VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-00853
Package ID: USCOURTS-cofc-1_14-vv-00853
Petitioner: Norma Monge-Landry
Filed: 2014-05-19
Decided: 2025-01-29
Vaccine: influenza
Vaccination date: 2011-09-19
Condition: new onset of seronegative rheumatoid arthritis (RA) with residual injuries lasting for more than six months and to the present day
Outcome: unclear
Award amount USD: 

AI-assisted case summary:
Norma Monge-Landry received a seasonal influenza vaccination on September 19, 2011. She filed a petition under the National Vaccine Injury Compensation Program on May 19, 2014, alleging that the flu vaccine caused the new onset of seronegative rheumatoid arthritis with residual injuries. The case has involved multiple interim awards of attorneys' fees and costs, with the latest decision on January 29, 2025, granting a third interim award of $137,774.03. The proceedings have included entitlement hearings in Boston and San Francisco, expert testimony from Dr. Utz and Dr. Axelrod, and extensive post-hearing briefing. The ultimate outcome regarding entitlement and compensation has not yet been determined as of the latest filing.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-00853-0
Date issued/filed: 2019-04-22
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 3/26/19) regarding 142 DECISION of Special Master - Interim Attorneys' Fees. Signed by Special Master Thomas L. Gowen. (kb) Service on parties made.
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Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 26, 2019
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
NORMA MONGE-LANDRY, *
* No. 14-853V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Interim Award; Adjustment of
* Counsel’s Hourly Rates; Billing
Respondent. * of Simple Tasks; Travel Time.
* * * * * * * * * * * * * * * * * * *
Elaine W. Sharp, Whitfield, Sharp, and Sharp, LLC, Marblehead, MA, for petitioner.
Camille C. Collett, United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On March 12, 2019, Norma-Monge-Landry (“petitioner”) filed her first motion for
interim attorneys’ fees and costs. Petitioner’s Interim Application (“Pet. Int. App.”) (ECF No.
136). For the reasons discussed below, the undersigned hereby GRANTS petitioner’s motion
and awards a total of $173,476.39 in interim reasonable attorneys’ fees and costs.
I. Procedural History
Petitioner received a seasonal influenza (“flu”) vaccination on September 19, 2011. On
May 19, 2014, petitioner, through her current counsel of record, filed a timely petition under the
National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner claims that
the flu vaccine caused her to develop the new onset of seronegative rheumatoid arthritis (“RA”)
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
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)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.

Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 2 of 7
with residual injuries lasting for more than six months and to the present day. Id.; see also
Amended Petition filed May 26, 2016 (ECF No. 32) at ¶ 19.
After petitioner filed the claim, I directed the parties to both pursue the possibility of
settlement and proceed on a litigation track. On February 26, 2015, petitioner filed Dr. Leonard
Worten’s first report in which he summarized petitioner’s medical history and supported vaccine
causation. Petitioner’s Exhibit (“Pet. Ex.”) 5. On May 2, 2016, petitioner filed Dr. Paul J. Utz’s
first report in which he opined that petitioner developed new onset seronegative RA as a direct
result of the flu vaccination. Pet. Ex. 9. On November 14, 2016, respondent filed a report
recommending against compensation pursuant to Vaccine Rule 4(c). Respondent’s Report (ECF
No. 40). Respondent also filed Dr. Mehrdad Matloubian’s first report in which he questioned the
diagnosis of RA and furthermore, opined that flu vaccine cannot cause that condition. Resp. Ex.
A. On November 16, 2016, I encouraged further settlement discussions, but also allowed the
parties to file supplemental expert reports. Order (ECF No. 46).
On April 17, 2017, petitioner filed Dr. Utz’s second report. Pet. Ex. 20. On July 18,
2017, I set the case for an entitlement hearing, while continuing to encourage informal
resolution. Hearing Order (ECF No. 66). On September 29, 2017, respondent filed Dr.
Matloubian’s second report. Resp. Ex. C. Respondent also filed Dr. J. Lindsay Whitton’s first
report. Resp. Ex. D. On February 24, 2018, petitioner filed Dr. Utz’s third report. Pet. Ex. 76.
On March 8, 2018, during a status conference, I reviewed the reports to date and again
encouraged settlement. Order (ECF No. 78).
The case proceeded towards an entitlement hearing. On January 3, 2019, petitioner filed
her pre-hearing brief (ECF No. 94). Respondent’s deadline to file a pre-hearing brief was
suspended during a lapse in DOJ appropriations lasting from December 22, 2018 – January 28,
2019. On January 30, 2019, during a pre-hearing status conference, I indicated that I would not
require respondent to submit a pre-hearing brief or require the parties to submit a joint
submission of the facts and issues that are stipulated and those that remained to be resolved.
Order (ECF No. 102). On February 6, 2019, respondent filed a pre-hearing brief, which provides
that “Dr. Matloubian now agrees that there is record evidence to support petitioner’s diagnosis of
seronegative rheumatoid arthritis.” Resp. Pre-Hearing Brief (ECF No. 108) at 4-5. However,
Dr. Matloubian (as well as Dr. Whitton and respondent) oppose compensation for other reasons
detailed therein. Id. at 5-7.
On February 11-12, 2019, proceedings in an entitlement hearing took place in Boston,
Massachusetts. Petitioner’s counsel presented fact testimony from petitioner (with assistance
from a translator), her daughter, and her son. Petitioner’s counsel then presented expert
testimony from Dr. Utz. Respondent cross-examined all of petitioner’s witnesses but did not
begin respondent’s case. At the end of the time available, the parties and I determined it was
necessary to reconvene for a continuation of the hearing. That has now been set for May 21-22,
2019 in San Francisco, California (for the convenience of the three expert witnesses, who are all
based in California). See Order filed February 13, 2019 (ECF No. 125); Hearing Order filed
February 28, 2019 (ECF No. 132), Transcript filed March 11, 2019 (ECF Nos. 134-35).
2

Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 3 of 7
On March 12, 2019, petitioner filed the instant motion for an interim award of reasonable
attorneys’ fees and costs. Pet. Int. App. (ECF No. 136). She requests $120,223.70 in attorneys’
fees and $60,203.04 in attorneys’ costs, for a total interim request of $180,426.74. Id. at 1-2.3
On March 22, 2019, respondent filed a response to petitioners’ application for interim attorneys’
fees and costs. Resp. Response (ECF No. 141). Respondent “leaves it to the Special Master’s
discretion to determine whether the statutory requirements for an award of attorneys’ fees and
costs are met” and if those requirements are met, to determine what award of attorneys’ fees and
costs would be reasonable. Resp. Response at 2. Petitioner has not filed a reply.4 Thus, this
matter is now ripe for review.
II. Entitlement to Attorneys’ Fees and Costs
A. General Legal Standard
The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012). In light of the lack of specific objections from respondent and my
full review of the evidence, I find that this claim was filed with and has maintained good faith
and reasonable basis to date.
B. Interim Awards
Section 15(e) of the Vaccine Act permits an award of reasonable attorneys’ fees and
costs. In addition, the Vaccine Act permits interim attorneys’ fees and costs. See Avera, 515
F.3d at 1352; Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). When a
petitioner has yet to prove entitlement, the special master may grant an interim award of
reasonable attorneys’ fees and costs if the special master “determines that the petition was
brought in good faith and there was a reasonable basis for the claim.” § 15(e)(1)(B); Sebelius v.
Cloer, 133 S. Ct. 1886, 1893 (2013). I find that this claim was brought in good faith and with a
reasonable basis.
In Shaw, the Federal Circuit held that it was proper to grant an interim award when “the
claimant establishes that the cost of litigation has imposed an undue hardship.” 609 F.3d at
3 Petitioner separates these costs out as $4,178.04 incurred directly by petitioner’s counsel; $12,750.00 billed by Dr.
Worden; and $43,275.00 billed by Dr. Utz. Pet. Int. App. at 1-2.
4 Pursuant to Vaccine Rule 20, a petitioner has the right to file a reply within 7 days of a response to an application
for attorneys’ fees and costs. Please note that in a case (like this one) where respondent does not raise any specific
objections and generally recommends that the special master exercise his discretion, the undersigned special master
does not particularly need to receive a reply from the petitioner. However, petitioner may file a reply to raise
additional arguments, if any exist, or simply to confirm that the matter is ripe for adjudication.
3

Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 4 of 7
1375. In Avera, the Federal Circuit stated that “[i]nterim fees are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. I
do not routinely grant interim fee applications. I generally defer ruling on an interim fee
application if: the case has been pending for less than 1.5 years (measured from the date of
filing); the amount of fees requested is less than $30,000; and/ or the aggregate amount of expert
costs is less than $15,000. If any one of these conditions exists, I generally defer ruling until
these thresholds are met or until an entitlement hearing has occurred. These are, however, only
informal requirements, and there are ultimately many factors bearing on the merit of an interim
fee application. I evaluate each one on its own merits.
I find an award of interim attorneys’ fees and costs to be appropriate at this time. The
claim has been pending in the Vaccine Program for almost five years and in fact, petitioner’s
counsel has been working to develop the claim for almost seven years. She has documented
well over the threshold amounts for attorneys’ fees and costs which I require before making
interim awards. Petitioner’s counsel has represented informally to myself, my law clerk, and
respondent’s counsel that continuing in this case without an interim award would cause
substantial hardship to her firm. This representation is plausible given the small size of her firm.
I also recognize the likelihood that this case will not be resolved for some time. A
continuation of the entitlement hearing is set for May 21-22, 2019 (which will generate
additional fees and costs). This will likely be followed by post-hearing brief and an opinion on
entitlement. If petitioner is found entitled to compensation, it will take additional time to resolve
damages. For these reasons, I find it appropriate to award interim attorneys’ fees and costs at
this time.
III. Reasonable Attorneys’ Fees and Costs
A. Legal Standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. 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. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
4

Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 5 of 7
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
B. Hourly Rates
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon the experience of the practicing attorney.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept.
21, 2015). The Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate
Fee Schedules for 2015-2016, 2017, 2018, and 2019 can be accessed online.5
In this case, petitioner asks that her attorney of record, Ms. Elaine Sharp, receive $370
per hour for work performed in 2012, with increases to $380 in 2013 and 2014, $390 in 2015,
$415 in 2016, $424 in 2017, $455 in 2018, and $464 in 2019. See Pet. Int. App., Tab 1.
Petitioner requests that attorney Mr. Randy M. Hitchcock also receive $464 for his limited work
related to the entitlement hearing in 2019. Id. at 90, 97-99. These requested rates are not
addressed in petitioner’s application or any supporting affidavits or other materials.
I have only had occasion to award attorneys’ fees and costs to Ms. Sharp and Mr.
Hitchcock in the context of a fee stipulation jointly submitted by the petitioner and the
respondent. Copperthite v. Sec'y of Health & Human Servs., No. 11-457V, 2015 WL 7074699
(Fed. Cl. Spec. Mstr. Oct. 20, 2015); Edgar v. Sec'y of Health & Human Servs., No. 14-1098V,
2015 WL 6797405 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Since I issued McCulloch, other special
masters have had occasion to review Ms. Sharp and Mr. Hitchcock’s attorneys’ fees. They have
been found entitled to forum rates, since they practice in the Boston, Massachusetts metropolitan
area (like the attorneys at issue in McCulloch). However, Ms. Sharp and Mr. Hitchcock’s
requested rates have been repeatedly reduced. See, e.g., Keenan v. Sec'y of Health & Human
Servs., No. 17-189V, 2018 WL 2772307 (Fed. Cl. Spec. Mstr. May 2, 2018); Peterson v. Sec'y of
Health & Human Servs., No. 16-1296V, 2018 WL 1310875 (Fed. Cl. Spec. Mstr. Feb. 8, 2018);
Sclafani v. Sec'y of Health & Human Servs., No. 16-737V, 2017 WL 5381271 (Fed. Cl. Spec.
Mstr. Oct. 11, 2017); Lemaire v. Sec'y of Health & Human Servs., No. 13-681V, 2016 WL
5224400 (Fed. Cl. Spec. Mstr. Aug. 12, 2016).
I do not see reason to diverge from these past decisions. Accordingly, Ms. Sharp is
awarded $370 per hour for 2012, followed by increases to $380 for 2013-2015, $390 for 2016,
5 United States Court of Federal Claims – OSM Attorneys’ Forum Hourly Rate Fee Schedules, available at
http://www.cofc.uscourts.gov/node/2914 (last accessed on March 25, 2019).
5

Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 6 of 7
$400 for 2017, and $423 for 2018.6 For 2019, Ms. Sharp is awarded $4567 and Mr. Hitchcock is
awarded $415.8 This results in a deduction of $4,638.65 from the fee request.
C. Hours Expended
As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness 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.
In this case, petitioner has also provided one chronological list of the entries from all
individuals above, which is helpful while evaluating whether the total hours expended are
reasonable. Pet. Int. App., Tab 2. The billing record provides the date, detailed description(s) of
the task(s) performed, the requested rate, and time expended. Based on my experience and my
familiarity with the work performed in this case, the attorneys’ fees requested are generally
reasonable. However, there are some grounds for reduction.
First, Ms. Sharp consistently billed simple tasks, such as reviewing non-PDF orders that
grant extensions of time or set straightforward deadlines, in increments of at least two-tenths of
an hour. See, e.g., Pet. Int. App., Tab 2 at 13, 17, 18-19, 20, 21, 22, 27, 28, 52, 53, 55, 68, 92
100. In the undersigned’s experience, tasks of this nature are typically billed at 0.1 hours, if they
are billed at hours. Billing in minimum increments greater than 0.1 hours is not permitted in the
Vaccine Program. See, e.g., Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019
WL 948371, at *3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019).
Additionally, Ms. Sharp and Mr. Hitchcock both billed their full 2019 rate for travel to
and from the entitlement hearing. See Pet. Int. App., Tab 2 at 97-100. The Vaccine Program
consistently awards travel time at 50% of an attorney or expert’s regular billing rate, absent proof
that the individual was working during that time. See, e.g., Hocraffer v. Sec’y of Health &
Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); see
also O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *18-19
(Fed. Cl. Spec. Mstr. April 28, 2015) (reducing a life care planner’s rate for travel time). For
these issues, I will deduct 2% of the fees requested, which calculates to $2,326.95.
6 See OSM Hourly Rate Fee Schedule for 2018. Special masters have found the Producer Price Index – Offices of
Lawyers (“PPI-OL”) to be persuasive as a measure of inflation when recalculating McCulloch rates for work
performed in subsequent years. Here, in the absence of any further information or arguments, I find the PPI-OL to
be persuasive in setting the individuals’ new rates for 2018 (and 2019, as addressed in a footnote below). On the
fee schedule, the following formula is provided: ([2017 rate] x [PPI-OL index for 2017]) / [PPI-OL index for
September 2015] = [2018 rate]. Accordingly, Ms. Sharp’s 2018 rate is as follows: ($400 x 211.4) / 200 = $422.80,
rounded up to $423.00.
7 See OSM Hourly Rate Fee Schedule for 2019. On the fee schedule, the following formula is provided: ([2018
rate] x [PPI-OL index for 2017]) / [PPI-OL index for September 2015] = [2019 rate]. Accordingly, Ms. Sharp ’s
2019 rate is as follows: ($423 x 215.8) / 200 = $456.40, rounded down to $456.
8 Mr. Hitchcock ’s 2019 rate is as follows: ($385 x 215.8) / 200 = $415.41, rounded down to $415.
6

Case 1:14-vv-00853-UNJ Document 145 Filed 04/22/19 Page 7 of 7
D. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira,
27 Fed. Cl. 29, 34. Here, petitioner requests $60,203.04 in interim attorneys’ costs including,
inter alia, the costs associated with the filing fee, medical records, color photocopies and
postage. The bulk of the costs are for the opinions of several experts, who provided well-
organized and detailed reports and testimony in the case. Pet. Int. App., Tabs 2-5. The Court
recognizes that the burden of carrying these substantial costs, particularly in a small firm, can be
quite heavy. If the experts have devoted considerable work on a case and have been awaiting
payment for a prolonged period of time, the Court should recognize these facts and award the
expert costs on an interim basis. In this case, the costs are reasonable and adequately
documented. Thus, they will be awarded.
IV. Conclusion
In accordance with the foregoing, petitioners’ application for interim attorneys’ fees and
costs is GRANTED. I find that she is entitled to the following reasonable attorneys’ fees and
costs at this time:
Interim Attorneys’ Fees Requested: $120,223.70
Reduction for attorney rates: - $ 4,638.65
Adjusted request: $115,585.05
2% reduction for billing practices and travel: - $ 2,311.70
Interim Attorneys’ Fees Awarded: $113,273.35
Interim Attorneys’ Costs Awarded: $60,203.04
Interim Attorneys’ Fees and Costs Awarded: $173,476.39
Accordingly, I award the following:
1) A lump sum in the amount of $173,476.39, representing reimbursement for
interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and her counsel, Elaine W. Sharp of Whitfield, Sharp & Sharp, LLC.
In the absence of a motion for reconsideration or review filed pursuant to RCFC
Appendix B, the Clerk of the Court is directed to enter judgment forthwith.9
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
9 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
7

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DOCUMENT 2: USCOURTS-cofc-1_14-vv-00853-1
Date issued/filed: 2020-07-23
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 6/30/20) regarding 174 DECISION of Special Master - Interim Attorneys' Fees Signed by Special Master Thomas L. Gowen. (kb) Service on parties made.
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Case 1:14-vv-00853-UNJ Document 177 Filed 07/23/20 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 30, 2020
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
NORMA MONGE-LANDRY, *
* No. 14-853V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Paralegal Tasks; Unreasonable
* Billing; Unnecessary Travel Time;
Respondent. * Unnecessary Travel Costs.
* * * * * * * * * * * * * * * * * * *
Elaine W. Sharp, Whitfield, Sharp & Sharp, LLC, Marblehead, MA, for petitioner.
Camille C. Collett, United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On April 21, 2020, Norma-Monge-Landry (“petitioner”) filed a motion for a second
interim award of attorneys’ fees and costs. Petitioner’s Second Interim Application (“Pet.
Second Int. App.”) (ECF No. 170). For the reasons discussed below, I hereby GRANT the
motion and award a total of $145,770.90.
I. Procedural History
Petitioner received a seasonal influenza (“flu”) vaccination on September 19, 2011. On
May 19, 2014, petitioner, through her current counsel of record, filed a timely petition under the
National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). I have previously
granted one award of interim attorneys’ fees and costs. That decision summarized the prior
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
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)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.

Case 1:14-vv-00853-UNJ Document 177 Filed 07/23/20 Page 2 of 8
procedural history including the entitlement hearing proceedings in Boston, MA on February 11-
12, 2019. I awarded attorneys’ fees incurred up to March 12, 2019, and expert fees and costs
incurred up to December 30, 2018. Monge-Landry v. Sec’y of Health & Human Servs., No. 14-
853v, 2019 WL 1771988 (Fed. Cl. Spec. Mstr. March 26, 2019). At that time, a continuation of
the entitlement hearing was scheduled to take place in San Francisco, CA on May 21-22, 2019.
Id. at *2.
On April 24, 2019, a status conference was held at the request of petitioner’s counsel,
who requested to reschedule the continuation of the entitlement hearing because she had not
received the check for the first award of interim attorneys’ fees and costs. I declined to do so.
Scheduling Order entered April 25, 2019 (ECF No. 146).
On May 14, 2019, I convened a pre-hearing status conference during which logistical
issues and respondent’s request for outstanding medical records were discussed. Scheduling
Order entered May 14, 2019 (ECF No. 152).
The entitlement hearing was reconvened in San Francisco, California on May 21-22,
2019 in San Francisco, California (for the convenience of the three expert witnesses, who are all
based in California). See Transcript (ECF Nos. 159-60). I allowed respondent to file any
supplemental expert reports addressing articles referenced by Dr. Utz during the hearing by June
28, 2019. See Scheduling Order entered June 10, 2019 (ECF No. 157); Scheduling Order entered
June 14, 2019 (Non-PDF). Respondent did not do so.
As discussed at the conclusion of the entitlement hearing in San Francisco, my
impression was that the parties and their respective experts could come to agreement on
numerous key facts and scientific/ medical concepts necessary to the correct resolution of this
complex case drawing from the record and the transcripts. Accordingly, I directed the parties to
file a joint post-hearing submission within 120 days after the transcript from San Francisco was
entered on the docket, by October 15, 2019. Scheduling Order entered June 10, 2019 (ECF No.
157); Scheduling Order entered June 14, 2019 (Non-PDF). The parties have received several
extensions of time to complete this task. The current deadline is for petitioner to convey the
proposed joint post-hearing submission to respondent by July 27, 2020, and for respondent to
propose a deadline for completion within 30 days thereafter. See generally ECF Nos. 161-69,
171, 173.
On April 21, 2020, petitioner filed the instant motion for a second interim award of
reasonable attorneys’ fees and costs. Pet. Second Int. App. (ECF No. 170). She requests
$46,785.50 in attorneys’ fees (incurred from March 12, 2019 to July 14, 2019) and $104,317.74
in attorneys’ costs including expert fees and costs (incurred from January 1, 2019 to July 14,
2019).3 Id. at 1-2. On May 22, 2020, respondent filed a response to petitioners’ application for
interim attorneys’ fees and costs. Resp. Response (ECF No. 172-1). Respondent “leaves it to
the Special Master’s discretion to determine whether the statutory requirements for an award of
attorneys’ fees and costs are met” and if those requirements are met, to determine what award of
3 Petitioner separates these out as $7,217.42 in costs incurred directly by petitioner’s counsel; $94,275.16 in Dr.
Utz’s fees in relation to the entitlement hearing; and $2,825.16 in costs incurred by Dr. Utz. Pet. Int. App. at 1-2.
2

Case 1:14-vv-00853-UNJ Document 177 Filed 07/23/20 Page 3 of 8
attorneys’ fees and costs would be reasonable. Resp. Response at 2. Petitioner has not filed a
reply.4 Thus, this matter is now ripe for review.
II. Entitlement to Attorneys’ Fees and Costs
A. General Legal Standard
The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012). In light of the lack of specific objections from respondent and my
full review of the evidence, I find that this claim was filed with and has maintained good faith
and reasonable basis to date.
B. Interim Awards
Section 15(e) of the Vaccine Act permits an award of reasonable attorneys’ fees and
costs. In addition, the Vaccine Act permits interim attorneys’ fees and costs. See Avera, 515
F.3d at 1352; Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). When a
petitioner has yet to prove entitlement, the special master may grant an interim award of
reasonable attorneys’ fees and costs if the special master “determines that the petition was
brought in good faith and there was a reasonable basis for the claim.” § 15(e)(1)(B); Sebelius v.
Cloer, 133 S. Ct. 1886, 1893 (2013). I find that this claim was brought in good faith and with a
reasonable basis.
In Shaw, the Federal Circuit held that it was proper to grant an interim award when “the
claimant establishes that the cost of litigation has imposed an undue hardship.” 609 F.3d at
1375. In Avera, the Federal Circuit stated that “[i]nterim fees are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. I
do not routinely grant interim fee applications. I generally defer ruling on an interim fee
application if: the case has been pending for less than 1.5 years (measured from the date of
filing); the amount of fees requested is less than $30,000; and/ or the aggregate amount of expert
costs is less than $15,000. If any one of these conditions exists, I generally defer ruling until
these thresholds are met or until an entitlement hearing has occurred. These are, however, only
informal requirements, and there are ultimately many factors bearing on the merit of an interim
fee application. I evaluate each one on its own merits.
4 Pursuant to Vaccine Rule 20, a petitioner has the right to file a reply within 7 days of a response to an application
for attorneys’ fees and costs. Please note that in a case (like this one) where respondent does not raise any specific
objections and generally recommends that the special master exercise his discretion, the undersigned special master
does not particularly need to receive a reply from the petitioner. However, petitioner may file a reply to raise
additional arguments, if any exist, or simply to confirm that the matter is ripe for adjudication.
3

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Petitioner has already received one interim award of attorneys’ fees and costs. Petitioner
has filed this second application for a second award of attorneys’ fees and costs approximately
fourteen (14) months afterwards, which requests well more than $30,000 in attorneys’ fees and
more than $15,000 in costs (most significantly expert fees). These are associated with the
continuation, for two additional days in a different geographic location, of an entitlement
hearing. Such a continuation of an entitlement hearing is not ideal, but was unfortunately
necessary in this case due to the complex issues presented and the challenges of time
management experienced by all involved. This continuation contributed to additional expense
and delay in resolution of the case. That said, all participants, particularly the experts, have
contributed greatly to my understanding of the issues and I hope that they can produce a joint
post-hearing submission that will inform a good result in this case. I do not want delayed
payment of the fees and costs, particularly those billed by petitioner’s expert immunologist, to
stand in the way of that goal. Accordingly, I find it appropriate to award further interim
attorneys’ fees and costs.
III. Reasonable Attorneys’ Fees and Costs
A. Legal Standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. 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. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
4

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B. Hourly Rates
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon the experience of the practicing attorney.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept.
21, 2015). The Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate
Fee Schedules for 2015 - 2020 can be accessed online.5
In this case, petitioner requests hourly rates of $456.00 for her attorney of record, Ms.
Elaine Sharp and $415.00 for Mr. Randy M. Hitchcock in 2019. See Pet. Second Int. App., Tab
1. I approved these rates in the first decision on interim attorneys’ fees and costs in this case and
will maintain them for this additional work in the same year.
C. Hours Expended
As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness 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.
The present fee application is for hours expended primarily by Ms. Sharp and secondarily
by Mr. Hitchcock from March 12, 2019 to July 14, 2019 (which includes the continuation of the
entitlement hearing on May 21-22, 2019). See generally Pet. Second Fee App. – Tab 1. The
majority of tasks are described in sufficient detail to be reviewed and appear reasonable.
However, there are several issues that merit a reduction from the fee request. First,
attorneys often delegate appropriate tasks to paralegals. An attorney may be compensated for
paralegal-type work, but only at a paralegal rate. See, e.g., Doe/11 v. v. Sec’y of Health &
Human Servs., No. XX-XXV, 2010 WL 59425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010)
(citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human
Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins v. Sec’y
of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *20-21 (Fed. Cl. Spec. Mstr.
June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535v, 20008 WL 747914, at
*5-7 (Dec. 23, 2008). Here, on March 16, 2019, Ms. Sharp billed 0.5 hours for “prepar[ing] and
fil[ing] additional medical records.” She recorded that this task should be billed at a paralegal
rate, but then inadvertently billed her regular attorney rate of $456.00 per hour, for a total of
$228.00. Pet. Second Fee App. – Tab 1 at 3. I agree that preparing and filing medical records
constitutes a task that should be billed at a paralegal rate, particularly when the attorney has
already billed separately at her regular rate for reviewing the records, as Ms. Sharp did here. The
same goes at least a portion of Ms. Sharp’s entry of 0.5 hours including both preparation and
5 United States Court of Federal Claims – OSM Attorneys’ Forum Hourly Rate Fee Schedules, available at
http://www.cofc.uscourts.gov/node/2914.
5

Case 1:14-vv-00853-UNJ Document 177 Filed 07/23/20 Page 6 of 8
filing of additional medical records, as well as follow up with the petitioner. Id. at 11.
Similarly, a paralegal rate should be applied to at least a portion of Ms. Sharp’s entry on
March 16, 2019 of 0.5 hours spent “uploading filed version of recently obtained medical records
to Dropbox (too large to email); prepared and sent cover email to Dr. Utz re: medical records
newly uploaded; also attached the order with exact location for hearing in May.” Pet. Second
Fee App. – Tab 1 at 3. The same goes for the following entry on May 11, 2019 of 3.0 hours:
“EWS extracted pages from exhibits referenced in direct for use at hearing; organized in a way to
make it most productive and easy for hearing.” Id. at 8.
As noted above, counsel should “exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. at 434. I have
noticed certain minor entries that should have been excluded. First, Ms. Sharp billed three
entries totaling 1.0 hour for scheduling, participating, and reviewing a subsequent order related
to a status conference on April 24, 2019. Pet. Second Fee App. – Tab 1 at 6. As noted above in
the procedural history, this status conference was requested by Ms. Sharp because she had not
received the first interim attorneys’ fees and costs check and as a result, she requested to
reschedule the continuation of the entitlement hearing. I do not find it reasonable for Ms. Sharp
to both raise this complaint (which was promptly addressed by the Court) and then bill for it.
The same goes for Ms. Sharp’s entry on July 11, 2019 of 0.1 hours spent exchanging emails with
my law clerk “re: confusion over a status conference.” Pet. Second Fee App. – Tab 1 at 18. This
pertains to Ms. Sharp’s inadvertent calendaring of a status conference that had already occurred
on July 11, 2018, see Status Conference Order entered on June 25, 2018 (Non-PDF). Again,
counsel’s concern was promptly addressed; it is excessive to also bill for this issue.
I also find that petitioner’s counsel billed excessive and/or unnecessary hours travelling
in relation to the continuation of the entitlement hearing on May 21-22, 2019. Ms. Sharp and
Mr. Hitchcock billed the time spent flying from Boston, Massachusetts (where their law firm is
based) to Sacramento, CA. Pet. Second Fee App. – Tab 1 at 11-12. They both billed to travel a
further 3.5 hours to San Francisco, California (where the continuation of the entitlement hearing
was held). Id. at 12-13. Mr. Hitchcock took a return flight out of San Francisco, but Ms. Sharp
drove back 3.5 hours to Sacramento, from which she flew back to Boston. Id. at 16. The fee
application does not aver that it was reasonable for counsel to travel through Sacramento. In
fact, Ms. Sharp initially requested to hold the entitlement hearing at a federal courthouse in
Sacramento, to allow her to visit her mother who was terminally ill, and who has since passed
away. While expressing my sincere condolences to counsel, it is not reasonable to bill the
Vaccine Program for time (or costs, as addressed below), that were not necessary and directly
related to this claim. I have previously deducted such fees and/or costs. See, e.g., Anderson v.
Sec’y of Health & Human Servs., No. 14-879v, 2020 WL 3495950 (Fed. Cl. Spec. Mstr. May 22,
2020); Forrest v. Sec’y of Health & Human Servs., No. 10-32v, 2018 WL 3029330 (Fed. Cl.
Spec. Mstr. May 22, 2018).
For the foregoing reasons and in the interest of rough justice, I find it appropriate to
deduct 10%, or $4,678.55, from the fee request.
6

Case 1:14-vv-00853-UNJ Document 177 Filed 07/23/20 Page 7 of 8
D. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira,
27 Fed. Cl. 29, 34. Here, petitioner requests $104,317.74 in interim attorneys’ costs. These are
separated into the costs stemming directly from petitioner’s counsel and from her expert Dr. Utz.
Petitioner’s counsel requests $7,217.42 in interim costs. Pet. Second Fee App. – Tab 2 at
1. A good proportion of these costs – including round-trip airfare, baggage charges associated
with case files, accommodations and meals in San Francisco limited to the dates of the
entitlement hearing, and obtaining the hearing transcript - are adequately documented and
reasonable.
However, additional costs incurred as a result of counsel’s personal choice to fly into
Sacramento, then travel to San Francisco where the hearing was located, are unreasonable. See
generally Pet. Second Fee App. – Tab 2. I will award the requested costs of the airfare and
baggage charges to Sacramento, as it is likely difficult to determine what it would have cost to
fly instead to San Francisco, particularly after the fact and in light of the COVID-19 pandemic’s
continued disruption of the airline industry. However, I will not award the costs for renting a car
($294.61), gasoline ($78.68; $25.43; $17.78), additional meals purchased during counsel’s travel
round-trip from Sacramento to San Francisco ($13.33; $3.90; $4.28); and Mr. Hitchcock’s need
to change his flight and travel separately out of San Francisco when he fell unexpectedly ill on
the second day of the hearing ($109.00; $106.78). Id. at 2-6. This results in a deduction of
$653.79 from the fee request.
Petitioner’s expert Dr. Utz requests fees in the amount of $91,450.00. Pet. Second Fee
App. – Tab 3 at 6. This represents an hourly rate of $500.00, which I and other special masters
have previously found to be reasonable for Dr. Utz. Monge-Landry, 2019 WL 1771988; see
also, e.g., Parker v. Sec’y of Health & Human Servs., No. 14-979v, 2020 WL 1304182 (Fed. Cl.
Spec. Mstr. Feb. 7, 2020); Pankiw v. Sec’y of Health & Human Servs., No. 15-1082v, 2019 WL
6125005 (Fed. Cl. Spec. Mstr. Oct. 21, 2019); Tetlock v. Sec’y of Health & Human Servs., No.
10-56v, 2017 WL 5664257 (Fed. Cl. Spec. Mstr. Nov. 1, 2017). Dr. Utz billed 182.9 hours from
January 1, 2019 to May 23, 2019 (which includes preparation, travel, and participation in both
the original two-day entitlement hearing in Boston and the two-day continuation in San
Francisco). Based on Dr. Utz’s detailed invoices and my recollection of his testimony, I find that
this accurately reflects the time he dedicated to this case and is reasonable. Accordingly, Dr.
Utz’s invoices will be paid in full.
Dr. Utz also billed $2,825.16 in costs associated with the proceedings in Boston and San
Francisco. Pet. Second Fee App. – Tab 3 at 7-16. These costs are adequately documented and
reasonable and as a result, will be paid in full.
IV. Conclusion
In accordance with the foregoing, petitioners’ application for interim attorneys’ fees and
costs is GRANTED. I find that she is entitled to the following reasonable attorneys’ fees and
costs at this time:
7

Case 1:14-vv-00853-UNJ Document 177 Filed 07/23/20 Page 8 of 8
Interim Attorneys’ Fees Requested: $46,785.50
10% Reduction for Issues Detailed Above: - $4,678.55
Interim Attorneys’ Fees Awarded: $42,106.95
Interim Attorneys’ Costs Requested: $104,317.74
Reduction for Unnecessary Travel Costs: - $ 653.79
Interim Attorneys’ Costs Awarded: $103,663.95
Interim Attorneys’ Fees and Costs Awarded: $145,770.90
Accordingly, I award the following:
1) A lump sum in the amount of $145,770.90, representing reimbursement for
interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and her counsel, Elaine W. Sharp of Whitfield, Sharp & Sharp, LLC.
In the absence of a motion for reconsideration or review filed pursuant to RCFC
Appendix B, the Clerk of the Court is directed to enter judgment forthwith.67
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
6 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
7 As an additional note it is observed that petitioner’s counsel has been awarded substantial fees in this case to date.
While I recognize that I have assigned a significant additional task to both sides to come to agreement on as much of
the complex topics as possible and file a joint post-hearing submission in this case, petitioner’s counsel is strongly
encouraged to work efficiently and in a timely manner to complete this task in the near future.
8

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_14-vv-00853-2
Date issued/filed: 2025-08-28
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 01/29/2025) regarding 227 DECISION of Special Master - Interim Attorney's Fees Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
--------------------------------------------------------------------------------
Case 1:14-vv-00853-UNJ Document 230 Filed 08/28/25 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 29, 2025
* * * * * * * * * * * * * * * * * * *
NORMA MONGE-LANDRY, *
* No. 14-853V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * *
Elaine W. Sharp, Whitfield, Sharp & Sharp, LLC, Marblehead, MA, for petitioner.
Camille C. Collett, United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On September 20, 204, Norma Monge-Landry (“petitioner”), filed a motion for a third
interim award of attorneys’ fees and costs. Petitioner’s Notice of Filing Interim Fee (ECF No.
225). For the reasons discussed below, I hereby GRANT the petitioner’s request and find that
an award of $137,774.03 is reasonable for interim attorneys’ fees and costs.
I. Procedural History
Petitioner received a seasonal influenza (“flu”) vaccination on September 19, 2011. On
May 19, 2014, petitioner, through her current counsel of record, filed a timely petition under the
National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). I have previously
granted two interim attorneys’ fees and costs motions. Those decision summarized the prior
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
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)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.

Case 1:14-vv-00853-UNJ Document 230 Filed 08/28/25 Page 2 of 6
procedural history including the entitlement hearing proceedings in Boston, MA on February 11-
12, 2019 and the continuation of the hearing in San Francisco, CA on May 21-22, 2019. See
Monge-Landry v. Sec’y of Health & Human Servs., No. 14-853v, 2019 WL 1771988 (Fed. Cl.
Spec. Mstr. March 26, 2019); Monge-Landry v. Sec’y of Health & Hum. Servs., No. 14-853V,
2020 WL 4219821 (Fed. CL. Spec. Mstr. June 30, 2020).
Since the hearing, petitioner filed a supplemental expert report from her expert, Dr. Utz
and all post-hearing briefing, albeit with multiple extensions of time. See Petitioner’s Exhibit
(“Pet’r Ex.”) 69 (ECF No. 200); Pet’r Post-Hearing Brief (ECF NO. 209). Respondent also filed
his post-hearing brief. Respondent (“Resp’t”) Post-Hearing Br. (ECF No. 212). Petitioner filed
her reply to respondent’s brief on January 17, 2023. Pet’r Reply Br. (ECF No. 219). On
November 16, 2023, after petitioner’s expert attempted to seek reimbursement for his final report
that was filed in 2021, I held a status conference and requested that petitioner file a motion for
interim attorneys’ fees and costs which incorporated Dr. Utz’s invoice. Scheduling Order (ECF
No. 224). Approximately 10 months later, petitioner filed this interim fees motion, requesting a
total of $116,469.50 in attorneys’ fees and $27,228.00 in costs for petitioner’s experts. See Pet’r
Notice of Filing Interim Fee Petition (“Pet’r Int. Fee Mot.”) (ECF No. 225). Respondent filed a
response on October 18, 2024 stating, “Should the Special Master conclude that a [third] award
of interim fees and costs is appropriate, respondent respectfully recommends that the Special
Master exercise his discretion and determine a reasonable award for attorneys’ fees and costs.”
Resp’t Response at 3. Petitioner did not file a reply to respondent’s response.
This matter is now ripe for adjudication.
II. Entitlement to Attorneys’ Fees and Costs
A. General Legal Standard
The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012). In light of the lack of specific objections from respondent and my
full review of the evidence, I find that this claim was filed with and has maintained good faith
and reasonable basis to date.
B. Interim Awards
Section 15(e) of the Vaccine Act permits an award of reasonable attorneys’ fees and
costs. In addition, the Vaccine Act permits interim attorneys’ fees and costs. See Avera, 515
F.3d at 1352; Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). When a
petitioner has yet to prove entitlement, the special master may grant an interim award of
reasonable attorneys’ fees and costs if the special master “determines that the petition was

Case 1:14-vv-00853-UNJ Document 230 Filed 08/28/25 Page 3 of 6
brought in good faith and there was a reasonable basis for the claim.” § 15(e)(1)(B); Sebelius v.
Cloer, 133 S. Ct. 1886, 1893 (2013). I find that this claim was brought in good faith and with a
reasonable basis.
In Shaw, the Federal Circuit held that it was proper to grant an interim award when “the
claimant establishes that the cost of litigation has imposed an undue hardship.” 609 F.3d at
1375. In Avera, the Federal Circuit stated that “[i]nterim fees are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. I
do not routinely grant interim fee applications. I generally defer ruling on an interim fee
application if: the case has been pending for less than 1.5 years (measured from the date of
filing); the amount of fees requested is less than $30,000; and/ or the aggregate amount of expert
costs is less than $15,000. If any one of these conditions exists, I generally defer ruling until
these thresholds are met or until an entitlement hearing has occurred. These are, however, only
informal requirements, and there are ultimately many factors bearing on the merit of an interim
fee application. I evaluate each one on its own merits.
Petitioner has already received two interim award of attorneys’ fees and costs. Petitioner
has filed this third application for an award of attorneys’ fees and costs approximately four years
after an award of the last interim attorneys’ fee award, which requests well more than $30,000 in
attorneys’ fees and more than $15,000 in costs (most significantly expert fees). The attorneys’
fees appear to be in association with brief drafting and requesting motions for extensions of time
and costs for petitioner’s experts. As one of petitioner’s experts, Dr. Utz sought to get his final
invoice paid prior to petitioner’s attorney filing this third interim fee request, I do not want to
delay any payment of his costs, even though they may be more suitable for a final attorneys’ fees
request. Accordingly, I find it appropriate to award interim attorney’s fees and costs.
III. Reasonable Attorneys’ Fees and Costs
A. Legal Standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. 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. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.

Case 1:14-vv-00853-UNJ Document 230 Filed 08/28/25 Page 4 of 6
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
B. Hourly Rates
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon the experience of the practicing attorney.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept.
21, 2015). The Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate
Fee Schedules for 2020-2024 can be accessed online.3
This case involved four days of hearings and a complex record. The post hearing work in
part reflected an assignment I gave to the parties to attempt to have the experts narrow the issues
and to agree on at least some elements of the conflicting expert testimony. As such the post
hearing work involved more than the usual amount of time that is expended in this phase of the
case.
In this case, petitioner requests hourly rates of $445.00 for her attorney of record, Ms.
Elaine Sharp; $470.00 for work performed in 2021; $495.00 for work performed in 2022;
$520.00 for work performed in 2023; and $545.00 for work performed in 2024. Pet. Int. Fee
Mot. Ex. 70. Ms. Sharp’s hourly rates requested for 2021-2022 is consistent with what she has
been awarded by other special masters and I find those rates to be reasonable. See Kite v. Sec’y
of Health & Hum. Servs., No. 18-1663V, 2023 WL 3563127 (Fed. Cl. Spec. Mstr. May 19,
2023). Ms. Sharp’s requested hourly rates for 2023 and 2024 falls within the Vaccine Program’s
published hourly range for attorneys with her level of experience and shall be awarded without
any adjustments.
C. Hours Expended
As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness 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.
3 United States Court of Federal Claims – OSM Attorneys’ Forum Hourly Rate Fee Schedules, available at
https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules

Case 1:14-vv-00853-UNJ Document 230 Filed 08/28/25 Page 5 of 6
The present fee application does include an invoice and a majority of the tasks are
described in sufficient detail to be reviewed and appear reasonable. However, some of the
entries appear to be excessive. Counsel should “exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. at
434. I have noticed certain entries, such as reviewing non-pdf orders are billed at 0.2 hours and
then set a deadline on her own calendar, which are excessive, given the number of total
extensions that petitioner herself requested. For example, on September 8, 2020, April 22, 2021,
March 22, 2021, May 9, 2022, August 24, 2022, September 23, 2022, October 28, 2022,
November 10, 2022, November 22, 2022, November 29, 2022, petitioner’s attorney charged 0.2
hours for reviewing Non-Pdf orders from the Court granting extensions of time. See Pet’r Int.
Fee at 11-28. Special Masters, including myself, have reduced excessive billing for reviewing
non-pdf orders entered by the Court or for other simple and uncomplicated tasks. See Mohler v.
Sec’y of Health & Hum. Servs., No. 16-140V, 2018 WL 3989515, at *3 (Fed. Cl. Spec. Mstr.
July 2, 2018); Moritz v. Sec’y of Health & Hum. Servs., No. 15-965V, 2016 WL 8786193, at *4
(Fed. Cl. Spec. Mstr. Dec. 12, 2016) (reducing hours billed for non-substantive orders that
should not have taken more than a couple minutes in total to review). For these reasons, I find
it appropriate to deduct 5%, or $5,923.47, from petitioner’s interim fee request.
D. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira,
27 Fed. Cl. 29, 34. Here, petitioner requests $27,228.00 in costs, which are associated with the
final bill from Dr. Utz and for work performed by Dr. David Axelrod. See Pet’r Exs. 71 and 72.
Dr. Utz is requesting $7,300.00 for his final bill, at an hourly rate of $500.00 per hour. I
have previously found that Dr. Utz’s hourly rate to be reasonable in the two previous interim fees
decisions. See Monge-Landry, 2019 WL 1771922; Monge-Landry, 2020 WL4219821, at *5-6.
Dr. Utz billed an additional 14.6 hours for his work, which included a supplemental expert report
and assistance with reviewing the record to assist Ms. Sharp in drafting the post-hearing brief.
Based on Dr. Utz’s detailed invoices and his supplemental expert report, I find the total amount
he billed to be reasonable and will be paid in full.
Petitioner also filed an invoice from Dr. David Axelrod, seeking $19,928.00 at $400.00
per hour. Pet’r Ex. 72. While Dr. Axelrod did not submit an expert report in this matter or
testify for petitioner, it appears that he worked closely with petitioner’s counsel in drafting her
post-hearing briefs and reviewed respondent’s post-hearing expert reports. Dr. Axelrod’s rate of
$400.00 per hour has been found reasonable by myself, and other special masters in the program
and therefore, does not need to be adjusted. Further, his invoice provides sufficient details
regarding the time spent on each task. Accordingly, I find the total amount he billed to be
reasonable and will be paid in full.
IV. Conclusion

Case 1:14-vv-00853-UNJ Document 230 Filed 08/28/25 Page 6 of 6
In accordance with the foregoing, petitioners’ third application for interim attorneys’ fees
and costs is GRANTED. I find that she is entitled to the following reasonable attorneys’ fees
and costs at this time:
Interim Attorneys’ Fees Requested: $116,469.50
(Reduction for Excessive Billing) (-$5,923.47)
Interim Attorneys’ Fees Awarded: $110,546.03
Interim Attorneys’ Costs Requested: $27,228.00
(No Reduction) ($0.00)
Interim Attorneys’ Costs Awarded: $27,228.00
Total Interim Attorneys’ Fees and Costs: $137,774.03
Accordingly, I award the following:
A) A lump sum in the amount of $137,774.03, representing reimbursement for
interim attorneys’ fees and costs, to be paid through an ACH deposit to
petitioner’s counsel’s IOLTA account for prompt disbursement.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).