In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: June 29, 2020)
* * * * * * * * * * * * * * *
HEATHER DOUCETTE, * UNPUBLISHED
*
Petitioner, * No. 18-1161V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Reasonable
AND HUMAN SERVICES, * Basis.
*
Respondent. *
* * * * * * * * * * * * * * *
Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 9, 2018, Heather Doucette (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. §
300aa-10 et seq. (2012).2 Petitioner alleges that as a result of the influenza (“flu”) vaccine on
October 14, 2016, she suffered from Guillain-Barré syndrome (“GBS”). Petition at 1. On
January 16, 2020, the undersigned issued a decision dismissing petitioner’s case. Decision dated
Jan. 16, 2020 (ECF No. 40).
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards $11,203.69 in attorneys’ fees and costs.
1
Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
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-10 to -34 (2012). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
I. BACKGROUND
A. Procedural History
Petitioner filed her claim with various medical records on August 9, 2018. Petition (ECF
No. 1); see Petitioner’s Exhibits (“Pet. Exs.”) 1-8. Petitioner filed additional medical records in
October 2018 and June 2019. Pet. Exs. 9-11.
On July 3, 2019, respondent filed his Rule 4(c) Report, arguing against compensation,
and a motion to dismiss. Respondent’s Report (“Resp. Rept.”) at 1 (ECF No. 26); Motion to
Dismiss, filed July 3, 2019 (ECF No. 27). Petitioner filed a supplemental affidavit and her
response to respondent’s motion to dismiss on July 15, 2019. Pet. Ex. 12; Pet. Response to
Motion to Dismiss, filed July 15, 2019 (ECF No. 29).
On December 4, 2019, petitioner filed a motion for a decision dismissing her petition,
stating that “[a]n investigation of the facts and science supporting her case has demonstrated to
petitioner that she will be unable to prove that she is entitled to compensation” and “to proceed
further would be unreasonable and would waste the resources of the Court, the respondent[,] and
the Vaccine Program.” Petitioner’s Motion for Decision Dismissing Her Petition, filed Dec. 4,
2019, at ¶¶ 1-2 (ECF No. 38). Respondent did not file a response, and the undersigned issued a
decision dismissing petitioner’s case on January 16, 2020.
On March 8, 2020, petitioner filed an application for attorneys’ fees and costs.
Petitioner’s Application for Attorneys’ Fees and Costs (“Pet. Mot.”), filed Mar. 8, 2020 (ECF
No. 45). Petitioner’s counsel requested $10,481.70 in fees and $721.99 in costs, for a total
request of $11,203.69. Id. at 2. Respondent filed a response on March 15, 2020, opposing
petitioner’s motion for fees and costs on the grounds that the claim lacked a reasonable basis.
Respondent’s Opposition to Petitioner’s Motion for Attorneys’ Fees and Costs (“Resp.
Response”), filed Mar. 15, 2020 (ECF No. 46). Respondent emphasized that petitioner’s medical
records filed with her petition did not support a finding that petitioner suffered the residual
effects of her vaccine-related injury for more than six months, and thus, petitioner’s claim lacked
reasonable basis when filed and it was never established. Id. at 5-6. In her reply dated March
19, 2020, petitioner maintained that her petition possessed reasonable basis. Pet. Reply to Resp.
Response (“Pet. Reply”), filed Mar. 19, 2020 (ECF No. 47).
This matter is now ripe for adjudication.
B. Factual History3
On October 14, 2016, petitioner received a flu vaccine. Pet. Ex. 1 at 1. On October 19,
2016, petitioner presented to urgent care complaining of lightheadedness, heart racing, shortness
of breath, and sinus pressure. Pet. Ex. 2 at 3. Petitioner reported “[n]ot feeling [r]ight” and
expressed concern about a reaction to her recent flu vaccine. Id. Petitioner was positive for
fever, dyspnea, heart racing, dizziness, headache, food allergies, and seasonal allergies. Id. She
3
Although the undersigned has reviewed all of the medical records and other evidence in this
case, for purposes of efficiency, this history is largely taken from respondent’s Rule 4(c) Report.
For a more detailed factual history, see Resp. Rept. at 1-10; Pet. Reply at 5-8.
2
was diagnosed with sinusitis, tachycardia, and microscopic hematuria, and prescribed a Z-pack
antibiotic. Id. at 9.
On October 20, 2016, petitioner saw her primary care physician (“PCP”), advanced
registered nurse practitioner (“ARNP”), Brittani Losapio. Pet. Ex. 3 at 57. She reported her
receipt of a “flu shot last Thursday” and that she felt “fine that day,” but has some abdominal
pain and nausea over the weekend. Id. On exam, her oropharynx was inflamed. Id. at 60. The
assessment was pharyngitis, pyrexia, and distressed respirations. Id. at 61-62. The plan noted a
negative rapid strep test, a negative chest x-ray, a negative D-dimer ruling out pulmonary
embolism, and a negative monospot test. Id. at 62. The assessment also stated that this “may be
related to adverse reaction to flu vaccine versus viral illness.” Id. at 63.
Petitioner was seen at West Marion Community Hospital Emergency Department on
November 3, 2016 for dizziness, palpitations, and nausea. Pet. Ex. 4 at 17. She stated that she
had the same symptoms three weeks prior and had an upper respiratory infection two weeks
before. Id. Exam noted no motor deficits, no sensory deficits, and her cranial nerves were intact.
Id. at 19. Her white blood count (“WBC”) was high at 13.1 (normal range 3.7-11.0), her free T3
was high at 4.3 (normal range 2.5-3.9), and her urine hemoglobin was noted as “small.” Id. at
20-22. The primary impression was vertigo, and the secondary impressions were anxiety about
health and dizziness. Id. at 23.
On November 7, 2016, petitioner saw an allergist, reporting her above medical history
and that over the past year, she had some shortness of breath with walking up stairs. Pet. Ex. 5 at
2. She noted some itching and a burning sensation in her ribs when off her allergy medications.
Id. The allergist further noted “symptoms have been present for some nasal symptoms for about
10 years, shortness of breath for about 1 year with walking stairs. Some additional recent
symptoms this past month. The symptoms are severe recently.” Id. The assessment was
reaction to food, environmental and seasonal allergies, and shortness of breath. Id. at 5.
Subsequently, on November 9, 2016, petitioner saw her PCP for a “3 week history of
tachycardia, shortness of breath, [and] bouts of nausea since having the flu shot.” Pet. Ex. 3 at
49. The exam noted slight abdominal tenderness in the right upper quadrant, and normal
sensation. Id. at 52-53. The assessment was abdominal pain, anxiety disorder, and distressed
respirations. Id. at 53.
The next day, November 10, 2016, petitioner was seen by Dr. Ali Nasser, a cardiologist,
for palpitations and shortness of breath. Pet. Ex. 6 at 7. She reported her medical history,
including “feeling ill 1 week after receiving [flu vaccine] and getting short of breath, tight in the
chest, fatigue, muscular pain, malaise, tachycardia[,] and nausea.” Id. at 9. Her review of
symptoms (“ROS”) noted a resolved fever, night sweats, shortness of breath when walking,
palpitations, no chest pain, nausea, muscle aches, no muscle weakness, no joint pains, and
frequent or severe headaches. Id. On exam, she was anxious. Id. Her lung cardiovascular
exams were normal, and her neurologic exam noted normal gait, strength, and tone. Id. The
EKG PR interval was normal, and the interpretation was normal. Id. at 9-10. The assessment
was viral disease, adverse reaction, and “[c]omplication of immunization . . . [m]ost likely mild
systemic inflammatory reaction due to [flu vaccine], with mild pericarditis and pneumonitis.” Id.
at 10.
3
On November 22, 2016, petitioner visited Dr. John P. Gresh, a rheumatologist, for a
positive ANA of 1:160 with a speckled pattern and recent flu-like syndrome. Pet. Ex. 7 at 1.
She reported feeling well until approximately one month ago when she received a flu shot. Id.
On exam, she had no adenopathy. Id. at 2. Her lungs were clear, and her musculoskeletal exam
noted full range of motion (“ROM”) with no joint swelling, tenderness, synovitis, or deformity.
Id. at 2-3. She had no focal weakness or sensory deficits, her gait was normal, and her
fibromyalgia zones were not tender. Id. at 3. The assessment was ANA titer above reference
range, but her symptoms did not suggest an underlying connective tissue disease. Id. Other
assessments included myalgia, fatigue, and viral syndrome. Id. Dr. Gresh prescribed a Medrol
Dosepak. Id.
She again saw Dr. Gresh on November 29, 2016. Pet. Ex. 7 at 5. “She noted that while
on Medrol[,] she felt less muscle fatigue and noted that the ‘pulsing’ in her muscles [] nearly
resolved.” Id. Since stopping the Medrol, she noted a “recurrence of some tingling in her legs in
the sense of easy fatigability.” Id. Her lab studies performed at the last visit included ANA
1:160 speckled pattern, which was unchanged from prior result. Id. Exam showed no synovitis
or joint tenderness and intact ROM in all joints. Id. at 6. Dr. Gresh noted, “it appears she has a
hypersensitization/paresthesia-type symptom presentation with the sensation of pulsing or
tingling in her extremities. Her examination is completely unremarkable.” Id. She was
prescribed gabapentin. Id. Dr. Gresh noted, “[c]linically I find no evidence of underlying
connective tissue disease and her symptom complex suggests a component of fibromyalgia with
the generalized fatigue, myalgias, throbbing/pulsing/tingly paresthesias she is experiencing.” Id.
On December 8, 2016, petitioner saw Dr. Nasser for “full body tremors at bedtime and is
anxious to know what is going on with her health.” Pet. Ex. 6 at 4. She “[c]ontinues to have
tremors” that cannot be explained, and Dr. Nasser noted “[t]hey sound like neuropathy with
repeated gamma fibers discharge.” Id. at 6. On exam, no abnormalities were noted. Id. The
assessment was viral disease, adverse reaction, complication of immunization, and chills. Id.
Dr. Nasser noted petitioner could have a mild case of sensory GBS. Id. at 7.
On January 6, 2017, petitioner was seen by her PCP for a lab review and reported
“feeling [a lot] better” after diagnosis of non-motor GBS. Pet. Ex. 3 at 40. Petitioner further
states “[h]er specialist[s] are all thinking this is an adverse reaction to the flu.” Id. She was
taking propranolol for residual tremors. Id. Her ROS was negative, and her exam showed no
abnormalities, with “no decreased response to pain and temperature stimulation of leg/foot.” Id.
at 41-44. The assessment was viral vaccination reaction, tremor, myalgia, and myositis. Id. at
44. An allergy to the flu vaccine was noted. Id. at 41.
Petitioner was seen by Dr. Nasser for a follow-up on February 16, 2017. Pet. Ex. 6 at 2.
Overall, she was doing much better but continued “to have tremors in rare occasions. . . . They
sound like neuropathy with repeated gamma fibers discharge.” Id. at 3. Dr. Nasser “suspect[ed]
. . . Pure Sensory [GBS] due to a reaction to [f]lu [v]accine.” Id. Dr. Nasser noted petitioner’s
shortness of breath, tightness in chest, fatigue, muscular pain, malaise, tachycardia, and nausea
have fully resolved. Id. The assessment was complication of immunization, and petitioner was
“[r]eassured once again.” Id. at 4.
On July 21, 2017, petitioner was seen by her PCP for dizziness. Pet. Ex. 3 at 33. She had
no nausea, vision changes, or speech difficulties. Id. Her ROS was positive for dizziness and
vertigo, and her exam was positive for impaired balance. Id. at 34-37. She had no other
4
neurologic abnormalities. Id. at 36-37. Her vestibular evaluation was positive with a Nylen-
Barany maneuver. Id. at 37. Assessment was elevated liver enzymes and vertigo. Id. The plan
was to treat her vertigo with Meclizine and obtain further lab studies to assess the elevated liver
enzymes. Id. at 38. At her next PCP visit on August 4, 2017, she still had elevated liver
enzymes, but had a negative hepatitis panel. Id. at 27. She was asymptomatic. Id. Her ROS
and exam noted no abnormalities. Id. at 28-31. The assessment was “[n]onspecific abnormal
results of liver function studies,” and she was referred to gastroenterology. Id. at 31.
Petitioner saw a gastroenterologist on September 7, 2017, and reported that her symptoms
related to the flu vaccination resolved by March 2017. Pet. Ex. 10 at 4.
On November 1, 2017, petitioner was seen by her PCP, complaining of an elevated heart
rate, chest pressure, and trouble breathing that started the prior night and lasted a few minutes.
Pet. Ex. 3 at 19. At the time of the visit, she had no chest pain or shortness of breath, and her
heart rate was normal. Id. She noted she had no fever or abdominal pain, but did have nausea
and diarrhea that started the prior night. Id. After a workup, her PCP determined her symptoms
were resolved and may have been related to anxiety. Id. at 24, 26.
Petitioner returned to her PCP on January 5, 2018, for “pulsating pains in her arms and
legs,” and new symptoms of “hot and cold sensation” and “neuropathy type pain when she steps
out of the bed.” Pet. Ex. 3 at 10. No abnormalities were noted on exam. Id. at 12-14. The
assessment was polyneuropathy. Id. at 14. At this visit, petitioner and her PCP discussed the
“residual effects from [GBS], MS, and other neurological disorders,” and planned to consider an
MRI of the brain if symptoms persisted. Id.
On August 20, 2018, she was seen by her PCP for a sore throat, cough, and fever, and
was diagnosed with pharyngitis. Pet. Ex. 11 at 5, 8.
II. PARTIES’ CONTENTIONS
A. Petitioner’s Contentions
Petitioner contends a reasonable basis existed for the claim for which the petition was
brought. Pet. Reply at 1-2. Petitioner’s counsel maintains she performed due diligence by
making fundamental inquiries prior to filing the claim, and summarized petitioner’s medical
records as support that a thorough investigation of the claim was completed prior to filing. Id. at
5-8. Petitioner argues that based upon the information contained in the medical records filed
with the petition, coupled with petitioner’s representations to counsel, it was determined that
petitioner’s claim was “feasible.” Id. at 8.
After consulting with experts regarding petitioner’s claim pursuant to the previous special
master’s direction, petitioner decided to file a motion for a decision dismissing her petition. Pet.
Reply at 8-9. Petitioner maintains that “until [p]etitioner could not retain an expert to address
[the special master’s] directives regarding causation, there was a reasonable basis for the claim
for which the [p]etition was brought.” Id. at 9. Petitioner argues the medical records filed with
the petition “revealed a factual basis to support a feasible claim.” Id. When petitioner was
unable to retain an expert, necessary steps were taken to withdraw the petition. Id.
5
B. Respondent’s Contentions
Respondent argues that “the petition never had a reasonable basis when filed, and never
obtained a reasonable basis during the course of litigation.” Resp. Response at 5 n.4.
Respondent notes that medical records filed with the petition did not support petitioner’s
allegation that she suffered residual effects of her vaccine-related injury for more than six
months. Id. at 5. Respondent argues that “to have a reasonable basis, a claim must, at a
minimum, be supported by medical records or a medical opinion,” neither of which were filed
here. Id. (citing Everett v. Sec’y of Health & Human Servs., No. 91-1115V, 1992 WL 35863, at
*2 (Fed. Cl. Spec. Mstr. Feb. 7, 1992)).
Relying on Simmons, respondent argues the petition lacked and never possessed a
reasonable basis because petitioner provided no evidence satisfying the Vaccine Act’s objective
reasonable basis standard. Resp. Response at 5 (citing Simmons v. Sec’y of Health & Human
Servs., 875 F.3d 632, 636 (Fed. Cir. 2017)). Respondent concludes that “absent any objective
evidence that petitioner suffered the sequela of her injury for more than six months after
vaccination or was hospitalized and underwent surgical intervention,” petitioner failed to
establish a reasonable basis for her claim and is ineligible for attorneys’ fees and costs. Id.
(citing Collier v. Sec’y of Health & Human Servs., No. 17-16V, 2018 WL 4401704, at *8 (Fed.
Cl. Spec. Mstr. Aug. 22, 2018)).
III. DISCUSSION
A. Reasonable Basis
Under the Vaccine Act, a special master shall award reasonable attorneys’ fees and costs
for any petition that results in an award of compensation. § 15(e)(1). When compensation is not
awarded, the special master “may” award reasonable attorneys’ fees and costs “if the special
master or court determines that the petition was brought in good faith and there was a reasonable
basis for the claim for which the petition was brought.” Id. Here, respondent does not challenge
petitioner’s good faith; instead, respondent asserts that petitioner’s claim had no reasonable
basis.
“Special masters have broad discretion in awarding attorneys’ fees where no
compensation is awarded on the petition.” Silva v. Sec’y of Health & Human Servs., 108 Fed.
Cl. 401, 405 (2012). In the interest of preserving this discretion, courts have declined to impose
“a reasonable basis test that turns solely on evidentiary standards.” Chuisano v. Sec’y of Health
& Human Servs., 116 Fed. Cl. 276, 287 (2014). Instead, it has been described simply as “an
objective inquiry unrelated to counsel’s conduct.” Simmons, 875 F.3d at 636. While incomplete
medical records do not prohibit a finding of reasonable basis, Chuisano, 116 Fed. Cl. at 288, the
Vaccine Act contemplates “a simple review of available medical records to satisfy the attorneys
that the claim is feasible” prior to filing. Silva, 108 Fed. Cl. at 405. However, “[a] claim can
lose its reasonable basis as the case progresses.” R.K. v. Sec’y of Health & Human Servs., 760
F. App’x 1010, 1012 (Fed. Cir. 2019) (citing Perreira v. Sec’y of Health & Human Servs., 33
F.3d 1375, 1376-77 (Fed. Cir. 1994)).
Here, the undersigned finds petitioner’s claim had reasonable basis. Medical records
show petitioner was diagnosed with suspected vaccine reaction and pure sensory GBS by her
6
treating physicians. On October 14, 2016, petitioner received a flu vaccine. On October 20,
2016, petitioner presented to her PCP, who assessed that petitioner’s condition “may be related
to adverse reaction to flu vaccine versus viral illness.” Pet. Ex. 3 at 63. On November 10, 2016,
petitioner saw a cardiologist who assessed petitioner with viral disease, adverse reaction, and
“[c]omplication of immunization . . . [m]ost likely mild systemic inflammatory reaction due to
[flu vaccine], with mild pericarditis and pneumonitis.” Pet. Ex. 6 at 10.
On November 29, 2016, six weeks post-vaccination, petitioner presented to Dr. Gresh,
complaining of pulsing or tingling in her extremities. The undersigned finds petitioner
demonstrated symptoms consistent with GBS on this date.4 On December 8, 2016, Dr. Nasser
suspected sensory GBS and assessed “complication of immunization.” Pet. Ex. 6 at 6-7. On
February 16, 2017, Dr. Nasser again “suspect[ed] this was a case of Pure Sensory [GBS] due to a
reaction to [f]lu [v]accine.” Id. at 3. The assessment was complication of immunization.
Overall, the undersigned finds there is objective medical record evidence and medical opinions
to support a finding of reasonable basis to file the petition.
On January 5, 2018, petitioner returned to her PCP for “pulsating pains in her arms and
legs,” and new symptoms of “hot and cold sensation” and “neuropathy type pain when she steps
out of the bed.” Pet. Ex. 3 at 10. At this visit, they discussed the residual effects of GBS. Based
on this medical record evidence, the undersigned determines that one can reasonably infer that
petitioner was experiencing residual sequela at this visit.
Prior cases in the Program have found ongoing monitoring or need for medication to
constitute a residual effect. For example, in Faup, the special master concluded that “ongoing
need for medication to prevent symptoms and/or relapse of the alleged vaccine-caused illness
constitutes a residual effect or complication of that illness.” Faup v. Sec’y of Health & Human
Servs., No. 12-87V, 2015 WL 443802, at *4 (Fed. Cl. Spec. Mstr. Jan. 13, 2015). Similarly, the
special master in H.S. found continuing physical restrictions to constitute residual effects. H.S.
v. Sec’y of Health & Human Servs., No. 14-1057V, 2015 WL 1588366, at *2-3 (Fed. Cl. Spec.
Mstr. Mar. 13, 2015). Petitioner in Boman maintained that ongoing gastrointestinal problems,
which did not require medical visits, were residual sequela of petitioner’s vaccine-related injury.
Boman v. Sec’y of Health & Human Servs., No. 15-256V, 2017 WL 7362539, at *3 (Fed. Cl.
Spec. Mstr. Sept. 20, 2017). In Boman, the undersigned found petitioner’s claim had reasonable
basis even though Boman, like petitioner here, could not support her claim with an expert
opinion and subsequently moved to dismiss her petition.
4
Petitioners have been compensated for GBS up to eight weeks following flu vaccine. See, e.g.,
De La Cruz v. Sec’y of Health & Human Servs., No. 17-783V, 2018 WL 945834, at *1 (Fed. Cl.
Spec. Mstr. Jan. 23, 2013) (finding onset of GBS more than two months after flu vaccination not
compensable); Barone v. Sec’y of Health & Human Servs., No. 11-707V, 2014 WL 6834557, at
*13 (Fed. Cl. Spec. Mstr. Nov. 12, 2014) (noting eight weeks is the longest reasonable timeframe
for a flu/GBS injury); Aguayo v. Sec’y of Health & Human Servs., No. 12-563V, 2013 WL
441013, at *3 (Fed. Cl. Spec. Mstr. Jan. 15, 2013); Corder v. Sec’y of Health & Human Servs.,
No. 08-228V, 2011 WL 2469736, at *27-29 (Fed. Cl. Spec. Mstr. May 31, 2011).
7
In Wright, B.W.’s doctors continued to monitor B.W.’s vaccine-related injury with blood
tests in response to physical symptoms B.W. continued to exhibit more than six months post-
vaccination. Wright v. Sec’y of Health & Human Servs., 146 Fed. Cl. 608, 614 (2019). Judge
Bruggink found that because B.W.’s doctors monitored B.W.’s condition more than six months
after vaccination, such testing and monitoring was causally connected to B.W.’s vaccine injury
and a residual effect of his vaccine-related injury. Id. Here, petitioner’s PCP continued to
monitor—albeit, not as meticulously as B.W.’s treating physicians—the residual effects of GBS
with petitioner as evidenced by petitioner’s January 5, 2018 visit. The undersigned finds this
medical record evidence supports a finding of reasonable basis.
The special master in Sims found medical record evidence from January 2017, which
noted petitioner was exhibiting residual sequela following her October 2015 vaccination,
supported a finding of reasonable basis. Sims v. Sec’y of Health & Human Servs., No. 17-
1913V, 2019 WL 7560420, at *6 (Fed. Cl. Spec. Mstr. Oct. 25, 2019). Here, petitioner’s January
5, 2018 medical records similarly show petitioner was experiencing residual sequela related to
her October 2016 vaccination. Like the special master in Sims, the undersigned finds “[t]hese
records are evidence of [sequela] well in excess of six months from the date of her vaccination.”
Id.
Respondent relies on Collier in arguing the petition lacked and never possessed a
reasonable basis. In Collier, the special master found no reasonable basis existed because there
was no supporting objective evidence in the medical records or medical opinions and no
evidence that the six-month severity requirement was met. Collier, 2018 WL 4401704, at *7-9.
However, as explained above, the undersigned finds objective medical record evidence and
medical opinions support a finding of reasonable basis at all times throughout litigation in this
matter.
Here, petitioner had reasonable basis to file her petition, but did not have a reasonable
basis to sustain her suit due to a lack of expert testimony. Once it became apparent that her
claim could not be supported by an expert, petitioner promptly moved to dismiss her case. The
undersigned finds it was appropriate to both file and timely dismiss this petition. Because the
undersigned finds that petitioner’s claim had reasonable basis, she will award reasonable
attorneys’ fees and costs.
B. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
8
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engaged in a
line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y
of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
Here, petitioner requests the following hourly rates for the work of her attorneys: for Mr.
Max Muller, $275.00 per hour for work performed in 2016, $300.00 per hour for work
performed in 2017, $317.00 per hour for work performed in 2018, and $325.00 per hour for work
performed in 2019; and for Ms. Bridget McCullough, $225.00 per hour for work performed in
2018-2019, and $250.00 per hour for work performed in 2020. Petitioner requests paralegal
rates of $125.00 to $140.00 per hour depending on the individual and the year the work was
performed. Petitioner also requests a registered nurse rate of $165.00 per hour in 2018.
The undersigned finds these rates to be consistent with what Muller Brazil LLP attorneys
and staff5 have previously been awarded for their Vaccine Program work. See, e.g., Allen v.
Sec’y of Health & Human Servs., No. 18-60V, 2020 WL 1896677, at *2 (Fed. Cl. Spec. Mstr.
Mar. 18, 2020); Knapp v. Sec’y of Health & Human Servs., No. 18-1003V, 2020 WL 1902406,
at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2020). Ms. McCullough proposed that her 2020 hourly rate
be increased to $250.00, which represents a $25.00 per hour increase from her prior 2018 and
2019 rates. See Pet. Mot. Ex. A. The undersigned finds the proposed rate reasonable, as it
remains consistent with the rates reflected in the Office of Special Masters’ Attorneys’ Forum
Hourly Rate Fee Schedule6 for an attorney of counsel’s experience and it is consistent with
recent SPU decisions awarding attorneys’ fees.7 Moreover, the undersigned finds the amount of
the increase to be reasonable in consideration of counsel’s increased experience and quality of
work as well as increases in the cost of legal services generally. Thus, the undersigned awards
5
The undersigned finds a rate of $165.00 for the work of a registered nurse to be reasonable
based on the significant added value a registered nurse brings to medically complex cases in the
Vaccine Program. See, e.g., Cagle v. Sec’y of Health & Human Servs., No. 16-693V, 2019 WL
1894410, at *2 (Fed. Cl. Spec. Mstr. Mar. 28, 2019) (compensating a paralegal with experience
as a registered nurse at $165.00 per hour); Elliott v. Sec’y of Health & Human Servs., No. 14-
661V, 2016 WL 6694970, at *2 n.5 (Fed. Cl. Spec. Mstr. Oct. 18, 2016) (same).
6
The 2020 Fee Schedule can be accessed at http://www.cofc.uscourts.gov/sites/default/files/
Attorneys–Forum–Rate–Fee–Schedule–2020.pdf.
7
See, e.g., Love v. Sec’y of Health & Human Servs., No. 18-1840V, 2020 WL 2461908 (Fed.
Cl. Spec. Mstr. Apr. 10, 2020); Edwards v. Sec’y of Health & Human Servs., No. 18-0646V,
2020 WL 1910699 (Fed. Cl. Spec. Mstr. Mar. 20, 2020).
9
Ms. McCullough a rate of $250.00 per hour for work performed in 2020. Accordingly, the
undersigned finds the requested rates are reasonable and will therefore award the rates requested.
Furthermore, the undersigned determines that the hours billed are reasonable.8 The
billing entries accurately reflect that nature of the work performed. Therefore, the undersigned
will award the fees requested.
C. Reasonable Costs
1. Other Costs
Petitioner also requests $721.99 for miscellaneous costs, including the filing fee and
medical records. See Pet. Mot., Ex. B. Because these costs are reasonable and well-
documented, the undersigned will reimburse them in full.
IV. CONCLUSION
For the reasons discussed above, the undersigned finds that petitioner is entitled to the
following award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested: $ 10,481.70
Attorneys’ Fees Awarded $ 10,481.70
Attorneys’ Costs Requested: $ 721.99
Attorneys’ Costs Awarded $ 721.99
Total Attorneys’ Fees and Costs Awarded $ 11,203.69
The undersigned hereby awards the amount of $11,203.69, in the form of a check
made payable jointly to petitioner and petitioner’s counsel, Bridget McCullough.
The Clerk of Court shall enter judgment in accordance herewith.9
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
8
The undersigned notes that some work was duplicative and non-reimbursable. However, the
duplicative and non-reimbursable work was not substantial, and thus, the undersigned will
reimburse petitioner’s counsel in full. Counsel is cautioned against continuing to bill duplicative
and non-reimbursable work in the future.
9
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
10