VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01198
Package ID: USCOURTS-cofc-1_18-vv-01198
Petitioner: B.W.
Filed: 2018-08-13
Decided: 2023-03-30
Vaccine: HPV
Vaccination date: 2015-08-21
Condition: neurological injury
Outcome: unclear
Award amount USD: 84613

AI-assisted case summary:
Debra Wharton, as guardian of the estate of B.W., filed a petition on August 13, 2018, alleging that B.W. suffered a neurological injury as a result of receiving the human papillomavirus (HPV) vaccine on August 21, 2015. The petitioner filed supporting medical records and expert reports, while the respondent filed expert reports and a Rule 4(c) report recommending against compensation. The case has been pending since 2018, with an entitlement hearing scheduled for October 2023. On February 15, 2023, the petitioner filed a motion for interim attorneys' fees and costs, requesting $84,613.98. The respondent deferred to the Special Master's discretion. The Special Master found that the petition was filed in good faith and with a reasonable basis, and that an interim award was appropriate due to the protracted nature of the proceedings and the costs incurred. The Special Master granted the motion, awarding $84,613.98 in interim attorneys' fees and costs.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01198-0
Date issued/filed: 2023-04-21
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 03/27/2023) regarding 79 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
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Case 1:18-vv-01198-UNJ Document 82 Filed 04/21/23 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 30, 2023
* * * * * * * * * * * * *
DEBRA WHARTON, * Unpublished
guardian of the estate of B.W., *
*
Petitioners, * No. 18-1198V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs;
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Christina Ciampolillo, Conway, Homer, P.C., Boston, MA, for petitioner.
Mark K. Hellie, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS
On February 15, 2023, Debra Wharton, the guardian of the estate of B.W., (“petitioner”), filed a
motion for interim attorneys’ fees and costs. Petitioner Interim Fees Application (“Int. Fee App.”) (ECF
No. 77). For the reasons discussed below, the undersigned GRANTS petitioner’s motion and finds that
an award of $84,613.98 is reasonable for interim attorneys’ fees and costs.
II. Procedural history
On August 13, 2018, petitioner filed her petition in the National Vaccine Injury Compensation
Program.1 Petition (ECF No. 1). Petitioner alleges that as a result of B.W. receiving the human
papillomavirus (“HPV”) vaccine on August 21, 2015, suffered a neurological injury. Id. at Preamble.
Petitioner filed supporting medical records through March 28, 2019.
On February 24, 2020, petitioner filed an expert report from Dr. Mahbubul Huq. Petitioner
Exhibit (“Pet. Ex.”) 21 (ECF No. 34). Petitioner also filed supporting medical literature the same day.
See Pet. Exs. 23-114. Respondent filed an expert report from Dr. MacGinnitie on June 2, 2020.
Respondent (“Resp.”) Ex. A (ECF No. 48). Respondent also filed an expert report from Dr. Linnoilia on
August 10, 2020. Resp. Ex. S (ECF No. 51). The same day, respondent filed the Rule 4(c) report,
recommending against compensation.
The undersigned held a Rule 5 Status Conference on November 5, 2020 and ordered petitioner to
file a supplemental expert report if she wanted to continue to pursue this case. Scheduling Order (ECF
1 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-1 to -34 (2012) (“Vaccine Act” or “the
Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

Case 1:18-vv-01198-UNJ Document 82 Filed 04/21/23 Page 2 of 5
No. 60). Petitioner filed a supplemental expert report from Dr. Huq on March 19, 2021. Respondent
filed a responsive expert report from Dr. Linnoilia on November 19, 2021. Resp. Ex. U (ECF No. 73).
The undersigned held another status conference on July 13, 2022. Scheduling Order (ECF No. 75). The
parties indicated that they wanted to proceed to an entitlement hearing. Id. A hearing order was issued
setting an entitlement hearing for October 2-3, 2023.
On February 15, 2023, petitioner filed this instant motion for interim attorneys’ fees and costs.
Int. Fee App. Petitioner is requesting $53,109.90 in attorneys’ fees and $31,504.08 in attorneys’ costs,
for a total of $84,613.98. Id. at 2. Respondent filed a response on March 1, 2023, stating that the
respondent “defers to the Special Master to determine whether or not petitioner has met her legal
standard for an interim fees and costs award,” and that respondent “requests that the Court exercise its
discretion regarding petitioner’s request for an award of interim attorneys’ fees and costs.” Resp.
Response at 3-4.
Petitioner has not filed a reply. This matter is now ripe for adjudication.
II. Entitlement to attorneys’ fees and costs
A. Legal standard
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).
Petitioners act in “good faith” if they filed their claims with an honest belief that a vaccine
injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *5
(Fed. Cl. Spec. Mstr. Nov. 30, 2007). In this case, respondent does not contest that this petition was
filed in good faith. Further, petitioner has a belief that the HPV vaccine has been the cause of B.W.’s
neurological condition, thus she has satisfied the good faith requirement.
To receive an award of fees and costs, a petitioner must also demonstrate the claim was brought
with a reasonable basis through objective evidence supporting “the claim for which the petition was
brought.” Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017); see also
Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 286 (2014) (citing McKellar v. Sec’y of
Health & Human Servs., 101 Fed Cl. 297, 303 (2011)). Petitioner filed accompanying medical records
to support her petition, in addition, to filing reports from an expert to support her claim for vaccine
causation. As such, I find that there is reasonable basis to award petitioner reasonable interim attorneys’
fees and costs.
B. Interim awards
The Vaccine Act permits interim attorneys’ fees and costs. Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372
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Case 1:18-vv-01198-UNJ Document 82 Filed 04/21/23 Page 3 of 5
(Fed. Cir. 2010). 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.
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 $15,000.00. 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 ultimately many factors
bearing on the merit of an interim fee application. I evaluate each one on its own merits.
This case has been pending since 2018 and the amount of attorneys’ fees and attorneys’ costs
requested by petitioner exceeds the amounts discussed above. Further, additional fees and costs are
likely to be incurred in this claim, as an entitlement hearing is set for October 2023, which may require
the drafting of pre-and-post hearing briefs, as well as costs incurred due to petitioner’s expert testifying
at the hearing. As such, I find that an award of interim attorneys’ fees and costs is appropriate at this
time.
III. 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 hour 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).
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Case 1:18-vv-01198-UNJ Document 82 Filed 04/21/23 Page 4 of 5
B. Hourly rate
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 &
Human Servs., No. 09-293V, 2015 WL 5634323 (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 2018-2023 can be accessed
online.
In this case, petitioner requests various rates of compensation for the attorneys who have worked
on her case at the Conway Homer firm, including Ms. Christina Ciampolilo, Mr. Ronald Homer, and Ms.
Meredith Daniels, along with multiple paralegals at the firm. The hourly rate requested by petitioner for
the personnel working on her case are consistent with the hourly rates that have been previously awarded
to Conway, Homer P.C. attorneys and staff for their work by myself and other special masters.
Accordingly, no adjustment to the requested rates is necessary.
C. Hours expended
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.
Petitioner has also submitted a detailed invoice from Conway, Homer, P.C. The billing record
provides the date, detailed description(s) of the task(s) performed, the requested rate, and time expended.
Based on my experience and my familiarity with the work performed in this case, the hours expended on
this case appear to be reasonable. Thus, petitioner’s request for interim attorneys’ fees will be awarded
in full.
C. Attorneys’ costs
Like attorneys’ fees, costs incurred-by counsel or petitioners themselves-must be reasonable to
be reimbursed by the Program. Perreira, 27 Fed. Cl. Ct. 29, 34. Petitioner is requesting a total of
$31,504.08 in attorneys’ costs. Int. Fees App. at 2. These costs include obtaining medical records,
postage, obtaining medical literature, copies, the filing fee, and retaining an expert. Id. at 32. The bulk
of petitioner’s costs request is to reimburse Dr. Huq for the work that he has performed. Specifically,
petitioner is requesting that Dr. Huq be compensated $29,750.00 for his review of the case and his two
expert reports. Dr. Huq has provided a detailed invoice, which indicates that he has spent 59.5 hours on
this case and charges $500.00 per hour for his work. Id. at 60. I find Dr. Huq’s rate reasonable, as it is
comparable to other medical experts that have provided expert opinions in the Vaccine Program and
have similar qualifications as him. See Agarwal v. Sec’y of Health & Human Servs., No. 16-191V, 2019
WL 2281744 (Fed. Cl. Spec. Mstr. Apr. 23, 2019). Further, the hours he has expended on this matter are
reasonable, given the volume of medical records involved in reviewing B.W,’s condition, the number of
reports he has written, and the expert reports he has had to review from respondent. Thus, petitioner’s
interim attorneys’ costs shall be awarded in full.
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Case 1:18-vv-01198-UNJ Document 82 Filed 04/21/23 Page 5 of 5
IV. Conclusion
In accordance with the foregoing, petitioner’s motion for interim attorneys’ fee and costs is
GRANTED. Therefore, I award the following in interim attorneys’ fees and costs:
A) A lump sum payment of $84,613.98, representing reimbursement for interim attorneys’ fees
and costs, in the form of a check payable to petitioner and petitioner’s attorney, Ronald C.
Homer of Conway, Homer, P.C.
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.2
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
2 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).
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