    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                         No. 12-706V
                                     Filed: July 29, 2016

*************************
ERICA EVANS, M.D.,                          *       Not for Publication
                                            *
                      Petitioner,           *
       v.                                   *       Attorney’s Fees and Costs;
                                            *       Contested; Range.
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
                      Respondent.           *
*************************
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Traci R. Patton, United States Department of Justice, Washington, DC, for respondent.

               DECISION AWARDING ATTORNEY’S FEES AND COSTS1

Roth, Special Master:

        On October 17, 2012, Erica Evans, M.D. (“Dr. Evans” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.2 (the “Vaccine Act” or “Program”). See generally Petition (“Pet.”). In an amended
petition, petitioner alleged an influenza (“flu”) vaccine3 she received on October 7, 2009
triggered an autonomic nervous system dysfunction which caused her to suffer from orthostatic
hypotension, intermittent numbness and tingling in extremities, and residual physical and

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, it
will be posted on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance
with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If,
upon review, I agree that the identified material fits within this definition, I will delete such
material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
3
  Petitioner discusses the H1N1 vaccination she received on October 23, 2009 in her petition.
However, this is not a covered vaccination. See § 300aa-14. In her amended petitioner, she only
alleges the October 7, 2009 flu vaccine to be causal. See Amended (“Amend.”) Pet., ECF No. 50.
psychological symptoms. See generally Amend. Pet., ECF No. 50. On April 13, 2016, the
undersigned dismissed this case for insufficient proof linking the injury and vaccine. Decision,
ECF No. 75. Petitioner now seeks an award of attorney’s fees and costs on behalf of current and
former counsel in the amount of $58,015.31, pursuant to §15(e) of the Vaccine Act. Motion for
Attorney’s Fees (“Motion for Fees”) for Current Counsel, ECF No. 78, at 2; Motion for Fees for
Prior Counsel, ECF No. 79. After careful consideration, the undersigned has determined to
grant both requests in full for the reasons set forth below.

                                             I.       Facts.

         Petitioner received the allegedly causal flu vaccination on October 7, 2009 at Piedmont
Healthcare in Mooresville, North Carolina. Pet. at 1-2; Petitioner’s Exhibit (“Pet. Ex.”) 16 at 1-2.
On October 27, 2009, petitioner presented to neurologist Dr. Dharmen Shah with paresthesias in
both her upper and lower extremities, as well as shortness of breath. Pet. Ex. 1 at 11-12. Dr. Shah
noted that petitioner’s diagnosis may include Guillain-Barre Syndrome (“GBS”), “especially in
the setting of the of [the] recent [uncovered] swine flu vaccine that she received,” but there was
no conclusive evidence of this. Id. He recommended that petitioner be admitted to Iredell
Memorial Hospital (“Iredell”) Intensive Care Unit. Id.

        Upon admission to Iredell on October 27, 2009, petitioner was evaluated by Dr. Deborah
London, who confirmed Dr. Shah’s diagnosis of paresthesias of the extremities. Pet. Ex. 11 at
26. She also diagnosed petitioner with hypertension. Id. During her stay at Iredell, petitioner’s
symptoms “waxed and waned rather than progressed and then regressed.” Pet. Ex. 11 at 23.
While petitioner did experience periods of high blood pressure and hyperventilation, she was not
medicated for either. Id. Additionally, petitioner seemed to have “significant anxiety” but
fervently denied being anxious. Id. Based on these inconclusive symptoms, she was discharged
from Iredell on October 30, 2009. Id. at 24. In her discharge orders, GBS was ruled out and Dr.
London wrote “[p]atient had paresthesias that were not related to [GBS] and this was not related
to the H1N1 vaccine.” Id.

        The next day, petitioner was admitted to the Lake Norman Regional Medical Center
(“Lake Norman”) Emergency Room for shortness of breath, generalized weakness, and tremors.
Pet. Ex. 7 at 139. At Lake Norman, petitioner presented with high blood pressure. Id. Once
petitioner’s vital signs were under control, she was transferred to Presbyterian Hospital
(“Presbyterian”) on November 3, 2009. Id. at 59-60. While at Presbyterian, petitioner was
evaluated by a neurologist, Dr. Christopher M. Polk, who stated that petitioner may be suffering
from a conversion disorder as it “seems unlikely [that] this is a post viral neurological
syndrome.” Pet. Ex. 8 at 18-19. Also, because the onset of petitioner’s symptoms began within
hours of the H1N1 vaccine, “any link to vaccination seem[ed] unlikely.” Id. at 19. Based on this
diagnosis, Dr. Polk recommended continued “supportive care” and for petitioner to “increase her
mental and physical activity level…and push herself in this regard” with the goal of accelerating
her recovery. Id.

        Also while at Presbyterian, petitioner took a diagnostic “Head up tilt test.” Id. at 21. The
results of the tilt test suggested petitioner was suffering from orthostatic hypotension. Id.
Petitioner also underwent an evaluation by Ervin Batchelor, Ph.D., who attempted to complete a

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Minnesota Multiphasic Personality Inventory (“MMPI”) test to identify any behavioral issues
petitioner might have been suffering from. Id. at 16. However, Dr. Batchelor was unable to
complete the MMPI test as petitioner “developed a spell and was unable to complete the test.” Id.
Dr. Batchelor suggested considering an outpatient neuropsychological evaluation and a
dysautonomia work-up. Id. at 16-17. Finally, he agreed with Dr. Schmidt, who had suggested
these “spells are more characteristic of panic attacks.” Id. Petitioner was discharged from
Presbyterian on November 7, 2009 with her final diagnosis being hypertension, cervical disc
disease, and multifaceted neurological symptomology–probable conversion versus somatoform
disorder. Id. at 13. Dr. Schmidt encouraged petitioner to follow-up with an outpatient neuro-
psychologist and suggested a tertiary medical center as petitioner and her family were focused on
an “organic explanation” for her symptoms. Id. She has since refused further medical testing
related to this alleged injury and therefore had no definitive diagnosis attributable to her vaccine.
See e.g. Scheduling Orders, ECF Nos. 56, 73.

        Petitioner submitted additional medical records concerning other health issues unrelated
to the vaccine and injuries in question which will not be discussed here.

                                     II.     Procedural History.

       This case was filed on October 17, 2012 and initially assigned to Special Master Moran.
Notice of Assignment, ECF. No. 2. Petitioner was initially represented by Ms. Danielle Strait of
Maglio Christoper & Toale. Pet. at 3. Petitioner filed medical records numbered as Exhibits 1-9
on December 13, 2012. Notice of Intent, ECF No. 9. Additional medical records were filed on
January 11, 2013, January 28, 2013, and March 28, 2013. ECF Nos. 12, 13, 18.

        This case was reassigned to Special Master Hamilton-Fieldman on April 9, 2013. Order
Reassigning Case, ECF No. 23. Additional medical records were filed on May 31, 2013, along
with a Statement of Completion. ECF Nos. 24, 25. On June 21, 2013, petitioner filed her vaccine
records labelled as Exhibit 16. Notice of Filing Vaccine Records, ECF No. 28. Respondent filed
a status report on July 2, 2013 pursuant to the April 2, 2013 order by previously-assigned Special
Master Moran. Status Report, ECF No. 30. In this report, respondent’s counsel advised that the
record was sufficient for preparing her Rule 4 Report and requested a deadline of August 20,
2013. Id.

        Respondent’s counsel filed her Rule 4 Report on August 21, 2013. Respondent’s Report
(“Report”), ECF No. 31. In the report, respondent contends that petitioner failed to assert an
injury and satisfy any of the three prongs of Althen, as petitioner did not assert a medical theory
of causation, a logical sequence of cause and effect, and a proximate temporal relationship.
Report at 9-11; Althen v. Sec’y of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). A status
conference was held on September 26, 2013 to discuss the shortcomings of petitioner’s case as
described in the Rule 4 Report. Scheduling Order, ECF No. 32. Petitioner’s counsel noted that
she would like time to confer with her client regarding how petitioner would like to proceed with
the case. Id. Special Master Hamilton-Fieldman stated that another status conference would be
held on October 24, 2013. Id. Before said conference, petitioner was to decide whether she
wanted the conference to be a Rule 5 status conference, where the Special Master would present
her tentative initial findings and conclusions. Id.

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       On October 24, 2013 at the previously scheduled status conference, petitioner’s counsel
informed Special Master Hamilton-Fieldman that she would no longer be representing Dr.
Evans. Scheduling Order, ECF No. 33. Petitioner requested 70 days to attempt to find other
counsel and solicit a medical expert and thus, Special Master Hamilton-Fieldman set a deadline
of January 2, 2014 for a motion to withdraw and a status report. Id. Several motions for
extensions of time were filed by petitioner (Motions, ECF Nos. 34, 35) and several status
conferences were rescheduled (see Scheduling Orders (non-PDF), April 22, 2013, April 29,
2013, and May 7, 2013). A status conference was held on May 14, 2014. Scheduling Order, ECF
No. 37. Ms. Strait, appearing and reiterating that she would no longer be representing petitioner,
requested an additional 60 days for petitioner to obtain new counsel and an expert. Id. Special
Master Hamilton-Fieldman granted petitioner 77 days to obtain counsel and an expert, but
advised petitioner that she needed to find an expert who could opine on causation. Id.
Additionally, Ms. Strait needed to file a motion to withdraw as counsel before the next status
conference, which she set for July 29, 2014. Id.

        Petitioner filed a status report informing the court that Ms. Strait would be representing
her for the next scheduled status conference. Status Report, ECF No. 38. During the status
conference, Special Master Hamilton-Fieldman ordered petitioner to file a status report
identifying an expert who could opine on her behalf or if she is unable to obtain an expert,
inform the court of how she would like to proceed. Scheduling Order (non-PDF), dated August
20, 2014. Ms. Strait filed a motion to withdraw as petitioner’s attorney on October 3, 2014 which
was granted on October 7, 2014. Motion to Withdraw as Attorney, ECF No. 40; Order, ECF No.
43. Petitioner filed a status report on October 6, 2014, naming Andrew Downing as her new
attorney. Status Report, ECF No. 42.

        On October 13, 2014, petitioner moved to substitute Mr. Downing for Ms. Strait as her
counsel (Motion, ECF No. 44) which was granted in an order dated October 16, 2014. ECF No.
45. A status conference was held on November 12, 2014, with petitioner’s new counsel present.
Petitioner’s counsel informed the court that he was undecided as to what type of expert to retain,
so he planned on filing a witness statement to describe petitioner’s symptoms before and after
the allegedly causal vaccine. Scheduling Order, ECF No. 47.

        Petitioner’s counsel filed the witness statement December 9, 2014 (Notice of Filing
Witness Statement, ECF No. 48) followed by a status report on December 11, 2014. Status
Report, ECF No. 49. In the report, petitioner’s counsel stated that based on the witness statement,
he believed an amended petition needed to be filed. Id. He requested 14 days to file the amended
petition and 84 days to file an expert report. Id.

         Petitioner filed the amended petition reflecting the information supplied in the witness
statement on December 15, 2014. Amend. Pet., ECF No. 50. On February 10, 2015, petitioner
filed an expert report of Dr. David Axelrod (Notice of Filing, ECF No. 51), followed by medical
literature and materials referenced in the report on February 13, 2015. Notices of Filing, ECF
Nos. 52, 53. Respondent filed an expert report by Dr. Arnold Levinson and accompanying
medical literature on April 10, 2015. Expert Report, ECF No. 55.



                                                4
        A status conference was held on April 29, 2015, at which Special Master Hamilton-
Fieldman expressed concern regarding an unclear diagnosis, causation, the onset timing,
petitioner’s pre-existing conditions, and incomplete medical testing. Scheduling Order, ECF No.
56. Petitioner’s counsel noted that his client was resistant to further medical testing. Id.
Respondent therefore requested updated medical records and that a neuropsychological
evaluation be conducted to possibly help clarify petitioner’s diagnosis. Id. Special Master
Hamilton-Fieldman ordered petitioner to file any outstanding medical records by July 1, 2015, as
well as a status report outlining the next steps petitioner planned to take and a timeline for
possible neuropsychological evaluation or for additional expert reports. Id.

        Petitioner filed the additional medical records on June 8, June 10, June 30, July 23, and
August 19, 2015 along with a Statement of Completion on August 20, 2015. Medical Records,
ECF Nos. 57, 58, 59, 62, 65; Statement of Completion, ECF No. 66. Petitioner also filed a status
report on August 21, 2015, notifying the court that she had retained a neuropsychiatrist to
address the aforementioned issues raised by Special Master Hamilton-Fieldman, and provide an
evaluation and expert report regarding petitioner’s diagnosis. Status Report, ECF No. 67.

        This case was reassigned to the undersigned on October 22, 2015. Notice of
Reassignment, ECF No. 70. The undersigned reaffirmed the previous order and ordered
petitioner to file an expert report and a neuropsychological evaluation by no later than December
18, 2015. Scheduling Order (non-PDF), dated November 18, 2015. No reports or motions for
extension of time were filed by this deadline, so the undersigned issued an Order to Show Cause
requiring the filing of petitioner’s expert report and evaluation by February 5, 2016 or for
petitioner to show cause as to why this case should not be dismissed. Order to Show Cause, ECF
No. 71.

        Petitioner responded to the Order to Show Cause on February 5, 2016, advising the court
that the neuropsychological expert that petitioner’s counsel intended to perform the evaluation
and author a report, Dr. Cohen, had recently advised counsel that he would be unable to do so.
Response to Order to Show Cause, ECF No. 72. Petitioner’s counsel likewise stated that he had
been unable to reach his client to discuss this issue. Id. Nevertheless, he requested a status
conference for the parties to discuss how the case should proceed. Id.

         A status conference was held on March 7, 2016, following which the undersigned
ordered petitioner to file a status report advising the court on how petitioner wishes to proceed by
no later than April 6, 2016. Scheduling Order, ECF No. 73. Instead of filing a status report,
petitioner filed a motion seeking to dismiss her petition on April 12, 2016. Motion for Dismissal
Decision, ECF No. 74. In this motion, petitioner admits that she would be unable to meet her
burden of proof to demonstrate entitlement to compensation. Id. Petitioner also informed the
court of her intention to reject the Vaccine Program judgment against her and elect to file a civil
suit at a later date. Id.

        The undersigned issued a decision on April 13, 2016, determining that petitioner is not
entitled to compensation based on the evidence presented and this case was dismissed for
insufficient proof. Decision, ECF No. 75. The parties then filed a joint notice not to seek review



                                                 5
on April 21, 2016 (Joint Notice, ECF No. 76), and judgment was entered on April 25, 2016.
Judgment, ECF No. 77.

        On April 26, 2016, petitioner filed motions for attorneys’ fees for both present counsel,
Andrew Downing (Motion for Attorney’s Fees (Current Counsel), ECF No. 78) and for previous
counsel, Danielle Strait. Motion for Attorney’s Fees (Prior Counsel), ECF No. 79. For Mr.
Downing, petitioner requested $23,765.50 in fees and $5,805.53 in costs, for a total of
$29,571.03. ECF No. 78. For Ms. Strait, petitioner requested $25,673.00 in fees and $2,771.28 in
costs, for a total of $28,444.28. ECF No. 79. In aggregate, the overall total requested is
$58,015.31. On the same day, petitioner filed an election to file a civil action for this case.
Petitioner’s Election, ECF No. 80.

        Respondent filed a response to petitioner’s motion for attorney’s fees on May 10, 2016.
Response to Motion for Attorney’s Fees (“Response”), ECF No. 82. Respondent made no
specific objections to the attorneys’ hours or rates. Id. at 3. Instead, respondent simply offered a
range for total costs and fees in this case to be between $28,000 and $42,000. Id. While
respondent did cite cases involving both Mr. Downing and Maglio Christopher & Toale (Ms.
Strait’s firm), she did not provide any reasoning as to why the specific fees in this case should be
reduced. Id. Petitioner did not file a reply and therefore this matter is now ripe for decision.

                                       III.    Applicable Law.

         The Vaccine Act allows Special Masters to award attorney’s fees and costs to a petitioner
if the claim was brought in good faith and with “reasonable basis.” § 15(e). This is a
discretionary determination made by the Special Master, which does not require a line by line
analysis. Broekelschen v. Sec’y of HHS, 102 Fed. Cl. 719, 729 (2011). Rather, the fact finder
uses a lodestar method – multiplying a “reasonable” fee by the hours the attorney worked.
Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Schueman v. Sec’y of HHS, No. 04-693V, 2010
WL 3421956, at *3 (Fed. Cl. Spec. Mstr. Aug. 11, 2010). While respondent does have the
opportunity to object to said amount, pursuant to the Vaccine Rules, when no justification or
specific objection is proffered, her “representation carries very little weight.” Reyes v. Sec’y of
HHS, No. 14-953V, 2016 WL 2979785, at *1 (Fed. Cl. Spec. Mstr. Apr. 27, 2016) (specifically
when the attorneys of record supply detailed time sheets and present a complete case).

       The recent decision in McCulloch provides a framework for consideration of appropriate
ranges for attorney’s fees based on the experience of a practicing attorney. McCulloch v. Sec’y of
HHS, No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). According to
McCulloch, if an attorney has been practicing for 20 or more years, an appropriate range is
approximately $350 to $425 per hour. Id. If an attorney has 11 to 19 years of experience, $300 to
$375 is proper. Id. For 8 to 10 years of experience, $275 to $350 is appropriate. Id. For 4 to 7
years of experience, $225 to $300 is sufficient. Id. If an attorney has fewer than 4 years of
experience, he/she should receive between $150 to $225. Id.




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                                          IV.     Discussion.

       In her Response, respondent provided no specific objection to the amount requested or
the hours worked in this matter, but instead, offered a range which she believes is reasonable to
pay the attorneys who worked on this case. Response at 3. Respondent simply “reminded” the
Court of its discretion in awarding fees, quoting Fox v. Vice, and reiterated the fact that “the
determination of [attorney’s] fees ‘should not result in a second major litigation.”’ Response at
2-3.

        Andrew D. Downing is an accomplished attorney who has worked at Van Cott &
Talamante since 2014, but has over twenty years of litigation experience and has been practicing
in the Program for approximately fourteen years. Al-Uffi v. Sec’y of HHS, No. 13-956V, 2015
WL 6181669, at *11 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). Mr. Downing submitted an hourly
rate of $350 for himself and $195 for Jordan Redman, $100 for Robert Cain, $100 for Danielle
Avery and $195 for Courtney Van Cott; although the case was pending for approximately three
years, the rates remained consistent throughout the duration of the case. Motion for Fees
(Current Counsel) at 29. These rates have been upheld in a number of recent decisions by
multiple Special Masters. See e.g. Uscher v. Sec’y of HHS, No. 15-798V, 2016 WL 3670518
(Fed. Cl. Spec. Mstr. June 15, 2016); Allicock v. Sec’y of HHS, No. 15-485V, 2016 WL 3571906
(Fed. Cl. Spec. Mstr. May 26, 2016). Therefore, because Mr. Downing’s hourly rates have been
approved several times this year and fall into the McCulloch ranges for his tenure (approximately
20 years of service at a rate of $350 to $425), his request for fees shall be granted in full.

        Danielle A. Strait has been barred in the state of California since 2010 and in Washington
DC since 2014. ECF No. 79 at 59. Starting in August of 2009, Ms. Strait clerked for then-Chief
Special Master Golkiewicz of the Office of Special Masters (“OSM”), drafting substantive
decisions specifically relating to vaccine litigation. Id. at 60. Ms. Strait has been employed at the
Maglio Christopher & Toale since October of 2012, primarily litigating vaccine claims. Id. at 60-
61. Ms. Strait’s current hourly rate is $306, which was increased specifically because of the
McCulloch ruling. Id. at 61. However, her previous rate of $295, which was in effect from 2012-
2015, was the rate she charged in this case as her work occurred in 2014 (Motion for Fees (Prior
Counsel) at 4). This rate has been approved by various Special Masters. See e.g. Clowser v. Sec’y
of HHS, No. 13-2V, 2016 WL 3265894 (Fed. Cl. Spec. Mstr. May 23, 2016); O’Neill v. Sec’y of
HHS, No. 08-243V, 2015 WL 2399211 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Additionally, Ms.
Strait argues that attorney’s fees awards in the Program should be awarded on a case-by-case
basis, as Congress did not intend awards of fees to be in a “one size fits all manner.” ECF No. 79
at 62-63. This argument is supported not only by §15(e), but also by the decision in McCulloch,
which specifically lays out the criteria that attorney’s fees awards should be based on. Therefore,
because Ms. Strait’s hourly rate is well within the suggested McCulloch ranges ($225 to $300 for
4-7 years of experience, with consideration for Ms. Strait’s time spent as a law clerk at the OSM)
and has been recently affirmed because of her extensive experience in the Program, her
requested attorney’s fees will be granted in full.

       After reviewing the billing records, the amount of hours billed seems reasonable and I see
no erroneous or duplicative billing. See generally ECF Nos. 78-79. I therefore see no reason to
reduce petitioner’s application for fees and costs.


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                                   V.      Total Award Summary.

       I find that petitioner’s counsel’s request is reasonable and she is entitled to the requested
fees and costs pursuant to § 15(e)(1). For the reasons contained herein, a check in the amount
of $58,015.314 made payable jointly to petitioner, Erica Evans, M.D., and petitioner’s
current counsel of record, Andrew D. Downing, and petitioner’s previous counsel of
record, Danielle A. Strait, for petitioner’s attorney’s fees and costs shall be issued.

       The clerk of the court shall enter judgment in accordance herewith.5

IT IS SO ORDERED.


                                        s/Mindy Michaels Roth
                                        Mindy Michaels Roth
                                        Special Master




4
  This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs,” as well as fees for
legal services rendered. Furthermore, §15(e)(3) prevents an attorney from charging or collecting
fees (including costs) that would be in addition to the amount awarded herein. See generally
Beck v. Sec’y of HHS, 924 F.2d 1029 (Fed. Cir. 1991).
5
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. See Vaccine Rule 11(a).

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