symptoms alone could not satisfy petitioner's burden, because “a symptom or manifestation could indicate any number of different underlying injuries, each with its own pathology, making it impossible for the court to accurately determine causation”
How later courts described this case
- symptoms alone could not satisfy petitioner's burden, because “a symptom or manifestation could indicate any number of different underlying injuries, each with its own pathology, making it impossible for the court to accurately determine causation”
- denying motion for review of decision finding that petitioner lacked reasonable basis in a case that ended with an order concluding proceedings
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Reissued for Public Availability Date: May 7, 2026
**********************
ANNE PISANI, as legal *
representative of ESTATE * No. 20-1249V
OF FRANK PISANI, *
*
Petitioner, *
* Special Master Christian J. Moran
v. *
* Filed: November 14, 2025
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
**********************
Anne Carrion Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioner;
Dorian Hurley, U.S. Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Anne Pisani’s motion for final
attorneys’ fees and costs. She is awarded $145,239.29.
I. Procedural History
Events in Ms. Pisani’s case can be divided into two phases: the entitlement
phase and the fees phase. Sources of information include various pleadings on the
1
Because this Decision 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 Decision will
be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. Any changes will appear in the
document posted on the website.
docket; the attorneys’ timesheets, which are included with the pending fee motion;
and information communicated through a recorded status conference, which was
held on February 13, 2025, 2 and a supplemental affidavit from Ms. Toale, in which
Ms. Toale corrected some misstatements. This supplemental affidavit is Exhibit
54.
A. Entitlement Phase
Represented by attorneys from the law firm Maglio Christopher and Toale
(also referred to as “mctlaw”), Ms. Pisani alleged that an influenza vaccine
administered to her husband, Frank Pisani, on October 10, 2018, caused him to
suffer from Guillain-Barré syndrome (“GBS”). Pet., filed Sept. 23, 2020. The
petition is approximately 11 pages and sets out in numbered paragraphs Mr.
Pisani’s medical history. Some of the numbered paragraphs extensively quote
some of the medical records.
The Secretary maintained that Ms. Pisani was not entitled to compensation
for several reasons. Resp’t’s Rep., filed June 30, 2021. Over the course of
approximately 10 pages, the Secretary summarized Mr. Pisani’s medical records.
Id. at 2-10. Among the reasons supporting the denial of compensation according to
the Secretary was that “[a]lthough Mr. Pisani’s treating physicians thought he may
have had GBS, he was ultimately diagnosed with vasculitis, Sjogren’s syndrome,
and other conditions, but not GBS." Id. at 12.
Because Ms. Pisani was likely to obtain a report from an expert, a set of
Expert Instructions was issued. Order, issued Oct. 6, 2021. The Instructions
provided guidance about how experts should create invoices. The Instructions
were issued in draft form to allow the parties an opportunity to comment. Neither
party suggested any changes nor posed any objections to the Instructions in the
time permitted. The deadline for a report from an expert was set at January 21,
2022. Order, issued Nov. 23, 2021.
On December 14, 2021, Attorney Anne Toale replaced her predecessor as
counsel of record for Ms. Pisani. Ms. Toale has continued to represent Ms. Pisani
since that time. Ms. Toale conferred with an expert on December 28, 2021.
Timesheets (filed as Exhibit 47). This expert was Kazim Sheikh. Exhibit 48 at 40
(invoice); Tr. 6.
Dr. Sheikh, neurologist
2
Citations to “Tr.” refer to this status conference.
2
Dr. Sheikh is a neurologist, who has sometimes assisted petitioners in the
Vaccine Program. See Exhibit 53 (Dr. Sheikh’s curriculum vitae). Ms. Toale
characterized Dr. Sheikh as “a world renowned GBS expert.” Tr. 15. On
questions of diagnosis, Dr. Sheikh is “a purist.” Id.; accord Tr. 19. Ms. Toale
provided Dr. Sheikh with the petition, the Secretary’s report, Mr. Pisani’s EMG,
the results of biopsies, the results of blood tests. Exhibit 48 at 40 (Dr. Sheikh’s
invoice).
Dr. Sheikh declined to offer a report supporting Ms. Pisani’s claims.
According to Ms. Toale, Dr. Sheikh “thought there were features of the EMG that
didn’t support GBS.” Tr. 19. 3 Ms. Toale also stated: “there can be a lot of reasons
that an expert doesn’t pick up a file and run with it.” Tr. 19. However, the only
specific reason Ms. Toale offered as to why Dr. Sheikh declined to write a report
was the problems with the EMG.
On behalf of Ms. Pisani, Attorney Toale submitted a short motion for an
enlargement of time to extend the deadline for filing an expert report. Pet’r’s Mot.,
filed Jan. 21, 2021. Ms. Toale stated: “Undersigned counsel is new to the case and
is reviewing potential experts to engage.” Both assertions are accurate---Ms. Toale
was new to the case and was reviewing potential experts to engage. Ms. Toale did
not disclose that one expert reviewed the case and did not prepare a report.
Search for a Rheumatologist and a Second Neurologist
Ms. Toale sought the assistance of a company that refers experts, Guidepoint
Global. See Timesheets (entries for Jan. 26, 2022 and Feb. 24, 2022); see also
Pet’r’s Memorandum, filed June 18, 2024, at 1-2. Guidepoint Global charged
$2,500.00. Exhibit 48 at 44. Eventually, Ms. Toale retained a rheumatologist,
Ariel Teitel. See Exhibit 24 (Dr. Teitel’s report, dated Aug. 30, 2022).
Dr. Teitel’s retention was in early March 2022. Timesheets (entry for Mar.
7, 2022); see also Pet’r’s Mot., filed May 23, 2022, ¶ 6. Ms. Toale stated that for
some experts, especially new experts, she explains to the experts what charges are
allowed. Tr. 8, 12. For example, according to Ms. Toale, she has received
invoices from experts that were too low because the expert did not include all
activities that may be billed, such as emailing and reviewing the report of the
3
Ms. Toale’s answer continues: “he didn’t know any medical facts about the guy.” Tr.
19. However, Dr. Sheikh was aware of the basic medical chronology for Mr. Pisani by reading
the summaries of the medical records in the petition and the Secretary’s report. Ms. Toale may
be correct in saying that Dr. Sheikh did not review any medical records directly. However, Dr.
Sheikh did have access to some medical information about Mr. Pisani.
3
Secretary’s expert. Tr. 12-13. Whether Ms. Toale provided this guidance about
billing to Dr. Teitel is unknown.
After Dr. Teitel’s retention, Ms. Toale and Dr. Teitel frequently
communicated about the deadline for filing the report, which was, at that time,
May 23, 2022. Via Ms. Toale, Ms. Pisani sought an enlargement of the deadline to
July 22, 2022. The motion asserted that the expert had started work but needed
more time, in part, because the expert was new to the Vaccine Program:
[the expert] has only completed a partial records review
and literature search at this point.4 The expert anticipates
completing his review of the case materials in the next 2-
3 weeks, at which point he can begin drafting a report.
Once drafted, it is likely that significant additional work
will need to be done with the expert and the draft report,
given that this is a first-time expert.
Pet’r’s Mot., filed May 23, 2022.5 In a status conference to discuss the pending
motion for an enlargement of time, Ms. Toale stated that Ms. Pisani was not
pursuing a claim based upon Guillain-Barré syndrome. She requested 90 days to
obtain a report from her expert. She was given this much time, although the order
also noted that if Ms. Pisani did not meet the deadline, an order to show cause
would issue. Order, issued June 1, 2022 (setting expert report deadline for August
30, 2022).
Following the June 1, 2022 order, Ms. Toale continued her efforts with Dr.
Teitel. She also returned to the question of Guillain-Barré syndrome.
Dr. Jeret, second neurologist
With respect to a potential claim regarding Guillain-Barré syndrome, Ms.
Toale did not recall in the February 13, 2025 status conference that in the June 1,
2022 status conference, she had said she was not pursing a claim based upon
Guillain-Barré syndrome. Tr. 18, 21. Regardless, Ms. Toale stated, “maybe I had
4
According to Dr. Teitel’s invoice, as of the date of this motion, he had not spent any
time reviewing the medical records and he had not spent any time reviewing the medical
literature. As of the date of the motion, it appears that Dr. Teitel’s total time on the case was
limited to less than approximately 30 minutes of emails. Dr. Teitel first reviewed literature on
May 27-28, 2023, and first reviewed the medical records on July 8, 2023. Exhibit 48 at 63.
5
This motion also disclosed that a neurologist had completed his review in January 2022.
4
a change of heart or talked with one of my partners or something.” Tr. 21; accord
time entry for July 29, 2022 (a different attorney: “consult with lead counsel on
litigation strategy, expert consultation”). In her experience, a second opinion can
assist a petitioner. Tr. 21-23.
Ms. Toale’s July 30, 2022 time entry is confusing. It states: “Review
records summary to analyze draft neurology expert report; review report.” When
asked about this entry during the February 13, 2025 status conference, Ms. Toale
explained that the “records summary” is a summary of medical records that her
office prepared. The semicolon indicates that she next reviewed a different report,
i.e., a report that Dr. Jeret prepared. Tr. 14.
However, other information appears inconsistent with this explanation. Dr.
Jeret’s first entry on his invoice reflected work on August 2, 2022. Exhibit 48 at
53 (Dr. Jeret’s invoice). Dr. Jeret did not invoice for time on this case before
August 2, 2022. One of Dr. Jeret’s three activities billed on August 2, 2022 was to
“Begin draft of report---outline, basic info.” Id. Furthermore, a paralegal in Ms.
Toale’s office created an entry on August 2, 2022 stating “Review correspondence
regarding expert retention of Dr. Jeret, update file notes.” Timesheets. When
asked during the February 13, 2025 status conference about this entry, Ms. Toale
stated: “it could be better worded because, as you say, the retention was much
earlier.” Tr. 17.
Regardless of the lack of clarity as to when the firm retained Dr. Jeret, the
fact remains that Ms. Toale worked on the topic of Guillain-Barré syndrome. Ms.
Toale spent approximately five hours researching the medical literature about
Guillain-Barré syndrome and vasculitis. Timesheets (July 30-31, 2022). On
August 1, 2022, she spent 3.0 hours on the tasks of “Additional review of records
to determine what to provide to GBS expert for preliminary review; multiple
emails with both experts.”
Like Dr. Sheikh, Dr. Jeret has been retained by petitioners in the Vaccine
Program previously. In early August 2022, Dr. Jeret spent six hours working on
the case. Exhibit 48 at 53. Dr. Jeret did not submit a report. He did not support a
diagnosis of Guillain-Barré syndrome. Pet’r’s Memorandum, filed June 18, 2024,
at 10.
In Ms. Toale’s view, Dr. Jeret’s work did not duplicate the work of Dr.
Sheikh. Tr. 28-29.
On August 14, 2022, Ms. Toale informed Ms. Pisani about the results of the
neurology review. Timesheets. This second opinion satisfied Ms. Toale that a
5
claim based upon Guillain-Barré syndrome could not be developed. Ms. Toale did
not seek an opinion from a third neurologist.
Dr. Teitel, rheumatologist
To return to an earlier step, the June 1, 2022 order required Ms. Pisani to file
her expert report by July 30, 2022. From comments during the status conference,
Ms. Toale was aware that additional enlargements of time should not be
anticipated.
Whether Dr. Teitel was performing any work is unknown. Although the
Expert Instructions, issued Oct. 6, 2021, directed the expert to create invoices that
show the date activities were performed, Dr. Teitel’s October 23, 2022 invoice
does not contain this information. See Exhibit 48 at 57. In the February 13, 2025
status conference, Ms. Toale commented that Dr. Teitel “has some of the worst
billing of any expert that I’ve ever used. Like, I will admit that right here.” Tr. 8.
When asked what work Dr. Teitel was performing in July 2022, Ms. Toale looked
at Dr. Teitel’s invoice and stated: “I don’t know what he was doing on a day-to-
day or even week-to-week basis.” Tr. 9.
After the February 13, 2025 status conference, Ms. Toale averred that she
had received a draft report from Dr. Teitel on July 30, 2022. Exhibit 54 at 4-5.
Ms. Toale corroborated her account by providing an email from Dr. Teitel. Exhibit
54, appendix 1.
Ms. Toale needed to explain when she received a draft report from Dr. Teitel
for two reasons. First, as just stated, Dr. Teitel’s own billing records are not good.
Although Dr. Teitel billed some time for a draft report, his invoice lacks the date
that this activity was performed. Exhibit 48 at 57. Second, Ms. Toale’s billing
record contains an error. Originally, Ms. Toale wrote that she spent time on July
30, 2022 on the following: “Review records summary to analyze draft neurology
expert report; review report.” Timesheets. However, after the February 13, 2025
status conference, Ms. Toale realized that the explanation she gave of her time
entry was wrong. She had not reviewed a draft report from a neurologist; she had
actually reviewed a draft report from a rheumatologist, Dr. Teitel. Exhibit 54 at 4-
6.
In her supplemental affidavit, Ms. Toale averred that “Dr. Teitel’s initial
draft was brief, and did not closely align with this Court’s expert instructions.”
Exhibit 54 at 8. Ms. Toale, therefore, “undertook draft revisions and additions.”
Id. Starting in mid-August, Ms. Toale’s spent more than 30 hours on the report for
Dr. Teitel. Timesheets; see also Exhibit 54 at 14. At the end, she emailed Dr.
6
Teitel a revised draft. Timesheet (entry for Aug. 26, 2022). In her supplemental
affidavit, Ms. Toale also provided an email from Dr. Teitel in which he transmitted
the final report for Ms. Toale to file. Exhibit 54 at 17, appendix 2. 6
Regardless of Ms. Toale’s supplemental affidavit, Ms. Toale makes a strong
point regarding Dr. Teitel’s report. Exhibit 54 at 17. As filed, it contains a
signature for Dr. Teitel. Exhibit 24 at 14. According to the Expert Instructions, a
“signature confirms that the report sets forth the expert’s opinions.” Instructions,
issued Oct. 6, 2021, at 2.
Dr. Teitel’s report was filed as Exhibit 24. It is 14 pages with additional
pages for references. He stated that he spent “approximately 5 hours searching for
medical literature in this case.” Id. at 1. He opined that “the Influenza vaccine
administered 10/10/18 substantially contributed to Mr. Pisani’s subsequent
development of cryoglobulinemic vasculitis with severe neurological
manifestations and death. This was clearly a significant aggravation of his (likely)
preexisting Sjogren’s disease." Id. at 9.
Ms. Toale memorialized that she reviewed an invoice from Dr. Teitel on
September 22, 2022. Timesheets; see also Exhibit 54 at 18. It appears that Dr.
Teitel revised his invoice because the one that was filed is dated October 23, 2022.
Exhibit 48 at 57. As noted previously, this invoice does not list the dates that Dr.
Teitel did various tasks. Ms. Toale “review[ed] fee documentation for
acceptability; create note to file that fee documentation should be paid.”
Timesheet (entry for Oct. 27, 2022). Many problems could have been avoided if
Ms. Toale had rejected this invoice as not complying with the October 6, 2021
Expert Instructions and insisted that Dr. Teitel document his activities with a
greater degree of specificity.
The Secretary’s Expert Report
After receiving one enlargement of time, the Secretary countered Dr.
Teitel’s report with a report from a rheumatologist he had retained, Maxime Kinet.
Exhibit A, filed Jan. 3, 2023. Dr. Kinet disputed several aspects of Dr. Teitel’s
report and explained why the flu vaccine was not likely to have aggravated pre-
6
During the February 13, 2025 status conference, Ms. Toale originally interpreted Dr.
Teitel’s entry that he spent 4.5 hours drafting a report on some unspecified date (see Exhibit 48
at 47), as evidence that Dr. Teitel reviewed the report that she had drafted and modified it. See
Tr. 36. However, after the February 13, 2025 status conference, Ms. Toale attributed Dr. Teitel’s
work on drafting the report as occurring before July 30, 2022. Exhibit 54 at 4-6.
7
existing Sjogren’s disease by prompting the development of cryoglobulinemic
vasculitis.
Attempt to Obtain a Responsive Report from Dr. Teitel
Ms. Pisani anticipated presenting a reply report from Dr. Teitel. Pet’r’s
Status Rep., filed Mar. 8, 2023. Throughout March and April, Ms. Toale emailed
Dr. Teitel. See Timesheets. 7 Ms. Pisani did not file a responsive report by the
deadline that she had requested and, therefore, sought additional time. Essentially,
Ms. Pisani represented that Dr. Teitel was too busy with the paycheck protection
program, working in the rheumatology service, and traveling. Pet’r’s Mot., filed
May 12, 2023. The deadline was accordingly extended to July 11, 2023. Order,
issued May 12, 2023.
Ms. Pisani did not meet this deadline either. As required by the May 12,
2023 order, Ms. Pisani supported her request for additional time with a letter from
Dr. Teitel. He stated that “Due to obligations to related to patient care and other
medicolegal consulting deadlines, I need further time. . . . A deadline of 9/30/2023
would be sufficient to allow further review of the expert rebuttal report.” Exhibit
46. Thus, Ms. Pisani was afforded additional time, and a deadline was set for
October 2, 2023.
Despite Dr. Teitel’s assurances in his letter that he would produce a report
by September 30, 2023, he did not. It appears that in September 2023, he spent
less than one hour working on the report. Exhibit 48 at 63.
Without a rebuttal report from Dr. Teitel, Ms. Pisani sought a stay of her
case. The basis was “Dr. Teitel has stopped responding to calls, emails and texts
regarding today’s deadline.” Pet’r’s Mot., filed Oct. 2, 2023.8 This stay was
granted until November 3, 2023.
While the case was stayed, Dr. Teitel spent approximately 1.5 hours on
emails across various dates. Exhibit 48 at 63. Ms. Toale’s time entries are
consistent in that she replied to emails with Dr. Teitel. Timesheets (entries for Oct.
4, 2023; Oct. 10, 2023; Oct. 20, 2023); Tr. 39. In Ms. Pisani’s November 3, 2023
7
In the corresponding period, Dr. Teitel’s invoice lists only a single entry for time he
spent emailing with Ms. Toale. Exhibit 48 at 63.
8
Dr. Teitel invoice indicates that the day before Ms. Pisani sought a stay, he spent 0.1
hours on email. Exhibit 48 at 63 (Oct. 1, 2023).
8
status report, she acknowledged that Dr. Teitel had reappeared. However, he did
not anticipate submitting a rebuttal report.
End of Entitlement Phase
In the ensuing status conference, the undersigned stated that without a
rebuttal report, Ms. Pisani was unlikely to be found entitled to compensation.
Eventually, Ms. Pisani and the Secretary agreed to dismiss the case. Ms. Pisani’s
case ended with an order concluding proceedings pursuant to Vaccine Rule 21(a).
B. Attorneys’ Fees Phase
Ms. Pisani requested a total of $159,225.47 in attorneys’ fees and costs.
Pet’r’s Mot., filed June 18, 2024. Ms. Pisani supported her request with various
materials, including a memorandum of law regarding the reasonableness of costs
associated with her experts. See Exhibits 47-53. The Secretary deferred to the
undersigned’s assessment, submitting his generic response. Resp’t’s Resp., filed
July 1, 2024. Ms. Pisani submitted her firm’s relatively generic reply. Pet’r’s
Reply, filed July 1, 2024.
A preliminary review suggested there was some confusion about Dr. Teitel’s
invoices. Thus, supplemental information was requested. Order, issued Dec. 23,
2024. Ms. Pisani attempted to address the request for additional information.
Pet’r’s Resp., filed Jan. 17, 2025.
As noted previously, a status conference was held on February 13, 2025.
This status conference helped to clarify some aspects of the work the experts had
done. However, the status conference also illuminated that Ms. Toale did not
know what the experts, especially Dr. Teitel, were doing. 9
Following the status conference, Ms. Toale informally requested an
opportunity to respond to topics discussed in the February 13, 2025 status
conference. See Order, issued Feb. 21, 2025.
Ms. Toale corrected and clarified some of the answers she provided during
the February 13, 2025 status conference via the supplemental affidavit cited above.
Exhibit 54. Although Ms. Toale’s affidavit references two emails from Dr. Teitel
as appendices, those emails were filed on April 15, 2025. Ms. Toale declined the
9
During the status conference, the undersigned asked a poorly phrased question that
upset Ms. Toale. Although the undersigned apologized during the status conference, the
undersigned wishes again to express remorse.
9
right to seek fees associated with time she spent on defending the fee application.
Exhibit 54 at 17 n.22.
II. Eligibility for Attorneys’ Fees and Costs
Ms. Pisani did not receive compensation. Therefore, an award of attorneys’
fees and costs is not mandatory. Rather, Ms. Pisani becomes eligible for an award
of attorneys’ fees and costs upon a showing that “the petition was brought in good
faith and there was a reasonable basis for the claim for which the petition was
brought.” 42 U.S.C. § 300aa–15(e). Upon a finding of reasonable basis, a special
master has discretion to award (or not to award) reasonable attorneys’ fees and
costs. James-Cornelius v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379
(Fed. Cir. 2021); Wirtshafter v. Sec’y of Health & Hum. Servs., 155 Fed. Cl. 665,
675-76 (2021) (after determining that as a matter of law, reasonable basis
supported petitioner’s claim, remanding for special master to determine whether to
exercise discretion to award reasonable attorneys’ fees and costs). These two
separate parts of the analysis are explored below.
A. Good Faith and Reasonable Basis
Ms. Pisani did not receive compensation.10 Therefore, she is not entitled to
an award of attorneys’ fees and costs as a matter of right. As an unsuccessful
petitioner, Ms. Pisani becomes eligible for an award of attorneys’ fees and costs
upon a showing of “good faith and reasonable basis.” 42 U.S.C. § 300aa–15(e).
Here, although Ms. Pisani’s good faith is accepted, there are two
complications regarding reasonable basis. The first is somewhat semantic and the
second is more substantive.
The semantic point is that the crux of Ms. Pisani’s September 23, 2020
petition alleges that Mr. Pisani suffered Guillain-Barré syndrome. Pet. ¶ 26. 11 As
10
This case resolved via an order concluding proceedings. This method of disposition
may lead to an award of attorneys’ fees and costs. See Grice v. Sec’y of Health & Hum. Servs.,
36 Fed. Cl. 114 (1996). The question is whether good faith and reasonable basis support the
claims. See Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 375 (2017) (denying
motion for review of decision finding that petitioner lacked reasonable basis in a case that ended
with an order concluding proceedings).
11
To be sure, the petition contains alternative allegations referring to other injuries. Pet.
¶ 27. However, these vague assertions cannot support a claim for compensation. See, e.g.,
Lapierre v. Sec'y of Health & Hum. Servs., No. 17-227V, 2019 WL 6490730, at *17 (Fed. Cl.
Spec. Mstr. Oct. 18, 2019) (“the mere fact that the Petitioner's alleged injury is more vague in
nature is not necessarily dispositive of his claim. Respondent is, however, on firm ground in
10
such, per the Vaccine Act, Ms. Pisani is required to show that reasonable basis
supported this claim because the statute demands reasonable basis “for the claim
for which the petition was brought.” 42 U.S.C. § 300aa–15(e). Here, Ms. Pisani
dropped the claim for Guillain-Barré syndrome. See Order, issued Oct. 6, 2021
(noting that petitioner stated that “though the correct diagnosis is unclear at this
time, the expert will help to clarify that point of petitioner’s case”); Order, issued
June 1, 2022 (noting that petitioner stated in a status conference that she would not
be pursuing a claim for Guillain-Barré syndrome); see also Exhibit 24 (expert
report of Dr. Teitel, discussing Mr. Pisani’s Sjogren’s syndrome). Thus, the better
practice would have been to amend the petition to allege that the flu vaccine
significantly aggravated a pre-existing condition, Sjogren’s syndrome. But, the
discrepancy can be overlooked.
The more substantive concern is whether reasonable basis supports a claim
that the flu vaccine significantly aggravated Mr. Pisani’s Sjogren’s syndrome.
Normally, the presence of an expert’s report would confer reasonable basis. See,
e.g., James-Cornelius on Behalf of E. J. v. Sec'y of Health & Hum. Servs., 984
F.3d 1374, 1379 (Fed. Cir. 2021); but see Perreira v. Sec'y of Dep't of Health &
Hum. Servs., 27 Fed. Cl. 29, 33-34 (1992) (special masters have discretion to deny
fees even when an expert has provided testimony), aff'd, 33 F.3d 1375, 1377 (Fed.
Cir. 1994).
Here, Ms. Toale’s predominant role in drafting the report for Dr. Teitel
raised questions about the report. These questions arose, in part, because of the
lack of entries from Dr. Teitel. However, during the February 13, 2025 status
conference, Ms. Toale accurately pointed out that Dr. Teitel signed his report.
Exhibit 24 at 14. Ordinarily, this signature should demonstrate that the expert
agrees with the content of the report. See Instructions, issued Oct. 6, 2021, at 2.
maintaining that proof of some injury (as opposed to simply symptoms) is required to prevail in a
Vaccine Act case (since the absence of an injury at all will end the proceedings without any need
to consider the Althen prongs)”) (citing Lasnetski v. Sec'y of Health & Human Servs., 128 Fed.
Cl. 242, 262 (Fed. Cir. 2017) (symptoms alone could not satisfy petitioner's burden, because “a
symptom or manifestation could indicate any number of different underlying injuries, each with
its own pathology, making it impossible for the court to accurately determine causation”) aff'd,
696 F. App'x 497 (2017)).
11
Moreover, after the status conference, Ms. Toale submitted emails showing that
Dr. Teitel presented a draft report to Ms. Toale.
Therefore, Mr. Pisani has demonstrated that reasonable basis supports a
claim that the flu vaccine significantly aggravated his Sjogren’s syndrome.
Although, again, this is not the claim set forth in the petition, this lack of precision
will be overlooked. Mr. Pisani is, therefore, eligible for an award of attorneys’
fees and costs.
Technically, Mr. Pisani’s eligibility for an award of attorneys’ fees and costs
does not end the matter. Even when a petitioner establishes good faith and
reasonable basis, “a special master retains discretion to grant or deny attorneys’
fees.” James Cornelius, 984 F.3d at 1379. Here, as a matter of discretion, Mr.
Pisani is awarded a reasonable amount of attorneys’ fees and costs. What is
reasonable is taken up next.
III. Reasonable Amount of Attorneys’ Fees and Costs
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018). Mr. Pisani’s application is divided into
two components: attorneys’ fees and attorneys’ costs.
A. Reasonable Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
1. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
12
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
For cases in which forum rates apply, McCulloch provides a framework for
consideration of appropriate ranges for attorneys’ fees based upon the experience
of the practicing attorney. McCulloch v. Sec'y of Health & Hum. Servs., No. 09-
293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), mot. for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015).
The attorneys who logged the most hours on the case were Anne Toale
(118.6 hours) and Isaiah Kalinowski (107 hours). See Timesheets at 41-42. Ms.
Toale, Mr. Kalinowski, and their associates practice in Washington D.C. and in
Florida. These areas are deemed in forum or comparable to it. See Nicol v. Sec'y
of Health & Hum. Servs., No. 21-1837V, 2023 WL 4855195, at *2 (Fed. Cl. Spec.
Mstr. July 6, 2023) (citing Dezern v. Sec'y of Health & Hum. Servs., No. 13-643V,
2016 WL 6678496, at *4 (Fed. Cl. Spec. Mstr. Oct. 14, 2016). Accordingly, the
rates set forth in McCulloch are appropriate.
Petitioner requests compensation for Ms. Toale as follows:
Year Rate
2021 $475
2022 $500
2023 $535
2024 $570
Ms. Toale has routinely been awarded these rates in other cases in the Office
of Special Masters. See, e.g., Ferrari v. Sec'y of Health & Hum. Servs., No. 19-
93V, 2024 WL 4503644, at *2 (Fed. Cl. Spec. Mstr. Aug. 22, 2024); Goettl v.
Sec'y of Health & Hum. Servs., No. 21-1644V, 2024 WL 2892844, at *2 (Fed. Cl.
Spec. Mstr. May 14, 2024); see also Exhibit 50 at 2-3 (affidavit of Ms. Toale,
citing cases). These rates are reasonable.
Petitioners have requested the following rates for Mr. Kalinowski:
Year Rate
2019 $383
2020 $405
2021 $430
13
These rates are reasonable and are consistent with what Mr. Kalinowski has
been awarded in the past. See, e.g., Godfrey v. Sec'y of Health & Hum. Servs., No.
17-1419V, 2023 WL 5666162, at *5 (Fed. Cl. Spec. Mstr. Aug. 15, 2023); Godek
v. Sec'y of Health & Hum. Servs., No. 19-106V, 2022 WL 2903360, at *3 (Fed.
Cl. Spec. Mstr. June 30, 2022).
Various other attorneys from the firm also contributed to the case. Petitioner
requests a rate of $400 for the work of Altom Maglio and FJ Caldwell in 2019;
rates of $450 and $480 for the work of Danielle Strait in 2023 and 2024; rates of
$415 and $490 for the work of Diana Stadelnikas in 2019 and 2022; and a rate of
$385 for the work of Joseph Vuckovich in 2022. Timesheets at 41. These rates
are reasonable and are consistent with previous awards to the firm and its
attorneys. See, e.g., Ferrari, 2024 WL 4503644, at *2; Goettl, 2024 WL 2892844,
at *2; Huerta v. Sec'y of Health & Hum. Servs., No. 21-2100V, 2024 WL 1859820,
at *2 (Fed. Cl. Spec. Mstr. Apr. 4, 2024); A.P. v. Sec'y of Health & Hum. Servs.,
No. 17-784V, 2023 WL 9502993, at *2 (Fed. Cl. Spec. Mstr. Dec. 20, 2023).
Finally, petitioner requests an award for the work completed by the firm’s
paralegals. The firm differentiates between “paralegals” and “medical record
paralegals.” The requested rates are:
Year Paralegal Rate Medical Record Paralegal Rate
2018 $148 --
2019 $154 $145
2020 $160 $145
2021 $160 - $165 $155
2022 $160 - $170 $160
2023 $180 $170
2024 $190 --
Timesheets at 41-42. These rates are reasonable and are consistent with previous
awards to the firm. See, e.g., Murphy v. Sec'y of Health & Hum. Servs., No. 21-
1334V, 2024 WL 982645, at *2 (Fed. Cl. Spec. Mstr. Feb. 1, 2024); Hendrickson
v. Sec'y of Health & Hum. Servs., No. 17-006V, 2023 WL 166410, at *3 (Fed. Cl.
14
Spec. Mstr. Jan. 11, 2023); Stuart v. Sec'y of Health & Hum. Servs., No. 16-940V,
2022 WL 176145, at *5-6 (Fed. Cl. Spec. Mstr. Jan. 5, 2022).
2. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
Mr. Kalinowski spent a total of 61.3 hours solely dedicated to “review[ing]
[medical records] for filing and integrat[ing] information into ARMOR medical
summary.” A few other entries contain this task in addition to other work. See,
e.g., entry for 06/29/2020. For the most part, Mr. Kalinowski provided detailed
entries regarding the medical records, citing the exhibits and pages he worked on.
There is one instance of block billing on December 22, 2019, where Mr.
Kalinowski logged 11.2 hours for reviewing various documents, reviewing and
integrating medical records, and preparing exhibits for filing. However, this one
instance does not warrant reduction.
Ms. Toale’s time entries also provide sufficient descriptions of her activities.
However, the amount of money charged for her drafting of an expert’s report is
unreasonable.
As an initial point, Ms. Toale was the primary drafter of the report that Dr.
Teitel eventually signed. From the document filed into the record on June 18,
2024, Dr. Teitel emailed a draft report on July 30, 2022. According to his invoice,
before July 30, 2022, Dr. Teitel appears to have spent a total of 6.3 hours
reviewing medical literature and drafting the report. Exhibit 48 at 57. 12
Between August 17, 2022 and August 26, 2022, Ms. Toale spent
approximately 30.3 hours drafting additions and revisions to Dr. Teitel’s report and
finding medical literature for the same. Timesheets at 29-30. In other words, Ms.
Toale spent nearly five times as many hours as Dr. Teitel did drafting Dr. Teitel’s
12
The invoice does not contain dated entries, so it is uncertain whether all this work was
completed prior to Dr. Teitel’s sending of the draft on July 30, 2022. However, Dr. Teitel’s next
invoice has activities from July 8, 2022 through October 26, 2023, and contains no entries for
literature review or report writing for the 2022 dates. It is presumed that these invoices do not
overlap and that all literature review and report writing on the first report was recorded in the
first invoice and took place prior to July 8, 2022.
15
report in 2022.13 This disparity is concerning. It is unclear how much of the report
is Dr. Teitel’s own work. The disproportionate number of hours spent by Ms.
Toale on the report tends to suggest that it is predominantly her work.
Although Dr. Teitel signed and adopted the draft as revised by Ms. Toale, it
is unclear whether and how substantively he actually reviewed the draft. Ms.
Toale sent him the revised draft and additional medical literature on August 26,
2022. Timesheets at 31. Dr. Teitel’s second invoice reports that he exchanged
emails about the case in July 2022. The next entry is one for emails in September
2022. Exhibit 48 at 63. There are no notes for literature review or report writing
in August 2022.
Ostensibly, some portion of Dr. Teitel’s first invoice (dated October 23,
2022) could include time spent reviewing Ms. Toale’s work. However, these
entries are undated and only the totals are reported. It is therefore impossible to
ascertain whether any of this time was spent on Ms. Toale’s edited draft of the
report, or if it all applies to the initial draft. Additionally, it is unclear why entries
on this first invoice would overlap with his second invoice, which contains entries
for July of 2022. The only entry indicating that Dr. Teitel might have, in fact,
reviewed the report beyond signing it is Ms. Toale’s entry for .3 hours spent on
“Emails with expert regarding final draft report” on August 30, 2022 (the date of
filing). Timesheets at 31. However, between her email of the revised draft on
August 25 and the emails on August 30, there are no entries for communication
with Dr. Teitel regarding the report and revisions. In sum, it appears—but is not
certain—that Dr. Teitel did not spend much, if any, time reviewing the report
before signing off on it.
To be sure, Ms. Toale made some effort to involve Dr. Teitel in the report
drafting, in that she sent it to him for review and followed up via email on the date
of filing. But, ultimately, the report appears to be overwhelmingly the work of Ms.
Toale.
In the February 13, 2025 status conference, Ms. Toale argued that in the
Vaccine Program, attorneys are permitted to write reports that experts review and
sign. For this proposition, Ms. Toale relied upon Gruber v. Sec'y of Health &
Human Servs., 91 Fed. Cl. 773 (2010). Although Gruber is not a precedential
13
Dr. Teitel recorded that he spent an additional 2.2 hours on literature review and 1.1
hours on report writing in May and July, 2023. Exhibit 48 at 63. As this was several months
after the first report was filed, it seems likely that this was work on a potential second report that
was never completed.
16
opinion from the Federal Circuit and, therefore, is not controlling, Ms. Toale’s
reliance on Gruber is reasonable as the Expert Instructions cited Gruber. However,
Gruber does not extend the authority to write expert reports to attorneys carte
blanche. Gruber recognizes “there is a point at which counsel’s involvement, or
certainly, direction as to the outcome of an expert opinion crosses the line of
propriety.” Gruber, 91 Fed. Cl. at 795.
Moreover, after Gruber, opinions from outside of the Vaccine Program have
frowned upon an attorney’s drafting an expert’s report. For example, in Gerke v.
Travelers Ins. Co., 289 F.R.D. 316 (D. Or. 2013), a district court ordered
production of draft reports because “there was a question whether Plaintiff’s
counsel’s involvement in the creation of Painter’s expert report exceeded Rule 26’s
limits.” Id. at 328. The district court reached this conclusion despite the testimony
of the expert, whose name was Painter, that “the final report’s conclusions and
opinions were his.” Id. Quoting McClellan v. I-Flow Corp., 710 F.Supp.2d 1092
(D. Or. 2010), Gerke stated “an expert report ‘ghost-written’ from ‘whole cloth’
violates the spirit, if not the letter of [Rule 26 of the Federal Rules of Civil
Procedure].” 289 F.R.D. at 326. Gerke reserved, for a later day, whether the
opinions of the expert were admissible. Id. at 329 n.6.
A more severe penalty, the barring of testimony from an expert named
Michael Justice, occurred in Numatics, Inc. v. Balluff, Inc., 66 F.Supp.3d 934 (D.
Mi. 2014). Based upon Mr. Justice’s deposition testimony, the Court found that he
was “nothing more than a ‘highly qualified puppet’ and the opinions in his report
do not reflect his own reasoned views of the case.” Id. at 945.
The purpose of citing Gruber, Gerke, and Numatics is to show that an
attorney’s drafting of an expert’s report, even if within the bounds of attorney
ethics, can have negative consequences.14 Thus, the better practice is for an expert
to take the lead in presenting his (or her) opinions.
For her work in drafting a report for a medical doctor in 2022, Ms. Toale has
proposed charging $500. This rate of $500 is appropriate when Ms. Toale
performs duties for which she has received legal training and has legal experience.
A pertinent example is drafting a brief. By way of contrast, Dr. Teitel attended
medical school, became board certified in 1992, and routinely treats people with
14
For more general evaluations of this issue, see 8A Charles Alan Wright, Arthur R.
Miller & Richard L. Marcus, Fed. Prac. & Proc. Civ. § 2031.1 n. 17 (3d ed.), and Arthur F.
Greenbaum, Expert Witness Reports in Federal Civil Litigation: The Role of the Attorney in the
Expert Witness Report's Preparation, 48 Hofstra L. Rev. 131 (2019).
17
rheumatologic diseases. Ms. Toale, although a competent attorney, possesses none
of these qualifications. Dr. Teitel charged $360 per hour for his work. See Exhibit
48 at 62. Ms. Toale will be compensated at Dr. Teitel’s rate for her time on these
tasks. 15 This results in a reduction of $4,242, making the potential compensation
for this portion of Ms. Toale’s work $10,908.16
An additional adjustment is warranted. The expert report was not
particularly helpful to petitioner’s case. The report does not clearly explain a
mechanism by which a flu vaccine could cause cryoglobulinemic vasculitis. The
report relies heavily on case reports, which do not propose a causal mechanism.
See Exhibit 24 at 10-13; see also Exhibit A at 7. The report also cites to an article
by Brauner et al. (Exhibit 39) and states that this study “provides a reliable medical
theory how influenza vaccination can cause B cell activation in untreated [primary
Sjögren’s syndrome] patients, leading to [cryoglobulinemic vasculitis].” Exhibit
24 at 11. However, the Brauner article does not discuss vasculitis.
Dr. Teitel’s report also discusses a theory involving the reactivation of latent
cryoglobulin producing B-cell clones. Id. at 12-13. As Dr. Kinet opined in his
rebuttal report, “This proposed mechanism is speculative at best and supported by
no other experimental evidence.” Exhibit A at 7. Furthermore, the study and case
report Dr. Teitel relied upon for this theory involved the COVID vaccine and
patients with pre-existing vasculitis, neither of which are relevant to the case at
hand.
Furthermore, as Dr. Kinet noted, Dr. Teitel’s report does not state when he
believed petitioner’s cryoglobulinemic vasculitis began. See Exhibit A at 8. Mr.
Pisani received his vaccine on October 10, 2018. Dr. Teitel states, “The finger
numbness and right leg pain,” which was reported on October 30, 2018,
“constituted the onset of his CV, in my opinion.” Exhibit 24 at 2. Yet, he later
stated that Mr. Pisani’s injury manifested “five days after vaccination.” Id. at 13.
This appears to refer to petitioner’s October 15, 2018 complaint to a doctor about
gastrointestinal symptoms and lack of appetite. Id. at 1-2. However, at that time,
Mr. Pisani stated that his symptoms had started two weeks prior—meaning they
15
In Gruber, there was arguably an efficiency to Ms. Toale’s drafting the expert’s report
because Ms. Toale was then charging either $250.00 per hour or $275.00 per hour and the expert
was charging $350.00 per hour. However, here, Ms. Toale has proposed charging $140.00 per
hour more than Dr. Teitel.
16
(30.3 hours x $500) – (30.3 hours x $360) = $15,150 - $10,908 = $4,242.
18
would predate the vaccine. Id. In sum, Dr. Teitel’s report did little to advance
petitioner’s case.
When experts do not perform as well as expected, special masters may
reduce their hourly rates in particular cases. Frantz v. Sec’y of Health & Hum.
Servs., 146 Fed. Cl. 137, 146 (2019); Murray v. Sec’y of Health & Hum. Servs.,
No. 19-1976V, 2023 WL 9503422, at *2-3 (Fed. Cl. Spec. Mstr. Dec. 22, 2023)
(reducing expert’s rate from $500 per hour to $100 per hour). Likewise, special
masters may reduce attorney’s rates. Saxton v. Sec'y of Health & Hum. Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993). “The essential goal in shifting fees (to either
party) is to do rough justice, not to achieve auditing perfection. So trial courts may
take into account their overall sense of a suit, and may use estimates in calculating
and allocating an attorney's time.” Fox v. Vice, 563 U.S. 826, 838 (2011); see also
Florence v. Sec'y of Health & Hum. Servs., No. 15-255V, 2016 WL 6459592, at *5
(Fed. Cl. Spec. Mstr. Oct. 6, 2016). To achieve rough justice, a further reduction
of one-third ($3,636) will be applied to this portion of Ms. Toale’s fees. On the
other hand, all of Ms. Toale’s hours spent on writing the report for Dr. Teitel are
accepted as reasonable. 17
The remainder of the fees incurred by Ms. Toale and the other attorneys at
mctlaw are reasonable and awarded in full. Accordingly, a reasonable amount of
attorneys’ fees and costs is $129,339.70.18
B. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$22,007.77 in attorneys’ costs. Exhibit 48 at 1-2. The costs include postage, legal
and medical research, filing fees, acquiring medical records, and payment to an
expert locating service (Guidepoint Global). Id. Most of these costs are routine.
Most are reasonable and adequately documented.
Within the category of non-expert costs, the only unreasonable charge is the
payment to Guidepoint Global for presenting the services of Dr. Teitel. Ms.
17
The crediting of all Ms. Toale’s hours differentiates the outcome from the special
master’s decision in Gruber. There, the Court vacated the special master’s reduction of
approximately 45 hours of attorney time and 14 hours of paralegal time. 91 Fed. Cl. at 796.
18
$137,217.70 (requested fees) - $4,242 (reduction of hourly rate on expert report) -
$3,636 (reduction of one-third for expert report) = $129,339.70.
19
Toale’s law firm has paid $2,500.00. However, the product that Guidepoint Global
delivered was extremely problematic. Dr. Teitel, apparently, was not the primary
draftsperson of the report he signed. He kept poor records of his time. When a
responsive report was required, he failed to communicate with Ms. Toale. Under
these circumstances, it appears that Guidepoint Global did not fulfill its bargain
and therefore, a refund of a portion of its charge would be appropriate.
Accordingly, the charge associated with Guidepoint Global is reduced by half,
resulting in a deduction of $1,250.00.
Ms. Pisani also seeks reimbursement for mctlaw’s payments to experts. The
firm consulted three experts for the case: two neurologists (Dr. Sheikh and Dr.
Jeret) and a rheumatologist (Dr. Teitel). Although the firm ultimately only
retained Dr. Teitel to write an expert report, mctlaw requests $1,000 (Dr. Sheikh)
and $2,100 (Dr. Jeret) to pay the neurologists for their consultations. Ms. Toale
explained in a supplemental statement that these experts were consulted because
there “is record support for a diagnosis of GBS,” and so “it was incumbent upon
counsel to ensure that there was no conceivable path forward for a table claim” and
“to thoroughly analyze the viability of this table claim before it could be
abandoned.” Pet’r’s Suppl. Mem., filed Jan. 17, 2025, at 2. Ms. Toale noted that
“consulting experts who incurred minimal expert expenses reviewing a case for
potential engagement” have been compensated in other Program cases and cited
examples. Id. The Secretary did not raise any objections to this consultation of a
second neurology expert.
Reasonable expert fees are determined using the lodestar method, in which a
reasonable hourly rate is multiplied by a reasonable number of hours. Caves v.
Sec'y of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013). To determine the
reasonableness of an expert’s proposed rate, special masters may consider the
“area of expertise; the education and training required to provide necessary insight;
the prevailing rates for other comparably respected available experts; the nature,
quality, and complexity of the information provided; [and] the cost of living in the
expert's geographic area.” Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl.
201, 206 (2009). Furthermore, “[p]etitioner has the burden of providing the
foregoing information concerning expert fees.” Id.
Dr. Sheikh spent a total of two hours over the course of two days reviewing
the case materials and communicating with petitioner’s attorney. Exhibit 48 at 40.
He billed a rate of $500 per hour for the consultation. Dr. Sheikh has previously
been awarded this rate. See, e.g., Wynne v. Sec'y of Health & Hum. Servs., No.
17-1908V, 2022 WL 1869355, at *3 (Fed. Cl. Spec. Mstr. May 3, 2022); Shinskey
v. Sec'y of Health & Hum. Servs., No. 15-713V, 2019 WL 2064558, at *5 (Fed.
20
Cl. Spec. Mstr. May 9, 2019). Dr. Sheikh’s invoice is reasonable and will be
awarded in full. See Kriebel v. Sec'y of Health & Hum. Servs., No. 21-1491V,
2025 WL 1235136, at *3 (Fed. Cl. Spec. Mstr. Apr. 1, 2025) (awarding Dr. Sheikh
a rate of $600 per hour for 7.75 hours of work reviewing records and providing a
consultation).
Dr. Jeret billed $350 per hour for six hours of work reviewing petitioner’s
records, reviewing medical literature, communicating with petitioner’s attorney,
and writing a preliminary report. Exhibit 48 at 53. Dr. Jeret has previously been
awarded $500 per hour for work performed in 2022 in cases in which he was
formally retained and produced an expert report. See, e.g., Williams v. Sec'y of
Health & Hum. Servs., No. 19-1269V, 2024 WL 1253768, at *5 (Fed. Cl. Spec.
Mstr. Feb. 28, 2024); Nieves v. Sec'y of Health & Hum. Servs., No. 18-1602V,
2023 WL 7131801, at *4 (Fed. Cl. Spec. Mstr. Oct. 2, 2023). Dr. Jeret’s rate of
$350 per hour for a consultation and the work performed is reasonable and will be
awarded in full.
It appears that Dr. Teitel has not previously participated in the Vaccine
Program. Dr. Teitel billed $360 per hour for his work. Dr. Teitel graduated from
medical school in 1985, completed an internal medicine residency in 1988, and
completed a rheumatology fellowship in 1992. See Exhibits 24 and 25. He is
board certified in internal medicine and rheumatology. At the time of writing the
report, he was a Clinical Associate Professor at NYU Langone and an Assistant
Attending in the Hospital for Special Surgery at Weill-Cornell University Medical
Center. Id. Dr. Teitel has been published in rheumatology journals numerous
times. Exhibit 25 at 3-5. A rate of $360 is potentially reasonable for an expert
with Dr. Teitel’s experience.
Dr. Teitel’s invoices amount to $14,574.54. Dr. Teitel spent 1.8 hours
researching medical literature and 4.5 hours drafting the expert report, amounting
to 6.3 hours of work researching and writing the report. As noted, Ms. Toale spent
nearly five times as many hours as Dr. Teitel on these tasks for the report filed on
August 30, 2022 as Exhibit 24. In 2023, after the report had been filed, Dr. Teitel
spent an additional 2.2 hours on medical literature and 1.1 hours on drafting.
Across the two invoices, Dr. Teitel spent 25.6 hours reviewing Mr. Pisani’s
medical records and 6.2 hours writing and responding to emails. Exhibit 48 at 57,
62-63.
Just as Ms. Toale’s fees were reduced for her work on this report, so too are
Dr. Teitel’s. As discussed, Dr. Teitel submitted a draft report to Ms. Toale on July
30, 2022. Whatever Dr. Teitel produced apparently required approximately 30
21
hours of work from Ms. Toale to improve. In any event, despite the combined
efforts from Ms. Toale and Dr. Teitel, the expert report was not particularly helpful
to petitioner. When experts fail to produce a report of good quality, special masters
may reduce an award. See Frantz, 146 Fed. at 146 (2019); Murray, 2023 WL
9503422, at *2-3.
Additionally, fees may be reduced for vagueness and inefficiency. See, e.g.,
Lewis v. Sec'y of Health & Hum. Servs., 149 Fed. Cl. 308, 317 (2020) (special
master did not abuse discretion in reducing fees for lack of specificity in billing
narrative); see also id. at 321 (“A special master has discretion to reduce the
number of hours an expert is awarded due to inefficiencies”). Dr. Teitel was
reportedly difficult to get into contact with, and he kept vague invoices with often
undated entries such as “E mail,” “literature review,” “report writing,” and “chart
review.” Exhibit 48 at 63; see also Tr. at 8 (Ms. Toale stating that Dr. Teitel “has
some of the worst billing of any expert that I’ve ever used”).
For these reasons, Dr. Teitel’s fees are reduced by one-third, resulting in a
deduction of $4,858.18. Petitioner is thus awarded $9,716.36 for Dr. Teitel’s
work.
A reasonable amount of attorneys’ costs is $15,899.59.19
IV. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, the undersigned awards $145,239.29,
representing $129,339.70 in attorneys’ fees and $15,899.59 in costs.20 This
amount shall 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 the court is directed to enter judgment
herewith. 21
19
$22,007.77 (requested costs) - $1,250 (reduction for Guidepoint Global) - $4,858.18
(reduction of one-third for Dr. Teitel’s work on report and poor invoicing) = $15,899.59.
20
$159,225.47 (total requested) - $4,242 (reduction of Ms. Toale’s hourly rate for work
on report) - $3,636 (reduction of one-third for Ms. Toale’s work on report) – $1,250 (reduction
for Guidepoint Global) - $4,858.18 (reduction of one-third for Dr. Teitel’s work on report) =
$145,239.29.
21
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
22
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
23