Rodriguez v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-729V

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

*

RICARDO RODRIGUEZ, *

* UNPUBLISHED

*

Petitioner, *

* Special Master Katherine E. Oler

v. *

*

* Filed: September 22, 2022

SECRETARY OF HEALTH AND *

HUMAN SERVICES, * Interim Attorneys’ Fees and Costs

*

*

Respondent. *

*

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

Ronald Homer, Conway, Homer, P.C., Boston, MA, for Petitioner

Andrew Henning, U.S. Department of Justice, Washington, DC, for Respondent

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On May 17, 2019, Ricardo Rodriguez (“Petitioner”) filed a petition seeking compensation

under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF

No. 1. Petitioner alleges that he suffered GBS as a result of the meningococcal and human

papillomavirus (“HPV”) vaccines he received on July 3, 2017 and second HPV vaccine he received

on August 4, 2017. Pet. at 1.

Petitioner filed a Motion for Interim Attorneys’ Fees and Costs on April 5, 2022, requesting

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Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to

post this Decision on the United States Court of Federal Claims’ website, in accordance with the E-

Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44

U.S.C. § 3501 note (2012)). 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). Otherwise, the Decision in its present form will be available. Id.

2

The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter

“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the

pertinent subparagraph of 42 U.S.C. § 300aa.

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a total of $36,250.41. Fees App. at 2, ECF No. 43. Respondent filed a response on April 6, 2022,

stating it is within my discretion to award interim attorneys’ fees and costs. Fees Resp. at 3, ECF

No. 45. Respondent “is satisfied the statutory requirements for an award of attorneys’ fees and

costs are met in this case.” Id. at 2. Petitioner did not file a reply.

I hereby GRANT Petitioner’s application and award a total of $36,250.41 in interim

attorneys’ fees and costs.

I. Legal Standard

A. Interim Attorneys’ Fees and Costs

The Federal Circuit has held that an award of interim attorneys’ fees and costs is

permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.

Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the

Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under

the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health

& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).

In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases

where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.

Likewise, in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of

litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is

proper for the special master to award interim attorneys' fees.” 609 F.3d at 1375. Avera did not,

however, define when interim fees are appropriate; rather, it has been interpreted to allow special

masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V,

2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.

Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it

has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,

costly expert testimony, and undue hardship -- special masters have instead treated these criteria

as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of

Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,

2015).

A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the

special master finds that a petitioner has brought his petition in good faith and with a reasonable

basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &

Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.

Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,

2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL

1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more

than just financial involvement of a petitioner; it also looks at any money expended by a

petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special

Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees

[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.

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B. Good Faith

The good faith requirement is met through a subjective inquiry. Di Roma v. 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.” Turner 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 his 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.

C. Reasonable Basis

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

petitioner’s belief in his claim. Turner, 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….” Id. 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. Id. 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

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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).

II. Discussion

A. Undue Financial Hardship

The undue hardship inquiry looks at more than just financial involvement of a petitioner;

it also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2 (finding

“the general principle underlying an award of interim fees was clear: avoid working a substantial

financial hardship on petitioners and their counsel.”). I also note that the COVID-19 pandemic has

had a significant impact on the United States economy and such impact has been recognized by

this court. See Monge-Landry v. Sec'y of Health & Hum. Servs, No. 14-853V, 2020 WL 4219821

*5 (Fed. Cl. Spec. Mstr. Jun. 30, 2020) (recognizing the COVID-19 pandemic's continued

disruption of the airline industry in its calculation of appropriate interim fees). Given these

unprecedented economic circumstances, and the time already spent litigating this case, I find that

the Petitioner would suffer undue hardship in the absence of an award of interim attorneys’ fees

and costs.

B. Good Faith and Reasonable Basis

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Respondent has not raised any specific objection to the good faith or reasonable basis for

this claim and leaves such a determination to my discretion. See Fees Resp. I find that the petition

was filed in good faith.

With regards to reasonable basis, Petitioner submitted two expert reports from Dr. David

Simpson, a board certified neurologist at the Icahn School of Medicine at Mount Sinai. See Exs.

6, 19; see also Ex. 7 (hereinafter “Simpson CV”). Dr. Simpson provided four mechanisms on how

vaccines could lead to neurotoxic effects, neurologic illness, or autoimmunity: 1) molecular

mimicry; 2) neurotoxic effect; 3) immune complex formation; 4) loss of self-tolerance. Ex. 6 at 3-

4. Dr. Simpson noted Petitioner had no prior neurological symptoms but developed muscle

weakness a day after his second HPV vaccine and had reduced tendon reflexes, indicative of

AIDP/GBS. Id. at 5. The second dose of the HPV vaccine provided a “booster” effect which

contributed to Petitioner’s rapid onset. Ex. 6 at 5. This constitutes sufficient evidence to establish

a reasonable basis for the claim.

As there is no other reason to deny an award of interim attorneys’ fees and costs, I will

award Petitioner’s reasonable fees and costs in this instance.

C. Attorneys’ Fees

Petitioner requests a total of $19,469.90 in attorneys’ fees. Fees App. at 2.

1. 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 U.S. 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 attorneys' 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. 3

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

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

The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2

7%20Forum%20Rate%20Fee%20Schedule%202019.pdf.

The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2

7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf

The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo

rum-Rate-Fee-Schedule-2021-PPI-OL.pdf

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

5634323.

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Petitioner’s primary counsel, Ms. Christina Ciampolillo, requests an hourly rate of $342.00

for work performed in 2018; $350.00 for work performed in 2019; $380.00 for work performed in

2020-2022. Ms. Ciampolillo also requests compensation for her colleagues at Conway Homer:

Ms. Lauren Faga: $330.00/hour for work performed from 2020-2021; Mr. Joseph Pepper:

$325.00/hour for work performed in 2019; Ms. Meredith Daniels: $320.00/hour for work

performed in 2019 and $350.00/hour for work performed in 2020; and Mr. Ronald Homer:

$430.00/hour for work performed in 2019 and $447.00/hour for work performed in 2020-2021.

Lastly, Ms. Ciampolillo requests hourly rates from $138.00-$155.00 for paralegal work performed

between 2018 and 2022. Fees App., Tab A at 10. This request is consistent with what I and other

special masters have previously awarded Ms. Ciampolillo and the Conway Homer firm. See, e.g.,

Agarwal v. Sec’y of Health & Hum. Servs., No. 16-191V, 2022 WL 3025777 (Fed. Cl. Spec. Mstr.

Jul. 1, 2022); McGuinness v. Sec’y of Health & Hum. Servs., No. 17-954V, 2022 WL 524935 (Fed.

Cl. Spec. Mstr. Jan. 26, 2022); Lozano v. Sec’y of Health & Hum. Servs., No. 15-369V, 2020 WL

7869439 (Fed. Cl. Spec. Mstr. Nov. 30, 2020. Accordingly, I find the requested rates are

reasonable and that no adjustment is warranted.

2. 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, [is] 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). 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).

A special master need not engage in a line-by-line analysis of petitioner's fee application

when reducing fees. Broekelschen v. Sec'y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.

Cl. 2011). 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). It is within a special master's discretion to instead make

a global reduction to the total amount of fees requested. See Hines v. Sec'y of Health & Hum.

Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the

reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec'y of Health & Hum. Servs.,

No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011

WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and

endorsing “a global – rather than line-by-line – approach to determine the reasonable number of

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hours expended in this case”).

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 A. I find the hours to be reasonable and award them in full.

Total attorneys’ fees to be awarded: $19,469.90

D. Reasonable Costs

Petitioner requests a total of $16,778.46 in costs, which includes obtaining medical records,

the Court’s filing fee, Dr. Simpson’s expert fees, shipping/postage costs, printing costs, and a flash

drive. Fees App., Tab B.

Specifically, Petitioner requests $177.09 for medical records requests; $400.00 for the

Court’s filing fee; $16,125.00 for Dr. Simpson’s expert reports; $32.42 for FedEx shipping costs;

$18.95 for postage/certified and priority mail costs; $20.00 for printing costs; and $5.00 for a USB

flash drive. Fees App., Tab B at 1. Documentation for the medical record requests, the Court’s filing

fee, and FedEx shipping costs was provided, and these costs will be paid in full. No documentation

was provided for the printing expenses, the USB flash drive, and postage. I will grant these costs as

they are common expenditures associated with litigation but warn Petitioner’s counsel that

documentation must be provided to be awarded in the future.

Petitioner also spent $2.05 to mail documents to his attorney. Fees App., Tab C. This will

be paid in full.

1. Petitioner’s Expert Costs for Dr. David Simpson

Petitioner requests an hourly rate of $500.00 for 32.25 hours of work performed by Dr.

Simpson, for a total of $16,125.00. Dr. Simpson has a medical degree from SUNY at Buffalo

School of Medicine and did his neurology residency at Cornell University Medical Center and a

fellowship in clinical neurophysiology at Massachusetts General Hospital/Harvard Medical

School. Simpson CV at 1. Dr. Simpson is board certified in neurology, electrodiagnostic medicine

and has subspecialities in clinical neurophysiology and neuromuscular medicine. Id. Dr. Simpson

has provided a full accounting of the hours he expended preparing and writing two expert reports.

Fees App., Tab B at 6-7. Dr. Simpson’s hourly rate is consistent with what I and other special

master have previously awarded him. See, e.g., Gonzalez v. Sec’y of Health & Hum. Servs., No.

17-174V, 2022 WL 3135297 (Fed. Cl. Spec. Mstr. Jul. 8, 2022); Franklin v. Sec'y of Health &

Human Servs., No. 16-193V, 2020 WL 6151367 at *2 (Fed. Cl. Spec. Mstr. Sept. 23, 2020); Q.P.

v. Sec'y of Health & Human Servs., No. 15-449V, 2019 WL 4013436 at *2-3 (Fed. Cl. Spec. Mstr.

July 29, 2019). I grant Dr. Simpson’s costs in full.

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Total costs to be awarded: $16,780.51

III. Conclusion

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

interim fee and cost awards, and based on the foregoing, I GRANT Petitioner’s application, as

follows:

A lump sum in the amount of $36,248.36, representing reimbursement of Petitioner’s

interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and his

attorney, Mr. Ronald Homer; and

A lump sum in the amount of $2.05, representing reimbursement of Petitioner’s costs in a

check payable to Petitioner, Ricardo Rodriguez.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of

Court SHALL ENTER JUDGMENT in accordance with this decision.

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler

Special Master

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