Parker v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-917V

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RICHARD K. PARKER, *

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Petitioner, * Special Master Jennifer A. Shah

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v. *

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* Filed: May 19, 2025

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

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Respondent. *

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Ramon Rodriguez, III, Siri & Glimstad LLP, Richmond, VA, for Petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On July 7, 2017, Richard K. Parker (“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”), alleging that he developed Parsonage-Turner syndrome (“PTS”) caused by a

pneumococcal 13-valent conjugate (“Prevnar 13”) vaccination he received November 21, 2014.

ECF No. 1 (“Pet.”) at 1-2.

On March 19, 2018, Respondent filed his Rule 4(c) Report, contending that entitlement to

compensation should be denied. ECF No. 18. Thereafter, the parties submitted expert reports and

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Because this Decision contains a reasoned explanation for the action 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 Decision 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.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa

(2012).

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medical literature. On May 1, 2019, Petitioner filed an application for interim attorneys’ fees and

costs, seeking $8,445.00 in fees and $494.85 in costs for work performed from January 27, 2016,

through July 12, 2017. ECF No. 36 at 10, 14. On June 19, 2019, former Special Master Katherine

E. Oler granted Petitioner’s application in part, awarding $8,254.65. ECF No. 46.

The parties filed additional expert reports, literature, and other evidence. On April 11-12,

2023, an entitlement hearing was held at which Petitioner, his wife, and five experts testified.

Petitioner filed additional literature after the hearing, and the parties filed post-hearing briefs.

Petitioner filed a second motion for interim attorneys’ fees and costs on November 13,

2024, requesting a total of $197,541.14, comprised of $152,186.90 in attorneys’ fees and

$45,354.24 in attorneys’ costs. ECF No. 113 (“Fees App.”) at 10-11. Respondent filed a response

on November 22, 2024, deferring to me as to whether Petitioner has met the legal standard for an

award of interim attorneys’ fees and costs. ECF No. 115 (“Fees Resp.”) at 2. Petitioner filed a

reply on December 2, 2024. ECF No. 116 (“Reply”).

I hereby GRANT IN PART Petitioner’s application and award a total of $176,991.14 in

interim attorneys’ fees and costs.

I. Legal Standard

A. Interim Attorneys’ Fees and Costs

The Federal Circuit has held that an award of interim attorneys’ fees and costs is

permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.

Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the

Federal Circuit noted that “Congress [has] made clear that denying interim attorneys’ fees under

the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health

& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).

In Avera, the Federal Circuit stated that “[i]nterim fees are particularly appropriate in cases

where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.

Likewise, in Shaw, the Federal Circuit held that “where 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. Avera did not,

however, define when interim fees are appropriate; rather, it has been interpreted to allow special

masters discretion. See Avera, 515 F.3d at 1352; Kirk v. Sec’y of Health & Hum. Servs., No. 08-

241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health &

Hum. Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Special

masters have viewed the three Avera criteria -- protracted proceedings, costly expert testimony,

and undue hardship -- as factors to consider in a flexible balancing test. Avera, 515 F.3d at 1352;

see Al-Uffi v. Sec’y of Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl.

Spec. Mstr. Sept. 30, 2015).

The undue hardship inquiry looks at more than just financial involvement of a petitioner;

it also looks at any money expended by a petitioner’s counsel. Kirk, 2009 WL 775396, at *2.

Referring to Avera, former Chief Special Master Golkiewicz in Kirk found that “the general

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principle underlying an award of interim fees [is] clear: avoid working a substantial financial

hardship on petitioners and their counsel.” Id.

B. Good Faith

A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs only if

the special master finds that the petition was brought in good faith and with a reasonable basis.

§15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health & Hum.

Servs, 105 Fed. Cl. 148, 154 (2012); Friedman v. Sec’y of Health & Hum. Servs., 94 Fed. Cl. 323,

334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear, 2013

WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL 1450520,

at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The good faith requirement is met through a subjective

inquiry. Di Roma v. Sec’y of Health & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed.

Cl. Spec. Mstr. Nov. 18, 1993). It “focuses upon whether [P]etitioner honestly believed he had a

legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-544V, 2007

WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad faith,

“petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum. Servs.,

36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that his claim could

succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs., No.

09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993

WL 496981, at *1); Turner, 2007 WL 4410030, at *5.

C. Reasonable Basis

Unlike the good faith inquiry, an analysis of reasonable basis requires more than just a

petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must be

supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v. Sec’y

of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr. Nov. 3,

2015).

Although the statute does not define the quantum of proof needed to establish reasonable

basis, it is “something less than the preponderant evidence ultimately required to prevail on one’s

vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of

Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no

evidence would not be found to have reasonable basis. . .” Id. at 286. The Court in Chuisano

found that a petition that relies on temporal proximity and a petitioner’s affidavit is not sufficient

to establish reasonable basis. Id. at 290; see also Turpin v. Sec’y Health & Hum. Servs., No. 99-

564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis

when petitioner submitted an affidavit and no other records); Brown v. Sec’y Health & Hum.

Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no

reasonable basis when petitioner presented only e-mails between her and her attorney). The

Federal Circuit has affirmed that “more than a mere scintilla but less than a preponderance of proof

could provide sufficient grounds for a special master to find reasonable basis.” Cottingham v.

Sec’y of Health & Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. 2020) (finding

Petitioner submitted objective evidence supporting causation when she submitted medical records

and a vaccine package insert); see also James-Cornelius v. Sec’y of Health & Hum. Servs., 984

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F.3d 1374, 1380 (Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation

did not by itself negate the claim's reasonable basis”).

“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements

for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient

evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs.,

No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award

compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by

medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal

Claims have interpreted this provision to mean that petitioners must submit medical records or

expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec’y of Health &

Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec’y of Health & Hum. Servs., 35

Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table

theory where medical records fail to establish a Table injury)).

When determining if a reasonable basis exists, a special master may consider a myriad of

factors, including “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, 138 Fed. Cl.

at 289. This approach allows the special master to look at each application for attorneys’ fees and

costs on a case-by-case basis. Hamrick v. Sec’y of Health & Hum. Servs., No. 99-683V, 2007 WL

4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19, 2007).

II. Discussion

A. Undue Financial Hardship

The Federal Circuit has noted that interim fees “are particularly appropriate in cases where

proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352 (Fed.

Cir. 2008). Petitioner’s counsel has worked on this case since 2017 and was last awarded interim

fees and costs on June 19, 2019. Fees App. at 1, 3. Counsel has retained experts and filed four

expert reports, submitted pre-hearing briefing, participated in an entitlement hearing, and

submitted post-hearing briefing. See ECF Nos. 26, 41, 57, 59, 79, 106, 109. Although successive

awards of interim fees and costs are generally disfavored, under these circumstances I find that

Petitioner would suffer undue hardship without such an award.

B. Good Faith and Reasonable Basis

Respondent has not raised any specific objection to Petitioner’s good faith or reasonable

basis for this claim, and he leaves the determination to my discretion. Fees Resp. at 2. I find that

the petition was filed in good faith.

As discussed above, the threshold for reasonable basis is much lower than the burden to

prove entitlement to compensation, which requires preponderant evidence. Petitioner filed

extensive medical records and multiple expert reports, and this case proceeded to an entitlement

hearing. I find that Petitioner has maintained a reasonable basis for his claim.

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As there is no other reason to deny an award of interim attorneys’ fees and costs, I will

award Petitioner’s reasonable fees and costs as described below.

C. Attorneys’ Fees

Petitioner requests a total of $152,186.90 in attorneys’ fees for Sands Anderson PC (“Sands

Anderson”). Fees App. at 10; Reply at 3. Petitioner bears the burden of establishing that the rates

charged, hours expended, and costs incurred are reasonable. Wasson v. Sec’y of Health & Hum.

Servs., 24 Cl. Ct. 482, 484 (1993).

1. Reasonable Hourly Rate

A reasonable hourly rate is defined as the rate “prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d

at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for

the District of Columbia” rather than “the rate in the geographic area of the practice of

[P]etitioner’s attorney.” Rodriguez v. Sec’y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed.

Cir. 2011) (citing Avera, 515 F. 3d at 1349).

McCulloch provides the framework for determining the appropriate compensation for

attorneys’ fees based upon the attorneys’ experience. See McCulloch v. Sec’y of Health & Hum.

Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of

Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for

subsequent years.3

Petitioner requests compensation for his counsel, Mr. Ramon Rodriguez, III, at the

following hourly rates: $383.00 per hour for work performed in 2017; $394.00 per hour for work

performed in 2018; $405.00 per hour for work performed in 2019; $422.00 per hour for work

performed in the first half of 2020; $444.00 per hour for work performed in 2021; $458.00 per

hour for work performed in 2022; and $482.00 per hour for work performed in 2023. Fees App.

at 10. Petitioner also requests compensation for Mr. Rodriguez’s paralegals at the following

hourly rates: $149.00 per hour for work performed in 2018; $151.00 per hour for work performed

in 2019; $158.00 per hour for work performed in 2020; $166.00 per hour for work performed in

2021; $177.00 per hour for work performed in 2022; and $186.00 per hour for work performed

in 2023. Id. Lastly, Petitioner requests compensation for Ms. Elizabeth Muldowney, counsel, at

a rate of $372.00 per hour for work performed in 2019. Id.

Mr. Rodriguez’s requested rates are consistent with what he has previously been awarded

and are in accordance with the Office of Special Masters’ Fee Schedule. See Canady v. Sec’y of

Health & Hum. Servs., No. 18-1624V, 2025 WL 863084, at *4 (Fed. Cl. Spec. Mstr. Feb. 21,

2025); see also Roy v. Sec’y of Health & Hum. Servs., No. 17-323, 2022 WL 2449753, at *2 (Fed.

Cl. Spec. Mstr. June 9, 2022). Accordingly, I find Mr. Rodriguez’s requested rates are reasonable

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The Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule for 2015 through 2025 can be

accessed at: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules. The hourly

rates contained within the schedules are updated based on the decision in McCulloch, 2015 WL 5634323.

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and that no adjustment is warranted. Additionally, I find the requested paralegal rates are

reasonable, based on the Office of Special Masters’ Fee Schedule and what Mr. Rodriguez’s staff

has previously been awarded. See Roy, 2022 WL 2449753, at *2.

Similarly, Ms. Muldowney’s requested rates are consistent with what she has previously

been awarded and are in accordance with the Office of Special Masters’ Fee Schedule. See

McCarthy v. Sec’y of Health & Hum. Servs., No. 18-1826V, 2025 WL 863501, at *3 (Fed. Cl.

Spec. Mstr. Feb. 21, 2025); see also Eloyan v. Sec’y of Health & Hum. Servs., No. 18-1450V,

2024 WL 3913710, at *4 (Fed. Cl. Spec. Mstr. July 8, 2024). Accordingly, I find Ms.

Muldowney’s requested rates are reasonable and that no adjustment is warranted.

2. Hours Reasonably Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the

litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master’s discretion

to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work

done.” Saxton ex rel. Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993).

In exercising that discretion, special masters may reduce the number of hours submitted by a

percentage of the amount charged. See Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed.

Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours);

Guy v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master’s

reduction of attorney and paralegal hours). Further, special masters may reduce awards sua sponte,

independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum.

Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed.

Cl. 313, 318 (Fed. Cl. 2008), aff’d, No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr.

22, 2008).

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 & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.

Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees

and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health &

Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). It is within a special master’s discretion to

instead make a global reduction to the total amount of fees requested. See Hines v. Sec’y of Health

& Hum. Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the

reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec’y of Health & Hum. Servs.,

No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011

WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master’s decision and

endorsing “a global – rather than line-by-line – approach to determine the reasonable number of

hours expended in this case”).

While attorneys may be compensated for non-attorney-level work, the rate must be

comparable to what would be paid for a paralegal or secretary. See O’Neill v. Sec’y of Health &

Hum. Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical

and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,

McCulloch, 2015 WL 5634323, at *26. It is well-established that billing for administrative and

clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379,

387 (1989).

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The overall hours spent on this matter appear to be largely reasonable; however, a minor

reduction is necessary. Several entries in the submitted billing records are for clerical or

administrative tasks; specifically, for filing documents. See Fees App., Ex. 79. Examples include

(but are not limited to):

• September 20, 2018: 0.7 hours billed by Mr. Rodriguez to “Draft, proof, format,

and file unopposed motion for extension of time to file expert report”;

• June 26, 2020: 0.1 hours billed by Mr. Rodriguez to “file status report”; and

• June 27, 2023: 1.0 hours billed by Mr. Rodriguez to “draft, proof, format, and file

petitioner’s unopposed motion for extension of time to file reply”.

Id. (emphasis added). Counsel billed approximately 8.2 hours for these tasks, resulting in charges

of $3,552.00. Because these tasks were performed over six years by Mr. Rodriguez, billed at

different hourly rates, and included in billings for non-clerical and administrative tasks, I will apply

a flat $500.00 deduction from the requested attorneys’ fees for these charges.

Accordingly, Petitioner is awarded attorneys’ fees in the amount of $151,686.90.

D. Reasonable Costs

Petitioner requests a total of $45,354.24 for attorneys’ costs, consisting of $238.28 for

medical records requests; $0.50 for postage; $23.31 for mailing costs; $1,020.25 for copying

expenses; $74.90 for meals during the entitlement hearing; $1,197.00 for the hearing transcript;

$3,000.00 for Dr. Steinman’s retainer fee; and $39,800.00 for Dr. Carr’s expert report and hearing

testimony. Fees App., Ex. 78 at 2-3; Ex. 79 at 29-30.

Petitioner provided documentation for the costs associated with the medical record requests,

mailing costs, meals, and transcript. Fees App., Ex. 78 at 5, 8-16, 18, 20. I find the costs for these

items to be reasonable and award them in full. Petitioner did not provide documentation for postage

and the copying expenses; however, because these costs are normal business expenses and not

unreasonable, I award them in full. I discuss the remaining costs below.

1. Petitioner’s Expert Costs for Lawrence Steinman, M.D.

Petitioner requests $3,000.00 for Dr. Steinman’s retainer fee “for the first six hours of work”

at a rate of $500.00 per hour. Fee App., Ex. 78 at 2, 4. Dr. Steinman has been awarded his requested

hourly rate by other special masters, and I see no reason to disturb his request. See Morrison v.

Sec’y of Health & Hum. Servs., No. 18-386V, 2023 WL 1873254, at *7 (Fed. Cl. Spec. Mstr. Feb.

10, 2023); Marcum v. Sec’y of Health & Hum. Servs., No. 20-65V, 2023 WL 2756218, at *7 (Fed.

Cl. Spec. Mstr. Apr. 3, 2023); Noorani v. Sec’y of Health & Hum. Servs., No. 16-970V, 2022 WL

780828, at *6 (Fed. Cl. Spec. Mstr. Jan. 20, 2022). Although Petitioner has not provided

documentation for the number of hours expended by Dr. Steinman, considering the work completed

I find Dr. Steinman’s retainer fee to be reasonable, and I will award it in full. Accordingly,

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Petitioner is awarded $3,000.00 for Dr. Steinman’s retainer fee.

2. Petitioner’s Expert Costs for Daniel Carr, M.D.

Petitioner requests $39,800.00 for work performed by Dr. Carr. Fees App., 78 at 2-3. Dr.

Carr billed 39.5 hours using various rates: for attorney communications, Dr. Carr charged $300.00

for the first 15 minutes of each communication and $150.00 for each subsequent 15 minutes; for

reviewing documents and preparing his expert report, Dr. Carr charged $500.00 per hour; and for

attending and testifying at Petitioner’s entitlement hearing, Dr. Carr charged $3500.00 for the first

hour of each day of the hearing and $1500.00 per hour for each subsequent hour. Id. at 6-7, 19-

20.

Regarding Petitioner’s requested rates for Dr. Carr’s work, Respondent argued that “[t]o

the extent petitioner is requesting higher expert hourly rates than what has typically been awarded

in the past . . . the Court should reserve the highest rates for the most qualified experts opining on

the most complex medical issues.” Fees Resp. at 4. Respondent noted that Dr. Carr “billed

$23,500.00 for a two-day entitlement hearing lasting thirteen total hours (effectively charging

more than $1,800.00 per hour on average)” and that he also “billed $750.00 for an hour-long phone

call.” Id. Respondent “urge[d] that the hourly rates paid to experts who appear on behalf of

respondent ($375.00) be considered when determining an appropriate hourly rate” for Dr. Carr.

Id. at 5. In his reply, Petitioner argued that both of his “experts provided multiple expert reports

and testified at trial demonstrating the extent of their work.” Reply at 2. Petitioner also noted that

“[t]he Court has found the charges for expert work done by Dr. Steinman and Dr. Carr to be

reasonable in other matters.” Id. (citing Morrison v. Sec’y of Health & Hum. Servs., No. 18-386V,

2023 WL 1873254 (Fed. Cl. Spec. Mstr. Feb. 10, 2023); Marcum v. Sec’y of Health & Hum. Servs.,

No. 20-65V, 2023 WL 2756218 (Fed. Cl. Spec. Mstr. Apr. 3, 2023); Thompson v. Sec’y of Health

& Hum. Servs., No. 19-887V, 2022 WL 17819489 (Fed. Cl. Spec. Mstr. Nov. 8, 2022)).

Dr. Carr has previously been awarded hourly rates of $400.00 and $500.00 per hour for

work performed in the Vaccine Program. See O’Brien v. Sec’y of Health & Hum. Servs., No. 18-

1492, 2021 WL 1733524, at *3 (Fed. Cl. Spec. Mstr. Mar. 22, 2021); Ellingsen v. Sec’y of Health

& Hum. Servs., No. 18-421V, 2021 WL 1093939, at *2 (Fed. Cl. Spec. Mstr. Feb. 11, 2021). I find

Dr. Carr’s $500.00 per hour rate to be reasonable for the work performed in this instant case;

however, Dr. Carr’s variable rates for attorney communications and attending the entitlement

hearing are excessive. See Ellingsen, 2021 WL 1093939, at *2 (finding that Dr. Carr’s “inconsistent

billing system” was excessive). By charging $300.00 for the first 15 minutes of attorney

communications and $150.00 per each subsequent 15 minutes, Dr. Carr effectively charged

$750.00 per hour for attorney communications; 1.5 times his rate for reviewing the record and

preparing his expert report. Similarly, by charging $3500.00 for the first hour of each day of

Petitioner’s entitlement hearing and $1500.00 per hour for each subsequent hour, Dr. Carr

effectively charged $1,807.69 per hour to participate in the hearing. Petitioner has provided no

explanation justifying Dr. Carr’s increased rates for attorney communications and for attending

the entitlement hearing; as such, I find these rates to be excessive and unreasonable.

Accordingly, Dr. Carr will be compensated at his $500.00 hourly rate for the 39.5 hours he

expended in this case, resulting in a reduction of $20,050.00 from the amount sought. Petitioner

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is awarded $19,750.00 for Dr. Carr’s work in this case.4

I award Petitioner a total of $25,304.24 in attorneys’ costs.5

III. Conclusion

Accordingly, in the exercise of the discretion afforded to me in determining the propriety of

interim attorneys’ fee and cost awards, and based on the foregoing, I GRANT IN PART

Petitioner’s application. Petitioner is awarded interim attorneys’ fees and costs in the total amount

of $176,991.14 as follows:

• A lump sum in the amount of $176,991.14, representing reimbursement of

Petitioner’s interim attorneys’ fees and costs, to be paid through an ACH deposit to

Petitioner’s counsel’s IOLTA account for prompt disbursement.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of

Court SHALL ENTER JUDGMENT in accordance with this decision.6

IT IS SO ORDERED.

s/ Jennifer A. Shah

Jennifer A. Shah

Special Master

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Dr. Carr’s $500.00 hourly rate multiplied by the 39.5 hours he expended in this case equals $19,750.00.

($500.00 x 39.5 hours = $19,750.00). The $39,800.00 requested for Dr. Carr’s work minus the $19,750.00

awarded for Dr. Carr’s work equals a $20,050.00 reduction. ($39,800.00 - $19,750.00 = $20,050.00).

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Petitioner is awarded $238.28 for medical records requests; $0.50 for postage; $23.31 for mailing costs;

$1,020.25 for copying expenses; $74.90 for meals during the entitlement hearing; $1,197.00 for the hearing

transcript; $3,000.00 for Dr. Steinman’s retainer fee; and $19,750.00 for Dr. Carr’s work; totaling

$25,304.24.

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Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice

renouncing their right to seek review.

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