Martinez v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-738V

(not to be published)

************************* Chief Special Master Corcoran

THEODORE MARTINEZ and *

SARAH MARTINEZ *

as parents and natural guardians of W.M., *

*

Petitioner, * Dated: March 29, 2022

*

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioners.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION GRANTING IN PART INTERIM AWARD OF

ATTORNEY’S FEES AND COSTS 1

On June 22, 2016, Theodore and Sarah Martinez, on behalf of their minor daughter, W.M.,

filed a petition for compensation under the National Vaccine Injury Compensation Program (the

“Program”). 2 ECF No. 1. Petitioners have alleged that the diphtheria-tetanus-acellular pertussis

and rotavirus vaccines administered to W.M. on June 26, 2013, caused her to develop transverse

myelitis. The matter went to trial on November 16-17, 2021, and is still pending and undecided.

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) [hereinafter “Vaccine Act” or “the

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

Petitioners have now filed a motion for an interim award of attorney’s fees and costs.

Motion, dated March 17, 2022 (ECF No. 99). It is their first fees request in this case. Petitioners

request a total of $322,101.83 ($241,984.25 in attorney’s fees and $80,117.58 in costs) for the

work of their current attorneys, David Carney and Adam Green, at Green & Schafle LLC, and

their previous attorney Kate Westad who started at the Larkin Hoffman Law Firm and then moved

to a different firm, SiebenCarey, P.A., during the pendency of this matter. 3 ECF No. 99 at 3–4.

Work was first performed on the matter by Ms. Westad from May 31, 2016, to April 21, 2020, and

Mr. Carney appeared for Petitioners thereafter, representing them to this day.

Respondent reacted to the fees request on March 23, 2022. See Response, March 23, 2022

(ECF No. 100). Respondent defers the calculation of the amount to be awarded to my discretion.

Id. at 2–3. At my request, Petitioners then filed additional documentation on March 24, 2022,

regarding an expert’s revised trial invoice. ECF No. 101 at 3. Petitioners did not file a Reply.

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

fees and costs in the total amount of $295,609.33.

ANALYSIS

I. Petitioners’ Claim has 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, establishing reasonable basis does not

automatically entitle an unsuccessful claimant to fees, but is instead a threshold obligation; fees

can still thereafter be limited, if unreasonable, or denied entirely. Cases that are unresolved and/or

pending must be evaluated for reasonable basis, because the claim’s success remains to be

determined.

3

Petitioners request $39,506.75 in attorney’s fees and $11,407.86 in costs, totaling $50,914.61, for work performed

by Ms. Westad at Larkin Hoffman. ECF No. 99 at 4. They also request $11,155.00 in fees and $4,169.09 in costs,

totaling $15,324.09, for work performed by Ms. Westad at SiebenCarey. Id. The remainder of fees were incurred by

attorneys at Green & Schafle, and total $191,322.50 in fees and $64,540.63 in costs, totaling $255,863.13. Id. at 3.

2

A claim’s reasonable basis 4 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—counsel’s conduct is irrelevant (although it may

bulwark good faith). Simmons, 875 F.3d at 635. Reasonable basis inquiries are not static—they

evaluate not only what was known at the time the petition was filed, but also take into account

what is learned about the evidentiary support for the claim as the matter progresses. 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). 5

I have no trouble herein determining that the claim possesses reasonable basis, since the

evidence offered at trial clearly established core objective evidence relevant to the analysis (i.e.,

fact of vaccination and medical record proof of injury). While the ultimate resolution of causation

remains to be determined, Petitioners have put forward more than enough objective support for

the claim for a favorable reasonable basis determination. And there are no other grounds for

denying a fees award at this time, with the case having been litigated for nearly six years and

having gone to trial as well. For those reasons, I will permit an interim award herein. I admonish

Petitioners, however, that I will allow no fees to be awarded for any future work on this matter

(including appellate efforts) until the case is fully concluded, and so I will defer acting on any

additional interim requests that Petitioners may decide to advance.

4

Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable to that fees

prong.

5

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

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).

Petitioners requests the following rates for their attorneys, based on the years work was

performed:

2016 2017 2019 2020 2021 2022

David Carney -- -- $325.00 $350.00 $375.00 $400.00

(Attorney)

Adam Green -- -- -- $400.00 $400.00 --

(Attorney)

Kate G. $350.00 $350.00 $350.00 $350.00 -- --

Westad 6

(Attorney)

Paralegal at -- -- -- $145.00 $145.00 $145.00

Green &

6

Ms. Westad switched law firms twice during these proceedings, beginning at Larkin Hoffman and then switching to

SiebenCarey.

4

Schafle LLC

Paralegal at -- -- $125.00 $125.00 -- --

SiebenCarey,

P.A.

Paralegal at $125.00 $125.00 $125.00 -- -- --

Larkin

Hoffman Law

Firm

Litigation $160.00 7 $160.00 $160.00 -- -- --

Paralegal at

Larkin

Hoffman Law

Firm

ECF No. 99 at 14–28, 79–86, 114–18.

Ms. Westad (the sole attorney at either Larkin Hoffman or SiebenCarey to work on this

matter) practices in Minneapolis, Minnesota - a jurisdiction that has been deemed “in forum.”

Accordingly, she is entitled to the rates established in McCulloch, and thereafter embraced by the

Office of Special Masters’ fee schedule. 8 See Dahl by Barth v. Sec'y of Health & Hum. Servs., No.

13-98V, 2018 WL 6818741, at *4–6 (Fed. Cl. Spec Mstr. Nov. 30, 2018). However, some minor

rate adjustments are required. In previous cases, Ms. Westad’s rate of compensation was $325.00

per hour of work performed in 2016 and $350.00 per hour thereafter. Dahl, 2018 WL 6818741, at

*4–6. But in the instant case, the billing records reflect that Ms. Westad billed 29.8 hours in 2016

at $350.00 per hour. I will therefore reduce the final award of fees by $745.00 to reflect the

reduction to $325.00 per hour. 9 She is otherwise entitled to $350 per hour for all subsequent years.

See De Nuto v. Sec'y of Health & Hum. Servs., No. 17-104V, 2019 WL 3239464, at *3 (Fed. Cl.

Spec. Mstr. June 12, 2019). And the amount of work billed to the matter by Ms. Westad from May

7

There were two litigation paralegals during 2016. Dwight M. Ludvigson charged a rate of $160.00, and Kristina E.

Swenson charged a rate of $90.00. ECF No. 99 at 85. Ms. Swenson only worked on the case for two days in 2016 (3.4

hours total). Id. at 79.

8

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

22, 2021).

9

29.8 hours at an hourly rate of $350.00 is $10,430.00. 29.8 hours at an hourly rate of $325.00 is $9,685.00. Thus, the

difference is $745.00.

5

31, 2016, to April 21, 2020, was reasonably incurred, and shall therefore be awarded without

adjustment.

The attorneys at Green & Schafle practice in Philadelphia, Pennsylvania - a jurisdiction

that has also been considered in forum - and the rates requested are consistent with what they have

received in the past. See Murschel v. Sec'y of Health & Hum. Servs., No. 19-1700V, 2021 WL

5013736, at *1 (Fed. Cl. Spec. Mstr. Sept. 28, 2021); Morgan v. Sec'y of Health & Hum. Servs.,

No. 19-1105V, 2021 WL 3056271, at *2 (Fed. Cl. Spec. Mstr. June 28, 2021). But although no

rate adjustments are warranted herein, the total amount billed to the matter by this second set of

attorneys is problematic.

Specifically, I note that in 2021, Mr. Carney spent 181.1 hours on the matter (including the

time allotted for the two-day hearing held in November 2021). It is reasonable for attorneys to

devote a substantial amount of time preparing for, then appearing at, a hearing—especially when,

as here, the case is tried over two days and involves the input of multiple experts. None of the time

billed to the matter through the hearing date was inappropriate or excessive.

By contrast, the invoices reveal that between January and March 2022, Mr. Carney spent

188.8 hours on the matter—more than all time spent on the matter in the prior year, inclusive of

the hearing. ECF No. 99 at 28. It appears that most of this time was devoted to drafting a 111-page

post hearing brief, plus an attempt to locate some additional medical records that had significance

to the case. Although both tasks were undertaken in response to my directives, 10 they still should

not reasonably have required more total attorney time than was devoted for a whole year’s work

on the case. Nor (while I appreciate Petitioners’ reasonable desire to demonstrate their entitlement

to compensation) is such a lengthy post-trial brief ever appropriate. I especially find the total

amount billed excessive when taking into account the fact that, all told, more than $300,000 in fees

and costs have been incurred—a large sum for any case, regardless of its age.

I am empowered to make across-the-board percentage cuts in appropriate circumstances.

Hensley v. Eckerhart, 461 U.S. at 434 (1983); Wasson v. Sec’y of Health & Hum. Servs., No. 90-

208V, 24 Cl. Ct. 482, 484 (1991). Here, because I deem the amount billed to this matter in 2022

excessive and unjustified, I shall reduce fees billed from January 1, 2022, to the present date by 30

percent, resulting in reduction of $22,656.00. 11 All other time billed by Mr. Carney and his firm,

including paralegal time (and at the requested paralegal rates), shall be awarded.

10

The scheduling order after this hearing stated that on or before 11/30/2021, (a) Respondent was to file any additional

medical literature referenced by Dr. Moy during the hearing, and (b) the parties were to confirm that records from the

Affinity Clinic Urgent Care visit on June 29, 2013, were previously sought but could not be obtained, or file a motion

seeking authority to issue a subpoena to obtain those records. Scheduling Order, dated Nov. 17, 2021. Additionally,

on or before 1/31/2022, the parties were to file simultaneous post-trial briefs summarizing their arguments in this

matter. Id. They ended up filing their briefs on March 16, 2022.

11

30% of $75,520.00 is $22,656.00. Thus, the new total for 2022 is $52,864.00.

6

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

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).

Petitioners seek $80,117.58 in outstanding costs, 12 including medical literature and medical

record retrieval costs, plus costs associated with the work of two experts, Eric Gershwin, M.D.,

and Justin Willer, M.D. ECF No. 99 at 30–37.

Dr. Gershwin testified at the hearing and authored one expert report, billing $20,875.00 in

total at a rate of $500 per hour, with a retainer fee of $3,000.00. ECF No. 99 at 34–35. The total

amount incurred for his services was wholly reasonable for the work performed, and I do not find

any reason to make any reductions.

Dr. Willer testified at the hearing and authored four expert reports. While Ms. Westad was

involved in the matter, he billed $10,730.00 in total at a rate of $500.00 per hour (Larkin Hoffman

firm), plus $3,966.50 at the same rate later on (SiebenCarey). Then, after Green & Schafle

appeared, he billed an additional $19,500.00, at a rate of $550.00 per hour. ECF Nos. 99 at 37, 85,

117; 101-1 at 3. In total, this equates to $34,196.50. I will make some adjustments of costs

attributable to Dr. Willer’s work.

Regarding the hourly rate, Dr. Willer in previous Program cases has requested $500.00 per

hour. De Nuto, 2019 WL 3239464, at *3. Although special masters in the past have reduced this

rate due to his lack of experience testifying in the Vaccine Program, Dr. Willer has gained

sufficient experience to date to justify the amount. Compare Moran v. Sec'y of Health & Hum.

Servs., No. 16-1224V, 2019 WL 4137772, at *3 (Fed. Cl. Spec. Mstr. July 10, 2019) (awarding a

rate of $500.00) with Dahl, 2018 WL 6818741, at *8 (reducing Dr. Willer’s requested rate of

$500.00).

12

The Larkin Hoffman Law Firm requests $11,407.86 in costs, SiebenCarey, P.A. requests $4,169.09 in costs, and

Green & Schafle LLC requests $64,540.63 in costs. ECF No. 99 at 3–4.

7

In this case Dr. Willer requests a rate of $500.00 until October 28, 2021, seeking an increase

for time devoted to the matter thereafter (which includes the trial time). ECF No. 99 at 30. But I

will award Dr. Willer only the rate of $500 per hour for all of 2021. It is not generally the practice

in the Vaccine Program to permit professionals mid- or partial-year increases. Dr. Willer may well

be entitled to a rate increase in coming years, however, and my determination does not mean that

I myself would not readily agree to an increase for 2022 and beyond.

There is also the issue of charging a full-day rate for trial work when the amount of time

spent on the matter was less than a full day. Petitioners have substantiated this figure in subsequent

filings, 13 and I am able to ascertain from this substantiation the correct amount of time spent on

the hearing instead of approximations. As such, I will award the amount of time for work incurred,

calculated at the correct rate of $500 per hour—which results in a deduction of $2,000 in total.14

There is also one additional unsubstantiated sum, where SiebenCarey reported $1,091.50 incurred

for Dr. Willer’s services, but there is no documentation substantiating what was done specifically.

This also shall be removed in the total calculation. ECF No. 99 at 118.

All other requested costs in this matter appear reasonable, and they shall also be awarded

in full without reduction. Thus, the total cost reduction is by $3,091.50.

13

In the past, Dr. Willer had provided insufficient documentation in his invoices, which resulted in a reduction. Dahl,

2018 WL 6818741, at *8. Originally, Dr. Willer’s invoice in this case was also insufficient. However, after reaching

out to Petitioners’ counsel and the filing of a revised trial invoice, Dr. Willer has provided the needed information to

explain his work. For example, it appeared that Dr. Willer differentiated “pre-trial preparation” charging a rate of

$550.00 with reviewing expert reports and medical records “in preparation for trial” charging a flat fee of $7,000.00.

ECF No. 99 at 37. At another point it appeared that he charges a flat fee of $7,000.00 for one hour of work reviewing

and editing direct and cross examination questions. Id. Since filing the revised trial invoice, he has indicated that he

charged $550.00 for each hour of work and has clarified the issues stated above. ECF No. 101-1 at 3. It is

recommended that in future cases Dr. Willer take more care in substantiating his time.

14

10 hours at an hourly rate of $550.00 (including the $14,000 two-day court appearance) is $19,500.00. The amount

of time spent for a two-day court appearance was 25 hours. Combining the 25 hours spent in the hearing and the pre-

trial preparation of 10 hours at an hourly rate of $500.00 is $17,500.00. Thus, the difference is $2,000.00.

8

CONCLUSION

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

the propriety of an interim fees award, I GRANT IN PART Petitioners’ Motion for and Interim

Award of Attorney’s Fees and Costs, awarding $295,609.33, reflecting $218,583.25 in attorney’s

fees and $77,026.08 in costs, in the form of a check made jointly payable to Petitioners and their

attorney Mr. David Carney, who shall in turn apportion to previous counsel and her firms the fees

and costs specific to them. 15

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. 16

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

15

Specifically, Petitioners’ counsel shall apportion to Ms. Westad $50,169.61 ($38,761.75 in attorney’s fees and

$11,407.86 in costs) for work done at the Larkin Hoffman Law Firm, and $14,232.59 ($11,155.00 in attorney’s fees

and $3,077.59 in costs) for work done at SiebenCarey.

16

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.

9