In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-349V
Filed: January 24, 2017
* * * * * * * * * * * * * * * * *
CRISTAL BELLO, * TO BE PUBLISHED
*
Petitioner, * Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Attorney Hourly Rate; Attorney Hours;
AND HUMAN SERVICES, * Expert Hourly Rate; Expert Hours; Interim
* Attorneys’ Fees and Costs.
Respondent. *
* * * * * * * * * * * * * * * * *
Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for Petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On November 4, 2015, Cristal Bello (“Petitioner”) moved for an interim award of
attorneys’ fees and costs in the lead case Culligan, pursuant to 42 U.S.C. § 300aa-15(e) (2012).
Mot. for Atty. Fees Interim, in Culligan v. Sec’y of HHS, No. 14-318, ECF No. 89. After careful
consideration, the undersigned has determined to grant the request in part.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this decision on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002. See 44 U.S.C. § 3501 (2012). Each party has 14 days 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).
I. PROCEDURAL BACKGROUND
On May 22, 2013, Petitioner sought compensation under Part Two of the National
Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 to -34 (2012) (hereinafter “Vaccine Act”),
alleging that the administration of the Human Papillomavirus vaccine (“Gardasil” or “HPV
vaccine”), on June 4, 2010, caused her to suffer from premature ovarian insufficiency (“POI”).
Pet. at 1-2, ECF No. 1. Petitioner was, and continues to be, represented by Mark Krueger. Id. at
2. The case was initially assigned to Special Master Moran. Notice of Assignment, ECF No. 2.
Over the next year, Petitioner filed ten medical record exhibits in support of her claim.
See Docket Report. After reviewing those records, Respondent filed a Rule 4(c) Report, arguing
that Petitioner was not entitled to compensation. Resp’t’s Report at 4-6, ECF No. 35. In
particular, Respondent noted that Petitioner had filed neither an expert report nor medical
literature in support of her claim, and that none of Petitioner’s treating physicians had opined in
favor of causation. Id. at 5-6.
On May 21, 2014, the case, along with several others in which petitioners alleged that the
HPV vaccine caused them to develop POI, was reassigned to Special Master Hamilton-Fieldman.
See Notice of Reassignment, ECF No. 44. In the course of evaluating these cases, Special
Master Hamilton-Fieldman directed Mr. Krueger “to make a determination as to whether this
case should be included among the ‘onset cases;’ that is, whether a preliminary determination is
required regarding the date of onset of Petitioner’s” POI. Scheduling Order (Sept. 25, 2014) at 1,
ECF No. 49. Mr. Krueger responded that Petitioner’s case did not “fall under the onset cases,”
as it “was filed within three years” of the receipt of the HPV vaccine. Pet’r’s Status Report at 1,
ECF No. 50.
On October 15, 2014, the Special Master held a status conference, at which Mr. Krueger
explained that Petitioner had undergone genetic testing; however, the results would not be
available for up to one month. Additionally, it would require his expert two to three weeks
beyond that date to evaluate the results. Scheduling Order (Oct. 16, 2014) at 1, ECF No. 51.
The Special Master ordered Mr. Krueger to forward the results to Respondent within 48 hours of
the receipt and to file an expert report by December 17, 2014.
A little over one month later, on November 20th, the Special Master held another status
conference, which pertained to all of the POI cases. Scheduling Order (Nov. 24, 2014) at 1, ECF
No. 53. Therein, the Special Master noted that this case was one of three “additional . . . cases in
which the statute of limitations is not at issue, but in which a finding regarding onset will be
relevant to causation.” Id.
2
After multiple extensions of the deadline, Petitioner filed an expert report from Drs.
Shoenfeld and Hamiel on March 3, 2015. Pet’r’s Expert Report, ECF No. 59. Four months
later, Petitioner filed the medical literature supporting the expert report via compact disc. See
Unnumbered Docket Entry Noting Receipt of Compact Disc (Apr. 15, 2015).
On June 18, 2015, Special Master Hamilton-Fieldman held a two-day hearing pertaining
to onset in all of the POI cases. See Unnumbered Minute Entry (June 18, 2015).
On November 4th, Petitioner filed a Motion for Interim Fees in the lead case Culligan.
Mot. for Atty. Fees Interim, in Culligan v. Sec’y of HHS, No. 14-318. Petitioner requested
$24,150 in attorneys’ fees, $13,295.81 in attorneys’ costs, $1,015.47 in client costs, and $2,400
in attorneys’ costs for expert Dr. Hamiel. Id. at 7. The total amount requested was $40,861.28.
Id.
Five months after the hearing, on November 24, 2015, Respondent filed a stipulation
requesting that $1,015.47 in costs be awarded to Petitioner. Stipulation for Fees at 1, ECF No.
64. That same day, the Special Master issued a decision in accordance with that stipulation.
Decision, ECF No. 65.
On January 6, 2016, Respondent filed a memorandum in opposition to Petitioner’s
request for interim attorneys’ fees and costs. Memorandum, ECF No. 71. Respondent argued
that interim fees were inappropriate, as (1) the litigation was not “protracted,” as the case had
“essentially been on hold since March 2015”; and (2) Petitioner could not show that she (and not
her attorney) would incur an undue hardship absent an interim fee award. Id. at 3-4. Respondent
also objected to the $12,500 in costs requested for Petitioner’s expert, Dr. Shoenfeld, where
Petitioner “submitted no invoice or other information support this expense.” Respondent argued
that this made it impossible to determine “what hourly rate he charged, how many hours he
billed, or what tasks he performed.” Id. at 5. Respondent observed that Petitioner’s request for
Dr. Shoenfeld was especially unreasonable, given that her other expert, Dr. Hamiel, prepared a
report for only $2,400. Id.
In response, Petitioner filed a memorandum contending that an interim fee award was
appropriate. Memorandum (Jan. 28, 2016), ECF No. 72. Specifically, Petitioner pointed out that
(1) the case was included with the other POI cases, requiring a substantial investment of time in
developing “an applicable onset standard” to apply to all of the cases; (2) a “substantial amount
of attorney’s and paralegal costs were incurred” in researching and reviewing the case since
Petitioner approached Mr. Krueger in March 2013; and (3) she had retained costly experts, which
“were necessary in evaluating and pursuing” her claim. Id. at 2-3. As to Respondent’s claim
that Petitioner showed no undue hardship, Petitioner countered that financial hardship for
Petitioner’s counsel constitutes an “undue hardship” for Petitioner, where Petitioner may have to
3
find new counsel years into her case if Petitioner’s counsel can no longer afford to pursue the
case. Id. at 3. Finally, Petitioner posited that Dr. Shoenfeld’s fees were reasonable, given that he
reviewed medical records and literature, and that he was researching “different aspects of the
case” than Dr. Hamiel. Id. at 4.
On May 9, 2016, Special Master Hamilton-Fieldman issued a decision dismissing the
petition in Culligan, and later dismissed a number of the other POI cases. See No. 14-318, 2016
WL 3101981 (Fed. Cl. Spec. Mstr. June 2, 2016).
A short time thereafter, on August 11th, the Special Master held a status conference,
during which she explained that “the instant petition was not precluded by the statute of
limitations under the standard identified in Culligan.” Scheduling Order (Aug. 16, 2016) at 1,
ECF No. 73. As to Petitioner’s pending motion for interim fees, Respondent reiterated that “her
client’s prematurity objection likely remains unchanged.” Id. The Special Master nevertheless
ordered Respondent to file a status report documenting whether her position had changed. Id. at
1-2.
In that status report, Respondent continued to stand by the position articulated in her
initial memorandum in opposition to an interim fee award. Resp’t’s Status Report (Aug. 25,
2016) at 1, ECF No. 74. Respondent specified that the litigation was not protracted, the experts
were not overly costly, Petitioner had shown no undue hardship, and Petitioner still had not
justified Dr. Shoenfeld’s expenditures. Id.
Petitioner contested Respondent’s characterization of the litigation. Pet’r’s Status Report
(Aug. 31, 2016), ECF No. 75. Petitioner asserted that (1) the case was protracted, as litigation
had continued over nearly four years, “without an end in sight”; (2) her counsel had dedicated
numerous hours and expended significant resources pursuing the case, and would continue doing
so; and (3) Dr. Shoenfeld’s costs were reasonable, attaching an itemized list of his charges. Id. at
1.
On January 9, 2017, the case was reassigned to the undersigned. See Notice of
Reassignment, ECF No. 82. The matter is now ripe for consideration.
II. ANALYSIS
A. Applicable Legal Standard
Petitioner is entitled to an award of reasonable attorneys’ fees and costs if she is entitled
to compensation under the Vaccine Act, or, even if she is unsuccessful, she is eligible so long as
the undersigned finds that she filed her petition in good faith and with a reasonable basis. Avera
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v. Sec’y of HHS, 515 F.3d 1343, 1352 (Fed. Cir. 2008). Special masters have “wide discretion in
determining the reasonableness” of attorneys’ fees and costs, Perreira v. Sec’y of HHS, 27 Fed.
Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
In Avera, the Federal Circuit stated that a special master may award fees on an interim
basis, and that such awards “are particularly appropriate in cases where proceedings are
protracted and costly experts must be retained.” 515 F.3d at 1352. In Shaw, the Federal Circuit
held 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.” 609 F.3d at 1375. Applying these standards, an award of interim
attorneys’ fees and costs is reasonable and appropriate in this case.
B. Eligibility for Interim Fees
Petitioner avers that this claim was filed with a reasonable basis and in good faith.
Memorandum (Jan. 28, 2016). The undersigned agrees. Petitioner’s claims are supported by the
two expert reports. Although a decision on causation has not been issued in this case, or any of
the other consolidated HPV/POI cases, there is enough information in support of Petitioner’s
claims for the court to find a reasonable basis.
Respondent argues that this case has not been protracted and that there is no issue with
costly experts to warrant a claim for “undue burden.” Memorandum (Jan. 6, 2016). The
undersigned disagrees. This case was filed May 22, 2013, three and a half years ago.
Petitioner’s onset hearing took place in June 2015, and Petitioner’s counsel has incurred
attorney’s fees and costs for time and expenses through the onset hearing. Petitioner’s case
survived past the hearing, after which a number of the POI cases were dismissed based on statute
of limitations preclusion. An entitlement hearing will not occur until late 2017, at least eight
months from present. The issuance of an entitlement decision following hearing will likely take
several months more. Petitioner in this case obtained two expert reports for the onset hearing
and has retained the same two experts for their expert opinions on causation. Because of the
protracted nature of the proceedings to date, the fact that costly expert reports have been
obtained, and the fact that the ultimate resolution of the case will not occur for a significant
period of time, the undersigned finds an award of interim attorneys’ fees and costs appropriate.
C. Reasonable Amount of Attorneys’ Fees
The United States Court of Appeals for the Federal Circuit has approved use of the
lodestar method to determine what constitutes reasonable attorneys’ fees. See Avera, 515 F.3d at
1347-48. The lodestar method requires that a court multiply “the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Id. (quoting Blum v. Stenson, 465
5
U.S. 886, 888 (1984)). Once the initial calculation is made, a court can adjust the fee award
upward or downward based on other specific findings. Id. at 1348.
A special master, relying on her prior experience, has broad discretion in determining the
reasonableness of the number of hours expended by attorneys. See Saxton v. Sec’y of HHS, 3
F.3d 1517, 1521 (Fed. Cir. 1993). A special master can reduce any number of hours expended
that are “excessive, redundant, or otherwise unnecessary.” Id. (quoting Hensley v. Eckerhart,
461 U.S. 424, 434 (1983)). The burden rests with the petitioner to prove that the number of
hours expended was reasonable by “keeping records in a manner that will enable a reviewing
court to identify distinct claims.” See Gruber v. Sec’y of HHS, 91 Fed. Cl. 773, 785 (2010)
(quoting Hensley, 461 U.S. at 437).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience
and reputation.” Id. at 895, n. 11. The petitioner bears the burden of providing adequate
evidence to prove that the requested hourly rate is reasonable. Id.
In Avera, the Federal Circuit determined that the forum of the Vaccine Act is
Washington, DC. 515 F.3d at 1348. The Federal Circuit also decided that the forum rate for
attorneys’ fees should generally apply in Program cases. Id. However, it created an exception
pursuant to Davis County: where most of an attorney’s work is performed outside of the forum
and there is a “very significant difference” between the forum rate and the attorney’s lower local
rate, a court should calculate fees under the local rate. Id. at 1349. A court must first determine
the forum rate, then determine the local rate, and finally determine whether a “very significant
difference” exists between them. Davis Cty., 169 F.3d at 758.
Because Respondent does not object to Petitioner’s requested rates of $300 per hour for
attorney Mark Krueger and $125 per hour for paralegal Renee Nehring, the analysis herein will
not focus on hourly rates. 2 Mr. Krueger’s requested hourly rate of $300, for an attorney with 30
years of experience, is appropriate. I also find, that 0.75 of the hours billed by Mr. Krueger and
Ms. Nehring are duplicative of fees awarded in Culligan, and should be reduced. These research
and review hours were already awarded in the lead case Culligan.3 However, it was necessary to
2A decision awarding interim fees and costs in the lead case was filed March 31, 2016. Culligan v. Sec’y
of HHS, No. 14-318V, 2016 WL 1622967 (Fed. Cl. Spec. Mstr. Mar. 31, 2016). In that decision, Mr.
Krueger was awarded a $300 hourly rate and Ms. Nehring, a $125 hourly rate.
3
See Madelyn Meylor, 10-770 and Olivia Meylor, No. 10-771, Decision on Attorneys’ Fees and Costs,
issued on December 27, 2016 (duplicative fees were reduced in both cases trailing Culligan); Petitioner’s
Joint Notice not to seek review of decisions filed on December 28, 2016, in both cases.
6
assess the instant case, with its own individual facts, for appropriateness as an onset case.
Therefore, the fee entries already awarded in Culligan, are reduced to .50 for every 1.00 hour of
time billed. A total of 0.55 hours billed are disallowed for Renee Nehring and 0.2 hours are
disallowed for Mark Krueger. Of the $24,150 billed for fees, therefore, the undersigned deducts
$128.75. The total amount awarded to Petitioner’s counsel for fees shall be $24,021.25.
D. Reasonable Amount of Attorneys’ Costs
1. Dr. Shoenfeld’s Costs
Respondent specifically objected to $12,500 in costs requested for Petitioner’s expert, Dr.
Shoenfeld. Memorandum (Jan. 6, 2016). Since no invoice or information regarding his
expenditures was submitted in Petitioner’s application, Respondent argued that it was impossible
to determine the reasonableness of this request. Id. Approximately 8 months later, on August
31, 2016, Petitioner addressed the contested $12,500 cost by filing documentation regarding the
hourly rate, dates of the hours worked, and the specific nature of the tasks performed. Pet’r’s
Status Report, ECF No. 75. Thereafter, Respondent did not file a response. I find Dr.
Shoenfeld’s $500 hourly rate and the 25 hours billed for reviewing documents and writing an
expert report, to be reasonable. Therefore, Petitioner’s counsel shall be rewarded the full amount
requested for costs, $13,295.81.
2. Dr. Hamiel’s Costs
Petitioner seeks reimbursement for $2,400 in fees incurred by Dr. Hamiel. Mot. for Atty.
Fees Interim at 7; Motion Addendum at 1-4 (“Dr. Hamiel’s Statement”). Dr. Hamiel charged an
hourly rate of $400 for reviewing medical records and preparing her expert report. Dr. Hamiel’s
Statement at 1. In total, she spent 6 hours on these tasks. Id. I find that Dr. Hamiel’s $400
hourly rate and the 6 hours billed, neither of which were contested by Respondent, are
reasonable. Therefore, the full requested amount of $2,400 is awarded.
III. CONCLUSION
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and expert costs in this case and finds that Petitioner’s request for
fees and costs, other than those reductions delineated above, is reasonable. Accordingly, the
undersigned hereby awards the amount of $39,717.06, in the form of a check made payable
jointly to Petitioner and Petitioner’s counsel, Mark L. Krueger, of Krueger & Hernandez,
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SC for attorneys’ fees and costs. In the absence of a motion for review filed pursuant to RCFC
Appendix B, the clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
/s/ Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
8