In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 2, 2021
* * * * * * * * * * * * * * * * * * *
CARRIE HODKINSON and CHAD *
HODKINSON, parents and natural * UNPUBLISHED
guardians of E.H., a minor, *
* No. 14-660V
Petitioners, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Interim Award.
*
Respondent. *
* * * * * * * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for petitioners.
Debra A. Begley, United States Department of Justice, Washington, DC for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On September 5, 2021, Carrie Hodkinson and Chad Hodkinson, parents and natural
guardians of E.H., a minor (“petitioners”) filed a second motion for interim attorneys’ fees and
costs. Petitioners’ Interim Application (“Pet. Int. App.”) (ECF No. 209). For the reasons
discussed below, the undersigned GRANTS petitioners’ motion and awards a total of
$320,557.76 in interim reasonable attorneys’ fees and costs.
I. Procedural History
On November 27, 2018, I issued a Decision on Interim Attorneys’ Fees and Costs,
granting petitioner’s initial interim attorneys’ fees and costs motion. Decision on Interim Fees
(ECF No. 96). The decision includes a procedural history of the case from when the petition was
filed on July 28, 2014 through November 27, 2018. As such, I will not repeat the initial
procedural history of the case in this interim fees decision.
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Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
Since petitioner’s initial interim fees motion was granted, the parties engaged in
unfruitful settlement discussions, which ultimately led to an entitlement hearing being held on
August 3-5, 2021. Scheduling Order (ECF No. 147).
Additionally, both parties filed supplemental expert reports. Petitioner filed an expert
report from Joel Gagnier, ND, Msc, PhD. Petitioner’s Exhibit (“Pet. Ex.”) 78 (ECF No. 134).
Respondent filed a supplemental expert report from Dana D. Cummings, M.D., PhD.
Respondent’s (“Resp.”) Ex. G. Respondent also filed an expert report from Lawrence Moulton,
PhD. Resp. Ex. K (ECF No. 173).
On March 28, 2021, petitioner filed another expert report from M. Eric Gershwin, M.D.
Pet. Ex. 103 (ECF No. 174). Petitioner also filed an additional expert report from Mark S.
McNulty, PhD. Pet. Ex. 106 (ECF No. 175). On March 30, 3021, petitioner filed an expert
report from Mark Levin, M.D. Pet. Ex. 107 (ECF No. 177). Then petitioner filed a supplemental
report from Dr. Joel Gaginer. Pet. Ex. 108 (ECF No. 179).
On June 9, 2021, respondent filed an expert report from Andrew MacGinnitie, M.D.,
PhD. Resp. Ex. L (ECF No. 184).
After the parties provided prehearing submissions, an entitlement hearing was held on
August 3-5, 2021. Throughout this time, petitioner had been filing updated medical records.
After the entitlement hearing, I held a status conference with the parties, where the parties
discussed whether a Table claim could be made.
On September 5, 2021, petitioners filed a second motion for interim attorneys’ fees and
costs. Pet. Int. App. They request $215,989.00 in attorneys’ fees and $104,568.76 in costs.
Petitioners aver that their attorney has spent substantial resources in time and money in
continuing to pursue their claim and it would be an economic hardship for him to keep
performing work without interim compensation. Pet. Int. App. at 5.
On September 20, 2021, respondent file a response to petitioner’s motion for interim fees.
Resp. Response (ECF No. 212). Respondent stated, “…respondent defers to the special master
as to whether petitioner has met the legal standard for an interim fees and costs award, set forth
in Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). If the special master
determines that an interim award is appropriate, respondent is satisfied the other statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Resp. Response at
2. As such, “Respondent therefore respectfully requests that the Court exercise its discretion and
determine a reasonable award for attorneys’ fees and costs.” Id. at 4. Petitioner filed a reply the
same day. Pet. Reply (ECF No. 213).
This matter is now ripe for adjudication.
I. Entitlement to Attorneys’ Fees and Costs
A. General Legal Standard
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The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012). In this case, respondent is satisfied that the statutory requirements
for an award of attorneys’ fees and costs are met. Resp. Response at 2. In light of respondent’s
position and my full review of the evidence, I find that this claim was filed with and has
maintained good faith and reasonable basis.
B. Interim Awards
Section 15(e) of the Vaccine Act permits an award of reasonable attorneys’ fees and
costs. In addition, the Vaccine Act permits interim attorneys’ fees and costs. See Avera, 515
F.3d at 1352; Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). When a
petitioner has yet to prove entitlement, the special master may grant an interim award of
reasonable attorneys’ fees and costs if the special master “determines that the petition was
brought in good faith and there was a reasonable basis for the claim.” § 15(e)(1)(B); Sebelius v.
Cloer, 133 S. Ct. 1886, 1893 (2013). I find that this claim was brought in good faith and with a
reasonable basis.
In Shaw, the Federal Circuit held that it was proper to grant an interim award when “the
claimant establishes that the cost of litigation has imposed an undue hardship.” 609 F.3d at
1375 (emphasis added). In Avera, the Federal Circuit stated that “[i]nterim fees are particularly
appropriate in cases where proceedings are protracted and costly experts must be retained.” 515
F.3d at 1352. I do not routinely grant interim fee applications. I generally defer ruling on an
interim fee application if: the case has been pending for less than 1.5 years (measured from the
date of filing); the amount of fees requested is less than $30,000; and/ or the aggregate amount
of expert costs is less than $15,000. If any one of these conditions exists, I generally defer
ruling until these thresholds are met or until an entitlement hearing has occurred. These are,
however, only informal requirements, and there are many factors bearing on the merit of an
interim fee application. I evaluate each one on its own merits.
Here, petitioners’ counsel has been working on this claim for over eight years. The claim
has been pending in the Vaccine Program for over seven years. Petitioners’ counsel has incurred
well over $30,000 in attorneys’ fees and has incurred substantially more than $15,000 in costs
since the previous interim fees and costs award, due to the entitlement hearing and the addition
of other experts. Additionally, petitioners’ counsel is likely to incur additional fees in the future
associated with post-hearing briefing and there is a significant likelihood that this claim will not
be resolved for some time. Accordingly, based on the substantial expenses incurred to date and
the protracted nature of this claim, I find it is appropriate to award petitioners’ counsel interim
attorneys’ fees and costs at this time.
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II. Reasonable Attorneys’ Fees and Costs
A. Legal Standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar approach, a
court first determines “an initial estimate of a reasonable attorneys’ fee by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at
1347-58 (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. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
B. Attorneys’ Hourly Rates
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys’ fees based upon an individual’s experience. McCulloch v.
Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634223 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate Fee Schedules
for 2018-2021 are provide online.
Here, petitioners’ requests that Mr. Krakow be reimbursed at hourly rates of $450.00 per
hour for 2018; $464.00 per hour for 2019; $484.00 per hour for 2020; and $509.00 per hour for
2021. Additionally, petitioners’ request that associate attorney, Mr. Elan Gerstmann be awarded
an hourly rate of $445.00 per hour for 2020 and $475.00 per hour for 2021. Additionally,
petitioners request the reimbursement for work performed by a paralegal at hourly rates of
$150.00 for 2018; $156.00 for 2019; $163.00 for 2020; and $172.00 for 2021. These rates are
reasonable and have been awarded in the past to Mr. Krakow, Mr. Gerstmann and the paralegal.
4
See e.g. Posniak v. Sec’y of Health & Hum. Servs., No. 16-1351V, 2021 WL 3052646, at *2
(Fed. Cl. Spec. Mstr. June 28, 2021); Klempner v. Sec’y of Health & Human Servs., No. 16-
1197V, 2018 WL 3991443, at *2 (Fed. Cl. Spec. Mstr. July 12, 2018); Hamilton v. Sec’y of
Health & Human Servs., No. 14-785, 2018 WL 2772197, at *7 (Fed. Cl. Spec. Mstr. April 12,
2018); P.R. v. Sec’y of Health & Human Servs., No. 10-96V, 2018 WL 2225172, at *2-3 (Fed.
Cl. Spec. Mstr. April 5, 2018); Santoroski v. Sec’y of Health & Hum. Servs., No. 15-1294V,
2020 WL 3577842 (Fed. Cl. Spec. Mstr. June 8, 2020). Thus, the requested rates will be
awarded.
C. Hours Expended
As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness of hours expended. Id. Just as “[t]rial courts routinely use their
prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests
…. [v]accine program special masters are also entitled to use their prior experience in reviewing
fee applications.” Saxton, 3 F.3d at 1521.
Petitioners request compensation for 426.6 hours of attorney time and 38.25 hours of
paralegal time expended from 2014 to October 18, 2018. Pet. Int. App. at 5; Id. Tab 2. The
billing record provides the date, detailed description(s) of the task(s) performed, the requested
rate, and time expended. Paralegal tasks such as preparing documents for filing are appropriately
billed at a paralegal rate. There do not appear to be entries for non-compensable administrative
tasks. This case involves complex issues of medical causation and statistics involving severe
neurological injury to an infant. The entries are generally reasonable and will be awarded.
D. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira,
27 Fed. Cl. 29, 34. Here, petitioners request interim costs in the amount of $104,568.76. This
includes reimbursement for the medical records, medical literature, postage, printing, and
photocopies, identifying experts and expert costs. Pet. Int. App. at 20.
The bulk of petitioners’ interim attorneys’ costs request has been incurred by the
retention of multiple experts. Specifically, petitioners retained five experts. Specifically,
petitioners request reimbursement of $36,625.00 for Dr. Eric Gershwin, $10,680.00 for Dr.
McBride; $10,100.00 for Dr. Mark Levin, $7,075.00 for Dr. Mark McNulty and $36,150.00 for
Dr. Joe; Gagnier. Pet. Int. Mot. at 26. Each expert submitted an invoice detailing their work and
the dates on which it was performed. Pet. Int. App., Tabs 4-6. These experts not only drafted
multiple reports, but also testified during the entitlement hearing in August 2021. I previously
found the rates for Dr. McBride and Levin to be reasonable in the prior interim fees decision and
as such, will be awarded in full. Dr. Gershwin’s rate of $500.00 per hour has been previously
awarded by me and other special masters in the program. See Barenblit on behalf of A.S. v. Sec’y
of Health & Hum. Servs., No. 18-180V, 2020 WL 7774608, at *3 (Fed. Cl. Spec. Mstr. Dec. 2,
2020); Santoroski v. Sec’y of Health & Hum. Servs., No. 15-1294V, 2019 WL 3577842 (Fed. Cl.
Spec. MStr. June 8, 2020). Dr. McNutly, is an economist and statistician and provided two
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expert reports and testified at the entitlement hearing, charged $400.00 per hour. Given Dr.
McNulty’s credentials, with a Ph.D. in Economics and Statistics, and the work he provided, I
find these rates to be reasonable. Finally, Dr. Gagnier, an epidemiologist and biostatistician,
provided two expert reports is requesting to be reimbursed at $350.00 for the expert reports and
$500.00 per hour for hearing observation and testimony. Pet. Int. App. at 28. I find these rates
to be reasonable and shall be awarded in full.
Upon review, all of the requested costs are adequately documented and generally
reasonable. Accordingly, they will be awarded.
III. Conclusion
In accordance with the foregoing, petitioners’ application for interim attorneys’ fees and
costs is GRANTED. Accordingly, I award the following interim reasonable attorneys’ fees and
costs:
1) A lump sum in the amount of $320, 557.76 representing reimbursement for
interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioners and their counsel, Robert J. Krakow of the Law Office of Robert J.
Krakow, P.C.
In the absence of a motion for reconsideration or review filed pursuant to RCFC
Appendix B, the Clerk of the Court is directed to enter judgment forthwith.2
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ separate or joint filing of a notice
renouncing their right to seek review.
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