Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 09-427V

Filed: April 30, 2013

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ANITA ROBERTS and GARY ROBERTS, * NOT TO BE PUBLISHED

Co-petitioners, as Next Friends, Parents *

acting on behalf of AMBER ROBERTS, * Special Master Zane

their minor child, *

*

Petitioners, *

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v. * Interim attorneys’ fees and costs;

* Protracted proceedings; significant

SECRETARY OF HEALTH * expert costs

AND HUMAN SERVICES, *

*

Respondent. *

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Thomas Kelly Herren, Herren and Adams, Lexington, KY for Petitioner.

Ann Martin, United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING INTERIM

ATTORNEYS’ FEES AND COSTS 1

Pending before the undersigned is Petitioners’ counsel’s Interim Application for Fees and

Costs, to which Respondent objects. As explained below, upon consideration of the record as a

whole, the application is GRANTED.

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Because this decision contains a reasoned explanation for the Special Master’s action in this

case, the Special Master intends to post it on the website of the United States Court of Federal

Claims, in accordance with the E-Government Act of 2002, § 205, 44 U.S.C. § 3501 (2006). All

decisions of the Special Master will be made available to the public unless they contain trade

secret or commercial or financial information that is privileged and confidential, or medical or

similar information whose disclosure would clearly be an unwarranted invasion of privacy. As

provided by Vaccine Rule 18(b), each party has 14 days to file a motion requesting the redaction

from this decision of any such alleged material. In the absence of a timely request, which

includes a proposed redacted decision, the entire document will be made publicly available. If

the Special Master, upon review of a timely filed motion to redact, agrees that the identified

material fits within the categories listed above, the Special Master shall redact such material

from the decision made available to the public. 42 U.S.C. § 300aa-12(d)(4); Vaccine Rule 18(b).

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I. BACKGROUND

A. Initial Filing and Submission of Medical Records

On July 1, 2009, Anita Roberts and Gary Roberts (“Petitioners”), on behalf of their

daughter, Amber Roberts (“Amber”), filed a petition for compensation under the National

Childhood Vaccine Injury Act of 1986, 42 U.S.C. §300aa-10, et seq., as amended (“Vaccine

Act”). 2 Petitioners allege that their daughter suffered, inter alia, transverse myelitis as a result

of a tetanus-diphtheria-acellular pertussis vaccine (“Tdap”) vaccination administered to her on

July 6, 2006. Petition at 1.

On December 4, 2009, Petitioners filed all outstanding medical records. On March 17,

2010, Respondent filed a Rule 4 Report in which, inter alia, she indicated that it was

Respondent’s position that Petitioners were not entitled to compensation. Rule 4 report at 1.

Subsequently, the parties filed expert reports. Petitioners’ Exhibit (“P’s Ex.”) 14 and

Respondent’s Exhibit (“R’s Ex.”) A. On October 14, 2010, the previously assigned Special

Master ordered the filing of supplemental expert reports. [ECF No. 18]. Respondent filed her

supplemental expert report on December 10, 2010. R’s Ex. C. On July 11, 2011, Petitioners

filed their supplemental expert report along with a second expert report. P’s Exs. 18 and 19. On

September 9, 2011, Respondent filed her supplemental expert report along with a second

responsive expert report. R’s Exs. L and N. 3

On March 26 and 27, 2012, an entitlement hearing was held in Cincinnati, OH. One of

the petitioners, Ms. Roberts, and her daughter, the recipient of the vaccine, testified. Tr. at 91

and 107. Three expert witnesses also testified for Petitioners. Tr. at 4 and 122, 524. Two expert

witnesses testified for Respondent. Tr. at 247, 526 and 408. Following the hearing, both parties

submitted post-hearing briefs and responsive post-hearing briefs. In addition, Petitioners

submitted this request for an award of interim fees and costs.

B. Petitioners’ Application for Interim Fees and Costs

On February 4, 2013, Petitioners filed their Application for Interim Fees and Costs

(“Application for Interim Fees”). In this filing, Petitioners noted that counsel’s fees and costs

have been accumulating over a five-year period. Application for Interim Fees at 1. Petitioners

also noted that this case required more than the usual expenditure of resources because it

involved review and understanding of complex medical information. Id. Ultimately the case

culminated in a three-day hearing at which two fact witnesses and five medical experts testified.

Id. at 2. The hearing required extensive preparation and post-hearing briefing. Id.

On March 4, 2013, Respondent filed a response to the Application for Interim Fees (“R’s

Response to Interim Fees Application”). Respondent, citing Avera v. Sec’y of Health & Human

Servs., 515 F.3d 1343, 1350-52 (Fed. Cir. 2008), argued that payment of interim fee awards is

only appropriate during the pendency of an appeal regarding fees, following a resolution of the

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Part 2 of the Vaccine Act established the National Vaccine Injury Compensation Program, 42

U.S.C. § 300aa-10 through § 300aa-34 (2006) (“Vaccine Program”).

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This matter was transferred to the undersigned in March 2011.

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merits so that a special master may not award fees and costs prior to entering a decision on

entitlement. R’s Response to Interim Fees Application at 3, 5. According to Respondent,

because no entitlement decision has issued, an award of interim fees is not appropriate here. Id.

at 5. At the same time, Respondent stipulated to a specific amount of fees as being a reasonable

amount, contemporaneously filing the Parties’ Stipulation of Facts Concerning the Amount of

Attorneys’ Fees and Costs Reasonably Incurred in Proceedings In This Case To Date. [ECF

Nos. 77 and 78].

On March 12, 2013 Petitioners filed their Reply to Respondent’s Response to Motion for

Interim Attorney’s Fees and Costs (“Petitioners’ Reply”). Petitioners argued that the holding in

Avera contemplates the type of award requested and that interim fees “are particularly

appropriate in cases where proceedings are protracted and costly experts must be retained.”

Petitioners’ Reply at 2. Petitioners further asserted that they have “made a huge investment of

time and money in this matter and should not be expected to wait any longer for payment.” Id.

II. APPLICABLE LEGAL STANDARDS

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42

U.S.C. § 300aa-15(e)(1). This provision permits an award of fees even when a petitioner does

not prevail. Id. In so doing, this provision ensures the existence of a competent bar willing to

represent those potentially injured by vaccinations. Saunders v. Sec’y of Health & Human

Servs., 25 F.3d 1031, 1035-36 (Fed. Cir. 1994) (a secondary purpose of the Vaccine Act, to

ensure that vaccine-injury claimants will have readily available a competent bar to prosecute

their claims under the Act, is effected by permitting the award of attorneys’ fees and costs both

to prevailing and non-prevailing claimants).

When compensation is not awarded, reasonable fees can still be awarded as long as it is

shown that the petition was filed in good faith and there was a reasonable basis for it. 42 U.S.C.

§ 300aa-15(e)(1); Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir.

2010). Good faith requires only a subjective belief that a vaccine claim exists. A presumption of

good faith is afforded petitioners in Vaccine Act cases. See Grice v. Sec’y of Health & Human

Servs., 36 Fed. Cl. 114, 121 (1996).

The Vaccine Act does not define what constitutes a reasonable basis, but case law

provides guidance. In contrast to the subjective standard relating to the good faith requirement,

the reasonable basis requirement is “objective, looking not at the likelihood of success of a claim

but more to the feasibility of the claim.” McKellar v. Sec’y of Health & Human Servs., 101 Fed.

Cl. 297, 303 (2011), citing DiRoma v. Sec’y of Health & Human Servs., No. 90-3277, 1993 WL

496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). A determination of reasonableness is

appropriate at the various stages of the proceeding, and such determination is informed by

looking to the totality of the circumstances. McKellar, 101 Fed. Cl. at 303. Although a claim

may have had a reasonable basis at the time of its filing, the reasonableness of further pursuing

the claim may come into question when new evidence becomes available or the lack of

supporting evidence becomes apparent. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl.

29, 33 (1992), aff ‘d, 33 F.3d 1375 (Fed. Cir. 1994).

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As to the timing of an award of fees, in Avera, 515 F.3d at 1352, the United States Court

of Appeals for the Federal Circuit explicitly recognized that the Vaccine Act permitted the award

of attorneys’ fees and costs on an interim basis. Following Avera, the Federal Circuit has

clarified that an interim fee award may be made prior to a decision on entitlement. Shaw v. Sec’y

of Health & Human Servs., 609 F.3d 1372, 1374-75 (Fed. Cir. 2010)(“A special master can often

determine at an early stage of the proceedings whether a claim was brought in good faith and

with a reasonable basis.”) (quoting Avera 515 F.3d at 1352).

In Avera, the Federal Circuit provided examples of circumstances where an interim fee

award may be appropriate, such as when the case involved protracted legal proceedings, when

costly experts had been retained, or when there was undue hardship. Avera, 515 F.3d at 1352;

see also McKellar, 101 Fed. Cl. at 301 (“some special showing is necessary to warrant interim

fees, including but not limited to delineated [Avera] factors . . . . “); Vaccine Rule 13(b). Since

Avera, cases have clarified that an award of interim fees is in the special master’s discretion and

that there are various circumstances under which an interim award is appropriate. See

Crutchfield v. Sec’y of Health & Human Serv., No. 09-39V, 2011 WL 3806351, at *5-7 (Fed.

Cl. Spec. Mstr. Aug. 4, 2011)(listing cases).

Once it is established that an award of fees is appropriate, the appropriate amount of fees,

the “reasonable attorneys’ fees,” must be determined. 42 U.S.C. § 300aa-15. The determination

of the amount of reasonable attorneys’ fees is also in the special master’s discretion. Shaw, 609

F.3d at 1377, citing Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir.

1993). In cases where there is no dispute as to the amount of fees claimed, Special Masters have

awarded a petitioner’s counsel that undisputed amount generally. See e.g., Shaw, 609 F.3d at

1377.

III. DISCUSSION

As explained below, Petitioners have satisfied the requirements for an award of interim

fees.

A. Petitioners Have Acted in Good Faith and Have Established A Reasonable

Basis for the Claim.

A review of the record as a whole indicates that the claim was brought in good faith and

there was a reasonable basis for it. With regard to good faith, it is clear that Petitioners had a

subjective belief that the vaccination caused their daughters’ injury. Respondent has not

challenged the presumption of good faith here, and the undersigned is satisfied that Petitioners

filed this claim earnestly believing that their daughter suffered a vaccine-related injury.

As to reasonable basis, the evidence indicates that the claim was feasible. The medical

records indicate that on July 6, 2006, Petitioners’ daughter visited her pediatrician for a sixth

grade check-up during which she received a Tdap vaccine. P’s Ex. 13 at 26, 51. About one

month later, on August 5, 2006, Petitioners’ daughter presented to the emergency department at

Cincinnati Children’s Hospital with acute onset lower extremity paralysis, afebrile, and without

any previous illness. P’s Ex. 6A at 1. The initial impression given was acute transverse myelitis

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and Petitioners’ daughter was subjected to various treatments and therapies over the next few

months without any substantial recovery. P’s Ex. 11 at 146. Subsequently multiple expert

reports were filed in which Petitioners’ experts opined that there is a causal connection between

the receipt of the vaccination and Petitioners’ daughter’s illness. P’s Ex. 14 at 2; P’s Ex. 18 at 3.

Finally, an extensive three-day hearing was held at which Petitioner, Anita Roberts, and her

daughter, as well as five expert witnesses, three for Petitioners and two for Respondent, testified.

Whether or not Petitioners are determined to be entitled to compensation is currently under

advisement. But, at the same time, given the detailed evidence and opinions presented, a

reasonable basis existed and continues to exist for this claim.

B. An Interim Fee Award is Appropriate

Respondent objects to Petitioners’ counsel’s application for interim attorneys’ fees,

arguing that the limited scenario discussed in Avera, 515 F.3d at 1352, which would allow for

interim fees is not present in this case because an entitlement decision has not been issued. As

recognized in Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1374-75 (Fed. Cir.

2010), however, interim fees may be awarded prior to a decision on entitlement. Moreover, at

least two of the limited circumstances recognized in Avera, 515 F.3d at 1352, as being

appropriate for the award of interim fees, i.e. protracted proceedings and significant expert costs,

are present in this case.

1. Protracted Proceedings

First, an award of interim fees is appropriate because these proceedings are protracted.

These proceedings have been ongoing for over five (5) years. A hearing was conducted on

March 26 and 27, 2012, followed by extensive post-hearing brief. Although a decision on

entitlement is anticipated in the near future, the fact is that this matter has already been pending

for substantial period. Given the length of time this action has already been pending, these

proceedings are clearly protracted.

2. Significant Expert Costs

Additionally, this case involved the testimony of three medical experts on Petitioners’

behalf. Application for Interim Fees at 2. As Petitioners noted in their reply, they have incurred

over $29, 000.00 in out-of-pocket fees and costs to-date, including expert costs. This amount

certainly qualifies as significant.

The circumstances recognized in Avera as justifying an interim fee award--protracted

proceedings and significant expert costs —are present here. Payment of interim fees is justified.

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C. The Amounts Requested Are Reasonable.

Having determined that Petitioners are entitled to fees, the amount that is reasonable must

be determined. Respondent and Petitioners have stipulated to an amount and filed this

stipulation with the court. Parties’ Stipulation as to Fees ¶ 5. The undersigned finds that the

amount of $100,000.00 in attorneys’ fees and costs, to which the parties have stipulated, is

reasonable based on this stage of the proceedings. Based on the request’s reasonableness, the

undersigned GRANTS the Petitioners’ request for an award of interim fees incurred by their

counsel.

IV. CONCLUSION

For the reasons explained above, the undersigned finds that an award of interim

attorneys’ fees and costs to Petitioners’ counsel is appropriate in this case. The decision shall

reflect that Petitioners are awarded attorneys’ fees and costs on an interim basis as follows:

in a check made payable jointly to Petitioners (Anita Roberts and Gary Roberts )

and Petitioners’ counsel (Thomas K. Herren of the law firm Herren and Adams),

the amount of $ 100,000.00. The interim award check shall be mailed

directly to Thomas K. Herren, Herren and Adams, 148 North Broadway, Lexington,

KY, 40507.

IT IS SO ORDERED.

s/ Daria Zane

Daria J. Zane

Special Master

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