REISSUED FOR PUBLICATION
AUG 18 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe mntteb ~tate% Court of jfeberal <!Claim%
OFFICE OF SPECIAL MASTERS
No. 17-184V
Filed: July 24, 2017
Not for Publication
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GWEYNE PHILLIPS, *
*
Petitioner, * Interim attorneys ' fees and costs
* decision; respondent objects to fee
v. * award; lack of information to determine
* reasonabl e basis
SECRETARY OF HEALTH *
A D HUMAN SERVICES, *
*
Respondent. *
*
************************ ** *** ********
Diana L. Stadelnikas, Sarasota, FL, for petitioner.
Ann D. Martin, Washington, DC, fo r respondent.
MILLMAN, Special Master
DECISION DENYING MOTION FOR INTERIM ATTORNEYS' FEES AND COSTS 1
On February 7, 201 7, petitioner fil ed a petition under the National Childhood Vaccine
Injury Act, 42 U.S. C. §§ 300aa-10- 34 (20 12) alleging that her receipt of tetanus vaccine on
November 12, 2014 caused her to develop a shoulder injury related to vaccine admini stration.
On May 31 , 2017, petitioner fil ed a motion for interim attorneys' fees and costs
requesting $7,778.00 in attorneys' fees and $779. 66 in attorneys' costs, for a total request of
$8,557.66. In accordance with General Order #9, petitioner fil ed a signed statement saying she
has not incurred personal costs in pursuit of her claim.
1
Because this unpubli shed decision contains a reasoned explanation fo r the special master' s action in this
case, the special master intends to post this unpublished decision on the U nited States Court of Federal
C la ims ' websi te, in accordance with the E-Government Act o f 2002, 44 U.S.C. § 35 01 note (201 2)
(Federal Management and Pro motion of Electron ic Gove rnment Services). Vaccine Rule l 8(b) states that
all decisions o f the special maste rs will be made available to the public unless they contain trade secrets
or commerc ial or financ ial information that is privileged and confide ntial, or medical or s imilar
in formation whose di sclosure wo uld constitute a clearly unwarranted invasion of privacy. When such a
dec is ion is filed, petitioner has 14 days to ide nti fy and move to redact suc h informatio n prior to the
document's disclosure. If the specia l master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such mate rial from public access.
On June 19, 2017 , respondent filed a response to petitioner's motion fo r interim
attorneys' fees. Respondent objects to an award of interim attorneys ' fees and costs, arguing " it
is far too early in these proceedings to make the requisite findings of 'good faith' and 'reasonable
basis."' Resp. at 4. In petitioner's reply filed on June 29, 2017, petitioner's counsel states that it
is not too early to determine whether the instant case is supported by good fa ith and reasonable
basis, because " reasonable basis and good faith can often be determined at an early stage of the
proceedings." Pet'r's reply at 2.
On the same date that petitioner filed her motion for interim attorneys' fees and costs,
petitioner's counsel filed a motion to withdraw as petitioner's attorney. Petitioner' s counsel
explains that she would like to withdraw from the case due to irreconcilable differences between
herself and petitioner. Mot. at ,-i 1. Thi s case was reassigned the undersigned on July 21 , 20 17.
The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act
in Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1352 (Fed. Cir. 2008). The
Federal Circuit again found interim fee awards appropriate under the Vaccine Act in Shaw v.
Secretary of Health and Human Services, 609 F.3d 13 72 (Fed. Cir. 2010), noting that "where the
claimant establishes that the cost of litigation has imposed an undue hardship and there exi sts a
good fa ith basis for the claim, it is proper for the special master to award interim attorneys'
fees." Id. at 1375. Subsequently, a number of judges and many special masters have found
interim fee awards permi ssible under a variety of circumstances in which proceedings are
protracted, petitioner needed to retain costly experts, or where petitioners demonstrate undue
hardship. See McKellar v. Sec'y of HHS, 101 Fed. Cl. 297, 301 (Fed. Cl. 2011).
At this time, it is not appropriate for the undersigned to award interim attorneys' fees and
costs. Petitioner filed her petition on February 7, 20 17, less than six months ago. Since that
time, there has been one status conference held in this case. The undersigned cannot see how
petitioner can demonstrate an "undue hardship" necessitating an immediate payment of
attorneys' fees and costs, particularly because petitioner has not incurred any personal costs.
Therefore, without deciding the issue of whether petitioner's case is supported by good faith and
reasonable basis, the undersigned find s that it is inappropriate to award interim attorneys' fees
and costs at this time. The undersigned DENIES petitioner's motion for interim attorneys' fees
and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment. 2
IT IS SO ORDERED.
Dated: July 24, 2017 Isl Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule l l(a), entry of judgment can be exped ited by each party, either separately or
j o intly, filing a notice renouncing the right to seek review.
2