VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_11-vv-00654
Package ID: USCOURTS-cofc-1_11-vv-00654
Petitioner: H.T.R.
Filed: 2011-10-11
Decided: 2015-11-05
Vaccine: Hepatitis A, HPV/Gardasil, meningococcal, Tdap
Vaccination date: 2010-10-13
Condition: acute transverse myelitis with permanent paraplegia below T10 and bowel/bladder loss
Outcome: compensated
Award amount USD: 878538.62

AI-assisted case summary:
On October 11, 2011, Kevin and Heather Raymo, as legal representatives for their minor daughter H.T.R., filed a petition under the National Vaccine Injury Compensation Program. They alleged that H.T.R. developed acute transverse myelitis (ATM) with permanent paraplegia and bowel/bladder loss following vaccinations administered on October 13, 2010. The vaccines received were Hepatitis A, HPV/Gardasil, meningococcal, and Tdap. The petition ultimately focused on the tetanus component of the Tdap vaccine as the causal agent.

H.T.R., born February 2, 1999, was eleven years old at the time of vaccination. She had a history of recurrent ear infections and allergies but no serious health issues. On October 13, 2010, she presented with a two-week history of headache, sinus drainage, congestion, and cough, diagnosed as allergic rhinitis and an upper respiratory infection. Following this visit, she received the aforementioned vaccines. 

Over the next few days, H.T.R. attended school and participated in a church lock-in without apparent ill effects. On the morning of October 17, 2010, she awoke with numbness in her right leg, which progressed to paralysis and loss of bowel and bladder control by the time she was evaluated at Arkansas Children's Hospital. Despite treatment with steroids and plasma exchange, her condition did not improve, leaving her wheelchair-dependent.

The parties disputed the exact timing of symptom onset and the progression to nadir (maximum impairment). Petitioners argued for an onset while sleeping, leading to a progression longer than four hours, supporting an autoimmune theory. Respondent contended that symptoms began upon waking, with a progression of less than four hours. Chief Special Master Denise K. Vowell found that onset likely occurred between 9:30 PM on October 16 and 8:00 AM on October 17, 2010, with onset-to-nadir lasting longer than four hours, a timeframe medically acceptable for an autoimmune theory.

Both parties' primary experts faced credibility issues. Petitioners' initial expert, Dr. Daniel Becker, was discredited due to evidence of plagiarism. Respondent's expert, Dr. John Sladky, was discredited for failing to disclose prior medical license suspension. Consequently, the causation decision relied heavily on Dr. Marcel Kinsbourne's opinion for petitioners, supported by a remote second-opinion review by Dr. Farrah Mateen.

Dr. Kinsbourne opined that H.T.R. suffered from immune-mediated ATM, potentially triggered by the tetanus toxoid in the Tdap vaccine through mechanisms like molecular mimicry or bystander activation. He cited medical literature and case reports linking tetanus-containing vaccines to neurological complications. Chief Special Master Vowell found sufficient evidence that tetanus vaccination could cause ATM and that H.T.R.'s Tdap vaccination caused her condition within a medically appropriate timeframe.

On February 24, 2014, Chief Special Master Vowell granted entitlement. Following this, the parties entered into a damages stipulation. On November 5, 2015, Chief Special Master Nora Beth Dorsey adopted the stipulation, awarding compensation. The total award included an amount for an annuity for future life care, a lump sum of $754,047.00 for past and future pain and suffering and future wage loss, $26,930.62 for past unreimbursed expenses, and $97,561.00 for first-year future life care expenses. The total award was $878,538.62, plus an amount sufficient to purchase an additional annuity.

Subsequently, the court reviewed the attorneys' fees and costs. The chief special master awarded $368,953.81 in fees and costs, a figure significantly lower than requested by petitioners but higher than respondent's initial estimate. This award reflected reductions for administrative tasks, duplicative billing, and the use of local rather than forum rates, among other adjustments. Petitioners sought review of this decision, but the court affirmed the chief special master's award.

Theory of causation field:
HTR, age 11, received Hepatitis A, HPV/Gardasil, meningococcal, and Tdap vaccines on October 13, 2010. Petitioners alleged the tetanus component of the Tdap vaccine caused acute transverse myelitis (ATM). Chief Special Master Vowell found entitlement based on an autoimmune theory, concluding the tetanus toxoid component of the Tdap vaccine caused HTR's ATM. The onset was determined to be between 82-93 hours post-vaccination (Oct 16-17, 2010), and onset-to-nadir was longer than four hours, supporting an autoimmune mechanism. Petitioner's expert Dr. Marcel Kinsbourne opined on the causal link, supported by Dr. Farrah Mateen. Respondent's expert Dr. John Sladky and petitioners' initial expert Dr. Daniel Becker were discredited. The decision was affirmed by Chief Special Master Dorsey, who awarded $878,538.62 in damages, including lump sums and annuities. Attorneys for petitioners included Jonathan Andry (initially) and Andrew J. Quackenbos/Domengeaux Wright (at damages). Chief Special Master Nora Beth Dorsey finalized the damages award.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_11-vv-00654-0
Date issued/filed: 2014-03-19
Pages: 33
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/24/2014) regarding 82 Ruling on Entitlement Signed by Chief Special Master Denise Kathryn Vowell. (tpj) Copy to parties.
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Case 1:11-vv-00654-CFL Document 83 Filed 03/19/14 Page 1 of 33
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 11-0654V
Filed: February 24, 2014
To Be Published
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
KEVIN RAYMO and HEATHER RAYMO,*
legal representatives of a minor child, *
HTR, *
* Tetanus Vaccine; Transverse Myelitis;
Petitioners, * TM; Autoimmune; Acute Transverse
v. * Myelitis; ATM; Disqualification of
* Experts; Factual Dispute Regarding
SECRETARY OF HEALTH * Onset; Entitlement to Compensation.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Jonathan Andry, Esq., Andry Law Group, LLC, New Orleans, LA for petitioners.
Claudia Gangi, Esq. and Ryan Pyles, Esq., U.S. Dept. of Justice, Washington, D.C., for
respondent.
RULING ON ENTITLEMENT1
Vowell, Chief Special Master:
On October 11, 2011, Kevin and Heather Raymo [“Mr. Raymo,” “Mrs. Raymo,” or
“petitioners”] timely filed a petition for compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. §300aa-10, et seq.2 [the “Vaccine Act” or
“Program”], on behalf of their minor daughter, HTR. The petition alleges that HTR
developed transverse myelitis3 as the result of the human papillomavirus virus [“HPV”],
1 Because this ruling contains a reasoned explanation for my action in this case it will be publically
available, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913
(Dec. 17, 2002). Vaccine Rule 18(b) permits either party 14 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.” Absent such a request, the entire ruling will
be available to the public after 14 days have elapsed.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa.
3 According to the testimony in this case, the definition of the term “transverse myelitis” has evolved over
the years. Tr. at 93-94, 118-19, 199. “Myelitis” refers to an inflammatory condition, but the term

Case 1:11-vv-00654-CFL Document 83 Filed 03/19/14 Page 2 of 33
meningococcal, hepatitis A, and diphtheria, tetanus and pertussis [“Tdap”]4 vaccinations
she received on October 13, 2010. Petition at 1. For the reasons discussed below, I
hold that petitioners have met their burden to show by preponderant evidence that a
covered vaccine caused HTR’s condition.
Few cases could be more heart wrenching than this one. Prior to her receipt of
her sixth tetanus-containing vaccination5 on October 13, 2010, HTR was a healthy
eleven year old girl who liked art and played softball. Four days later, she was admitted
to Arkansas Children’s Hospital with loss of function in her legs. Her condition quickly
progressed to complete paralysis below the T10 vertebrae in her spine with a complete
loss of bowel and bladder control. In spite of rapid administration of therapies focused
on a presumptive diagnosis of transverse myelitis, HTR was one of approximately one-
third of those with that diagnosis who show no improvement with therapy.6 She never
regained any of her lost functions. Today, she is wheelchair-dependent, requiring
frequent catheterization for urinary function and assistance from her parents for bowel
function. Clearly, her life has been altered forever by what transpired after her October
2010 vaccinations.
transverse myelitis is frequently used to refer to spinal cord injuries that do not have an inflammatory
cause as well as to those that do. The more precise term for this broader category of spinal cord injury is
“transverse myelopathy.” See Transverse Myelitis Consortium Working Group, Proposed diagnostic
criteria and nosology of acute transverse myelitis, NEUROLOGY, 59: 499-505 (2002), filed as Petitioners’
Exhibit [“Pet. Ex.”] 35 and Respondent’s Exhibit [“Res. Ex.”] D [hereinafter “TMCWG Diagnostic Criteria,
Res. Ex. D”] at 499-500 (“Acute transverse myelopathy (which includes noninflammatory causes) and
[acute transverse myelitis] have often been used interchangeably throughout the published literature. . . .
As the clinical syndrome of acute transverse myelopathy may have noninflammatory cause (i.e. vascular
causes), [acute transverse myelitis] represents a subset of acute myelopathy.”) As used in this opinion,
the abbreviation “TM” refers to the global and broad category of spinal cord injuries involving a loss of
function below a transverse plane, regardless of cause. I use the abbreviation “ATM” to refer to the
specific diagnosis of acute transverse myelitis. In their reports and testimony, the treating physicians and
experts occasionally used the terms “transverse myelitis” and “transverse myelopathy” interchangeably,
causing some confusion. See, e.g., Tr. at 93-95, 117-19, 353-54; Res. Ex. J at 1, 5.
4 Although HTR’s medical records confirm that she received a Tdap vaccine on October 13, 2010 (Pet.
Ex. 5, p. 1), the testimony and expert reports in this matter sometimes refer to the vaccination as her sixth
DTaP vaccine. E.g. Tr. at 11-12, 55-56, 226-27; Pet. Ex. 9 at 1; Res. Ex. J at 1. The difference between
DTaP and Tdap is not relevant to the issue of entitlement, other than to note that the Tdap vaccine
contains a full dose of tetanus and reduced (booster) doses of pertussis and diphtheria. K. Stratton, et
al., ADVERSE EFFECTS OF VACCINES: EVIDENCE AND CAUSALITY (2012) [hereinafter “2012 IOM Report”] at
530 n.1.
5 Although the petition claimed that all of the vaccines received on October 13, 2010, were causal,
petitioners ultimately relied on a theory that implicated the tetanus component of the Tdap vaccination.
6 More than one third of those with TM have a rapidly progressive course with a poor outcome (death or
inability to ambulate). E. Frohman and D. Wingerchuk, Transverse Myelitis, NEW ENGL. J. MED., 363:564-
72 (2010), filed as Pet. Exs. 11, 36 and Res. Ex. C [hereinafter “Frohman and Wingerchuk, Pet. Ex. 11”]
at 565.
2

Case 1:11-vv-00654-CFL Document 83 Filed 03/19/14 Page 3 of 33
This case also presents several unusual features. Between filing the petition (a
little less than a year after the events in question) and the causation hearing in Little
Rock, Arkansas in November 2012, petitioners altered their causation theory several
times. Although alteration of a causation theory is relatively common, petitioners
proceeded to hearing on mutually exclusive causation theories based on different fact
scenarios and different diagnoses (ATM or a spinal cord infarction). One of petitioners’
experts, Dr. Daniel Becker7 agreed with respondent’s primary expert, Dr. John Sladky,8
concerning both diagnosis and factual scenario, although they disagreed on the precise
mechanism of injury. Unfortunately, both of these experts were discredited for reasons
having little to do with their medical opinions and a great deal to do with their lack of
candor.9
Another unusual feature in this case is that the filed medical records support both
factual scenarios upon which the experts based their opinions because the records are
somewhat vague and contradictory about when onset of HTR’s symptoms occurred.
Determining precisely when onset of HTR’s first symptoms of transverse myelitis
7 Doctor Becker received his medical degree from the Ruprecht-Karls University School of Medicine in
Heidelberg, Germany. After two years as a neuroscience research assistant at the Washington University
School of Medicine, Dr. Becker completed residencies in internal medicine and neurology at Vanderbilt
University. He then completed two fellowships at John Hopkins University (spinal cord injury-medicine
and intraoperative monitoring) and a fellowship at Duke University (transcranial magnetic stimulation).
Doctor Becker is currently an Assistant Professor at Johns Hopkins University and Director of the
Pediatric Spinal Cord Injury Unit at the Kennedy Krieger Institute. He is board certified in neurology, with
a subspecialty certification in Spinal Cord Injury Medicine. He also holds a certificate as a Disability
Analyst and is a Fellow of the American Board of Disability Analysts. He has around 25 publications,
comprised of peer-reviewed articles, case reports, abstracts, and book chapters. See generally Tr. at 86-
95; Pet. Ex. 33.
8 Doctor Sladky obtained his undergraduate and medical degrees from Yale University. He completed his
residency in pediatrics at the Yale-New Haven Hospital and a fellowship in neurology at the Children’s
Hospital of Philadelphia [“CHOP”]. Doctor Sladky also was an MDA clinical neuromuscular Fellow at
CHOP and an MDA research Fellow at the Hospital of the University of Pennsylvania’s Department of
Neurology. Upon completion of his fellowships in 1984, he was appointed an Assistant Professor in both
the pediatrics and neurology departments at the University of Pennsylvania and also held clinical
positions at CHOP. In 1995, three years after being named an Associate Professor, Dr. Sladky left the
University of Pennsylvania to accept a position with Emory University. He remained affiliated with Emory
for approximately fifteen years before leaving to join a private clinical practice. Doctor Sladky is board
certified in pediatrics, neurology (with a special competence in child neurology), and electrodiagnostic
medicine. He has published original research papers, review articles, and abstracts. See generally Tr. at
187-91; Res. Ex. B.
9 Petitioners appear to have acknowledged, albeit implicitly, the credibility and reliability problems posed
by Dr. Becker’s report and testimony in that petitioners do not rely upon Dr. Becker's theory of causation
in their post hearing brief. See Petitioners’ Post Hearing Brief [“Pet. Post Hearing Brief”] at 9-10 (arguing
“[HTR’s] paralysis as the result of an autoimmune condition as opposed to an infarct in her spinal cord”).
Likewise, respondent brought Dr. Sladky's credibility problems to the court's attention in a supplemental
post hearing filing. See Respondent’s Status Report, filed May 1, 2013 [“May Status Report”], at 1-2.
However, respondent had no theory other than Dr. Sladky's upon which to rely, and no other witness to
counter Dr. Kinsbourne’s theory that HTR suffered from ATM.
3

Case 1:11-vv-00654-CFL Document 83 Filed 03/19/14 Page 4 of 33
occurred is crucial to the causation opinions. If HTR’s symptoms progressed from onset
to nadir (the point of maximum impairment) in less than four hours, the autoimmune
causation theory lacks a factual basis, according to Dr. Marcel Kinsbourne,10 the expert
who advanced the theory. Under these circumstances, I find the Mrs. Raymo’s affidavit
and her expanded but consistent testimony to be the deciding factors in determining
when onset of HTR’s symptoms occurred.
I. Procedural History.
In addition to filing their petition on October 11, 2011, petitioners filed an expert
report from Dr. Kinsbourne, Mrs. Raymo’s affidavit, and six exhibits containing medical
records. See Pet. Exs. 1-8. Petitioners filed Dr. Kinsbourne’s supplemental expert11
with supporting medical literature on December 13, 2011. See Pet. Exs. 9-24.
On February 8, 2012, respondent filed her Rule 4(c) report. She also filed the
expert report and curriculum vitae [“CV”] of Dr. John Sladky and six supporting medical
literature articles. See Res. Exs. A-H. While Dr. Kinsbourne had described HTR’s
injury as ATM (Pet. Ex. 9 at 2-3), Dr. Sladky classified it as a spinal cord infarction
[“SCI”], likely caused by a fibro-cartilaginous embolism [“FCE”] (Res. Ex. A at 6). After
reviewing respondent’s Rule 4(c) report and the report of Dr. Sladky, Dr. Kinsbourne
recommended that petitioners consult a neuroradiologist to review HTR’s MRI images
and determine if the alternative diagnosis proposed by Dr. Sladky could be correct. See
Petitioners’ Response to Respondent’s Rule 4(c) Report [“Rule 4(c) Response”], filed
April 30, 2012, at 9.
10 Doctor Kinsbourne received his medical education and training at Oxford University. After earning his
medical degree in 1955, he spent nine years obtaining specialty training in the disciplines of pediatrics,
neurology, child neurology, and neurosurgery. In 1964, he became a lecturer in the university’s cognitive
neuroscience department. He moved to the United States three years later to be a professor and chair
of the child neurology division within the pediatrics department at Duke University. Although he had
obtained the British equivalents, Duke requested that Dr. Kinsbourne sit for an American medical board
examination. He sat and passed the examination in pediatrics. After seven years at Duke University, Dr.
Kinsbourne moved to a position at the University of Toronto and Hospital for Sick Children. In 1980, he
transitioned to a more research-orientated position at the Eunice Shriver Kennedy Center in
Massachusetts. For approximately the past twenty years, Dr. Kinsbourne has taught clinical psychology
to graduate students at the New School in New York. Over the course of his career, he has published
over 400 articles, consisting of peer-reviewed articles, textbook chapters, and theoretical articles.
Additionally, Dr. Kinsbourne has written or edited ten monographs and books. See generally Tr. at 26-31.
11 I requested the supplemental opinion of Dr. Kinsbourne because he relied upon the conclusions
regarding a relationship between the tetanus vaccine and TM contained in K. Stratton, et al., ADVERSE
EVENTS ASSOCIATED WITH CHILDHOOD VACCINES: EVIDENCE BEARING ON CAUSALITY (1994) [hereinafter
“1994 IOM Report”]. See Order, issued Nov. 4, 2011, at 1. A more recent report from the Institute of
Medicine, released on August 25, 2011, and published in 2012, also addressed the evidence regarding a
relationship and I wanted the benefit of Dr. Kinsbourne’s views on the more recent report.
4

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Petitioners took Dr. Kinsbourne’s recommendation, and filed expert reports from
Dr. Patrick Barnes,12 a pediatric neuroradiologist, and Dr. Becker, a neurologist. See
Pet. Exs. 29, 31-32. Petitioners also attempted to obtain an expert report from Dr.
Cheran Shah, the treating physician who initially reviewed the MRI at Arkansas
Children’s Hospital. After reading Dr. Sladky’s report and re-reviewing the MRI images,
Dr. Shah indicated to them that he remained confident in his initial diagnosis of ATM.
According to petitioners, hospital policy prevented Dr. Shah from preparing a written
statement or otherwise being involved in this case. Rule 4(c) Response at 3-4.
Based on his review of HTR’s MRI, Dr. Barnes concluded that the “spinal cord
findings [were] not consistent with infarctions or ischemic myelopathy (e.g. embolic,
thrombotic, or hypoperfusion) unless associated with an infectious or post-infectious
vasculopathy, vasculitis, or hypercoagulopathy.” Pet. Ex. 29 at 2. He did not explain
why the cause of an infarction would affect the spinal cord’s appearance on the MRI.
Doctor Becker agreed with Dr. Sladky’s classification of HTR’s injury as an SCI, but he
opined that the infarction resulted from vascular thrombosis trigged by her HPV
vaccination rather than from an FCE. Pet. Ex. 31 at 3. Thus, Dr. Becker’s opinion
dovetailed with that of Dr. Barnes.
On July 2, 2012 respondent filed a supplemental Rule 4(c) report, a
supplemental expert report from Dr. Sladky, and an expert report and CV from pediatric
hematologist Dr. Joan Cox Gill.13 See Res. Exs. I-K. Both reports addressed the HPV-
based causation theory put forth in Dr. Becker’s expert report.
The parties filed their pre-hearing submissions on November 6, 2012. Although
petitioners disavowed Dr. Kinsbourne’s causation theory in their April 2012 Rule 4(c)
12 Doctor Barnes attended the University of Oklahoma for both his undergraduate and medical studies.
He completed his residency in diagnostic radiology in Oklahoma. He completed a fellowship in pediatric
neuroradiology and cardiovascular radiology at Harvard Medical School and the Children’s Hospital in
Boston, MA, in 1977, Doctor Barnes is board certified in diagnostic radiology, with an added certification
in neuroradiology. He currently is the Chief of the Pediatric Neuroradiology Section and Co-Director of
the Pediatric MRI and CT Center at Lucile Salter Packard Children’s Hospital and Stanford University
Medical Center. See generally Pet. Exs. 29 (expert report) and 30 (CV).
13 Doctor Gill received a B.S. from St. Norbert College and her medical degree from the Medical College
of Wisconsin. She completed her pediatric internship and residency at the Milwaukee Children’s Hospital
and did a fellowship in Pediatric Hematology-Oncology through the Medical College of Wisconsin and the
Blood Center of Southeastern Wisconsin. Since completing her fellowship in 1981, Dr. Gill has held a
faculty appointment with the Medical College of Wisconsin. She is currently a Professor of Pediatrics,
Medicine, and Epidemiology. Additionally, Dr. Gill is the Director of the Comprehensive Center for
Bleeding Disorders at The Blood Center of Wisconsin and the Medical Director of the Hemophilia and
Bleeding Disorders Center at the Children’s Hospital of Wisconsin. Doctor Gill serves on several medical
and professional committees and is board certified in both pediatrics and pediatric hematology/oncology.
See generally Tr. at 302-11; Res. Ex. K.
5

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Response,14 the pre-hearing submissions indicated that they would be presenting
evidence on both a Tdap-ATM causation theory and an HPV-SCI theory. Petitioners’
Memorandum for Entitlement Hearing at 4-5; Parties’ Joint Prehearing Submission at 2.
Mrs. Raymo and Drs. Kinsbourne, Becker, Sladky and Gill testified in person at
the entitlement hearing held in Little Rock, AR on November 27 and 28, 2012. At the
conclusion of the hearing, petitioners requested the opportunity to file post hearing
briefs. Petitioners filed their post hearing brief on February 6, 2013. Respondent’s
responsive brief was filed on February 22, 2013.
After the hearing, two issues arose which are discussed in detail in Section IV:
Dr. Becker’s apparent plagarization of another expert’s report and Dr. Sladky’s failure to
disclose the suspension of his medical license to respondent. I provided both parties an
opportunity to address these issues prior to issuing this decision. This case is now ripe
for a ruling on the issue of entitlement.
II. Relevant Medical History and Factual Findings.
A. Undisputed Facts.
HTR was born at Keesler Air Force Base on February 2, 1999. Pet. Ex. 3, p. 1.
Her early childhood growth and development were normal. See generally Pet. Exs. 4,
8. She had recurrent ear infections and allergies, but no serious health concerns during
her first eleven years of life. Id. HTR received recommended childhood vaccines with
no reported ill effects. See Pet. Exs. 4, 5.
On Wednesday, October 13, 2010, HTR was seen for a headache and sinus
drainage. She also complained of congestion and cough, which had persisted for two
weeks. Pet. Ex. 4, p. 148. HTR was diagnosed with allergic rhinitis and an upper
respiratory infection, for which she was prescribed Claritin and Sudafed. Pet. Ex. 4, p.
149; Tr. at 11.
HTR also received the allegedly causal vaccines on October 13, 2010. After the
visit for her allergies, HTR went to the immunization clinic where she was administered
her second hepatitis A and first HPV (Gardasil), meningococcal, and Tdap vaccinations.
14 In their response, petitioners quoted respondent’s Rule 4(c) conclusion that they had “not provided a
reputable medical theory causally connecting [HTR’s] Tdap vaccination with her paraplegia and related
complications” before stating that they “do not dispute that the expert report of Dr. Kinsbourne is not a
reputable medical theory in this matter. Dr. Kinsbourne based his entire analysis and resulting opinion
upon the medical opinions of the treating physicians that [HTR] developed [A]TM . . . it was not
unreasonable for [HTR’s] treating physicians and Dr. Kinsbourne to believe from a review of the MRI
images that the diagnosis of [A]TM to be correct. However, it now appears likely to Petitioners, after
reviewing the reports of Dr. Sladky and Dr. Becker, that the original diagnosis of [A]TM by the treating
physician is incorrect.” Rule 4(c) Response at 10-11.
6

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Pet. Ex. 5, p. 151; Tr. at 11-12. No time-stamped records were filed from the
immunization clinic, but per Mrs. Raymo’s testimony, HTR received the vaccinations
around 11:30 AM.15
On Thursday, October 14 and Friday, October 15, 2010, HTR went to school.
She did not complain of any ill effects from the vaccinations. Tr. at 13-14. Friday night
she attended an overnight lock-in program at her church. When picked up Saturday
morning, HTR was a bit grumpy from a lack of sleep, but otherwise seemed like her
typical, healthy self. Tr. at 14-15. Her paternal grandparents visited the family that
weekend, and she spent Saturday walking around and sightseeing with them. Id.
That night, with HTR’s grandparents staying in the master bedroom, Mrs. Raymo slept
in HTR’s room and Mr. Raymo slept in HTR’s sister’s room. HTR went to bed around
9:00 PM and to sleep around 9:30. She was still asleep when her mother woke up
around 7:30 AM on Sunday, October 17, 2010. Tr. at 16-17.
By the afternoon of October 17, 2010, HTR was admitted to the hospital with a
presumptive diagnosis of TM. She was completely paralyzed from the waist down. Pet.
Ex. 7, p. 195.
B. Disputed Facts.
1. Overview.
The parties’ most significant disagreement, other than that of causation itself,
involves timing. Three periods are at issue: (1) when HTR first experienced symptoms
of TM; (2) the length of time between the first symptom and the nadir of her symptoms;
and (3) the time between vaccination and onset of symptoms. Resolution of these
factual disagreements is critical to analyzing petitioners’ causation theory because Dr.
Kinsbourne unequivocally testified that he could not support an autoimmune theory if
onset to nadir was under four hours. Tr. at 37-38.
2. Law Pertinent to Factual Conflicts.
Conflicts between contemporaneous records and testimony given several years
later at a hearing are common in Vaccine Act cases, and this case is no exception. Two
general legal principles guide the resolution of conflicts between contemporaneous
records and later-adduced evidence. The first is that the absence of a reference to
specific symptoms in a medical record does not conclusively establish the absence of
symptoms during that time frame. See, e.g., Murphy v. Sec’y, HHS, 23 Cl. Ct. 726, 733
(1991), aff’d, 968 F.2d 1226 (Fed. Cir. 1992) (“[T]he absence of a reference to a
15 Tr. at 12. The notes from HTR’s morning appointment indicate it began around 10:30 AM and that the
visit was concluded by 10:59. Pet. Ex. 4, pp. 148-49.
7

Case 1:11-vv-00654-CFL Document 83 Filed 03/19/14 Page 8 of 33
condition or circumstance is much less significant than a reference which negates the
existence of the condition or circumstance”) (citation omitted).
The second principle addresses the degree of reliance commonly accorded to
contemporaneous records. Special masters frequently accord more weight to
contemporaneously-recorded medical symptoms than those recounted in later medical
histories, affidavits, or trial testimony. “It has generally been held that oral testimony
which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.” Murphy, 23 Cl. Ct. at 733 (citation omitted); see also Cucuras v. Sec’y, HHS,
993 F.2d 1525, 1528 (Fed. Cir. 1993) (medical records are generally trustworthy
evidence). Memories are generally better the closer in time to the occurrence reported
and when the motivation for accurate explication of symptoms is more immediate.
Reusser v. Sec’y, HHS, 28 Fed. Cl. 516, 523 (1993). Inconsistencies between
testimony and contemporaneous records may be overcome by “clear, cogent, and
consistent testimony” explaining the discrepancies. Stevens v. Sec’y, HHS, No. 90-
221V, 1990 WL 608693, at *3 (Fed. Cl. Spec. Mstr. Dec. 21, 1990).
3. Nature of the Dispute.
The parties agree that at some point during the morning hours of October 18,
2010, HTR began to experience numbness in her right leg, that the symptoms spread to
her other leg, and resulted in paralysis of HTR’s lower body by the time of her
neurological examination at the second hospital she visited that morning. Petitioners
contend that HTR first noticed the symptoms of a transverse myelopathy upon
awakening and that onset therefore occurred the prior evening.16 If petitioners are
correct, symptom onset likely occurred while HTR was sleeping. Respondent takes the
position that HTR was entirely normal when she awoke, and only began experiencing
symptoms of a transverse myelopathy when she started to get out of bed.
Based on their differing positions as to the timing of onset of HTR’s symptoms,
the parties also disagree on the length of time between onset and nadir. Petitioners
contend that it took longer than four hours, while respondent contends nadir was
reached within four hours.
4. Evidence.
The medical records discussed below, particularly those from the emergency
room at Baptist Health Medical Center [“BHMC”] and from HTR’s transfer and
16 Petitioners rely upon a late-filed medical article (Pet. Ex. 57) to place onset of symptoms at the time
HTR went to sleep. Pet. Post Hearing Brief at 5 (citing H. Adams, et al., AHA/ASA Guideline: Guidelines
for the Early Management of Adults with Ischemic Stroke, STROKE, 38:1655-1711 (2007)). Respondent
objected to my consideration of this article. See Respondent’s Post Hearing Brief [“Res. Post Hearing
Brief”] at 5. Although I examined the document, I place no reliance on it. The document concerns a
medical “rule of thumb” for administration of “clot busting drugs” in patients who awaken with symptoms of
a brain stroke. This presumption is not relevant to my factual determination.
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admission to Arkansas Children’s Hospital [“ACH”], are somewhat inconsistent in
identifying a time of onset. These inconsistencies reflect a lack of clarity in the
questions asked and the answers given. Given HTR’s condition, determining precisely
when the first symptoms arose was unnecessary to determine a course of treatment.17
Unlike a brain stroke,18 where careful questioning regarding symptom onset is
necessary to determine if “clot-busting” drugs may be administered, medical personnel
treating HTR were focused on determining what was wrong, and Mrs. Raymo and
HTR’s responses likely reflected the near hysteria experienced over HTR’s rapidly
progressing paralysis.
a. The Contemporaneous Medical Records.
(1) Records from Baptist Health Medical Center.
HTR arrived at BHMC at 9:18 AM on the morning of October 17, 2010. She was
evaluated by an emergency room triage nurse at 9:35 AM. Pet. Ex. 6, p. 157. The
nurse recorded a chief complaint of “[right] flank pain then tried to stand up and was
unable to walk.” Id. The triage report reflects paresthesia, decreased range of motion,
and weakness in HTR’s legs. The leg weakness and numbness were worse in the right
leg than the left. Id., p. 158.
The typed Emergency Department History and Physical note, dictated by Dr.
Chris Hall, provides additional details about what occurred prior to their arrival at BHMC:
Mother says [HTR] has complained of some right flank pain, and when
she tried to stand up she was unable to walk. She said her right leg felt
numb and tingling. She had weakness in her right leg and some
paresthesias and weakness in the left, but mainly in the right. The patient
has had a cough and congestion 2 to 3 days ago, but has otherwise not
17 TM symptoms are treated as if they are inflammatory or autoimmune in origin. Corticosteroids are the
generally accepted first line treatment, although there have been no randomized controlled trials involving
their use. Their use has been derived from case studies and extrapolation from patients with multiple
sclerosis. If corticosteroids are ineffective, plasma exchange is usually the next alternative. Frohman
and Wingerchuk, Pet. Ex. 11, at 568-69. However, there are no professional guidelines for treatment and
management. Id. at 571. HTR did not respond to either treatment, placing her among the approximately
one-third of those with TM who have a poor outcome in spite of treatment. TMCWG Diagnostic Criteria,
Pet. Ex. D, at 499. The rapid progression of symptoms and spinal shock were risk factors predictive of a
poor likelihood of recovery. Id.
18 Timing can be important in assigning a possible or probable cause for TM, but it has little bearing on
treatment. A person presenting with symptoms of TM would be treated as if the condition were immune-
mediated, as there is no treatment for a spinal cord infarction. See TMCWG Diagnostic Criteria at 501
(noting that some vascular myelopathies may fall within the ATM guidelines and recommending that,
patients with suspected ATM should receive immediate treatment instead of waiting for nadir of
symptoms); see also Tr. at 355-56 (clot-busting drugs are typically not used in the treatment of spinal cord
infarctions because the act of administering them could cause an even greater harm).
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been sick and has not been running a fever. She complains of some right
suprapubic abdominal pain and right flank pain.
Pet. Ex. 6, p. 154. Doctor Hall also indicated that:
[HTR] either is unable or unwilling to move her right leg. Initially it seemed
it could be somewhat voluntary, but I could not get her to move it at all and
in fact, when she was taken to the bathroom to get a urine specimen her
mother had to lift her back into the chair. She was unable to support her
weight and basically slumped to the floor. She would not even bear
weight with her left. I could not get her to show any strength in the right
leg. It was 0 out of 5 strength. It was somewhat flaccid. Her left leg she
(sic) would not do any strength at all. Initially, it seemed that she was
moving it somewhat, but on re-exam there is still very little movement in
the left leg, if any at all. She just would say she cannot move it. She did
have some sensation in the left leg to pinprick in the lower leg and upper
leg, but it was somewhat dulled. In the left foot she had minimal to no
sensation. In the right foot, right lower leg, and right upper leg, even to
sharp pinprick she had no apparent sensation. She tells me that she can
feel things somewhat but not as it should be, some sort of paresthesia,
according to the patient.
Id., p. 155. The treating physicians decided to transfer HTR to ACH “for the purpose of
specialized pediatric services not available at [BHMC].” Pet. Ex. 6, pp. 164
(Authorization/Consent For Transfer), 165 (Transfer Certification Statement). The
records reflect the time of discharge as 12:03 PM. Pet. Ex. 6, pp. 160, 172.
(2) Records from ACH.
The medical records reflect the time of HTR’s arrival at the ACH emergency
room as 12:25 PM. Pet. Ex. 7, p. 347. Soon after her arrival, HTR was evaluated by
neurologist Dr. William Walters. He summarized her presentation as:
11 yr old WF with [no prior medical history] of note who awoke with
numbness right leg, also paralyzed followed < 1 hr by left leg, now with
complete numbness & paralysis to belly button. Also c/o stomach
tenderness; [no] recent fever or illness.
Id., p. 178. His assessment was that HTR was an “[a]cute onset paraplegic ~T10,
probably transverse myelitis; considering stroke, virus, AIDP, polio like illness. MS,
central lesion less likely.” Id., p. 179.
The records from ACH include a daily note for each day HTR was hospitalized.
See, e.g., Pet. Ex. 7, pp. 206-07 (Day 3 note), 217-18 (Day 5 note). These day notes
were written contemporaneously, but more remotely from the events when HTR awoke
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on October 17, 2010. The note for October 17, 2010, day 0, which was written at 11:31
PM, recaps the events of the day:
Mom said that [HTR] got up this morning like she normally did and had no
problems. A little while after she got up, she couldn’t stand on her legs
and fell down. She said that it felt like her legs were asleep. Mom took
her to Springhill and she was still able to move her toes on her left foot but
couldn’t move her right leg at all. She could no longer feel her legs at all.
Mom said that it started in her right leg and then moved to her left leg.
She was also unable to urinate. Now she is unable to move either of her
legs and is numb up to her hips. She has had a cough and runny nose for
past week. In ER, they did several blood tests and she got an MRI of her
spine which showed an area of increased uptake in the lower thoracic
area, but is likely an artifact because she was moving. Dr. Walters has
seen and examined the [patient] in the ER.
Pet. Ex. 7, p. 195.
On October 19, 2013, an infectious disease specialist, met with HTR and her
mother. The notes from the meeting indicate that:
According to pt’s mom, she was seen by PCP on Wednesday 10/13
[secondary] to cough & “sinus infection.” Pt was also given her Gardasil,
menactra and tetanus vaccinations at that visit. Mom states that [HTR]
had been taking Zyrtec intermittently for allergies, but [otherwise] was not
taking any other medications. Mom states that pt continued to have mild
cough and runny nose after the PCP visit but [no] other symptoms were
present until yesterday 10/17. On yest., [HTR] states that she woke up
and felt fine. A few minutes after awakening she began to have weakness
and tingling in her R LE & when she tried to stand up she fell down. The
pt taken to an [sic] OSH & while there she developed weakness & loss of
sensation in her L LE also. The patient was subsequently transferred to
ACH & upon arrival had lost all bowel and bladder control. Mother denies
fever, headache, [nausea/vomiting], diarrhea, recent travel, sick contacts
or tick exposure.
Pet. Ex. 7, p. 187.
b. Mrs. Raymo’s Affidavit.
In her October 6, 2011 affidavit, Mrs. Raymo indicated that “[o]n the morning of
October 17, 2010, when [HTR] awoke, she complained of weakness and tingling in her
right leg. When she attempted to stand up, she fell down.” Pet. Ex. 2 at ¶ 9. Upon
arrival at BHMC, “[HTR] complained that her right leg was numb and [she] was
experiencing weakness in the left leg.” Id. at ¶ 11.
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Mrs. Ramyo also reported that “[w]hile at [BHMC] [HTR] also developed loss of
sensation in her left leg.” Pet. Ex. 2 at ¶ 12. Approximately two and half hours later,
the ACH “attending physician evaluated [HTR]. [HTR] had lost sensation in both of her
legs to her belly button and was experiencing tenderness in her stomach and lower
back. [HTR] had also lost bladder and bowel control.” Id. at ¶ 15.
c. Mrs. Raymo’s Testimony.
Mrs. Raymo’s testimony provided further details about the events of October 16-
17, 2010. Because Mr. Raymo’s parents were staying in the master bedroom, Mrs.
Raymo slept in HTR’s room the night of October 16, 2010. Mrs. Raymo awoke around
7:30 AM and left the room to get dressed for church. Tr. at 16-17. When she returned
to the room, HTR was awake and sitting “half on and half off the bed.” Tr. at 17. HTR
indicated that she couldn’t feel her right leg. Mrs. Raymo thought the leg was just
“asleep” and left the room to finish getting dressed. Id. When Mrs. Raymo returned to
the room a second time, HTR stressed that she was not playing and that she could not
feel her leg. Mrs. Raymo indicated she then tried pinching the leg and HTR could not
feel it, which is when she realized something was wrong. Id.
Mrs. Raymo called her husband and they tried to get HTR to stand up, but she
was not able to do so. Tr. at 17. HTR said that she could not feel her right side at all
and that her left side was tingling and felt a little bit numb. Tr. at 17-18. She did not feel
any pain in her legs or right side of her body. Tr. at 21. Mrs. Raymo asked HTR if she
had noticed anything being different during the night. HTR replied that she had not. Tr.
at 18.
Rather than waiting for an ambulance to arrive, Mr. and Mrs. Raymo put HTR
into a computer chair and then transferred her into their car. Tr. at 17. They arrived at
BHMC by 10:00 AM. Tr. at 18. They stayed there for about two hours before HTR was
transferred via ambulance to ACH. Tr. at 18-19. While at BHMC, HTR’s left leg started
going numb, and, at the time of transfer, her foot was numb but she had some
sensation in the rest of the leg. Tr. at 19. As she was wheeled into her room at ACH a
paramedic tested her ability to feel pain with a needle and there was no reaction in
either leg. Tr. at 20.
d. Parties’ Post Hearing Briefing.
On February 6, 2013, petitioners filed their post hearing brief. The opening
paragraph signaled the shift from Dr. Becker’s spinal cord infarction theory back to Dr.
Kinsbourne’s ATM theory: “Dr. Becker originally opined that [HTR] had a spinal cord
infarction. At trial however, he acknowledged that if the timing of symptom onset to
nadir was longer then he agreed with Dr. Kinsbourne’s conclusions rather than Dr.
Sladky’s conclusions.” Pet. Post Hearing Brief at 1. Relying on Mrs. Raymo’s
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testimony19 and Pet. Ex. 57, petitioners contend that the onset of HTR’s symptoms was
at the time she went to bed on the night of October 16, 2013, as it was the last time she
was neurologically normal. Id. at 9. This would make the period between onset and
nadir significantly longer than four hours.20 Therefore, petitioners maintain that the only
logical conclusion is that “HTR’s paralysis was the result of an autoimmune condition as
opposed to an infarct in her spinal cord.” Pet. Post Hearing Brief at 9. Although they
did not explicitly withdraw Dr. Becker’s expert report, it appears that petitioners are no
longer relying on Dr. Becker’s HPV-SCI causation opinion.
Respondent’s post hearing response, filed February 22, 2013, argued that HTR
suffered a spinal cord infarction. Res. Post Hearing Response at 1-2. Stressing Dr.
Sladky’s strong academic background and clinical experience, particularly as compared
to that of Dr. Kinsbourne, respondent urges me to place more weight on his opinion
regarding HTR’s onset of symptoms and type of injury.
Additionally, with regard to onset of HTR’s symptoms, respondent argued that
Mrs. Raymo’s testimony, which Dr. Kinsbourne relied on in proposing his causation
opinion, contradicted the progression of events contained in the contemporaneous
medical records. Furthermore, even if onset to nadir took longer than four hours,
respondent indicates that her position regarding the type of injury would not change.
Res. Post Hearing Brief at 7.
C. Factual Findings Regarding Onset of Symptoms.
With regard to the time elapsed between HTR’s vaccination and the earliest
symptoms of her transverse myelopathy, and between the earliest symptoms and nadir,
I make the following factual findings:
1. HTR received her Tdap vaccination at approximately 11:30 AM on
Wednesday, October 13, 2010.
2. It is impossible to conclude precisely when the first symptoms of numbness
and tingling in HTR’s legs occurred, but I find that they most probably arose while HTR
slept, placing onset sometime between 9:30 PM on the evening of Saturday October 16
and before she awoke on Sunday October 17, 2010. Given the pace at which her
19 Petitioners urge me to place more weight on the testimony of Mrs. Raymo than on the medical records
when determining when HTR’s symptoms began, noting that the summary of events contained in the
records were based on statements made when Mrs. Raymo was “very worried, confused, and stressed.”
Id. at 3.
20 Doctor Kinsbourne testified that nadir occurred at ACH, when HTR was paralyzed in both legs and had
lost all bowel and bladder control. Tr. at 40-41 (“[HTR] cannot move her legs and has trouble with the
muscle of the lower body. . . . She can’t pass urine in the normal way. She has to be catheterized, and
she has great trouble with her bowels . . . [N]adir is when that full set of disabilities first appeared.”).
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symptoms progressed after awakening, onset most like occurred within an hour or two
before awakening.
a. HTR likely slept heavily that evening. She had been up most of Friday
night at a church lock-in, followed by a busy day of sightseeing with her parents and
grandparents.
b. HTR was still sleeping when her mother awoke in the same room
between 7:30-8:00 AM on Sunday, October 17, 2010. Her mother left the room to begin
getting ready for church.
c. HTR was awake and sitting on the bed when her mother returned to
the room, and she complained to her mother that her right leg was tingling. She also
complained of flank pain.
d. Upon Mrs. Raymo’s second return to HTR’s room that morning, HTR
reported that she was not playing, and could not feel her right leg. Mrs. Raymo pinched
her daughter’s leg and confirmed she could not feel pain.
e. Her parents tried to get her to stand but she was unable to do so. They
transported her to the family car in a computer chair and took her to the emergency
room at BHMC.
f. HTR continued to lose sensation in her right leg between awaking and
her arrival at BHMC around 9:30 AM on October 17, 2010. Numbness in her left leg
became more advanced during the car ride, but she still had some sensation of pain in
her left leg when examined in the emergency room at BHMC by Dr. Hall.
g. By the time HTR was examined at ACH by Dr. Walters, she was
completely paralyzed to the umbilicus. She had lost bowel and bladder control at that
point and was experiencing stomach and right flank pain. Given that HTR did not arrive
at ACH until 12:25 PM, it is likely that Dr. Walters did not see HTR until close to 1:00
PM, given the need to get her from the ambulance and into an examination room and to
take vital signs.
h. Mrs. Raymo’s affidavit was filed with the petition. In the affidavit, Mrs.
Raymo stated that HTR had weakness and tingling upon awakening. Her affidavit was
consistent with her testimony at the hearing. The significance of a short time frame
between onset of symptoms and nadir did not arise until Dr. Sladky’s report was filed,
and the theory that HTR had experienced an SCI was presented.21 Thus, Mrs. Raymo’s
affidavit was made before any motive to misrepresent the timeline of events was
21 Exactly when Dr. Kinsbourne determined that a timeline longer than four hours between onset and
nadir could support his original ATM theory is not clear, but it was certainly after Mrs. Raymo’s affidavit
was prepared and filed.
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present. Mrs. Raymo’s affidavit is also consistent with the history taken by Dr. Walters,
the neurologist who first evaluated HTR at ACH. He recorded that HTR “awoke with
numbness of right leg.” Pet. Ex. 7, p. 178.
i. Although many of the histories taken at the two hospitals suggest that
HTR was “fine” when she awoke, those histories are not inconsistent with the onset of
more subtle TM symptoms. The earliest reports note that HTR complained of “flank
pain” and numbness. Until HTR tried to stand, the numbness or tingling was likely
taken as the common occurrence of “pins and needles” or a limb that is “asleep.” It was
the inability to feel pain at all and to bear weight that alarmed the Raymos and sent
them in panic to the hospital. These more severe symptoms were what Mrs. Raymo
and HTR focused on in talking with her doctors.
j. Feeling “fine” on awakening is not inconsistent with TM onset prior to
awakening. Attempting to move a tingling extremity and finding it difficult to do so is not
inconsistent with not feeling ill or being in pain on awakening.
k. If anyone questioned HTR closely about the precise onset of the
numbness or flank pain, it is not apparent from the summarized histories in the medical
records. The histories provide more detail about the ascending flaccid paralysis than
whether any symptoms first were present upon awakening, upon movement, or upon
attempting to bear weight.
3. I find that the time period between onset of symptoms and nadir was longer
than four hours, but it is impossible to determine the period precisely. Nadir occurred
sometime between 12:30 and 1:00 PM, and onset most likely occurred before 8:00 AM.
4. The time period between vaccination and initial onset of symptoms of a
transverse myelopathy is impossible to determine precisely. However, it is more likely
than not that the period is between 82 and 93 hours post vaccination, based on the time
HTR went to bed on the evening of October 16 and when she likely awoke on the
morning of October 17. This places onset at between 3 and 4 days post vaccination.
III. Legal Standards Applying to Off-Table Causation Cases.
When a petitioner alleges an off-Table injury, eligibility for compensation is
established when, by a preponderance of the evidence, petitioner demonstrates that he
received, in the United States, a vaccine set forth on the Vaccine Injury Table [“Table”]
and sustained an illness, disability, injury, or condition caused by the vaccine or
experienced a significant aggravation of a preexisting condition. She must also
demonstrate that the condition has persisted for more than six months.22 Vaccine
22 Section 13(a)(1)(A). This section provides that petitioner must demonstrate “by a preponderance of the
evidence the matters required in the petition by section 300aa–11(c)(1) . . . .” Section 11(c)(1) contains
the factors listed above, along with others not relevant to this case.
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litigation rarely concerns whether the vaccine appears on the Table, the situs for
administration, or whether the symptoms have persisted for the requisite time. In most
Vaccine Act litigation, the issue to be resolved by the special master is whether the
injury alleged was caused by the vaccine. This case is no exception.
To establish legal cause in an off-Table case, Vaccine Act petitioners must
establish each of the three Althen factors by preponderant evidence: (1) a medical
theory causally connecting the vaccination and the injury; (2) a logical sequence of
cause and effect showing that the vaccination was the reason for the injury; and (3) a
proximate temporal relationship between vaccination and injury. Althen v. Sec’y, HHS,
418 F.3d 1274, 1278 (Fed. Cir. 2005); see de Bazan v. Sec’y, HHS, 539 F.3d 1347,
1351-52 (Fed. Cir. 2008); Caves v. Sec’y, HHS, 100 Fed. Cl. 119, 132 (2011), aff’d per
curiam, 463 Fed. Appx. 932, 2012 WL 858402 (Fed. Cir. 2012) (specifying that each
Althen factor must be established by preponderant evidence). The applicable level of
proof is the “traditional tort standard of ‘preponderant evidence.’” Moberly v. Sec’y,
HHS, 592 F.3d 1315, 1322 (Fed. Cir. 2010) (citing de Bazan, 539 F.3d at 1351; Pafford
v. Sec’y, HHS, 451 F.3d 1352, 1355 (Fed. Cir. 2006); Capizzano v. Sec’y, HHS, 440
F.3d 1317, 1320 (Fed. Cir. 2006); Althen, 418 F.3d at 1278). The preponderance
standard “requires the trier of fact to believe that the existence of a fact is more
probable than its nonexistence.” In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J.,
concurring) (internal quotation and citation omitted).
Another formulation of the causation requirement in off-Table cases is the “Can it
cause?” and “Did it cause?” inquiries used in toxic tort litigation. These queries are also
referred to as issues of general and specific causation. Prong 1 of Althen has been
characterized as an alternative formulation of the “Can it cause?” or general causation
query. Prong 2 of Althen, the requirement for a logical sequence of cause and effect
between the vaccine and the injury, has been characterized as addressing the “Did it
cause?” or specific causation query. See Pafford v. Sec’y, HHS, No. 01-165V, 2004 WL
1717359, at *4 (Fed. Cl. Spec. Mstr. July 16, 2004), aff., 64 Fed. Cl. 19 (2005), aff’d,
451 F.3d 1352 (2006). The third Althen factor is subsumed into the other inquiries.
Even if a particular vaccine has been causally associated with an injury, petitioner must
still establish facts and circumstances that make it more likely than not that this vaccine
caused his particular injury. Timing may be one of those circumstances.
Whether a case is analyzed under Althen or the “Can it cause?” formulation,
petitioners are not required to establish identification and proof of specific biological
mechanisms, as “the purpose of the Vaccine Act’s preponderance standard is to allow
the finding of causation in a field bereft of complete and direct proof of how vaccines
affect the human body.” Althen, 418 F.3d at 1280. The petitioner need not show that
the vaccination was the sole cause, or even the predominant cause, of the injury or
condition; showing that the vaccination was a “substantial factor”23 in causing the
23 The Restatement (Third) of Torts has eliminated “substantial factor” in the factual cause analysis. § 26
cmt. j (2010). Because the Federal Circuit has held that the causation analysis in the Restatement
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condition and was a “but for” cause are sufficient for recovery. Shyface, 165 F.3d at
1352; see also Pafford, 451 F.3d at 1355 (petitioner must establish that a vaccination
was a substantial factor and that harm would not have occurred in the absence of
vaccination). Petitioners cannot be required to show “epidemiologic studies,
rechallenge, the presence of pathological markers or genetic disposition, or general
acceptance in the scientific or medical communities to establish a logical sequence of
cause and effect.” Capizzano, 440 F.3d at 1325. Causation is determined on a case by
case basis, with “no hard and fast per se scientific or medical rules.” Knudsen v. Sec’y,
HHS, 35 F.3d 543, 548 (Fed. Cir. 1994). Close calls regarding causation must be
resolved in favor of the petitioner. Althen, 418 F.3d at 1280; but see Knudsen, 35 F.3d
at 550 (when evidence is in equipoise, the party with the burden of proof fails to meet
that burden).
By specifying petitioners’ burden of proof in off-Table cases as the
preponderance of the evidence, directing special masters to consider the evidence as a
whole, and stating that special masters are not bound by any “diagnosis, conclusion,
judgment, test result, report, or summary” contained in the record (§13(b)(1)), Congress
contemplated that special masters would weigh and evaluate opposing expert opinions
in determining whether petitioners have met their burden of proof.24 In weighing and
evaluating expert opinions in Vaccine Act cases, the same factors the Supreme Court
has considered important in determining their admissibility provide the weights and
counterweights. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50 (1999);
Terran v. Sec’y, HHS, 195 F.3d 1302, 1316 (Fed. Cir. 1999). As the Supreme Court
has noted, a trial court is not required to accept the ipse dixit of any expert’s medical or
scientific opinion, because the “court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997).
Although Daubert v. Merrell Dow Pharmaceuticals25 interpreted Federal Rule of
Evidence 702, an evidentiary rule not applicable to Vaccine Act cases, Daubert
nevertheless provides a useful framework for evaluating scientific evidence in Program
cases. Terran, 195 F.3d at 1316 (concluding it was reasonable for the special master to
use Daubert to evaluate the reliability of an expert’s testimony); Cedillo v. Sec’y, HHS,
617 F.3d 1328, 1339 (Fed. Cir. 2010) (noting that special masters are to consider all
(Second) of Torts applies to off-Table Vaccine Act cases (see Walther v. Sec’y, HHS, 485 F.3d 1146,
1151 (Fed. Cir. 2007); Shyface v. Sec’y, HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999)), this change does
not affect the determination of legal cause in Vaccine Act cases: whether the vaccination is a “substantial
factor” is still a consideration in determining whether it is the legal cause of an injury.
24 See § 13(a)(1)(A) (preponderance standard); § 13(a)(1) (“Compensation shall be awarded . . . if the
special master or court finds on the record as a whole . . . .” ); § 13(b)(1) (indicating that the court or
special master shall consider the entire record in determining if petitioner is entitled to compensation and
special master is not bound by any particular piece of evidence).
25 509 U.S. 579 (1993).
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relevant and reliable evidence filed in a case and may use Daubert factors in their
evaluation of expert testimony); Davis v. Sec’y, HHS, 94 Fed. Cl. 53, 67 (2010)
(describing the Daubert factors as an “acceptable evidentiary-gauging tool with respect
to persuasiveness of expert testimony already admitted . . . by special masters in
vaccine cases”); see also Snyder v. Sec’y, HHS, 88 Fed. Cl. 706, 718 (2009) (quoting
Ryman v. Sec’y, HHS, 65 Fed. Cl. 35, 40-41 (2005) (special masters perform a
gatekeeping function when determining “whether a particular petitioner’s expert medical
testimony supporting biological probability may be admitted or credited or otherwise
relied upon” and as a “trier-of-fact [a special master] may properly consider the
credibility and applicability of medical theories”)). The special master’s use of Daubert’s
factors to evaluate the reliability of expert opinions in Vaccine Act cases has been cited
with approval by the Federal Circuit more recently in Andreu v. Sec’y, HHS, 569 F.3d
1367, 1379 (Fed. Cir. 2009) and Moberly, 592 F.3d at 1324. See also Vaughan v.
Sec’y, HHS, 107 Fed. Cl. 212, 222 (2012) (“The Federal Circuit has repeatedly stated
that the Special Master may refer to Daubert to assess reliability of expert testimony in
vaccine cases.”). Special masters decide questions of credibility, plausibility,
probability, and reliability, and ultimately determine to which side the balance of the
evidence is tipped. See Pafford, 451 F.3d at 1359.
IV. Concerns Regarding Expert Credibility.
A. Doctor Becker.
There is preponderant evidence that Dr. Becker plagiarized his expert report from
one authored by Dr. Douglas Kerr and filed in another Vaccine Act case. When asked
questions about how his report was prepared, Dr. Becker’s answers were deliberately
misleading. When an expert witness attempts to mislead the court on an issue as
fundamental as the origin of his expert opinion, I assess his credibility as so severely
compromised as to preclude reliance upon his opinion and testimony.
The issue of whether Dr. Becker’s report was his own first arose during the
entitlement hearing. During cross-examination of Dr. Becker, respondent’s counsel
inquired as to the process Dr. Becker used to draft the expert report in this case. Tr. at
140-141. He indicated that usually he “get[s] the records provided by the patients, by
the offices, and then [he] review[s] those and start[s] forming [his] opinion after complete
review of those records.” Tr. at 140. With regard to this case, he testified that he:
had pretty specific things to cover. The timeline supports the evidence,
and so I had to find papers in the literature that backed up the statements
that I had made that I got to after reviewing the report. So generally, like
scientific papers, and Dr. Kinsbourne probably knows that, and Dr. Gill,
anybody of us who writes scientific papers, you start with your findings
and in your discussion you try to be all-inclusive, trying to find the
appropriate background information to make sure you’re appropriately
covered and you can support your claims.
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Tr. at 141. Respondent’s counsel then asked Dr. Becker if he had consulted with Dr.
Douglas Kerr, a founder of the clinic at which Dr. Becker works, while preparing his
report. Id. Doctor Becker indicated that although he knew Dr. Kerr personally, he had
not consulted with him when drafting his expert report. Id.
At the beginning of her direct examination, Dr. Gill testified that she had
consulted on about six cases in the Vaccine Program. In connection with one of those
cases, she had reviewed a report written by Dr. Kerr which was “extremely similar” to
the report filed by Dr. Becker in this case. Tr. at 311-12. She testified: “[A] large
proportion of [Dr. Becker’s] report is word-for-word what Dr. Kerr had written for the
other case and all of the references were the same.” Tr. at 312. Doctor Gill also
testified that, other than the name of petitioner, the two reports contained identical
paragraphs, including identical emphasizing of particular words in the text.26
Post hearing, respondent filed a status report addressing the issue of plagiarism
in Dr. Becker’s expert report. Respondent asserted that Dr. Gill had alerted
respondent’s counsel to the similarities between the two reports prior to the hearing,
which is why counsel inquired as to Dr. Becker’s process for preparing expert reports.
Respondent’s Status Report, filed Jan. 31 [“January Status Report”], 2013, at 1-2.
Because § 12(d)(4)(A) prevented respondent from disclosing the contents of Dr. Kerr’s
report to a party not involved in the case in which it was filed, respondent’s counsel had
sought permission from petitioner’s counsel in the similar case (Flores v. Sec’y, HHS,
No. 10-489V) to file a redacted version of Dr. Kerr’s expert report into the record of this
case. January Status Report at 3. However, counsel for petitioner in Flores indicated
that his client would not consent to the disclosure of a redacted version of Dr. Kerr’s
report. Id; see also Respondent’s Status Report, filed Feb. 8, 2013.
Respondent’s counsel asserted she had read Dr. Kerr’s report in both cases and
confirmed that Dr. Gill’s testimony regarding the two reports was accurate. January
Status Report at 2 (noting that entire paragraphs were identical and seventeen of
exhibits cited in Dr. Becker’s report were cited by Dr. Kerr in Flores). Additionally,
respondent noted that Dr. Kerr’s report was dated February 21, 2011, and therefore was
prepared eight months prior to the filing of this petition and more than a year before
petitioners filed Dr. Becker’s expert report.
Petitioners did not directly address respondent’s allegations of plagiarism by Dr.
Becker. However, in their post hearing brief, filed after respondent brought her
26 Tr. at 312. On cross-examination, Dr. Gill could not recall the name of the other case, but she did
indicate that it was heard by Special Master Hastings, involved a child treated at Rush in Chicago, and,
similar to this case, alleged a vascular event related to a Gardasil vaccination. Tr. at 339-40. The Flores
case involves a child treated at Rush for a purported vascular event after a Gardasil vaccination, and was
heard by Special Master Hastings. Flores v. Sec’y, HHS, No. 10-489V, 2013 WL 5587390, at *1, 3, 6
(Fed. Cl. Spec. Mstr. Sept. 12, 2013).
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concerns to the court’s attention, petitioners abandoned the HPV-SCI causation theory
Dr. Becker proposed and returned to their initial Tdap-ATM causation theory.
I have compared Dr. Becker’s report with the portions of Dr. Kerr’s report quoted
in Flores, and the portions quoted are virtually identical. See Flores, 2013 WL 5587390,
at *6 n.11, *12 n.16, *14 n.19.
It is clear that Dr. Becker presented the work product of Dr. Kerr as his own. It
does not appear that he disclosed this fact to petitioners or their attorney, at least before
the issue was raised at hearing. It is this failure that I find the most concerning in
deciding whether to credit any part of his testimony. Had Dr. Becker indicated that he
had been provided a copy of Dr. Kerr’s earlier report and agreed with the reasoning and
conclusions therein and adopted them as his own, my concerns about his candor would
be less pressing. However, whether for financial reasons, time constraints, or for the
prestige attached to being an expert witness,27 Dr. Becker was willing to take a shortcut,
pass another’s work product off as his own and, more significantly, testify in a manner
that attempted to mislead the court about the origin of the opinions expressed in the
report bearing his signature.
B. Doctor Sladky.
Unfortunately, witnesses with ethical challenges were a problem for both parties.
Respondent took a more forthright approach to Dr. Sladky’s licensure problems by
bringing them to the court’s attention. On May 1, 2013, respondent filed a status report
concerning Dr. Sladky. In summary, the status report informed the court that
respondent had recently learned that Dr. Sladky had withheld information regarding
suspension of his license to practice medicine. May Status Report at 1. Although he
was properly licensed throughout his involvement with this case, he neglected to
disclose to respondent a prior suspension of his medical license and the completion of a
probationary period. Id. Respondent attached several documents to her status report
from the Georgia Composite Medical Board [“GCMB”] detailing the specifics of Dr.
Sladky’s suspension and probation.28
Petitioners filed a response to respondent’s status report on May 6, 2013. The
response noted that petitioners “do not wish to delay a ruling by the Special Master in
this matter [and] thus will not file a formal objection at this time,” but wanted to “make a
27 He testified that this case was his first appearance as an expert witness. Tr. at 96.
28 It appears from respondent’s status report that Dr. Sladky prepared expert opinions during the period in
which his license to practice medicine was suspended and/or in which he was practicing under
supervision. May Status Report at 2; see also Contreras v. Sec’y, HHS, No. 05-626V, 2013 WL 6698382,
at *4-5 (Fed. Cl. Spec. Mstr. Nov. 19, 2013) (discussing Dr. Sladky’s supplemental expert report and
hearing testimony in relation to the end of his suspended license and start of probationary period in March
2010).
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note on the Record that Petitioners were not given the opportunity to question Dr.
Sladky regarding his suspension/probation.” Reply to Respondent’s Status Report at 1.
During a status conference, held on May 17, 2013, I stressed that any issue petitioners
might want to raise in a future motion for review must be raised before the special
master. Order, issued May 17, 2013, at 2. I offered petitioners the option of recalling
Dr. Sladky for additional cross-examination or propounding interrogatories for him to
answer. Additionally, I indicated that petitioners could propose other methods for
addressing their concerns. Id. I also noted, that based on my workload, supplemental
briefing or proceedings would not likely delay an entitlement decision. Petitioners
declined the opportunity I afforded them to pursue this issue further. Petitioners’
Response to May 17, 2013 Order, filed May 22, 2013, at 2 (“[C]ounsel for Petitioners
take the position that the matter should be left to the Special Master’s evaluation and
resolution without the need for further action by Petitioners.”).
In light of respondent’s disclosures, I looked carefully at the testimony of Dr.
Sladky and his CV, filed as Res. Ex. B. Although filed with his expert report in February
2012, his CV is dated January 5, 2009. His CV therefore was written or updated near
the end of the period during which Dr. Sladky had agreed not to practice medicine.
Attachment to May Status Report at 2-3 (March 2010 Public Consent Order between Dr.
Sladky and the GCMB). However, Dr. Sladky’s CV does not reflect that he had taken
leave from his hospital appointments.
Doctor Sladky was even more careful than Dr. Becker to avoid perjuring himself.
He testified that he began working at Emory University in 1995 and had recently retired
and moved to a private practice in Atlanta. Tr. at 187. He did not mention that between
1995 and 2012 there were periods when he had a suspended medical license or
practiced only on a probationary basis. When asked to describe his day-to-day
activities while at Emory and in his current position, he carefully prefaced his answer
with “when I was on service.” Tr. at 188. This preface could reflect the difference in his
roles when performing medical duties versus his administrative or teaching duties.
Alternatively, it could be considered a carefully crafted answer to avoid giving perjured
testimony. By specifying that his answer pertained to the time periods when he was
practicing medicine, he avoided the necessity of indicating that there were periods when
he was not able to practice medicine due to the suspension of his medical license.
Standing alone, the basis for Dr. Sladky’s disciplinary action might not affect the
reliability of his expert opinions. However, his failure to disclose the disciplinary action
to respondent, his authoring of expert opinions while he did not have an active medical
license, and the failure to reflect his voluntary leave from medical practice due to a
substance abuse problem on the CV filed in this case all cast doubt about his credibility
as a witness.
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C. Discussion.
The situation of an expert plagiarizing from another report prepared by a
colleague appears to be one of first impression in the Vaccine Program. When faced
with a similar situation, now Chief Judge Sarah Vance of the Eastern District of
Louisiana wrote:
Using the opinions of another does not automatically render expert
testimony inadmissible. See e.g., Legier and Matterne v. Great Plains
Software, Inc., 2005 WL 2037346, at *4 (E.D.La. Aug. 3, 2005) (denying
motion to strike testimony based in part on allegations that paragraph in
expert report was plagiarized). Yet, here, Dr. Kura's use of Dr. Kopstein's
work is particularly problematic in that Dr. Kura first testified that the report
he proferred was his original drafting and that he had not reviewed other
expert reports. When asked to explain why many of his sentences were
nearly identical to Dr. Kopstein's, he later conceded that he saw Dr.
Kopstein's report and at the very least took notes. The likelihood that
substantial portions of Dr. Kura's report do not reflect his original work is
yet another reason29 the Court finds that Dr. Kura's opinions in general are
unreliable. The Court therefore deems Dr. Kura's report and testimony to
be inadmissible at trial in their entirety.
Moore v. BASF Corp. 2012 WL 6002831, at *7 (E.D.La. 2012) (footnotes omitted).
“Resume malfunctions” were discussed with regard to at least one witness during
the Omnibus Autism Proceeding test case hearings. See Snyder v. Sec’y, HHS, No.
01-162V, 2009 WL 332044, *14-15 (Fed. Cl. Spec. Mstr. Feb. 12, 2009) (discussing Dr.
Byers’ resume and its exaggerated descriptions of her past work experience). I was
unable to find any prior Program decisions that specifically addressed the impact of
filing a CV or providing testimony that represented an expert was licensed and
practicing medicine during periods when he was not.
When considering a motion to exclude expert testimony, Magistrate Judge
Kravchuk concluded that an individual whose CPA license had expired was qualified to
opine as an accounting expert. However, she noted that the “factfinders will be allowed
to hear about [the expert’s] difficulties with the licensing authority and that in spite of his
license being suspended, he described himself as a CPA. A factfinder might well
decide to give his opinion little weight in light of his professional difficulties, or not.”
Fitzpatrick v. Teleflex, Inc. 763 F.Sup.2d 224, 236 (D. Me. 2011).
29 The other reasons for rejecting Dr. Kura’s report concerned the methodology he used to estimate the
amount of benzene in the defendant’s product and the conditions and number of hours worked by
plaintiff, which impacted the exposure calculation.
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In Moberly, the Federal Circuit stated that “[f]inders of fact are entitled—indeed,
expected—to make determinations as to the reliability of the evidence presented to
them and, if appropriate, as to the credibility of the persons presenting that evidence.”
592 F.3d at 1326. When evaluating inaccurate testimony, there is a significant
difference between forgetfulness and a person making a deliberate decision to mislead.
See Cardiac Pacemakers, Inc., v. St. Jude Medical, Inc., No. IP 96-1718-Ch/K, 2002
WL 1801525, at *61 (S.D. Ind. 2002) (describing the difference as a “wide chasm” and
noting a juror’s “trust or confidence in a witness’s honesty can be critical”).
Although both Dr. Becker and Dr. Sladky are well qualified to opine, I cannot rely
on their opinions.30 I administer an oath to witnesses that requires that they tell the
whole truth. Neither Dr. Becker nor Dr. Sladky told the whole truth. Both demonstrated
a lack of candor that, although not related directly to the substance of their causation
opinions, reflect their willingness to, at the very least, shade the truth. In the case of Dr.
Becker, he attempted to pass off another’s work as his own. In the case of Dr. Sladky, it
appears that he so feared the loss of his position and income as a case reviewer for
respondent that he withheld facts concerning his medical license suspension. I thus do
not rely at all on their expert opinions in this case.
V. Analysis of Causation Evidence.
A. Overview.
Petitioners are relying exclusively on the ATM diagnosis and an autoimmune
theory of causation as set forth in Dr. Kinsbourne’s supplemental expert report (Pet. Ex.
9) and testimony. Additional support for HTR’s diagnosis is found in Dr. Barnes’ expert
report (Pet. Ex. 29)31 and in the opinions of HTR’s treating physicians. Support for Dr.
Kinsbourne’s causation theory is found in the medical literature filed and in a “second
opinion” obtained for purposes of diagnosis and treatment, rather than this litigation.
Because I attach no weight to the opinions of Drs. Sladky and Becker, Dr.
Kinsbourne’s opinion is largely unrebutted. Although I have considered the expert
report and testimony of Dr. Gill, her evidence was almost exclusively focused on
30 I am aware that two of my colleagues have also considered the import of Dr. Sladky’s problems on the
reliability of his opinions. Contreras, 2013 WL 6698382, at *4-5 (accepting Dr. Sladky’s opinion on
diagnosis, as it was supported by the opinion of treating physicians) ; Roberts v. Sec’y, HHS, No. 09-
427V, 2013 WL 5314698, at *9 (Aug. 29, 2013) (rejecting Dr. Sladky’s opinion as unreliable).
31 Doctor Barnes’ opinion is not particularly relevant to a specific cause once spinal cord infarction is no
longer part of the causation equation because it addressed only the diagnostic significance of the
inflammation.
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demonstrating that Dr. Becker’s theory regarding a vascular cause for HTR’s infarction
was unsound,32 and thus is not relevant to the causation theory still before me.
Cross-examination identified some issues with both Dr. Kinsbourne’s
qualifications and his causation opinion. Nevertheless, petitioners have established by
preponderant evidence that the correct diagnosis is acute immune-mediated transverse
myelitis, that the medical theories proposed are biologically probable, that the facts and
circumstances surrounding HTR’s vaccination and onset establish a logical connection
between vaccine and injury, and that the timing between these two events is medically
appropriate.
The threshold issue in this case—the length of time between onset and nadir—
was resolved by my factual findings. This resolution brings Dr. Kinsbourne’s expert
opinions into play, because he candidly acknowledged that if the period between onset
and nadir was shorter than four hours, HTR could not have ATM, based on the
diagnostic criteria for that condition. Tr. at 37-38. With an onset longer than four hours,
I find that HTR meets the diagnostic criteria for ATM.33
The pivotal issue then becomes whether there is preponderant evidence that
HTR’s ATM was caused by the tetanus component of her Tdap vaccination. The very
unusual circumstances pertaining here lead me to conclude that petitioners have met
their burden to so demonstrate.
B. Credibility and Reliability Issues.
Doctor Kinsbourne is not an ideal expert witness. Not only does he derive a
substantial proportion of his income from his employment as an expert witness,
32 Doctor Gill’s primary role in the case was to “review [HTR’s] records and respond to Dr. Becker’s
opinion regarding the possible cause of her injuries in relation to her HPV vaccine.” She was not asked to
“respond to any other part of the case or any other vaccine.” Tr. at 310; see also Res. Ex. J at 1.
33The diagnostic criteria are: (1) bilateral sensorimotor and autonomic spinal cord dysfunction; (2) clearly
defined sensory level; (3) progression to nadir of clinical deficits between 4 hours and 21 days after
symptom onset; (4) demonstration of spinal cord inflammation; (5) exclusion of compressive, post-
radiation, neoplastic, and vascular causes. Frohman and Wingerchuk, Pet. Ex. 11, at 565 (Table 1). The
Transverse Myelitis Consortium Working Group also included the exclusion of a compressive etiology,
spinal radiation, clear arterial distribution deficit, connective tissue disease, multiple sclerosis, evidence of
infection in the central nervous system and optic neuritis. TMCWG Diagnostic Criteria, Res. Ex. D, at 500
(Table 1). The only diagnostic criterion in question was the time period between nadir and onset. Spinal
cord inflammation was demonstrated via spinal cord MRI, including a gadolinium-enhancing cord lesion
found during the acute phase of HTR’s symptoms. Pet. Ex. 25, p. 1345. Although the lumbar puncture
did not demonstrate inflammation, the evidence was that it was performed too soon after onset to contain
evidence of inflammation, and a subsequent lumbar puncture was never performed. See Pet. Ex. 7, pp.
189, 203; Tr. at 54. I note that lesions associated with idiopathic transverse myelitis usually span at least
two vertebral segments, and HTR’s spanned about four segments, with abnormal signal from the T8-9 to
the T11-12 levels. Pet. Ex. 25, p. 1345.
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primarily in the Vaccine Program (Tr. at 46) but he does not treat transverse
myelopathies, let alone teach, research, or write about them (see Tr. at 46-48). He has
not engaged in the clinical practice of medicine for more than three decades. Tr. at 46.
However, he is a licensed physician and one trained in a discipline, pediatric neurology,
relevant to the condition from which HTR suffers, and is thus qualified to offer an
opinion on causation. In the absence of any contrary opinion on which I can rely, it is
also a persuasive opinion.
The assertions made in Dr. Kinsbourne’s written opinions34 are not merely his
ipse dixit. They are supported by the medical literature filed. His conclusion on
causation is supported by the similar opinion of Dr. Mateen, a post-doctoral fellow at
Johns Hopkins, who was asked to render a medical opinion on HTR’s condition, not an
expert opinion for purposes of litigation.35 Doctor Mateen concluded that “the most
likely etiology for [HTR]’s symptoms is transverse myelitis . . . as a rare complication of
vaccination.” Pet. Ex. 54, p. 1415.
C. The Specifics of Dr. Kinsbourne’s Causation Opinion.
Doctor Kinsbourne’s expanded causation opinion, filed as Pet. Ex. 9, can be
summarized as follows.
1. Diagnosis.
HTR met the diagnostic criteria for ATM. Pet. Ex. 9, p. 2. The MRI performed
during the first day of symptoms showed an abnormal signal, suggestive of
inflammation. Id. at 2; Tr. at 54, 72-73.
2. Cause of ATM in General.
ATM is “an acute focal inflammatory disorder of the spinal cord.” Pet. Ex. 9 at 2.
Direct nervous system infection is rare in TM or other nervous system disorders. Id. at
3. In TM, the lesions in the spinal cord are caused by inflammation; pathogens
themselves are nearly always absent. Id. at 5. The lesions are the result of an
immune-mediated attack on self-antigens, but the precise biological mechanism by
which this attack occurs is unknown. There is evidence that a proinflammatory
cytokine, IL-6, in the spine plays a causal role in the lesions. What triggers the
increased levels of IL-6 in the spinal cord is unknown, but there is evidence of T-cell
34 His testimony was much less specific than his written opinions, found at Pet. Exs. 1 and 9.
35 In 2012, Mr. and Mrs. Raymo contacted the Johns Hopkins Transverse Myelitis Center to seek potential
treatment for HTR. To begin the evaluation process, they were asked to send medical records for the
facility’s Remote Second Opinion Program. Doctor Mateen was the physician assigned to review HTR’s
records and author a report regarding her injury. See Petitioners’ Notice of Intent to File Medical
Records, filed July 10, 2012.
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activation, and an immune response to vaccination or infection, which are considered
candidates for this activation. Id. at 4-5; Tr. at 70-71. ATM can be triggered by many
pathogens; the precise cause cannot be determined by the clinical symptoms
presented. Pet. Ex. 9 at 3.
3. Tetanus Vaccine Causation of ATM.
The proposition that vaccine antigens in general and the tetanus toxoid in
particular can cause ATM is relatively well accepted in the medical literature. Pet. Ex. 9
at 3-4; Tr. at 42-43, 59. Tetanus toxoid is recognized as capable of inducing immune-
mediated neurological disorders and ATM is usually an immune-mediated disorder.
Pet. Ex. 9 at 4-5. Numerous case reports involving tetanus vaccinations and
subsequent ATM support a causal relationship. Id. at. 4; Tr. at 66-68.
4. Timing.
The temporal interval between vaccination and symptom onset in this case is
medically reasonable for an immune mediated disorder, particularly in view of the five
earlier tetanus toxoid-containing vaccinations that HTR had received. The speed of
reaction is based on an anamnestic response. Pet. Ex. 9 at 6; Tr. at 32-34, 55-57.
5. Lack of Alternate Cause.
Although not necessary, Dr. Kinsbourne also addressed the issue of a possible
alternate cause. HTR was assessed as having a URI at the time of her vaccination, but
her symptoms were consistent with allergic rhinitis rather than an infection. He
concluded that HTR had allergies, not an acute illness, at the time of her vaccination,
based on the lack of fever, purulent discharge, or sore throat, and the similarity of her
symptoms to previous bouts of allergic rhinitis. Pet. Ex. 9 at 1, 6. Thus, Dr. Kinsbourne
discounted any antecedent infection as an alternate clause. Id. at 6.
6. Conclusion.
Doctor Kinsbourne concluded that the tetanus toxoid component of the [Tdap]36
vaccination could and did cause HTR’s ATM, to a reasonable degree of medical
probability. Pet. Ex. 9 at 6.
36 His report incorrectly refers to the causal vaccination as a DTaP vaccination. Pet. Ex. 9 at 6. Although
this is without significance in this case, the lack of precision in his report does not enhance the reliability
of his opinion.
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D. Support for Dr. Kinsbourne’s Opinions and Conclusions.
1. Causes of ATM in General.
Identifying the cause of transverse myelitis is often challenging and, in many
circumstances, the cause remains unknown. Frohman and Wingerchuck, Pet. Ex. 11,
at 571. About 15-30% of cases are classified as idiopathic, meaning no cause is
determined. Id. at 564-65. The pathological hallmark of ATM is “the presence of focal
collection of lymphocytes and monocytes, with varying degrees of demyelination, axonal
injury, and astroglial and microglial activation, within the spinal cord.” Id. at 564. Forty
percent of TM cases are associated with an antecedent infection occurring from days to
weeks before onset of symptoms. Because the antecedent viral or bacterial infectious
agent is not found in the CSF, the linkage is not likely a directly infectious one. An
autoimmune process is likely. N Agmon-Levin, et al., Transverse myelitis and vaccines:
a multi-analysis, LUPUS, 18: 1198-1204 (2009), filed as Pet. Ex. 10 [hereinafter “Agmon-
Levin, Pet. Ex. 10”] at 1199.
Because many cases of ATM are considered to be immune-mediated, molecular
mimicry is often considered to be the likely mechanism of injury. The 2012 IOM Report
noted that “[a]utoantibodies, T cells, and molecular mimicry may contribute to the
symptoms of transverse myelitis.” 2012 IOM Report at 471.
2. Molecular Mimicry as a Mechanism of Injury.
Molecular mimicry is defined by the 2012 IOM Report as “sequence and/or
conformational homology between an exogenous agent (foreign antigen) and self-
antigen leading to the development of tissue damage and clinical disease from
antibodies and T cells directed initially against the exogenous agent that also react
against self-antigen.” 2012 IOM Report at 70.
Although not definitively established as the causal mechanism in any human
disease,37 molecular mimicry is nevertheless used to explain how a variety of infections
or vaccinations can cause such nervous system disorders as acute disseminated
encephalomyelitis, Guillain-Barré syndrome, and transverse myelitis. In these
conditions, there is no evidence of the causal pathogen at the location of the
inflammation or demyelination; thus, rather than a direct attack by a pathogen, the
immune system is triggered or stimulated into attacking the body’s own tissue (often
37 In Pet. Ex. 13, Drs. Kerr and Ayetey asserted that molecular mimicry was best described in GBS. D
Kerr and H Ayetey, Immunopathogenesis of acute transverse myelitis, CURR. OPIN. NEUROL., 15 (3): 339-
47 (2002) [hereinafter “Kerr and Ayetey, Pet. Ex 13”] at 342. The 2012 IOM Report used rheumatic fever
associated with group A streptococcal infection as an example “implicat[ing] this mechanism in certain
human autoimmune diseases.” 2012 IOM Report at 71. The 2012 IOM Report also described the
relationship between antigens from C. jejuni and autoantibodies bound to neuronal glangliosides in a
specific form of GBS, the same association described in Pet. Ex. 13. Id. at 72.
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described as “cross-reactivity” or a break in the “self-tolerance” usually exhibited by
immune system cells). See, e.g., Kerr and Ayetey, Pet. Ex. 13, at 342 (describing
cross-reactivity of antibodies to C. jejuni surface antigens and peripheral nerves).
Precisely how this autoimmune attack is precipitated is unclear in general,
although some degree of homology between molecular sequence of the pathogen and
the myelin sheath of nerves or axons is presumed. In some cases, such homology has
been demonstrated (C. jejuni in Guillain Barré syndrome, for example). However, in
ATM, homology has not been demonstrated between any suspected precipitating agent
and the spinal cord nerve sheaths or axons.
One theory that explains this lack of homology is that the autoantibodies
themselves cause direct injury to neurons. Another is the bystander activation theory, in
which antigens generate a T-cell response, followed by the production of pro-
inflammatory cytokines, such as the IL-6 implicated in the Kaplin study, Pet. Ex. 12,
discussed below.
3. Bystander Activation.
IL-6 is an inflammatory marker present in CSF in TM and the level of IL-6
correlates with the severity of symptoms. Agmon-Levin, Pet. Ex. 10, at 1198. In one
small study, the mean level of IL-6 in CSF was more than 200 times higher in TM
patients than in controls. Serum IL-6 levels were not markedly different, indicating that
the IL-6 was being generated in the CSF. A. Kaplin, et al., IL-6 induces regionally
selective spinal cord injury in patients with the neuroinflammatory disorder transverse
myelitis, J. CLIN. INVEST., 115:2731-41 (2005), filed as Pet. Ex. 12 [hereinafter “Kaplin,
Pet. Ex. 12”] at 2733. In two patients who died from TM, autopsy demonstrated that
astrocytes in and around the area of damage were the predominant source of the IL-6
found. Id.
A causal role for IL-6 can be inferred from the fact that CSF containing high
levels of IL-6 taken from a TM patient induced cell death in spinal cord cells in culture
whereas CSF from a control patient did not. Kaplin, Pet. Ex. 12, at 2734. When the IL-
6 present in the CSF from the TM patient was removed, the CSF did not induce cell
death, suggesting that the IL-6 was causative, rather than a marker for inflammation.
Id. The presence of IL-6 in post-infectious TM suggests that the biological mechanism
involves bystander activation. Agmon-Levin, Pet. Ex. 10, at 1201.
4. Causal Role of Vaccinations.
There are no epidemiologic studies of the causes of ATM, and thus no studies
linking or refuting a link between the condition and vaccinations. However, Dr.
Kinsbourne’s assertions that medical literature acknowledges a causal connection
between the two events is correct. For example, a clinical practice article published in
2010 in the New England Journal of Medicine states:
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The transverse myelitis syndrome may arise from various causes, but it
most often occurs as an autoimmune phenomenon after an infection or
vaccination (accounting for 60% of the cases in children) or as a result of
a direct infection, an underlying systemic autoimmune disease, or an
acquired demyelinating disease such as multiple sclerosis or the spectrum
of disorders related to neuromyelitis optica (Devic’s disease, a
demyelinating disease that is defined by transverse myelitis and optic
neuritis). However, after detailed evaluation, 15 to 30% of the cases are
ultimately categorized as idiopathic. . . . The observation that systemic
infection or immunization precedes many cases of transverse myelitis
suggests that mechanisms such as molecular mimicry and the
development of autoantibodies may play roles in the pathogenesis of the
syndrome.
Frohman and Wingerchuk, Pet. Ex. 11, at 564-65. A medical textbook, CHILD
NEUROLOGY, also reports a connection between vaccinations (including tetanus
vaccinations) and TM. J Menkes, et al., CHILD NEUROLOGY, 7th ed., Lippincott, Williams
and Wilkins (2006), filed as Pet. Ex. 14, at 587. Doctor Douglas Kerr,38 the
corresponding author for the Transverse Myelitis Consortium Working Group (see
TMCWG Diagnostic Criteria, Res. Ex. D, at 499 n.*), wrote in 2002 that “it is widely
reported in neurology texts that ATM is a post-vaccination event.” Kerr and Ayetey, Pet.
Ex. 13, at 340. Background information in Res. Ex. D also acknowledges a link
between some vaccinations and TM, reporting more than 200 cases of TM in England in
1922-23 as a complication of smallpox and rabies vaccinations. TMCWG Diagnostic
Criteria, Res. Ex. D, at 499.
I thus conclude that there is adequate evidence that vaccinations in general can
cause ATM. Although the precise biological mechanism has not been determined,
molecular mimicry and bystander activation theories are biologically probable.
5. Causal Role for Tetanus Vaccination.
Doctor Kinsbourne identified the tetanus component of HTR’s Tdap vaccination
as causal because it was the “best documented” in medical literature as stimulating
adverse neurological effects. Tr. at 42-43. The 1994 IOM Report indicated that a
causal role for tetanus toxoid in central nervous system disease was “biologically
plausible.” 1994 IOM Report, filed as Pet. Ex. 20, at 85. In discussing transverse
myelitis in particular, the 1994 IOM committee found the theory of an autoimmune
response induced by vaccination biologically plausible, but the committee did not find
any epidemiological evidence sufficient to conclude that vaccinations caused TM. Id. at
84.
38 This appears to be the same Dr. Kerr whose expert report Dr. Becker copied.
29

Case 1:11-vv-00654-CFL Document 83 Filed 03/19/14 Page 30 of 33
Several case reports discussed the temporal link between tetanus-containing
vaccinations and TM. S Read, et al., Acute transverse myelitis after tetanus toxoid
vaccination, LANCET, 339:1111-12 (1992), filed as Pet. Ex. 17; R Riel-Romero, Acute
transverse myelitis in a 7-month-old boy after diphtheria-tetanus-pertussis
immunization, SPINAL CORD, 44:688-691 (2006), filed as Pet. Ex. 18; F Tezzon, et al.,
Acute radiculomyelitis after antitetanus vaccination, ITAL. J. NEUROL. SCI., 15:191-93
(1994), filed as Pet. Ex. 22; H Topaloglu, Optic neuritis and myelitis after booster
tetanus toxoid vaccination, LANCET, 339:178-79 (1992), filed as Pet. Ex. 23; E Whittle
and N Robertson, Transverse myelitis after diphtheria, tetanus and polio immunization,
BRIT. MED. J., 1(6074): 1450 (1977), filed as Pet. Ex. 24. Additionally, a case series was
filed that discussed tetanus and polyneuropathies. S Rutledge and O Snead,
Neurologic complications of immunization, J. PEDIATR., 109(6): 917-924 (1986), filed as
Pet. Ex. 19.
Case reports are not, in general, strong evidence of causation. However, ATM is
a relatively rare condition, with only about 1400 new cases in the U.S. diagnosed
annually. F Pidcock, et al., Acute transverse myelitis in childhood: Center-based
analysis of 47 cases, NEUROL., 68:1474-60 (2007), filed as Pet. Ex. 16 [hereinafter
“Pidcock, Pet. Ex. 16”] at 1474. About 80% of cases involve adults for whom a tetanus
vaccination is recommended only every 10 years. Id.; Td Vaccine Information Sheet,
available at http://www.cdc.gov/vaccines/hcp/vis/vis-statements/td.html (last visited Feb.
19, 2014). Thus, these case reports of a rare condition, ATM, following a tetanus
vaccination in an adult carry more significance than I might otherwise accord them.
However, I note that the 2012 IOM Report considered case studies insufficient to show
causation. 2012 IOM Report at 548. This approach by the IOM, while informative
regarding causation, does not bind special masters, as it is apparent that the IOM
requires a very high standard before concluding that there is a causal relationship
between vaccines and an injury.39 The 2012 IOM Report noted that “[a]utoantibodies, T
cells, and molecular mimicry may contribute to the symptoms of transverse myelitis,” but
found inadequate evidence to link tetanus-toxoid-containing vaccines to these
mechanisms. 2012 IOM Report at 548.
39 Doctor Kinsbourne made this argument and I agree with his assertion that the IOM requires a higher
standard for concluding causality has been established than the preponderant evidence standard found in
the Vaccine Act. I note that, notwithstanding significant evidence that some strains of the influenza virus
can and do cause Guillain-Barré syndrome (see Tompkins v. Sec’y, HHS, No. 10-261V, 2013 WL
3498652, at *22-23 (Fed. Cl. Spec. Mstr. June 21, 2013)), the 2012 IOM Report concluded that “[t]he
evidence is inadequate to accept or reject a causal relationship between influenza vaccine and GBS.”
2012 IOM Report at 334. The 2012 IOM Report asserted that “molecular mimicry was not confirmed to
be a mechanism leading to the development of the adverse events post-vaccination.” Id. at 73. The use
of the word “confirmed” in this assertion validates Dr. Kinsbourne’s claim that the standard of proof
required by the IOM was higher than petitioners’ burden of proof (preponderant evidence) in Vaccine Act
cases. Pet. Ex. 9 at 5-7; Tr. at 60-61.
30

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There is some evidence beyond case studies. Petitioners’ Exhibit 16 is a study
of ATM in 47 children. In 28% of the cases, vaccination or an allergy shot preceded the
initial symptom of ATM within 30 days. At least two of the 13 children received a
tetanus-toxoid-containing vaccination. Febrile illness preceded onset in 47% of cases.
Pidcock, Pet. Ex. 16, at 1476. The study was focused on the persisting nature of the
disability in many children. The authors declined to draw any conclusion regarding
vaccine causation. Id. at 1474 (Abstract), 1479.
In a multi-analysis of vaccines and transverse myelitis, 37 cases of TM were
examined. Most occurred within a month of a vaccination, and the cases were about
evenly split between adults and children. Four cases occurred after a tetanus-toxoid-
containing vaccination, and one additional case involved a DT vaccination administered
concurrently with other childhood vaccinations. Agmon-Levin, Pet. Ex. 10, at 1200
(Table 1). One case involved a 13 year old, with onset of symptoms within three days
of vaccination.
In discussing how HTR’s treating physicians arrived at their diagnosis, Dr.
Kinsbourne explained that myelopathies such as TM have many possible causes. Tr. at
35. These include infection, trauma, tumors, some diseases, and some neurological
conditions. Because there are so many possible causes, physicians perform tests to
rule out specific diagnoses. HTR’s physicians ruled out all of these as causes for her
condition. Id. That left what Dr. Kinsbourne considered the most common cause of
this type of myelopathy, an autoimmune attack on the spinal cord triggered by some
agent. Id. He agreed with her treating physicians that HTR suffered from acute
transverse myelitis, an inflammatory condition of the spinal cord. Tr. at 32.
In cases in which a petitioner has established that the vaccine can cause the
injury and the injury arose in the correct time, the exclusion of other factors may be
probative that the vaccine caused the injury. A prerequisite is that the petitioner
establish, on a more likely than not basis, that the vaccine can cause the injury. See
Contreras, 2013 WL 6698382, at *58 (citing Tamraz v. Lincoln Elec. Co., 620 F.3d 665,
674 (6th Cir. 2010); Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1197-98
(11th Cir. 2010); Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir. 2005)).
Doctor Kinsbourne applied this reasoning to determine that HTR’s tetanus vaccination
did cause her ATM.40 He concluded that the most likely causal agent in this case was
the tetanus component of the Tdap vaccination HTR received on October 13, 2010,
because it was the best documented in the medical literature as stimulating adverse
neurological effects. Tr. at 42-43.
40 In contrast, the exclusion of other potential factors does not promote the finding that the vaccine can
cause the injury, which is the inquiry in Althen prong one. See Caves, 100 Fed. Cl. at 144; Veryzer v.
Sec’y, HHS, 100 Fed. Cl. 344, 355-56 (2011).
31

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Although other decisions involving this vaccine and this injury do not constitute
binding authority,41 Dr. Kinsbourne’s opinion is also buttressed by other decisions in the
Vaccine Program awarding entitlement for ATM associated with a tetanus vaccine. See
e.g., Roberts v. Sec’y, HHS, No. 09-427V, 2013 WL 5314698 (Fed. Cl. Spec. Mstr. Aug.
29, 2013); Helman v. Sec’y, HHS, No. 10-813V, 2012 WL 1607142 (Fed. Cl. Spec.
Mstr. Apr. 5, 2012); Hargrove v. Sec’y, HHS, No. 05-694V, 2009 WL 1220986 (Fed. Cl.
Spec. Mstr. Apr. 14, 2009); Bowes v. Sec’y, HHS, No. 01-481V, 2006 WL 2849816
(Fed. Cl. Spec. Mstr. Sept. 8, 2006).
In view of the Federal Circuit’s opinion in Capizzano that petitioners cannot be
required to show “epidemiologic studies, rechallenge, the presence of pathological
markers or genetic disposition, or general acceptance in the scientific or medical
communities to establish a logical sequence of cause and effect”(440 F.3d at 1325), I
rely on the opinions of Drs. Kinsbourne and Mateen that there is a sufficient connection
between the theory of causation and the facts in this case to establish the second
Althen factor.
6. A Medically Appropriate Temporal Relationship.
Petitioners have the burden to demonstrate the existence of a “scientific temporal
relationship.” Pafford v. Sec’y, HHS, 64 Fed. Cl. 19, 29-30 (2005), aff’d, 451 F.3d 1352
(Fed. Cir. 2006). The time frame must be medically acceptable. de Bazan, 539 F.3d at
1352. The evidence that the three to four day period between vaccination and onset of
symptoms in this case comes primarily from the opinion of Dr. Kinsbourne. Although he
did not cite to medical literature to support this opinion, other decisions support a similar
time period. E.g., Murray v. Sec’y, HHS, No. 99-545V, 2009 WL 3288300, at *26-28
(Fed. Cl. Spec. Mstr. Oct. 5, 2009) (finding a three to four day time period to be an
appropriate temporal relationship between vaccination and injury).
Although not precisely applicable to the facts of this case, I note that brachial
neuritis is a Table injury associated with tetanus-toxoid-containing vaccines. See § 14
amended by 42 C.F.R. § 100.3(a) (2011) (Vaccine Injury Table). Brachial neuritis may
be caused through a mechanism similar to the theories advanced in this case. See
2012 IOM Report at 340 (“Autoantibodies, T cells, and complement activation may
contribute to the symptoms of brachial neuritis,” (in discussing influenza vaccine and
brachial neuritis)). As set forth in the Vaccine Injury Table, onset occurring between 2-
14 days for tetanus-toxoid-vaccine induced brachial neuritis constitutes the temporal
relationship establishing the Table injury. Although this time frame may represent a
policy as well as a scientific assessment, it does tend to indicate that onset of another
autoimmune neurological injury between three and four days after vaccination is not,
per se, unreasonable.
41 See Hanlon v. Sec’y, HHS, 40 Fed. Cl. 625, 629-30 (1998).
32

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Although Dr. Mateen did not address timing specifically in opining that HTR’s
ATM represented a vaccine injury, he was aware of the timing between vaccine and
onset in this case. Pet. Ex. 54 at 1 (noting that HTR “received Gardasil, Menatra, and
tetanus vaccinations within one week prior to her symptom onset”).
7. Conclusions Regarding the Althen Factors.
In the absence of evidence refuting Dr. Kinsbourne’s causation opinions, and in
the presence of evidence supporting them, I find adequate evidence to conclude that
ATM can be caused by tetanus vaccinations and that it was so caused in this case. I
also find preponderant evidence that HTR’s tetanus vaccination caused her to develop
ATM within a medically appropriate time period.
VI. CONCLUSION.
Petitioners are entitled to compensation for HTR’s condition. Having informally
communicated my causation decision to the parties in a status conference on
November 15, 2013, the parties have begun working on damages, and petitioners have
retained a life care planner to assist in determining HTR’s future needs. A specific
damages order, if necessary, will follow the next status conference in this case.
IT IS SO ORDERED.
s/ Denise K. Vowell
Denise K. Vowell
Chief Special Master
33

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DOCUMENT 2: USCOURTS-cofc-1_11-vv-00654-1
Date issued/filed: 2015-11-30
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 11/05/2015) regarding 101 DECISION Stipulation/Proffer Signed by Chief Special Master Nora Beth Dorsey. (tlf) Copy to parties.
--------------------------------------------------------------------------------
Case 1:11-vv-00654-CFL Document 106 Filed 11/30/15 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-654V
Filed: November 5, 2015
* * * * * * * * * * * * * UNPUBLISHED
KEVIN and HEATHER RAYMO, *
legal representatives of a minor child, *
H.T.R., *
* Chief Special Master Dorsey
Petitioners, *
* Joint Stipulation on Damages;
v. * Human Papillomavirus (HPV)
* Vaccine; Meningococcal Vaccine;
SECRETARY OF HEALTH * Hepatitis A Vaccine; DTaP
AND HUMAN SERVICES, * Vaccine; Transverse Myelitis
*
Respondent. *
* * * * * * * * * * * * *
Andrew J. Quackenbos, Domengeaux Wright Roy Edwards & Colomb, LLC, Lafayette, LA, for
petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On October 11, 2011, Kevin Raymo and Heather Raymo (“petitioners”) filed a petition on
behalf of their minor child, H.T.R., pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioners alleged that, as a result of receiving
human papillomavirus (“HPV”), meningococcal, hepatitis A, and diphtheria, tetanus and pertussis
(“DTaP”) vaccinations on October 13, 2010, H.T.R. developed transverse myelitis. Petition at
Preamble. Further, petitioners alleged that H.T.R. experienced residual effects of the injury for
more than six months. Id. at ¶ 18.
1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, 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 (2006)). As provided by Vaccine Rule 18(b), each party has 14 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).
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1
to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine
Act are to 42 U.S.C.A. § 300aa.

Case 1:11-vv-00654-CFL Document 106 Filed 11/30/15 Page 2 of 12
On February 24, 2014, then-Chief Special Master Vowell issued a Ruling on Entitlement finding
petitioner entitled to compensation. The parties filed a stipulation on November 5, 2015. Respondent
continues to deny that the vaccines are the cause of H.T.R.’s alleged transverse myelitis and/or any other
injury, but the parties nevertheless agree that a decision should be entered awarding compensation
described in the stipulation, attached hereto as Appendix A. Stip. at ¶ 7-8. The undersigned finds the
stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms
set forth therein.
The parties stipulate as follows:
(1) An amount sufficient to purchase the annuity described in paragraphs 11(a) through
11(h) of the stipulation, paid to the life insurance company from which the annuity will
be purchased (the “Life Insurance Company”);
(2) A lump sum of $754,047.00 to purchase the annuity contract described in paragraph
11(i) of the stipulation, paid to the Life Insurance Company from which the annuity
will be purchased. This amount represents compensation for vaccine related damages
for past and future pain and suffering and future wage loss available under 42 U.S.C. §
300aa-15(a)(4) and 42 U.S.C. § 300aa-15(a)(3)(B), respectively. The amount reflects
that the award for projected future pain and suffering has been reduced to net present
value;
(3) A lump sum of $26,930.62 in the form of a check payable to petitioners. This amount
represents all compensation for past unreimbursed vaccine related expenses available
under 42 U.S.C. § 300aa-15(a)(1)(B); and
(4) A lump sum of $97,561.00 in the form of a check payable to petitioners as
guardian(s)/conservator(s) of the estate of H.T.R. for the benefit of H.T.R. This
amount represents compensation for future life care plan expenses for the first year
following the entry of judgment. No payments shall be made until petitioners provide
respondent with documentation establishing that they have been appointed as the
guardian(s)/conservator(s) of the estate of H.T.R.
Id. ¶ 8.
The undersigned approves the requested amounts for petitioner’s compensation. Accordingly, the
clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.

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================================================================================
DOCUMENT 3: USCOURTS-cofc-1_11-vv-00654-2
Date issued/filed: 2016-12-13
Pages: 33
Docket text: PUBLIC DECISION (Originally filed: 11/02/2016) regarding 124 DECISION of Special Master Signed by Chief Special Master Nora Beth Dorsey. (tlf) Copy to parties.
--------------------------------------------------------------------------------
Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 1 of 33
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-654V
Filed: November 2, 2016
[TO BE PUBLISHED]
* * * * * * * * * * * * *
KEVIN RAYMO and HEATHER *
RAYMO, Legal Representatives of a Minor *
Child, H.T.R., *
* Chief Special Master Dorsey
Petitioners, *
* Attorneys’ Fees and Costs;
v. * Reasonable Hourly Rate; Reasonable
* Hours Expended; Reasonable Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Andrew J. Quackenbos, Domengeaux Wright Roy Edwards & Colomb, LLC, Lafayette, LA, for
petitioners.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS' FEES AND COSTS1
On October 11, 2011, Kevin and Heather Raymo (“petitioners”) filed a petition on behalf
of their minor child, H.T.R., pursuant to the National Vaccine Injury Compensation Program.2
Petitioners alleged that as a result of receiving the human papillomavirus (“HPV”),
1 Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). As provided by
Vaccine Rule 18(b), each party has 14 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).
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1

Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 2 of 33
meningococcal, hepatitis A, and diphtheria, tetanus and acellular pertussis (“DTaP”)
vaccinations on October 13, 2010, H.T.R. developed transverse myelitis. Petition at Preamble.
Further, petitioners alleged that H.T.R. experienced residual effects of the injury for more than
six months. Id. at ¶ 18.
On February 24, 2014, then-Chief Special Master Vowell issued a Ruling on Entitlement
finding petitioners entitled to compensation. On November 5, 2015, the parties filed a
stipulation. The stipulation stated that respondent continued to deny that the vaccines were the
cause of H.T.R.’s alleged transverse myelitis and/or any other injury, but the parties nevertheless
agreed that a decision should be entered awarding the compensation described in the stipulation.
Stipulation at ¶¶ 7-8. The undersigned issued a Decision awarding petitioners compensation
pursuant to the stipulation the same day.3
On March 4, 2016, petitioners filed an application for attorneys’ fees and costs,
requesting $532,976.904 in attorneys’ fees and $195,724.50 in attorneys’ costs, for a total fees
and costs award of $728,701.40. Petitioners’ (“Pet’rs’”) Application (“App.”) at 2-4. In
accordance with General Order #9, petitioners’ counsel states that petitioners did not pay any
out-of-pocket costs in relation to this matter. Id. at 3; See Pet’rs’ App., Ex. 4. Respondent filed
a response to petitioners’ application on March 15, 2016, stating:
Based on a survey of fee awards in similar cases and her experience litigating
Vaccine Act claims, respondent asserts that a reasonable amount for fees and costs
in the present case would fall between $97,000.00 to $120,000.00. Respondent
therefore respectfully recommends that the Chief Special Master exercise her
discretion and determine a reasonable award for attorneys’ fees and costs within
that range.
3 Pursuant to the terms of the stipulation, petitioners were awarded:
(1) An amount sufficient to purchase the annuity described in
paragraphs 11(a) through 11(h) of the stipulation. . . ; (2) A lump
sum of $754,047.00 to purchase the annuity contract described in
paragraph 11(i) of the stipulation . . . for vaccine related damages
for past and future pain and suffering and future wage loss . . .; (3)
A lump sum of $26,930.62 . . . . for past unreimbursed vaccine
related expenses . . . ; (4) A lump sum of $97,561.00 . . . . for future
life care plan expenses for the first year following the entry of
judgment.
Decision dated November 5, 2015, at 2; Stipulation at ¶ 8.
4 Petitioners’ application indicates that the requested fees total $531,661.90. Pet’rs’ App. at 2.
This appears to be a math error, as the sum of the fees requested by firm comes to $532,976.90
($421,434.40 for the Andry Law Group; $110,062.50 for Domengeaux Wright; and $1,480.00
for Nixon & Light). See id.
2

Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 3 of 33
Respondent’s (“Resp’s”) Response (“Resp.”) at 3 (footnote omitted). Petitioners filed a
reply in support of their application on March 24, 2016, and filed a supplemental application for
attorneys’ fees and costs on May 17, 2016, requesting an additional $2,550.00 in attorneys’ fees.
Pet’rs’ Supplemental (“Supp.”) App. at 1. Thus, petitioners’ final total requested fees and costs
total $731,251.40.
On July 15, 2016, the undersigned issued a decision awarding petitioners $354,809.31 in
attorneys’ fees and costs. In the initial decision, she did not compensate petitioners for
$14,144.50 of work performed by Malcolm M. Dienes, LLC, CPA, (“Dienes”) because
petitioners did not provide an invoice detailing the work performed. On August 5, 2016,
petitioners filed a motion for reconsideration of the undersigned’s July 15, 2016 decision, which
included an additional invoice in the amount of $14,144.50 from Dienes. Pet’rs’ Mot. for
Reconsideration dated Aug. 5, 2016 (ECF No. 113), at 3-5.
On August 15, 2016, petitioner filed a motion for review of the undersigned’s July 15,
2016 decision. Pet’rs’ Mot. for Review dated August 15, 2016 (ECF No. 114). The case was
assigned to Judge Charles Lettow, and on October 6, 2016, Judge Lettow remanded the case to
the undersigned for the limited purpose of ruling on petitioners’ pending motion for
reconsideration. Order dated October 6, 2016 (ECF No. 119). The remand extended until
November 3, 2016. Id. The undersigned allowed respondent time to respond to petitioners’
motion for reconsideration, but respondent did not file a response.
On October 26, 2016, the undersigned granted petitioners’ motion for reconsideration,
finding that the documentation regarding the work of Dienes, submitted by petitioners in their
motion for reconsideration, was sufficient to support an additional award of $14,144.50. This
decision reflects that the undersigned has compensated petitioners in full for the services of
Dienes, awarding the requested total of $19,892.00. The Clerk of Court withdrew the July 15,
2016 decision. Order dated October 26, 2016 (ECF No. 123). This new decision reflects the
undersigned’s decision to grant petitioners’ motion for reconsideration and award an additional
$14,144.50 in costs for the services of Dienes. Thus, the undersigned now awards petitioners a
total of $368,953.81 in attorneys’ fees and costs.
The $731,251.40 in attorneys’ fees and costs requested in this case was dramatically
higher than respondent’s suggested range of $97,000.00 to $120,000.00. Respondent did not cite
to any particular cases in support of her suggested range, so it is not clear on what factors her
range was based. As petitioners explain in their reply, this was a fairly complex case in both the
entitlement and damages phases. H.T.R. was 11 years old at the time of her vaccinations, and
suffered rapidly progressive transverse myelitis resulting in total paralyzation below the T10
vertebrae in her spine and complete loss of bowel and bladder control. See Pet’rs’ Reply at 1;
Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL 1092274, at *2 (Fed. Cl.
Spec. Mstr. Feb. 24, 2014). Petitioners state that the entitlement phase of this case “involved
complicated and novel issues relating to causation,” and “there were thousands of pages of
pleadings, medical records, medical literature, and other exhibits relating to the nature of the
[sic] H.T.R.’s injuries and the vaccines she was administered.” Pet’rs’ Reply at 2. In her Ruling
on Entitlement, then-Chief Special Master Vowell noted:
3

Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 4 of 33
This case . . . presents several unusual features. Between filing the
petition . . . and the causation hearing in Little Rock, Arkansas in
November 2012, petitioners altered their causation theory several
times. Although alteration of a causation theory is relatively
common, petitioners proceeded to hearing on mutually exclusive
causation theories based on different fact scenarios and different
diagnoses (ATM or a spinal cord infarction). One of petitioners’
experts, Dr. Daniel Becker agreed with respondent’s primary expert,
Dr. John Sladky, concerning both diagnosis and factual scenario,
although they disagreed on the precise mechanism of injury. . . .
Another unusual feature in this case is that the filed medical records
support both factual scenarios upon which the experts based their
opinions because the records are somewhat vague and contradictory
about when onset of HTR’s symptoms occurred. Determining
precisely when onset of HTR’s first symptoms of transverse myelitis
occurred is crucial to the causation opinions. If HTR’s symptoms
progressed from onset to nadir (the point of maximum impairment)
in less than four hours, the autoimmune causation theory lacks a
factual basis, according to Dr. Marcel Kinsbourne, the expert who
advanced the theory.
Raymo, 2014 WL 1092274, at *2-3. In addition, the case involved a lengthy damages phase,
requiring “[e]xtensive consultations with life care planners, physicians, nurses, educators, and
economists” in order to determine H.T.R.’s future needs, which were especially complex given
her young age and severe injuries. Pet’rs’ Reply at 3. The parties began damages discussions
“far apart on nearly every component of compensation” other than pain and suffering, and
resolution of damages items required extended negotiations. Id. The case also required travel by
counsel and experts to Little Rock for the hearing and life care planning visits. Id. Thus, though
the total attorneys’ fees and costs awarded are substantially higher than respondent’s suggested
range (yet also substantially lower than petitioners’ requested total), the total awarded is
reasonable based on the features and complexities of this particular case.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). In
this case, petitioners were awarded compensation pursuant to a Ruling on Entitlement and
subsequent stipulation for an award. Petitioners are therefore entitled to an award of reasonable
attorneys’ fees and costs.5
5 In addition, § 300aa-15(e)(3) states that “[n]o attorney may charge any fee for services in
connection with a petition filed under section 300aa-11 of this title which is in addition to any
amount awarded as compensation by the special master or court under paragraph (1).” This
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a. Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate 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 1347-48 (internal quotations omitted). In
determining an award of attorneys’ fees, a court should generally use the forum rate, i.e., the
District of Columbia rate. Id. at 1348. However, an exception to the forum rule applies where
the bulk of an attorney’s work is performed outside of the forum, and where there is a “very
significant” difference in compensation rates between the place where the work was performed
and the forum. Id. at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special
Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cl. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
It is well established that an application for fees and costs must sufficiently detail and
explain the time billed so that a special master may determine, from the application and the case
file, whether the amount requested is reasonable. Bell v. Sec’y of Health & Human Servs., 18
Cl. Ct. 751, 760 (1989); Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL
2568468 (Fed. Cl. Spec. Mstr. July 27, 2009). Petitioners bear the burden of documenting the
fees and costs claimed. Rodriguez, 2009 WL 2568468, at *8. Block billing, or billing large
amounts of time without sufficient detail as to what tasks were performed, is clearly disfavored.
See, e.g. Broekelschen v. Sec’y of Health & Human Servs., No 07-137V, 2008 WL 5456319, at
*4-5 (Fed. Cl. Spec. Mstr. Dec. 17, 2008). The Vaccine Program’s “Guidelines for Practice”
state that “[e]ach task should have its own line entry indicating the amount of time spent on that
task. Several tasks lumped together with one time entry frustrates the court’s ability to assess the
reasonableness of the request.” Guidelines for Practice Under the National Vaccine Injury
Compensation Program, Section X, Chapter 3, Part B(1)(b), 68 (revised January 7, 2016),
available at http://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-
1-7-16.pdf (last visited May 20, 2016).
would include any amounts requested by counsel that the undersigned finds not to be
compensable.
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In determining a reasonable number of hours expended, a line-by-line evaluation of the
fee application is not required. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484,
aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters may rely on their
experience with the Vaccine Act and its attorneys to determine the reasonable number of hours
expended. Id. Just as “[t]rial courts routinely use their prior experience to reduce hourly rates
and the number of hours claimed in attorney fee requests . . . . [v]accine program special masters
are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at
1521.
i. Hourly Rates
Attorneys from three separate law firms worked on this case: The Andry Law Group,
LLC; Domengeaux Wright Roy Edwards & Colomb, LLC (“Domengeaux Wright”); and Nixon
& Light, Attorneys at Law. Pet’rs’ App. at 2. The Andry Law Group is located in New Orleans,
Louisiana. Domengeaux Wright is located in Lafayette, Louisiana, and Nixon & Light is located
in Little Rock, Arkansas.
Forum rates are generally used to determine an attorney’s hourly rate except when the
majority of an attorney’s work is done outside of the forum and there is a “very significant
difference in compensation favoring D.C.” Avera, 515 F.3d at 1349 (quoting Davis County, 169
F.3d at 758) (emphasis in original). Nearly all of the legal work in this case was performed in
Louisiana, and the entitlement hearing was held in Little Rock, Arkansas. Pet’rs’ App., Ex. 1 at
4. The hourly rates that petitioners seek are based on local Louisiana and Arkansas rates. See
Pet’rs’ App. at 2. Neither petitioners nor respondent have addressed the question of whether
local or forum rates should be used. The only evidence of prevailing rates submitted by
petitioners pertains to New Orleans and Little Rock rates, and respondent did not submit any
evidence regarding prevailing rates.
Using local rates pursuant to the Davis County exception “prevents a result that ‘would
produce windfalls’ to counsel who practice in much less expensive legal markets.” Avera, 515
F.3d at 1349 (quoting Davis County, 169 F.3d at 759-60). A comparative cost of living
calculator shows there is a 55.67% difference in cost of living between New Orleans, Louisiana
and Washington, D.C., a 58.87% difference between Lafayette, Louisiana and Washington, D.C.,
and a 54.20% difference between Little Rock, Arkansas and Washington, D.C.6 Such a dramatic
difference in the cost of living suggests the prevailing attorneys’ rates are substantially lower in
Louisiana and Arkansas than in Washington, D.C. In addition, New Orleans, Lafayette, and
Little Rock are not entitled to increased locality pay under the General Schedule classification
and pay system, a system that covers the majority of civilian white-collar Federal employees in
professional, technical, administrative, and clerical positions.7 Washington, D.C., on the other
6 The Cost of Living Calculator, http://www.bankrate.com/calculators/savings/moving-cost-of-
living-calculator.aspx (last visited May 23, 2016).
7 See General Schedule Classification and Pay, https://www.opm.gov/policy-data-oversight/pay-
leave/pay-systems/general-schedule/ (last visited May 27, 2016); 2016 General Schedule (GS)
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hand, received a locality payment of 24.78% for 2016. Id. The determination of whether an area
receives locality pay is based on an analysis of pay levels for non-Federal workers in the given
geographic area, as determined by surveys conducted by the United States Bureau of Labor
Statistics. Id.
In Mooney v. Sec’y of Health & Human Servs., No. 05-266V, 2014 WL 7715158, (Fed.
Cl. Spec. Mstr. Dec. 29, 2014), the special master found the parties had conceded that the Davis
exception applied where respondent asserted that local rates should apply, petitioners did not
challenge this assertion, and the only evidence produced regarding hourly rates was focused
exclusively on various legal services rendered in the local area. 2014 WL 7715158, at *3. In
this case, the evidence submitted by petitioners focuses exclusively on local rates. Nowhere in
their application, reply, or supplemental fee application, do petitioners indicate that they believe
forum rates should apply. Based on the evidence regarding the cost of living and pay levels
showing a very significant difference between prevailing local and forum rates, the undersigned
will determine reasonable hourly rates in this case using local rates.
A. Hourly Rates: Andry Law Group
Petitioners request $421,434.408 in attorneys’ fees for the Andry Law Group. Pet’rs’
App. at 2. This represents compensation for work performed by attorney Jonathan B. Andry,
attorney Michelle Purchner Cumberland, and paralegal Rosalind Lobrano. Pet’rs’ App., Ex. 1 at
1.9 Mr. Andry’s time is billed at a rate of $350 per hour, Ms. Cumberland’s time at $250 per
hour, and Ms. Lobrano’s time at $100 per hour. Id. at 4.
The Andry Law Group is located in New Orleans, Louisiana. In support of the requested
rates, Mr. Andry states that in Turner v. Murphy Oil Co. USA, Inc., 427 F. Supp. 2d 830, (E.D.
La. 2007), the United States District Court for the Eastern District of Louisiana held that the
Locality Pay Tables, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-
wages/2016/general-schedule/ (last visited May 27, 2016).
8 Petitioners’ application, Mr. Andry’s affidavit, and the billing record contain various
discrepancies and mistakes. In Mr. Andry’s affidavit, he states that he is requesting $421,399.40
in attorneys’ fees. Pet’rs’ App., Ex. 1 at 7. On the other hand, petitioners’ application itself and
the Andry Law Group’s billing record indicate that the fees requested total $421,434.40. See
Pet’rs’ App. at 2; Pet’rs’ App., Ex. 1A at 54. Upon review of the billing record, the undersigned
also notes that several entries contain errors. For example, on July 6, 2012, Mr. Andry billed
$18.90 for 5.40 hours of work, when presumably he meant to bill $1,890.00 (5.40 hours at $350
per hour). Pet’rs’ App., Ex. 1A at 28. Similarly, Mr. Andry’s affidavit estimates that he billed
733 hours. Pet’rs’ App., Ex. 1 at 1. Based on the billing record, however, the undersigned
calculates that Mr. Andry actually billed 783.10 hours. See generally, Pet’rs’ App., Ex. 1A. In
this Decision, the undersigned’s calculations for all attorneys’ fees are based on the hours billed
in the billing records.
9 In the billing records, Ms. Cumberland appears as MCP, Mr. Andry as JBA, and Ms. Lobrano
as RL.
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prevailing hourly rates in the New Orleans area range from $300 to $400 per hour for partners
and $100 to $200 for associates. Pet’rs’ App., Ex. 1 at 4 (citing Turner, 427 F. Supp. 2d at 868).
Mr. Andry asserts that the rates billed in this case are “reasonable and are all within the
prevailing rate range as set out by [the court in Turner],” and are also the rates he and Ms.
Cumberland normally receive in hourly billing cases. Id.
The undersigned does not find Turner to be particularly strong evidence of “the rate
prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Avera, 515 F.3d at 1347-48. Turner was a class action suit in
which the plaintiffs sought compensation for hurricane-induced oil refinery tank rupture. See
472 F. Supp. 2d at 835. The case was settled, and the settlement agreement provided, inter alia,
that all common-benefit expenses, including attorneys’ fees, incurred in connection with
prosecuting the case would be paid, with the amount of reasonable fees left entirely to the court’s
discretion. Id. at 839, 845. The court calculated attorneys’ fees as a percentage of the common
fund, and then used a lodestar analysis “not . . . to calculate a specific fee, but only to provide a
rough cross check on the reasonableness of the fee arrived at by the percentage method.” Id. at
861. In doing so, the court stated that ranges of $300 to $400 per hour for “members,” $100 to
$200 for associates, and $50 to $80 per hour for paralegals reasonably reflected the prevailing
hourly rates in the Eastern District of Louisiana (which includes New Orleans). Id. at 868-89.
Thus, although Turner set forth prevailing rates for the New Orleans area, it is not clear the rates
were for services similar to vaccine work, nor that the stated rates were meant to be used in an
actual lodestar analysis rather than a “rough cross check” on the reasonableness of the percentage
based fee award. In addition, Turner is a 2007 decision, whereas fees in this case are requested
for 2010 to 2015.
“When the parties do not provide reliable evidence, the court can look to other evidence
to establish a reasonable hourly rate.” Dougherty v. Sec'y of Health & Human Servs., No. 05-
700V, 2011 WL 5357816 at *6 (Fed. Cl. Spec. Mstr. Oct. 14, 2011) (citing Rupert ex rel. Rupert,
v. Sec'y of Health & Human Servs., 52 Fed. Cl. 684, 688–89 (2002)). Local Louisiana rates for
vaccine litigation were recently determined in Mooney, No. 05-266V, 2014 WL 7715158, (Fed.
Cl. Spec. Mstr. Dec. 29, 2014). In Mooney, the special master awarded an attorney with 15
years of experience a rate of $275 per hour for Vaccine Program work performed in Baton
Rouge, Louisiana, in 2014. Id. at *9. In arriving at the Baton Rouge rate, the special master
relied in part on evidence of rates in New Orleans, which she determined constituted a similar
legal market to Baton Rouge with parallel prevailing rates beginning in August 2005 (post-
Hurricane Katrina). Id. at *8 n.19. The special master compensated paralegal tasks at a rate of
$110 per hour. Id. at *11.
Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate 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 1347-48. As opposed to Turner, Mooney
dealt with local rates specifically for vaccine litigation, and was a 2014, rather than 2007,
decision. The undersigned finds the rates in Mooney are a more useful reference point than the
rates stated in Turner for determining rates for the Andry Law Group in this case.
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Counsel in Mooney had 15 years of experience, and had been practicing in the Vaccine
Program for 12 years. Id. at *4. He had filed primarily Omnibus Autism Proceeding (“OAP”)
cases, which were all ultimately denied compensation, but had also filed six non-OAP cases. Id.
In 2014, Mr. Andry had been practicing law for 24 years and Ms. Cumberland had been
practicing law for 8 years.10 See Pet’rs’ App., Ex. 1 at 3. From a search of CM/ECF, it appears
that this is the only vaccine case the Andry Law Group has handled. Because the Andry Law
Group is new to the Program, it is difficult to determine their reputation and skill level as
compared to other practitioners in the Program. However, along with petitioners’ other counsel,
they obtained a favorable result in this case, and petitioners received a substantial award of
compensation pursuant to a Ruling on Entitlement issued by then-Chief Special Master Vowell.
Based on the experience, skill, and reputation of Mr. Andry and Ms. Cumberland, the
undersigned finds that the rates awarded in Mooney are also reasonable local rates for counsel in
this case. An upward adjustment from the Mooney rates is warranted for Mr. Andry to reflect
the fact that he has more years of legal experience than counsel in Mooney. A downward
adjustment is warranted for Ms. Cumberland, as she has less experience than counsel in Mooney.
In McCulloch v. Sec’y of Health and Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015), the special master determined ranges of reasonable
2014/2015 forum rates based on attorneys’ years of legal experience.11 Although McCulloch
dealt with forum rates and thus the particular rate ranges set are not applicable here, the
undersigned finds the framework, which differentiates rate ranges based on an attorneys’ years
of experience useful, and adopts it here to determine an appropriate adjustment of Mooney rates
based on counsel’s experience.
Using the McCulloch framework, counsel in Mooney, with 15 years of experience, would
fall in the 11 to 19 year experience bracket.12 Mr. Andry performed work on this case from 2010
to 2015, and had 20 or more years of experience throughout that time. Ms. Cumberland
performed work in this case from 2011 to 2013. In 2011, she had 5 years of experience, and in
2013, she had 7 years of experience, and thus falls into the bracket of attorneys with 4 to 7 years
10 Mr. Andry’s affidavit states that Ms. Cumberland received her J.D. in 2005. Pet’rs’ App., Ex.
1 at 3. However, the undersigned notes that Ms. Cumberland was admitted to the Louisiana State
Bar in 2006. See Louisiana State Bar Association Membership Directory,
https://www.lsba.org/public/membershipdirectory.aspx (last visited May 18, 2016). Thus, her
years of experience will be counted starting in 2006. Mr. Andry was admitted to the Louisiana
State Bar in 1990. Id. His years of experience are counted starting in 1990.
11 The experience categories in McCulloch were: less than 4 years of experience, 4 to 7 years, 8
to 10 years, 11 to 19 years, and more than 20 years of experience. 2015 WL 5634323, at *19.
12 Although counsel in Mooney had 15 years of experience, the special master also more
generally stated the rate of $275 per hour would be reasonable for attorneys with “[10] or more”
years of experience. Mooney, 2014 WL 7715158, at *9. As noted, however, McCulloch placed
attorneys with 15 versus 10 years of experience in separate experience brackets. The McCulloch
framework will be used to determine experience ranges in this case.
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of experience. In McCulloch, all other factors being equal, the rate range for an attorney with 20
years of experience was $50 per hour higher than the range for an attorney with 11 to 19 years of
experience.13 In turn, the rate range for an attorney with 11 to 19 years of experience was $75
per hour higher than the range for an attorney with 4 to 7 years of experience. See 2015 WL
5634323, at *19.
The undersigned finds that $325 per hour is a reasonable rate for Mr. Andry’s work
in this case. This represents the Mooney rate of $275 per hour plus $50 per hour to reflect Mr.
Andry’s greater overall experience. The undersigned finds that $200 per hour is a reasonable
rate for Ms. Cumberland’s work. This rate represents the Mooney rate of $275 per hour minus
$75 per hour to reflect Ms. Cumberland’s lesser overall experience. Ms. Lobrano’s requested
rate of $100 per hour is reasonable.
B. Hourly Rates: Domengeaux Wright
Petitioners request a total of $112,612.50 in attorneys’ fees for Domengeaux Wright.
Pet’rs’ App. at 2; Pet’rs’ Supp. App., Ex. 1A, at 1. This represents compensation for work
performed by attorneys Andrew J. Quackenbos and Bob F. Wright, and paralegal Darlene
Pelletier. See Pet’rs’ App., Ex. 2 at 4.14 Mr. Quackenbos’ time is billed at a rate of $250 per
hour, Mr. Wright’s time is billed at a rate of $425 per hour, and Ms. Pelletier’s time is billed at a
rate of $100 per hour. Id.
Domengeaux Wright is located in Lafayette, Louisiana. In support of the requested rates,
Mr. Quackenbos states that the other cases he handles at present are contingency fee cases, but if
he “were to accept [a] case today at an hourly rate, [he] would charge at least $250 per hour.”
Pet’rs’ App., Ex. 2 at 4. He states that the vast majority of cases Mr. Wright handles are also
contingency cases, but that Mr. Wright charges $500 per hour in cases that he handles on an
hourly basis. Id. Finally, Mr. Quackenbos states that the rate charged for Ms. Pelletier’s work is
“commensurate with the rate charged by paralegals for hourly work in similar matters.” Id.
Other than these statements about counsel’s usual rates, Domengeaux Wright did not submit
evidence of prevailing local rates.
A comparative cost of living calculator shows that the cost of living is approximately 2
percent lower in Lafayette than in New Orleans.15 Further, as noted above, neither Lafayette nor
New Orleans is entitled to increased locality pay under the General Schedule classification and
13 In McCulloch, the rate range for attorneys with more than 20 years of experience was $350 to
$425. 2015 WL 5634323, at *19. The range for attorneys with 11 to 19 years of experience was
$300 to $375 per hour, the range for attorneys with 8 to 10 years of experience was $275 to
$350, and the range for attorneys with 4 to 7 years of experience was $225 to $300. Id.
14 In the billing records, Mr. Quackenbos appears as AJQ, Mr. Wright appears as BFW, and Ms.
Pelletier appears as DTP.
15 The Cost of Living Calculator, at http://www.bankrate.com/calculators/savings/moving-cost-
of-living-calculator.aspx (last visited May 16, 2016).
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pay system.16 Accordingly, for the same reasons discussed above for the Andry Law Group, the
undersigned references Mooney to determine reasonable local rates for the Domengeaux Wright
attorneys. In 2014, Mr. Quackenbos had 6 years of experience and Mr. Wright had 57 years of
experience.17 Like the Andry Law Group, it appears that this is Mr. Quackenbos’ and Mr.
Wright’s first case in the Vaccine Program, and it is difficult to determine their reputation and
skill level as compared to other practitioners in the Program, but counsel did obtain a successful
resolution for petitioners in this case.
As discussed for Mr. Andry, an upward adjustment from the Mooney rates is appropriate
to reflect the fact that Mr. Wright had 57 years of legal experience in 2014, as opposed to the 15
years of counsel in Mooney. Mr. Wright had significantly more than 20 years of experience for
the duration of his work on this case from 2011 to 2015. Although Mr. Wright has more overall
legal experience than Mr. Andry, he and Mr. Andry have the same vaccine litigation experience,
and the undersigned finds it appropriate to award them the same increase of $50 per hour from
Mooney rates. Accordingly, the undersigned finds that $325 per hour is a reasonable rate
for Mr. Wright’s work in this case.
A downward adjustment is warranted for Mr. Quackenbos, who had only 6 years of legal
experience in 2014. Mr. Quackenbos performed work on this case from 2013 to 2016. In 2013,
he had 5 years of experience, in 2015, he had 7 years of experience, and in 2016 he had 8 years
of experience. Thus, from 2013 to 2015 he had the same level of experience while performing
work on this case as Ms. Cumberland, and the undersigned finds it appropriate to award them the
same decrease from Mooney rates for those years. In 2016, he had 8 years of experience. In
McCulloch, all other factors being equal, an appropriate rate for an attorney with 8 to 10 years of
experience was $50 higher than an attorney with 4 to 7 years of experience. See 2015 WL
5634323, at *19.18 A reasonable rate for Mr. Quackenbos’ work from 2013 to 2015 is $200
per hour. A reasonable rate for Mr. Quackenbos’ work in 2016 is $250 per hour.19 This
represents a $50 increase from Mr. Quackenbos’ 2013 to 2015 rate to account for his greater
experience. Ms. Pelletier’s requested rate of $100 per hour is reasonable.
16 See General Schedule Classification and Pay, at https://www.opm.gov/policy-data-
oversight/pay-leave/pay-systems/general-schedule/; 2016 General Schedule (GS) Locality Pay
Tables, at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2016/general-
schedule/.
17 Mr. Quackenbos was admitted to the Louisiana State Bar in 2008 and Mr. Wright was
admitted in 1957. Pet’rs’ App., Ex. 2 at 1-2; See also Louisiana State Bar Association
Membership Directory, https://www.lsba.org/public/membershipdirectory.aspx (last visited May
19, 2015).
18 In McCulloch, the rate range for attorneys with more than 20 years of experience was $350 to
$425. 2015 WL 5634323, at *19. The range for attorneys with 11 to 19 years of experience was
$300 to $375 per hour, and the range for attorneys with 4 to 7 years of experience was $225 to
$300. Id.
19 Mr. Quackenbos billed for 183.20 hours of work on this case, 10.20 of which were in 2016.
See generally, Pet’rs’ App., Ex. 2B; Pet’rs’ Supp. App., Ex. A.
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C. Hourly Rates: Nixon & Light
Petitioners request $1,480.00 in attorneys’ fees for Nixon & Light. Pet’rs’ App. at 2.
One attorney from Nixon & Light, John B. Buzbee, performed work on this case. Pet’rs’ App.,
Ex. 3. Mr. Buzbee represented petitioners in the probate action seeking to have them appointed
co-guardians of H.T.R.’s estate for purposes of receiving her vaccine award. Id. at 1. His time is
billed at a rate of $200 per hour. Id.
Nixon & Light is located in Little Rock, Arkansas. Mr. Buzbee states that $200 per hour
is his standard hourly rate, and is a slight reduction from the rate of $225 per hour he charges in
certain complex bankruptcy matters. Pet’rs’ App., Ex. 3 at 1. He avers that based on discussions
with clients, other attorneys in the Little Rock area, and his general familiarity with the legal
profession, $200 per hour is commensurate with the customary rate charged in the locality for
similar services, if not less. Id.
Mr. Buzbee has been licensed to practice law since April 2008. Pet’rs’ App., Ex. 3 at 1.
He performed work on this case during 2015, at which time he had 7 years of experience. Id. at
4. The undersigned finds Mr. Buzbee’s requested rate of $200 per hour reasonable.
ii. Hours Expended
The undersigned finds a reduction in the number of hours billed appropriate for several
reasons. First, petitioners’ counsel requests compensation for paralegal work at an attorney rate
and also requests compensation for administrative work. Second, counsel billed for time spent
seeking admission to the United States Court of Federal Claims bar and for time spent
familiarizing themselves with the Vaccine Program generally. Third, counsel billed for time
spent researching a pharmaceutical claim. Fourth, counsel billed for time spent travelling at their
full hourly rate.
The billing records submitted contain numerous entries that constitute block billing,
where counsel has billed for many tasks all in a single entry. Many of the blocks contain time
that is not compensable for one of the above-listed reasons alongside time that is compensable.
For such entries, it is not possible to determine what precise portion of the time billed should be
compensated. The billing entries identified and reduced below represent billing entries that
consist wholly or primarily of non-compensable time. Accordingly, and because it is counsel’s
burden to document the fees claimed, the undersigned will not compensate the time billed for the
entire billing entry. See Rodriguez, 2009 WL 2568468, at *8. The undersigned notes that these
reductions are also offset by the fact that many other entries, though comprised primarily of
compensable time, also include some non-compensable time that has not been identified for
reduction because of the impossibility of breaking down the billing record item-by-item.
A. Administrative and Paralegal Work
It is well established that billing for clerical and other secretarial work is not permitted in
the Vaccine Program. See, e.g. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (legal
assistant services that were “primarily of a secretarial and clerical nature . . . should be
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considered as normal overhead office costs included with the attorneys’ fee rates”). Clerical and
secretarial work includes tasks such as making travel arrangements, setting up meetings, and
reviewing invoices. See Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL
720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016).
Attorneys may be compensated for paralegal-level work, but at a rate that is comparable
to what would be paid for a paralegal. Doe/11 v. Sec’y of Health & Human Servs., No. XX-
XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v.
Jenkins, 491 U.S. 274, 288 (1989)). “It is the nature of the work, not the title or education of the
person performing it, that determines whether it is legal, paralegal, or secretarial/clerical in
nature.” Id. Paralegal tasks include preparing and filing exhibits and exhibit lists, and
assembling trial notebooks. Mostovoy, 2016 WL 720969, at *5.
1. Andry Law Group—Administrative Time
The following billing entries are administrative in nature, and will not be compensated.
On June 17, 2011, Ms. Cumberland billed .20 hours to receive a phone message from Heather
Raymo requesting a meeting. Pet’rs’ App., Ex. 1A, at 8. On July 26, 2011, she billed .30 hours
for correspondence with an accountant regarding payment of an invoice. Id. at 9. Mr. Andry
billed .10 hours to review her correspondence on the issue. Id. On August 24, 2011, Ms.
Cumberland billed .20 hours to set up a meeting with co-counsel. Id. Mr. Andry billed .20 hours
to confirm the meeting. Id.
On March 13, 2012, Ms. Cumberland billed 1.5 hours for correspondence with co-
counsel and petitioners’ expert, Dr. Barnes, regarding approving Dr. Barnes’ fee schedule and
mailing materials to him. Pet’rs’ App., Ex. 1A, at 21. On the same day, Mr. Andry billed a total
of .60 hours for emails regarding Dr. Barnes’ payment. Id. On March 16, 2012, Ms.
Cumberland billed .30 hours to receive notice of a status conference scheduling. Id. On March
23, 2012, she billed .50 hours for discussions with co-counsel and Dr. Barnes regarding their
availability for the Rule 5 status conference. Id. at 22. On June 8, 2012, she billed .10 hours to
“[r]eceive time sheets from Bob Wright’s office for entry.” Id. at 27. On July 8, 2012, Ms.
Lobrano billed .10 hours to receive correspondence from Dr. Becker requesting to schedule a
phone call with Mr. Andry. Id. at 28. Between July 9 and 16, 2012, Ms. Cumberland billed a
total of 2.90 hours primarily for scheduling phone conferences and reviewing Dr. Becker’s
invoice. Id. at 29. Mr. Andry billed a total of 1 hour on July 9 and 10, 2012, for correspondence
with respondent’s counsel about scheduling a conference. Id.
On September 10, 2012, Mr. Andry billed 8 hours for “[t]rial prep (started organizing
exhibit binders for trial); started looking into flights and hotel arrangements.” Pet’rs’ App., Ex.
1A, at 32. It is not clear how much time was spent looking into travel arrangements versus doing
trial prep. Accordingly, half of this time will not be compensated. On September 25, 2012, Ms.
Lobrano billed .40 hours to speak with the special master’s law clerk regarding securing the
courtroom and court reporter for hearing. Id. at 32. Ms. Cumberland billed .50 hours on the
same day for various tasks related to coordinating the hearing and hearing travel. Id. at 33. On
October 16, 2012, Ms. Cumberland billed .30 hours for correspondence regarding scheduling a
conference call, and billed .10 hours on October 17, 2012, for the same. Id. at 33. Between
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October 18 and 26, 2012, Ms. Cumberland billed a total of 6.50 hours for tasks related to the
arranging the logistics of the hearing, including making travel arrangements, scheduling
meetings, and reserving conference rooms. Id. at 34-35. Ms. Lobrano billed a total of 11.30
hours during this same period for similar tasks, and Mr. Andry billed a total of 1.20 hours for the
same. Id. On November 13, 2012, Ms. Cumberland billed .30 for receiving a phone call from
petitioners’ expert, Dr. Kinsbourne, regarding his payment and emailing Mr. Andry regarding the
request. Id. at 37. On November 16, 2012, she billed .30 hours for correspondence regarding
scheduling a status conference. Id. On November 19, 2012, she billed 1 hour for various tasks,
including coordinating payment of Dr. Kinsbourne and contacting the court to find out if bench
books are required. Id. at 38. On November 20, 2012, she billed .10 hours for receiving
confirmation that Dr. Kinsbourne was paid. Id. On November 21, 2012, she billed .10 hours to
request that Ms. Lobrano set up a shuttle to and from the hotel. Id. Ms. Lobrano billed .50 hours
for setting up the shuttle. Id. Ms. Lobrano billed 1.50 hours on November 26, 2012, to call the
experts to make sure they had everything needed for their arrival to Little Rock. Id. at 39. On
December 4, 2012, Ms. Cumberland billed .90 hours to receive and review Dr. Kinsbourne’s
invoice and submit it for payment, and to review an article. Id. at 40. On December 5, 2012, she
billed 1.25 hours to draft a letter excusing H.T.R. for missing school the day of the hearing. Id.
at 41. On December 18, 2012, she billed .10 hours for reviewing communication from Ms.
Pelletier regarding Dr. Kinsbourne’s invoice.
On May 14, 2013, Ms. Cumberland billed 2.50 hours for scheduling a status conference
and drafting a memorandum on how long a special master has to rule after completion of an
entitlement hearing.20 Pet’rs’ App., Ex. 1A, at 46. Mr. Andry billed 1.50 hours for reviewing
the memorandum and responding to the status conference scheduling request. Id. Ms.
Cumberland billed 2.50 hours on May 15, 2013, for essentially the same tasks. Id.
Between April 20, 2014, and September 25, 2014, Mr. Andry billed a total of 10.45 hours
for various communications and coordination of dates for the life care planner visits. Pet’rs’
App., Ex. 1A, at 49-51. On October 16, 17, and 20, he billed .50, .20, and .30, respectively, for
emails regarding scheduling a status conference. Id. at 52. Accordingly, Mr. Andry’s time will
be reduced by 20.05 hours, and Ms. Cumberland’s time will be reduced by 22.45 hours.
Ms. Lobrano’s time will be reduced by 13.80 hours.
2. Andry Law Group—Paralegal Time
The following billing entries are paralegal in nature and are compensable at a paralegal
rate. On September 6, 2011, Ms. Cumberland billed 6 hours to receive, review, and prepare
medical records for filing. Pet’rs’ App., Ex. 1A, at 10. She billed 1.90 hours on September 14,
2011, to put together and mail the records to the expert, and another .10 hours on September 15
to receive notification that they were received. Id. On October 14, 2011, she billed 8 hours to
put together and file copies of exhibit books. Id. at 12. On November 4, 2011, she billed 5.6
hours to prepare exhibits and attempt to file them, along with drafting a motion to substitute
records, memorandum in support, and proposed order. Id. at 13. On the same day, she billed an
20 The first part of this time is not compensable as it is administrative, and the second is not
compensable as time spent familiarizing learning about the Vaccine Program generally.
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additional 1.80 hours to prepare and file the exhibits on CD. Id. at 14. On December 13, 2011,
Ms. Cumberland billed 5 hours for various tasks related to filing exhibits, including preparing a
table of contents, filing a notice of filing, and drafting and filing a motion to strike exhibits filed
previously. Id. at 18. On December 20, 2011, she billed .50 hours for filing medical records. Id.
On January 13, 2012, Ms. Cumberland billed 4 hours for tasks related to filing medical
records. Pet’rs’ App., Ex. 1A, at 18. On January 19, 2012, she billed 1.50 hours for filing
additional copies of exhibits previously filed on CD, as well as receiving a request from
respondent’s counsel for certain medical records. Id. at 19. On April 30, 2012, Mr. Andry billed
1.50 hours for working with Ms. Cumberland and Ms. Lobrano to coordinate exhibits for filing.
Id. at 26. On May 1, 2012, Ms. Cumberland billed 2.50 hours for tasks related to the re-filing of
exhibits. Id. at 26. Ms. Cumberland billed 1.50 hours on July 10, 2012, for filing medical
records. Id. at 29. She billed .50 hours on July 18, 2012, for correspondence regarding
availability of counsel and experts for a hearing. Id. at 30. Mr. Andry billed .50 hours for the
same. Id. Between July 20 and 22, 2012, Ms. Cumberland billed an additional total of 1.30
hours for correspondence regarding scheduling the hearing. Id. at 30-31. On September 10,
2012, Mr. Andry billed 8 hours for “[t]rial prep (started organizing exhibit binders for trial);
started looking into flights and hotel arrangements.” Id. at 32. Half of this time, representing the
time spent organizing exhibit binders for trial, will be compensated at a paralegal rate. Ms.
Cumberland billed .80 and .50 hours on September 11, 2012, for filing documents. Id.
Accordingly, 6 hours of Mr. Andry’s time will be compensated at a paralegal rate of $100
per hour, and 41.50 hours of Ms. Cumberland’s time will be compensated at a paralegal
rate of $100 per hour.
3. Domengeaux Wright—Administrative Time
The following billing entries are administrative in nature and are not compensable. On
October 17, 2011, Mr. Wright billed .20 hours for “[r]eview of examples of time records in
accordance with timekeeping requirements for this case. . .” Pet’rs’ App., Ex. 2A, at 3. On
January 3, 2012, Ms. Pelletier billed 1 hour to open an electronic and physical file for the case.
Id. at 4. On February 29, 2012, she billed .25 hours to print and organize the initial scheduling
order for Mr. Wright’s review. Id. at 5. On May 11, 2012, Mr. Wright billed .20 hours to review
notice from co-counsel regarding likely dates for the entitlement hearing. Id. at 7. On July 5,
2012, he billed .10 hours to review confirmation of meeting with petitioners’ experts. Id.
Between July 19 and November 23, 2012, he billed a total of 2.10 hours for various emails to
scheduling meetings and make logistical arrangements for the hearing in Little Rock, Arkansas.
See id. at 8-9. Ms. Pelletier billed .25 on September 6, 2012, to fax materials to Mr. Wright. Id.
at 8. On December 5, 2012, Mr. Wright billed .20 hours to review an email regarding the need
for a letter to excuse H.T.R. from school for attendance at the hearing. Id. at 10.
Mr. Wright billed a total of 1.50 hours on May 14 and 15, 2013, for tasks related to
setting up a status conference. Pet’rs’ App., Ex. 2A, at 11. On November 12 and 13, 2013, he
billed a total of .40 hours for setting up another status conference. Id. at 13. On December 2,
2013, he billed .20 hours for an email to life care planner Dr. Gorman requesting a phone call.
Id. at 14. On December 5 and 6, 2013, he billed a total of 1.10 hours for emailing the life care
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planners for information needed to generate retainer fee checks, sending W-9 forms, and
reviewing their fee schedules. Id. at 15.
On January 6, 2014, Mr. Wright billed .20 hours for an email to set up a conference call.
Pet’rs’ App., Ex. 2A, at 17. On January 7 and 8, 2014, Mr. Quackenbos billed a total of .70
hours for phone calls related to scheduling Dr. Gorman’s trip to Arkansas. Id. He billed .20
hours for the same on February 17, 2014. Id. at 18. Mr. Wright billed .20 hours on February 13,
2014, for review of travel arrangements for the trip. Id. Between April 14, 2014, and August 27,
2014, he billed 1.20 hours for communications with co-counsel regarding scheduling dates for
respondent’s life care planner visit. Id. at 20-22. Mr. Quackenbos billed .40 hours for the same.
Id. at 21. Accordingly, Mr. Wright’s time will be reduced by 7.60 hours. Mr. Quackenbos’
time will be reduced by 1.30 hours,21 and Ms. Pelletier’s time will be reduced by 1.50 hours.
4. Domengeaux Wright—Paralegal Time
The following billing entries are paralegal in nature and are therefore compensable at a
paralegal rate. On September 6, 2012, Mr. Wright billed .20 hours to review an email from Ms.
Cumberland regarding preparations for the hearing, including updating of exhibits and pleadings
binders, and making arrangements with the court. Id. at 8. On December 4, 2013, he billed .20
hours for review of an email requesting a copy of the petition and forwarding of the same to co-
counsel for their handling. Id. at 14. Accordingly, .40 hours of Mr. Wright’s time will be
compensated at a paralegal rate of $100 per hour.
B. Admission to the Bar
Fees and costs related to counsel’s admission to the United States Court of Federal
Claims Bar are not compensable. See, e.g. Oswalt v. Sec’y of Health & Human Servs., No. 03-
2153, 2011 WL 2149932 (Fed. Cl. Spec. Mstr. May 2, 2011)(denying fees for time spent
preparing application for admission to the bar of the U.S. Court of Federal Claims); Ceballos v.
Sec’y of Health & Human Servs., No. 99-97V, 2004 WL 784910 (Fed. Cl. Spec. Mstr. Mar. 25,
2004)(the admission fee for the U.S. Court of Federal Claims bar is not recoverable); Velting v.
Sec’y of Health & Human Servs., No. 90-1432V, 1996 WL 937626 (Fed. Cl. Spec. Mstr. Sept.
24, 1996)(denying compensation for hours spent obtaining admission to the bar, even where
admission was sought specifically for that case and counsel was unlikely to again utilize the
admission).
The following time is not compensable. Mr. Andry and Ms. Lobrano billed for time
spent seeking Mr. Andry’s admission to the United States Court of Federal Claims bar. Between
April 6, 2011, and June 14, 2011, Ms. Lobrano billed 4 hours related to this and Mr. Andry billed
1 hour. Pet’rs’ App., Ex. 1A at 3. Over the span of the next several months, Ms. Lobrano billed
a total of 6.06 hours for tasks relating to seeking Mr. Andry’s admission. Id. at 5-7. Mr. Andry
billed a total of 1.10 hours for the same. Id. The tasks billed for include receiving and reviewing
his certificate of good standing from the Louisiana Supreme Court, requesting sworn statements
21 All reductions to Mr. Quackenbos’ time in this Decision are for hours billed from 2013 to
2015, and his fees are therefore adjusted based on a rate of $200 per hour.
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on his behalf, and receiving notification of his admission. See id. In addition, on October 14,
2011, Ms. Lobrano billed 1 hour to “[p]ull for J. Andry all the materials he needs to review in
order to take the test for the electronic filing system in order to get a log in,” and Mr. Andry
billed 1.50 hours for reviewing those materials. Id. at 12. Mr. Andry’s time will be reduced
by 3.60, and Ms. Lobrano’s time will be reduced by 11.06 hours.
C. Travel
It is well established that travel time is compensated at 50 percent of counsel’s hourly
rate when the attorney is not performing work while traveling. See, e.g. Rodriguez, 2009 WL
2568468, at *21; Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877
(Fed. Cl. Spec. Mstr. July 13, 2007); Scoutto v. Sec’y of Health & Human Servs., No. 90-3576V,
1997 WL 588954 (Fed. Cl. Spec. Mstr. Sept. 5, 1997). The following time will be compensated
at a 50 percent rate, as there is no indication that counsel performed any case work during the
travel time billed.
1. Andry Law Group
On November 26, 2012, Ms. Cumberland and Mr. Andry each billed 2.60 hours of time
to “[f]ly to Little Rock, Arkansas.” Pet’rs’ App., Ex. 1A at 39. Ms. Cumberland billed 4.30
hours on November 27, 2012, to “draft notes regarding hearing for the file; then fly back to New
Orleans.” Id. at 39. Given that Ms. Cumberland billed 2.60 hours to fly to Little Rock on
November 26, 2.60 of the 4.30 hours billed on November 27, 2012, will be compensated at 50
percent of the normal rate. Accordingly, 2.60 hours of Mr. Andry’s time will be compensated
at 50 percent rate, and 5.20 hours of Ms. Cumberland’s time will be compensated at 50
percent rate.
2. Domengeaux Wright
On November 25, 2012, Mr. Wright billed 5 hours for “[t]ravel to Little Rock to prepare
for and attend hearing . . .” and he billed another 5 hours on November 28, 2012, for the return
trip. Pet’rs’ App., Ex. 2A at 9-10. On February 21, 2014, Mr. Quackenbos billed 9 hours for
several tasks, including traveling to and from Little Rock, Arkansas, and Austin, Arkansas, and
attending the life care planning meeting. Pet’rs’ App., Ex. 2 at 18. It is not possible to tell from
the billing entry what portion of this time was spent actually travelling. On September 28, 2014,
Mr. Quackenbos billed 8.10 hours for “[t]ravel to Little Rock” and “correspondence with Ms.
Gangi regarding flight delays.” Id. at 23. On September 30, 2014, he billed 9 hours for several
tasks, including travel from Little Rock to New Orleans, and several teleconferences. Id. at 23-
24. Again, it is not possible from the billing record to determine the time spent travelling, as
opposed to performing other work. All three of Mr. Quackenbos’ travel billing entries contain
more than just travel, and one apparently included a flight delay. Thus, it is not possible to
estimate the time spent actually travelling, and the entirety of these billing entries will be
compensated at 50 percent rate. 26.10 hours of Mr. Quackenbos’ time will be compensated at
50 percent rate, and 10 hours of Mr. Wright’s time will be compensated at 50 percent rate.
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3. Nixon & Light
Mr. Buzbee billed .60 hours on November 2, 2015, for “[t]ravel to Lonoke for hearing”
and .60 hours for the return trip to Little Rock. Pet’rs’ App., Ex. 3 at 4. 1.20 hours of Mr.
Buzbee’s time will be compensated at 50 percent rate.
D. Pharmaceutical Claim and Familiarization with Vaccine
Program Generally
The Vaccine Act limits the recovery of “reasonable attorneys' fees, and other costs” to
those “incurred in any proceeding” on a vaccine petition. 42 U.S.C. § 300aa–15(e)(1)(A)–(B).
Research conducted to explore petitioner's civil remedies is not a task related to the proceedings
on a vaccine claim. See Krause v. Sec’y of Health & Human Servs., No. 01-93V, 2012 WL
4477431 (Fed. Cl. Spec. Mstr. June 20, 2012).22
In addition, time spent learning about the Vaccine Program is not compensable. See, e.g.
Matthews v. Sec’y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl.
Spec. Mstr. Apr. 18, 2016); Calise v. Secretary of Health & Human Servs., No. 08–865V, 2011
WL 2444810, at *5 (Fed. Cl. Spec. Mstr. June 13, 2011) (reducing petitioner's counsel's billings
for “research into the elementary principles of vaccine litigation,” noting, “basic education [is]
not compensable under the Program.”); Carter, 2007 WL 2241877 (“an inexperienced attorney
may not ethically bill his client to learn about an area of the law in which he is unfamiliar. If an
attorney may not bill his client for this task, the attorney may also not bill the Program for this
task.”).
1. Andry Law Group
The following time, billed for research and other tasks related to looking at H.T.R.’s civil
remedies outside the Vaccine Program, is not compensable. On February 22 and 28, 2011, Mr.
Andry billed a total of 3.70 hours for reading the Vaccine Act and Bruesewitz v. Wyeth, LLC,23
and emailing co-counsel regarding parents’ right of action to pursue a claim for loss of
consortium. Pet’rs’ App., Ex. 1A, at 1. On April 11, 2011, Ms. Cumberland billed 3.20 hours
for receiving correspondence from co-counsel requesting information on “Hymel v. Merck,” and
researching the same. Id. at 4-5. Mr. Andry billed 1 hour for the same. Id. at 5. He also billed
22 The undersigned notes that petitioners, represented by Mr. Andry and other counsel, filed a
civil action on December 9, 2013, while their vaccine case was pending. See Raymo et al v.
Merck Sharp & Dohme Corp. et al, No. 4:13CV00697, filed 12/9/2013, administratively
terminated 3/31/2014; See Order, filed March 31, 2014, available at
http://scholar.google.com/scholar_case?case=13854853254812153157&hl=en&as_sdt=6&as_vi
s=1&oi=scholarr.
23 Bruesewitz v. Wyeth, LLC, 562 U.S. 223 (2011) (holding that the National Childhood Vaccine
Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs
who seek compensation for injury or death caused by vaccine side effects).
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1.50 hours for drafting a memorandum to Mr. Wright regarding determining “whether the claim
should be filed in Arkansas or elsewhere.” Id. at 5.
On November 24, 2012, Ms. Cumberland billed .10 hours to review research results from
Mr. Andry about possible loss of consortium claim in Arkansas. Pet’rs’ App., Ex. 1A, at 38. On
June 18, 2015, Mr. Andry billed .50 hours for emails regarding the status of the case and the
“status of suit against Merck.” Id. at 54.
The following hours, billed by counsel for time spent researching and familiarizing
themselves with the Vaccine Program generally, is not compensable. On April 3 and 4, 2011,
Ms. Cumberland billed a total of 9.30 hours to review the Guidelines for Practice Under the
National Vaccine Injury Compensation Program, rules of the Court of Federal Claims, the Act,
and the Vaccine Injury Table, and to write memoranda regarding the same. Pet’rs’ App., Ex. 1A
at 2. Mr. Andry billed 5.30 hours on April 3, 2011, for “[r]eview of procedure under National
Vaccine Injury Compensation [Program] and review[] [of] cases based on elemental proof
required for causation and appropriate standard.” Id. Between April 4 and April 7, 2011, Mr.
Andry billed an additional 14.80 hours on tasks related to reviewing the timeline for a Vaccine
Act case, and researching, discussing, and drafting memoranda on vaccine act procedures and the
burden of proof in vaccine cases. Id. at 2-3. During the same period, Ms. Cumberland billed 3
hours for drafting a memorandum on the “Matrix of Proof and need for attached documentation”
and discussing the timeline for Vaccine Act Case with Mr. Andry. Id. at 2. On June 15, 2011,
Ms. Cumberland billed 3.20 hours to “[c]ontinue review of opinions of entitlement from the
Court of Federal Claims to make sure [she] include[d] all pertinent information in the petition,
affidavits and exhibits.” Id. at 8. On November 3, 2011, she billed 2.40 hours to review a
“timeline memorandum regarding scheduling of a vaccine court per regulations.” Id. at 13.
On May 14, 2013, Ms. Cumberland billed 2.50 hours to review and draft a memorandum
regarding how long the special master has to rule after completion of an entitlement hearing
under the vaccine rules, in addition to corresponding with a law clerk regarding scheduling a
status conference. Pet’rs’ App., Ex. 1A, at 46. Mr. Andry billed 1.50 hours to review the
memorandum and respond to the law clerk. Id. Mr. Andry’s hours will be reduced by 28.30.
Ms. Cumberland’s hours will be reduced by 23.70.
2. Domengeaux Wright
The following time, billed for research and other tasks related to H.T.R.’s civil remedies
outside the Vaccine Program, is not compensable. On February 28, 2011, Mr. Wright billed .20
hours for review and analysis of parents’ right of action to pursue a claim for loss of consortium.
Pet’rs’ App., Ex. 2A, at 1. He billed .30 hours on February 23, 2012, for the same. Id. at 5. On
April 11, 2011, he billed .50 hours for numerous tasks regarding venue issues such as
“[m]emorandum. . . to determine whether the claim should be filed in Arkansas or elsewhere,”
along with medical record collecting. Id. at 2. It is not possible from the billing record to
determine how much time was spent on medical record collecting versus investigating venue for
a civil claim.
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The following time, billed for time spent researching and learning about the Vaccine
Program generally, is not compensable. On September 25, 2013, Mr. Quackenbos billed 3.30
hours to “[r]esearch jurisprudence regarding vaccine act and rights of litigants in the event of an
adverse decision” and to write a memorandum regarding the same. Pet’rs’ App., Ex. 2A, at 12.
On December 16, 2013, he billed 2.60 hours to “[a]nalyze and review jurisprudence re: awards
of compensation in vaccine courts.” Id. at 15. The same day, Mr. Wright billed 1 hour for
“[r]eview and analysis of Statute regarding damages for pain & [s]uffering (42. U.S.C. Sec.
300aa-15(a)(4) and two opinions regarding life care planning and past expenses issue.” Id. at 16.
Mr. Wright billed 1.50 hours on March 10, 2014, for review of the same statute (42 U.S.C. §
300aa-15) and discussion of it with Mr. Quackenbos, and an additional .30 hours on December
23, 2014, for review and analysis of the statute. Id. at 19, 27. Mr. Wright’s hours will be
reduced by 3.80. Mr. Quackenbos’ hours will be reduced by 5.90.
E. Excessive and Duplicative Billing
Work on this case was performed during overlapping time periods by four attorneys and
two paralegals, in addition to a nurse consultant who provided services similar to that of
attorneys working on the case. See generally, Pet. App., Ex. 1B at 8-61; Pet. App., Ex. 2B at 6-
39, 118, 124, 175-78.24 The undersigned and other special masters have previously noted the
inefficiency that results when multiple attorneys work on the same case. See Sabella, 86 Fed. Cl.
at 214-15 (affirming the special master’s reduction of fees for overstaffing where three attorneys
from two different firms worked on a case together); Austin v. Sec’y of Health & Human Servs.,
No. 10-36V, 2013 WL 659574, at *14 (Fed. Cl. Spec. Mstr. Jan 31, 2013) (Special Master
Vowell deducted fees for excessive intra-office communication in a case where seven attorneys
at Conway, Homer & Chin-Caplan billed for attending conferences and drafting memoranda
about the case); Soto v. Sec’y of Health & Human Servs., No. 09-897V, 2011 WL 2269423, at
*6 (Fed. Cl. Spec. Mstr. June 7, 2011) (Special Master Millman reduced CHCC’s fees for intra-
office communications and meetings); Carcamo v. Sec’y of Health & Human Servs., No. 97-
483V, 2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May 20, 2011) (Special Master Millman
reduced fees when two attorneys at the Law Offices of Dale K. Galipo billed for the same
meetings with a client). In this case, excessive and duplicative billing throughout the litigation
warrants overall reductions in the attorneys’ fees requested by both the Andry Law Group and
Domengeaux Wright.
1. Andry Law Group
The Andry Law Group worked on this case from November 2010 to December 2015.
See Pet’rs’ App., Ex. 1A. Mr. Andry performed work during that entire duration, and Ms.
Cumberland performed work from April 2011 to November 2013. See id. Between February
2011 and May 2013, the firm’s billing record contains a significant number of entries that are
duplicative, excessive, or both.
24 Exhibits 1B and 2B are not independently paginated. Citations to Exhibits 1Band 2B refer to
the pdf page number generated by CM/ECF.
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Several tasks were billed more than once by the same attorney. For example, on April 4,
2011, Mr. Andry billed 4.20 hours to draft a memorandum regarding the information and
documents needed to file a claim with the United States Court of Federal Claims. Pet’rs’ App.,
Ex. 1A, at 3. This identical billing entry appears twice on the same day. Id. On November 4,
2011, Ms. Cumberland billed 1.70 hours for “[m]eeting with J. Andry to prepare for status
conference; attend telephone status conference and take notes; organize notes of J. Andry and my
own and type memo regarding conference for file.” Id. at 13. That same day she also billed 1.30
hours for “[m]eeting with [Mr. Andry] re: Initial Status Conference and listened to conference
and took notes; assisted [Mr. Andry].” Id. On August 24, 2012, Ms. Lobrano, the firm’s
paralegal, billed .50 hours twice to meet with Ms. Cumberland regarding bench books and tasks
for trial. Id. at 31.
Many tasks were performed and billed for by both Mr. Andry and Ms. Cumberland.
Indeed, when both attorneys worked on the file on a given day, the majority of billing entries
appear to be duplicative in some way.25 For example, as noted above, Mr. Andry billed 4.20
hours twice on April 4, 2011, to draft a memorandum regarding the information and documents
needed to file a claim with the United States Court of Federal Claims. Ms. Cumberland then also
billed 3.50 hours for drafting a memorandum regarding the documents required to file a claim
with the United States Court of Federal Claims on April 8, 2011. Pet’r’s App., Ex. 1A, at 4. On
May 24, 2011, both attorneys billed time to review medical records from the same hospital. Id.
at 7. On May 26, 2011, Ms. Cumberland billed 2.50 hours to review the matters in the United
States Court of Federal Claims involving transverse myelitis. Id. Mr. Andry billed 3 hours for
the same. Id. On April 27, 2012, both attorneys billed for a variety of tasks, including
correspondence with Dr. Barnes and Dr. Becker and reviewing the addendum to Dr. Becker’s
25 In addition to the examples provided, the attorneys billed for performing duplicative work on
the following dates: 5/27/11 (review of cases); 8/25/11 (meeting with Mr. Wright); 9/28/11: (edit
petition and review Dr. Kinsbourne expert report); 10/21/11 (add MCP and legal secretary to
email list for notices from the court and research Special Master Vowell); 12/4/11 (phone
conference with Dr. Kinsbourne, working with each other on file); 12/6/11 (review records from
Arkansas Childen’s Hospital); 12/13/11(update and review of case memorandum); 12/15/11
(receive notice of Order granting Motion to Strike); 1/18/12 (meeting with Mr. Wright); 3/8/12
(conference call with Dr. Kinsbourne); 3/12/12 (review of Dr. Kinsbourne/Dr. Barnes
correspondence/theory); 3/28/12 (prepare for and discuss Rule 5 status conference); 4/24/12
(review of medical literature); 6/7/12, 6/12/12, and 6/13/12 (receive and review 240 day notice,
review cases about opting out, and discuss plan); 7/2/12 (receive and review Dr. Gill and Dr.
Sladky expert reports); 7/3/12 (review Dr. Kinsbourne’s correspondence and review Dr. Sladky
reports); 7/5/12 (review, compare, and discuss all expert reports); 7/17/12 (review and discuss
letter from Dr. Becker); 9/28/12 (receive and review pre-hearing order; meet); 10/24/12 (work on
Matrix of Proof; meet); 11/12/12 (review of article from Ms. Harrison); 11/23/12 (compile
medical literature and memos); 11/26/12 (meet with experts and BW); 11/28/12 (receive notice
of minute entry); 12/8/12 (receive/review email from Dr. Becker); 1/4/13 (receipt and review of
transcript; discussions); 2/5/13 (review and finalize post-trial brief); 2/8/13 (review respondent’s
status report); 5/3/13 (draft reply brief). See generally, Pet’rs’ App., Ex. 1A.
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report. Id. at 25-26. This entry is particularly striking as it is word-for-word the same for both
attorneys, despite the number and variety of tasks performed.26 On August 14, 2012, Ms.
Cumberland billed .40 hours to receive and review notification of a status conference minute
entry. Id. at 31. Mr. Andry billed .10 for the same. Id.
There are many entries for intraoffice communications, discussions, and meetings
between Mr. Andry and Ms. Cumberland, for which both attorneys billed. 27 On June 15, 2011,
Mr. Andry and Ms. Cumberland each billed over 1 hour for a conversation about the need to hire
a neurologist for an expert opinion. Pet’r’s App., Ex. 1A, at 8. On November 3, 2011, they each
billed .80 hours for a phone conference with each other to prepare for a status conference. Id. at
13. The next day they each billed additional time to meet with each other in preparation for the
conference and attend the conference. Id. On December 9, 2011, they both billed for
discussions regarding the status of medical records and Dr. Kinsbourne’s expert report. Id. at 17.
This billing for intraoffice communications is in addition to time billed for interoffice
communications between the Andry Law Group and Domengeaux Wright.
Some entries, while not duplicative, are excessive in the amount of time billed.28 For
example, on June 17, 20, and 21, 2011, Ms. Cumberland billed 5.30, 7.80, and 9.50 hours,
respectively, for drafting a memorandum of the case. Pet’r’s App., Ex. 1A, at 8. On November
3, 2011, Ms. Cumberland billed 2.40 hours to “[r]eview timeline memorandum regarding
scheduling of a vaccine court per regulations.” Id. at 13. The same day Mr. Andry billed 2.40
26 The entries read, in full: “Correspondence with Dr. Barnes requesting he review Dr. Becker’s
report and request his availability for weeks in September and October; correspondence with Dr.
Becker regarding his availability for weeks in September and October; request CV from Dr.
Barnes; request copies of reference materials from Dr. Becker; request Dr. Becker address the
IOM 2012 as Special Master Vowell will likely be interested; receive/review addendum to Dr.
Becker’s report; send second invoice for payment; send to Dr. Barned a W9 for him to complete
and request an invoice from Dr. Barnes.” Pet’rs’ App., Ex. 1A, at 26.
27 In addition to the examples provided, intraoffice communications, discussions, and meetings
also occurred on the following dates: 4/4/11; 4/6/11; 4/7/11; 4/8/11; 4/11/11; 4/20/11; 5/9/11;
5/25/11; 9/9/11; 9/14/11 ; 10/3/11; 11/3/11; 12/5/11; 12/16/11; 1/19/12; 1/23/12; 2/1/12; 3/19/12;
3/23/12; 3/29/12; 3/30/12; 4/9/12; 4/11/12; 4/12/12; 4/19/12; 4/26/12; 5/1/12; 5/2/12; 7/11/12;
7/13/12; 7/16/12; 7/18/12; 7/19/12; 7/23/12: ; 8/12/12; 9/6/12; 10/9/12; 11/1/12; 11/2/12;
11/6/12; 11/7/12; 12/4/12; 1/31/13; 2/4/13; 2/6/13; 2/14/13; 2/23/13; 2/27/13; 3/1/13; 5/1/13;
5/2/13; 5/10/13; 5/15/13; 5/17/13. See generally, Pet’rs’ App., Ex. 1A.
28 On October 5, 2011, Mr. Andry billed 7.20 hours on “review of Exhibits Books completed by
MP; review of records approximately 1500 pages o[f] exhibits, etc. for insertion into exhibit
books.” Pet’rs’ App., Ex. 1A, at 12. On October 6, 2011, Ms. Cumberland and Mr. Andry each
billed 4.30 hours to work with on trial preparation, when the hearing was not held for another
year. Id. On December 7, 2011, Ms. Cumberland billed a total of 10.50 hours and Mr. Andry
billed a total of 11.75 hours to review medical literature from Dr. Kinsbourne and for discussions
among themselves. Id. at 16-17.
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hours to “[r]eview expert report and all exhibits,” and 2 hours to “[r]eview updated
memorandum of the case, exhibits and expert reports.” Id.
Finally, there appear to be some erroneous billing entries, such as on November 22, 2013,
when Ms. Cumberland billed 4.50 hours for trial preparation tasks when the hearing had already
occurred. Pet’r’s App., Ex. 1A, at 48.
The undersigned finds that Andry Law Group’s billing in this case so excessive and
duplicative as to warrant a reduction of their overall fees by 40%.
2. Domengeaux Wright
Domengeaux Wright worked on this case from January 2011 to December 2015. See
Pet’rs’ Ex. 2A. Mr. Wright performed work from January 2011 to July 2015, and Mr.
Quackenbos performed work from September 2013 to December 2015. See id. The firm’s
billing record contains many entries that are duplicative of work performed by the Andry Law
Group throughout the course of the firm’s work on the case.
The firm billed for excessive interoffice communications, discussions, and meetings
between attorneys at Domengeaux Wright and the Andry Law Group, much of which was billed
by attorneys at both firms.29 For example, on March 17, 2011, Mr. Andry and Mr. Wright both
billed for a phone conference to discuss strategy. Pet’rs’ App., Ex. 2A, at 1; Pet’rs’ App., Ex.
1A, at 1. On March 21, 2011, Mr. Andry billed for emailing a memo to Mr. Wright and Mr.
Wright billed for review of the memo. Id. On September 29, 2011, Mr. Wright and Ms.
Cumberland both billed for a phone call between them. Id. at Pet’rs’ App., Ex. 2A, at 3;Pet’rs’
App., Ex. 1A, at 11. Mr. Wright also billed duplcatively for review of work performed by the
Andry Law Group. On December 12, 2011, he billed to review Ms. Cumberland’s emails with
Dr. Kinsbourne and respondent’s counsel. Pet’rs’ App., Ex. 2A, at 4. On April 30, 2012, he
billed to review Ms. Cumberland’s drafts of documents and exhibits for filing. Id. at 6.
In addition, there is excessive billing for intrafirm communications, discussions, and
review of work between Mr. Wright and Mr. Quackenbos.30 On November 14, 2013, Mr.
Wright and Mr. Quackenbos billed for several phone conferences with each other and Mr.
Quackenbos billed for preparing a memorandum for Mr. Wright. Pet’rs’ App., Ex. 2A, at 13-14.
29 In addition to the examples provided, interoffice communications, discussions, and meetings
also occurred on the following dates: 4/11/11; 6/20/11; 8/25/11; 9/19/11; 10/3/11; 10/7/11;
11/4/11; 11/14/11; 1/23/12; 2/1/12; 2/6/12; 2/27/12; 2/29/12; 3/8/12; 3/13/12; 3/19/12; 3/23/12;
3/28/12; 5/1/12; 5/10/12; 5/11/12; 6/12/12; 7/3/12; 7/5/12; 7/18/12; 9/5/12; 9/6/12; 10/18/12;
10/19/12; 10/29/12; 11/1/12; 11/2/12; 5/1/13; 5/15/13; 11/14/13; 2/19/14; 3/6/14; 4/14/14;
11/10/14; 1/28/15; 6/18/15. See generally, Pet’rs’ App., Ex. 2A.
30 In addition to the examples provided, intraoffice communication and review was billed on the
following dates: 5/22/13; 2/19/14; 2/24/14; 2/28/14; 11/21/14; 12/1/14; 12/9/14; 2/12/15;
6/12/15; 6/23/15; 7/15/15.
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On November 12, 2014, Mr. Wright billed for review of email exchanges between Mr.
Quackenbos and Mr. Andry. Id. at 25. On February 10, 2015, Mr. Wright billed for review of
emails from Mr. Quackenbos to Ms. Gangi. Id. at 27. On March 9, 2015, Mr. Wright and Mr.
Quackenbos both billed for discussions between themselves. Id. at 28-29.
In some instances, attorneys from Domengeaux Wright billed for work that was also
performed by the Andry Law Group.31 On May 9 and 10, 2011, Mr. Wright and Mr. Andry both
billed for review of medical records from the Children’s Hospital in Arkansas. Pet’rs’ App., Ex.
2A, at 2; Pet’rs’ App., Ex. 1A, at 6. On December 7, 2012, Mr. Andry and Mr. Wright both
billed for emailing Dr. Becker to request a copy of the same report. Pet’rs’ App., Ex. 2A, at 10;
Pet’rs’ App., Ex. 1A, at 17. On May 2, 2013, Mr. Wright, Mr. Andry, and Ms. Cumberland all
billed time related to the review of Dr. Sladky’s probation matter, the timeline of his
suspensions, and discussions thereof. Id. Pet’rs’ App., Ex. 2A, at 11; Pet’rs App., Ex. 1A, at 31.
The undersigned finds the excessive and duplicative billing by Domengeaux Wright
warrants a 20% reduction in their overall fees.
b. Costs
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). Petitioners request
$53,020.41 in attorneys’ costs for the Andry Law Group, $142,539.09 in attorneys’ costs for
Domengeaux Wright, and $165.00 in attorneys’ costs for Nixon & Light, for a total cost request
of $195,724.50. Pet’rs’ App. at 3. For the reasons set forth below, the undersigned awards
petitioners $85,450.96 in attorneys’ costs.
i. Experts
A. Dr. Marcel Kinsbourne
Petitioners request a total of $31,915.00 in expert fees for Dr. Kinsbourne. The Andry
Law Group paid $16,957.50 of this total, and Domengeaux Wright paid $14,957.50. Pet’rs’
App., Ex. 1B at 63-62 (expense nos. 4, 18, 19); Pet’rs’ App., Ex. 2B at 40 (expense no. 10). The
request is supported by invoices from Dr. Kinsbourne that detail the hours expended, hourly rate
charged, and services performed. See Pet’rs’ App., Ex. 1B at 122-23, 128; Pet’rs’ App., Ex. 2B
at 132, 134-35. Dr. Kinsbourne prepared expert reports in this case and testified at the hearing.
31 In addition to the examples provided, work was performed duplicatively on the following
dates: 2/4/13 and 2/5/13 (Ms. Cumberland, Mr. Andry and Mr. Wright all billed for
reviewing/editing post-hearing brief); 2/22/13 (three attorneys billed review respondent’s post
hearing brief); 5/16/13 (Mr. Andry and Ms. Cumberland billed for attending status conference;
Mr. Wright billed for review of notes from status conference); 2/24/14 (Mr. Quackenbos and Mr.
Andry billed for review of decision); 5/26/15 (Mr. Wright, Mr. Quackenbos, and Mr. Andry all
billed to review wage loss analysis from respondent). See generally, Pet’rs’ App., Ex. 1A;
Pet’rs’ App., Ex. 2A.
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He performed work on the case in 2011 and 2012. Dr. Kinsbourne billed most of his time at a
rate of $500 per hour, with the exception of travel time, which he billed at $250 per hour, and 6
emails that he billed at $300 per hour.32 See Pet’rs’ App., Ex. 2B, at 132-35.
Although Dr. Kinsbourne has previously been awarded an hourly rate of $500 in other
Program cases, the undersigned finds the requested hourly rate of $500 per hour excessive in this
case. See, e.g. Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL 623833, at *6
(Fed. Cl. Spec. Mstr. Feb. 21, 2008) (Dr. Kinsbourne awarded $500 per hour); Adams v. Sec'y of
Health & Human Servs., No. 01–267V, 2008 WL 2221852, at *2 (Fed. Cl. Spec. Mstr. Apr. 30,
2008) (following Simon, 2008 WL 623833). The award of $500 per hour to Dr. Kinsbourne was
unusual, and in other cases he has been awarded less. See, e.g., Bhuiyan v. Sec’y of Health &
Human Servs., No. 05-1269V, 2015 WL 2174208, at *4 (Fed. Cl. Spec. Mstr. Apr. 16, 2015)
(Dr. Kinsbourne awarded $400 per hour); Faoro v. Sec’y of Health & Human Servs., No. 10-
704V, 2014 WL 5654330, at *4 (Fed. Cl. Spec. Mstr. Oct. 15, 2014) (Dr. Kinsbourne awarded
$400 per hour); Stone v. Sec'y of Health & Human Servs., No. 09–1041, 2010 WL 3790297, at
*6-7 (Fed.Cl.Spec.Mstr. Sept. 9, 2010) (Dr. Kinsbourne awarded $300 per hour); Hammitt v.
Sec'y of Health & Human Servs., No. 07–170V, 2011 WL 1827221, at *7 (Fed.Cl.Spec.Mstr.
Apr. 7, 2011) (Dr. Kinsbourne awarded $300 per hour).
In Simon, Dr. Kinsbourne had significant experience testifying in cases concerning
similar alleged injuries (encephalopathy and seizures). 2008 WL 623833, at *7. The special
master concluded that Dr. Kinsbourne had utilized his expertise effectively to “minimize the
number of hours that otherwise would be necessary” for an expert to expend. Id. The special
master found that Dr. Kinsbourne deserved an hourly rate of $500 in appropriate circumstances
where the imputed efficiency of time use was borne out by the number of hours billed and where
he was “credible and provided very good expert services.” Id.
In this case, the record does not indicate that an hourly rate of $500 is justified by Dr.
Kinsbourne’s knowledge and efficiency. In her Ruling on Entitlement, then-Chief Special
Master Vowell noted that Dr. Kinsbourne was “not an ideal expert witness,” because among
other reasons, he “does not treat transverse myelopathies, let alone teach, research, or write about
them.” Raymo, 2014 WL 1092274, at *18. Dr. Kinsbourne billed 68.20 hours in this case,
whereas he billed only 31.75 hours in Simon. Compare Pet’rs’ App., Ex. 2B, at 132-35 with
2008 WL 623833, at *8. The undersigned finds that a reasonable hourly rate for Dr. Kinsbourne
in this case is $400.
Dr. Kinsbourne expended 68.20 hours on this case, 15.50 of which were for travel.
Pet’rs’ App., Ex. 2B, at 132-35. For the same reasons discussed above with regard to counsel’s
hours, travel will be compensated at 50% rate. Rodriguez, 2009 WL 2568468, at *21. Dr.
Kinsbourne’s invoice also includes $190.00 for “Cabs and Airline fees,” which appear to have
been for travel to and from the hearing, but for which no receipts were provided. Pet’rs’ App.,
32 Dr. Kinsbourne billed .60 hours for “Emails (6)” in July 2012 at a rate of $300 per hour.
Pet’rs’ App., Ex. 2B, at 134. The total dollar amount billed for these emails is $1,800.00. This
appears to be an error, as .60 hours at a rate of $300 per hour comes to $180.00. In addition, the
undersigned notes that other emails were billed at a rate of $500 per hour. See id.
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Ex. 2B, at 132. Accordingly, the undersigned will award a total of $24,180.00 in expert fees
for Dr. Kinsbourne.33 This amount represents 52.70 hours compensated at $400 per hour, and
15.50 hours of travel compensated at $200 per hour. The undocumented $190.00 for cabs and
airlines will not be compensated.
B. Dr. Daniel Becker
Petitioners request a total of $39,245.00 in expert fees for Dr. Becker. The Andry Law
Group paid $24,190.00 of this total, and Domengeaux Wright paid $15,055.00. Pet’rs’ App., Ex.
1B, at 63-64 (expenses nos. 11-13, 20); Pet’rs’ App., Ex. 2B, at 40 (expense no. 3). This request
is supported in part by invoices submitted from Dr. Becker, but the invoices do not provide
detailed information about the services performed. Dr. Becker billed $5,400.00 for 360 minutes
of “Chart review and report preparation” on April 26, 2012. Pet’rs’ App., Ex. 1B, at 96. On
April 27, 2012, he billed $270.00 for an 18 minute call and $675.00 for 45 minutes of “Literature
review and report preparation.” Id. at 100. For the hearing in November 2012, he billed
$10,000.00 per day for three days of court appearance, and $110.00 in travel expenses. Id. at
133. Petitioner’s application also indicates that the Andry Law Group paid him $2,790.00 for
“Amended Report, phone conf.,” but no billing record from Dr. Becker was submitted with
regard to this amount. See id. at 103-04. Thus, it can be calculated that Dr. Becker billed most
of his time at a rate of $900 per hour or above.34
As an initial matter, Dr. Becker’s hourly rate is clearly excessive. The highest hourly rate
that the undersigned has awarded to any expert in the Program is $500 per hour. For the reasons
set forth below, however, the undersigned finds that Dr. Becker’s time spent in this matter should
not be compensated at all. Dr. Becker’s opinion was not relied on by then-Chief Special Master
Vowell in her Ruling on Entitlement, as she found preponderant evidence that Dr. Becker
plagiarized his report from a report authored by a different expert and filed in another Vaccine
Act case. Raymo, 2014 WL 1092274, at *13. When she asked questions about how Dr.
Becker’s report was prepared, then-Chief Special Master Vowell “assess[ed] his credibility as so
severely compromised as to preclude reliance on his opinion and testimony.” Id. Although
33 The $24,180.00 awarded constitutes a reduction of $7,735.00 from the requested $31,915.00 in
expert fees for Dr. Kinsbourne. From the invoices submitted, it is not possible to determine how
this reduction should be allocated between the Andry Law Group and Domengeaux Wright.
Accordingly, the reduction will be allocated in proportion to the share of Dr. Kinsbourne’s bill
that each firm advanced. The Andry Law Group paid $16,957.50—53.13% of Dr. Kinsbourne’s
total fees. Therefore, the Andry Law Group’s requested costs will be reduced by $4,109.61,
which is 53.13% of $7,735.00. Thus, the Andry Law Group will be awarded $12,847.89 of Dr.
Kinsbourne’s costs. Domengeaux Wright’s requested costs will be reduced by $3,625.39, and
they will be awarded $11,332.11 of Dr. Kinsbourne’s costs.
34 The undersigned also notes that the hearing in this case lasted only two days, but Dr. Becker
billed for three days of court appearance. See Pet’rs’ App., Ex. 1B, at 133. Presumably, the
third day was actually spent travelling, and should only have been billed at 50 percent rate to
begin with.
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petitioners did not directly address respondent’s allegations of plagiarism by Dr. Becker, “in
their posthearing brief, filed after respondent brought her concerns to the court’s attention,
petitioners abandoned the . . . causation theory Dr. Becker proposed.” Id. at *14.35
Dr. Becker’s billing records are not sufficiently specific to allow a determination of the
reasonableness of the time he expended and the tasks he performed, and no billing record at all
was submitted for $2,790.00 of his fees. The issue of his plagiarism makes it even more
important than in the usual case that his billing record provide support for the work he
35 The Ruling on Entitlement reads, in pertinent part:
There is preponderant evidence that Dr. Becker plagiarized his
expert report from one authored by Dr. Douglas Kerr and filed in
another Vaccine Act case. When asked questions about how his
report was prepared, Dr. Becker’s answers were deliberately
misleading. When an expert witness attempts to mislead the court
on an issue as fundamental as the origin of his expert opinion, I
assess his credibility as so severely compromised as to preclude
reliance upon his opinion and testimony. Raymo, 2014 WL
1092274, at *13.
. . .
I have compared Dr. Becker's report with the portions of Dr. Kerr's
report quoted in Flores, and the portions quoted are virtually
identical. See Flores, 2013 WL 5587390, at *6 n.11, *12 n.16, *14
n.19.
It is clear that Dr. Becker presented the work product of Dr. Kerr as
his own. It does not appear that he disclosed this fact to petitioners
or their attorney, at least before the issue was raised at hearing. It is
this failure that I find the most concerning in deciding whether to
credit any part of his testimony. Had Dr. Becker indicated that he
had been provided a copy of Dr. Kerr's earlier report and agreed with
the reasoning and conclusions therein and adopted them as his own,
my concerns about his candor would be less pressing. However,
whether for financial reasons, time constraints, or for the prestige
attached to being an expert witness, Dr. Becker was willing to take
a shortcut, pass another's work product off as his own and, more
significantly, testify in a manner that attempted to mislead the court
about the origin of the opinions expressed in the report bearing his
signature.
Id. at *14 (internal footnote omitted).
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performed, particularly in preparation of his expert report. For these reasons, Dr. Becker’s bill
for preparation of an expert report and expert testimony will not be compensated.36
ii. Other Consultants
A. Life Care Planners
Petitioners request $24,850.00 for Cornelius Gorman, PhD, and $4,822.52 for Shelly
Savant, MD. Pet’rs’ App., Ex. 2B at 40 (expense nos. 7, 11).37 These costs were paid by
Domengeaux Wright. Petitioners filed several billing statements in support of these costs. Id. at
112-15; 138-39, 147, 149. However, the billing statements do not detail the hours expended,
rates charged, or provide more than a general statement of the work performed. Dr. Gorman’s
statements include the following entries: $4,500.00 for “Home Visit-Arkansas,” $17,000.00 for
“Life Care Plan,” and $850.00 for “Attorney Conference.” Id. at 112, 115. Dr. Savant’s
statements include the following entries: $1,500.00 for “Neurological/Psychiatric LCP
Evaluation,” $1,000.00 for “Neurological/Psychiatric Report Writing/Research,” $1,000.00 for
“Chart Review,” $500.00 for “Consultation w Dr. Gorman,” $1,750.00 for “Travel (Distant),”
$775.00 for “Consultation w/Dr Gorman re:LCP,” $775.00 for “Research,” and $22.52 in
interest.38 Id. at 138-39, 149.
The billing records submitted do not indicate the hourly rate charged for each service,
although Dr. Savant and Dr. Gorman both submitted fee schedules, which provide their hourly
rates in general. See Pet’rs’ App., Ex. 2B at 106-07, 109-10. Dr. Gorman charges $825 per hour
for report preparation, life care planning consultations, and out of town travel. Id. at 109. Dr.
Savant charges $750 per hour for neurological/psychiatric evaluation and neurological/
psychiatric evaluation report writing/research, $500 per hour for chart reviews and life care
planning consultations, and $250 per hour for out of town travel. Id. at 106. From the
statements submitted, it is possible to guess how much time was expended on most of the general
services by matching the fee schedule rate to the service, but it is not possible to tell what type of
tasks went into the performance of each service. For example, $17,000.00 for “Life Care Plan,”
is not sufficiently detailed to allow a determination of whether the amount of time expended on
the life care plan was reasonable. In addition, the life care plans were not filed in this case, so it
is not possible to review the work product itself. The most it is possible to determine, based on a
36 Other costs related to Dr. Becker, such as his airfare for the hearing, will be compensated.
These costs are requested elsewhere in petitioners’ application. See, e.g. Pet. App., Ex. 1B, at
109 (receipt for airfare for Dr. Becker). While Dr. Becker’s invoice indicates additional “travel
expenses” of $110.00, no receipts were submitted to substantiate these costs, and they will not be
compensated. Id. at 133.
37 In petitioners’ application, $2,500.00 paid to Ms. Savant was submitted as part of Dr.
Gorman’s fees. This error does not affect te total requested for their combined services. See
Pet’rs’ App., Ex. 2B at 105.
38 Interest was billed elsewhere by Drs. Savant and Gorman, but was subsequently subtracted out
of the bill, so is not discussed. This $22.52 in interest was not subtracted out.
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joint status report filed December 12, 2014, is that respondent received petitioners’ life care plan
on December 11, 2014, and the parties ultimately agreed to settlement terms.
Petitioners have a clear obligation to monitor expert fees. Rodriguez, 2009 WL 2568468
at *22 (citing Perreira v. Sec’y of Health & Human Servs., 1992 WL 164436, at *10 (Fed. Cl.
Spec. Mstr. Jun. 12, 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994)). The Guidelines for Practice
state that petitioner should explain costs “sufficiently to demonstrate their relation to the
prosecution of the petition.” Id. (citing Guidelines for Practice at 69, Section X, Chapter 3, Part
B(2)). Billing time in large blocks prevents a detailed review, and “frustrates the court’s ability
to assess the reasonableness of the request.” Valdes v. Sec’y of Health & Human Servs., 89 Fed.
Cl. 415, 424 (2009) (upholding the special master’s reduction of costs for expert where expert
billed his time in two large blocks)(quoting Broekelschen, 2008 WL 5456319, at *4-5.
Because of the lack of detailed billing information it is impossible to determine the
reasonableness of the time expended by the life care planners, or to conclusively determine the
rates billed for their services. However, these expert hourly rates set forth in the fee schedules
are excessive. As noted above, the most the undersigned has awarded to an expert in the
Program, for expert reports, expert testimony, life care planning, or otherwise, is $500 per hour.
On review of Ms. Savant and Dr. Gorman’s fee schedules, the undersigned finds their fees in
general to be excessive based on her experience with life care planners in the Program. For the
reasons discussed above, the costs requested by Domengeaux Wright for Dr. Gorman and
Dr. Savant will be reduced by half.
Finally, the $22.52 in interest applied by Dr. Savant to her outstanding bill is not
compensable. Jeffries v. Sec’y of Health & Human Servs., No. 99-670V, 2006 WL 3903710
(Fed. Cl. Spec. Mstr. Dec. 15, 2006) (finding that a finance charge applied by experts to a total
outstanding bill constituted interest that cannot be assessed against the U.S.).
B. Economist39
Petitioners request $19,892.00 in fees for Malcolm M. Dienes, LLC, CPA. Pet’rs’ App.,
Ex. 2B, at 40 (expense no. 4). These costs were paid by Domengeaux Wright. A letter of
engagement states that Dienes is engaged to assist in “litigation matters,” and that their standard
hourly rates are $175 to $350, in addition to a $1,950.00 retainer fee. Id. at 74. Petitioners
submitted invoices from Dienes, which indicate the number of hours billed and a sufficiently
detailed explanation of the services performed, which were related to preparing computations
based on the parties’ respective life care plans. See id. at 78, 80-81. The invoices provided
39 In her initial decision on attonreys’ fees and costs, the undersigned did not compensate
petitioners for $14,144.50 of work performed by Dienes, because petitioners did not provide an
invoice detailing the work performed. Petitioners filed a motion for reconsideration on August 5,
2016, asking the undersigned to award an additional $14,144.50 for work performed by Dienes
and providing a supplemental invoice detailing the work performed. The undersigned granted
petitioners’ motion for reconsideration on October 26, 2016. She now compensates petitioners
in full for the services of Dienes, awarding the requested total of $19,892.00.
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support the following: $3,057.00 for 16.50 hours of work performed between February 12 and
23, 2015, and $740.00 for 3 hours of work performed on March 6, 2015. Id. at 74, 78, 80-81.
An additional invoice filed with petitioners’ motion for reconsideration showed 68.45 hours of
work performed, for a total of $14,144.50. Petitioners’ Motion for Reconsideration (“Pet’rs’
Mot. Rec.”) dated Aug. 5, 2016 (ECF No. 113) at 3-5. After careful review of the invoices
submitted, the undersigned finds that the work performed, time spent, and rates charged by
Malcolm M. Dienes, LLC, is reasonable. Therefore, the $19,892.00 requested by
Domengeaux Wright for Malcolm M. Dienes, LLC, will be reimbursed in full.
C. Nurse Consultant
Petitioners request $3,248.25 in costs for Debra Harrison, RN, JD. Pet. App., Ex.2B at
40 (expense no. 8). This cost was paid by Domengeaux Wright. The requested cost includes
travel expenses for an initial trip to meet the clients in 2011—$223.25 for a car rental, parking
fee, and dinner, for which an invoice and receipts were provided. Id. at 118-20. It also includes
an invoice for $2,775.00 in fees for the client interview, which includes a total of 15 hours of
travel billed at $75 per hour and a total of 10.75 hours for “Client meeting” billed at
approximately40 $150 per hour. Id. at 124. Although “Client meeting” is not a particularly
detailed explanation of the work performed, the undersigned finds the total hours expended and
rate charged reasonable. The request also includes $250.00 for “travel expenses – Raymo
Hearing,” documented only by a check from Domengeaux Wright. Id. at 122. No invoice or
receipts were submitted for this $250.00, and it will not be compensated.
Petitioners also request an additional $17,435.00 in outstanding costs for Ms. Harrison
paid by Domengeaux Wright. Pet. App., Ex.2B at 40 (expense no. 17). This request is
supported by a detailed invoice noting the hours billed and the tasks performed, which include
research, review of the expert reports, work with the life care planners, and discussions with
petitioners regarding H.T.R.’s condition. Id. at 175-78. Upon review of this invoice, it appears
that Ms. Harrison billed at $150 per hour, and the undersigned finds the time expended
reasonable. Ms. Harrison spent 8 hours travelling to the hearing on November 25, 2012, and 8
hours travelling back from the hearing on November 28, 2012. Id. at 177. These 16 hours of
time will be compensated at 50 percent rate, and the requested costs will be reduced by
$1,200.00.
iii. Medical Bills
Petitioners request $24.50 for a “Medical Bill—Baptist Health System,” and $12.00 for a
“Medical Bill—Children’s Hospital—x-rays.” Pet’rs’ App., Ex. 1B, at 64 (expense nos. 22, 23).
These costs were paid by the Andry Law Group. No receipts or invoices are provided for these
expenses. See id. at 138, 140. The undersigned notes that these expenses appear identical to
expenses 3 and 7, for $24.50 and $12.00, respectively, from Baptist Health and Arkansas
Children’s Hospital. See id. at 63. Expenses 3 and 7 were for copies of medical records, as
evidenced by the invoices provided. See 71, 84. Without documentation of expenses 22 and 23,
40 8.50 hours are billed at $150 per hour and 2.25 hours are billed at $166.67 per hour. Pet’rs’
App., Ex. 2B, at 124.
30

Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 31 of 33
however, it is not possible to confirm that they are for copies of medical records, nor that they
are not simply duplicative of the expenses requested as numbers 3 and 7. Accordingly, the
requested $36.50 will not be compensated.
iv. Travel Expenses
Petitioners request a total of $3,656.50 in “American Express” expenses and $6,367.92 in
“Firm Travel,” paid by Domengeaux Wright. Pet’rs’ App., Ex. 2B, at 40 (expense nos. 1, 2).
These totals mostly encompass reasonable transportation and lodging costs for a trip to meet
petitioners at the outset of the case, the hearing in Little Rock, and two site visits for life care
planning. See generally id. at 41-68. However, the requested costs also include $5,533.42 for a
charter flight for Mr. Quackenbos and petitioners’ life care planners on February 21, 2014, as
well as $617.50 for transportation by Little Rock Limousine on the same day. Id. at 56-57, 59-
60. The undersigned finds the requested $5,533.42 and $617.50 excessive and will reduce
the request by half.
v. Other Costs
Petitioners request $125.00 for “Am. Medical Association Subscription,” paid by the
Andry Law Group. Pet’rs’ App., Ex. 1B at 63 (expense no. 1), 66. A subscription to the
American Medical Association represents an overhead expense, and is not a compensable cost.
See e.g. Rodriguez, 2009 WL 2568468, at *23 (National Law Journal subscription is an overhead
expense, not a compensable cost). The requested $125.00 will not be compensated.
Finally, petitioners request $60.00 for Mr. Andry’s certificate of good standing from the
Supreme Court of Louisiana. Pet’rs’ App., Ex. 1B, at 64 (expense no. 25). The admission fee
for the U.S. Court of Federal Claims bar is not recoverable. Ceballos v. Sec’y of Health &
Human Servs., No. 99-97V, 2004 WL 784910 (Fed. Cl. Spec. Mstr. Ar. 25, 2004). The
requested $60.00 will not be compensated.
vi. Interest
Petitioners’ request includes $29,554.58 in interest on loans taken out jointly by Heather
Raymo and Domengeaux Wright to finance the majority of the costs in this case. Pet. App., Ex.
2B, at 40 (expense no. 16); Pet’rs’ App. at 3. A request for reimbursement of costs must be
reasonable, and the special master is afforded wide discretion in determining the reasonableness
of costs. Perreira, 27 Fed. Cl. 29, at 34. Charging $29,554.58 in interest to the Program is
simply not reasonable. This is particularly the case where, as here, a substantial portion of the
underlying costs for which the loans were taken out are themselves unreasonable. The
$29,554.58 interest on the loans will not be compensated.
II. Conclusion
Upon review of the documentation of the requested attorneys’ fees and costs, and based
on her experience with the Vaccine Act and its attorneys, the undersigned finds a total of
$368,953.81 in attorneys fees and costs reasonable. This total represents the following:
31

Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 32 of 33
Attorneys’ Fees:
Total Requested: $535,526.90
Total Awarded: $269,358.35
Andry Law Group:
Requested: $421,434.40
Awarded: $204,568.35
(Mr. Andry: $235,851.25)
(Ms. Cumberland: $104,422.00)
(Ms. Lobrano: $674.00)
(40% Reduction: - $136,378.90)
Domengeaux Wright:
Requested: $112,612.50
($110,062.50 in original application)
($2,550.00 in supplemental application)
Awarded: $63,430.00
(Mr. Wright: $43,947.50)
(Mr. Quackenbos: $33,100.00)
(Ms. Pelletier: $2,240.00)
(20% Reduction: - $15,857.50)
Nixon & Light:
Requested: $1,480.00
Awarded: $1,360.00
(Mr. Buzbee: $1,360.00)
Costs:
Total Requested: $195,724.50
Total Awarded: $99,595.46
Andry Law Group:
Requested: $53,020.41
(- $4,109.61 Dr. Kinsbourne)
(- $24,190.00 Dr. Becker)
(- $36.50 Medical Bills)
(- $125.00 American Medical Association)
(- $60.00 Certificate of Good Standing)
Awarded: $24,499.30
Domengeaux Wright:
Requested: $142,539.09
(- $3,625.39 Dr. Kinsbourne)
(- $15,055.00 Dr. Becker)
32

Case 1:11-vv-00654-CFL Document 127 Filed 12/13/16 Page 33 of 33
(- $22.50 Dr. Savant Interest on Bill)
(- $14,825.00 Drs. Savant and Gorman)
(- $250.00 Ms. Harrison)
(- $1,200.00 Ms. Harrison Travel Time)
(- $3,075.46 Charter Jet & Limousine)
(- $29,554.58 Loan Interest)
Awarded: $74,931.1641
Nixon & Light:
Requested: $165.00
Awarded: $165.00
Total Fees and Costs:
Requested: $731,251.40
Awarded: $368,953.81
The undersigned awards attorneys’ fees and costs as follows:
(1) A lump sum of $229,067.65 in the form of a check payable jointly to
petitioners and the Andry Law Group, LLC, for attorneys’ fees and costs.
(2) A lump sum of $138,361.16 in the form of a check payable jointly to
petitioners and Domengeaux Wright Roy Edwards & Colomb, LLC, for
attorneys’ fees and costs.
(3) A lump sum of $1,525.00 in the form of a check payable jointly to petitioners
and Nixon & Light, Attorneys at Law, for attorneys’ fees and costs.
The Clerk of Court SHALL ENTER JUDGMENT forthwith.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
41 The undersigned’s initial decision awarding attorneys’ fees and costs awarded Domengeaux
Wright a total of $60,768.66 in costs. This total included only $5,747.50 of the $19,892.00
requested for the services of Dienes. The undersigned granted petitioners’ motion for
reconsideration and now awards petitioners the full $19,892.00. Thus, $14,144.50 has been
added to the original award amount, for a new total of $74,931.16 in costs for Domengeaux
Wright.
33

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_11-vv-00654-3
Date issued/filed: 2016-12-29
Pages: 17
Docket text: PUBLIC DECISION reflecting no redactions from the opinion and order previously entered under seal on December 14, 2016. Signed by Judge Charles F. Lettow. (MZ)
--------------------------------------------------------------------------------
Case 1:11-vv-00654-CFL Document 130 Filed 12/29/16 Page 1 of 17
In the United States Court of Federal Claims
No. 11-654V
(Filed: December 14, 2016)
(Reissued: December 29, 2016)
************************************* )
KEVIN RAYMO and HEATHER ) Attorneys’ fees and costs in a vaccine
RAYMO, legal representatives of a minor ) case; lodestar approach applied to local
child, H.T.R., ) rates for fees in Louisiana and
) Arkansas; reduction for attorneys’ time
Petitioners, ) spent on paralegal and administrative
) tasks; reasonable rates for medical
v. ) experts; documentation of costs
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
************************************* )
Andrew J. Quackenbos, Domengeaux Wright Roy Edwards & Colomb, LLC, Lafayette,
Louisiana, for petitioners.
Claudia B. Gangi, Senior Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for respondent. With her on the briefs were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, C. Salvatore D’Alessio,
Acting Director, Catharine E. Reeves, Acting Deputy Director, and Gabrielle M. Fielding,
Assistant Director, Torts Branch, Civil Division, United States Department of Justice,
Washington, D.C.
OPINION AND ORDER1
LETTOW, Judge.
Kevin and Heather Raymo, acting on behalf of their minor child, H.T.R., and through
their attorneys, request that this court review the chief special master’s decision awarding
attorneys’ fees and costs. See Pet’rs’ Mem. of Objs. in Support of Mot. for Review (“Pet’rs’
Mem.”), ECF No. 125-1. The case was initiated on October 11, 2011, when Kevin and Heather
Raymo filed a petition on behalf of H.T.R., alleging that H.T.R. developed transverse myelitis as
1In accord with the Rules of the Court of Federal Claims (“RCFC”), App. B (“Vaccine
Rules”), Rule 18(b), this opinion and order is being initially filed under seal. By rule, the parties
have fourteen days in which to propose redactions.

Case 1:11-vv-00654-CFL Document 130 Filed 12/29/16 Page 2 of 17
a result of certain vaccines she received. Raymo v. Sec’y of Health & Human Servs., No. 11-
654V, slip op. at 1-2 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (“Fees Decision”). On February 24,
2014, then-Chief Special Master Vowell ruled that petitioners were entitled to compensation for
H.T.R.’s injuries. Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL 1092274
(Fed. Cl. Spec. Mstr. Feb. 24, 2014).
On July 15, 2016, Chief Special Master Dorsey2 awarded petitioners $354,809.31 in
attorneys’ fees and costs, which was significantly less than the amount requested by petitioners,
$731,251.40. Fees Decision at 3. Petitioners filed a motion for reconsideration on August 5,
2016, relating specifically to costs for work performed by petitioners’ economist. Pet’rs’ Mot.
for Recons. Regarding Decision on Att’ys’ Fees and Costs (“Pet’rs’ Mot. for Recons.”), ECF No.
113. Chief Special Master Dorsey granted the motion and awarded petitioners an additional
$14,144.50 to reflect the economist’s costs. Order Granting Pet’rs’ Mot. for Recons. (Oct. 26,
2016), ECF No. 123. As a result, Chief Special Master Dorsey withdrew the decision issued on
July 15, 2016 and issued a new decision on November 2, 2016, awarding petitioners $368,953.81
in attorneys’ fees and costs. Fees Decision at 3. Petitioners filed a motion for review of the
chief special master’s decision regarding attorneys’ fees and costs on November 10, 2016, which
is now pending before this court.3 For the reasons stated, the court denies petitioners’ motion for
review and affirms the chief special master’s decision on attorneys’ fees and costs.
BACKGROUND
Petitioners, Kevin and Heather Raymo, are the legal representatives of their minor
daughter, H.T.R. Fees Decision at 1. Petitioners allege that H.T.R. developed transverse
myelitis due to her receipt in October 2010 of vaccinations for human papillomavirus virus,
meningococcus, hepatitis A, diphtheria, tetanus and pertussis. Raymo, 2014 WL 1092274, at *1.
H.T.R. was eleven years old at the time of the vaccinations. Id. at *2. As a result, H.T.R. is
completely paralyzed from the waist down. Id. at *2, *5.
A. Procedural History
2The case was reassigned from former Chief Special Master Vowell to Chief Special
Master Dorsey on September 15, 2015. Notice of Reassignment, ECF No. 98.
3Petitioners had filed a motion for review of the chief special master’s initial decision on
August 15, 2016. See Pet’rs’ Mot. for Review of Decision on Att’ys’ Fees and Costs, ECF No.
114. That motion for review was filed before the chief special master resolved the motion for
reconsideration. After the court remanded the case to the chief special master for action on the
request for reconsideration and the chief special master granted relief, petitioners filed the
motion for review that is now before this court.
2

Case 1:11-vv-00654-CFL Document 130 Filed 12/29/16 Page 3 of 17
Petitioners filed this suit on October 11, 2011, pursuant to the National Vaccine Injury
Compensation Program. Fees Decision at 1.4 Then-Chief Special Master Vowell held an
entitlement hearing in November 2012, and determined that petitioners were entitled to
compensation on February 24, 2014. Raymo, 2014 WL 1092274, at *5, *23. Respondent
(“government”) did not concede that the vaccines caused H.T.R.’s injuries, but did agree to
compensate petitioners. See Stipulation (Nov. 5, 2015), ECF No. 100. Chief Special Master
Dorsey accepted the stipulation and awarded compensation accordingly. See Decision on Joint
Stipulation (Nov. 5, 2015), ECF No. 101.
On March 4, 2016, petitioners requested $532,976.90 in attorneys’ fees and $195,724.50
in costs, for a total of $728,701.40. Pet’rs’ Mot. for Fees and Costs (Mar. 4, 2016), ECF No.
107.5 The government responded that a reasonable fees and costs award “would fall between
$97,000.00 to $120,000.00.” Resp’t’s Resp. to Pet’rs’ Appl. for Att’ys’ Fees and Costs at 3
(March 15, 2016), ECF No. 108. Petitioners subsequently requested an additional $2,550.00 to
account for attorneys’ fees accumulated in 2016. Pet’rs’ Suppl. Mot. for Fees and Costs (May
17, 2016), ECF No. 110. On July 15, 2016, Chief Special Master Dorsey awarded petitioners
$354,809.31 in attorneys’ fees and costs. Fees Decision at 3. Petitioners filed a motion for
reconsideration on August 5, 2016, Pet’rs’ Mot. for Recons., and a motion for review on August
15, 2016, Pet’rs’ Mot. for Review of Decision on Att’ys’ Fees and Costs, ECF No. 114. The
motion was fully briefed and a hearing was held on September 30, 2016.
On October 6, 2016, the court remanded the case to Chief Special Master Dorsey for the
limited purpose of ruling on petitioners’ motion for reconsideration. See Order of October 6,
2016, ECF No. 119. Petitioners’ motion for reconsideration related solely to the costs for
petitioners’ economist, Malcolm M. Dienes, LLC. See Pet’rs’ Mot. for Recons. Chief Special
Master Dorsey granted the motion, which resulted in petitioners receiving an additional
$14,144.50 in costs for Dienes, LLC. See Order Granting Pet’rs’ Mot. for Recons. Chief Special
Master Dorsey issued a new decision on November 2, 2016 that awarded petitioners
$368,953.81, comprised of $269,358.35 in attorneys’ fees and $99,595.46 in costs. Fees
Decision at 32-33. Petitioners filed a motion for review of that decision on November 10, 2016.
Pet’rs’ Mem. The government filed its response to petitioners’ motion for review on December
8, 2016. Resp’t’s Resp. to Mot. for Review (“Resp’t’s Opp’n”), ECF No. 126.
B. Chief Special Master’s Decision on Attorneys’ Fees and Costs
1. Attorneys’ hourly rates.
The chief special master relied upon the lodestar approach to determine reasonable
attorneys’ fees. Fees Decision at 5 (citing Avera v. Sec’y of Health & Human Servs., 515 F.3d
4The program was instituted by and under 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-1 to
300aa-34) (“Vaccine Act” or “Act”).
5Petitioners put forward a request for $531,661.90, but, as the chief special master
correctly noted, the requested attorneys’ fees in fact totaled $532,976.90. Fees Decision at 2 n.4.
3

Case 1:11-vv-00654-CFL Document 130 Filed 12/29/16 Page 4 of 17
1343, 1349 (Fed. Cir. 2008)). Under the lodestar approach, the court or special master begins by
“multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.” Avera, 515 F.3d at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Next, the court or special master “may then make an upward or downward departure to the fee
award based on other specific findings.” Id. at 1348. Here, the chief special master applied local
Louisiana and Arkansas billing rates, rather than Washington, D.C. forum rates, to determine the
attorneys’ reasonable hourly rates. Fees Decision at 6-7. Though the forum rate typically
controls, in this instance the chief special master applied local rates under the so-called Davis
County exception because nearly all of the legal work occurred in Louisiana and Arkansas, and
the chief special master found a “very significant” difference between local and forum rates. Id.
(applying Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States
Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). To determine reasonable local
attorneys’ rates in Louisiana, the chief special master looked to Mooney v. Sec’y of Health &
Human Servs., No. 05-266V, 2014 WL 7715158 (Fed. Cl. Spec. Mstr. Dec. 29, 2014), a vaccine
case awarding hourly attorneys’ rates in Louisiana,6 as fitted into the framework of McCulloch v.
Sec’y of Health and Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept.
1, 2015), recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). Fees
Decision at 8-10.7
Three law firms participated in the case, Andry Law Group, Domengeaux Wright, and
Nixon & Light. Fees Decision at 6. Petitioners requested attorneys’ fees for a total of five
attorneys, as well as fees for two paralegals. Id. at 6-12.8 Because both Andry Law Group and
Domengeaux Wright were located in Louisiana and performed almost all of the legal work for
this case in Louisiana, the chief special master applied Mooney and McCulloch to determine
reasonable hourly rates in Louisiana. Id. at 7-11.9 As a starting point, the chief special master
noted that in Mooney an attorney with fifteen years of legal experience was awarded an hourly
6The chief special master commented that “[a]s opposed to [petitioners’ cited case of
Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830 (E.D. La. 2007)], Mooney dealt with local
rates specifically for vaccine litigation, and was a 2014, rather than 2007, decision. The
undersigned finds the rates in Mooney are a more useful reference point than the rates stated in
Turner. . . .” Fees Decision at 8 (emphasis in original).
7McCulloch set forth a framework by which attorneys’ hourly rates were determined by
years of legal experience. 2015 WL 5634323, at *19; Fees Decision at 9-10. The “experience
categories” consisted of attorneys with less than four years, four to seven years, eight to ten
years, eleven to nineteen years, and more than twenty years of experience. Fees Decision at 9
n.11 (citing McCulloch, 2015 WL 5634323, at *19).
8The chief special master allowed hourly rates of $100 for both paralegals, as requested.
Fees Decision at 10, 11.
9The chief special master applied the McCulloch framework to determine reasonable
hourly rates in Arkansas, where John B. Buzbee of Nixon & Light was located. Fees Decision at
12. The chief special master allowed a $200 hourly rate for Mr. Buzbee, as requested. Id.
4

Case 1:11-vv-00654-CFL Document 130 Filed 12/29/16 Page 5 of 17
rate of $275 for vaccine work performed in Louisiana. Id. at 8 (citing Mooney, 2014 WL
7715158, at *9). Under the McCulloch framework, hourly rates were then adjusted upward or
downward for the attorneys in this case based upon years of legal experience. Id. at 9-10 (citing
McCulloch, 2015 WL 5634323, at *19).
Using this framework, the chief special master allowed a $325 hourly rate for attorney
Jonathan B. Andry and a $200 hourly rate for attorney Michelle Purchner Cumberland of Andry
Law Group. Fees Decision at 10.10 She allowed a $200 hourly rate for attorney Andrew J.
Quackenbos of Domengeaux Wright for his work between 2013 and 2015, and a $250 hourly
rate for his work in 2016 to reflect his increased experience. Id. at 11.11 The chief special master
allowed a $325 rate for attorney Bob F. Wright of Domengeaux Wright, rather than the $425
hourly rate requested. Id. at 10-11. Because Mr. Wright had fifty-seven years of legal
experience, he fell within the highest McCulloch bracket and therefore warranted an increased
hourly rate compared to the $275 awarded in Mooney for an attorney with fifteen years of legal
experience. Id. at 8, 11. However, the chief special master determined that a $50 rate increase
was appropriate, as opposed to anything more, because the case “appear[ed]” to be Mr. Wright’s
first in the Vaccine Program, and because it was “difficult to determine [Mr. Wright’s] reputation
and skill level as compared to other petitioners in the [Vaccine] Program.” Id. at 11.
2. Reduction of attorneys’ hours requested.
In addition to establishing reasonable hourly rates, the chief special master also reduced
the number of hours requested by the attorneys.
First, the chief special master did not allow attorneys’ fees for administrative work. Fees
Decision at 12-13 (citing Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Mostovoy v.
Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb.
4, 2016)). In reviewing the requested hours for petitioners’ attorneys, the chief special master
found numerous instances of administrative work. For example, Mr. Andry of Andry Law
Group billed an hour “for correspondence with respondent’s counsel about scheduling a
conference,” and Ms. Cumberland and Ms. Lobrano of Andry Law Group repeatedly billed for
tasks related to scheduling or coordinating travel. Id. at 13-14. Additionally, the chief special
master found that Mr. Wright, Mr. Quackenbos, and Ms. Pelletier of Domengeaux Wright billed
for tasks such as reviewing a letter to excuse H.T.R. from school, scheduling a status conference,
and scheduling trips. Id. at 15-16. Accordingly, the chief special master reduced Mr. Andry’s
time by 20.05 hours, Ms. Cumberland’s time by 22.45 hours, and Ms. Lobrano’s time by 13.80
hours. Id. at 14. The chief special master also reduced Mr. Wright’s time by 7.60 hours, Mr.
Quackenbos’ time by 1.30 hours, and Ms. Pelletier’s time by 1.50 hours. Id. at 16.
10Mr. Andry and Ms. Cumberland requested $350 and $250 hourly rates, respectively.
Fees Decision at 7.
11Mr. Quackenbos requested a $250 hourly rate for all of his time spent on the case. Fees
Decision at 10.
5

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Second, the chief special master allowed attorneys’ fees for paralegal-level work, but
only at a paralegal rate. Fees Decision at 13 (citing Doe ex rel. Estate of Doe v. Sec’y of Health
and Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29,
2010) (in turn citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989))). For example, she found
that Mr. Andry and Ms. Cumberland of Andry Law Group billed for time spent filing medical
records and exhibits, as well as organizing binders. Id. at 14-15. Mr. Wright of Domengeaux
Wright billed for time spent reviewing an e-mail from Andry Law Group regarding preparations
and arrangements with the court for an upcoming hearing, as well as reviewing and forwarding
an e-mail to co-counsel. Id. at 16. Accordingly, the chief special master only allowed a $100
paralegal hourly rate for 6 hours expended by Mr. Andry, 41.50 hours by Ms. Cumberland, and
0.40 hours by Mr. Wright. Id. at 15-16.
Third, the chief special master did not allow attorneys’ fees related to admission to the
United States Court of Federal Claims Bar. Fees Decision at 16 (citing Estate of Oswalt v. Sec’y
of Health & Human Servs., No. 03-2153V, 2011 WL 2149932 (Fed. Cl. Spec. Mstr. May 2,
2011); Ceballos ex rel. Ceballos v. Sec’y of Health & Human Servs., No. 99-97V, 2004 WL
784910 (Fed. Cl. Spec. Mstr. Mar. 25, 2004); Velting v. Sec’y of Health & Human Servs., No.
90-1432V, 1996 WL 937626 (Fed. Cl. Spec. Mstr. Sept. 24, 1996)). As a result, the chief special
master reduced Mr. Andry’s time by 3.60 hours, and Ms. Lobrano’s time by 11.06 hours. Id. at
17.
Fourth, for time spent traveling, the chief special master reduced petitioners’ attorneys’
hourly rates by 50 percent. Fees Decision at 17 (citing Rodriguez v. Sec’y of Health & Human
Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. July 27, 2009), review
denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011); Carter v. Sec’y of Health
& Human Servs., No. 04-1500V, 2007 WL 2241877 (Fed. Cl. Spec. Mstr. July 13, 2007);
Scoutto v. Sec’y of Health & Human Servs., No. 90-3576V, 1997 WL 588954 (Fed. Cl. Spec.
Mstr. Sept. 5, 1997)). Because petitioners’ attorneys gave “no indication” that they performed
legal work while traveling, the chief special master reduced the attorneys’ requested fees during
travel by 50 percent. Id.
Finally, the chief special master did not allow attorneys’ fees for time spent researching
civil remedies, Fees Decision at 18 (citing 42 U.S.C. § 300aa-15(e)(1)(A), (B); Krause v. Sec’y
of Health & Human Servs., No. 01-93V, 2012 WL 4477431 (Fed. Cl. Spec. Mstr. June 20,
2012)), or time spent learning fundamental legal concepts about the Vaccine Program, id. (citing
Matthews v. Sec’y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl.
Spec. Mstr. Apr. 18, 2016); Calise v. Sec’y of Health & Human Servs., No. 08-865V, 2011 WL
2444810, at *5 (Fed. Cl. Spec. Mstr. June 13, 2011); Carter, 2007 WL 2241877, at *5). In
evaluating the attorneys’ fees requested, the chief special master found instances of billing
related to civil remedies or fundamental concepts about the Vaccine Program. Id. at 18-20. For
example, Mr. Andry and Ms. Cumberland of Andry Law Group billed for research related to
filing a claim in Arkansas and learning about proper procedure in vaccine petitions. Id. at 18-19.
Similarly, Mr. Wright and Mr. Quackenbos billed for research related to an Arkansas claim and
“jurisprudence regarding [the] [V]accine [A]ct and rights of litigants.” Id. at 19-20.
Accordingly, the chief special master reduced Mr. Andry’s time by 28.30 hours, Ms.
6

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Cumberland’s time by 23.70 hours, Mr. Wright’s time by 3.80 hours, and Mr. Quackenbos’ time
by 5.90 hours. Id. at 19-20.
3. Reduction of total attorneys’ fees requested due to excessive and duplicative billing.
In addition to reducing the number of billable hours, the chief special master determined
that excessive and duplicative billing warranted a 40 percent reduction in fees requested by
Andry Law Group, and a 20 percent reduction in fees requested by Domengeaux Wright. Fees
Decision at 20-24. In explaining her decision, the chief special master noted concerns about
billing by Andry Law Group, including: a single attorney billing for a single task on multiple
occasions, multiple attorneys billing for a single task, attorneys billing excessively for intraoffice
communications, attorneys billing for excessive time, and attorneys entering erroneous billing
entries. Id. at 21-23. The chief special master also noted her view that attorneys with
Domengeaux Wright had billed excessively for interoffice communications between
Domengeaux Wright and the Andry Law Group, and that the attorneys had billed excessively for
intrafirm communications and for work that was also performed by Andry Law Group. Id. at 23-
24.
4. Costs.
First, in addressing costs, the chief special master only allowed petitioners to recover for
costs related to petitioners’ expert Dr. Marcel Kinsbourne at $400 per hour, rather than the
requested $500 per hour. Fees Decision at 24-26.12 The chief special master noted that Dr.
Kinsbourne had received $500 per hour in a few previous vaccine cases, but less than $500 in
others. Compare Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL 623833, at
*6-8 (Fed. Cl. Spec. Mstr. Feb. 21, 2008) (Dr. Kinsbourne awarded $500 per hour), with Faoro
v. Sec’y of Health & Human Servs., No. 10-704V, 2014 WL 5654330, at *3-4 (Fed. Cl. Spec.
Mstr. Oct. 15, 2014) (Dr. Kinsbourne awarded $400 per hour). Here, the chief special master
found $400 per hour to be reasonable because, unlike in Simon where Dr. Kinsbourne had
significant experience with the alleged injuries at issue, Dr. Kinsbourne did not have the same
level of experience in transverse myelopathies, and former Chief Special Master Vowell found
that Dr. Kinsbourne was “not an ideal expert witness.” Fees Decision at 25; Raymo, 2014 WL
1092274, at *18.
Second, the chief special master did not allow petitioners to recover for any costs related
to petitioners’ expert Dr. Daniel Becker, on the grounds that Dr. Becker’s bills were not
sufficiently specific, he failed to provide any records for certain fees, he had been found by a
preponderance of the evidence to have plagiarized his expert report, and his opinion was not
relied upon by the Chief Special Master Vowell in making a determination in the case. See Fees
Decision at 26-28; Raymo, 2014 WL 1092274, at *13-14.
Third, the chief special master reduced the requested costs for petitioners’ life care
planners by 50 percent. Fees Decision at 28-29. The chief special master determined that the
billing statements for the life care planners failed to adequately explain the hours spent on the
12The chief special master also reduced costs for time spent traveling by 50 percent. Fees
Decision at 24-25.
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case, the rate charged, or the work performed. Id. at 28. Additionally, the chief special master
found the hourly rates requested, which were as high as $825 per hour for one planner and $750
per hour for another, to be excessive. Id. at 28-29.
Fourth, the chief special master awarded petitioners $19,892, the full amount requested,
in costs for petitioners’ economist, Malcolm M. Dienes, LLC. Fees Decision at 29-30. The
chief special master had initially declined to award $14,144.50 of those costs due to lack of
billing documentation, but petitioners later provided sufficient supplemental documentation with
their motion for reconsideration, after which the chief special master granted the full amount of
the costs sought. Order Granting Pet’rs’ Mot. for Recons.
Fifth, the chief special master did not grant $250 in requested costs for a nurse consultant
due to lack of documentation, and also reduced the nurse consultant’s hourly rate for travel by 50
percent. Fees Decision at 30.
Sixth, the chief special master did not allow a requested $36.50 in medical bills due to
lack of documentation. Fees Decision at 30-31.
Seventh, the chief special master found petitioners’ requested travel expenses to be
excessive. Fees Decision at 31. Specifically, the chief special master reduced petitioners’
requested costs for a charter flight and transportation by “Little Rock Limousine” by 50 percent.
Id.
Eighth, the chief special master did not allow compensation for expenses related to an
“Am. Medical Association Subscription” and a certificate of good standing from the Supreme
Court of Louisiana. Fees Decision at 31 (citing Rodriguez, 2009 WL 2568468, at *23; Ceballos,
2004 WL 784910).
Finally, the chief special master did not award any of the $29,554.58 petitioners
requested for the interest accumulated on loans that Heather Raymo and Domengeaux Wright
jointly obtained to finance the case. Fees Decision at 31.
C. Motion for Review
Petitioners’ motion for review challenges several of the chief special master’s
determinations regarding the award of fees and costs. First, petitioners contest the attorneys’
fees awarded by the chief special master. Petitioners argue that Mr. Wright should have been
compensated at $425 per hour, not $325 per hour, to properly reflect his fifty-seven years of
legal experience and reputation in the legal community. Pet’rs’ Mem. at 11-12.13 Additionally,
petitioners challenge the chief special master’s decision to curtail the attorneys’ billable hours as
“mechanical and arbitrary.” Id. at 6-9. Petitioners also seek reversal of the chief special
master’s decision to reduce Andry Law Group’s fees by 40 percent and Domengeaux Wright’s
13Petitioners do not challenge the reduced hourly rates for the other attorneys. Pet’rs’
Mem. at 11.
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fees by 20 percent on the grounds that these “blanket cuts” were arbitrary and unreasonable,
arguing that the chief special master improperly inserted her own judgment regarding how the
attorneys conducted or should have conducted the litigation. Id. at 9-10. Petitioners support this
contention by asserting that “in complex matters, the work of multiple attorneys is both
reasonable and expected.” Id. at 9. Second, petitioners challenge the costs awarded by the chief
special master. Petitioners argue that the chief special master should have compensated
petitioners for costs related to expert Dr. Kinsbourne at $500 per hour, not $400 per hour, and
that some compensation should have been awarded for costs related to expert Dr. Becker. Id. at
12-15. Petitioners also contest the chief special master’s reduction of costs related to the life
care planners, reduction of travel expenses, and exclusion of interest accumulated on the money
petitioners borrowed to finance the suit. Id. at 15-18.
Overall, petitioners argue that Chief Special Master Dorsey should not be afforded the
discretion or deference traditionally afforded to a special master in determinations of fees
because Chief Special Master Dorsey was not assigned to the case during the proceedings on
entitlement and was assigned to preside only after the parties had reached a settlement on
compensation. Hr’g Tr. 7:19 to 9:2 (Sept. 30, 2016). The government responds by asserting that
the chief special master properly considered all relevant factors in reaching a reasonable
attorneys’ fees and costs determination, and that the decision should be affirmed. Resp’t’s
Opp’n at 1-2.
STANDARD OF REVIEW
This court has jurisdiction to review a chief special master’s decision under the Vaccine
Act and may take one of the following actions upon review of the decision:
(A) uphold the findings of fact and conclusions of law of the [chief] special master
and sustain the [chief] special master’s decision,
(B) set aside any findings of fact or conclusion of law of the [chief] special master
found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue its own findings of fact and conclusions of law,
or
(C) remand the petition to the [chief] special master for further action in accordance
with the court’s direction.
42 U.S.C. § 300aa-12(e)(2); see Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 91
(2016).
A special master’s determinations of law are reviewed de novo, findings of fact are
reviewed for clear error, and discretionary rulings are reviewed for abuse of discretion. Hall v.
Sec’y of Health & Human Servs., 640 F.3d 1351, 1354-55 (Fed. Cir. 2011) (citations omitted).
The award or denial of attorneys’ fees and costs is a discretionary ruling that is reviewed under
the abuse of discretion standard. Saxton ex rel. Saxton v. Sec’y of Dep’t of Health & Human
Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); Graham v. Sec’y of Health & Human Servs., 124
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Fed. Cl. 574, 578 (2015) (citations omitted). This court will only find an abuse of discretion
when, as set out by the Federal Circuit in other contexts, the special master’s decision “(1) is
clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3)
rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on
which the [special master] could rationally base [his] decision.” Davis v. Sec’y of Health &
Human Servs., 105 Fed. Cl. 627, 633 (2012) (quoting Ninestar Tech. Co. v. International Trade
Comm’n, 667 F.3d 1373, 1379 (Fed. Cir. 2012)) (alterations in original).
This deferential standard “is not a rubber stamp.” Davis, 105 Fed. Cl. at 633 (citations
omitted). The special master must provide sufficient findings and analysis to ensure that a
reviewing court can adequately determine whether an abuse of discretion has occurred. Caves v.
Sec’y of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013) (citations omitted). If, however,
“the special master has considered the relevant evidence of record, drawn plausible inferences
and articulated a rational basis for the decision, reversible error will be extremely difficult to
demonstrate.” Hall, 640 F.3d at 1355 (quoting Hines v. Sec’y of Health & Human Servs., 940
F.2d 1518, 1528 (Fed. Cir. 1991)). Additionally, a special master is permitted to rely on his or
her own experiences within the Vaccine Program when awarding reasonable attorneys’ fees and
costs. Saxton, 3 F.3d at 1521; Caves, 111 Fed. Cl. at 779 (citations omitted).
ANALYSIS
The Vaccine Act was enacted to implement a “no-fault compensation program” that
would “work faster and with greater ease than the civil tort system.” Bruesewitz v. Wyeth LLC,
562 U.S. 223, 228 (2011) (quoting Shalala v. Whitecotton, 514 U.S. 268, 269 (1995)). The Act
prohibits attorneys from charging any fee for services in connection with a vaccine injury
petition. Sebelius v. Cloer, __U.S. __, __, 133 S. Ct. 1886, 1891 (2013) (citing 42 U.S.C. §
300aa-15(e)(3)). Instead, the special master or court awards attorneys’ fees and costs, and the
award is paid from the federal vaccine trust fund. 42 U.S.C. § 300aa-15(e)(1), (f)(4), (i)(2);
Rehn, 126 Fed. Cl. at 91. If a petitioner prevails under the Act, the petitioner is automatically
entitled to “reasonable attorneys’ fees” and “other costs.” 42 U.S.C. § 300aa-15(e)(1)(A), (B);
Davis, 105 Fed. Cl. at 634. If the petitioner loses, the presiding special master may award
reasonable attorneys’ fees and costs if the petition was brought in good faith and upon a
reasonable basis. Cloer v Sec’y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir.
2012), aff’d sub nom. Sebelius v. Cloer, ___ U.S. ___, 133 S. Ct. 1886; Rehn, 126 Fed. Cl. at 91
(quoting 42 U.S.C. § 300aa-15(e)(1)).
Petitioners bear the burden of showing that the requested attorneys’ fees and costs are
reasonable. Caves, 111 Fed. Cl. at 782; Sabella v. Sec’y of Dep’t of Health & Human Servs., 86
Fed. Cl. 201, 215 (2009). As a general rule, “[h]ours that are not properly billed to one’s client
also are not properly billed to one’s adversary pursuant to statutory authority.” Morse v. Sec’y of
Health & Human Servs., 93 Fed. Cl. 780, 790 (2010) (quoting Saxton, 3 F.3d at 1521) (emphasis
in original).
A. Attorneys’ Fees
1. Reducing Mr. Wright’s hourly rate.
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The most senior attorney for petitioners, Mr. Bob F. Wright, had over 50 years of
experience in legal practice and litigation but no prior work on vaccine cases. The chief special
master began with a baseline rate of $275 per hour for an attorney with fifteen years of
experience, as set forth in Mooney, 2014 WL 7715158, at *9, and then increased that rate by $50
per hour to reflect Mr. Wright’s additional experience, per the guidelines set forth in McCulloch,
2015 WL 5634323, at *10. Fees Decision at 10-11.
Petitioners argue that the chief special master failed to consider two of the McCulloch
factors in determining an hourly rate for Mr. Wright: overall legal experience and reputation in
the community. Pet’rs’ Mem. at 11-12. Although McCulloch posited a framework based upon
categorizing attorneys based on years of legal experience, the special master in McCulloch also
noted that an attorney’s “skill, experience, and reputation” are relevant to the analysis. 2015 WL
5634323, at *13 (citing Avera, 515 F.3d at 1348). Petitioners argue that Mr. Wright’s fifty-seven
years of legal experience and strong reputation in the community warrant an hourly rate of $425,
rather than $325. Pet’rs’ Mem. at 11-12.
Here, the chief special master did consider Mr. Wright’s legal experience, skill level, and
reputation in determining a reasonable hourly rate. While acknowledging Mr. Wright’s
extensive legal experience, she noted that the case “appear[ed]” to be Mr. Wright’s first in the
Vaccine Program, and thus found it “difficult to determine [Mr. Wright’s] reputation and skill
level as compared to other petitioners in the [Vaccine] Program.” Fees Decision at 11.
Regardless of Mr. Wright’s activities or expertise in the legal community at large, Mr. Wright
appeared to lack the experience, reputation, and skill in the realm of vaccine petitions. In short,
the chief special master increased Mr. Wright’s hourly rate from a baseline of $275 to reflect his
extensive general experience, but limited the increase to $50 because Mr. Wright had no prior
vaccine-specific experience. Thus, the chief special master considered all relevant factors and
adequately explained the basis for the $325 hourly rate. The chief special master did not abuse
her discretion.
2. Excluding or reclassifying particular attorneys’ hours.
The chief special master performed a detailed analysis in excluding, reducing, and
reclassifying attorneys’ fees related to administrative and paralegal-level work, admission to the
United States Court of Federal Claims Bar, travel time, research on civil remedies, and research
regarding fundamental legal concepts about the Vaccine Program. See Fees Decision at 12-20.
Petitioners, however, argue that the requested attorneys’ fees are justified because the case was
“complex” and “heavily litigated.” Pet’rs’ Mem. at 6. In support of this position, petitioners
note that in the Vaccine Program, an attorney is required to “prepare his case as if every factual
and legal issue will be contested, regardless of how straightforward or uncontested the case may
appear with hindsight.” Id. at 8 (quoting Holton ex rel. Holton v. Sec’y of Health & Human
Servs., 24 Cl. Ct. 391, 398 (1991)). Additionally, petitioners assert that a firm “must have
discretion in the way it builds and presents its case[]” and that an evaluation of the hours spent
on the case “should not be overly mechanical.” Id. (quoting McCulloch, 2015 WL 5634323, at
*22).
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These arguments by petitioners related to advocacy and attorney discretion do not
directly address the reasoning underlying the chief special master’s decision to exclude or
reclassify attorneys’ hours. For example, the chief special master explained that secretarial and
clerical tasks, such as arranging travel plans, scheduling meetings, or reviewing invoices, are not
compensable in the Vaccine Program. See Rochester, 18 Cl. Ct. at 387; Mostovoy, 2016 WL
720969, at *5. She examined petitioners’ requested attorneys’ hours and noted each billing entry
that was secretarial or clerical in nature. Fees Decision at 13-16. The chief special master
performed a similarly detailed analysis with supporting case law in reducing attorneys’ fees for
paralegal-level work, admission to the United States Court of Federal Claims Bar, travel time,
research on civil remedies, and research on fundamental concepts about the Vaccine Program.
Id. at 12-20.
Although petitioners have an obligation to diligently prepare a vaccine petition and have
discretion in how to present support for the petition, diligence and discretion do not allow
petitioners to recover fees for hours that are not recoverable or not fully compensable at attorney-
level rates under the Vaccine Program. Because the chief special master presented specific
findings with sufficient explanations, the chief special master did not abuse her discretion in this
regard.
3. Percentage reductions to attorneys’ fees.
A special master need not award attorneys’ fees for “hours that are excessive, redundant,
or otherwise unnecessary.” Valdes v. Sec’y of Health & Human Servs., 89 Fed. Cl. 415, 424-25
(2009) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In evaluating a fee request, a
special master is permitted to reduce attorneys’ hours found to be excessive by a percentage; a
“line-by-line” determination is not required. Saxton, 3 F.3d at 1518-19; Sabella, 86 Fed. Cl. at
206 (citations omitted).
Even so, percentage reductions “are subject to heightened scrutiny.” Guerrero v. Sec’y of
Health & Human Servs., 120 Fed. Cl. 474, 481-82 (2015) (quoting International Rectifier Corp.
v. Samsung Elecs. Co., 424 F.3d 1235, 1239 (Fed. Cir. 2005)). The special master must provide
a “concise but clear” explanation as to why the fee reduction is justified. International Rectifier
Corp., 424 F.3d at 1239 (quoting Hensley, 461 U.S. at 437); Broekelschen v. Sec’y of Health &
Human Servs., No. 07-137V, 2008 WL 5456319, at *6 (Fed. Cl. Spec. Mstr. Dec. 17, 2008)
(citations omitted). But in providing this explanation, the special master “is not required to
explain how many hours are appropriate for any given task.” Broekelschen, 2008 WL 5456319,
at *6 (citations omitted).
Here, petitioners argue that the chief special master unreasonably reduced Andry Law
Group’s fees by 40 percent and Domengeaux Wright’s fees by 20 percent. Pet’rs’ Mem. at 9-10.
Petitioners contend that the chief special master failed to recognize the need for multiple
attorneys, relying primarily on Holton, 24 Cl. Ct. 391. Pet’rs’ Mem. at 9-10. In Holton, the
special master had reduced the hours of one attorney by 50 percent and a second attorney by 25
percent after finding “substantial duplication of effort” and excessive hours. 24 Cl. Ct. at 394.
Upon review, the Court of Federal Claims vacated the decision and found the special master’s
percentage reduction to be arbitrary, reasoning:
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The special master’s reduction for duplication of effort and for excessive time
spent does not take into account the realities of conducting a law practice. We
take judicial notice of the fact that litigation involves, inter alia, frequent travel,
review of documents, communication with the court, with witnesses, with
opposing counsel and with clients, legal research and drafting of pleadings and
motions. . . . [I]t was reasonable for [the two attorneys] to collaborate on the
Holton matter in order to assure that the litigation proceeded in a timely fashion.
Id. at 396-97.
The decision in Holton, however, is distinguishable from the chief special master’s
decision here. In Holton, the fees at issue related to a lead attorney and his associate. 24 Cl. Ct.
at 394. In vacating the special master’s judgment, the court stated that it was “reasonable for an
experienced private practitioner to choose to share the various tasks involved in litigation with an
associate.” Id. at 397. Furthermore, the court found that the special master unreasonably
deemed specific billing entries problematic. Id. (holding that the special master should not
criticize an attorney for reviewing every case document or exclude reasonable work performed
merely because the work did not result in a material contribution to the case).
In contrast, the chief special master here did not reduce attorneys’ fees simply because
multiple law firms and attorneys participated in the case. Instead, she found many of the specific
billing entries unreasonable. See Fees Decision at 21-24. And, unlike in Holton, the chief
special master did not criticize petitioners’ attorneys for reviewing every document or
performing work that did not ultimately contribute to the case. Rather, she found numerous and
specific entries of unreasonably duplicative or excessive billing, such as: an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intraoffice communications, attorneys billing excessive hours, attorneys entering
erroneous billing entries, attorneys billing excessively for interoffice communications between
Domengeaux Wright and Andry Law Group, and attorneys of Domengeaux Wright billing for
work that was performed by Andry Law Group. See id.
For example, the chief special master found that on one day, Ms. Cumberland of Andry
Law Group billed for work related to a status conference, then billed a second time for that same
work. Fees Decision at 21. In another example, Mr. Andry and Ms. Cumberland both entered
identical billing information for a variety of tasks, notably entering the same description “word-
for-word . . . despite the number and variety of tasks performed.” Id. at 21-22. The chief special
master also found that, among other problematic billing entries, attorneys billed twice for
conversations between two attorneys within the same firm, billed twice for discussions between
Andry Law Group and Domengeaux Wright, billed twice for simple tasks, and billed for a
review of e-mail exchanges between the two law firms. Id. at 21-24. Although it was reasonable
to employ multiple attorneys, it was not reasonable for senior attorneys to bill for redundant
work or extensive communications. See id. at 24.
Based upon the many duplicative or excessive billing entries, the chief special master
determined that a percentage reduction of fees was justified. Fees Decision at 20, 23-24. This
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methodology has been approved in prior vaccine cases. See Sabella, 86 Fed. Cl. at 214-15
(affirming the special master’s reduction of attorneys’ fees due to overstaffing and duplicative
billing, and rejecting petitioner’s argument that the special master failed to appreciate “the way
cases are handled in the real world of civil litigation”); Hines ex rel. Sevier v. Sec’y of Health &
Human Servs., 22 Cl. Ct. 750, 754-55 (1991) (affirming the special master’s reduction of
attorney hours because, despite the complexity of the case, the attorneys duplicated work and
billed for an unreasonable number of hours); Mostovoy, 2016 WL 720969, at *5-6 (holding that
an attorney could not recover any fee for certain work performed because, in part, the time billed
and types of entries appeared excessive); Austin v. Sec’y of Health & Human Servs., No. 10-
362V, 2013 WL 659574, at *14 (Fed. Cl. Spec. Mstr. Jan 31, 2013) (reducing attorneys’ fees due
to “excessive interoffice communications”); Soto v. Sec’y of Health & Human Servs., No. 09-
897V, 2011 WL 2269423, at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011) (reducing attorneys’ fees
due to excessive intrafirm communications, duplicative work, and unnecessary meetings);
Carcamo v. Sec’y of Health & Human Servs., No. 07-483V, 2011 WL 2413345, at *7 (Fed. Cl.
Spec. Mstr. May 20, 2011) (reducing the attorneys’ number of hours where two attorneys both
unreasonably billed for the same meetings with petitioner and with each other). Even in a case
where a special master’s reduction of fees was vacated, this court has noted that reductions will
be upheld when supported by specific findings. See Guerrero, 120 Fed. Cl. at 481-82 (holding
that the special master failed to adequately explain the reduction of fees, but also discussing
cases where percentage reductions were properly applied based upon a reasoned explanation and
specific findings).
Here, the chief special master provided an explicit, detailed explanation as to why a
reduction of fees was appropriate, and supported that decision with specific findings. Thus, the
chief special master did not abuse her discretion in reducing Andry Law Group’s fees by 40
percent and Domengeaux Wright’s fees by 20 percent.
B. Costs
1. Dr. Marcel Kinsbourne.
Petitioners’ challenge the chief special master’s award of $400 per hour for the work of
medical expert Dr. Kinsbourne, given that Dr. Kinsbourne has received a $500 hourly rate in
prior vaccine cases. See Pet’rs’ Mem. at 12-13; Simon, 2008 WL 623833, at *6-8; Adams v.
Sec’y of Health & Human Servs., No. 01-267V, 2008 WL 2221852, at *1-2 (Fed. Cl. Spec. Mstr.
Apr. 30, 2008). Petitioners also assert that $500 per hour is reasonable because “Dr.
Kinsbourne’s work supplied the grounds for then-Chief Special Master Vowell’s entitlement
finding.” Pet’rs’ Mem. at 12; see also Raymo, 2014 WL 1092274, at *18-23.
Petitioners’ arguments, however, fail to address the reasoning underlying the chief
special master’s award. The chief special master noted that while Dr. Kinsbourne previously
received $500 per hour in certain vaccine cases, he also received less than $500 per hour in
others. See, e.g., Bhuiyan v. Sec’y of Health & Human Servs., No. 05-1269V, 2015 WL
2174208, at *4-5 (Fed. Cl. Spec. Mstr. Apr. 16, 2015); Faoro, 2014 WL 5654330, at *3-4. The
chief special master went on explicitly to distinguish the case at hand from Simon, 2008 WL
623833, the leading precedent for the larger hourly rate. Dr. Kinsbourne was experienced in
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testifying about the alleged injuries in Simon and that allowed him to lend his expertise more
efficiently, whereas former Chief Special Master Vowell found in this case that Dr. Kinsbourne
was “not an ideal expert witness” because, in part, he did not treat, research, teach, or write about
the injuries at issue. Fees Decision at 25 (citing Raymo, 2014 WL 1092274, at *18); see also
Faoro, 2014 WL 5654330, at *3-4 (distinguishing Dr. Kinsbourne’s contributions in the case
from his contributions in Simon to hold that a $500 hourly rate was unreasonable in Faoro). As
a result, Dr. Kinsbourne did not provide his expertise as efficiently as compared to his
contributions in Simon, and thus did not warrant a $500 hourly rate. See Fees Decision at 25-
26.14 The chief special master did not abuse her discretion in reaching this decision.
2. Dr. Daniel Becker.
Attorneys in vaccine cases have an obligation to “monitor the expert’s overall fees to
ensure that the fees remain reasonable.” Caves, 111 Fed. Cl. at 781 (internal quotation marks
and citations omitted). “A special master can decline to award compensation to an expert if the
petitioner failed to provide a sufficient explanation of the expert’s qualifications or the work that
the expert performed.” O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL
2399211, at *15 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (citations omitted).
Furthermore, petitioners bear the burden of showing that the costs expended were
reasonable. Caves, 111 Fed. Cl. at 782. In meeting this burden, petitioners must provide
“reasonably specific documentation” to support the costs requested. Ceballos, 2004 WL 784910,
at *13 (quoting Community Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1146 (Fed. Cir.
1993)); see also Valdes, 89 Fed. Cl. at 424 (“Several tasks lumped together with one time entry
frustrates the court’s ability to assess the reasonableness of the request.”) (quoting Broekelschen,
2008 WL 5456319, at *4-5). The special master may reduce the requested award accordingly if
the documentation is inadequate. Bell v. Sec’y of Health & Human Servs., 18 Cl. Ct. 751, 760
(1989) (citations omitted); see also Mostovoy, 2016 WL 720969, at *6 (“[T]he undersigned will
not compensate Mr. McHugh for the 347.65 hours for which the billing entries are vague, the
time expended is excessive, the task appears irrelevant to petitioners’ medical theory, and/or the
billing entry constitutes block billing.”).
Here, petitioners failed to provide detailed billing records for Dr. Becker, former Chief
Special Master Vowell found by a preponderance of the evidence that Dr. Becker plagiarized his
expert report, and former Chief Special Master Vowell did not rely on Dr. Becker’s opinion in
making a determination in the case. See Fees Decision at 26-28; Raymo, 2014 WL 1092274, at
*13-14. Petitioners had the burden of demonstrating that Dr. Becker’s fees and contributions to
the case were documented and reasonable. The chief special master adequately explained that
petitioners did not meet this burden, and thus she did not abuse her discretion in not allowing any
recovery for Dr. Becker’s costs.
3. Life care planners.
14Dr. Kinsbourne billed only 31.75 hours in Simon. 2008 WL 623833, at *8. In contrast,
he billed 68.20 hours in this case. Fees Decision at 25.
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Petitioners bear the burden of establishing that a cost is reasonable and providing
sufficient documentation, as discussed supra. Here, petitioners provided billing statements for
the life care planners, but those statements failed to adequately explain the hours spent on the
case, rate charged, or work performed. Fees Decision at 28. The lack of detailed billing
information made it “impossible to determine the reasonableness of the time expended by the life
care planners.” Id. at 29. Additionally, the life care planners requested hourly rates above $500
per hour, which is higher than the chief special master had ever previously awarded. Id. at 28-
29. Given the vague documentation and excessive rates, the chief special master did not abuse
her discretion in reducing the life care planners’ costs by 50 percent.
4. Travel expenses.
Petitioners challenge the chief special master’s decision to reduce certain travel expenses
as arbitrary, and argue that the travel accommodations used were more reasonable than any
available alternatives.
The chief special master provided a specific explanation as to why a reduction was
appropriate. She considered petitioners’ use of a charter flight and “Little Rock Limousine” to
be excessive. Fees Decision at 31. A decision not to award costs for travel expenses is
appropriate when petitioner fails to show that the expenses were reasonably necessary. See
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 732 (2011) (affirming the
special master’s disallowance of expenses related to an attorney’s first day of travel because the
attorney chose to arrive one day earlier than was required); Hines, 22 Cl. Ct. at 755 (affirming
the special master’s disallowance of certain travel expenses by an attorney because the attorney
failed to demonstrate that the trip was necessary). Petitioners assert that the travel expenses at
issue were reasonable and cheaper than the alternative, but fail to provide any support for their
claim. See Hines, 22 Cl. Ct. at 755 (holding that petitioner failed to justify travel expenses
related to a hearing because petitioner only provided a “bald allegation” that it was necessary for
multiple attorneys to be involved at the hearing). Thus, the chief special master did not abuse
her discretion.
5. Interest.
Finally, petitioners’ challenge the chief special master’s decision not to allow any costs
related to the interest accumulated on petitioners’ loan. Pet’rs’ Mem. at 17-18. The chief
special master concluded that an interest award was unreasonable. Fees Decision at 31.
As a general matter, “interest cannot be recovered in a suit against the [g]overnment in
the absence of an express waiver of sovereign immunity from an award of interest.” Preseault v.
United States, 52 Fed. Cl. 667, 677 (2002) (quoting Library of Congress v. Shaw, 478 U.S. 310,
311 (1986), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-
166, § 114, 105 Stat. 1071 (1991)). This “no-interest rule” can only be waived by a specific
provision in a contract or statute, or by the express consent of Congress. England v. Contel
Advanced Sys., Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004) (citing Shaw, 478 U.S. at 317). “[A]
general waiver as to attorneys’ fees, without more, does not waive the sovereign’s immunity
from interest.” Preseault, 52 Fed. Cl. at 677 (citing Shaw, 478 U.S. at 318-19).
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Case 1:11-vv-00654-CFL Document 130 Filed 12/29/16 Page 17 of 17
The no-interest rule has been applied in the analogous context of the Uniform Relocation
Assistance and Land Acquisition Policies Act of 1970 (“Uniform Relocation Act”), Pub. L. No.
91-646, § 304, 84 Stat. 1906 (codified at 42 U.S.C. § 4654). Under the Uniform Relocation Act,
a prevailing plaintiff is entitled to reimbursement from the government for, among other things,
reasonable attorneys’ fees and costs. 42 U.S.C. § 4654(c). However, the Act does not expressly
provide for reimbursement of accumulated interest. See id.; see also Preseault, 52 Fed. Cl. at
670; Shelden v. United States, 41 Fed. Cl. 347, 351 (1998), appeal dismissed, 194 F.3d 1330
(Fed. Cir. 1999). Thus, consistent with the no-interest rule, courts addressing Section 4654
under the Uniform Relocation Act have not awarded claims for interest on attorneys’ fees or
costs. See Preseault, 52 Fed. Cl. at 677 (noting that plaintiffs cannot recover interest on
attorneys’ fees and expenses); Shelden, 41 Fed. Cl. at 353 (“[P]laintiffs cannot recover interest
on fees spent litigating the case.”); see also Applegate v. United States, 52 Fed. Cl. 751, 770-71
(2002) (noting that although the Fifth Amendment provides for interest related to the property at
issue, it does not allow for the recovery of interest on attorneys’ fees and expenses), aff’d, 70
Fed. Appx. 582 (Fed. Cir. 2003). Correlatively, the no-interest rule has also been applied in
contract disputes. See England, 384 F.3d at 1379 (“The [no-interest] rule has been held not only
to bar the recovery of interest on substantive claims against the government . . . but also interest
costs incurred on money borrowed as a result of the government’s breach or delay in payment.”)
(internal citations omitted).
Here, similar to the Uniform Relocation Act, the Vaccine Act provides for reasonable
attorneys’ fees and costs, but does not provide for an award related to interest accumulated on
those fees and costs. See 42 U.S.C. § 300aa-15. Though petitioners request costs for interest on
a loan to finance the case, rather than interest on attorneys’ fees, the same no-interest principle is
applicable because there is no provision, whether by statute, contract, or consent of Congress,
that allows for such an award. Thus, the chief special master did not abuse her discretion in not
awarding any costs for interest.
CONCLUSION
For the reasons stated, petitioners’ motion for review of the chief special master’s
decision awarding attorneys’ fees and costs is DENIED, and the chief special master’s decision
on attorneys’ fees and costs is AFFIRMED.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
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