Decker v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 28, 2016

* * * * * * * * * * * * * * * *
CANDIE DECKER, on behalf of *
her minor child, A.D., * No. 15-17V
*
Petitioner, * Special Master Hamilton-Fieldman
*
v. * Interim Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * *
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Lara Ann Englund, United States Department of Justice, Washington, D.C., for Respondent.

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On January 7, 2015, Candie Decker (“Petitioner”), on behalf of her minor child A.D.,
filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§
300aa-1 to -34 (2006). Petitioner alleged that she suffers from amenorrhea, Hashimoto’s
Thyroiditis, and premature ovarian failure as a result of the administration of a Hepatitis A (“Hep
A”) vaccine on July 16, 2013.

On May 13, 2016, Petitioner filed an application for interim attorneys’ fees and costs.
Pet’r Mot., ECF No. 39. Petitioner argued that she brought her claim in good faith and that she
had established a reasonable basis for her claim, per the statutory requirement of § 15(e)(1).
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, 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 (2006)). As provided by
Vaccine Rule 18(b), each party has 14 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).
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 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

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Petitioner noted that the case had already been pending for sixteen months by May of 2016.
Petitioner also argued that her attorneys’ use of experts and their status as a small law firm
created an undue hardship for Petitioner, thus entitling her to interim attorneys’ fees and costs.
In her application, Petitioner noted, and showed with billing statements, that she had incurred
$26,589.50 in attorneys’ fees and $18,908.98 in costs, amounting to a total of $45,498.48. Of
those costs, $18,100.00 was spent for the expert and supplemental expert reports of Dr. James
Wheeler.

Respondent objected to Petitioner’s Application for Interim Attorneys’ Fees. Resp’t
Resp., ECF No. 40. Respondent argued that Petitioner was not entitled to interim attorneys’ fees
and costs because the original petition “was filed less than 18 months prior to the filing of the
Fee Application,” thus the proceedings have not been protracted. Id. at 5. Respondent further
noted that the retention agreement signed by Petitioner and her counsel was not “excessively
‘costly,’” and that the hardship was experienced by Petitioner’s counsel, not Petitioner herself,
thus not qualifying Petitioner for interim attorneys’ fees and costs. Without waiving her
objection, Respondent argued that an appropriate award of attorneys’ fees and costs if awarded
would be between $23,000.00 and $32,000.00.

Petitioner filed her reply on June 3, 2016. Pet’r’s Reply, ECF No. 42. Petitioner
reiterated her previous arguments. She noted that she should be awarded interim attorneys’ fees
and costs because of the protracted nature of the proceeding, because the case involved expert
testimony, and because the case imposed undue hardship on her counsel. She cited Kirk v.
Secretary of Health and Human Services, No. 08-241V, 2009 WL 775396 (Fed. Cl. Spec. Mstr.
Mar. 17, 2009) for the proposition that interim fees are due when “petitioners or their counsel
will suffer an undue hardship.” Pet’r’s Reply, ECF No. 42, at 7 (emphasis in original).

Five months later, on November 1, 2016, Petitioner filed a Supplement to her Application
for Interim Attorneys’ Fees and Costs. ECF No. 52. In her Supplement, Petitioner noted that
she will need to finance another expert report after Respondent files another report pursuant to
the October 18, 2016 Scheduling Order. In addition, she argued, the case had now been pending
for over two years. Since the filing of her reply, Petitioner had filed another expert report, from
Dr. Yehuda Shoenfeld, and would need another in the coming year. With Dr. Shoenfeld’s report
and attorneys’ fees, the total amount requested by Petitioner was $51,696.31.

The undersigned finds that Petitioner is entitled to an award of interim attorneys’ fees and
costs under the unique facts and circumstances of this case. See Butler v. Sec’y, HHS, No. 02-
1051, 2012 WL 4458203 (Fed. Cl. Spec. Mstr. June 25, 2012) (awarding interim attorneys’ fees
and costs over respondent’s objection); Shaw v, Sec’y, HHS, 609 F.3d 1372, 1375 (Fed. Cl.
2010) (holding that “[w]here the claimant establishes that the cost of litigation has imposed an
undue hardship and that there exists a good faith basis for the claim, it is proper for the special
master to award interim attorneys’ fees”). The undersigned finds that the costs of litigation in
this case has imposed an undue hardship on Petitioner’s counsel, and that Petitioner’s request is
reasonable.

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 Accordingly, the undersigned hereby awards interim fees and costs in the amount of
$51,696.31 issued in the form of a check payable jointly to Petitioner and Petitioner’s
attorney, Andrew D. Downing, of Van Cott & Talamante, PLLC, Phoenix, Arizona.

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 the parties’
stipulation.3

IT IS SO ORDERED.

s/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master

3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.

3