    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 13-869V
                                      Filed: January 11, 2017

* * * * * * * *                  *   *   * * *            UNPUBLISHED
MATTHEW RUPPERT,                           *
                                           *              Special Master Gowen
              Petitioner,                  *
                                           *              Attorneys’ Fees and Costs
v.                                         *
                                           *
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
              Respondent.                  *
                                           *
* * * * * * * * * * * * *
Sylvia Chin-Caplan, Law Office of Sylvia Chin-Caplan, Boston, MA, for petitioner.
Debra F. Begley, United States Department of Justice, Washington, DC, for respondent.

                DECISION ON INTERIM ATTORNEYS' FEES AND COSTS1

        On November 1, 2013, Matthew Ruppert (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that as a
result of receiving the Human Papillomavirus (“HPV” or “Gardasil”), Hepatitis A, and/or
influenza (“Flu”) vaccines on December 8, 2012, he developed Multiple Sclerosis (“MS”).
Petition at Preamble, Amended Petition at Preamble.

       Petitioner was represented by Thomas P. Gallagher until December 22, 2015, when
Ronald C. Homer, or Conway, Homer & Chin-Caplan (“CHCC”), was substituted as counsel.
Interim attorneys’ fees and costs were awarded to Mr. Gallagher prior to his withdrawal. See

1
 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
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).

2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-10 to 34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C.A. § 300aa.
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Decision, dated October 22, 2015. On December 15, 2016, petitioner filed a motion to substitute
Sylvia Chin-Caplan, of the Law Office of Sylvia Chin-Caplan, in place of CHCC, along with
second motion for interim attorneys’ fees and costs for CHCC.

         Petitioner requests $54,406.50 in attorneys’ fees and $10,660.31 in attorneys’ costs, for a
total interim fees and costs request of $65,066.81. Petitioners’ (“Pet.”) Application (“App.”) at
1. Respondent filed a response to petitioner’s application on January 3, 2017. Respondent states
that she “defers to the Special Master to determine whether or not petitioner has met the legal
standard for an interim fees and costs award,” and that “[s]hould the Special Master conclude
that a second award of interim fees and costs is appropriate, respondent respectfully requests that
the special master exercise his discretion and determine a reasonable award for attorneys’ fees
and costs.” Respondent’s Response at 3-4.

  I.   Interim Attorneys’ Fees and Costs

        The Vaccine Act permits an award of reasonable attorneys’ fees and costs under 42
U.S.C. section 300aa-15(e). Interim attorneys’ fees and costs are permissible under the Vaccine
Act. See Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); see
also Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). When a
petitioner has yet to prove entitlement, a special master “may award an amount of compensation”
for reasonable attorneys’ fees and costs “if the special master . . . 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)(B); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). In this case, respondent states that
she “defers to the Special Master to determine whether or not petitioner has met the legal
standard for an interim fees and costs award,” but is otherwise satisfied that the statutory
requirements for an award of attorneys’ fees and costs are met. Resp. Response at 3. The
undersigned finds that this claim was brought in good faith and that a reasonable basis for this
claim exists, as set forth in the October 22, 2015, interim fee decision.

        Ronald C. Homer, of CHCC was substituted as counsel in place of Thomas Gallagher on
December 22, 2015. A status conference was held January 13, 2016, with Sylvia Chin-Caplan
appearing on behalf of CHCC. During that status conference, petitioner’s counsel stated that
petitioner wished to file a supplemental expert report, and petitioner filed a report from Dr. Carlo
Tornatore, a neurologist, on May 5, 2016. See Pet. Ex. 51. Respondent filed a supplemental
expert report from Dr. Soe Mar on August 5, 2016. See Resp. Ex. C. A Rule 5 status conference
was held on September 14, 2016, after which the parties were instructed to report on the
possibility of settlement and, if the case could not be settled, to file supplemental expert reports
addressing the questions identified during the status conference. Order, dated September 16,
2016. On October 31, 2016, and December 15, 2016, petitioner filed status reports stating that
the parties have had preliminary discussions regarding settlement, but petitioner is awaiting the
results of a neuropsychological evaluation in order to prepare a settlement demand. As directed
in the September 16, 2016, Order, the parties are exploring dates for an entitlement hearing in
November 2017. Sylvia Chin-Caplan left CHCC, and was substituted as the attorney of record
on December 15, 2016.




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        The undersigned finds an award of interim attorneys’ fees and costs appropriate at this
time. Several cases have recognized the withdrawal of counsel as a circumstance under which an
award of interim fees may be appropriate. See, e.g. Rehn v. Sec’y of Health & Human Servs.,
126 Fed. Cl. 86, 92 (2016) (the special master may consider whether the attorney has withdrawn
or been discharged as a factor pertinent to awarding interim fees, particularly where there may be
an indefinite delay until the matter is ultimately resolved); Woods v. Sec’y of Health & Human
Servs., No. 10-377V, 105 Fed. Cl. 148, 154 (2012) (“The Special Master reasonably concluded
that delaying a fee award to counsel who had ended their representation for an indeterminable
time until the case was resolved sufficed to constitute the type of ‘circumstances’ to warrant an
interim fee award.”); Bear v. Sec’y of Health & Human Servs., No. 11-362V, 2013 WL 691963,
at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) (“the fact that counsel is withdrawing can be one
important factor, supporting an interim award”); Smirniotis v. Sec’y of Health & Human Servs.,
No. 14-617V, 2016 WL 859057, at *2 (Fed. Cl. Spec. Mstr. Feb. 12, 2016) (“paying attorneys
when their service is complete is appropriate”).

        In this case, any entitlement hearing would not take place for another eleven months, and
will require petitioner to file at least one additional expert report. A decision regarding
entitlement would not be rendered for at least several months after the hearing, and the parties
would then need even more time to resolve damages. Thus, if the case proceeds to hearing, the
ultimate resolution of the case will not be until well into 2018 at the earliest. Although the
parties are again discussing settlement, even if settlement is reached, it is uncertain if or when
such an agreement might be reached. The undersigned finds an award of interim fees at this time
appropriate in order to resolve CHCC’s involvement with the case given the firm’s withdrawal as
petitioner’s counsel and the fact that it is uncertain when the case will be resolved.

   a. Reasonable Attorneys’ Fees

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.

        Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y or Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cl. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is
“well within the special master’s discretion to reduce the hours to a number that, in his
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of

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Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). A special master need not engage
in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v.
Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).

          i.   Hourly Rates

       Petitioner requests the following hourly rates for 2015 through 2016:

       Christina Ciampolillo: $300
       Sylvia Chin-Caplan: $400
       Ronald Homer: $400
       Paralegals: $135

See generally Pet. App., Tab A. The issue of reasonable 2014-2015 forum rates for the Conway,
Homer & Chin-Caplan firm was recently ruled upon by the undersigned in McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). The requested rates are consistent with the rates awarded in McCulloch, and the
undersigned finds them reasonable. See McCulloch, 2015 WL 5634323, at *21.

         ii.   Hours Expended

       Petitioners request compensation for 7.00 hours of work performed by Ms. Ciampolillo,
112.20 hours for Ms. Chin-Caplan, 2.40 hours for Mr. Homer, and 47.90 hours for paralegals.
See Pet. App., Tab A at 29. On review of the billing record, the undersigned finds the hours
expended reasonable.

    b. Costs

        Petitioner requests a total of $10,660.31 in attorneys’ costs. Pet. App. at 1; Pet. App.,
Tab A at 28. The requested costs consist primarily of medical record fees and the cost of
obtaining an expert report. Pet. App., Tab A, at 28; Pet. App., Tab B. The undersigned finds
these requested costs reasonable.

 II.   Conclusion

         Upon review of the documentation of the requested attorneys’ fees and costs, and based
on his experience with the Vaccine Act and its attorneys, the undersigned finds the requested
total of $65,066.81 reasonable.

       The undersigned awards attorneys’ fees and costs as follows:

            (1) A lump sum of $65,066.81 in the form of a check payable jointly to petitioner
                and petitioner’s counsel of record, Ronald C. Homer, of Conway, Homer &
                Chin-Caplan, P.C., for attorneys’ fees and costs.




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       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.3

        IT IS SO ORDERED.

                                                          s/Thomas L. Gowen
                                                          Thomas L. Gowen
                                                          Special Master




3
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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