     In the United States Court of Federal Claims
                            Case No. 01-707V
                          (Filed: April 16, 2013)1

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MICHAEL STEPHEN SHAW,

                     Petitioner,

v.                                               Vaccine Act; Interim fees;
                                                 Avera; McKellar
SECRETARY OF HEALTH AND
HUMAN SERVICES,

                     Respondent.

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       Ronald C. Homer, Boston, MA, for plaintiff.

       Voris E. Johnson, United States Department of Justice, Civil Division,
Washington, D.C., with whom were Tony West, Assistant Attorney General,
Mark W. Rogers, Acting Director, Vincent J. Matankoski, Acting Deputy
Director, and Catharine E. Reeves, Assistant Director for defendant.
                              ____________

                                OPINION
                              ____________

       This is an action brought under the National Vaccine Injury
Compensation Program. See 42 U.S.C. §§ 300aa-1 to -34 (2006) (the “Act”).
The matter is still pending before the Office of Special Masters awaiting a
decision on the merits. Before the court now, however, is a motion for review


       1
        In accord with the Rules of the Court of Federal Claims, App. B, Rule
18(b), this opinion was initially filed under seal on February 14, 2012. The
parties were afforded fourteen days in which to propose redactions. Neither
party proposed any redactions.
of a decision by the special master to award only some of the fees and costs
sought by petitioner on an interim basis. Petitioner requested over $175,000
and was awarded a little less than $13,000. The matter is fully briefed. Oral
argument is deemed unnecessary. For the reasons set out below, we deny the
motion for review.
                               BACKGROUND

        The petition for compensation was filed in December 2001. It became
part of a large group of cases involving the assertion of injury flowing from
administration of the Hepatitis B vaccine. The resulting omnibus proceeding
understandably delayed resolution of the associated cases, including this one.
A hearing on the merits was held on March 12, 2008. Petitioner filed his
request for an award of interim fees and costs on August 19, 2008. He sought
approximately $175,000. The government opposed the fee and cost request as
“excessive,” agreeing only that it would not dispute approximately $13,000.
On March 27, 2009, the special master awarded $12,632.59 and denied the rest
of the amount sought, at least on an interim basis. The special master noted
that she anticipated “vigorous” objection from respondent at the time petitioner
put in his final fee request and that pausing to assess in detail the disputed
portions of the interim fee request would “further delay a decision on
petitioner’s petition for fees and costs.” Shaw v. Sec’y Health & Human
Servs., No. 01-707V, 2009 U.S. Claims LEXIS 188, *8-9 (Fed. Cl. Spec. Mstr.
Mar. 27, 2009).

        Petitioner moved for reconsideration of the March 27, 2009 interim fee
decision. The special master denied the motion for reconsideration, and wrote
that “the undersigned is preparing a ruling on entitlement in this matter.” Shaw
v. Sec’y Health & Human Servs., No. 01-707V, 2 (Fed. Cl. Spec. Mstr. May
1, 2009) (order denying motion for reconsideration). In explaining her
decision to defer consideration of anything other than the undisputed amounts,
the special master explained that “A significant issue in the entitlement ruling
is whether [petitioner’s expert] Dr. Tenpenny, as an osteopathic doctor and one
of petitioner’s many treating physicians was qualified to opine on the cause of
petitioner’s neurologic injury.” Id. She went on to write that “[t]he
undersigned has expressed serious concerns . . . related to the reasonableness
of the fees sought, particularly as it relates to petitioner’s expert, Dr.
Tenpenny.” Id. at 3.

       The special master’s statements were prophetic in two respects. First,
as predicted, the special master issued her opinion on the merits denying the

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petitioner’s claim on August 31, 2009, fairly soon after the decision on
reconsideration. Also as anticipated, she rejected Dr. Tenpenny’s testimony
as illogical and concluded that Dr. Tenpenny was not qualified to testify as an
expert. She also emphasized the link between the merits decision and attorney
fees:

              The undersigned observes here, and will address in
       further detail upon submission of petitioner’s request for
       attorneys’ fees and costs, that although presented as a treating
       doctor, Dr. Tenpenny effectively offered an expert opinion
       without the requisite qualifications to do so. On this ground, the
       reasonableness of the requested fees for Dr. Tenpenny, when
       submitted, will be closely examined.

Shaw v. Sec’y Health & Human Servs., No. 01-707V, 2009 U.S. Claims
LEXIS 534, *84 n.40 (Fed. Cl. Spec. Mstr. Aug. 31, 2009).

        Petitioner subsequently moved for reconsideration of the merits
decision based on new evidence that was admittedly previously available.
That request was denied and petitioner sought review of the special master’s
merits decision here. We rejected the petition for review insofar as it
challenged the merits of the causation determination, but, in the interest of
justice, we remanded for the special master to consider the new evidence.
Shaw v. Sec’y Health & Human Servs., 91 Fed. Cl. 715 (2010). The merits
redetermination on remand is pending before the Office of Special Masters.

                                DISCUSSION

        Petitioner’s principal argument is that litigation of vaccine claims has,
in general, become more complex than anyone, including Congress,
anticipated. This can lead to long periods between filing and disposition and,
in many cases, the accrual of substantial costs and fees. No doubt that is true.
We note that in this case, however, the one which matters, petitioner sought a
stay of this action pending the outcome of the omnibus proceedings. That stay
lasted five years. Moreover, of the 164 entries on the docket sheet as of this
ruling, more than two dozen relate only to the matter of interim fees.

        Petitioner also contends that it was arbitrary and capricious for the
special master not to proceed to resolution of the interim fee request in its
totality because “she will have no more evidence with respect to the interim

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fee request than she does today.” Pet’r’s Mem. in Supp. Mot. Review 11,
ECF. No. 91. According to petitioner, the special master has, in effect, failed
to exercise her discretion by deferring to the respondent’s unexamined
opposition.

        Respondent argues that none of the special circumstances cited in Avera
v. Secretary of Department of Health & Human Services, 515 F.3d 1343 (Fed.
Cir. 2008), were present to warrant an interim award in this case.2 It also
contends that the special master was well within her discretion to award only
those fees which were uncontested and to undertake a full consideration only
after an examination of the evidence in the context of ruling on the merits.

       In Avera, the Federal Circuit held that “subsection 300aa-15(f)(1) did
not limit the award of attorneys’ fees only to situations where an election has
been made. . . . There is nothing in the Vaccine Act that prohibits the award of
interim fees.” 515 F.3d at 1351. In its decision in this action holding that we
have jurisdiction to consider a challenge to a denial of interim fees, the Federal
Circuit noted that a petitioner is entitled to attorneys’ fees “as long as he or she
brings the action in good faith and with a reasonable basis, regardless of the
ultimate outcome of the case.” Shaw, 609 F.3d at 1377. With respect to
interim fees, it noted that 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.” Id. (quoting Avera, 515 F.3d at 1352).

       “Often,” however, is not “always.” The upshot of the Avera and Shaw
decisions is that, because fees may be recoverable even if the petitioner
ultimately loses, and because the special master may be in a position to assess
the bona fides of the claim even before the end of the litigation, then, under
appropriate circumstances, the special master may award interim fees. Factors
recognized by the Federal Circuit in Avera as relevant to consider include
whether the litigation has been protracted or whether it was necessary to
engage costly experts. Avera, 515 F.3d at 1352. Thus, as we noted in
McKellar v. Secretary of Health & Human Services, if “mere good faith and



       2
         Respondent’s principal argument in opposition to the interim fee
request initially was that the court lacked jurisdiction to hear a decision of the
special master with respect to an interim request for fees. That theory was
ultimately rejected by the Federal Circuit. See Shaw v. Sec’y Health & Human
Servs., 609 F.3d 1372, 1378 (Fed. Cir. 2010).

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reasonable basis were all that is necessary, the Avera factors become
superfluous and interim fees would be the norm.” 2011 U.S. Claims LEXIS
2209, *12 (Fed. Cl. Nov. 4, 2011) (construing Avera to require “that some
special showing is necessary to warrant interim fees, including but not limited
to the delineated factors of protracted proceedings, costly experts, or undue
hardship”). As we intimated in McKellar, there may well be other relevant
factors, but by no means does Avera hold that interim fees are presumptively
available merely because the vaccine program in general has become more
complex than Congress anticipated.

          Most relevant to the present dispute, however, was the Federal
Circuit’s observation in this case: “[t]he special master may determine that she
cannot assess the reasonableness of certain fee requests prior to considering
the merits of the vaccine injury claim.” Shaw, 609 F.3d at 1377. That is
precisely what the special master did in reserving ruling on the bulk of
petitioner’s interim fee request. She had misgivings about the testimony of Dr.
Tenpenny and those misgivings later lead to her denial of relief. That
skepticism about Dr. Tenpenny was not the basis for our remand. Presumably,
therefore, it was not necessary to engage Dr. Tenpenny. We note in particular
some of the cost items as to which the special master expressed concern: the
$25,800 which Dr. Tenpenny billed for expert services; the $1,169.50 spent on
airline tickets for Dr. Tenpenny to fly from Cleveland to Houston to Salt Lake
City on March 16, 2008, when the entitlement hearing was held in Sacramento
on March 12, 2008; and the $139.19 billed for two meals consumed by Dr.
Tenpenny and petitioner’s counsel. She also noted that 260 hours were billed
by petitioner’s counsel to prepare for a one day hearing. Her reluctance to rule
on whether such items were recoverable until she ruled on entitlement is
certainly reasonable.

                                CONCLUSION

       The special master’s decision to defer consideration of most of the
interim fee and cost request until final resolution of the merits was well within
her reasonable discretion. The motion for review of the orders of March 27,
2009 and May 1, 2009 is denied.


                                            s/ Eric G. Bruggink
                                            ERIC G. BRUGGINK
                                            Judge

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