REISSUED FOR PUBLICATION
JAN 2 2019
OSM
U.S. COURT OF FEDERAL CLAIMS
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OFFICE OF SPECIAL MASTERS
No. l7-786V
(not to be published)
**** *( i( * * *** *t t *:r++*+* *** *!
VALISHA CARRINGTON.
Special Master Corcoran
Petitioner, Filed: November 16, 2018
Decision; Attomey's Fees and Costs;
Reasonable Basis.
SECRETARY OF HEALTH
AND HUMAN SERVICES,
*
Respondent. *
*
* +**********{.* :t t( **** *****
Valisha Carrington, pro se, Round Rock, TX.
Christine Mary Becer, U.S. Dep't of Justice, Washington, DC, for Respondent.
FINAL ATTORNEY'S FEES AND COSTS DECISION'
On June 13,2017, Valisha Carrington filed a Petition seeking compensation under the
National Vaccine Injury Compensation Program.2 In it, Ms. Carrington alleged that she suffered
from Guillain-Barr6 syndrome C'GBS), acute inflammatory demyelinating polyneuropathy
('AIDP'), and./or chronic inflammatory demyelinating polyneuropathy ("CIDP'), as a result of
receiving the Flumist form ofthe inlluenza vaccine on February 23,2016. See Petition ("Pet.")
(ECF No. 1) aI l-2; Supplemental Petition ("Supp. Pet.") (ECF No. 8-l) at l-2. The case was
dismissed on October 18, 2018 (ECF No. 36), for insufficient proof and failure to prosecute.
t Although this Decision has been formally designated "not to be published," it will nevertheless be posted on the
Court of Federal Claims's website in accordance with the E-Government Act of2002, 44 U.S.C. $ 3501 (2012). This
means the Decision rvill be available to anyone with access to th€ internet. As provided by 42 U.S.C. $ 300aa-
l2(d)(4)(B), however, the parties may object to the Decision's inclusion ofcertain kinds ofconfidential information.
Specifically, under Vaccine Rule l8(b), each party has fourteen days within which to request redaction "of any
information furnished by that party: (l) 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 ofprivacy." Vaccine Rule l8(b). Otherwise, the Decision in its present form will be available.
Id.
2
The Vaccine Program comprises Part 2 ofthe National Chrldhood Vaccine lnJury Act of 19E6, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. $$ 300aa-10 through 34 (2012) ("Vaccine Act" or "the Acf').
Individual section references hereafter will be to $ 300aa ofthe Act (but will omit that statutory prefix).
FED EX - 8136 4199 5768
Petitioner's prior counsel (who withdrew from the case before its dismissal) filed a motion
requesting attorney's fees and costs, on July 13, 2018. See generally Motion for Attomey's Fees
("Fees App.") (ECF No. 23); see a/so Supplemental Motion for Attomey Fees, dated July 16, 2018
(ECF No. 25) ("Supp. Fees App."). Counsel requests reimbursement of attomey's fees in the
amount of $21,705.00 (representing $17,969.00 in attomey's fees, plus $3,736.00 in costs). Fees
App. at 2-3.
For the reasons stated below, I hereby GRANT IN PART prior counsel's request,
awarding attomey's fees and costs in the total amount of$21,305.00 (representing $17,969.00 in
attomey's fees, plus $3,336.00 in costs).
Procedural History
This action has been pending for just over one year. Petitioner's counsel, Mr. Michael
Baseluos filed the Petition on June 13,2017 (ECF No. 1). Following the filing ofthe Petition, the
case proceeded in an overall efficient matter. Petitioner's prior counsel filed the majority of
Petitioner's medical records by June 15,2017, and the parties filed the Joint Statement ol
Completion that same day (though it was later determined that additional records were needed to
further assess the claim). See ECF No. 16. Respondent thereafter filed his Rule 4(c) Report on
January 5, 2018, contesting Petitioner's right to an entitlement awa.rd (ECF No. 15).
On January i8, 2018, I held an initial status conference to discuss my views of the case in
light of the issues raised in the Rule 4(c) Report. As noted above, the Petition alleged that Ms.
Carrington suffered from GBS, AIDP, and/or CIDP as a result of receiving the Flumist vaccine.
However, Respondent's Rule 4(c) Report highlighted some inconsistencies in the medical records
relating to the evidentiary support for Petitioner's proper diagnosis. See Scheduling Order, dated
Jan. 19, 201 8 (ECF No. 17). Based on my own assessment of the record, I explained to Petitioner
that CIDP appeared to be the better supported diagnosis, though I allowed for the possibility that
an expert opinion could shed more light on the diagnosis dispute. 1d at 1. Nevertheless, at the
conclusion of the conference I expressed concem relating to the claim's overall viability (given
the questions about diagnosis, Petitioner's preexisting health problems, and the possibility of
conversion disorder as an altemate explanation for her symptoms). Id. at 1-2. I thus encouraged
Petitioner to be mindful of the above if she intended to proceed with obtaining an expert opinion
to support her cl aim. Id. at l.
On April 4,2018,I held an additional status conference with the parties after Petitioner
expressed the desire to proceed to the expert stage. During the conference, Petitioner's prior
counsel informed me that he had retained Dr. Marcel Kinsboume in hopes that he could ofler an
2
expert opinion in the matter. See Scheduling Order, dated Apr. 4, 2018 (ECF No. 20) ("April 4ft
Order"). According to counsel, Dr. Kinsboume believed Petitioner had been misdiagnosed, and
wanted to evaluate other possible explanations for her symptoms (including narcolepsy,
conversion disorder, or small fiber neuropathy).
In response, I reiterated my concems regarding the claim's viability given the weak record
support for the new diagnoses offered. April 46 Order at 1-2. Program precedent strongly favors
the contemporaneous medical records when assessing possible diagnoses (as opposed to
subsequent opinions contradicting earlier-in-time records). Id Otherwise, given the lack of
Program support for a vaccine-induced injury resulting in narcolepsy, I cautioned Petitioner that
only her newly-alleged small fiber neuropathy diagnosis might be viable (though it too appeared
unsupported by the medical record at that time). Id. at 2. Despite my concems, I agreed to allow
Petitioner time to further investigate the newly alleged diagnoses (and obtain an expert opinion in
support). See Scheduling Order, dated Apr. 4,2018 (ECF No. 20).
I held a final status conference on July 12, 2018. During that conference, prior counsel
expressed an intent to withdraw given his inability to obtain an expert who could offer a supportive
opinion regarding the injuries alleged in the Petition, as well as Petitioner's unsuccessful attempts
to procure an altemative diagnosis. &e Scheduling Order, dated July 12,2018 (ECF No. 22). Prior
counsel filed his motion to withdraw and fees application on July 13, 2018, and July 16, 2018,
respectively (ECF Nos. 23-26). Thereafter, I granted counsel's motion to withdraw on August 6,
2018 (ECF No.29). The case was subsequently dismissed on October 18,2018, for insufficient
proof and failure to prosecute. See Decision, dated Oct. 18, 2018 (ECF No. 36).
Fees Request
According to the billing record submitted with the fees request. Petitioner's counsel began
reviewing the case file in March 2016, and immediately worked to obtain Petitioner's medical
records thereafter. See, e.g., Ex. I to Fees App. at 2 (March 29,2016 entry noting telephone
conference with clienQ, 2 (October 4,2016 entry noting email regarding obtaining medical
records). Counsel conducted various tasks related to case preparation throughout the remainder of
2016 (including participating in email communication with Petitioner, discussing missing
materials and records, and monitoring file updates). See id. at2-3.
The same record reveals that prior counsel began reviewing medical records in early
December 2016. See Ex. 1 to Fees App. at 2-3 (ECF No. 23-1). Based upon my review, it appears
that counsel completed multiple hours oiwork pertaining to record review prior to filing the claim,
but filed the majority of Petitioner's records on June 1 5, 2017 (two days following the filing of the
Petition). See ECF Nos. 8 & 9. After the filing of records, the parties filed the Joint Statement of
Completion on Juno 15, 2017 (ECF No, 10), followod by tho Rulc 4(o) Rcport on January 1 , 201 8
3
(ECF No. 15). The record also reveals that counsel filed additional medical records thereafter in
mid-January 2018. See ECF No. 16 (pertaining to additional neurology visits).
In the pending fees request, prior counsel asks that he be compensated at a rate of$265 per
hour for work performed in 2016, with increases to $275 per hour for work completed in 2017,
and $295 per hour for work completed in 2018. See generally Ex. I to Fees App. For paralegal
time expended on the matter, Petitioner requests a rate ol $125 per hour for work completed in
2016-2018.1d. Pursuant to the General Order No. 9 statement, Petitioner maintains that she has
incurred no personal costs related to this matter. Fees App. at 2. The fees application also requests
reimbursement for litigation costs incurred (representing medical record requests, the filing fee,
mailing and postage, and a medical review by Dr. Marcel Kinsboume). 1d
Respondent reacted to the fees motion on July 27, 2018. stating that he is satisfied that the
statutory requirements for an award of attomey's fees and costs are met in this case, but deferring
to my discretion the determination oithe amount (ifany) to be awarded. See Response, dated July
27 ,2018 (ECF No. 28) ("Response").3
The fees request remained pending for roughly three months following counsel's
withdrawal (until the case was dismissed). Prior counsel filed an application for standing on
August 27,2018 (ECF No. 33), requesting that I allow him to intervene in the matter for the limited
purpose ofoffering additional support (pertaining to reasonable basis) forhis fees motion. I granted
counsel's motion on October 19,2018 (ECF No. 37), and directed both parties to file any additional
fee-related materials on or before November 2,2018.
On October 29,2018, prior counsel filed a brief setting forth his views regarding the
claim's reasonable basis. According to the brief, prior counsel maintains that he diligently
reviewed Petitioner's medical records and determined that the evidence he possessed supported a
filing ofthe claim. He argues that Petitioner's claim had reasonable basis due to assertions from
treating physicians conceming the flu vaccine and its possible relationship to the documented
neuropathic symptoms Petitioner experienced (whether GBS, CIDP, or AIDP) close-in-time to
vaccine administration. ,See Brief, filed Oct.29,2018 (ECF No.38) ("Brief') at 2-9 (citing, for
example, Ex.3 atl-2,50-54; Ex.5 at 6l-68,86,97,127,413,429; Ex.4 at l8-25), 13, 16. Based
on these teater-supported assertions, counsel argues that further investigation was needed to
3
Apart from the above, Respondent's briefin response to Petitioner's fee application did challenge Petitioner's request
for an award on an interim basis (as the original fees motion was filed prior to the conclusion ofthe case). S€e Response
at l-3. I find this argument moot, however, in Iight ofthe case's dismissal. Respondent offered no additional objection
regarding a final fees award despite being given an opportunity to do so.
4
determine the causal nature ofthe vaccine as it related to Petitioner's onset of symptoms. Id. at9.a
Although prior counsel acknowledges that the medical records are somewhat equivocal regarding
the proper diagnosis of Petitioner's symptoms, he maintains that the claim's ultimate deficiencies
came to light only after obtaining additional medical records and speaking directly with an opining
expert physician. Id. at 9-10, 11-121' see also Ex.7. Following medical expert review, counsel
maintains that he acted expeditiously in attempting to aid Petitioner in procuring an alternative
diagnosis (i.e. small fiber neuropathy, narcolepsy, or conversion disorder), and appropriately
withdrew from the case once it was determined such a diagnosis could not be obtained. Brief at
12, 15. Respondent did not file a response. The matter is thus ripe for disposition.
Analvsis
I. Reasonable Basis Standard
I have in prior decisions set forth at length the criteria to be applied when determining ifa
claim possessed "reasonable basis"5 sufficient for a fees award. See, e.g., Allicock v. Sec'y of
Health & Human Servs., No. 15-485V,2016 WL 3571906, at *4-5 (Fed. Ct. Spec. Mstr. May 26,
2016), affd on other grounds, 128 Fed. C|.724 (2016); Gonzalez v. Sec'y of Health & Human
Servs., No. 14-1072Y,2015 WL 10435023, at *5-6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short,
a petitioner can receive a fees award even if his claim fails, but to do so he must demonstrate the
claim's reasonable basis through some objective evidentiary showing and in light of the "totality
of the circumstances," including all facts relevant to the to the case. See Chuisano v. Sec'y of
Health & Human Servs., I 16 Fed. Cl. 276,286 (2014) (citing McKellar v. Sec'y of Health &
Human Servs.,101 Fed. Cl. 303, 303 (2011)).
The nature and extent of an attomey's investigation into the claim's underpinnings, both
before and after filing, shed some light on the extent ofobjective evidence supporting a claim (and
when that evidence was, or could have been, unearthed). See Cortez v. Sec'y of Health & Human
Servs., No. 09-176y,2014 WL 1604002, at *6 (Fed. Cl. Spec. Mstr. Mar. 26,2014); Di Roma v.
Sec'y of Health & Human Servs., No. 90-3277y, 1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr.
Nov. 18, 1993) (citing Lambv. Sec'y of Health & Human Servs.,24 Cl. Ct.255,258 59 (1991).
a Prior counsel also asserts that he conducted research regarding Petitioner's symptoms which conhrmed his
suspicions. He submitted ponions ofthis research (including a sample case report) with his reasonable basis brief. See
generally Ex. I to Brief at l -l 8; see a/so Brief at 5, 7, | 6.
5
Although good faith is one ofthe two criteria that an unsuccessful petitioner requesting a fees award must satisry, it
is an easily-met one and Respondent does not appear to question itin this case. Grice v. Sec'y of Health& Human
Ser-ys.,36 Fed. Cl. I 14, 12l (1996) (in the absence ofevidence ofbad faith, special master wasjustified in presuming
the existence ofgood faith).
5
Program attomeys are expected to conduct a reasonable pre-filing investigation-including an
evaluation of the factual basis for the claim at minimum. See Allicock,2016 WL 3571906, at *4;
Turner v. Sec'y of Health & Human Servs., No. 99-544V,2007 WL 4410030, at *7 (Fed. Cl. Spec.
Mstr. Nov. 30,2007) ("[a] reasonable pre-filing inquiry involves an investigation of the factual
basis for a Program claim or the medical support for a vaccine petition") (emphasis added)).
The Court ofFederal Claims recently provided further illumination as to the standards that
should be used to evaluate whether the totality of the circumstances warrant a finding that
reasonable basis existed. Cottingham v. Sec'y of Health & Human Servs., No. 15-1291Y,2017
WL 4546579, at + l0 (Fed. Cl. Oct. 12, 2017). As Judge Williams therein stated, a special master
should consider "the novelty of the vaccine, scientific understanding of the vaccine and its
potential consequences, the availability of experts and medical literature, and the time frame
counsel has to investigate and prepare the claim." Id. aI*5. Ar impending statute of limitations
deadline, however, has been removed from consideration under the "totality ofthe circumstances"
analysis. See Simmons v. Sec'y of Health & Human Servs. ,87 5 F .3d 632,636 (Fed, Cir.2017); see
also Amanhtaa v. Sec'y of Health & Human Sei'vs., No. 17-036V, slip. op. at 9-10 (Fed Cl. June
4,2018) ("special masters must not consider subjective factors in determining whether a claim has
reasonable basis[,]" and should "limit [their] review to the claim alleged in the petition . . . based
on the materials submitted.") (quoting Santacroce v. Sec 'y of Health & Human ,Servs., No. 1 5-
555V, 2018 WL 405121, at *7 (Fed. Cl. Spec. Mstr. Jan. 5,2018)).
I Petitioner's Claim Had Sufficient Reasonable Basis for a Fees Award
Based on my review ofthe case history, coupledwith the evidence of counsel's course of
representation of Petitioner as set forth in the billing records, I find that the claim did possess
reasonable basis, despite its ultimate weakness.
In the Petition, Ms. Carrington alleged that she suffered from GBS, CIDP, and/or AIDP,
as a result of receiving the Flumist vaccine on February 23,2016. Pet. at 1-2. Record evidence
establishes both her receipt ofthe vaccine as well as treater statements noting a concem for adverse
neuropathic symptoms close-in-time to vaccine administration. See Ex. 1 (vaccination record); see,
e.g.,Ex.3 at 44 (noting an onset ofweakness in lower extremities, tingling, numbness, neck pain,
and radiating right shoulder pain since receiving the Flumist vaccine). Accordingly, fundamental
elements of her claim at lea$ had som e subslaffiation.
A closer examination of the medical record, however, clearly indicates that Petitioner's
treaters later expressed concern regarding her appropriate diagrrosis. Thus, the issue of the claim's
reasonable basis tums on whether the concems regarding Petitioner's diagnosis should have been
6
immediately viewed by counsel as an insurmountable obstacle to the claim's viability (in addition
the weak medical record evidence linking the vaccine to the symptoms she was experiencing).
Counsel maintains that prior to filing the claim, he relied on documented treater statements
(along with a self-conducted scientific investigation) to support his conclusion that Petitioner
experienced some form ofan acute neuropathy (whether atypical GBS, CIDP, or AIDP) roughly
one month following her receipt of the Flumist vaccine. See Brief at 2; Ex. I to Brief at 1-18.
Indeed, various treatment records around the time olvaccination suggest that Petitioner presented
to treaters with complaints (including paresthesia, numbness, and weakness) near the end of March
2016. See, e.g.,Ex.3 at 44-45. Records also reveal that at least one treater considered a possible
relationship between her symptom onset and her vaccination, though additional filed records could
reasonably be interpreted to be recordings of Petitioner's q1q recollection of her injury, rather
than a treater opinion proposing a causal link. See, e.g., Ex. 3 at 53 ("[s]he recently had a flu
vaccination"); but see Ex. 3 at 45-46; Ex. 5 al 62; Ex. 7 at 2; Ex.2 at 6.
As Petitioner's disease course progressed, however, those same treaters expressed some
concem regarding her appropriate diagnosis due to the lack of corroborating medical testing
evidence. See, e.g., Ex. 3 at 53 (March 28, 2016 neurology consult noting that GBS/AIDP should
be considered, though reflexes were normal and intact),46-49 (April 1, 2016 psychiatric consult
noting GBS would be atypical as Petitioner had retained reflexes), 81-82 (April 1, 2016 neurology
consult noting Petitioner's case was odd/atypical for AIDP due to normal MRI and CSF analysis).
Subsequent treaters reached similar conclusions. Se e, e.g.,Ex. 5 at 52,55 (January 3, 201 7 hospital
record noting March 2016 GBSA4S workup was unremarkable, resulted in normal MRI and
lumbar puncture, and overall etiology was "not clear"), 68 (January 3,2017 neurology consult
listing CIDP as a differential. but noting presentation would be agpical given intact reflexes)- 90
(January 11,2017 neurology consult indicating suspected CIDP due to EBV infection, but noting
reflexes were intact); Ex. 7 at 3-4 (January 26,2017 neurology consult noting Petitioner "does not
have" GBS/CIDP). Based on the above, it appears the treaters at least considered that Petitioner
was suffering from some form ofacute neuropathy (i.e. in the context ofa working diagnosis), but
never affirmatively diagnosed her with such a condition.
After consulting with a medical expert, prior counsel maintains, it was determined that
Petitioner's symptoms were likely not consistent with atypical GBS (or AIDP/CIDP), but could
be considered reflective of narcolepsy and/or small fiber neuropathy ('SNF'). Brief at I 1 . He also
maintains that he received additional medical records in early January 2018 directly contradicting
his initial view that Petitioner had experienced a vaccine-induced neuropathic injury. 1d at 15.
Counsel explains that he then acted properly in notifuing the court of this newly acquired
information, and proceeded in an efficient manner by further assisting Petitioner in investigating
these altemative diagnoses offered by the reviewing expert- Id.
7
Consistent with counsel's assertions, the medical records reveal some support for a
diagnosis of narcolepsy (although, it does not appear a treater related that condition to her
vaccination). See, e.9., Ex. 2 at 6-7 (March 21, 2016 concem for narcolepsy given breathing
troubles and increased sleepiness on exam); Ex. 3 at 44-45 (March 28,2016 hospital record
indicating past diagnosis and sleep study for narcolepsy). Narcolepsy is an injury that has been
litigated in the Program in the past (albeit unsuccessfully at times), but could be a viable vaccine-
induced injury. See, e.g., D'Toile v. Sec'y of Health & Human Servs., No. l5-085V, 2016 WL
7664475 (Fed. Cl. Spec. Mstr. Nov. 28, 2016), mot. for review den'd, 132Fed. Cl. 421 (2017),
aff'd, 726 F. App'x 809 (Fed. Cir. 2018). With regard to SFN, however, none of Petitioner's
treaters embraced such a diagnosis, and attempts to obtain an SFN diagnosis post-filing of her
vaccine injury claim proved unsuccessful. ,See Briefat 12.
All in all, the medical records filed in the present matter reveal some facial deficiencies
with regard to portions ofPetitioner's claim. The fact that Petitioner did not have a clear diagnosis
at the outset, however, does not obviate the reasonable basis of her claim. The medical record
evidence includes some treater statements conceming a possible relationship between the Flumist
vaccine and Petitioner's presenting symptoms (alleged to have been consistent with atypical GBS,
CIDP or AIDP), even if in the form ol a working diagnosis. As detailed above, treaters at least
considered Pelilioner's symptoms to be supportive of some neuropathic injury initially (while at
times also expressing some concem given her relevant test results). Even if such evidence looks
weak in hindsight (especially given the claim's dismissal), it is enough to conclude that the case
had some objective support for reasonable basis prior to filing. It was thus reasonable for counsel
to proceed with filing the claim.
My analysis is not complete, however. I must also determine, based on the totality of the
circumstances and the evidentiary showing, if counsel should receive a full award of attomey's
fees through July 2018 (as requested). Well-reasoned decisions have noted that even cases that
begin with reasonable basis can lose it over time, once more evidence comes in that reveals a
claim's weaknesses. ,See, e.g., Pannick v. Sec'yof Health & Human Servs., No. 16-0510V,2016
WL 8376894, at *2 (Fed. Cl. Spec. Mstr. Nov. 8,2016). I have ruled that reasonable basis ceased
to exist for certain claims that initially had it for this very reason. See, e.g., Curran v. Sec'y of
Health & Human Servs., No. 15-804V, 2017 WL 1718791 (Fed. C1. Spec. Mstr. Mar. 24,2017);
see also Fieselman v. Sec'y of Health & Human Servs., No. 17-170y ,2017 WL 5398625 (Fed. Cl.
Spec. Mstr. Sept. 14, 2017); Butler v. Sec'y of Health & Human Servs., No. 16-1620V ,2017 WL
3811134 (Fed. Cl. Spec. Mstr. Aug. 3, 2017).
Based on my overall view ofthe case's progression, I frnd that counsel acted appropriately
in attempting to represent Petitioner while taking note of my concems about the claim's viability,
8
and properly acted once the lack of viability was evident. As the billing record reveals, Mr.
Baseluos expeditiously reviewed Petitioner's claim and worked to determine its likelihood of
success (via medical record review and an investigation into the scientific basis for the claim). See
generally Fees App. He also promptly supplemented the record and consulted with a reviewing
expert after filing the claim to determine which diagnoses seemed most viable. Once Petitioner's
reviewing expert refuted some of the diagnoses considered in the medical record, counsel
entertained additional investigation into alternate diagnoses based on that review (as supported by
the record). Counsel thus relied not simply on subjective statements ofthe Petitioner but on actual
objective record proof, while subjecting the questionable or weaker kinds of evidence to testing
via expert opinion. And he sought withdrawal promptly once he determined that Petitioner's
symptoms could not be related to the various diagnoses proposed herein (concems that his own
investigation and further attempts to obtain additional diagnoses could not rebut).
Overall, this case likely would have been difficult to prosecute successfully (given the
weak treater support for a vaccine-induced injury, coupled with the dispute regarding Petitioner's
diagnosis). The claim was therefore appropriately dismissed under the circumstances. But it has
long been understood that the saccess of a claim is not determinative of the claim's reasonable
basis, an inquiry which considers whether objective proof exists to support it. See Livingston v.
Sec'y of Health & Human Serus., No. 12-268V,2015 WL 4397705, at *6 (Fed. Cl. Spec. Mstr.
June 26, 2015) ("[a]n assessment of reasonable basis looks not to the likelihood of success but
more to the feasibility of the claim" (intemal quotation marks omitted)). Here, that test is satisfied,
and therefore the case had sufficient reasonable basis through its dismissal for a fees award.
UI. Calculation of Fees Award
Determining the appropriate amount of a 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 & Human
,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. lvera, 515 F.3d
at 1348.
An attomey's reasonable hourly rate is determined by the "forum rule," which bases the
proper hourly rate on the forum in which the relevant court sits (Washington, DC, 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 Davis exception). Avera,5l5 F.3d at 1348 (Fed. Cir. 2008, citing Davls
Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169
F.3d 755, 758 (D.C. Cir. 1999)). As the Federal Circuit stated in Avera, inclusion of the Davrs
9
exception ensures against a "windfall" - meaning paying a lawyer in a rural or less expensive
locale more than she would otherwise eam, simply because she is litigating a case in a court of
national jurisdiction. Avera,515 F.3d a11349. A recent special master's decision established the
hourly rate ranges for attomeys ofdifferent levels ofexperience who are entitled to the forum rate,
and it has since been relied upon more generally by the Office ofSpecial Masters. See McCulloch
v. Sec'y of Health & Human Servs., No.09-293V,2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr.
Sept. 1,2015).
After the hourly rate is determined, the reasonableness ofthe total hours expended must be
determined. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201,205-06 (2009). This
inquiry mandates consideration of the work performed on the matter, the skill and experience of
the attomeys involved, and whether any waste or duplication of effort is evident. Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983).
Prior counsel asks that he be reimbursed at varying rates for work performed from 2016-
2018, as detailed above; $265 for 2016; $27 5 for 2017; and $295 for 2018. Based on my review
of the fees application, it appears that Mr. Baselous is requesting rates consistent with the
prevailing rate in San Antonio, Texas. See Fees App. at 2. There have been recent decisions in the
Program granting Mr. Baseluos the above-requested rates. ,See, e.g., Hernandez v. Sec'y of Health
& Human Servs, No. l6-1508V, 2018 WL 4391060, at *2 (Fed. C1. Spec. Mstr. Aug. 20,2018);
Depena v. Sec'y of Health & Human Servs., No. 13-615y,2017 WL 147 6240, at *3-4 (Fed. Ct.
Spec. Mstr. March 30, 2017) (awarding San Antonio rates); Saied v. Sec'y of Health & Human
Servs., No. 12-552Y , 2017 WL 1101764, at *2 (Fed. Cl. Spec. Mstr. Feb. 28, 2017). The rates
requested herein are the same as those awarded to counsel in the above-cited decisions, and I will
reimburse counsel at the rates requested without reduction.
Petitioner also requests that counsel be reimbursed for $3,736.00 in costs (representing the
filing fee, medical records requests, mailing and postage costs, and an expert consult with Dr.
Marcel Kinsbourne). Fees App. at2. According to the fee application, Petitioner requests that Dr.
Kinsboume be compensated at a rate of$500 per hour for four hours of work (representing a total
of $2,000.00 for expert services rendered). Supp. Fees App. at 18. However, I recently issued a
decision awarding Dr. Kinsboume a rate of $400 per hour for substantive work, consistent with
the rates awarded him by other special maters. See. e.g., Gowan v. Sec'y of Health & Human
Servs., No. l6-350V,2018 WL 1835100, at +2 (Fed. CL Spec. Mstr. Feb. 27,2018); L.Mv. Sec'y
of Health & Human Servs., No. 14-714y,2017 WL 5382907, at * 5 (Fed. Cl. Spec. Mstr. Sept.
29,2017); see also Faro v. Sec'y of Health & Human Servs., No. 10-704V, 2014 WL 5654330, at
t4 (Fed. Cl Spec. Mstr. Oct. 15,2014). I will therefore reduce Dr. Kinsboume's rate (consistent
with my past decisions) and compensate him at a rate of $400 per hour for four hours of work
l0
performed, resulting in an award of $1,600.00 for expert services (a total costs reduction of
$4oo.oo).
Upon my review of the billing record, the hours expended on this matter by counsel appear
to be reasonable, and Respondent did not identify any entries as objectionable. Thus, I will
reimburse counsel in full for his work on this matter. Additionally, apart from the requested rate
for Dr. Kinsboume, the requested litigation costs are reasonable and will be awarded in full.
CONCLUSION
For the aforementioned reasons, I award a total of $21,305.00 (representing $17,969.00 in
attomey's fees, plus $3,336.00 in costs) as a lump sum in the form of a check payable to
Petitioner's prior counsel, Michael Baseluos, Esq. In the absence of a motion for review filed
pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.6
IT IS SO ORDERED.
Brian H.
Special Master
6
Pursuant to Vaccine Rule I l(a), entry ofjudgment can be expedited by the Parties' joint filing of notice renouncing
the right to seek review.
11