# Billing v. Secretary of Health and Human Services

> United States Court of Federal Claims · December 22, 2021

URL: https://www.frixlaw.com/law-library/cases/5139726

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** December 22, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas L. Gowen
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 1, 2021

* * * * * * * * * * * * *
DOUGLAS BILLING, *
*
Petitioner, * No. 18-679V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees
AND HUMAN SERVICES, * and Costs; Reduction of
* Expert Fees.
Respondent. *
* * * * * * * * * * * * *

Sean Franks Greenwood, Greenwood Law Firm, Houston, TX, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS 1

On June 22, 2021, Douglas Billing (“petitioner”), filed a motion for interim attorneys’
fees and costs. Interim Fees Application (“Int. App.”) (ECF No. 58). I hereby GRANT
petitioner’s motion. Petitioner is hereby awarded interim attorneys’ fees and costs in the amount
of $100,201.27.

I. Procedural History

On May 14, 2018, petitioner initiated this claim in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that as a result of receiving influenza (“flu”) and
tetanus-diphtheria-acellular pertussis (“Tdap”) vaccinations on September 30, 2015, he
developed new daily persistent headaches (“NDPH”) with onset on October 3, 2015 and

1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s website,
each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the [opinion].”
Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website
without any changes. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to 34 (2012)
(“Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
persisting for well over six months. Petition (ECF No. 1). Petitioner filed supporting medical
records (Petitioner’s Exhibits (“Pet. Exs.”) 1-18) followed by a statement of completion on July
13, 2018 (ECF No. 11).

After receiving several extensions of time, on March 12, 2019, respondent’s counsel
identified one issue with the filed records, advising that respondent intended to defend the case,
and proposing a deadline to file respondent’s report required by Vaccine Rule 4(c). Respondent
(“Resp.”) Status Report (ECF No. 16). The status report did not comply with my instruction that
respondent’s counsel was to identify respondent’s reasons for defending the claim such as “the
need for expert opinions on the nature of the injury or illness at issue and/or vaccine causation.”
Scheduling Order (ECF No. 16). I directed petitioner to file an expert report within 60 days and
for respondent to file a responsive expert report and the Rule 4(c) report within 60 days
thereafter. Scheduling Order (ECF No. 18).

Petitioner subsequently filed additional medical records and he retained neurologist
Marcel Kinsbourne, M.D. who supported vaccine causation for the diagnosis of New Daily
Persistent Headaches (“NDPH”) which appeared throughout petitioner’s medical records, see
Pet. Ex. 22. Respondent then filed his Rule 4(c) report (ECF No. 32) which relied on the opinion
of neurologist Dara Jamieson, M.D., that vaccine causation for NDPH was unlikely, see Resp.
Ex. A.

At a status conference on January 9, 2020, I reviewed the initial expert reports. I also
noted that recent medical records referenced that petitioner undergone laboratory studies that
identified high antibody titers to voltage-gated potassium channels, and that petitioner was
seeking a new treating neurologist. See Pet. Ex. 30 at 3. I directed petitioner to address those
issues and to consider retaining another expert. See Scheduling Order (ECF No. 34).

Petitioner duly filed updated medical records, followed by a report from immunologist
Omid Akbari, Ph.D., see Pet. Ex. 36. Respondent then filed a responsive expert report from Dr.
Jamieson, Resp. Ex. C.

During another status conference on March 1, 2021, I commented that the case presented
“a very complex diagnostic problem” for which petitioner should seek further neurologic
workup” and have a qualified expert neurologist address certain questions. Scheduling Order
(ECF No. 50).

Since that status conference, petitioner has filed Dr. Akbari’s second report, Pet. Ex. 101.
Petitioner has requested additional time to file Dr. Kinsbourne’s second report as well as updated
medical records.

On June 22, 2021, petitioner filed the instant motion for interim attorneys’ fees of
$42,863.02 and interim attorneys’ costs of $62,322.16, for a total interim request of $105,195.18.
Int. Fee App. at 1, 19.

On July 6, 2021, respondent filed a response, in which he deferred to my determination as
to whether petitioner had established good faith and a reasonable basis for his claim, whether an

2
interim award was appropriate at this time, and what a reasonable award would be. Int. Fees
Response (ECF No. 61). Petitioner has not filed a reply. Thus, this matter is ripe for
adjudication.

II. Entitlement on Attorneys’ Fees and Costs

A. Legal Standard

The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012). In this case, I have found that petitioner is entitled to
compensation.

B. Interim Awards

The Vaccine Act permits interim attorneys’ fees and costs. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of Health & Human Servs.,
609 F.3d 1372 (Fed. Cir. 2010). In Shaw, the Federal Circuit held that it was proper to grant an
interim award when “the claimant establishes that the cost of litigation has imposed an undue
hardship.” 609 F.3d at 1375. In Avera, the Federal Circuit stated that “[i]nterim fees are
particularly appropriate in cases where proceedings are protracted, and costly experts must be
retained.” 515 F.3d at 1352. I generally defer ruling on an interim fee application if: the case
has been pending for less than 1.5 years (measured from the date of filing); the amount of fees
requested is less than $30,000; and/ or the aggregate amount of expert costs is less than $15,000.
If any one of these conditions exists, I generally defer ruling until these thresholds are met or
until an entitlement hearing has occurred. These are, however, only informal requirements, and
there are ultimately many factors bearing on the merit of an interim fee application. I evaluate
each one on its own merits.

Here, the claim has been pending and counsel has been involved for more than 1.5 years.
There is sufficient proof of vaccination. Multiple treating providers recorded the acute onset of
new daily headaches shortly after the vaccinations, which have persisted for several years.

After entering a claim that was initially filed pro se, counsel obtained all necessary
medical records and gathered additional fact evidence which led to my finding that the onset of
petitioner’s symptoms was after the Tdap vaccination. The case has now proceeded through the
production of two expert reports from a neurologist and two extensive expert reports from an
immunologist along with opposing reports from the respondent. Additionally, extensive medical
records and medical literature have been filed to document the petitioner’s case and support his
expert opinions. The case has presented difficult issues of diagnosis with the ultimate diagnosis
of new onset persistent daily headaches being a relatively newly recognized diagnostic entity.

3
The requested fees and costs easily surpass the minimum thresholds. The case has been at
issue since 2018 and is currently awaiting scheduling for a hearing in 2022. Based on all of
these factors and my preliminary review of both parties’ expert reports, I find it appropriate to
award interim attorneys’ fees and costs at this time.

III. Reasonable Attorneys’ Fees and Costs

A. Legal Standard

As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar approach, 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.’” Id. at
1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an
upward or downward departure from the initial calculation of the fee award based on other
specific findings. Id. at 1348. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).

Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).

The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

B. Hourly Rates

The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon an individual’s experience. McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate Fee Schedules
for 2018-2021 are provided online.3

3
U.S. Court of Federal Claims – OSM Attorneys’ Forum Hourly Rate Fee Schedules, available at
https://www.uscfc.uscourts.gov/node/2914.

4
In this case, petitioner is requesting that his attorney, Mr. Greenwood, be reimbursed at
an hourly rate of $337.00 for work performed in 2018; $363.00 for work performed in 2019;
$400.00 for work performed in 2020; and $425.00 for work performed in 2021. Pet. Ex. 103-04.
Petitioner requests that Ms. Smith be reimbursed for her work performed on the case for the
period of 2017-2019 at the following rates: $150.00 per hour for 2017; $215.00 per hour for
2018; and $225.00 per hour for 2019. Id. Petitioner requests that Ms. Erchick be reimbursed for
her work performed on the case for the period of 2020-2021 at the following rates: $163.00 per
hour for 2020; $172.00 per hour for 2020. Id. Petitioner requests that Ms. Ward be reimbursed
for her work performed on the case for the period of 2019-2020 at the following rates: $150.00
per hour for 2019; $160.00 per hour for 2020; $170.00 per hour for 2021. Id. Finally, Petitioner
requests that Ms. Carruth be reimbursed for her work performed on the case for 2021 at the rate
of $180.00 per hour. Id.

The Greenwood Law Firm is one of only a few law firms in Houston representing
Petitioners in the Program. Currently, there are only 16 lawyers in Texas and four
lawyers in Houston on the Court of Federal Claims’ site of licensed attorneys available to handle
vaccine injury cases. Mr. Greenwood has 17 years of experience practicing in the Program and
has filed 58 cases. Ms. Smith had five years practicing in the Program assisting Mr. Greenwood
in filing cases. Both attorneys are active members of the Vaccine Petitioner’s Bar. Mr.
Greenwood has over 30 years of experience in the practice of law. The billing for less
experienced associates was appropriately calibrated to their level of experience. Their billing
and that for paralegals and law clerks Ms. Erchick and Ms. Ward are also appropriately within
the OSM billing guidelines.

The billing records from the Greenwood Law Firm reflect that the majority of attorney
work was performed by Mr. Greenwood with supporting work done by Ms. Smith, Ms. Erchick,
Ms. Ward, and Ms. Carruth. The hourly rates for these attorneys, law clerks, and paralegal for
the work performed from 2018 to 2021 4 have repeatedly been awarded by me and other Special
Masters. See, Como v. Sec'y of Health & Hum. Servs., No. 18-99V, 2021 WL 3370255, at *3
(Fed. Cl. July 6, 2021); Skiles v. Sec'y of Health & Human Servs., No. 18-1597V, 2020 WL
5407823 (Fed. Cl. Spec. Mstr. Aug 14, 2020); Heddens v. Sec'y of Health & Human Servs., No.
15-734V, 2019 WL 5791266 (Fed. Cl. Spec. Mstr. Oct. 24, 2019); Trigueros v. Sec'y of Health &
Hum. Servs., No. 16-1058V, 2021 WL 2767695, at *2 (Fed. Cl. May 27, 2021). These rates are
reasonable for the work performed and will be awarded without adjustment.

C. Hours Expended

As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness of hours expended. Id. Just as “[t]rial courts routinely use their
prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests
…. [v]accine program special masters are also entitled to use their prior experience in reviewing

4 The hours billed in calendar year 2021 were for work performed prior to publication of the 2021 fee schedule. No
rate increase was requested for this work and the question of appropriate hourly rates for 2021 is therefore not
reached.

5
fee applications.” Saxton, 3 F.3d at 1521. Upon review of the invoice submitted with the
petitioner’s interim fee application, and my knowledge of the proceedings in this case to date as
described above, the numbers of hours expended appear to be reasonable and adequately
documented. Therefore, they will be awarded $42,863.02 without adjustment.

D. Costs

Like attorneys’ fees, costs incurred-by counsel or petitioners themselves-must be
reasonable to be reimbursed by the Program. Perreira, 27 Fed. Cl. Ct. 29, 34.

Here, petitioner requests that the Greenwood Law Firm be reimbursed for total costs of
$62,322.16.5 Pet. Motion for Interim Award. A majority of the costs is for Dr. Akbari’s two
expert reports filed under ECF No. 41 and 57. His initial report, secondary report, curriculum
vitae, and cited medical literature have been filed as Pet. Exs. 36 - 101. He billed $550.00 per
hour for 112.7 hours of work on the case, which amounts to $61,985.00. Pet. Ex. 106.

Dr. Akbari has a Ph.D. in Cellular and Molecular Immunology. Pet. Ex. 101. He is a
professor of Allergy and Immunology in the Department of Molecular Microbiology and
Immunology at the Keck School of Medicine at the University of Southern California. Id.
Additionally, Dr. Akbari is an active researcher in the field of immune tolerance in triggering
autoimmune disease. Id. Dr. Akbari has been consistently awarded a rate of $500.00/hour by
other special masters in the program. See Reinhardt v. Sec'y of Health & Hum. Servs., No. 17-
1257V, 2021 WL 2373818 (Fed. Cl. Apr. 22, 2021); See Hernandez v. Sec'y of Health & Hum.
Servs., No. 16-1508V, 2018 WL 4391060 (Fed. Cl. Spec. Mstr. Aug. 20, 2018); Shinskey v. Sec'y
of Health & Hum. Servs., No. 15-713V, 2019 WL 2064558 (Fed. Cl. Spec. Mstr. May 9, 2019);
Sheppard v. Sec'y of Health & Hum. Servs., No. 17-819V, 2020 WL 1027958 (Fed. Cl. Spec.
Mstr. Feb. 20, 2020); Bisceglia v. Sec'y of Health & Hum. Servs., No. 19-91V, 2020 WL
6146101 (Fed. Cl. Spec. Mstr. Sep. 20, 2020); Robinson v. Sec'y of Health & Hum. Servs., No.
15-967V, 2018 WL 5629850 (Fed. Cl. Spec. Mstr. Sep. 12, 2018); cf. Riley v. Sec'y of Health &
Hum. Servs., No. 16-262V, 2020 WL 1026929 (Fed. Cl. Spec. Mstr. Feb. 6, 2020) (granting Dr.
Akbari an expert rate of $300.00 per hour); Lewis v. Sec'y of Health & Hum. Servs., 15-907V,
2020 WL 1283461 (Fed. Cl. Spec. Mstr. Feb. 20, 2020) (reaffirming Dr. Akbari's expert hourly
rate of $300.00 per hour). I find that $500 per hour, as has been consistently awarded to Dr.
Akbari to be an appropriate hourly rate. While Dr. Akbari provided a total of two expert reports,
(ECF No. 41 and 57) this represents an unusually large expenditure of time for a case that has
not yet had a hearing. Given the diagnostic difficulty in this case and the novel diagnosis
ultimately reached I am inclined to award the hours requested, but I caution Dr. Akbari and
counsel to endeavor to reduce the number of hours billed henceforth. I do, however, observe that
Dr. Akbari did provide very detailed records of the time spent on this case. The other expert,
Dr. Kinsbourne, has also generated two expert reports (ECF No. 26 and 62) but I note that no
billing has been submitted for his time in this request.

5
Petitioner also requests reimbursement for costs such as the filing fee, obtaining medical records and postage
totally $988.25. Pet. Ex. 104. These costs are typical expenses that the program reimburses attorneys for, and as
such, will be awarded. Therefore, the total amount for attorney’s costs requested was $62,973.25.

6
Therefore, the amount to be awarded for Dr. Akbari will be reduced to $56,350 to conform to
the $500 per hour billing rate. The total attorney’s costs to be awarded will be $57,338.25.

IV. Conclusion

In accordance with the above, petitioner’s motion for interim attorneys’ fees and costs is
GRANTED. Accordingly, I award the following:

1. Interim Attorney’s fees in the amount of $42,863.02; and

2. Interim expenses in the amount of $57,338.25.

A lump sum in the amount of $100,201.27, representing reimbursement for interim
attorneys’ fees and costs, in the form of a check payable jointly to petitioner and her
counsel.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court is directed to enter judgment forthwith. 6

IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master

6
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).

7

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5139726. Public record. Not legal advice.