although Respondent argues that M.G.M. suffered from “shaking episodes” rather than seizures (Fees

Resp. at 7), several medical records at least contemplate the existence of seizures. See, e.g., Ex. 8 at 3

(M.G.M. diagnosed with “shaking episode > R/O seizure”); Ex. 7 at 3 (M.G.M. diagnosed with “possible

seizure though a shuddering spell/sleep myoclonus or reflux are in the differential.”).

> In a single medical record from September 27, 2015, Dr. Faiz Ahmad wrote that “Pt was brought to the

hospital 3 days ago for 2 episodes for shaking, and seizures were ruled out.” Ex. 17 at 18. However, this

record is contradicted by the several other medical records surrounding it. On September 24, 2015, Dr.

Narian wrote that M.G.M. was brought to the hospital for “seizure-like activity.” Ex. 3 at 4. And, on

November 2, 2015, M.G.M. was seen for an MRI for “seizure-like activity.” Further, it is unclear what led

Dr. Ahmad to conclude that seizures were ruled out. The record does not provide an explanation.

Accordingly, while the September 27, 2015 record does constitute some evidence that seizures were ruled

out in M.G.M.’s case, there is other medical record evidence for the contrary proposition.

Finally, in Petitioner’s affidavit, she stated that “Ever since M.G.M. was vaccinated on

August 25, 2015, and experienced her seizures, she has never been the same. M.G.M. is often tired

and irritable and appears to be in pain.” Ex. 11 at 2. Petitioner further stated that “I have observed

these episodes of head pain consistently which appear to be very painful for M.G.M. since the

onset of the first seizure three days after vaccination on August 25, 2015.” /d. I have considered

this evidence in finding that a reasonable basis existed in this case. See James Cornelius, 984 F.3d

at 1380 (“While lay opinions as to causation or medical diagnosis may be properly characterized

as mere “subjective belief” when the witness is not competent to testify on those subjects, the same

is not true for sworn testimony as to facts within the witness’s personal knowledge, such as the

receipt of a vaccine and the timing and severity of symptoms. ... Indeed, for many medical

symptoms or events—such as a headache and other pain, dizziness, nausea, and vomiting—the

patient’s or a parent’s testimony may be the best, or only, direct evidence of their occurrence.”).

In short, Dr. Nachman exempted M.G.M. from future pertussis vaccines. Petitioner stated

in her affidavit that M.G.M. appeared to experience headaches beginning at the ttme M.G.M.

suffered from her seizure-like activity shortly after receipt of the DTaP vaccine. When considered

in conjunction with Dr. Pavkovic’s letter, Petitioner has presented some minimal evidence that

M.G.M.’s DTaP vaccination caused her seizure-like activity, which may have been associated with

her headaches.

I find that the totality of the evidence outlined above, in combination with the reduced

standard of proof required for establishing reasonable basis, is sufficient to provide Petitioner with

a reasonable basis to file this petition.

VII. Attorneys’ Fees

Petitioner requests a total of $21,053.90 in attorneys’ fees. Fees App. at 1, ECF No. 33.

A. Reasonable Hourly Rate

A reasonable hourly rate is defined as the rate “prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d

at 1348 (quoting Blum, 465 US. at 896 n.11). In general, this rate is based on “the forum rate for

the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's

attorney.” Rodriguez v. Sec’y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)

(citing Avera, 515 F. 3d at 1349).

McCulloch provides the framework for determining the appropriate compensation for

attorneys’ fees based upon the attorney’s experience. See McCulloch v. Sec'y of Health & Hum.

Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of

Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for

subsequent years.°

° The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%

27% 20Forum%20Rate%20Fee%20Schedule%202018.pdf.

9

Petitioner requests the following hourly rates for the attorney and paralegals who have

worked on this matter to date:

Name 2018 2019 2020

Patricia Finn $396.00 | $405.00 | $422.00

Paralegals $153.00 | $156.00 | $163.00

The requested rates represent a substantial increase from what Ms. Finn has typically been

awarded in previous cases. Although it appears as though Ms. Finn has not requested fees since

2019,’ in 2018, Special Master Sanders reduced Ms. Finn’s rate to $307.00 per hour for 2017, the

lowest end of the McCulloch range for an attorney with her experience. See Silver v. Sec’y of

Health & Hum. Servs., No. 16-1019V, 2018 U.S. Claims LEXIS 1057 at *15 (Fed. Cl. Spec. Mstr.

July 31, 2018). Ms. Finn asked for and received $352.00 per hour in 2018 in Hill v. Sec 'y of Health

& Hum. Servs., No. 15-678V, 2018 U.S. Claims LEXIS 978 at *13 (Fed. Cl. Spec. Mstr. July 25,

2018).

In determining a reasonable hourly rate for Ms. Finn, I have considered her experience in

the Vaccine program, her overall legal experience, the quality of the work performed, and her

reputation in the legal community and the community at large. McCulloch, 2015 U.S. Claims

LEXIS at *17. Ms. Finn has been practicing law since 2003 and has worked in the Vaccine

Program since the same year. Fees App. at 15. It appears that Ms. Finn has not requested fees in

any case since 2019, and between 2018 and 2019, submitted only three motions for fees. Streeter

v. Sec 'y of Health & Hum. Servs., No. 18-138V, 2019 WL 7341596 (Fed. Cl. Spec. Mstr. Nov. 19,

2019); Si/ver, 2018 U.S. Claims LEXIS 1057; Hi//, 2018 U.S. Claims LEXIS 978.

In this case, Ms. Finn was instrumental in leading the case to a speedy resolution. However,

Ms. Finn did not need to file an expert report, filed ten medical records, and only participated in

one status conference prior to dismissal of the case. I find that Ms. Finn is more appropriately

compensated somewhere in the middle of the range for an attorney of her experience.

I therefore will award Ms. Finn $352.00 per hour in 2018 for attorney work, the same as

she requested — and was awarded — in Hill. McCulloch suggests a raise of 3.7% for each year. I

The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%

27% 20Forum%20Rate%20Fee%20Schedule%202019 pdf.

The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL

5634323.

The 2020 Fee Schedule can be accessed at: http:/Avwww.uscfc.uscourts.gov/sites/default/files/Attorneys%

27% 20Forum%20Rate%20Fee%20Schedule%202020.PPI OL.pdf

The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL

5634323.

Tn 2019, Ms. Finn asked for and received attomeys’ fees and costs in the amount of $29,301.89 in Streeter

v. Sec ’'y of Health & Hum. Servs., No. 18-0138V, 2019 WL 7341596. The decision awarding fees, however,

does not include a breakdown of Ms. Finn’s hours expended or the rate awarded.

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therefore will award Ms. Finn $365.00 per hour in 2019, and $378.00 per hour in 2020 for attorney

work,

B. Hours Reasonably Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the

litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion

to reduce the hours to a number that, in [her] experience and judgment, [are] reasonable for the

work done.” Saxton ex rel. Saxton v. Sec'y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir.

1993). In exercising that discretion, special masters may reduce the number of hours submitted by

a percentage of the amount charged. See Broekelschen v. Sec'y of Health & Hum. Servs., 102 Fed.

Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours);

Guy v. Sec'y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master's

reduction of attorney and paralegal hours). While attorneys may be compensated for non-attorney-

level work, the rate must be comparable to what would be paid for a paralegal or secretary. See

O'Neill v. Sec'y of Health & Hum. Servs., No. 08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec.

Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who

performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Fees

App., Tab 2. A reduction in the numbers of hours billed by Ms. Finn is appropriate, as some of the

time billed by Ms. Finn is excessive and administrative in nature.

As an initial matter, Ms. Finn is encouraged to refrain from block billing in future cases.

For example, on September 9, 2020, Ms. Finn billed 2.6 hours with the following explanation:

“Pacer run, reviewed docket review of accuracy with invoice attorneys fees, checked dates, times

in dbox, reviewed all entries.” Fees App Ex. 1 at 5. Items such as checking dates are secretarial

and are not compensable in the Vaccine Program. To receive credit for compensable line items,

Ms. Finn is encouraged to avoid block billing in the future.

In this case, Ms. Finn billed approximately 80 hours for both attorney and paralegal time.

In that span, Ms. Finn filed ten medical records, attended a single status conference, and filed a

voluntary motion to dismiss. In my experience, this amount of time billed for this amount of work

is excessive. As one example, I note that Ms. Finn billed one (1) hour for preparing the Motion to

Dismiss on June 17, 2021. Fees App. Ex. 1 at 5.8 However, this appears to be a nearly verbatim

copy of the sample filing available on the Court’s website.” Minimal changes to conform a sample

filing to the instant case should not take an attorney of Ms. Finn’s experience one full hour. In

addition, Ms. Finn spent nearly ten hours preparing the instant Motion. See Fees App. Ex. 1 at 5.

* Ms. Finn also spent 1.1 hours preparing the motion to substitute counsel, another form available on the

Court’s website. See https://www.uscfc.uscourts.gov/sites/default/files/Corrected%20Motion%:20for%20

Substitution%20o0f%20Counsel pdf.

° Available at https://www uscfc.uscourts.gov/sites/default/files/Motion%20for%20Decision.pdf

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Case 1:18-vv-01204-UNJ Document 39 Filed 06/23/21 Page 12 of 13

In addition, many of Ms. Finn’s billing entries are vague’ or administrative!’ in nature.

Billing for administrative tasks is not compensable. See Rochester v. United States, 18 Cl. Ct. 379,

387 (1989) (stating that services that are “primarily of a secretarial or clerical nature ... should be

considered as normal overhead office costs included within the attorneys’ fee rates”); see also

Mostovoy v. Sec'y of Health & Hum. Servs., No. 02-10, 2016 WL 720969, at *5 (Fed. Cl. Spec.

Mstr. Feb. 4, 2016) (citing “reviewing invoices, setting up meetings, and making travel

arrangements” as examples of administrative tasks); Macrelli v. Sec'y of Health & Hum. Servs.,

No. 98-103, 2002 WL 229811, at *7 (Fed. Cl. Spec. Mstr. Jan. 30, 2002) (stating that “time spent

performing secretarial tasks is to be subsumed in the overhead costs of practicing law and is not

reimbursable’); [som v. Sec’y of Health & Hum. Servs., No. 94-770, 2001 WL 101459, at *2 (Fed.

Cl. Spec. Mstr. Jan. 17, 2001) (agreeing with respondent that tasks such as filing and photocopying

are subsumed under overhead expenses).

Due to the number of entries that are excessive, vague, or administrative, I will reduce Ms.

Finn’s fee award by 35%, or $7,368.87.

Total attorneys’ fees to be awarded: $13,685.03.

C. Reasonable Costs

Petitioner requests a total of $558.65 in filing fees, medical records, and postage costs. I

have reviewed these expenditures and find them to be reasonable.” I therefore award them in full.

I note that these costs include several payments made by Petitioner out of pocket, including

the Court’s filing fee ($400.00) and the cost of obtaining two medical records from Verisma ($51.92

and $66.60 respectively). Accordingly, this shall be awarded as a separate amount, in a check solely

payable to Petitioner.

Total costs to be awarded: $558.65.

'0 See, e.g., entries on December 26, 2018 (“email from DOH Fielding re budget impasse re NOA”), May

26, 2020 (“Pacer run’), September 11, 2020 (“Ran Pacer’).

'l See, e.g., entries on March 4, 2019 (“prepared docs mail to Court DOJ re NOS”), 6/20/2019

(“Downloaded pacers docs uploaded to Dbox in client’s file; rebuilt entire file”), 6/21/2019 (“Reviewed all

court docs, eliminated duplicates in dbox from Meghan...”); 6/24/2019 (“Labeled exhibits for filing and

rescanned for scan/PDF, uploaded to ECF; w SOC’).

" Petitioner did not include a receipt for $25.00 in costs for FedEx shipping, which Ms. Finn included in

her billing records. I find this to be a reasonable price for FedEx and will reimburse it.

'3 Costs borne by Ms. Finn include: $25.00 (Fed Ex) + $6.00 (medical records) + $9.13 (medical records)

= $40.13.

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VIII. Conclusion

Accordingly, in the exercise of the discretion afforded to me in determining the propriety of

fee and cost awards, and based on the foregoing, | GRANT IN PART Petitioner’s application, as

follows:

A lump sum in the amount of $13,725.16, representing reimbursement of Petitioner’s final

attorneys’ fees and costs in the form of a check jointly payable to Petitioner and her attorney,

Ms. Patricia Finn.

A lump sum in the amount of $518.52, representing reimbursement of Petitioner’s costs in

the form of a check payable to Petitioner.

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 this decision."

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler

Special Master

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice

renouncing the right to seek review.

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