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

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CHRISTINA OSENBACH,                 *
and BRYAN OSENBACH,                 *      No. 16-419V
parents of B.O., a minor,           *      Special Master Christian J. Moran
                                    *
                    Petitioner,     *      Filed: March 29, 2017
                                    *
v.                                  *      Attorneys’ fees and costs;
                                    *      interim award not appropriate.
SECRETARY OF HEALTH                 *
AND HUMAN SERVICES,                 *
                                    *
                    Respondent.     *
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Sylvia Chin-Caplan, Law Office of Sylvia Chin-Caplan, Boston, MA, counsel for
petitioners
Ronald C. Homer and Christina Ciampolillo, Conway, Homer, P.C., Boston, MA,
former counsel for petitioners;
Michael P. Milmoe, United States Dep’t of Justice, Washington, DC, for
respondent.

                     UNPUBLISHED DECISION DENYING
                  INTERIM ATTORNEYS’ FEES AND COSTS 1

       Initially represented by Mr. Ronald Homer of the law firm then known as
Conway Homer & Chin-Caplan, P.C., Christina and Bryan Osenbach filed a
petition on April 4, 2016, alleging that pneumococcal (“PCV”) and inactivated
poliovirus (“IPV”) vaccinations harmed their minor child B.O. The Osenbachs
sought compensation from the National Childhood Vaccine Injury Compensation
Program, found at 42 U.S.C. § 300aa−10 through 34 (2012).
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         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.
       While the question of whether the vaccinations harmed B.O. remains
pending, a motion requesting an award of attorneys’ fees and costs on an interim
basis was filed. Pet’rs’ Fee Appl’n, filed Dec. 16, 2016. The Secretary filed a
response. Resp’t’s Resp., filed Jan. 13, 2017. For the reasons explained below, an
award of attorneys’ fees and costs is not appropriate at this time. Therefore, the
petitioner’s request is DENIED WITHOUT PREJUDICE.

                    I.   Brief Factual and Procedural History

      B.O.’s seizures began in July 2012. He was admitted to the emergency
room on July 26, 2012 and on October 11, 2012 for seizures. Exhibit 13 at 94,
exhibit 18 at 12. While hospitalized, he was seen by neurologist John Wooten.
The Osenbachs later followed up with him at several appointments. At age seven
months, Dr. Wooten placed B.O. on anticonvulsant medication. Exhibit 13 at 81,
85. Over the years B.O. has seen several physicians and undergone numerous
treatments for his neurological disorder. B.O. continues to have seizures and is
developmentally delayed. Exhibit 29 at 2.
       On April 17, 2013, B.O. received his PCV and IPV vaccines as part of his
twelve month physical. In the petition, the Osenbachs asserted that, as a result of
these vaccinations, B.O. suffered “a significant aggravation of an underlying
neurological condition.” Pet. at 2. According to timesheets submitted by the
Osenbachs, Ms. Osenbach first contacted the law firm of Conway Homer & Chin-
Caplan, P.C. on September 17, 2015. On behalf of the Osenbachs, the law firm
prepared and filed a petition with the Clerk’s Office on April 4, 2016, then
collected medical records, drafted affidavits, and filed these documents over the
course of several months.

       On November 29, 2016, the Secretary filed his report pursuant to Vaccine
Rule 4. The Secretary’s opinion was that the Osenbachs had not established
vaccine causation or that the vaccines, not “the natural course of the preexisting
condition,” harmed B.O. The Secretary noted that the Osenbachs had not
submitted an expert report to support the allegations and recommended that the
petition be dismissed. Resp’t’s Rep., filed Nov. 29, 2016, at 6-7. During the
ensuing status conference, a deadline was set for the submission of an expert
report. Order, filed Dec. 12, 2016.

       The pending motion for attorneys’ fees and costs on an interim basis was
filed on December 16, 2016, followed a few days later by a consented motion to

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substitute Sylvia Chin-Caplan as attorney of record in place of Mr. Homer. The
Secretary filed a response deferring to the undersigned for a determination of
whether an award of attorneys’ fees and costs at this juncture is appropriate. The
Secretary stated that, based on the current record, reasonable basis had not been
met noting that an expert report deadline remained outstanding. Resp’t’s Resp.,
filed Jan. 13, 2017, at 3. The Osenbachs did not submit a reply.

       Now represented by Ms. Chin-Caplan, the case moved forward. The
Osenbachs filed the expert report and curriculum vitae of Dr. Mahbubul Huq on
February 6, 2017. Exhibits 36, 37. About one month later, the cited literature was
filed. Exhibit 36, tabs A-MM.

                                     II.   Analysis

       Broadly speaking, resolving the pending motion for an award of attorneys’
fees and costs on an interim basis requires consideration of three issues. The first
is whether the petitioner is eligible for attorneys’ fees and costs. If the petitioner is
eligible, then the second issue is whether the petitioner should receive any
attorneys’ fees and costs at this time. The third question is, assuming that some
award is appropriate, what constitutes a reasonable amount in this case.

       Whether the Petitioner’s Case Satisfies the Requirements for an Award
                         of Attorneys’ Fees and Costs

       Petitioners who have not yet been awarded compensation may be entitled to
an award of attorneys’ fees and costs when “the petition was brought in good faith
and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa—15(e)(1).
Here, the expert report from Dr. Huq satisfies the reasonable basis standard. In
addition, the Osenbachs brought this petition in good faith.

        Whether the Petitioner Should be Awarded Attorneys’ Fees and Costs
                on an Interim Basis as a Matter of Discretion

       After a finding of good faith and reasonable basis, the special master may
exercise discretion in awarding attorneys’ fees and costs on an interim basis. Rehn
v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 91 (2016) (citing Cloer v.
Sec’y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012) (en banc),
aff’d, 133 S.Ct. 1886 (2012)); Friedman v. Sec’y of Health & Human Servs., 94
Fed. Cl. 323, 334 (2010) (ruling that special master acted within discretion in
denying an award of attorneys’ fees and costs on an interim basis). The Federal
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Circuit identified some factors for a special master to consider before awarding
attorneys’ fees and costs on an interim basis. These include: “protracted
proceedings,” “costly experts,” and “undue hardship.” Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1352. This list is illustrative, not exhaustive.

        The Osenbachs’ former counsel provided no reason why an award of
attorneys’ fees and costs at this juncture in the case is appropriate. For
completeness, the undersigned will briefly address the three factors listed in Avera.
Here, these factors do not balance in favor of an award of attorneys’ fees and costs
at this time.

       The first factor is “protracted proceedings.” The Conway, Homer & Chin-
Caplan, P.C. firm filed the Osenbachs’ petition on April 4, 2016. To date, about
one year since the filing of the petition, the litigation has moved at a typical pace.
The litigation has not been protracted.

       Next is an assessment of “costly experts.” A review of the timesheets
reveals that a search for an expert was conducted, an expert identified, and a
retainer of $2,000 paid for the expert that was ultimately used by the Osenbachs in
this case. No further costs related to an expert were expended.

       The next factor is “undue hardship.” While Avera did not explain whether
the hardship in waiting for a decision on attorneys’ fees and costs until after the
merits resolved should fall on the petitioner, or the petitioner’s attorney, at least
one judge of the Court of Federal Claims has found that the burdened person may
be the petitioner’s attorney. Rehn, 126 Fed. Cl. at 94. Here, further analysis as to
whether a delay in payment will constitute a “hardship” and if that hardship is
“undue” is not required because the Osenbachs’ former counsel has not made this
argument.

        The factors do not balance in favor of an award of attorneys’ fees and costs
at this juncture in the litigation and the Conway, Homer, & Chin-Caplan, P.C. firm
has not presented a showing to warrant interim fees. See McKellar v. Sec’y of
Health & Human Servs., 101 Fed. Cl. 297, 301 (2011). The undersigned has opted
to act on the motion at this time explicitly for two reasons. First, the undersigned’s
resolution of the motion provides a basis on which the Osenbachs could file a
motion for review. See Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372,
1376 (Fed. Cir. 2010). Second, the undersigned wishes to advise attorneys
representing petitioners in future cases that they need to justify an interim award
with more than a conclusory argument that they are entitled to such an award.
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      Because an award is deemed inappropriate at this time, there is no need to
determine a reasonable amount in this case.

                                III.   Conclusion

       For these reasons, the undersigned declines to exercise discretion to award
the Osenbachs reasonable attorneys’ fees and costs on an interim basis. This
decision’s denial of an award of attorney’s fees and costs now does not constitute a
denial of fees and costs entirely. If the litigation becomes protracted, the
Osenbachs may wish to request, again, an award of attorneys’ fees and costs on an
interim basis. Alternatively, the Osenbachs may defer a motion for attorneys’ fees
and costs until the end of the case. The December 16, 2016 motion for an award of
attorneys’ fees and costs on an interim basis is DENIED WITHOUT PREJUDICE.

      IT IS SO ORDERED.

                                             S/ Christian J. Moran
                                             Christian J. Moran
                                             Special Master




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