          In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 15-89V
                                      Filed: April 11, 2019

    * * * * * * * * * * * * *                  *    *
    JACQUELINE HAIM,                                *      UNPUBLISHED
                                                    *
                 Petitioner,                        *
    v.                                              *      Decision on Interim Attorneys’ Fees and
                                                    *      Costs
    SECRETARY OF HEALTH                             *
    AND HUMAN SERVICES,                             *
                                                    *
             Respondent.                            *
    * * * * * * * * * * * * *                  *    *

Lisa Levine, Esq., Lisa S. Levine, PA, Weston, FL, for petitioner.
Althea Davis, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

       On January 29, 2015, Jacqueline Haim (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffers
from multiple sclerosis (“MS”) as a result of the hepatitis A, human papilloma virus (“HPV”), and
meningococcal meningitis vaccinations she received on July 19, 2013. Petition, ECF No. 1.

        On November 6, 2018, petitioner filed a Motion for Interim Attorneys’ Fees and Costs
(“Motion for Interim Fees”), requesting $12,152.10 in attorneys’ fees and $5,826.50 in attorneys’
costs, for a total of $17,978.60. Motion for Interim Fees at 1-2, ECF No. 104. On November 16,

1
  Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
2018, respondent filed a response to petitioner’s Motion for Interim Fees that contained no specific
objection to the amount requested or hours worked, but instead asked that the undersigned exercise
her discretion in determining whether interim attorneys’ fees and costs are appropriate and whether
the statutory requirements for an award of any fees have been met. Response at 2, ECF No. 105.
Petitioner did not file a reply to respondent’s response.

                                         I. Procedural History

       Petitioner filed her petition on January 29, 2015. ECF No. 1. This case was originally
assigned to Special Master Hamilton-Fieldman on January 30, 2015.3 ECF No. 4. Petitioner was
ordered to file complete medical records and a Statement of Completion by March 12, 2015. Order,
ECF No. 5. Petitioner filed several medical records on February 20, 2015, and a Statement of
Completion on March 20, 2015. Petitioner’s Exhibits (“Pet. Ex.”) 1-17, ECF No. 7-8. Respondent
was ordered to file a status report by April 10, 2015. Non-PDF Order, dated March 20, 2015.

        On April 6, 2015, respondent filed his status report advising that he intended to file his
Rule 4(c) Report by April 29, 2015. Respondent’s Status Report (“Resp. S.R.”) at 1, ECF No. 9.
Respondent filed his Rule 4(c) Report on April 29, 2015 and argued that petitioner failed to satisfy
the Althen criteria necessary to prove petitioner’s MS was caused by the vaccines in question.
Respondent’s Report at 11, ECF No. 13.

        A status conference was held on May 20, 2015, after which petitioner was ordered to file
updated medical records, an affidavit clarifying whether petitioner was being treated for MS or
acute disseminated encephalomyelitis (“ADEM”), as was mentioned in the medical records from
petitioner’s treating neurologist, Dr. William Sheremata. See Pet. Ex. 10 at 107. A status report
identifying the places in her medical records that document her date of vaccination and date of
onset of her symptoms by July 1, 2015 was ordered as well. Order, ECF No. 14. Petitioner was
also ordered to file an expert report by July 29, 2015. Id.

       On June 19, 2015, petitioner filed a motion for extension of time to file her affidavits by
July 15, 2015, which was granted. Motion, ECF No. 16; Order, ECF No. 17. Petitioner filed
updated medical records on July 1, 2015. Pet. Ex. 22, ECF Nos. 20-21.

        Petitioner’s counsel was contacted by Special Master Hamilton-Fieldman’s chambers on
July 6, 2015 regarding petitioner’s missed deadline to file a status report identifying the pages in
the medical records that contained proof of vaccination and onset of symptoms by July 1, 2015.
Informal Communication, dated July 6, 2015. Petitioner’s counsel advised she would file the
documents that day. Id. Petitioner filed a Statement of Completion and a status report including
the requested references the same day. Petitioner’s Status Report (“Pet. S.R.”), ECF No. 23-24.
Special Master Hamilton-Fieldman’s chambers contacted petitioner’s counsel again on July 6,
2015, advising that several of petitioner’s medical records were filed incorrectly. Informal
Communication, dated July 6, 2015. The Court entered four orders striking petitioner’s
erroneously filed exhibits the same day. Non-PDF Orders, dated July 6, 2015.


3
    This case was reassigned to the undersigned on January 14, 2016. ECF No. 52.

                                                     2
        Petitioner filed additional medical records, including MRI imaging, on July 14, 2015. Pet.
Ex. 23-24, ECF No. 29. On July 28, 2015, petitioner filed a motion for extension of time to file
her expert report. Motion, ECF No. 31. A status conference was held on August 5, 2015, after
which petitioner’s motion for extension of time was granted, and she was ordered to file an expert
report by September 11, 2015. Order, ECF No. 34.

       Petitioner filed updated medical records on August 27, 2015, and September 10, 2015. Pet.
Ex. 29-30, ECF No. 35-36. On September 11, 2015, petitioner filed an expert report from Dr.
Sheremata. Pet. Ex. 32, ECF No. 37.

        A status conference was held October 7, 2015, during which petitioner’s counsel was
advised of the shortcomings of Dr. Sheremata’s expert report. Order, ECF No. 45. Special Master
Hamilton-Fieldman informed petitioner’s counsel that Dr. Sheremata’s report was conclusory; she
noted the report did not identify the mechanism by which the vaccines allegedly caused petitioner’s
injuries, lacked citations to the medical records in support of the theory, and did not explain in
sufficient detail why it was reasonable to believe that onset occurred so quickly after vaccination.
Id. Accordingly, petitioner was ordered to file a supplemental expert report addressing the
aforementioned issues by November 25, 2015. Id.

        Petitioner filed three motions for extension of time over the following six months.4
Motions, ECF Nos. 49-50, 53. On June 6, 2016, petitioner incorrectly filed the supplemental report
from Dr. Sheremata seven times. See ECF Nos. 54-60. The following day, petitioner filed motions
to strike each expert report, Motions, ECF No. 61-67, which the undersigned granted. Non-PDF
Order, dated June 8, 2016. Petitioner filed another incorrectly filed supplemental expert report5
authored by Dr. Sheremata, along with supporting medical literature, on June 22, 2016. Pet. Ex.
33-40, ECF No. 68-76.

        A status conference was held on July 26, 2016, during which petitioner was informed that
the recently filed expert reports contained several errors, and one filing appeared to begin in the
middle of the report. Order at 1, ECF No. 78. The undersigned also advised petitioner that Dr.
Sheremata’s report failed to satisfy the Althen criteria and did not address the quick onset of
petitioner’s symptoms following the vaccine. Id. Dr. Sheremata also failed to address which of the
vaccinations in question trigged petitioner’s ADEM and how ADEM led to petitioner’s MS
diagnosis. Id. Petitioner was ordered to strike the erroneously filed documents by July 29, 2016
and file an expert report that complied with the Althen criteria by August 25, 2016. Id.

       On August 22, 2016, petitioner filed motions to strike the incorrectly filed exhibits and a
motion for extension of time, requesting a 90-day extension to file her expert report from Dr.
Sheremata as he had recently fallen ill. Motions, ECF Nos. 79-81. The Court granted petitioner’s
motions to strike, Non-PDF Orders, dated August 22, 2016, and granted petitioner’s motion for
extension of time in part, allowing a 60-day extension to file her expert report by October 25, 2016.
Non-PDF Order, dated August 22, 2016.


4
    One of these motions was due to a death in petitioner’s counsel’s family. Motion, ECF No. 50.
5
    This expert report was later stricken and re-filed due to erroneous pagination. See Order, ECF No. 78.

                                                       3
       On October 24, 2016, petitioner filed a supplemental expert report from Dr. Sheremata.
Pet. Ex. 41, ECF No. 84. The parties were ordered to file a joint status report by November 30,
2016, indicating whether settlement negotiations were a possibility. Non-PDF Order, dated
October 24, 2016.

         The parties filed a joint status report on November 23, 2016, advising that respondent was
not interested in pursuing settlement at that time. Joint S.R., ECF No. 85. Respondent was ordered
to file an expert report by January 23, 2017. Non-PDF Order, dated November 23, 2016. After two
motions for extension of time, Motions, ECF No. 86-87, respondent filed an expert report from
Dr. Subramaniam Shriram on April 24, 2017. Respondent’s Exhibit (“Resp. Ex.”) A, ECF No. 88.

        A status conference was held on June 29, 2017, during which petitioner’s counsel advised
that petitioner’s expert, Dr. Sheremata, had recently passed away. Order, ECF No. 90. As such,
petitioner was ordered to file a status report by August 1, 2017, advising the Court on her progress
in obtaining a new expert. Id.

        After two motions for extension of time, Motions, ECF No. 91-92, petitioner filed a motion
on December 5, 2017, advising she had obtained a new expert, Dr. Waden Emery, and requesting
60 days to file Dr. Emery’s expert report. Motion, ECF No. 93. Petitioner was granted a 90-day
extension and was ordered to file an expert report by March 5, 2018. Non-PDF Order, dated
December 5, 2017. On March 5, 2018, petitioner filed an expert report from Dr. Emery, ECF No.
94, that was later stricken as it was incorrectly filed. Order, ECF No. 102.

       On March 7, 2018, the undersigned issued an order indicating that Dr. Emery’s report failed
to address any of the three-prongs set forth in Althen. Order, ECF No. 95. Therefore, petitioner
was ordered to file a supplemental report from Dr. Emery that complied with Althen by May 7,
2018. Id. Petitioner filed Dr. Emery’s supplemental report and supporting medical literature on
May 7, 2018. ECF No. 97. However, the report and the literature were later stricken from the
record due to incorrect filing and pagination. Order, ECF No 102.

       A status conference was held on July 11, 2018, during which petitioner was advised that
several of her exhibits were filed incorrectly, either out of numerical sequence and/or without
appropriate pagination. Order, ECF No. 98. Petitioner was also informed that Dr. Emery’s
supplemental expert report failed to address Althen prongs 1 and 2. Id. Petitioner was ordered to
file motions to strike the incorrectly filed documents by August 27, 2018 and file either a
supplemental expert report that satisfies the Althen criteria or a status report indicating how she
intended to proceed by October 9, 2018. Id.

        Petitioner filed motions to strike her improperly numbered and paginated filings on August
23, 2018, which were granted. Order, ECF No. 102. Petitioner also re-filed Dr. Emery’s expert
report that had already been filed in this case on August 23, 2018. ECF No. 100. On October 9,
2019, petitioner filed a supplemental expert report from Dr. Emery. Pet. Ex. 48, ECF No. 101.
Respondent was ordered to file a responsive expert report or a status report advising how he
intended to proceed by December 10, 2018. Non-PDF Order, dated October 9, 2018.




                                                 4
        On November 6, 2018, petitioner filed a Motion for Interim Attorneys’ Fees and Costs
(“Interim Fees Motion”), in which she requested attorneys’ fees in the amount of $12,152.10, and
costs in the amount of $5,826.50, totaling $17,978.60. Interim Fees Motion at 1-2, ECF No. 104.
On November 16, 2018, respondent filed a response to petitioner’s Interim Fees Motion stating,
“Respondent defers to the Special Master to determine whether or not petitioner has met the legal
standard for an interim fees and costs award . . . and the statutory requirements for an award of
attorneys’ fees.” Response, ECF No. 106. Petitioner did not file a reply to respondent’s response.

       Respondent filed an expert report from Dr. Sriram on December 10, 2018. Resp. Ex. C,
ECF No. 106. A Rule 5 status conference was scheduled for January 31, 2019. Non-PDF Order,
dated December 17, 2018. Following a lapse in the Department of Justice’s appropriations from
December 22, 2018 through January 25, 2019, the Rule 5 status conference was rescheduled for
April 17, 2019. Non-PDF Order, dated February 5, 2019. Respondent filed medical literature on
March 22, 2019. Resp. Ex. A1-7, C3, ECF No. 107.

        On April 2, 2019, petitioner’s counsel contacted the undersigned’s chambers advising that
she was now unavailable for the previously schedule Rule 5 status conference. Informal
Communication, dated April 2, 2019. Petitioner’s counsel was provided with three possible dates
for the status conference but informed the undersigned’s chambers that she was unavailable on all
the proposed dates. Informal Communication, dated April 4, 2019. Petitioner’s counsel, along with
respondent’s counsel, were provided with additional dates for a status conference via email the
same day, but petitioner’s counsel has yet to respond with her availability.

        This matter is now ripe for determination.

                                       II. Legal Framework

         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, petitioner’s counsel is
automatically entitled to reasonable attorneys’ fees and costs. 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). Moreover, special masters have discretion to award interim fees while the
litigation is ongoing if “the cost of litigation has imposed an undue hardship” and there is “a good
faith basis for the claim.” Shaw v. Sec’y of Health & Humans Servs., 609 F.3d 1372, 1375 (Fed.
Cir. 2010); see Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).
One instance in which interim fees have been awarded is “where proceedings are protracted.”
Avera, 515 F.3d at 1352.

                                          III. Discussion

   A.      Availability of Interim Fees

       The court in Avera held that interim fees may be awarded “in appropriate circumstances.”
515 F.3d at 1351. The court then listed some circumstances—cases involving “protracted”
proceedings and “costly experts”—in which it would be “particularly appropriate” to award


                                                  5
interim fees. Id. at 1352. But “the Federal Circuit in Avera . . . did not enunciate the universe of
litigation circumstances which would warrant an award of interim attorney’s fees,” Woods, 105
Fed. Cl. at 154, and “special masters [retain] broad discretion in determining whether to award”
them, Al-Uffi ex rel. R.B. v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at
*5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). The inquiry is simply whether there is “a good faith basis
for the claim” and the denial of interim fees would “impose[] an undue hardship” in the
circumstances of the case. Shaw, 609 F.3d at 1375. In making this determination, “the special
master may consider any of the unique facts of a case.” Rehn v. Sec’y of Health & Human Servs.,
126 Fed. Cl. 86, 94 (2016).

         Under the circumstances of this case, interim fees are not warranted. While this case has
been pending for four years, which ordinarily “suffice[s] to constitute the type of ‘circumstances’
to warrant an interim fee award,” it has not yet been determined whether petitioner meets the
statutory requirements for an award of attorneys’ fees and costs. Woods, 105 Fed. Cl. at 154; see
also, e.g., Thompson v. Sec’y of Health & Human Servs., No. 12-475V, 2018 WL 1559799, at *1
(Fed. Cl. Spec. Mstr. Feb. 28, 2018). Further the delays in this case were primarily within the
control of petitioner. Petitioner recently filed an expert report that may not satisfy the Althen
criteria. See Pet. Ex. 48. Though a Rule 5 status conference has been scheduled twice, one
adjourned due to the lack of the Department of Justice’s appropriations, and one rescheduled at
petitioner’s counsel’s request, the undersigned has been unable to discuss this matter with counsel
and whether petitioner’s expert report is sufficient in order to proceed.

        This matter has been pending before the Court as long as it has due to petitioner’s counsel’s
inability to file documents in accordance with the Vaccine Guidelines. See ECF Nos. 27, 30, 54-
60, 68-69, 97. Additionally, petitioner has failed to file expert reports in compliance with Althen
despite several orders issued by the undersigned and Special Master Hamilton-Fieldman
explaining the Althen criteria. See Orders, ECF Nos. 45, 78, 95, 98. Therefore, interim fees and
costs will not be entertained in this matter, if at all, until an entitlement hearing has been held, if
deemed appropriate. Therefore, petitioner’s Motion for Interim Fees and Costs is DENIED.

                                           IV. Conclusion

     Based on the foregoing, petitioner’s Motion for Interim Attorneys’ Fees and Costs is
DENIED. The Clerk of Court shall enter judgment accordingly.6

       IT IS SO ORDERED.

                                                       s/ Mindy Michaels Roth
                                                       Mindy Michaels Roth
                                                       Special Master




6
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.

                                                  6
