Humphries v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-288V

(to be published)

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COOPER J. HUMPHRIES, *

* Chief Special Master Corcoran

Petitioner, *

*

v. * Filed: October 26, 2021

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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Jessica Ann Wallace, Siri & Glimstad, LLP, New York, NY, Petitioner.

Mark Kim Hellie, U.S. Dep’t of Justice, Washington, DC, Respondent.

DECISION GRANTING ATTORNEY’S FEES AND COSTS 1

On March 1, 2017, Cooper Humphries filed a petition seeking compensation under the

National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleged that he

had experienced Postural Orthostatic Tachycardia Syndrome (“POTS”) due to the administration

of the human papillomavirus (“HPV”) vaccine on July 1, 2015, and an additional dose on August

14, 2015. Petition (ECF No. 1) at 1–2. Not long after the case was reassigned to me, Petitioner

1

Because this Decision contains a reasoned explanation for my actions in this case, it must be posted on the United

States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).

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) (“Vaccine Act” or “the Act”).

Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

moved for dismissal on March 25, 2021 (ECF No. 67), and a decision granting the motion was

entered on April 9, 2021. ECF No. 69.

Before I became responsible for this matter, Petitioner had previously requested an interim

award of attorney’s fees and costs on March 4, 2020. Motion for Interim Attorney’s Fees and

Costs, dated March 4, 2020 (ECF No. 52) (“Interim Fees Mot.”). Petitioner received $74,873.36,

representing $42,901.50 in fees and $31,971.86 in costs, with minor adjustments to rates or

requested but unsubstantiated costs. Decision, dated December 4, 2020 (ECF No 59) (“Interim

Fees Decision”), at 13.

Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion,

dated Sept. 27, 2021 (ECF No. 73) (“Final Fees Mot.”). Petitioner requests $27,453.10 in fees and

costs for the work of two attorneys, Ms. Jessica A. Wallace and Ms. Debra A. Gambella, and three

paralegals. Id. at 22. Petitioner also seeks $10,312.50 solely for expert costs. Id. at 10. Respondent

reacted to the final fees request on October 12, 2021. See Response, dated Oct. 12, 2021 (ECF No.

74) (“Response”). Respondent requests I apply discretion in determining the appropriateness, and

scope, of any fees award, and does not otherwise formally concede to or oppose the motion.

For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion, awarding

fees and costs in the total amount of $24,707.79 reflecting $15,426.54 in attorney’s fees and

$9,281.25 in costs.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Although the Vaccine Act only guarantees a reasonable award of attorney’s fees and costs

to successful petitioners, a special master may also award fees and costs in an unsuccessful case

if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for the claim

for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth at length

the criteria to be applied when determining if a claim possessed “reasonable basis” sufficient for a

fees award. See, e.g., Sterling v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443,

at *4 (Fed. Cl. Spec. Mstr. Jan. 3, 2020). Importantly, reasonable basis is only a threshold

requirement in unsuccessful cases—establishing it does not obligate a special master to award

fees, and the calculation of the sum to be awarded is otherwise subject to the same reasonableness

standards governing all fees determinations.

A claim’s reasonable basis must be demonstrated through some objective evidentiary

showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)

(citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This

objective inquiry is focused on the claim itself—counsel’s conduct in prosecuting the claim is

irrelevant (although it may bulwark good faith). Simmons, 875 F.3d at 635. Reasonable basis

2

inquiries are not static—they evaluate not only what was known at the time the petition was filed,

but also take into account what was learned about the evidentiary support for the claim as the

matter progressed. Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994)

(upholding the finding that a reasonable basis for petitioners’ claims ceased to exist once they had

reviewed their expert's opinion, which consisted entirely of unsupported speculation).

The standard for reasonable basis is lesser (and thus inherently easier to satisfy) than the

preponderant standard applied when assessing entitlement, as cases that fail can still have

sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 144 Fed.

Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable basis is a standard

that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of Health &

Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) (affirming special

master). The factual basis and medical support for the claim is among the evidence that should be

considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 378 (Fed. Cl. 2017). Under

the Vaccine Act, special masters have “maximum discretion” in applying the reasonable basis

standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401, 401–02 (Fed. Cl.

2012). 3

This claim’s overall background bears on its reasonable basis. The determination to seek

dismissal came four and one-half years after the matter’s initiation—and thus after substantial time

had been invested in the case (as reflected by the prior interim fees award). In addition, issues with

the claim’s substantive merit were raised four years ago, in Respondent’s initial Rule 4(c) Report,

which identified the extent to which Petitioner relied on the primarily temporal association

between vaccination and Petitioner’s POTS. Report, dated August 24, 2017 (ECF No. 11)

(“Report”) at 12. Thereafter, Petitioner filed eight expert reports or supplemental reports, while

Respondent filed seven. This is a significant amount of work to be performed in a case that will

not be resolved formally.

Now, however, rather than let the matter be determined through the Vaccine Program,

Petitioner has made the tactical choice to withdraw, preferring instead to seek adjudication as part

of a class action claim pending against the HPV vaccine’s manufacturer, Merck. ECF No. 67 at 1.

This is not the first instance in which a Vaccine Program claimant has made such a choice. See,

e.g., Miller v. Sec’y of Health & Hum. Servs., No. 17-1476V, 2020 WL 7868161 (Fed. Cl. Spec.

Mstr. Nov. 24, 2020); Otto v. Health & Hum. Servs., No. 16-1144, 2020 WL 4719285 (Fed. Cl.

Spec. Mstr. June 17, 2020). While I have been lenient in permitting dismissal in this context, based

on the overarching view that a claimant should be “master of his claim,” I have also noted that the

determination to dismiss suggests a lack of faith in the claim’s likely Program success—and that,

based on my treatment of similar claims involving the HPV vaccine, the theories underlying them

3

See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they

would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is

consistent with the Vaccine Act as a whole).

3

are largely unpersuasive.

Despite the above, I find that (given the leniency of the reasonable basis standard) the claim

had sufficient objective support to entitle Petitioner to a fees and costs award of some amount. The

fact of Petitioner’s post-vaccination injury is not disputed, there is some treater support in the

record for a vaccine association, and Petitioner offered competent experts to bulwark his claim.

Thus, the “scintilla of evidence” standard governing reasonable basis supports a finding on this

issue in Petitioner’s favor. I have certainly granted attorney’s fees awards in prior cased involving

the HPV vaccine and POTS or other similar injuries implicating dysautonomia, despite my

misgivings as to the strength of scientific basis for the claim. See, e.g., K.B.H. v. Sec’y of Health

& Hum. Servs., No. 17-1739V, 2021 WL 1344029 (Fec. Cl. Spec. Mstr. Jan. 8, 2021); McKown v.

Sec’y of Health & Hum. Servs., No. 15-145V, 2019 WL 7604714 (Fed. Cl. Spec. Mstr. Dec. 18,

2019); Johnson v. Sec’y of Health & Hum. Servs., No. 14-254V, 2018 WL 3991262 (Fed. Cl. Spec.

Mstr. July 3, 2018).

II. Calculation of Fees

Determining the appropriate amount of the fees award is a two-part process. The first part

involves application of the lodestar method— “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 (Fed. Cir. 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).

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the

proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,

for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there

is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348

(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges

for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine

Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at

*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Petitioner requests the following rates for her attorneys and support staff, based on the

years work was performed:

4

Attorney 2020 2021

Ms. Debra Gambella, Esq. -- $380.00

Ms. Jessica Wallace, Esq. $231.00 $241.00

Paralegal

Ms. Jessica Wallace (as paralegal) $162.00 $168.00

Ms. Kimberly Hertz $162.00 $168.00

Ms. Jennifer Malainy $162.00 --

Ms. Patricia Chen $162.00 --

Final Fees Mot. at 23.

Ms. Gambella and Ms. Wallace practice in New York City—a jurisdiction that has been

deemed “in forum.” Accordingly, they are entitled to the rates established in McCulloch. See

Mulliken v. Sec’y of Health & Hum. Servs., No. 13-635V, 2017 WL 3298976, at *2 (Fed. Cl. Spec.

Mstr. July 5, 2017).

The rates requested for Ms. Wallace are also consistent with what has previously been

awarded for her time, in accordance with the Office of Special Masters’ fee schedule and previous

interim fees in this case. 4 Aagotnes v. Sec’y of Health & Hum. Servs., No. 18-631V, 2021 WL

815916 at *3 (Fed. Cl. Spec. Mstr. July 20, 2021) (lowering Ms. Wallace’s requested rates to that

requested in 2020). Ms. Gambella’s rate has not previously been addressed in any prior fees

determinations, but the rate for the single year she performed work on this case is in accordance

with the fee schedule and her overall expertise. Final Fees Mot. at 25. I thus find no cause to reduce

them in this instance. I also will award the time billed to the matter since the date of the interim

fees award (subject to the overall reduction discussed below).

III. Calculation of Attorney’s Costs

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

also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.

Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).

Reasonable costs include the costs of obtaining medical records and expert time incurred while

working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at

*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as

by not providing appropriate documentation to explain the basis for a particular cost, special

4

OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Mar.

22, 2021).

5

masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health

& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioner seeks $10,312.50 in costs, solely based on the fees incurred since the interim

award for the work of expert Svetlana Blitshteyn, M.D. and Lawrence Steinman, M.D. ECF No.

73, Ex. 2 at 10. Dr. Blitshteyn’s final invoice was of $7,700.00, and Dr. Steinman’s was for

$2,612.50. Id. That prior interim award granted Dr. Blitshteyn $10,375.00, and Dr. Steinman

$3,000.00 (ECF No. 59 at 12)—so all told, expert costs in this matter approached $25,000.00. Dr.

Blitshteyn’s hourly rate is $400.00 per hour, and Dr. Steinman’s rate is $550.00 per hour, both of

which I find reasonable. The final sums to be awarded them are consistent with what they received

in the interim award, and I make no adjustments (other than the across-the-board adjustment set

forth below) to the time they billed.

IV. Reduction of Award in Light of Dismissal and Claim Weakness

I am permitting a final award in this case even though the claim was literally unsuccessful.

However, the context in which this case was dismissed, and the history of similar dismissals

involving the HPV vaccine, compels me to impose some limitation on the total amount to be

awarded.

As noted, many other petitioners have recently opted to dismiss a pending Vaccine

Program case, essentially because their counsel have sought what they likely deem “higher

ground” from which to prosecute the claim (and perhaps also based on the sense that the claim was

unlikely to succeed in this forum). I have sustained dismissal requests in such circumstances over

the Respondent’s objection—but I have also warned claimants that there were costs to using the

Program as a “pass through,” especially if the fees incurred were substantial. Otto v. Sec’y of

Health & Hum. Servs., No. 16-1144, 2020 WL 5031956, at *2 (Fed. Cl. Spec. Mstr. July 24,

2020). 5 Since the first time this issue was presented to me in Otto, I have allowed dismissal of

several similar claims, as have other special masters. See e.g., Summers v. Sec’y of Health & Hum.

Servs., No. 20-1280V, 2021 WL 4065532 (Fed. Cl. Spec. Mstr. Aug. 10, 2021); Sicard v. Sec’y of

Health & Hum. Servs., No. 16-332V, 2021 WL 778040 (Fed. Cl. Spec. Mstr. Jan. 13, 2021).

Special masters need not engage in a line-by-line review of fees requests when making

reductions, and in fact are permitted to make fair across-the-board cuts. Hammitt v. Sec’y of Health

& Hum. Servs., No. 07-170V, 2011 WL 1827221, at *3 (Fed. Cl. Spec. Mstr. April 7, 2011). And

5

As discussed in Otto, individuals who believe they were injured by a vaccine have the ability under the Act to bring

a certain kind of claim against the manufacturer, but only if they first satisfy their remedies in the Program. Otto, 2020

WL 5031956, at *2. It is thus not literally improper to file a Program claim, and then later “pull” it for the purpose of

bringing a slightly different version of the claim against the manufacturer (even though the Act expressly limits the

nature of that claim). See Sections 21-23. And although the Act and Vaccine Rules provide for some circumstances

for a claim’s withdrawal (for example 240 days after the claim’s initiation), it is not per se improper for a claimant to

opt not to proceed even after passing certain milestones expressly set forth for that purpose. Indeed, in Otto I permitted

withdrawal of the claim after a full hearing (but before a reasoned entitlement decision had issued). Otto, 2020 WL

4719285, at *3.

6

Claimants with HPV/dysautonomia claims who in effect “abandon” the Program should not be

rewarded for their tactical choice, even if it literally is permitted (or at least not forbidden) by the

Act or Vaccine Rules. I am not compelled by the Vaccine Act to award fees to unsuccessful

claimants (even where, as here, reasonable basis is established)—and therefore these kind of

circumstances strongly support reducing fees, in order to induce Program attorneys present and

future to take care in how much time they invest in HPV vaccine injury claims that may not

ultimately remain before the Court.

Were I to award the sum requested herein without adjustment, the total fees and costs that

would have been incurred (in a case that was, in the end, voluntarily dismissed) would approach

six figures. This is not reasonable. I will instead apply a 10 percent reduction to all fees and costs

requested in the final fees motion. This means I will award the lesser sums of $15,426.54 in

attorney’s fees, and $9,281.25 in costs. 6 Should counsel file any similar HPV/dysautonomia claims

in the future with the intent to “pull” the case once the requirements for a minimal stay in the

Program have been met, the amount of work invested in the matter should be kept to a reasonable

limit, or greater percentage reductions can be expected.

CONCLUSION

Based on the foregoing, and in the exercise of the discretion afforded to me in determining

the propriety of a final fees award, I GRANT IN PART Petitioner’s Motion for Attorney’s Fees

and Costs, awarding a total of $24,707.79, reflecting $15,426.54 in attorney’s fees and $9,281.25

in costs, in the form of a check made jointly payable to Petitioner and his attorney Ms. Jessica

Wallace. 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. 7

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

6

The initial requested attorney’s fees were $17,140.60 x 0.10 = $1,714.06, and $17,140.60 - $1,714.06 = $15,426.54.

The initial requested costs were $10,312.50 x 0.10 = $1,031.25, and $10,312.50 - $1,031.25 = $9,281.25.

7

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