Jennings v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

*********************

DANIELLE JENNINGS, * No. 16-779V

* Special Master Christian J. Moran

Petitioner, *

* Filed: January 22, 2021

v. * Reissued: April 23, 2021

*

SECRETARY OF HEALTH * attorneys’ fees and costs, reasonable

AND HUMAN SERVICES, * basis, expert’s hourly rate

*

Respondent. *

*********************

Scott W. Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner;

Darryl Wishard, U.S. Dep’t of Justice, Washington, DC, for respondent.

PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS*

Danielle Jennings sought an award through the National Childhood Vaccine

Injury Compensation Program (the “Vaccine Act”), 42 U.S.C. § 300aa—10 to 34

(2012). She alleged that a human papillomavirus (“HPV”) vaccine she received

caused her to develop various conditions, including asthma/breathing problems.

Pet., filed June 30, 2016. Ms. Jennings was not awarded compensation primarily

because she did not establish that she suffered from many conditions she alleged

the HPV vaccine caused her to suffer. Decision, issued July 8, 2020.

As the Vaccine Act permits, Ms. Jennings seeks an award of attorneys’ fees

and costs. She is awarded $62,738.17.

* The parties were informed that this decision would be made available to the public. Ms.

Jennings sought redaction of this decision, but her motions were denied. Orders, issued Oct. 19,

2020 and Sep. 15, 2020. After Ms. Jennings requested that the Court of Federal Claims review

the orders denying redaction, the Court denied the motion for review. Order, issued Feb. 8,

2021. Accordingly, this decision is being posted as originally submitted, except for modification

to this footnote.

I. Procedural History

Ms. Jennings’s case proceeded through two distinct phases. The first

concerns her claim that she was entitled to compensation. The second concerns

her motion for attorneys’ fees and costs.

A. Entitlement Phase

Ms. Jennings began this case by filing a petition on June 30, 2016. 1 As part

of the response to the petition, the undersigned issued an order regarding attorneys’

fees. Order, issued July 7, 2016. She filed a collection of medical records.

Petitioner periodically filed medical records and other documents over the next six

months.

The Secretary reviewed the submitted material and summarized the medical

records. Resp’t’s Rep., filed May 1, 2017, at 2-8. After reviewing the standards

for entitlement, the Secretary argued that petitioner had not established that Ms.

Jennings was entitled to compensation. The Secretary “disputes that petitioner has

demonstrated that vaccine-related injury.” Id. at 9. The Secretary indicated that

neither a treating doctor nor a retained expert offered any theory to explain how a

vaccine caused Ms. Jennings’s injury. Id. The Secretary also disputed the

temporality in that some symptoms occurred before the vaccination and some

diagnoses occurred months after the vaccination. Id. at 11.

The undersigned proposed a set of instructions for the expert, which later

became final. Order, issued Aug. 2, 2017. The instructions directed the way

experts for petitioners were to prepare invoices for their work.

Petitioner filed an amended petition. The amended petition alleges that

Danielle Jennings “continues to suffer from a toxic reaction to the vaccinations as

identified above.” Am. Pet., filed June 21, 2017, ¶ 11. The amended petition does

not specify a particular disease or condition that the vaccinations allegedly caused.

However, the amended petition does assert that after the vaccinations, Ms.

Jennings experienced “hand numbness, headaches, handwriting difficulties, visual

1 Initially, Denise Jennings, the mother of Danielle Jennings, acted as petitioner because

Danielle had not reached the age of majority. However, Danielle eventually became the

petitioner. Order, issued Aug. 23, 2018. Whether Denise Jennings or Danielle Jennings was the

petitioner does not affect the outcome.

2

comprehension difficulties” as well as “memory impairments and neurologic

impairments.” Id. ¶¶ 9-10.

Petitioner filed the first report from Dr. Santoro on May 29, 2018. Exhibit

26. This report did not comply with the August 2, 2017 Expert Instructions. For

example, Dr. Santoro did not define the condition that was affecting Danielle.

Consequently, petitioner was ordered to obtain a supplemental report. Order,

issued June 25, 2018.

This supplemental report from Dr. Santoro was filed on August 23, 2018.

Exhibit 27. Dr. Santoro, again, did not reach a conclusion about Danielle’s

diagnosis. Order, issued Sept. 17, 2018. The Secretary intended to file an expert

report in response.

After similarly receiving multiple enlargements of time, the Secretary filed a

report from Dr. MacGinnitie on February 14, 2019. Exhibit A. Dr. MacGinnitie

challenged many aspects of Dr. Santoro’s opinion, including the lack of diagnosis.

Id. at 4-5, 9.

Petitioner’s response to Dr. MacGinnitie’s report took place in two forms.

Denise Jennings challenged some of Dr. MacGinnitie’s factual assertions in an

affidavit. Exhibit 39. Dr. Santoro disputed some of Dr. MacGinnitie’s medical

opinions in two more reports. Exhibits 40-41.

The Secretary filed another report from Dr. MacGinnitie on September 10,

2019. Exhibit P. 2 The parties were directed to file briefs regarding entitlement.

Order, issued Sept. 25, 2019. This order allowed the parties to file a limited

amount of additional information, including updated medical records for Danielle.

Petitioner filed her brief with additional evidence on March 4, 2020.

Exhibits 42-53. The Secretary filed his brief on March 27, 2020. The Secretary,

too, filed additional evidence. Exhibits U-Z.

The undersigned found that Ms. Jennings was not entitled to compensation.

On the claims that the HPV vaccination caused her to suffer allergies, chronic

fatigue syndrome, and a gastrointestinal illness, Ms. Jennings had not established

that she suffered from any of these. This lack of proof regarding an appropriate

diagnosis prevented Ms. Jennings from receiving compensation. See Lombardi v.

2 The Secretary also designated another document as exhibit P, a disciplinary action

against Dr. Neuenschwander, that was filed on July 15, 2019.

3

Sec’y of Health & Human Servs., 656 F.3d 1343, 1353 (Fed. Cir. 2011). For

another condition that Ms. Jennings did suffer, asthma and breathing difficulties,

Ms. Jennings did not receive compensation because the medical records showed

that she suffered those problems before receiving the vaccination. Thus, the

vaccination could not have caused Ms. Jennings to suffer asthma and breathing

problems. See Locane v. Sec'y of Health & Human Servs., 685 F.3d 1375, 1380-

81 (Fed. Cir. 2012). After the time for filing a motion for review lapsed, judgment

entered on August 10, 2020.

B. Attorneys’ Fees and Costs Phase

Ms. Jennings requested attorneys’ fees and costs. To establish her

eligibility, Ms. Jennings argued that reasonable basis supported her claim in that

that she “received a vaccination that, within a short time thereof, caused her to

develop injuries as set forth in the Petition and medical records.” Pet’r’s Mot.,

filed July 22, 2020, ¶ 3. Ms. Jennings did not discuss the July 8, 2020 decision,

which found that Ms. Jennings did not develop the injuries as set forth in her

amended petition.

The Secretary stated that he “is satisfied the statutory requirements for an

award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed July

23, 2020, at 2. However, the Secretary, too, did not explain how the statutory

requirements are met and did not address the July 8, 2020 decision. With respect

to the amount of attorneys’ fees and costs, the Secretary filed his standard response

in which he deferred to the special master.

Given that neither party discussed the findings in the July 8, 2020 decision

that Ms. Jennings did not suffer from the conditions for which she claimed

compensation, the undersigned directed the parties to file supplemental briefs

regarding reasonable basis. The undersigned also encouraged petitioner to develop

evidence regarding the amount Dr. Santoro had requested. Order, issued July 23,

2020. During this time, the Federal Circuit issued Cottingham v. Sec’y of Health

& Human Servs., 971 F.3d 1337 (Fed. Cir. 2020). Thus, the parties were directed

to discuss this new precedent. Order, issued August 25, 2020.

Ms. Jennings filed a supplemental brief. Over the course of approximately

ten pages, she argued that the claims regarding asthma, chronic fatigue syndrome,

and gastrointestinal disease were reasonable. Pet’r’s Supp’l Br., filed Sep. 23,

2020, at 4-10. Ms. Jennings also presented four exhibits of which one reproduced

a special master’s decision.

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The Secretary’s response, which was filed the next day, did not discuss any

of the facts of Ms. Jennings’s medical history, although the Secretary did set out

the procedural history in one paragraph. Resp’t’s Resp., filed Sept. 24, 2020. In

conclusion, the Secretary stated: “Respondent defers to the Special Master to

determine whether the record evidence as a whole in this particular case, in light of

Vaccine Program precedent, supports the conclusion that petitioner’s claim had a

reasonable basis.” Id. at 4. The Secretary did not explain a shift in position.

Previously, he previously had stated that he was satisfied that Ms. Jennings had

met her burden. See Resp’t’s Resp., filed July 23, 2020, at 2.

Citing Penson v. Ohio, 488 U.S. 75, 84 (1988); Mote v. Wilke, 976 F.3d

1337, 1346 (Fed. Cir. 2020); and McIntosh v. Sec’y of Health & Human Servs.,

139 Fed. Cl. 238 (2018), the undersigned directed the Secretary “to take a position

regarding whether ‘there was a reasonable basis for the claim for which the petition

was brought.’” Order, issued Sep. 28, 2020, at 3, quoting 42 U.S.C. § 300aa–

15(e). The undersigned explained that a “discussion of the evidence (not a

recitation of the law) would encompass at least five pages.” Id.

The Secretary declined to discuss the evidence. Instead, the Secretary

maintained “Respondent has again reviewed the objective evidence, and again

states in this response that he does not object to an award of attorneys’ fees and

costs due to a lack of reasonable basis.” Resp’t’s Resp., filed Oct. 15, 2020, at 7.

The Secretary also “defers to the discretion of the Special Master – as the

adjudicator of the question at issue here under Section 15(e) of the Act – to

determine whether, in his view, the objective evidence based on the totality of the

circumstances supports a conclusion that petitioner’s claim had a reasonable basis,

and, if so, to award reasonable attorneys’ fees and costs.” Id. at 8.

Ms. Jennings has not filed a reply. However, Ms. Jennings stated that Dr.

Santoro died in October 2020. Pet’r’s Status Rep. filed Oct. 19, 2020.

Nonetheless, Ms. Jennings provided additional information regarding the

reasonableness of the amount requested for Dr. Santoro. Pet’r’s Status Rep., filed

Dec. 3, 2020. In response from inquiries from the undersigned, Ms. Jennings

provided additional information about the costs she is requesting. Exhibits 54-56.

With these submissions, Ms. Jennings’s motion is ready for adjudication.

Her motion presents two issues: whether she is eligible for an award of attorneys’

fees and costs and, if so, what is the reasonable amount of attorneys’ fees and

costs.

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II. Eligibility for Attorneys’ Fees and Costs

Even though compensation was denied, a petitioner who brings a petition in

good faith and who has a reasonable basis for the petition may be awarded

attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). “Respondent is

satisfied the statutory requirements for an award of attorneys’ fees and costs are

met in this case.” Resp’t’s Resp., filed July 23, 2020, at 2. When directed to

comment on this position, the Secretary confirmed that “he does not object to an

award of attorneys’ fees and costs due to a lack of reasonable basis.” Resp’t’s

Resp., filed Oct. 15, 2020, at 7. Thus, due to the lack of objection from the

Secretary, the undersigned finds that petitioner is eligible for an award of

attorneys’ fees and costs. See Greenlaw v. United States, 554 U.S. 237, 243

(2008) (“[W]e rely on the parties to frame the issues for decision and assign to

courts the role of neutral arbiter of matters the parties present.”).

III. Reasonable Amount of 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. The undersigned has assessed the material submitted in the fee

application. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238

(2018).

A. Reasonable Hourly Rate

For Mr. Rooney’s initial work, Ms. Jennings proposes that a reasonable rate

of compensation is $300 per hour. For work in 2017, the rate increases to $350 per

hour. There is another increase in 2020 to $380 per hour. Pet’r’s Mot. at 1.

Special masters have accepted $300 per hour as a reasonable hourly rate for

Mr. Rooney’s work in 2018, and thereafter increased it to $350 per hour. Thomas

v. Sec’y of Health & Human Servs., No. 14-966V, 2018 WL 5725184 (Fed. Cl.

Spec. Mstr. Oct. 5, 2018). The increase from $350 per hour in 2018 to $380 per

hour in 2020 is reasonable.

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B. Reasonable Number of Hours

While most entries in Mr. Rooney’s timesheets are adequate and reasonable,

many are not. Examples of vague and poorly expressed activities include:

8/16/2017 SWR Email correspondence 0.10 $30.00

Email correspondence

6/6/2019 SWR 0.10 $35.00

with client

Telephone conference

5/26/2020 SWR 0.50 $190.00

with client

Telephone conference

with expert; conference

7/10/2020 SWR 3.00 $1,05.00

with client; review court

rules; modify decision

As explained early in this case, even an attorney’s communication with a

client should have some detail to assess its reasonableness. Order, issued July 7,

2016, citing Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011).3

In some entries, either Mr. Rooney or his paralegal charged for filing

documents. See, e.g., entries for 7/5/2016; 7/13/2016; 9/11/2017; 1/15/2018;

8/30/2019; and 10/5/2019. Filing documents is a clerical task for which attorneys

should not charge. See Guerrero v. Secʼy of Health & Human Servs., No. 12-

689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015) (citing cases),

mot. for rev. den’d in relevant part and granted in non-relevant part, 124 Fed. Cl.

153, 160 (2015), app. dismissed, No. 2016-1753 (Fed. Cir. Apr. 22, 2016).

Mr. Rooney appears to have spent an unusually lengthy amount of time

researching medical articles. While attorneys may legitimately perform some basic

legal and medical research at the beginning of the case, an attorney should not

displace the work of an expert. See K.G. v. Sec'y of Health & Human Servs., No.

18-120V, 2020 WL 3495990, at *6 (Fed. Cl. May 21, 2020) (stating “reduction is

necessary to account for time spent performing medical research” and citing

cases). Here, even after Dr. Santoro was participating in the case, Mr. Rooney

researched medical articles. See entries for 8/29/2019; 10/23/2019.

3 The July 10, 2020 entry suffers from block billing in that determining how much of the

three hours was spent in communicating with the expert, conferring with the client, reviewing the

Court’s rules, or modifying the decision is not clear.

7

To account for these issues, $3,000 is reduced from the attorneys’ fees

invoice. See Fox v. Vice, 563 U.S. 836, 838 (2011) (indicating that trial courts

may use “rough justice” in awarding attorneys’ fees). Consequently, a reasonable

amount of attorneys’ fees is $50,075.50.4

C. Costs

For the costs advanced by her attorney, Ms. Jennings requests $21,114.04.5

Pet’r’s Mot. ¶ 7. She also requests reimbursement of costs that her parents

advanced in the amount of $536.13. Id. ¶ 12, citing fee exhibit 2. The latter

expenses for the collection of medical records are reasonable and adequately, if

imperfectly, documented. Exhibits 54, 56.6

Similarly, some of the expenses incurred by Mr. Rooney are routine

expenses associated with gathering medical records, mailing materials, and filing

the petition. These costs are reasonable and awarded.

The majority of expenses concern the costs for two experts, David Axelrod

and John Santoro. Pet’r’s Mot. at 2. 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).

Dr. Axelrod has requested compensation for $4,100.00, representing 10.25

hours at a rate of $400 per hour. While Dr. Axelrod did not state the date on which

he performed the work, Mr. Rooney’s timesheets show that he began consulting

with unidentified experts by August 24, 2017. Pet’r’s Mot. at 11. Mr. Rooney’s

4Petitioner appears to have requested inconsistent amounts for attorneys’ fees. In the

motion (paragraph 4), petitioner sought $53,075.50. Yet, the timesheets suggest a slightly larger

amount, $53,177.50. The undersigned uses the former figure because it more closely matches

the undersigned’s computation of the charges listed in the timesheets.

5Again, there is a discrepancy within petitioner’s submission. The invoice for itemized

cost shows the total as $21,114.04. However, petitioner’s motion (paragraph 5) claimed

$26,106.04. The former figure appears accurate.

6Petitioner submitted the documents supporting the request for costs only after an

informal inquiry from the undersigned’s chambers. The documents do not match the items

requested in costs exactly. However, the amount substantiated by documents ($562.18) is nearly

the same as the amount requested in the motion.

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list of costs includes an entry for payment to Dr. Axelrod on May 18, 2018 for

$4,100. Id. at 21.

Dr. Axelrod has not submitted a report in this case and Ms. Jennings has not

explained why she consulted him. On the other hand, the Secretary did not raise

any objection to compensating Ms. Jennings for work Dr. Axelrod performed.

Dr. Axelrod’s proposed rate of compensation ($400 per hour) is reasonable.

See Gonzalez v. Sec’y of Health & Human Servs., No. 14-1072V, 2015 WL

10435023, at *17 (Fed. Cl. Spec. Mstr. Nov. 10, 2015) (awarding $450/hr. to Dr.

Axelrod for work performed in the case); see also Abbott v. Sec’y of Health &

Human Servs., 150 Fed. Cl. 241 (2020) (listing factors to consider in evaluating the

hourly rate for an expert).

However, the information provided does not justify the request for 10.25

hours. Dr. Axelrod’s invoice shows he spent 6.25 hours on “chart review” and 1

hour on “research.” These entries are reasonable, although Dr. Axelrod should

have described his activities with more detail. Dr. Axelrod’s final entry is 3 hours

for “Discussion of Report.” Pet’r’s Mot. at 26. Three hours to discuss a report,

which seems not to have been written, appears excessive. The unusualness of the

amount of time seems corroborated in Mr. Rooney’s parallel entry. On April 22,

2018, Mr. Rooney spent less than one-hour (0.8 hour to be precise) in a “telephone

conference with expert.” Pet’r’s Mot. at 12. Consequently, Dr. Axelrod’s entry is

reduced from three hours to one hour, causing a reduction of $800.00.

Apparently, after Dr. Axelrod did not present a useful report, Mr. Rooney

turned to Dr. Santoro. Pet’r’s Mot. at 12 (entry for April 23, 2018). Dr. Santoro

wrote four reports: exhibit 26 (dated May 27, 2018), exhibit 27 (dated Aug. 21,

2018), exhibit 40 (dated June 4, 2019), and exhibit 41 (dated Aug. 30, 2019).

Initially, Ms. Jennings submitted one invoice from Dr. Santoro, dated June

3, 2018, which lists activities associated with Dr. Santoro’s first report. Pet’r’s

Mot. at 27; see also id. at 20-22 (Mr. Rooney’s list of costs including only a single

payment to Dr. Santoro). Dr. Santoro has requested compensation for $16,000,

representing 32 hours at $500 per hour. However, after an informal inquiry from

chambers regarding documentation supporting the costs incurred by Ms.

Jennings’s parents (see note, 6, above), Ms. Jennings added two more invoices

from Dr. Santoro. Exhibit 55. Through these two additional invoices, Dr. Santoro

has sought an additional $9,500, representing 19 more hours of work at $500 per

hour.

9

The reasonableness of neither the proposed hourly rate nor the number of

hours has been persuasively demonstrated. With respect to the proposed hourly

rate, Dr. Santoro described himself as a “board certified internist and

gastrointestinal physician.” Exhibit 26 at 1. He specialized in treating patients

with inflammatory bowel disease, meaning Crohn’s disease and ulcerative colitis.

Id.; but see exhibit 27 at 1 (Dr. Santoro’s supplemental report asserting that he

treated patients with “reactive airway disease, headaches, fatigue, chronic fatigue

syndrome, epilepsy, digestive condition and depression”). While some experts

with these qualifications might warrant compensation at $500 per hour, Dr.

Santoro does not, in this case, for two reasons.

First, Dr. Santoro’s area of specialization (inflammatory bowel disease) does

not match Ms. Jennings’s case. No evidence suggests that any doctor diagnosed

Ms. Jennings with inflammatory bowel disease and Ms. Jennings did not claim that

the vaccination caused her inflammatory bowel disease. On the other hand, Ms.

Jennings more generally asserted that she suffered from gastrointestinal disease.

Pet’r’s Entitlement Br., filed March 4, 2020, at 25, 35. While this might be Ms.

Jennings’s claim, no persuasive evidence shows Ms. Jennings suffered any

gastrointestinal illness. “Ms. Jennings has not identified any treating doctors who

diagnosed her with any gastrointestinal disease. It appears that none of the doctors

who treated Ms. Jennings referred her to a gastroenterologist and there are no

records from a gastroenterologist who treated her.” Decision, issued July 8, 2020,

at 25.7

Second, Dr. Santoro’s work simply was not good. An appropriate rate for an

expert also depends, in part, on “the nature, quality, and complexity of the

information provided.” Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.

201, 206 (2009).

Dr. Santoro’s reports contained many deficiencies. But, the fundamental

problem is the lack of support for any diagnosis in Ms. Jennings. The Secretary

alerted Ms. Jennings to this problem before she retained Dr. Santoro. See Resp’t’s

Rep., filed May 1, 2017, at 9. Dr. Santoro, in turn, reviewed the Secretary’s report

before he wrote his first report. Exhibit 26 at 1. The August 2, 2017 Instructions

for expert witnesses directed any expert to identify the relevant disease or

7 The basis for Dr. Santoro’s opinion that Ms. Jennings suffered a gastrointestinal illness

appears to be an affidavit from Ms. Jennings’s mother. But, Dr. Santoro did not explain how an

affidavit in the absence of any reports to medical doctors and/or any medical testing can ground a

medical diagnosis.

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condition. Order ¶ 4. Dr. Santoro should have been familiar with these

Instructions before he wrote his report.

Despite these notices, Dr. Santoro did not come close to presenting a

credible case for any of Ms. Jennings’s proposed diagnosis. The weakness in Dr.

Santoro’s opinion contributed to a decision being entered against her without a

hearing.

Accordingly, for Dr. Santoro’s work in this case, a reasonable rate of

compensation is $250 per hour. The undersigned recognizes that in other cases in

which Dr. Santoro’s expertise more closely aligns with the relevant subject and in

which Dr. Santoro presents more credible opinions, his work might merit a higher

hourly rate.

As for the other component of an expert’s compensation, a reasonable

number of hours, Dr. Santoro’s presentation is lacking again. “Again,” refers to

the prior decisions finding Dr. Santoro’s “billing records are problematically vague

and block billed.” Morris v. Sec’y of Health & Human Servs., No. 17-165V, 2020

WL 3960338, at *2 (Fed. Cl. Spec. Mstr. May 28, 2020) (citing cases). Before Dr.

Santoro began working on this case, Ms. Jennings and Dr. Santoro were notified

about the expected content of the invoices. “The expert should list separate tasks

separately. A rule of thumb is that every half hour should have a separate task,

differentiated from other tasks.” Instructions at 8.

Dr. Santoro failed to detail what he was doing. For example, he has charged

$3,500 (or 7 hours of work) for a “Retainer Initial Case Review and Case

Conference / Record Review.” The next entry is 10 hours for “Case Records

Comprehensive Review.” Thus, it appears that Dr. Santoro spent approximately

17 hours reviewing medical records. This much time is nearly triple the amount of

time Dr. Axelrod spent.

From the undersigned’s experience in reviewing applications for attorneys’

fees and costs generally and from the undersigned’s specific experience in

reviewing Ms. Jennings’s medical records, the undersigned is confident in stating

that 17 hours to review medical records in this case is excessive. Consequently,

the number of hours for Dr. Santoro’s review of medical records is reduced to the

number of hours for Dr. Axelrod’s review of medical records (6.25). 8

8 Dr. Axelrod’s charge of 6.25 hours also seems to be high for the number of records in

this case. But, it is not shockingly high and within the upper bounds of reasonableness.

11

Dr. Santoro’s next entry is for 12 hours to review medical literature. It

would seem that if Dr. Santoro were an expert in the fields in which he was

opining, then 12 hours for research might be excessive. However, Dr. Santoro’s

hourly rate has been reduced due to his lack of expertise in the relevant field.

Thus, 12 hours at a reduced rate is a reasonable amount of time.

Dr. Santoro’s final two entries in his first invoice are for preparing,

correcting, and revising his report ($1,000 (or two hours)) and phone conferences

before and after his letter ($500 (or one hour)). These entries are reasonable.

Accordingly, a reasonable amount of time for Dr. Santoro to prepare his first report

is 21.25 hours.

In Dr. Santoro’s second invoice, he has multiple unreasonable entries. Dr.

Santoro states that he spent 5 hours on a “comprehensive repeat review” of the

medical records. Exhibit 55 at 3 (invoice dated Sep. 8, 2018). While most experts

do not charge for a “repeat review” at all, the undersigned will allot one-half hour

for this task. Dr. Santoro has also charged 4 hours for discussing the case. Four

hours of discussion between an attorney and an expert seems to be beyond what

normally happens and Mr. Rooney’s timesheet shows that around this time, Mr.

Rooney spent less than a half an hour on two calls with Dr. Santoro. Due to the

discrepancy between billing records of Mr. Rooney and Dr. Santoro, Dr. Santoro’s

charge for phone consultation is reduced to 1 hour. Dr. Santoro has also charged

two hours for preparing, revising, and emailing his supplemental report. This

charge is reasonable. Thus, a reasonable amount of time associated with Dr.

Santoro’s second invoice is 3.5 hours (0.5 + 1.0 + 2.0).

Dr. Santoro dated his third invoice July 22, 2020. It seeks compensation for

an additional 7 hours of work. Because Dr. Santoro neglected to provide the date

of his activities, determining when he performed the work is difficult. It appears

that these entries might concern the preparation of Dr. Santoro’s report

approximately one year earlier. Exhibit 41 (report dated Aug. 30, 2019). While

some of the entries in the third invoice seem to be near the higher bound of

reasonableness, the only entry that is excessively unreasonable is time spent again

reviewing the medical records. This time is again reduced to 0.5 hours, resulting in

a removal of 0.5 hours. Therefore, for Dr. Santoro’s third invoice a reasonable

amount of time is 6.5 hours.

In sum, a reasonable amount of time for Dr. Santoro’s work in this case is

31.25 hours (21.25 + 3.5 + 6.5). Given the finding that a reasonable hourly rate for

Dr. Santoro is $250, a reasonable amount of compensation for Dr. Santoro is

$7,812.50.

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In sum, a reasonable amount of attorneys’ fees is $12,126.54, consisting of

$1,014.04 in miscellaneous costs, $3,300 for Dr. Axelrod, and $7,812.50 for Dr.

Santoro. As previously mentioned, the costs that Denise Jennings incurred

($536.13) are also reasonable.

IV. Conclusion

The Vaccine Act permits an award of reasonable attorney’s fees and costs.

42 U.S.C. § 300aa-15(e). Ms. Jennings is awarded a total of $62,738.17. Of this

amount, $62,202.04 (representing $50,075.50 in attorneys’ fees and $12,126.54 in

attorneys’ costs) shall be paid as a lump sum in the form of a check jointly payable

to petitioner and her attorney, Scott Rooney. In addition, $536.13 shall be paid as

a lump sum in the form of a check payable to the former petitioner, Denise

Jennings.

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/Christian J. Moran

Christian J. Moran

Special Master

9 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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