       In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                          No. 10-222V
                                       Filed: April 4, 2013

**************************************               NOT TO BE PUBLISHED
 MEGHAN WRIGHT,                      *
                                     *               Special Master Zane
              Petitioner,            *
                                     *
                                     *
 v.                                  *               Interim attorneys’ fees and costs;
                                     *               Withdrawal of counsel; Protracted
SECRETARY OF HEALTH                  *               proceedings; Undue hardship
AND HUMAN SERVICES,                  *
                                     *
        Respondent.                  *
                                     *
**************************************


                    UNPUBLISHED DECISION AWARDING INTERIM
                          ATTORNEYS’ FEES AND COSTS 1

I.     BACKGROUND

        On April 12, 2010, Meghan Wright (“Petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act, 42 U.S.C. §300aa-10, et seq. Petitioner alleged she
suffered, and continued to suffer from weakness, loss of muscle control, an onset of new
allergies, and an exacerbation of her preexisting allergies as a result of receiving Human


1
  Because this decision contains a reasoned explanation for the Special Master’s action in this
case, the Special Master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 113 Stat. 2899,
2913 (Dec. 17, 2002). All decisions of the Special Master will be disclosed and made available
to the public unless they contain trade secret or commercial or financial information that is
privileged and confidential, or medical and similar files the disclosure of which would constitute
a clearly unwarranted invasion of privacy. When such a decision or designated substantive order
is filed, a party has 14 days to identify and to move to redact such information before the
document’s disclosure. If the Special Master, upon review, agrees that the identified material fits
within the banned categories listed above, the Special Master shall redact such material from
public access. 42 U.S.C. § 300aa-12 (d) (4); Vaccine Rule 18 (b). In the absence of a motion or
should the Special Master disagree with the proposed redactions, the decision shall be disclosed
in its entirety.

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Papillomavirus (“HPV”) vaccinations on April 13, 2007 and June 22, 2007. Petition at 1-2.
Petitioner also alleged that bruising was either caused-in-fact by the HPV vaccinations or
significantly aggravated by the vaccinations. Petition at 1. At the time the petition was filed,
Petitioner was represented by Mark T. Sadaka. On June 7, 2010, Petitioner filed a statement of
completion, indicating she believed all pertinent medical records had been filed. However, on
September 7, 2010, Respondent filed a Rule 4 Report in which, inter alia, she identified a
number of pertinent medical records that had not, as yet, been filed.

        Between September 7, 2010 and February 1, 2013, Mr. Sadaka gathered additional
medical records, filed an expert report and medical literature and participated in status
conferences. Indeed, on December 19, 2012, while Mr. Sadaka was counsel, the undersigned set
an entitlement hearing for June 12, 2013 and June 13, 2013 to be held in Washington, DC.

        On January 11, 2013, Mr. Sadaka filed a status report informing the Court that he had lost
contact with Petitioner. Subsequently, he filed his Motion for Interim Fees and Costs “[i]n
anticipation of the forth-coming attorney substitution,” in which he requested an award of
$29,502.47 in interim attorneys’ fees and costs. Petitioner’s Motion for Interim Fees and Costs at
1-2. On February 1, 2013, Mr. Sadaka filed a Motion to Substitute Counsel of Record seeking to
have attorney Andrew D. Downing substituted as Petitioner’s counsel. On February 1, 2013, the
undersigned granted Petitioner’s Motion to Substitute Counsel of Record, and Mr. Sadaka ended
his representation of Petitioner.

        On March 7, 2013, Respondent responded to the Motion for Interim Fees and Costs.
Respondent argued that it appeared that Petitioner’s former counsel was seeking an award of
interim fees solely due to his termination as counsel of record and that termination as counsel of
record was not a justification for awarding fees on an interim basis. Respondent’s Response to
Petitioner’s Motion for Interim Attorneys’ Fees and Costs at 1-2. But, at the same time,
Respondent did not object to an award in the amount of $25,000. This matter is now before the
undersigned for a determination of the Motion for Interim Fees and Costs.

II.    APPLICABLE LEGAL STANDARDS

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42
U.S.C. § 300aa-15(e)(1). This provision permits an award of fees even when a petitioner does
not prevail. Id. In so doing, this provision ensures the existence of a competent bar willing to
represent those potentially injured by vaccinations. Saunders v. Sec’y of Health & Human
Servs., 25 F.3d 1031, 1035-36 (Fed. Cir. 1994) (a secondary purpose of the Vaccine Act, to
ensure that vaccine-injury claimants will have readily available a competent bar to prosecute
their claims under the Act, is effected by permitting the award of attorneys’ fees and costs both
to prevailing and non-prevailing claimants).
        When compensation is not awarded, reasonable fees can still be awarded as long as it is
shown that the petition was filed in good faith and there was a reasonable basis for it. 42 U.S.C.
§ 300aa-15(e)(1); Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir.
2010). Good faith requires only a subjective belief that a vaccine claim exists. A presumption of
good faith is afforded petitioners in Vaccine Act cases. See Grice v. Sec’y of Health & Human
Servs., 36 Fed. Cl. 114, 121 (1996).

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        The Vaccine Act does not define what constitutes a reasonable basis, but case law
provides guidance. In contrast to the subjective standard relating to the good faith requirement,
the reasonable basis requirement is “objective, looking not at the likelihood of success of a claim
but more to the feasibility of the claim.” McKellar v. Sec’y of Health & Human Servs., 101 Fed.
Cl. 297, 303 (2011), citing DiRoma v. Sec’y of Health & Human Servs., No. 90-3277, 1993 WL
496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). A determination of reasonableness is
appropriate at the various stages of the proceeding, and such determination is informed by
looking to the totality of the circumstances. McKellar, 101 Fed. Cl. at 303. Although a claim
may have had a reasonable basis at the time of its filing, the reasonableness of further pursuing
the claim may come into question when new evidence becomes available or the lack of
supporting evidence becomes apparent. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl.
29, 33 (1992), aff ‘d, 33 F.3d 1375 (Fed. Cir. 1994).
        As to the timing of an award of fees, in Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit
explicitly recognized that the Vaccine Act permitted the award of attorneys’ fees and costs on an
interim basis. Following Avera, the Federal Circuit has clarified that an interim fee award may
be made prior to a decision on entitlement. Shaw, 609 F.3d at 1374-75(“A special master can
often determine at an early stage of the proceedings whether a claim was brought in good faith
and with a reasonable basis.”) (quoting Avera 515 F.3d at 1352).
        In Avera, the Federal Circuit provided examples of circumstances where an interim fee
award may be appropriate, such as when the case involved protracted legal proceedings, when
costly experts had been retained, or when there was undue hardship. Avera, 515 F.3d at 1352;
see also McKellar, 101 Fed. Cl. at 301 (“some special showing is necessary to warrant interim
fees, including but not limited to delineated [Avera] factors . . . . “); Vaccine Rule 13(b). Since
Avera, cases have clarified that an award of interim fees is in the special master’s discretion and
that there are various circumstances under which an interim award is appropriate. See
Crutchfield v. Sec’y of Health & Human Serv., No. 09-39V, 2011 WL 3806351, at *5-7 (Fed.
Cl. Spec. Mstr. Aug. 4, 2011)(listing cases). One circumstance that has been recognized as
appropriate for an award of interim fees is where a petitioner’s attorney is withdrawing. Woods
v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 154 (2012).
        Once it is established that an award of fees is appropriate, the appropriate amount of fees,
the “reasonable attorneys’ fees,” must be determined. 42 U.S.C. § 300aa-15. The determination
of the amount of reasonable attorneys’ fees is also in the special master’s discretion. Shaw, 609
F.3d at 1377 (citing Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir.
1993)). In cases where there is no dispute as to the amount of fees claimed, generally Special
Masters have awarded a petitioner’s counsel that undisputed amount. See e.g., Shaw, 609 F.3d at
1377.




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III.    DISCUSSION
        As explained below, Petitioner has satisfied the requirements for an award of interim
fees.

           A. Petitioner Has Acted in Good Faith and Has Established A Reasonable Basis
              for the Claim.

        A review of the record as a whole indicates that the claim was brought in good faith and
there was a reasonable basis for it. With regard to good faith, it is clear that Petitioner has a
subjective belief that the vaccination caused her injury. Respondent has not challenged the
presumption of good faith here, and the undersigned is satisfied that Petitioner filed this claim
earnestly believing that she suffered a vaccine-related injury.

       As to reasonable basis, the evidence indicates that the claim was and remains feasible,
which Respondent has not challenged. Indeed, Petitioner has submitted an expert report, which
includes a medical opinion in support of her claim.

           B. An Interim Fee Award is Appropriate Here.

        Respondent objects to Petitioner’s former counsel’s application for interim attorneys’
fees, arguing that the limited circumstances recognized in Avera, 515 F.3d at 1352, as being
appropriate for the award of interim fees, i.e. protracted proceedings, significant expert costs or
undue hardship, are not present in this case. Respondent’s Response to Petitioner’s Motion for
Interim Attorneys’ Fees and Costs at 2. Contrary to Respondent’s argument, at least two such
circumstances are present.

               1.   Protracted Proceedings

        First, an award of interim fees is appropriate because these proceedings are protracted.
These proceedings have been ongoing for almost three (3) years. Although an entitlement
hearing is scheduled to begin in a few months on June 12-13, 2013, it is unlikely that a decision
on entitlement would be rendered in the next several months, pending the issuance of hearing
transcripts and the filings of post-hearing briefs. Given the length of time this action has already
been pending and the length of time it is anticipated to remain pending, these proceedings are
clearly protracted.

               2.   Undue Hardship

        Additionally, there will be a significant undue hardship suffered, within the meaning of
Avera, if Petitioner is forced to wait until Petitioner’s claim is resolved before her former counsel
is paid his fees. As recognized by the Court in Woods v. Sec’y of Health & Human Servs., 105
Fed. Cl. 148, 154 (2012), once counsel has withdrawn from a case, there is a hardship that
warrants payment of interim fees by virtue of the fact that former counsel is unable to make any
future filings, is limited ethically from further participation, may find it difficult to keep apprised

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of the progress of the case and may not be able to anticipate when he will be paid. 105 Fed. Cl.
at 154. As in Woods, it is a hardship for Petitioner to have her former counsel not be paid for his
vigorous and diligent representation for a lengthy period of time after he no longer represents
Petitioner.

       The circumstances recognized in Avera as justifying an interim fee award—protracted
proceedings and undue hardship—are present here. Payment of interim fees is justified.

           C. The Amounts Requested Are Reasonable.

        Having determined that Petitioner’s former counsel is entitled to fees, the amount that is
reasonable must be determined. Respondent does not object to an award of $25,000.00.
Respondent’s Response to Petitioner’s Motion for Interim Attorneys’ Fees and Costs at 2. 2 The
undersigned finds that the amount of $25,000.00 in attorneys’ fees and costs, to which there is no
objection, is reasonable based on this stage of the proceedings. Based on the request’s
reasonableness, the undersigned GRANTS the Petitioner’s request for an award of interim fees
incurred by her former counsel.
IV.    CONCLUSION

        For the reasons explained above, the undersigned finds that an award of interim
attorneys’ fees and costs to Mr. Sadaka is appropriate in this case. The decision shall reflect that
Petitioner is awarded attorneys’ fees and costs on an interim basis as follows:

in a check made payable jointly to Petitioner (Meghan Wright) and Petitioner’s former
counsel (Mark T. Sadaka of the Law Offices of Sadaka Associates LLC), the amount of
$25,000.00. The interim award check shall be mailed directly to Mark T. Sadaka, Esquire,
Law Offices of Sadaka Associates LLC, 20 North Van Brunt Street, Suite 4, Englewood,
New Jersey 07631.


       IT IS SO ORDERED.

                                                      s/ Daria Zane
                                                      Daria J. Zane
                                                      Special Master




2
 Although Petitioner’s Motion for Interim Fees and Costs originally requested the amount of
$29,502.47 in attorneys’ interim fees and costs, it is the undersigned’s understanding that Mr.
Sadaka agreed to reduce the amount to $25,000.00 as including both fees and costs.
Respondent’s Response to Petitioner’s Motion for Interim Attorneys’ Fees and Costs at 2.


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