In the United States Court of Federal Claims
                            OFFICE OF SPECIAL MASTERS

********************      *
CHRISTOPHER LOVING        *
and CARLA LOVING,         *                          No. 02-469V
parents of CAMILLE LOVING,*                          Special Master Christian J. Moran
                          *
             Petitioners, *
                          *                          Filed: September 10, 2014
v.                        *
                          *
SECRETARY OF HEALTH       *                          Attorneys’ fees and costs;
AND HUMAN SERVICES,       *                          interim award; award in the amount
                          *                          to which respondent does not object.
             Respondent.  *
                          *
******************** *

William Dobreff, Dobreff & Dobreff, Clinton Township, MI, for Petitioners;
Darryl R. Wishard, United States Dep’t of Justice, Washington, D.C., for
Respondent.

                     DECISION AWARDING ATTORNEYS'
                   FEES AND COSTS ON AN INTERIM BASIS1

      On May 5, 2002, Christopher and Carla Loving filed a petition for
compensation on behalf of their daughter, Camille Loving, alleging that the
diphtheria tetanus-acellular pertussis ("DTaP") vaccine, which is contained in the
Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a), and which Camille
received on December 5, 2000, and March 27, 2001, significantly aggravated
Camille’s pre-existing infantile spasms and caused her to suffer a seizure disorder
       1
          The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
and developmental delays. After extensive proceedings, petitioners were awarded
compensation pursuant to the parties’ stipulation. Decision, 2013 WL 5631494
(Fed. Cl. Spec. Mstr. Sept. 20, 2013). For the reasons set forth below, the
undersigned finds petitioners entitled to an interim award of attorney’s fees and
costs in the amount to which the Secretary does not object.

     I.      Procedural History

       The Lovings, acting pro se, filed their petition on May 9, 2002. Mr. Dobreff
became counsel of record in December 2002. The process of gathering medical
records and obtaining an expert report took several years. The Lovings filed a
report from Dr. Robert M. Shuman on December 23, 2005, and a supplemental
report on January 18, 2006.

       In her February 27, 2006 Rule 4 report, respondent denied that the Lovings
were entitled to compensation and presented a responsive report from Dr. Michael
Kohrman. The Lovings filed a supplemental report from Dr. Shuman, and a
hearing was scheduled for November 17, 2006, in Chicago, Illinois. During this
hearing, Dr. Shuman testified but did not complete his testimony. Dr. Kohrman
also testified, providing a response to a portion of Dr. Shuman’s testimony. Then,
the hearing was suspended.

      Following the first session of the hearing, the Lovings filed another
supplemental report from Dr. Shuman and respondent filed a supplemental report
from Dr. Kohrman. With this record, another hearing was held on November 14,
2007, approximately one year after the first. During the second hearing, both Dr.
Shuman and Dr. Kohrman completed their oral testimony.

        The parties were given an opportunity to settle the case and also to file post
trial briefs. By the end of June 2008, the parties had submitted their posthearing
briefs. A decision denying compensation was issued on October 6, 2008.
Decision, 2008 WL 4692376 (Fed. Cl. Spec. Mstr. Oct. 6, 2008).

       After this decision, the Lovings filed a motion for review with the Court of
Federal Claims. The Court of Federal Claims vacated and remanded the October
6, 2008 decision. Loving v. Sec’y of Health & Human Servs., 86 Fed. Cl. 135
(2009). The Court of Federal Claims decision established a six-part test for
determining whether petitioners who allege that a vaccination significantly
aggravated an injury that is not listed on the Vaccine Injury Compensation Table
are entitled to compensation. Id. at 144.

                                           2
       On remand, the undersigned determined that the Lovings had established
that Camille’s condition was worse after receiving the third dose of DTaP, and
gave the parties an opportunity to develop evidence “to distinguish problems that
the DTaP caused from problems that Camille would have experienced due to her
pre-existing infantile spasms. When this process concludes, another decision will
issue.” Ruling, 2009 WL 3094883 (Fed. Cl. Spec. Mstr. July 30, 2009).

      The Lovings filed a motion for reconsideration or clarification of the
undersigned’s July 30, 2009 ruling. See Pet’rs’ Mot., filed Oct. 6, 2009. The
undersigned granted only the Loving’s motion for clarification and revised the
language of his ruling. Ruling, 2010 WL 1076124 (Fed. Cl. Spec. Mstr. Mar. 2,
2010). Following this ruling, the parties each retained a life care planner and
began the process of preparing life care plans. The Lovings filed an additional
supplemental report from Dr. Shuman and respondent filed another report from Dr.
Kohrman in response.

       Proceedings slowed dramatically by mid-2011. Petitioners were repeatedly
ordered to file status reports and information requested by respondent for the
furtherance of settlement discussions. See generally, orders, filed Sept. 28, 2011;
Dec. 22, 2011; Apr. 16, 2012; Aug. 24, 2012. The parties sought alternative
dispute resolution in early 2013, and requested a 15-week stipulation order on May
7, 2013. The parties filed a joint stipulation for award on September 18, 2013, and
the undersigned awarded the compensation set forth therein. Decision, 2013 WL
5631494 (Fed. Cl. Spec. Mstr. Sept. 20, 2014).

       On February 19, 2014, petitioners filed their first motion for attorney’s fees
and costs. After several requests for extension to allow the parties to attempt an
informal resolution of petitioners’ requested fees and costs, the Secretary filed her
response on July 16, 2014. In her response, the Secretary stated that although she
does not object to an award for attorneys' fees and costs in the amount of
$140,000.00, she objects to the petitioners’ request $279,403.07 in expert fees and
costs.

       During a status conference held on September 2, 2014, the parties expressed
an interest in seeking mediation to resolve the expert fees and costs currently in
dispute. Taking into consideration this case’s long duration and the parties’
continued negotiations, the undersigned recommended an interim award of the
undisputed amount of attorney’s fees and costs. Respondent did not object to the
recommendation.

                                          3
   II.   Analysis

      Broadly speaking, there are two issues. The first is whether petitioners
should receive any attorneys' fees and costs at this time. The second question is
assuming that some award is appropriate, what is a reasonable amount.

             A. Should Petitioner Be Awarded
                Attorneys' Fees and Costs on an Interim Basis?

       Because petitioners were found to be entitled to compensation, they are
entitled to an award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). In
Avera v. Sec'y of Health & Human Servs., the Federal Circuit stated that awards of
attorneys' fees and costs on an interim basis are permitted in the Vaccine Program.
515 F.3d 1343, 1352 (Fed. Cir. 2008). The Secretary did not raise any objection to
an interim award during the September 2, 2014 status conference.

       A subsidiary question is whether an award of attorneys’ fees and costs
should be made now, that is, on an interim basis. This issue involves consideration
of various factors, including protracted proceedings, costly experts, and undue
hardship. Avera, 515 F.3d at 1351-52; McKellar v. Sec'y of Health & Human
Servs., 101 Fed. Cl. 297, 300-01 (2011) (discussing Avera factors).

       Petitioners satisfy these factors. The case has been pending for over twelve
years without any previous award of interim fees and costs. Additionally,
petitioners have personally incurred costs and there seems to be little reason to
force petitioners to wait for reimbursement of these costs while the remaining
disputed expert fees and costs are resolved. Consequently, petitioners will be
awarded the undisputed amount of attorneys' fees and costs on an interim basis.

             B. What Is A Reasonable Amount of Attorneys' Fees and Costs?

       The second issue is determining a reasonable amount for attorneys' fees and
costs. The Lovings seek an award of $145,087.69 in attorneys’ fees and costs, and
$5,950.00 as reimbursement for costs they personally incurred in proceeding on the
petition in this matter. The Secretary does not object to an award of $140,000.00




                                         4
for attorneys’ fees and costs and $1,150.00 for costs personally incurred by the
Lovings.2

       A review of the material indicates that the components of the Lovings’
request are reasonable. They are awarded the amount to which the Secretary has
not objected, $1,150.00 for petitioners’ personally incurred costs and $140,000.00
in attorneys’ fees and costs.

   III.    Conclusion

       Petitioners are entitled to an award of interim attorneys’ fees and costs. The
special master determines that there is no just reason to delay the entry of judgment
on interim attorneys’ fees and costs.

       After reviewing the request, petitioners are awarded the following:

       a. A lump sum of $140,000.00 in the form of a check made payable to
          petitioners, Christopher and Carla Loving, and petitioners’ counsel ,
          William Dobreff, from the law firm of Dobreff & Dobreff, for
          interim attorneys’ fees and other litigation costs available under 42
          U.S.C. § 300aa-15(e).

       b. A lump sum of $1,150.00, payable to petitioners, Christopher and
          Carla Loving, for costs they incurred in pursuit of their petition.

       The Clerk shall enter judgment accordingly.3




       2
         Respondent states in her objection that it is unclear whether the additional $4,800.00
requested by petitioners for personally incurred costs was expended on litigation costs rather
than treatment for Camille. Respondent notes that the payments made by petitioners appear to
have occurred before Dr. Shuman stated that he was retained to act as their expert in 2004. See
Resp’t’s Opp’n, filed July 16, 2014, at 2 n.2-3.
       3
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.


                                                5
IT IS SO ORDERED.

                        s/Christian J. Moran
                        Christian J. Moran
                        Special Master




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