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

*********************
JEREMY HODGE,                       *
by his conservator ERIKA ELSON, *          No. 09-453V
                                    *      Special Master Christian J. Moran
                   Petitioner,      *
                                    *      Filed: March 9, 2017
v.                                  *
                                    *      Attorneys’ fees and costs; interim
SECRETARY OF HEALTH                 *      award; reasonable basis.
                                    *
                   Respondent.      *
*********************
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for
petitioner;
Althea Walker Davis, United States Dep’t of Justice, Washington, DC, for
respondent.

     PUBLISHED DECISION GRANTING MOTION FOR AN AWARD
      OF ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

       The petitioner seeks an award of attorneys’ fees and costs on an interim
basis and the Secretary opposes that award. The petitioner is awarded
$68,621.72.

                                        Background
       Mr. Hodge’s medical history is complicated. Likewise, the procedural
history of this case is complicated. Both the medical history and the procedural
history have been set forth in earlier decisions and opinions by judicial officers.
Thus, only the most relevant details are included in this opinion.


       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), 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.
      Before Mr. Hodge received the vaccinations at issue, he had been diagnosed
with obsessive-compulsive disorder (“OCD”). He also had been bitten by a tick
and probably developed Lyme disease.

       In March 2006, Mr. Hodge received a dose of the hepatitis A and hepatitis B
vaccines. About a month later, he received a second dose of the hepatitis B
vaccine. In June 2006, Mr. Hodge complained about dizziness, muscles aches and
pain, and fatigue that started after he was vaccinated.
       Due to a lack of medical records, the state of Mr. Hodge’s health from
August 2006 through July 2007 is not known with any detail. By July 10, 2007,
Mr. Hodge suffered a psychotic break. He was not competent to handle his own
affairs from July 10, 2007 through July 2008.

       In July 2009, Mr. Hodge’s mother, Erika Elson, consulted Clifford
Shoemaker, the attorney now representing Mr. Hodge. Ms. Elson provided the
results of a May 18, 2009 MRI, maintaining that this MRI showed that her son’s
brain was damaged and Ms. Elson attributed the damage to the 2006 vaccinations.
Mr. Shoemaker anticipated that the statute of limitations could present a problem
and, therefore, filed a petition without first gathering any medical records. The
petition suggested that Mr. Hodge suffered from a demyelinating disease.

       Over the next years, Mr. Shoemaker collected and filed Mr. Hodge’s
medical records. The Secretary often raised a concern about the statute of
limitations. See Resp’t’s Rep., filed Apr. 30, 2012, at 17-19. However, Mr.
Shoemaker pressed forward. As part of the process for resolving whether the
statute of limitations bars Mr. Hodge’s action, he was ordered to obtain a report
from an expert. The expert was directed to state when Mr. Hodge first manifested
a sign or symptom that a vaccination caused. The expert was further directed not
to present an opinion regarding causation. Order, issued Apr. 24, 2013.

       Mr. Hodge retained Carlo Tornatore, a neurologist who has often assisted
petitioners in the Vaccine Program. Dr. Tornatore opined that the vaccinations
made Mr. Hodge’s Lyme disease worse. Dr. Tornatore identified the June 2006
reports of dizziness and eye movement disturbances as symptoms of the
worsening. Exhibit 18.


                                        2
       With the parties’ receipt of Dr. Tornatore’s report, they argued whether the
statute of limitations barred Mr. Hodge’s claim. Hodge 1 found that it did bar the
action and that Mr. Hodge was not entitled to equitable tolling. 2015 WL 1779274
(Fed. Cl. Spec. Mstr. Mar. 23, 2015), vacated by Hodge, 123 Fed. Cl. 206 (2015).
In Hodge 2, the Court of Federal Claims affirmed the conclusion with respect to
the statute of limitations but vacated the decision with respect to equitable tolling.
123 Fed. Cl. 206. After remand, Hodge 3 ruled that Mr. Hodge was entitled to
equitable tolling due to his mental illness. The Hodge 3 ruling contained both legal
holdings and factual findings. 2015 WL 9685916 (Fed. Cl. Spec. Mstr. Dec. 21,
2015).

      After Hodge 3 determined that the case could proceed, Ms. Elson was
appointed conservator for Mr. Hodge. Exhibit 28 (dated Aug. 25, 2016). The
caption was accordingly changed to reflect that Mr. Hodge is proceeding through
his conservator on November 9, 2016.
       Meanwhile, on May 10, 2016, Mr. Hodge filed a motion for an award of
attorneys’ fees and costs. Mr. Hodge requested a total of $106,674.97. The
Secretary opposed this motion.

      After Mr. Hodge filed his motion for attorneys’ fees and costs, he filed a
second report from Dr. Tornatore. In this report, Dr. Tornatore opined that the
vaccinations significantly aggravated Mr. Hodge’s pre-existing OCD. Exhibit 29.
The Secretary currently is responding to Dr. Tornatore’s report.
       On February 16, 2017, Mr. Hodge was ordered to file a status report
addressing two questions raised by his May 2016 motion for an interim award of
attorneys’ fees and costs. On March 2, 2017, Mr. Hodge addressed those questions
in the context of filing an Amended Motion for Interim Fees and Costs, which
included additional expenses and additional time. Am. Mot. for Interim Attorneys’
Fees and Costs, filed Mar. 2, 2017.

                                      Analysis
      Adjudicating a motion for an award of attorneys’ fees and costs involves
answering a series of sequential questions, each of which requires an affirmative
answer to the previous question. First, whether the petitioner has submitted
evidence that makes him eligible to receive an award of attorneys’ fees and costs?
                                          3
Second, whether, as a matter of discretion, the petitioner should be awarded her
attorneys’ fees and costs on an interim basis? Third, what is a reasonable amount
of attorneys’ fees and costs? These questions are addressed below.

1. Eligibility for An Award of Attorneys’ Fees and Costs
       A petitioner who has not received compensation may be awarded
“compensation to cover petitioner’s reasonable attorneys’ fees and other costs
incurred in any proceeding on such petition if the special master or court
determines that the petition was brought in good faith and there was a reasonable
basis for the claim.” 42 U.S.C. § 300aa-15(e)(1).

       Respondent does not argue that Mr. Hodge or Ms. Elson lacks good faith,
and there is no evidence to indicate either person does not believe the claim is
valid. Thus, the undersigned finds the petition was brought in good faith.

      On the other hand, the Secretary does challenge reasonable basis. The
Secretary makes a perplexing argument regarding the statute of limitations. The
Secretary contends:

             Notwithstanding the special master’s December 2015
             ruling, respondent maintains that petitioner’s claim is
             untimely filed and that equitable tolling for mental illness
             is not consistent with the Vaccine Act. While the Federal
             Circuit has ruled that equitable tolling is available under
             limited circumstances, the Court has not yet addressed
             whether equitable tolling based on mental illness is
             available to vaccine petitioners. Respondent has not yet
             exhausted its appellate rights with respect to that issue.
             Given the uncertainty with respect to that issue, and the
             unusual nature of petitioner’s injury, respondent contends
             that it would be prudent for the special master to defer
             any ruling as to whether there was a reasonable basis for
             filing this petition until the conclusion of this case.

Resp’t’s Resp., filed June 9, 2016, at 6. Essentially, the Secretary appears to be
arguing that because the undersigned’s interpretation of the Vaccine Act may be
erroneous (in that the undersigned held that petitioners in the Vaccine Program
                                          4
may assert equitable tolling due to mental illness), the petitioner’s reasonable basis
for the claim is in doubt.

       If the Secretary were to exercise his right to seek appellate review of the
ruling that allowed an equitable tolling of the statute of limitations, an appellate
authority (either the Court of Federal Claims or the Federal Circuit) may change
the outcome. Appellate review is a normal part of litigation and intended to correct
errors of subordinate tribunals.
       In this case, any error in Hodge 3 would be the undersigned’s mistake, not
Mr. Hodge’s wrongdoing. Therefore, it is difficult to understand how an appellate
court’s correction of any error would serve as a reason to find that Mr. Hodge’s
case lacked a reasonable basis. At a minimal level, Mr. Hodge’s argument for
equitable tolling, which he developed more fully on remand after Hodge 2, was
persuasive to the undersigned. Even if an appellate authority disagreed with the
persuasiveness, the appellate authority would be highly unlikely to find that a
previously persuasive argument was frivolous. Therefore, the undersigned rejects
the Secretary’s assertion that the possibility of appellate review should prevent a
finding of reasonable basis.

       Before the petitioner filed Dr. Tornatore’s second report, the undersigned
was more concerned that there was not evidence demonstrating “there was a
reasonable basis for the claim for which the petition was brought.” 42 U.S.C.
§ 300aa–15(e). However, Dr. Tornatore’s second report easily crosses the standard
for reasonable basis. Therefore, the undersigned finds that the petitioner satisfies
the reasonable basis standard.

2. Appropriateness of an Interim Award
       When a petitioner meets the eligibility requirements for an award of
attorneys’ fees and costs on an interim basis, the special master has discretion to
make such an award. See Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl.
86, 92 (2016) (even after good faith and reasonable basis have been established,
the special master must determine “whether to exercise his or her discretion to
award attorneys’ fees and costs”); cf. Avera v. Sec’y of Health & Human Servs.,
515 F.3d 1343, 1352 (Fed. Cir. 2008) (holding that even though permitted under
the Vaccine Act, an interim award was not appropriate in that case). When
determining the appropriateness of an interim award, the Federal Circuit has
                                          5
considered such factors as protracted proceedings, costly experts, and undue
hardship. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed.
Cir. 2010); Avera, 515 F.3d at 1352.

       Here, the Secretary has not made any specific argument regarding the Avera
factors. The proceedings have already been protracted as the petitioner has already
filed one motion for review. Petitioner has also retained one expert, Dr. Tornatore,
and although his invoice was not particularly huge in May 2016, the cost of his
services should be reimbursed. Finally, the undue hardship standard discussed in
Avera and Shaw includes hardship for counsel as well as petitioners. This
conclusion appears to be the consensus among judicial officers. See Rehn, 126
Fed. Cl. at 94; Al-Uffi v. Sec’y of Health & Human Servs., No. 13-956V, 2015
WL 6181669, at *8 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). Delaying an award of
attorneys’ fees until the end of the case could impose an undue hardship as the
Secretary has indicated that he might appeal. For these reasons, an interim award
is appropriate.

3. Reasonableness of Requested Amounts
      The petitioner requests a total of $106,674.97. Effectively, the petitioner
seeks $96,395.25 in attorneys’ fees, plus $10,234.75 in attorneys’ costs, plus
$44.97 in costs incurred by Ms. Elson.2

       A. Attorneys’ Fees
       Under the Vaccine Act, a special master may award reasonable attorneys’
fees and costs. 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are
calculated by multiplying a reasonable hourly rate by a reasonable number of hours
expended on litigation, the lodestar approach. Avera, 515 F.3d at 1347-48
(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A petitioner’s counsel in the
Vaccine Program is paid the forum rate unless the bulk of the work is performed in
a locale other than the forum (District of Columbia) and the local rate is
       2
          The figures presented in the text are adjusted because the petitioner has claimed that the
work performed by Dr. Greenspan is a cost. However, because Dr. Greenspan performed work
that an attorney could have done, his invoice is treated as part of the attorneys’ fees. The change
in categorization, however, does not affect the outcome.

                                                 6
significantly lower than the forum rate. Avera, 515 F.3d at 1349. If these two
requirements are met, the Davis exception applies, and that petitioner’s counsel is
paid according to the local rate. Id.; see Davis Cty. Solid Waste Mgmt. and Energy
Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755,
757-60 (D.C. Cir. 1999).
       In this case, petitioner has requested work that four professionals performed:
Clifford Shoemaker, Renee Gentry, Sabrina Knickelbein, and Mark Greenspan.
Special masters are familiar with all.

       The May 2016 motion for an award of attorneys’ fees on an interim basis is
similar to a motion that Mr. Shoemaker submitted in another case. See Moriarty v.
Sec’y of Health & Human Servs., No. 03-2876V, 2016 WL 7666538 (Fed. Cl.
Spec. Mstr. Dec. 16, 2016). In both Moriarty and in the case at hand, the
petitioners sought reimbursement for work performed by Mr. Shoemaker, Ms.
Gentry, and Ms. Knickelbein.3 The attorneys requested compensation at different
hourly rates for different years.

       A deficiency in the May 2016 application is that the basis for the proposed
hourly rates was not provided. This was true in the previous case as well: “The
Moriartys supplied no information explaining how these hourly rates were
determined.” Id. at *3. Determining reasonable hourly rates as part of the process
for adjudicating the pending fee application will consume judicial resources and
will delay adjudications for other petitioners, seeking either compensation or final
awards of attorneys’ fees. In Moriarty, the undersigned partially solved this
conundrum by compensating the attorneys at a previously awarded rate with the
expectation that the petitioners would file a more complete application for
attorneys’ fees and costs at the end of the case. This solution, although not
immediately granting the petitioner all the relief being sought, attempts to address
a burgeoning docket. See Amado v. Microsoft Corp., 517 F.3d 1353, 1358 (Fed.
Cir. 2008) (stating district courts “are afforded broad discretion to control and
manage their dockets, including the authority to decide the order in which they
hear and decide issues pending before them”).



      3
          Mr. Greenspan appears not to have worked on Moriarty.

                                              7
       The undersigned will follow the approach taken in Moriarty here. The
undersigned will compensate Mr. Shoemaker at $250 per hour, Ms. Gentry at $200
per hour, and Ms. Knickelbein at $155 per hour. See Ray v. Sec’y of Health &
Human Servs., No. 04-184V, 2006 WL 1006587, at *9-10, *13 n.9 (Fed. Cl. Spec.
Mstr. Mar. 30, 2006) (awarding slightly less per hour for work performed in 2005).
As in Moriarty, the undersigned fully expects that these rates will increase as part
of an adjudication of final fees. With respect to the number of hours, the
undersigned accepts the proposed number of hours as reasonable for purposes of
expediting an award.4 A final fees decision may revisit the number of hours.

       The remaining professional who performed work typically done by members
of a law firm is Dr. Greenspan. In May 2012, Dr. Greenspan spent approximately
50 hours summarizing medical records at a rate of $250 per hour. Given Dr.
Greenspan’s training as an attorney and a doctor, this hourly rate is reasonable.
However, given this same training, the review of records should have taken less
than a normal (40 hour) work-week. Thus, Dr. Greenspan’s invoice is reduced by
20 percent. The petitioner is awarded $9,950 for his work.
       In sum, for this interim award, the petitioner is awarded $58,342 in
attorneys’ fees.

       B. Costs
       The statutory requirement that only reasonable amounts be awarded applies
to costs as well as fees. See Perriera v. Sec’y of Health & Human Servs., 27 Fed.
Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable expert costs
are calculated using the same lodestar method as is used when calculating
attorneys’ fees. Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009
WL 1838979, at *37 (Fed. Cl. Spec. Mstr. June 12, 2009).



       4
         Mr. Shoemaker’s fees are $32,225 (128.9 hours (through May 20, 2016) multiplied by
$250 per hour). Ms. Gentry’s fees are $8,820 (44.1 hours (through March 23, 2016) multiplied
by $200 per hour). Ms. Knickelbein’s fees are $7,347 (47.4 hours (through April 7, 2016)
multiplied by $155 per hour). Fees for these three professionals total $48,392.



                                              8
      The petitioner asks for $10,279.72 in costs. A small amount ($634.75) is for
routine items such as obtaining medical records. This category includes the costs
($44.97) Ms. Elson incurred personally. All are reasonable.

      The bulk of the costs are for obtaining reports from Dr. Tornatore. Dr.
Tornatore has presented an invoice for $9,600. This represents 24 hours at a rate
of $400 per hour.

       Dr. Tornatore’s proposed rate is accepted as reasonable. With respect to the
number of hours, Dr. Tornatore’s charge of 24 hours is also reasonable. However,
Dr. Tornatore is encouraged to provide more detailed descriptions of his activities.
For example, his third and fourth entries simply state “Review records” and the
time associated is 2.0 hours and 2.5 hours respectively. Later, another entry is 2.5
hours for “Work on report; review more articles.” Dr. Tornatore could have easily
listed which records he is reviewing (exhibits 1-4 or exhibits 9-10, etc.) and which
articles he is reviewing. To ensure that a reviewing special master can understand
what Dr. Tornatore was doing, Dr. Tornatore should add more details to his
activities.
      Total costs, through May 10, 2016, are $10,279.72.5

                                         Conclusion
       The undersigned finds an interim award of attorneys’ fees and costs
appropriate at this time. Of the total amount of attorneys’ fees requested
($96,395.25), Ms. Elson is awarded $58,342.00 with additional compensation
anticipated. Of the total amount of costs requested ($10,279.72), Ms. Elson is
awarded $10,279.72.

       Accordingly, the undersigned awards the total of $68,576.75 as a lump
sum in the form of a check jointly payable to Ms. Elson and her counsel,
Clifford Shoemaker. An additional $44.97 shall be payable to Ms. Elson
alone.



      5
          Equal to $634.75 + $44.97 + $9,600.

                                                9
       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.

      IT IS SO ORDERED.

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




                                       10
