VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01267 Package ID: USCOURTS-cofc-1_20-vv-01267 Petitioner: K.R. Filed: 2020-09-24 Decided: 2024-05-29 Vaccine: diphtheria-tetanus-pertussis (DTaP) Vaccination date: 2017-09-27 Condition: vitiligo and related skin conditions Outcome: dismissed Award amount USD: AI-assisted case summary: On September 24, 2020, Kaitlyn Reece and Kristopher Reece filed a petition as parents and natural guardians of K.R., a minor. They alleged that a diphtheria-tetanus-pertussis vaccination administered on September 27, 2017 caused K.R. to suffer vitiligo and related skin conditions. The public decision identifies K.R. as a minor but does not state the child's exact age. The case did not reach an entitlement finding. On December 4, 2023, the petitioners reported that they were unable to file an expert report and needed time to evaluate the case. On May 24, 2024, they moved to dismiss, explaining that investigation of the facts and available science showed they would be unable to prove entitlement and that proceeding further would be unreasonable. Special Master Herbrina D. Sanders dismissed the petition on May 29, 2024. She found no evidence that K.R. suffered a Table injury corresponding to the vaccination, and no persuasive evidence that the DTaP vaccine caused the alleged vitiligo or related skin conditions. The public decision also noted that a Vaccine Program award cannot rest on the petitioners' claims alone; it must be supported by medical records or a competent physician's opinion. A later July 31, 2025 decision addressed attorneys' fees and costs only. Theory of causation field: Minor child K.R.; DTaP vaccine September 27, 2017; alleged vitiligo and related skin conditions. DISMISSED for insufficient proof. Parents Kaitlyn and Kristopher Reece reported inability to file an expert report; motion to dismiss stated facts/science would not prove entitlement. No Table injury and no persuasive causation evidence; medical records/opinion support insufficient. SM Sanders May 29, 2024. Petition filed September 24, 2020. Attorney: Robert J. Krakow. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01267-0 Date issued/filed: 2024-06-13 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 5/29/24) regarding 78 DECISION of Special Master. Signed by Special Master Herbrina Sanders. (sh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01267-UNJ Document 79 Filed 06/13/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: May 29, 2024 * * * * * * * * * * * * * * * KAITLYN J. REECE and KRISTOPHER * No. 20-1267V M. REECE parents and natural guardians * of K.R., a minor, * * Petitioner, * Special Master Sanders * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner. Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent. DISMISSAL1 On September 24, 2020, Kaitlyn Reece and Kristopher Reece, as parents and natural guardians of K.R., a minor, (“Petitioners”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa- 10 to 34 (2012). Petitioners alleged that K.R. suffered from vitiligo and related skin conditions due to a diphtheria-tetanus-pertussis (“Dtap”) vaccine administered on September 27, 2017. Pet. at 1, ECF No. 1; Amend. Pet. at 1, ECF No. 21. On December 4, 2023, Petitioners filed a status report indicating that they were unable to file an expert report and requested thirty days to evaluate the status of the case. Status Report at 1, ECF No. 71. On May 24, 2024, Petitioners filed a motion for a decision dismissing this petition. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:20-vv-01267-UNJ Document 79 Filed 06/13/24 Page 2 of 2 Pet’r’s Mot., ECF No. 77. In the motion, Petitioners stated that “[a]n investigation of the facts and available science supporting [P]etitioners’ cause has demonstrated to [P]etitioners that they will be unable to prove that they are entitled to compensation in the Vaccine Injury Compensation Program[.]” Id. ¶ 1. Petitioners continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the [R]espondent, and the [Program].” Id. ¶ 3. Petitioners noted their understanding that Respondent “reserves his opportunity to question the good faith and reasonable basis of their claim and to oppose, if appropriate, their application for fees and costs.” Id. ¶ 5. Otherwise, Respondent did not oppose Petitioner’s motion. Id. ¶ 5-6. To receive compensation under the Program, Petitioner must prove either (1) that K.R. suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that K.R. suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that K.R. suffered a “Table Injury.” Further, the record does not contain persuasive evidence that K.R.’s alleged injuries were caused by the Dtap vaccine. Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and at this time, Petitioner has not filed sufficient supporting evidence. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01267-cl-extra-10735039 Date issued/filed: 2024-06-13 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268449 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: May 29, 2024 * * * * * * * * * * * * * * * KAITLYN J. REECE and KRISTOPHER * No. 20-1267V M. REECE parents and natural guardians * of K.R., a minor, * * Petitioner, * Special Master Sanders * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner. Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent. DISMISSAL1 On September 24, 2020, Kaitlyn Reece and Kristopher Reece, as parents and natural guardians of K.R., a minor, (“Petitioners”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa- 10 to 34 (2012). Petitioners alleged that K.R. suffered from vitiligo and related skin conditions due to a diphtheria-tetanus-pertussis (“Dtap”) vaccine administered on September 27, 2017. Pet. at 1, ECF No. 1; Amend. Pet. at 1, ECF No. 21. On December 4, 2023, Petitioners filed a status report indicating that they were unable to file an expert report and requested thirty days to evaluate the status of the case. Status Report at 1, ECF No. 71. On May 24, 2024, Petitioners filed a motion for a decision dismissing this petition. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Pet’r’s Mot., ECF No. 77. In the motion, Petitioners stated that “[a]n investigation of the facts and available science supporting [P]etitioners’ cause has demonstrated to [P]etitioners that they will be unable to prove that they are entitled to compensation in the Vaccine Injury Compensation Program[.]” Id. ¶ 1. Petitioners continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the [R]espondent, and the [Program].” Id. ¶ 3. Petitioners noted their understanding that Respondent “reserves his opportunity to question the good faith and reasonable basis of their claim and to oppose, if appropriate, their application for fees and costs.” Id. ¶ 5. Otherwise, Respondent did not oppose Petitioner’s motion. Id. ¶ 5-6. To receive compensation under the Program, Petitioner must prove either (1) that K.R. suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that K.R. suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that K.R. suffered a “Table Injury.” Further, the record does not contain persuasive evidence that K.R.’s alleged injuries were caused by the Dtap vaccine. Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and at this time, Petitioner has not filed sufficient supporting evidence. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01267-cl-extra-11167860 Date issued/filed: 2025-10-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10701273 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: July 31, 2025 * * * * * * * * * * * * * * * * KAITLYN J. REECE and KRISTOPHER * No. 20-1267V M. REECE parents and natural guardians * of K.R., a minor * * Petitioner, * Special Master Young * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Robert Joel Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioners; Julia Marter Collison, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On September 24, 2020, Kaitlyn Reece and Kristopher Reece, as parents and natural guardians of K.R., a minor, (“Petitioners”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. § 300aa-10 to -34 (2018)2 (the “Vaccine Act” or “Program”). Petitioners alleged that K.R. suffered from vitiligo and related skin conditions due to a diphtheria-tetanus-pertussis (“Dtap”) vaccine administered on September 27, 2017. Pet. at 1, ECF No. 1; Amend. Pet. at 1, ECF No. 21. On May 29, 2024, I issued my decision denying entitlement and dismissing the petition. ECF No. 78. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. On January 5, 2025, Petitioners filed a final motion for attorneys’ fees and costs. (“Pet’r’s Mot. for AFC”) (ECF No. 82). Petitioners request total attorneys’ fees and costs in the amount of $75,503.27, representing $69,429.90 in attorneys’ fees, and $6,073.37 in attorneys’ costs. Pet’r’s Mot. for AFC at 2. Petitioners indicate that they did not personally incur any costs in pursuit of their petition. See id. at Tab 6. Respondent responded to the motion on January 17, 2025, stating that Respondent “defers to the court regarding whether the statutory requirements for an award of attorneys’ fees and costs are met in this case” and asking the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2, 5 (ECF No. 84). Petitioner filed a reply on January 21, 2025. Pet’r’s Reply (ECF No. 85). This matter is now ripe for consideration. I. Reasonable Attorneys’ Fees and Costs The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although the petition was eventually dismissed, I am satisfied that good faith and reasonable basis have been met in the instant case. Respondent also deferred to the court regarding whether the statutory requirements for an award of attorneys’ fees and costs have been met in this case. Accordingly, Petitioners are entitled to a final award of reasonable attorneys’ fees and costs. The Federal Circuit has approved 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, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . 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)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id. 2 A. Hourly Rate The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (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, and the Attorneys’ Forum Hourly Rate Fee Schedules can be accessed online.3 Petitioners request the following hourly rates for the work of their counsel, Mr. Robert Krakow, $464.00 per hour for work performed in 2019, $484.00 per hour for work performed in 2020, $509.00 per hour for work performed in 2021, $525.00 per hour for work performed in 2022, $553.00 per hour for work performed in 2023, and $584.00 per hour for work performed in 2024. Additionally, Petitioner requests rates between $150.00 to $197.00 per hour for paralegal work performed from 2019-2024. Id. These rates are consistent with what counsel has previously been awarded in the Vaccine Program and I find them to be reasonable herein. B. Reasonable Number of Hours Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Upon review, I find the overall hours billed to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review, I do not find any of the billing entries to be unreasonable. Accordingly, Petitioners are entitled to final attorneys’ fees in the amount of $69,429.90. C. Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioners request a total of $6,073.37 in attorneys’ costs. This amount is comprised of acquisition of medical records, printing/copy fees, postage, and the Court’s filing fee. See Pet’r’s Mot. for AFC, Tabs 3 and 4. The amount also includes expert services provided by pediatric immunologist Martin Blaiss, MD totaling $2,860, and a $2,500.00 referral fee to The Expert Institute. See id at Tab 5. These costs have been supported with the necessary documentation and are reasonable. Petitioners are therefore awarded the full amount of costs sought.4 3 The OSM Fee Schedules are available at https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly- rate-fee-schedules. The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. 4 In awarding the full amount of costs sought, I am not specifically endorsing any particular hourly rate for the work of Dr. Blaiss. Rather, I find that the total amount billed for Dr. Blaiss’s work is reasonable, and Respondent did not identify with particularity any objection. 3 II. Conclusion In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2018), I have reviewed the billing records and costs in this case and finds that Petitioners’ request for fees and costs is reasonable. Based on the above analysis, I find that it is reasonable to compensate Petitioners and their counsel as follows: Attorneys’ Fees Requested $69,429.90 (Reduction to Fees) - Total Attorneys’ Fees Awarded $69,429.90 Attorneys’ Costs Requested $6,073.37 (Reduction to Costs) - Total Attorneys’ Costs Awarded $6,073.37 Total Attorneys’ Fees and Costs $75,503.27 Accordingly, I award a lump sum in the amount of $75,503.27, representing reimbursement for Petitioners’ attorneys’ fees and costs, to be paid through an ACH deposit to Petitioners’ counsel’s IOLTA account for prompt disbursement. 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.5 IT IS SO ORDERED. s/Herbrina Sanders Young Herbrina Sanders Young Special Master 5 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. 4