Lucas v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-1525V

Filed: March 25, 2025

ELIZABETH LUCAS,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Courtney Christine Jorgenson, Siri & Glimstad, LLP, Phoenix, AZ, for petitioner.

Andrew Donald Downing, Downing, Allison, & Jorgenson, Phoenix, AZ, former counsel

for petitioner.

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, former counsel for petitioner.

Rachelle Bishop, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On December 18, 2024, petitioner’s departing counsel, Mr. Downing, filed the

instant motion for an award of interim attorneys’ fees and costs in the amount of

$49,190.84. (ECF No. 68.) An additional motion for an award of interim attorneys’ fees

and costs in the amount of $18,581.51 had previously been filed by petitioner’s initial

counsel, Mr. Brazil. (ECF No. 41.) For the reasons discussed below and resolving both

motions, I award petitioner interim attorneys’ fees and costs in the reduced amount of

amount of $65,346.10.

1

Because this document contains a reasoned explanation for the action taken in this case, it must be

made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government

Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic

Government Services). This means the document will be available to anyone with access to the

internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact

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 redact such material from

public access.

1

I. Procedural History

On October 2, 2019, petitioner filed a petition under the National Childhood

Vaccine Injury Act, 42 U.S.C. § 300aa-10, et seq. (2012),2 alleging that she suffers a

right shoulder injury related to vaccine administration (“SIRVA”) as a result of a tetanus-

diphtheria-pertussis (“Tdap”) vaccination received on July 11, 2018. (ECF No. 1.) The

case was originally assigned to the Special Processing Unit (“SPU”). (ECF Nos. 17-18.)

At the outset of the case, petitioner was represented by Paul R. Brazil. (ECF No.

1.) Mr. Brazil filed medical records on behalf of petitioner between October of 2019 and

June of 2020. (ECF Nos. 1, 11, 15, 21; Exs. 1-13.) Thereafter, respondent filed a Rule

4(c) Report, recommending against compensation. (ECF No. 29.) Petitioner

subsequently filed additional medical records, as well as records pertaining to a

worker’s compensation claim and a short-term disability claim. (ECF Nos. 31, 39; Exs.

14-16.)

On May 12, 2023, Andrew D. Downing was substituted in place of Mr. Brazil as

petitioner’s counsel of record. (ECF No. 42.) Just prior to that substitution, Mr. Brazil

filed a motion seeking an award of interim attorneys’ fees and costs totaling $18,581.51,

and respondent filed a response deferring to the court’s discretion with regard to the

appropriateness and amount of interim attorneys’ fees and costs to be awarded. (ECF

Nos. 41, 44.) The case was subsequently reassigned to the undersigned on June 21,

2023. (ECF Nos. 45-46.) Thereafter, I issued an order deferring ruling on petitioner’s

motion for interim attorneys’ fees and costs “until such time as an award of attorneys’

fees and costs is otherwise made to current counsel of record, whether on a final or

interim basis.” (ECF No. 54.)

On June 22, 2023, I issued a Rule 5 order, providing preliminary guidance to the

parties. (ECF No. 47.) In pertinent part, I advised petitioner to pursue a cause-in-fact

claim, which would likely be based on significant aggravation of her preexisting shoulder

dysfunction. (Id. at 1-2.) In August of 2023, petitioner filed an expert report by

orthopedic surgeon Jerome G. Piontek, M.D., as well as accompanying medical

literature. (ECF Nos. 49-50; Exs. 17-23.) Respondent filed a responsive expert report

by orthopedic surgeon Geoffrey D. Abrams, M.D., as well as accompanying medical

literature, in December of 2023. (ECF Nos. 53, 59; Exs. A-B.) Thereafter, the parties

filed another round of expert reports. (Exs. 24, C.) On August 12, 2024, petitioner filed

a motion for ruling on the written record pursuant to Vaccine Rule 8(d). (ECF No. 64.)

Respondent filed his response on September 30, 2024, and petitioner filed her reply on

October 15, 2024. (ECF Nos. 66-67.)

On December 18, 2024, petitioner filed the instant motion seeking an award of

interim attorneys’ fees and costs. (ECF No. 68.) New counsel of record was thereafter

2

Within this decision, all citation to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.

§ 300aa-10-34.

2

substituted for Mr. Downing.3 Respondent filed his response to petitioner’s motion on

January 15, 2025, and petitioner filed her reply on January 17, 2025. (ECF Nos. 71-72.)

Petitioner’s motion for interim attorneys’ fees and costs is now ripe for resolution.

II. Party Contentions

In the instant motion, petitioner explains that counsel of record at the time, Mr.

Downing, is discontinuing practice in the program in order to accept an appointment to a

position within the government. (ECF No. 68, p. 2.) She requests an interim attorneys’

fees and costs award of $49,190.84, constituting $34,489.50 in attorneys’ fees and

$14,701.344 in costs. (Id. at 19.) The motion also incorporates the prior interim

attorneys’ fees and costs request of $18,581.51, constituting $17,921.30 in fees and

$660.21 in costs, to be paid to petitioner’s prior counsel, Mr. Brazil. (Id. at n.2; ECF No.

41, p. 2.)

In response, respondent argues that petitioner’s claim lacks a reasonable basis.

(ECF No. 71, p. 17.) With regard to petitioner’s SIRVA claim, respondent asserts that

Dr. Piontek made broad conclusions and primarily relied on petitioner’s own subjective

reports, which are contradicted by contemporaneous medical records. (Id. at 18-19.)

He further asserts that petitioner indisputably suffered from preexisting shoulder pain

and dysfunction, and that her pre- and post-vaccination conditions reflect a chronic

cervical and shoulder pathology. (Id. at 19-25.) He thus contends that petitioner cannot

prove that her injury was limited to the shoulder in which the vaccine was administered

or that no other condition or abnormality explains her condition. (Id. at 26-29.) He

further disputes onset, primarily relying on petitioner’s first post-vaccination encounter,

during which a “multiple month history of insidious onset of right shoulder pain” was

noted. (Id. at 25 (citing Ex. 2, pp. 9, 12-13).) Regarding a cause-in-fact claim,

respondent asserts that petitioner has neither alleged a specific shoulder injury, apart

from SIRVA, nor presented a causal theory connecting her specific shoulder injury to

the subject vaccination. (Id. at 30-33.) He claims that any significant aggravation claim

lacks reasonable basis for the same reasons. (Id. at 33-34.)

Petitioner's reply emphasizes that her expert is a board-certified orthopedic

surgeon who offered “well-reasoned opinions” supporting petitioner’s right-sided SIRVA

claim and rebutting respondent’s expert’s opinions. (ECF No. 72, pp. 2-3.) She further

cites medical records in which petitioner attributed her shoulder symptoms to her

vaccination, as well as medical records containing a history of present illness

associating the vaccination with petitioner’s shoulder symptoms. (Id. at 4-5 (citing Ex. 2,

p. 13; Ex. 3, pp. 16, 21, 26, 36-37).) Thus, petitioner argues that “this record clearly

supports finding that both [good faith and reasonable basis] exist.” (Id. at 8.) She also

3

Initially, Wendy Cox was substituted for Mr. Downing; however, Courtney Jorgenson was subsequently

substituted as counsel of record. (ECF Nos. 70, 73.) Both are associated with the same firm.

4

In her motion, petitioner states that Mr. Downing incurred $17,701.34 in total litigation costs. (ECF No.

68, p. 19.) However, review of the itemized billing records reveal that Mr. Downing’s actual costs totaled

$14,701.34. (Id. at 34.)

3

notes that respondent offered no specific objection to the reasonableness of the hourly

rates requested or the amount of hours billed. (Id.)

III. Analysis

a. An Award of Interim Attorneys’ Fees and Costs is Appropriate

Section 15(e)(1) of the Vaccine Act allows for the special master to award

“reasonable attorneys’ fees, and . . . other costs.” § 300aa-15(e)(1)(A)-(B). Petitioners

are entitled to an award of reasonable attorneys’ fees and costs if they are entitled to

compensation under the Vaccine Act or, even if they are unsuccessful, if the special

master finds that the petition was filed in good faith and with a reasonable basis. Avera

v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Additionally,

the Federal Circuit has concluded that interim fee awards are permissible and

appropriate under the Vaccine Act, although there is no presumption of entitlement to

such fees. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1374-75 (Fed. Cir.

2010); Avera, 515 F.3d at 1352; McKellar, 101 Fed. Cl. at 300. In Shaw, the Federal

Circuit clarified that, “[w]here the claimant establishes that the cost of litigation has

imposed an undue hardship and there exists a good faith basis for the claim, it is proper

for the special master to award interim attorneys’ fees.” 609 F.3d at 1375. The fact that

an attorney is withdrawing may be a circumstance that warrants an interim award, but it

is not necessarily so. Compare Wood v. Sec’y of Health & Human Servs., 105 Fed. Cl.

148, 154 (2012), with McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297,

302 (2011).

“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human

Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A

petitioner acts in “good faith” when he or she holds an honest belief that a vaccine injury

has occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL

4410030, at *5-6 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Here, respondent does not

challenge the “good faith” requirement (ECF No. 71, p. 1), and there is no reason to

question petitioner’s good faith belief that she has suffered a vaccine injury.

Instead, respondent argues that petitioner’s request for interim attorneys’ fees

and costs should be denied for lack of reasonable basis. (ECF No. 71, pp. 1, 17.)

“Reasonable basis” is an objective standard, Cottingham v. Sec’y of Health & Human

Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020), which “may include an examination of a

number of objective factors, such as the factual basis of the claim, the medical and

scientific support for the claim, the novelty of the vaccine, and the novelty of the theory

of causation.” Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289

(2018). Although reasonable basis for a claim may have existed at the time the petition

was filed, it may subsequently be determined that there is no reasonable basis for the

claim if further record development reveals that the claim lacks merit. Perreira v. Sec’y

of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (“[W]hen the

reasonable basis that may have been sufficient to bring the claim ceases to exist, it

cannot be said that the claim is maintained in good faith.”). The burden is on petitioner

4

to affirmatively demonstrate a reasonable basis for her claim. McKellar, 101 Fed. Cl. at

305. Petitioner must present “more than a mere scintilla but less than a preponderance

of proof” to satisfy her burden. Cottingham, 971 F.3d at 1346.

In her petition, petitioner alleged that she suffered a right-sided SIRVA as a result

of her July 11, 2018 Tdap vaccination. (ECF No. 1.) Accompanying the petition,

petitioner filed medical records that provide at least some objective evidence to support

her claim. For instance, petitioner filed a record of vaccination demonstrating that a

Tdap vaccine was administered intramuscularly in her right deltoid on July 11, 2018.

(Ex. 1.) She also presented contemporaneous medical records to support that she

complained of shoulder symptoms following vaccination and that she associated those

symptoms with the subject vaccination. (See, e.g., Ex. 2, p. 13 (handwritten new

condition form, submitted on July 20, 2018, reporting “extreme pain in arm” with a date

of injury listed as July 11, 2018 and a date of onset listed as “7/11/2018 – tetanus

shot”); Ex. 3, p. 26 (July 23, 2018 orthopedist encounter noting right shoulder pain that

“began on 7/11/2018 after a tetanus shot”).) Petitioner also filed an affidavit supporting

her claim. (Ex. 8.) After respondent contested petitioner’s showing with regard to all

four of the Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA in his Rule

4 report (ECF No. 29), and I suggested in the Rule 5 order that petitioner “will need to

file an expert report to support a cause-in-fact claim in this case, likely based on

significant aggravation” (ECF No. 47, p. 2), petitioner submitted an expert report by Dr.

Piontek, along with accompanying medical literature, supporting her claim. (Exs. 17-

23.) Dr. Piontek has been a board-certified orthopedic surgeon since 1988, and he

maintained an active clinical practice in orthopedic surgery for over thirty-five years

before eventually retiring. (Ex. 18; Ex. 17, p. 1.) He averred that, throughout his career,

he treated thousands of patients with shoulder injuries and administered thousands of

shoulder injections. (Ex. 17, p. 1.) As such, Dr. Piontek is qualified to opine on the

alleged shoulder injury.

Although respondent’s expert, also a board-certified orthopedic surgeon, opined

that petitioner suffered from cervical spine pathology, this competing medical opinion

does not necessarily defeat reasonable basis. Prior program cases have litigated the

distinction between SIRVA and cervical radiculopathy. See, e.g., Layne v. Sec’y of

Health & Human Servs., No. 18-57V, 2022 WL 3225437, at *17-22 (Fed. Cl. Spec. Mstr.

July 12, 2022) (concluding that the petitioner's cervical radiculopathy defeated her Table

claim, but not her cause-in-fact claim); Truett v. Sec’y of Health & Human Servs., No.

17-1772V, 2022 WL 17348386, at *16-23 (Fed. Cl. Spec. Mstr. Nov. 1, 2022)

(concluding that the petitioner’s condition was best explained as cervical radiculopathy

unrelated to vaccination, defeating both her Table claim and her cause-in-fact claim).

Even where petitioners have ultimately failed to distinguish a shoulder injury from

cervical radiculopathy, they have still been able to recover attorneys’ fees and costs.

See, e.g., Durham v. Sec’y of Health & Human Servs., No. 17-1899V, 2024 WL

4369198 (Fed. Cl. Spec. Mstr. Sept. 6, 2024); Truett v. Sec’y of Health & Human Servs.,

No. 17-1772V, 2024 WL 795176 (Fed. Cl. Spec. Mstr. Jan. 29, 2024). Here, without

forecasting whether petitioner will ultimately be entitled to compensation or not, there is

5

sufficient evidence within petitioner’s medical records and expert submission to support

a reasonable basis for the claim.

Additionally, although an attorneys’ withdrawal is not inherently an undue

hardship that triggers an award of interim attorneys’ fees and costs, McKellar, 101 Fed.

Cl. at 302, I exercise my discretion to award interim attorneys’ fees and costs, given the

overall amount at issue, the length of time this case has been pending, and the fact that

petitioner’s former counsel, Mr. Downing, is winding down his practice. See Wood, 105

Fed. Cl. at 154. An award of interim attorneys’ fees and costs to petitioner’s prior

counsel, Mr. Brazil, is also appropriate in light of my prior order deferring ruling on

petitioner’s prior request pertaining to his work on this case, in which I indicated that

such an award would be appropriate when an award was granted for Mr. Downing,

“whether on a final or interim basis.” (ECF No. 54.)

b. Reasonableness of the Requested Attorneys’ Fees

In determining the appropriate amount to be awarded, the Federal Circuit has

approved the lodestar approach to determine reasonable attorneys’ fees and costs

under the Vaccine Act. Avera, 515 F.3d at 1347. First, a court determines an “initial

estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation

times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S.

886, 888 (1984)). Second, the court may make an upward or downward departure from

the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well

within the special master’s discretion” to determine the reasonableness of fees. Saxton

v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993); see also Hines

ex rel. Sevier v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he

reviewing court must grant the special master wide latitude in determining the

reasonableness of both attorneys’ fees and costs.”). Special masters can reduce a fee

request sua sponte, without providing petitioners notice and opportunity to respond.

See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

Applications for attorneys’ fees must include contemporaneous and specific

billing records that indicate the work performed and the number of hours spent on said

work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008).

Such applications should not include hours that are “excessive, redundant, or otherwise

unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434

(1983)). In reviewing fee applications, special masters need not engage in a line-by-line

analysis. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729

(2011). Instead, they may rely on their experience with the program to determine the

reasonable number of hours expended. Wasson v. Sec’y of Health & Human Servs., 24

Cl. Ct. 482, 486 (1991), aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as

“[t]rial courts routinely use their prior experience to reduce hourly rates and the number

of hours claimed in attorney fee requests . . . [v]accine program special masters are

also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d

at 1521. Attorneys’ costs must also be reasonable and sufficiently documented. See

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction

6

‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’

necessarily modifies both. Not only must any request for reimbursement of attorneys’

fees be reasonable, so also must any request for reimbursement of costs.”), aff’d, 33

F.3d 1375 (Fed. Cir. 1994).

i. Downing, Allison & Jorgenson

Petitioner requests an award of $34,489.50 in interim attorneys’ fees for work

performed by attorneys and paralegals at Downing, Allison & Jorgenson in furtherance

of her claim. (ECF No. 68, p. 19.) When Mr. Downing was counsel of record, two

attorneys at Downing, Allison & Jorgenson participated in the litigation of petitioner’s

claim: Mr. Downing and Ms. Jorgenson.5 (Id. at 21.) Upon review of Mr. Downing’s

billing records in this case, I find that petitioner’s request for fees is reasonable, given

the nature of the claim, the procedural history of the case, and counsels’ performance.

Mr. Downing has been practicing law for a total of 29 years, including over 21 years of

experience in the Vaccine program. (Id.) He billed at an hourly rate of $445.00 for work

performed in 2023 and $485.00 for work performed in 2024. (Id. at 22.) Ms. Jorgenson

has been practicing law for a total of 9 years, including 8 years of experience in the

Vaccine program. (Id. at 21.) She billed at an hourly rate of $375.00 for work

performed in 2024. (Id. at 22.) These rates are reasonable and consistent with prior

determinations. See Druery v. Sec’y of Health & Human Servs., No. 17-1213V, 2024

WL 4850668, at *3 (Fed. Cl. Spec. Mstr. Oct. 25, 2024); Fisher v. Sec’y of Health &

Human Servs., No. 20-0855V, 2024 WL 3326050, at *2-3 (Fed. Cl. Spec. Mstr. June 10,

2024). I similarly find that the requested hourly rates of $155.00 and $175.00 for

paralegal work performed in 2023 and 2024 are reasonable and consistent with prior

awards. See Fisher, 2024 WL 3326050, at *2-3; Cracraft v. Sec’y of Health & Human

Servs., No. 20-0562V, 2024 WL 2992939, at *1 (Fed. Cl. Spec. Mstr. May 9, 2024);

Franceschi v. Sec’y of Health & Human Servs., No. 21-0468V, 2023 WL 4270835, at *2

(Fed. Cl. Spec. Mstr. May 30, 2023). Based on my experience, I find the number of

hours billed to be reasonable. Accordingly, Mr. Downing is awarded $34,489.50 in

interim attorneys’ fees.

ii. Muller Brazil, LLP

In her prior motion, petitioner requested an award of $17,921.30 in interim

attorneys’ fees associated with Mr. Brazil’s representation in this case. (ECF No. 41, p.

2.) Review of Mr. Brazil’s billing records demonstrates that petitioner’s prior fee request

is largely reasonable. With regard to the requested hourly rate, Mr. Brazil has been

litigating civil cases since 2010 and has focused solely on vaccine injury claims since

2013. (Id.) He billed at an hourly rate of $325.00 for work performed in 2019, $350.00

for work performed in 2020, $375.00 for work performed in 2021, $400.00 for work

performed in 2022, and $425.00 for work performed in 2023. (Id. at 1, 5-14.) I find the

requested hourly rates to be reasonable and consistent with prior awards. See

5

The motion suggests that Ms. Allison, a senior litigator at Downing, Allison & Jorgenson with 35 years of

legal experience, also represented petitioner in this case; however, there are no billing entries to support

such participation. (ECF No. 68, p. 21.)

7

Robinson v. Sec’y of Health & Human Servs., No. 20-1378, 2024 WL 4503651, at *2

(Fed. Cl. Spec. Mstr. Aug. 30, 2024); McGaughey v. Sec’y of Health & Human Servs.,

No. 21-0261V, 2023 WL 4048643, at *2 (Fed. Cl. Spec. Mstr. May 15, 2023). For

paralegal work performed throughout the case, petitioner also requests an hourly rate of

$125.00 for work performed by Stacie Bole, Megan McNicholas, Ginny Schaffer, and

Erik Pavlacsek, as well as an hourly rate of $165.00 for work performed by Katy Yoos

and an hourly rate of $185.00 for work performed by Leigh Finfer. (ECF No. 41, pp. 1-

2.) Additionally, petitioner requests an hourly rate of $140.00, $150.00, $160.00, and

$177.00 for paralegal work performed by Tereza Pavlacsek in 2019, 2020, 2021

through 2022, and 2023, respectively. (Id. at 1, 6-14.) I similarly find the requested

hourly rates for paralegal work to be reasonable and consistent with prior awards. See

Putman v. Sec’y of Health & Human Servs., No. 19-1921V, 2022 WL 2133979, at *2-3

(Fed. Cl. Spec. Mstr. May 12, 2022); Barton v. Sec’y of Health & Human Servs., No. 21-

476V, 2024 WL 3177120, at *2 (Fed. Cl. Spec. Mstr. May 28, 2024).

However, while I “need not delve into a ‘line-by-line’ analysis of the billing

records,” Broekelschen, 102 Fed. Cl. at 729, I find a number of billing entries contained

in Mr. Brazil’s records to be concerning. Other special masters have previously reduced

paralegal hours billed by Muller Brazil as excessive and pertaining to non-compensable

clerical tasks. See, e.g., Arnold v. Sec’y of Health & Human Servs., No. 15-534V, 2017

WL 3165486, at *2 (Fed. Cl. Spec. Mstr. June 22, 2017); Foshee-Naughton v. Sec’y of

Health & Human Servs., No. 17-1366V, 2019 WL 3239281, at *3 (Fed. Cl. Spec. Mstr.

June 25, 2019); Forman-Franco v. Sec’y of Health & Human Servs., No. 15-1479V,

2020 WL 7364801, at *2 (Fed. Cl. Spec. Mstr. Nov. 19, 2020); see also A.W. v. Sec’y of

Health & Human Servs., No. 15-1568V, 2019 WL 518521, at *2 (Fed. Cl. Spec. Mstr.

Jan. 11, 2019) (criticizing Mr. Brazil’s billing practices for “consistently inflating billing

entries and requesting reimbursement for non-compensable work”). In this case, there

are several billing entries for clerical tasks, such as preparing exhibits for filing,

preparing compact discs, and e-filing motions. (See, e.g., ECF No. 41, p. 6 (containing

two entries on October 2, 2019, billing 1.10 hours to “Prepare Petition and Exhibits for

Filing” and a further 0.20 hours to “E-File Petition and Exhibits”).) These tasks are not

compensable in the program. See Johnson v. Sec’y of Health & Human Servs., No. 18-

410V, 2020 WL 4558797, at *4 (Fed. Cl. Spec. Mstr. June 30, 2020); Floyd v. Sec’y of

Health & Human Servs., No. 13-556V, 2017 WL1344623, at *5 (Fed. Cl. Spec. Mstr.

Mar. 2, 2017). Accordingly, the nearly 8 hours of paralegal work, totaling $1,297.90,

that was billed for conducting these clerical tasks will not be compensated.

Additionally, a substantial number of hours were billed for correspondence

between Mr. Brazil and petitioner. While there can be no question that attorney-client

communication is important and necessary for adequate representation of the client’s

interests, the amount of time spent communicating with the client must also be

reasonable. Warfle v. Sec’y of Health & Human Servs., No. 05-1399V, 2012 WL

4845635, at *30 (Fed. Cl. Spec. Mstr. Sept. 21, 2012); J.B. v. Sec’y of Health & Human

Servs., No. 15-67V, 2016 WL 4046871, at *8 (Fed. Cl. Spec. Mstr. July 8, 2016)

(reducing as excessive the number of hours billed for communication with petitioner). A

review of the billing records demonstrates that the bulk of time billed by Mr. Brazil for

8

activity in this case between June of 2021 and April of 2023, just prior to the filing of the

interim fees request, was related to back-and-forth communications with petitioner. For

instance, in 2022 alone, Mr. Brazil billed a total of 17.7 hours6 at $400.00 per hour and

8.6 of those hours, totaling $3,440.00, were billed as correspondence with the client.

Moreover, the majority of these entries lack sufficient detail to determine whether the

communications were strictly necessary to the litigation of this claim. (See, e.g., ECF

No. 41, p. 10 (March 7, 2022 billing entries of 0.10 hours to “Draft status update to

client,” 0.10 hours to “Review email from client re status request,” and 0.20 hours to

“Review file to draft status update”).) Accordingly, I exercise my discretion to reduce the

total hours billed by Muller Brazil between June of 2021 and April of 2023 for

communication between Mr. Brazil and petitioner by 20%, resulting in a total reduction

of $1,120.50.7

I find the remainder of the billing entries to be reasonable and sufficiently

documented. Accordingly, Mr. Brazil is awarded attorneys’ fees in the reduced amount

of $15,502.90.

c. Reasonableness of the Requested Attorneys’ Costs

Petitioner requests an award of $14,701.348 to be paid to Mr. Downing, as well

as $660.21 to be paid to Mr. Brazil, for interim costs incurred to further her claim. (ECF

No. 68, p. 19; Ex. 41, p. 2.)

I have reviewed the billing records and find the requested costs to be largely

reasonable and sufficiently documented. (ECF No. 68, pp. 34-40; ECF No. 41, pp. 16-

23.) Specifically, Dr. Piontek is a board-certified orthopedic surgeon with over thirty-five

years of experience in the field. (Ex. 18.) He billed 36.75 hours at $400.00 per hour for

reviewing petitioner’s medical records and for researching and drafting two expert

reports. (ECF No. 68, pp. 34-40.) Although Dr. Piontek does not appear to have any

prior program experience, the requested hourly rate is both consistent with what has

been awarded to similarly qualified experts in the prior program cases and below what

has previously been determined to be the average hourly rate for all orthopedic

surgeons practicing in the United States. See Crawford v. Sec’y of Health & Human

Servs., No. 19-0544V, 2024 WL 5321766, at *3 (Fed. Cl. Spec. Mstr. Dec. 9, 2024);

Durham, 2024 WL 4369198, at *3. I also find that the number of hours billed is

reasonable for the complexity of the case and the work performed. However, a review

6

An April 4, 2022 billing entry for 0.10 hours to “Review PAR initial order” appears to have been entered

in error as it is duplicative of an October 2, 2019 billing entry for 0.10 hours to “Review initial PAR order.”

(ECF No. 41, pp. 6, 10.)

7

Regarding communications with petitioner, Mr. Brazil billed a total of 3.5 hours ($1,312.50) in 2021, 8.6

hours ($3,440.00) in 2022, and 2 hours ($850.00) in 2023, for a total of 14.1 hours. After calculating the

number of hours billed at the hourly rate for the applicable year, the total billed for attorney-client

communication amounts to $5,602.50. A 20% reduction of that figure results in a reduction of $1,120.50.

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As previously mentioned, petitioner incorrectly states that Mr. Downing incurred costs totaling

$17,701.34, when careful review of the billing records reveal that his costs only totaled $14,701.34. (ECF

No. 68, pp. 19, 34.)

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of the receipts for costs incurred by Mr. Brazil reveals that there is no record support for

a July 28, 2022 billing entry of $7.85 for “Certified Postage.” As a result, $7.85 will be

deducted from the costs to be awarded to Mr. Brazil.

I therefore award $14,701.34 in interim attorneys’ costs to Mr. Downing. I also

award interim attorneys’ costs to Mr. Brazil in the reduced amount of $652.36.

IV. Conclusion

In light of the above, petitioners’ application for interim attorney’s fees and costs

is hereby GRANTED and petitioner is awarded interim attorneys’ fees and costs in the

total amount of $65,346.10 as follows:

• A lump sum of $49,190.84, representing reimbursement of attorneys’ fees

and costs, to be paid through an ACH deposit to petitioner’s former

counsel of record, Mr. Andrew Downing’s IOLTA account for prompt

disbursement; and

• A lump sum of $16,155.26, representing reimbursement of attorneys’ fees

and costs, to be paid through an ACH deposit to petitioner’s former

counsel of record, Mr. Paul Brazil’s IOLTA account for prompt

disbursement.

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.9

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

9

Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.

Vaccine Rule 11(a).

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