Thompson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-1217V

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

*

LEONARD THOMPSON, *

* UNPUBLISHED

*

Petitioner, *

* Special Master Katherine E. Oler

v. *

*

* Filed: September 27, 2022

SECRETARY OF HEALTH AND *

HUMAN SERVICES, * Interim Attorneys’ Fees and Costs

*

*

Respondent. *

*

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

Michael G. McLaren, Black, McLaren, Jones, Ryland & Griffee, Memphis, TN, for Petitioner

Andrew Henning, U.S. Department of Justice, Washington, DC, for Respondent

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1

On August 15, 2018, Leonard Thompson (“Petitioner”) filed a petition seeking

compensation under the National Vaccine Injury Compensation Program (“the Vaccine

Program”). 2 Pet., ECF No. 1. Petitioner alleges that he developed polymyalgia rheumatica

(“PMR”) “and/or other injuries” as a result of the Prevnar 13 vaccine he received on December

14, 2015. Pet. at 1.

Petitioner filed a Motion for Interim Attorneys’ Fees and Costs on April 19, 2022,

1

Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to

post this Decision on the United States Court of Federal Claims’ website, in accordance with the E-

Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44

U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with access to the

internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however the parties may object to the Decision’s

inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party

has fourteen days within which to request redaction “of any information furnished by that party: (1) that is

a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes

medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Id.

2

The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter

“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the

pertinent subparagraph of 42 U.S.C. § 300aa.

1

requesting a total of $120,514.85. ECF No. 43 at 1 (hereinafter “Fees App.”). Respondent filed a

response (hereinafter “Fees Response” or “Fees Resp.”) on April 20, 2022, stating that it is within

my discretion to award interim attorneys’ fees and costs. Fees Resp. at 3, ECF No. 45. Respondent

“is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this

case.” Id. at 2. Petitioner filed a reply on April 21, 2022 (hereinafter “Fees Reply”).

I hereby GRANT IN PART Petitioner’s application and award a total of $118,631.15 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, “[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; 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). Even though it

has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,

costly expert testimony, and undue hardship -- special masters have instead treated these criteria

as possible factors 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).

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

special master finds that a petitioner has brought his petition 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 (2012), at 154; 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 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 principle underlying an award of interim fees

[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.

2

B. Good Faith

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). Such

a requirement is a “subjective standard that 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 at least

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).

While 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 which 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 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.”).

Temporal proximity between vaccination and onset of symptoms is a necessary component

in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to

establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.

The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded

that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable

3

basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed.

Cir. 2017). Further, an impending statute of limitations should not even be one of several factors

the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade,

altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in

determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health &

Hum. Servs., 138 Fed. Cl. 282, 289 (2018).

“[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, many special masters and judges consider

a myriad of factors. The factors to be considered may include “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 undue hardship inquiry looks at more than just financial involvement of a petitioner;

it also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2 (finding

“the general principle underlying an award of interim fees was clear: avoid working a substantial

financial hardship on petitioners and their counsel.”). First, Petitioner’s attorneys have been

“diligently and dutifully working on behalf of Petitioner since [April 2018] and have received no

fee payments or expense reimbursements whatsoever to date, a term of nearly five years.” Fees

App. at 2. Second, Petitioner has retained an expert at substantial cost. Id. at 27-28 (showing that

Petitioner’s expert, Dr. Gershwin, has billed $20,987.50 in this case). Third, Petitioner’s counsel

has expended time and resources for an entitlement hearing, which “required extensive

preparation.” Id. at 3. 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).

I also note that the COVID-19 pandemic has had a significant impact on the United States

economy and such impact has been recognized by this court. See Monge-Landry v. Sec'y of Health

4

& Hum. Servs, No. 14-853V, 2020 WL 4219821 *5 (Fed. Cl. Spec. Mstr. Jun. 30, 2020)

(recognizing the COVID-19 pandemic's continued disruption of the airline industry in its

calculation of appropriate interim fees).

Given these unprecedented economic circumstances, and the time already spent litigating

this case, I find that the Petitioner would suffer undue hardship in the absence of an award of

interim attorneys’ fees and costs.

B. Good Faith and Reasonable Basis

Respondent has not raised any specific objection to the good faith or reasonable basis for

this claim and leaves such a determination to my discretion. See Fees Resp. at 2-3. I find that the

petition was filed in good faith.

With regard to reasonable basis, Petitioner submitted two expert reports from Dr. M. Eric

Gershwin, who is board certified in internal medicine, allergy and clinical immunology, and

rheumatology. See Exs. 7, 28. Dr. Gershwin noted that “the etiology and mechanisms that lead to

polymyalgia rheumatica remain enigmatic, but it is thought that this syndrome is induced in part

by cytokines.” Ex.7 at 4. Dr. Gershwin posited that the Prevnar 13 vaccine could have triggered a

pro-inflammatory cytokine response that resulted in Petitioner’s PMR and noted that Petitioner’s

“onset with[in] 2-3 days would be consistent with a cytokine driven response.” Id. at 2-3. This

constitutes sufficient evidence to establish a reasonable basis for the claim. 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 in this instance.

C. Attorneys’ Fees

Petitioner requests a total of $94,024.90 in attorneys’ fees. Fees App. at 1.

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

3

The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%

27%20Forum%20Rate%20Fee%20Schedule%202018.pdf.

The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2

5

Petitioner’s counsel, Mr. Michael McLaren, requests a rate of $456.00 per hour for work

performed in 2018; $464.00 per hour for work performed in 2019; $484.00 per hour for work

performed in 2020 and 2021; and $501.00 per hour for work performed in 2022.

Mr. McLaren also requests compensation for his colleague 4 at Black, McLaren, Jones,

Ryland & Griffee (“Black McLaren”): Mr. Chris Webb: $326.00 per hour for work performed in

2018, $338.00 per hour for work performed in 2019, $351.00 per hour for work performed in 2020,

$364.00 per hour for work performed in 2021, and $395.00 per hour for work performed in 2022.

Lastly, Mr. McLaren requests rates from $150.00 to $167.00 per hour for paralegal work

performed between 2018 and 2022 and $153.00 to $156.00 per hour for law clerk work performed

between 2018 and 2022. 5 Fees App. at 12.

This request is consistent with what I and other special masters have previously awarded

Mr. McLaren and Black McLaren. See, e.g., Hejna v. Sec’y of Health & Hum. Servs., No. 18-

1833V, 2022 WL 3581115, at *2 (Fed. Cl. Spec. Mstr. July 19, 2022); Pingel v. Sec’y of Health

& Hum. Servs., No. 17-70V, 2022 WL 2441329, at *2 (Fed. Cl. Spec. Mstr. June 8, 2022); Akers

v. Sec’y of Health & Hum. Servs., No. 15-597V, 2022 WL 1863931, at *2 (Fed. Cl. Spec. Mstr.

May 6, 2022); Hull-Crawford v. Sec’y of Health & Hum. Servs., No. 20-0364V, 2022 WL

1421460, at *2 (Fed. Cl. Spec. Mstr. Mar. 25, 2022); Thompson v. Sec’y of Health & Hum. Servs.,

No. 18-1383V, 2020 WL 4673234, at *2 (Fed. Cl. Spec. Mstr. July 7, 2020); Wang v. Sec’y of

Health & Hum. Servs., No. 16-1211V, 2020 WL 2500119, at *2 (Fed. Cl. Spec. Mstr. Apr. 20,

2020). Accordingly, I find the 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).

7%20Forum%20Rate%20Fee%20Schedule%202019.pdf.

The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2

7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf

The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo

rum-Rate-Fee-Schedule-2021-PPI-OL.pdf

The 2022 Fee Schedule can be accessed at: https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%

27-Forum-Rate-Fee-Schedule-2022-%28Final%29.pdf.

The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL

5634323.

4

The rate chart in Petitioner’s motion for interim attorneys’ fees also mentions an associate with the initials

“WEC,” but no individual with these initials appears in the invoices for this matter. Fees App. at 12; Fees

App. Ex. 2 at 27.

5

The rate chart in Petitioner’s motion for interim attorneys’ fees lists the 2022 rate for law clerk work at

$355.00. Fees App. at 12. The invoices reflect a rate of $156.00. Fees App., Ex. 2 at 27. The Court presumes

that the $355.00 rate is an error.

6

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). 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). However, 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”).

3. Clerical and Administrative Time

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).

It appears that a number of line items in the billing records are for tasks that are clerical or

administrative. Examples include (but are not limited to):

• June 22, 2018 (0.2 hours): “Open and set up file; update spreadsheet; calendar statute of

limitations date”

• July 17, 2018 (0.2 hours): “Receipt of invoice from Dr. Carlos Diola; review invoice

charges per Michigan statute for allowable medical records fees; notes to file regarding

same; update provider chart; copy of invoice to Sherry Fearon for payment”

• August 15, 2018 (0.1 hours): “Receipt/review, note and save to file receipt for filing fee”

• March 22, 2022 (0.4 hours): “Receipt, save and note expenses incurred by Chris Webb and

start drafting reimbursement spreadsheet for trial trip”

7

These tasks, performed by both attorneys and paralegals, total approximately 8.2 hours,

resulting in $1,883.70 in charges. My colleagues and I have advised Petitioner’s counsel several

times that attorneys’ fees for clerical and administrative tasks are not reimbursable in the Program,

and we have reduced their requested attorneys’ fees accordingly. See, e.g., Wang v. Sec’y of Health

& Hum. Servs., No. 16-1211V, 2020 WL 2500119, at *2 (Fed. Cl. Spec. Mstr. Apr. 20, 2020)

(reducing the requested attorneys’ fees by 5% for administrative and clerical tasks); Spivey v. Sec’y

of Health & Hum. Servs., No. 18-959V, 2019 WL 7580151, at *2-3 (Fed. Cl. Spec. Mstr. Dec. 12,

2019) (reducing the requested attorneys’ fees by 10% for administrative and clerical tasks); T.M.

v. Sec’y of Health & Hum. Servs., No. 17-138V, 2018 WL 7051676, at *3 (Fed. Cl. Spec. Mstr.

Dec. 13, 2018) (reducing the requested attorneys’ fees by 5% for administrative and clerical tasks).

Accordingly, I find that a reduction in requested attorneys’ fees of $1,883.70 is warranted

here.

Total attorneys’ fees to be awarded: $92,141.20

D. Reasonable Costs

Petitioner requests a total of $26,489.95 in costs, which includes obtaining medical records,

the Court’s filing fee, Dr. Gershwin’s expert fees, counsel’s travel expenses, and a speaker phone

for Zoom conferences. Fees App., Ex. 2 at 27-28.

Specifically, Petitioner requests $222.10 for medical records requests; $400.00 for the

Court’s filing fee; $20,987.50 for Dr. Gershwin’s expert reports; $4,710.96 for counsel’s travel

expenses; and $71.33 for a computer adaptor for Zoom conferences. Fees App., Ex. 2 at 27-28.

Documentation was provided for the medical record requests, the Court’s filing fee, and the

computer adaptor, and these will be paid in full.

1. Petitioner’s Expert Costs for Dr. Merrill Eric Gershwin

Petitioner requests an hourly rate of $450.00 for 10.25 hours of work and an hourly rate of

$500.00 for 32.75 hours of work performed by Dr. Gershwin, for a total of $20,987.50.

Dr. Gershwin received his medical degree from Stanford University in 1971. Ex. 8 at 1.

Since 2003, he has held the position of Distinguished Professor of Medicine in the Division of

Rheumatology/Allergy and Clinical Immunology at the University of California Davis. Id. Dr.

Gershwin in board certified in internal medicine, rheumatology, and clinical immunology. Id. at

2. Dr. Gershwin has provided a full accounting of the hours he expended preparing and writing

two expert reports. Fees App., Ex. 2 at 45-47, 51, 67.

Dr. Gershwin’s hourly rate is consistent with what I and other special masters have

previously awarded him. See, e.g., Antalosky v. Sec’y of Health & Hum. Servs., No. 16-701V, 2022

WL 363916 (Fed. Cl. Spec. Mstr. Jan. 24, 2022); Stuart v. Sec’y of Health & Hum. Servs., No. 16-

940V, 2022 WL 176145 (Fed. Cl. Spec. Mstr. Jan. 5, 2022); Rogan v. Sec’y of Health & Hum.

8

Servs., No. 17-1916V, 2020 WL 5814285 (Fed. Cl. Spec. Mstr. Sept. 4, 2020). I therefore grant

Dr. Gershwin’s costs in full.

2. Travel Expenses

Documentation of the majority of counsel’s travel expenses was provided, with the

exception of two charges for mileage, a tip at a hotel, and two small food items, totaling $45.34.

Petitioner’s counsel included a hand-written list of these items, but no receipts or other

documentation of the expenses. Fees App., Ex. 2 at 44. As these types of expenses are commonly

associated with travel and are reasonable, they will be paid in full.

I find that the travel expenses for which counsel provided documentation are also

reasonable, and they will be paid in full.

Total costs to be awarded: $26,489.95

III. Conclusion

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

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

application, as follows:

A lump sum in the amount of $118,631.15, representing reimbursement of Petitioner’s

interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and his

attorney, Mr. Michael McLaren.

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/ Katherine E. Oler

Katherine E. Oler

Special Master

6

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

renouncing their right to seek review.

9