Valdes v. HHS - Hepatitis B, joint pain and rheumatoid arthritis (2009)

Petitioner Valdes filed a claim on May 14, 1999, under the National Childhood Vaccine Injury Compensation Program alleging that a hepatitis B vaccine caused joint pain and rheumatoid arthritis. The case was assigned to Chief Special Master Gary J.

Golkiewicz, then stayed in 2003 while the Office of Special Masters resolved hepatitis-B causation issues in related omnibus proceedings. After the Federal Circuit in Capizzano v.

Secretary of HHS, 440 F.3d 1317 (Fed. Cir. 2006) reversed the Chief Special Master's elevated causation standard, the case was reassigned to Special Master Christian J.

Moran and proceeded. The parties reached a settlement agreement on March 4, 2008, which the Special Master accepted in an unpublished decision issued March 21, 2008 (Valdes I).

On November 1, 2008, petitioner's counsel, Shoemaker & Associates, filed an application for attorney's fees and costs. On April 30, 2009, Special Master Moran issued a decision (Valdes II) awarding $28,190.42 in attorney's fees, $10,823.49 in attorney costs, and $341.59 in other costs — substantially less than the amounts requested.

The reductions included: 0.2 hours ($60) reduced because an 18-minute entry for a one-sentence motion was corrected to 6 minutes; 0.1 hours ($25) eliminated for a call made on New Year's Day 2001; and 4.9 hours of associate time reclassified as paralegal work (the work involved obtaining medical records, which the Special Master found is routinely handled by paralegals). Regarding expert costs, the Special Master reduced Dr.

Yehuda Shoenfeld's request from $15,200 to $7,700, finding that billing in two undifferentiated blocks — 22 hours for records review and 16 hours for the report — prevented detailed review and was unreasonable based on comparable cases. The Special Master denied entirely the $8,600 requested for non-testifying consultant Dr.

David Geier (finding him not qualified for immunology/epidemiology issues in this type of case, and noting many prior vaccine decisions had declined to compensate Dr. Geier), as well as all costs for Dr.

Mark Greenspan (whose work was found duplicative of counsel's and Dr. Shoenfeld's).

The Special Master also denied the $400 charged for blood samples sent to William Hildebrandt, Ph.D. The Special Master noted, with evident concern, that Shoemaker & Associates had accumulated billing errors across more than fourteen separate Vaccine Program proceedings, and warned that future errors might result in denial of the entire fee request.

Petitioner filed a motion for review on June 1, 2009. Judge Braden, writing for the Court of Federal Claims on September 30, 2009, granted the motion in part and denied it in part.

The court affirmed the reduction of Dr. Shoenfeld's costs, finding that the Special Master had acted within his discretion in relying on his experience to determine that large-block billing was unreasonable.

The court, however, found that the complete denial of Dr. Geier's costs was disproportionate given that petitioner had obtained a settlement, and reduced the disallowance to fifty percent.

Similarly, the court applied a fifty percent reduction — rather than full disallowance — to Dr. Greenspan's costs.

The court also found that the Special Master abused his discretion in denying compensation for the associate's work without allowing reimbursement at a paralegal rate, and reversed the denial of the $400 blood sample, finding that the test was not unreasonable or excessive in cost. The April 30, 2009, Special Master fee decision was vacated and remanded for recalculation consistent with these holdings.