VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-00970
Package ID: USCOURTS-cofc-1_16-vv-00970
Petitioner: Abdolrahim Noorani
Filed: 2016-08-10
Decided: 2024-07-10
Vaccine: influenza
Vaccination date: 2015-09-30
Condition: Guillain-Barré syndrome and neurological injuries
Outcome: compensated
Award amount USD: 104692

AI-assisted case summary:
Abdolrahim Noorani filed a petition for compensation under the National Vaccine Injury Compensation Program on August 10, 2016, alleging that he suffered Guillain-Barré syndrome and neurological injuries as a result of an influenza vaccination received on September 30, 2015. This decision addresses a second motion for interim attorneys' fees and costs. The Special Master found that the petitioner would suffer undue hardship in the absence of an award due to the protracted proceedings, the retention of costly experts, and the impact of the COVID-19 pandemic. The petition was filed in good faith and with a reasonable basis, supported by extensive medical records and expert reports. The Special Master awarded $104,692.92 in interim attorneys' fees and costs. This award reflects adjustments to hourly rates for Ms. Gallagher and compensation for travel time, as well as full reimbursement for certain expert and miscellaneous costs, while deferring some expert costs for further clarification in prior decisions. The case is ongoing, with this decision focusing solely on interim legal expenses.

Theory of causation field:
unclear

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_16-vv-00970-0
Date issued/filed: 2022-03-14
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 1/20/2022) regarding 121 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Katherine E. Oler. (nvb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 1 of 12

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 2 of 12
No. 1. At the time, Petitioner was represented by Mr. Maximillian Muller of Muller Brazil, LLP.4
On April 20, 2021, Petitioner filed an application for interim attorneys’ fees and costs,
requesting $97,898.70 in fees and $3,360.69 in costs related to the work of Ms. Carol Gallagher
and $22,743.50 in fees and $17,273.22 in costs related to the work of Muller Brazil. Fees App. at
6, ECF No. 110. On May 5, 2021, Respondent filed a response stating it is within my discretion to
award interim attorneys’ fees and costs. Fees Resp., ECF No. 103. Respondent “defers to [me] to
determine whether or not petitioner here has met the legal standard for interim fees and costs
award.” Id. at 2.
For the reasons discussed below, I hereby GRANT IN PART and DEFER IN PART5
Petitioner’s application and award a total of $111,719.32 in interim attorneys’ fees and costs to
Carol L. Gallagher and $27,087.22 in interim attorneys’ fees and costs to Muller Brazil, LLP.
I. Legal Standard
A. Interim Attorneys’ Fees and Costs
The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the
Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under
the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health
& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).
In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.
Likewise, in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of
litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is
proper for the special master to award interim attorneys' fees.” 609 F.3d at 1375. Avera did not,
however, define when interim fees are appropriate; rather, it has been interpreted to allow special
masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it
has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria
as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of
Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,
2015).
4 On October 3, 2017, Petitioner’s current attorney, Ms. Carol Gallagher, was substituted in as Petitioner’s
counsel of record. ECF No. 40.
5 I have explained in this Decision the information I require Petitioner to file in order to render a judgment
regarding deferred costs. Failure to provide this information in a subsequent final motion for attorneys’ fees
and costs will result in a denial of these costs.
2

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 3 of 12
A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the
special master finds that a petitioner has brought his petition in good faith and with a reasonable
basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &
Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.
Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,
2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL
1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more
than just financial involvement of a petitioner; it also looks at any money expended by a
petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special
Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees
[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.
B. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health
& Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such
a requirement is a “subjective standard that focuses upon whether petitioner honestly believed he
had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-544V,
2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad faith,
“petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum. Servs.,
36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that his claim could
succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs., No.
09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993
WL 496981, at *1); Turner, 2007 WL 4410030, at *5.
C. Reasonable Basis
Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a
petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at least
be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v.
Sec’y of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.
Nov. 3, 2015).
While the statute does not define the quantum of proof needed to establish reasonable basis,
it is “something less than the preponderant evidence ultimately required to prevail on one’s
vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of
Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no
evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found
that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to
establish reasonable basis. Id. at 290; see also Turpin v. Sec'y Health & Hum. Servs., No. 99-564V,
2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when
petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No.
99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis
when petitioner presented only e-mails between her and her attorney). The Federal Circuit has
affirmed that “more than a mere scintilla but less than a preponderance of proof could provide
sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health &
3

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 4 of 12
Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. Aug. 19, 2020) (finding Petitioner
submitted objective evidence supporting causation when she submitted medical records and a
vaccine package insert); see also James-Cornelius v. Sec'y of Health & Hum. Servs., 984 F.3d
1374, 1380 (Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation did
not by itself negate the claim's reasonable basis.”).
Temporal proximity between vaccination and onset of symptoms is a necessary component
in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to
establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.
The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded
that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable
basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed.
Cir. 2017). Further, an impending statute of limitations should not even be one of several factors
the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade,
altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in
determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health &
Hum. Servs., 138 Fed. Cl. 282, 289 (2018).
“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements
for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient
evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs., No.
15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award
compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by
medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal
Claims have interpreted this provision to mean that petitioners must submit medical records or
expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &
Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. Servs., 35
Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table
theory where medical records fail to establish a Table injury).
When determining if a reasonable basis exists, many special masters and judges consider
a myriad of factors. The factors to be considered may include “the factual basis of the claim, the
medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the
theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to
look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of
Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,
2007).
II. Discussion
A. Undue Financial Hardship
The parties are in the midst of informal settlement negotiations. Petitioner is currently
awaiting her Social Security Disability file from the Social Security Administration. Petitioner and
her counsel have been litigating this claim for more than five years and have incurred over one
4

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 5 of 12
hundred thousand dollars in attorneys’ fees and costs. Thus, I find it reasonable to award interim
fees and costs at this juncture to avoid any undue financial hardship.
B. Good Faith and Reasonable Basis
Respondent has not raised any specific objection to the good faith or reasonable basis for
this claim and leaves such a determination to my discretion. See Fees Resp. I find that the petition
was filed in good faith.
As discussed above, the threshold for reasonable basis is a much lower standard than the
burden to prove entitlement to compensation by preponderant evidence. In making a reasonable
basis determination, I must look at a totality of the circumstances, taking into account the factual
basis for the claim and the medical and scientific support offered. Petitioner has filed extensive
medical records in this case. See Exs. 1-28. Petitioner has also filed three expert reports. ECF Nos.
42, 64, 77. I find that Petitioner had a reasonable basis to file her claim.
As there is no other reason to deny the award of interim attorneys’ fees and costs, I will
award Petitioner’s reasonable fees and costs in this instance.
C. Attorneys’ Fees related to Carol L. Gallagher
Petitioner requests a total of $97,898.70 in attorneys’ fees. See Fees App. at 6.
1. Reasonable Hourly Rate
A reasonable hourly rate is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's
attorney.” Rodriguez v. Sec'y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349).
McCulloch provides the framework for determining the appropriate compensation for
attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Hum.
Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of
Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for
subsequent years.6
6 The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.
The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf.
5

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 6 of 12
Ms. Gallagher, requests to be compensated at a rate of $363 per hour for work performed
in 2017, $400 per hour for work performed in 2018, $400 per hour for work performed in 2019,
$424 per hour for work performed in 2020, and $424 per hour for work performed in 2021. See
Fees App. at 4. These rates are consistent with the Fee Schedule and with what Ms. Gallagher has
been awarded in the past. See Murray v. Sec’y of Health & Hum. Servs., No. 19-424V, 2021 U.S.
Claims LEXIS 883 (Fed. Cl. Spec. Mstr. May 10, 2017); Wunderler v. Sec'y of Health & Hum.
Servs., No. 19-1468V, 2020 U.S. Claims LEXIS 2873 (Fed. Cl. Spec. Mstr. Dec. 1, 2020); Walker
v. Sec’y of Health & Hum. Servs., 18-366V, 2020 U.S. Claims LEXIS 2610 (Fed. Cl. Spec. Mstr.
Nov. 24, 2020). I find the requested rates to be reasonable and that no adjustment is warranted.
2. Hours Reasonably Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion
to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work
done.” Saxton ex rel. Saxton v. Sec'y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993).
In exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen v. Sec'y of Health & Hum. Servs., 102 Fed.
Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours);
Guy v. Sec'y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (same). While attorneys may
be compensated for non-attorney-level work, the rate must be comparable to what would be paid
for a paralegal or secretary. See O'Neill v. Sec'y of Health & Hum. Servs., No. 08–243V, 2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Fees
App. Ex A. I find that although Ms. Gallagher has kept careful billing records, a reduction is
necessary due to time billed for administrative/secretarial tasks,7 duplicative billing,8 and
excessive client communication.
Billing for administrative tasks is not appropriate. See Rochester v. United States, 18 Cl.
Ct. 379, 387 (1989) (stating that services that are “primarily of a secretarial or clerical nature ...
should be considered as normal overhead office costs included within the attorneys' fee rates”);
see also Mostovoy v. Sec'y of Health & Hum. Servs., No. 02-10, 2016 WL 720969, at *5 (Fed.
Cl. Spec. Mstr. Feb. 4, 2016) (citing “reviewing invoices, setting up meetings, and making travel
arrangements” as examples of administrative tasks); Macrelli v. Sec'y of Health & Hum. Servs.,
No. 98–103, 2002 WL 229811, at *7 (Fed. Cl. Spec. Mstr. Jan. 30, 2002) (stating that “time spent
performing secretarial tasks is to be subsumed in the overhead costs of practicing law and is not
7 See, e.g., billing entry from 3/5/2018 reading “review of 3/02 email from client and attached information,
notes to file, dictation to secretary.” Fees App., Ex. A at 11. “Dictation to secretary” is not compensable
time. See also billing entry from 3/15/2018 reading “final review of Dr. Steinman’s report, dictation for
filing.” Fees App., Ex. A. at 12.
8 See, e.g., billing entry from 11/9/2019 stating “review of workers compensation information and decision
(36 pp.) with memorandum to file” for 1.20 hours and billing entry from 1/9/2020 stating “review of
workers compensation information with notes to file” for 1.30 hours;
6

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 7 of 12
reimbursable”); Isom v. Sec'y of Health & Hum. Servs., No. 94–770, 2001 WL 101459, at *2
(Fed. Cl. Spec. Mstr. Jan. 17, 2001) (agreeing with respondent that tasks such as filing and
photocopying are subsumed under overhead expenses). In addition, several of Ms. Gallagher’s
entries include time for attaching documents to emails or faxing documents. See, e.g., billing
entry of 3/25/2021 stating “preparation of email to client with attachment and input re: transcript”.
Fees Ap. Ex. A at 29.9 While I recognize that attaching large files to emails can be a lengthy
process, this is a secretarial task and therefore is not compensable.
I also will caution Ms. Gallagher to be cognizant of the time she spends on client
communication. For example, from 2018-2019, approximately 20% of Ms. Gallagher’s time was
spent communicating with her client, and from 2020-2021, approximately 28% of her time was
spent communicating with her client.10 This figure pushes at the boundaries of reasonable time
spent on client communication, and in the future, Ms. Gallagher should bill only for those client
communications necessary to advance the case.11 See e.g., Robinson v. Sec’y of Health & Hum.
Servs., No. 17-1848V, 2021 U.S. Claims LEXIS 364 at *6 (Fed. Cl. Spec. Mstr. Feb. 11, 2021)
(reducing counsel’s fees by 2% for excessive client communication); D.S. v. Sec’y of Health &
Hum. Servs., No. 10-77V, 2017 U.S. Claims LEXIS 1693 at *7-*8 (Fed. Cl. Spec. Mstr. Nov. 20,
2017) (reducing counsel’s fees by 10% for excessive client communication).
Based on the above, I therefore will reduce Ms. Gallagher’s requested fee amount by 10%,
for a reduction of $9,789.87.12
.
Total attorneys’ fees to be awarded: $88,108.83.
D. Reasonable Costs related to Carol Gallagher, Esquire, LLC.
9 See also billing entries from 10/6/2017, 10/13/2017, 10/16/2017, 10/19/2017, 3/5/2018, 5/23/2018,
7/3/2018, and 7/6/2018. This list is not a complete accounting of all administrative or secretarial billing
entries, but rather a representative sample.
10 I note that these figures do not include time spent communicating with Petitioner regarding his affidavit,
or regarding his worker’s compensation case.
11 For example, on July 6, 2018, Ms. Gallagher spent 0.20 hours to email her attachments and comments to
Dr. Steinman’s report to Petitioner, and 0.25 hours to email Petitioner Respondent’s expert report and her
comments. On July 8, 2018, Ms. Gallagher spent 0.15 hours to review Petitioner’s critique of Respondent’s
expert report and 0.10 hours to email Dr. Steinman Petitioner’s notes on Respondent’s expert report. Then
on 10/6/2020, Ms. Gallagher spent 1.40 hours on the telephone with Petitioner, then spent 0.25 hours on a
“follow up memorandum and email to confirm what I need (purpose of email is he has a heavy accent and
is not well understood.” On 10/8/2020, Ms. Gallagher spent 0.30 hours to prepare a “detailed email to client
with necessary information and confirmation of points discussed during 10/06 telephone communication.”
Fees App. Ex. A at 26, 27.
12 In making this reduction, I have also considered the overall reasonableness of the fees and costs request.
This case has been in settlement negotiations since September 3, 2020. No expert reports have been filed
since September 17, 2018. Based on my experience in reviewing similarly situated cases, I find that a 10%
reduction is appropriate both to correct for improper billing, and to reduce the hours billed to reflect the
complexity of the case.
7

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 8 of 12
Petitioner requests a total of $23,673.19 in costs, which includes obtaining medical records,
medical literature, postage costs, and expert witness fees. Fees App. Ex. A. at 8.
1. Petitioner’s Expert Costs
Petitioner requests $23,312.50 for work performed by Dr. Lawrence Steinman. Fees App.,
Ex. E at 3. Petitioner requests Dr. Steinman be compensated at $500.00 per hour for work done
from 2018-2019. Dr. Steinman has previously been awarded his requested rate and I see no reason
to disturb such a request. See Robinson v. Sec’y of Health & Hum. Servs., No. 14-952V, 2020 U.S.
Claims LEXIS 321 (Fed. Cl. Spec. Mstr. Jan. 17, 2020). Petitioner also requests that Dr. Steinman
be compensated at $550.00 an hour for work performed in 2020 and 2021. The top end of
compensation for experts in the Program is generally $500.00 an hour. See L.M. v. Sec’y of Health
& Hum. Servs., No. 14-714V, 2017 U.S. Claims LEXIS 1419 (Fed. Cl. Spec. Mstr. Sept. 29, 2017).
While Dr. Steinman's suggestion that his hourly rate increase if only to account for inflation
certainly merits consideration, this case is not overly complex. Dr. Steinman has opined that
Petitioner’s TM was caused by molecular mimicry, an opinion he has offered in at least thirteen
other cases. See, e.g., Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339 (Fed. Cl.
2010). I find that although Dr. Steinman may be entitled to $550.00 an hour in cases presenting
novel theories, a more appropriate rate of compensation in this case is his usual $500.00 an hour.
This will result in a total deduction of $62.70.
Dr. Steinman billed 43.75 hours hours between 2017-2018 to produce two expert reports
in this case. Exs. 30, 65. I find the time spent producing these reports to be reasonable and therefore
award these costs in full.
Dr. Steinman also spent 0.25 hours on September 24, 2018 on “response to email”, 0.75
hours on 12/11/2018 to review records, 1.25 hours on 4/22/2019 for review of an MRI and “email”,
0.75 hours on 6/16/2020 to review a UPenn Records, and 0.5 hours on 3/3/2021 to review “email
from [Carol] Gallagher and review of activities in case.” It is unclear why Ms. Gallagher asked Dr.
Steinman to conduct expert review while the case was in settlement discussions. While on this
occasion I will grant these fees, in the future, Ms. Gallagher should be cognizant of which stage of
litigation a case is in and provide clarity as to why expert consultation is needed during settlement
discussions.
Total expert costs awarded: 23,249.80.
2. Miscellaneous costs
I have reviewed Petitioner’s miscellaneous costs and supporting documentation and find
these costs to be reasonable. I therefore award them in full.
Total costs to be awarded: $23,610.49.
E. Attorneys’ Fees related to Muller Brazil, LLP
8

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 9 of 12
Petitioner requests a total of $22,743.50 in attorneys’ fees. See Fees App. Ex. B at 16.
1. Reasonable Hourly Rate
Petitioner’s attorneys request the following rates for work performed from 2016-2020:13
Attorney 2015 2016 2017
MJM (attorney) $255.00 $275.00 $300.00
MTL Paralegal $125.00 $125.00 $125.00
These rates are consistent with the Fee Schedule and with what attorneys and paralegals
from Muller Brazil have been awarded in the past. See B.E. v. Sec’y of Health & Hum. Servs., No.
15-1458V, 2019 U.S. Claims LEXIS 2210 (Fed. Cl. Spec. Mstr. Nov. 13, 2019). I find the
requested rates to be reasonable and that no adjustment is warranted.
2. Hours Reasonably Expended
Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Fees
App. Ex B. I find the hours to be largely reasonable, however I find a reduction is appropriate for
time billed for administrative tasks and overstaffing. See Sabella v. Sec’y of Health & Hum.
Servs., 86 Fed. Cl. 201. 214-15 (Fed. Cl. 2009) (affirming a special master's reduction of fees for
overstaffing where three attorneys from two different firms worked on the same case); Van
Vessem v. Sec'y of Health & Hum. Servs., No. 11-132V, 2018 U.S. Claims LEXIS 955, 2018 WL
3989517, at *7 (Fed. Cl. Spec. Mstr. July 3, 2018) (finding that "it is not reasonable for both an
attorney and a paralegal to bill for reviewing each filing in the case").
The attorney entries to be reduced from 2016 occur on 2/21/2016 (two entries totaling 0.5
hours),14 7/19/2016 (0.2 hours), 8/10/2016 (four entries totaling 0.4 hours), 8/19/2016 (0.1 hours),
8/23/2016 (0.1 hours), 9/7/2016 (two entries totaling 0.2 hours), 9/12/2016 (0.2 hours),
10/25/2016 (0.1 hours), 11/21/2016 (0.1 hours), and 12/1/2016 (0.1 hours), for a total reduction
of two hours, or $550.00.
The paralegal entries to be reduced from 2016 occur on 3/22/2016 (two entries totaling
0.4 hours), 3/31/2016 (two entries totaling 0.3 hours), 7/19/2016 (0.2 hours), 8/9/2016 (eight
entries totaling 1.7 hours), 10/25/2016 (0.1 hours), 10/31/2016 (0.1 hours), 11/14/2016 (three
entries totaling 0.6 hours), 12/8/2016 (four entries totaling 0.5 hours), and 12/9/2016 (two entries
13 I note that while Mr. Muller has not expressly stated that “MJM” is an attorney and “MTL” is a paralegal,
the rates charged for these individuals are consistent with what Mr. Muller has previously charged in other
cases. In the future, Mr. Muller should ensure his bills include a key to specify 1) whom a timekeeper is
and b) if that timekeeper is either an attorney or a paralegal.
14 Mr. Muller has billed two entries on 2/21/2016, each totaling 0.5 hours, to travel to a meeting with
Petitioner. Travel time may be billed at one-half of an attorney’s regular rate. See B.E., 2019 US. Claims
LEXIS 2210 at *23. I have therefore reduced these entries to 0.25 hours each, resulting in a total reduction
of 0.5 hours.
9

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 10 of 12
totaling 0.2 hours), for a total reduction of 4.1 hours, or $512.50.
The attorney entries to be reduced from 2017 occur on 1/23/2017 (0.1 hours), 2/23/2017
(0.1 hours), 3/24/2017 (0.1 hours), 4/21/2017 (0.1 hours), 5/9/2017 (two entries totaling 0.2
hours), 5/9/2017 (two entries totaling 0.2 hours), 5/12/2017 (0.1 hours), 6/1/2017 (0.1 hours),
8/17/2017 (0.1 hours), 9/15/2017 (0.1 hours) and 10/3/2017 (0.1 hours), for a total of 1.3 hours,
$390.00.
The paralegal entries to be reduced from 2017 occur on 1/4/2017 (two entries totaling 0.4
hours), 1/9/2017 (two entries totaling 0.2 hours), 1/11/2017 (two entries totaling 0.4 hours),
1/18/2017 (two entries totaling 0.2 hours), 1/19/2017 (two entries totaling 0.8 hours), 2/2/2017
(two entries totaling 0.2 hours), 2/8/2017 (two records totaling 0.2 hours), 2/22/2017 (four entries
totaling 0.6 hours), 2/23/2017 (two entries totaling 0.4 hours), 3/20/2017 (0.1 hours), 4/6/2017
(two entries totaling 0.2 hours), 5/31/2017 (two entries totaling 0.4 hours), 7/17/2017 (0.2 hours),
8/3/2017 (two entries totaling 0.2 hours), 8/16/2017 (0.2 hours), 8/31/2017 (0.2 hours), and
9/14/2017 (four entries totaling 0.6 hours), for a total of 5.5 hours, or $687.50.
In addition, an entry from timekeeper KRY15 for a “telephone call to Urology Care
Alliance re: confirmation of records received” is billed on 2/22/2017 at a rate of $165.00 an hour.
This task is appropriate for a paralegal to perform and therefore will be compensated at a rate of
$125.00 an hour, resulting in a reduction of $4.00.
Total reduction: $2,144.00.
Total attorneys’ fees to be awarded: $20,599.50.
F. Reasonable Costs related to Muller Brazil, LLP
Petitioner requests $17,273.22 in costs, which includes obtaining medical records, medical
literature, postage costs, travel expenses, the Court’s filing fee, and expert witness fees. Fees App.
Ex. D at 2.
1. Petitioner’s Expert Costs
Petitioner requests $9,875.00 for work performed by Dr. Eric Gershwin. Fees App., Ex. D
at 17. Petitioner requests Dr. Gershwin be compensated at $500.00 per hour. Dr. Gershwin has
previously been awarded his requested rate and I see no reason to disturb such a request. See A.S.
v. Sec’y of Health & Hum. Servs., No. 15-520V, 2020 U.S. Claims LEXIS 1196 (Fed. Cl. Spec.
Mstr. June 4, 2020); Hoskins v. Sec'y of Health & Hum. Servs., 2017 U.S. Claims LEXIS 934 (Fed.
Cl. Spec. Mstr. July 12, 2017). Dr. Gershwin’s bill states that “to review very extensive medical
files, petition, literature, prepare report, and discuss with attorney” he spent 19.75 hours. Attorneys'
costs are subject to the same reasonableness requirements as attorneys' fees. Apuzzo v. Sec’y of
Health & Hum. Servs., No. 17-1915V, 2021 U.S. Claims LEXIS 2006 (Fed. Cl. Spec. Mstr. Aug.
15 This is the only entry for timekeeper KRY. Because this task was reduced to a paralegal rate, I have not
analyzed whether $165.00 per hour is an appropriate rate for this timekeeper.
10

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 11 of 12
23, 2021). Block billing is clearly disfavored in the program. See, e.g., Casteneda v. Sec’y of Health
& Hum. Servs., 2018 U.S. Claims LEXIS 1959. Indeed, the Vaccine Program's Guidelines for
Practice state as follows: "[e]ach task should have its own line entry indicating the amount of time
spent on that task. Lumping together several unrelated tasks in the same time entry frustrates the
court's ability to assess the reasonableness of the request.”16 Id. Dr. Gershwin has also been warned
before that block billing is not appropriate. See, e.g., Stuart v. Sec’y of Health & Hum. Servs., No.
16-940V, Dkt. No. 96 (available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016v
v0940-96-0). I will therefore defer payment for Dr. Gershwin’s expert fees at this time. Petitioner
may re-apply for costs related to Dr. Gershwin in a motion for final attorneys’ fees and costs.
Petitioner also requests $2,000.00 for work performed by Dr. Nizar Souayah. Fees App. Ex.
D at 34. Dr. Souayah’s invoice charges $500.00 an hour for four hours of work. In the description
of work performed, Dr. Souayah writes “Abdolrahim Noorani,” Id. Dr. Souayah did not provide an
expert report in this case, Petitioner’s motion for interim fees does not make it clear what work he
performed, and Dr. Souayah’s invoice does not contain any information rationalizing why he should
be paid. Accordingly, I will defer costs related to Dr. Souayah at this time. Petitioner may re-apply
for costs related to Dr. Souayah in a motion for final attorneys’ fees and costs.
Petitioner requests $1,125 for work performed by Dr. Lawrence Steinman. Fees App, Ex.
D at 37. Petitioner requests Dr. Steinman be compensated at $500.00 per hour. I find 2.25 hours for
reviewing the records and Dr. Gershwin’s notes to be reasonable. I therefore will award costs related
to Dr. Steinman in full.
2. Miscellaneous costs
Petitioner requests $5,398.22 in miscellaneous costs. I have reviewed Petitioner’s
miscellaneous costs and supporting documentation and find these costs to be reasonable,1718 with
one small exception. Petitioner requests $93.47 for obtaining medical records from Jefferson
University Physicians. However, the supporting documentation lists a charge for $57.97. Fees
App., Ex. E at 27. This results in a deduction of $35.50.
Total costs to be awarded: $6,487.72.
III. Conclusion
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
16 Guidelines for Practice Under the National Vaccine Injury Compensation Program ("Guidelines for
Practice") at 67.
17 Although Petitioner’s receipt for FedEx does not include a dollar amount, I find $48.00 to be a reasonable
amount to pay for FedEx shipping. I accordingly award this cost in full.
18 Although Petitioner has not provided a receipt for medical records from Lower Bucks Hospital, records
from this hospital are in the record as Exhibit 7. I find $53.48 to be a reasonable amount to pay to obtain
medical records, and therefore award this cost in full.
11

Case 1:16-vv-00970-UNJ Document 125 Filed 03/14/22 Page 12 of 12
interim fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner’s
application, as follows:
A sum in the amount of $111,719.32, representing reimbursement of Ms. Carol Gallagher’s
interim fees and costs, in the form of a check jointly payable to Petitioner and Carol
Gallagher.
A sum in the amount of $27,087.22 representing reimbursement of Petitioner’s interim fees
and costs, in the form of a check jointly payable to Petitioner and Muller Brazil, LLP.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.19
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
19 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_16-vv-00970-1
Date issued/filed: 2024-08-23
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 07/10/2024) regarding 185 DECISION of Special Master - Interim Attorneys' Fees and Costs. Signed by Special Master Katherine E. Oler. (saj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-970V
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
ABDOLRAHIM NOORANI,
*
*
Petitioner, * Special Master Katherine E. Oler
*
*
v.
*
* Filed: July 10, 2024
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
*
Respondent. *
*
*
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Carol L. Gallagher, Carol L. Gallagher, Esquire, LLC, Somers Points, NJ, for Petitioner
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
Oler, Special Master:
On August 10, 2016, Abdolrahim Noorani (“Petitioner”) 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”) alleging that he suffered Guillain-Barré syndrome and neurological
injuries as a result of the influenza vaccination he received on September 30, 2015. ECF No. 1
(“Pet.”).
1 Because this Decision contains a reasoned explanation for the action in this case, it must be made publicly
accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 2 of 10
Petitioner filed a second motion3 for interim attorneys’ fees and costs on March 15, 2024,
requesting a total of $113,177.98. ECF No. 180 (hereinafter “Fees App.”). Respondent filed a
response on March 27, 2024, deferring to me as to whether Petitioner has met the legal standard
for an award of interim attorneys’ fees and costs. ECF No. 82 (“Fees Resp.”) at 4. Petitioner did
not file a reply.
I hereby GRANT IN PART Petitioner’s application and award a total of $104,692.92 in
interim attorneys’ fees and costs.
I. Legal Standard
A. Interim Attorneys’ Fees and Costs
The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the
Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under
the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health
& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).
In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.
Likewise, in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of
litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is
proper for the special master to award interim attorneys' fees.” 609 F.3d at 1375. Avera did not,
however, define when interim fees are appropriate; rather, it has been interpreted to allow special
masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it
has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria
as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of
Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,
2015).
A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the
special master finds that a petitioner has brought his petition in good faith and with a reasonable
basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &
Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.
Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,
3 On April 20, 2021, Petitioner filed his first application for interim fees and costs, for $97,898.70 in
fees and $23,673.19 in costs incurred by Ms. Carol Gallagher; and $22,743.50 in fees and $17,273.22
in costs incurred by a prior law firm, Muller Brazil, representing a total request for $161,688.61. ECF
No. 110. On January 20, 2022, I granted Petitioner’s application in part, awarding a total of
$138,806.54, which comprised of $88,108.83 in fees and $23,610.49 in costs for Ms. Gallagher’s work;
and $20,599.50 in fees and $6,487.72 in costs related to Muller Brazil’s work. ECF No. 121.
2

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 3 of 10
2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL
1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more
than just financial involvement of a petitioner; it also looks at any money expended by a
petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special
Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees
[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.
B. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health
& Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such
a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly believed
he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-
544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad
faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum.
Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that his claim
could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs.,
No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993
WL 496981, at *1); Turner, 2007 WL 4410030, at *5.
C. Reasonable Basis
Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a
petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at least
be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v.
Sec’y of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.
Nov. 3, 2015).
While the statute does not define the quantum of proof needed to establish reasonable basis,
it is “something less than the preponderant evidence ultimately required to prevail on one’s
vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of
Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no
evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found
that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to
establish reasonable basis. Id. at 290; see also Turpin v. Sec'y Health & Hum. Servs., No. 99-564V,
2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when
petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No.
99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis
when petitioner presented only e-mails between her and her attorney). The Federal Circuit has
affirmed that “more than a mere scintilla but less than a preponderance of proof could provide
sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health &
Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. 2020) (finding Petitioner submitted
objective evidence supporting causation when she submitted medical records and a vaccine
package insert); see also James-Cornelius v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1380
(Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation did not by itself
negate the claim's reasonable basis.”).
3

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 4 of 10
Temporal proximity between vaccination and onset of symptoms is a necessary component
in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to
establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.
The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded
that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable
basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed.
Cir. 2017). Further, an impending statute of limitations should not even be one of several factors
the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade,
altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in
determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health &
Hum. Servs., 138 Fed. Cl. 282, 289 (2018).
“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements
for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient
evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs., No.
15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award
compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by
medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal
Claims have interpreted this provision to mean that petitioners must submit medical records or
expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &
Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. Servs., 35
Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table
theory where medical records fail to establish a Table injury).
When determining if a reasonable basis exists, many special masters and judges consider
a myriad of factors. The factors to be considered may include “the factual basis of the claim, the
medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the
theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to
look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of
Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,
2007).
II. Discussion
A. Undue Financial Hardship
The undue hardship inquiry looks at more than just financial involvement of a petitioner;
it also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2 (finding
“the general principle underlying an award of interim fees was clear: avoid working a substantial
financial hardship on petitioners and their counsel.”). In this case, Petitioner’s attorney has been
working on this case since 2017. Fees App. at 1. Additionally, Petitioner’s attorney has hired two
well-qualified experts at a substantial cost. Id. at 4. The Federal Circuit has noted that interim fees
“are particularly appropriate in cases where proceedings are protracted, and costly experts must be
retained.” Avera, 515 F.3d at 1352 (Fed. Cir. 2008).
4

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 5 of 10
I also note that the COVID-19 pandemic has had a significant impact on the United States
economy and such impact has been recognized by this court. See Monge-Landry v. Sec'y of Health
& Hum. Servs, No. 14-853V, 2020 WL 4219821 *5 (Fed. Cl. Spec. Mstr. Jun. 30, 2020)
(recognizing the COVID-19 pandemic's continued disruption of the airline industry in its
calculation of appropriate interim fees).
Given these unprecedented economic circumstances, and the time already spent litigating
this case, I find that the Petitioner would suffer undue hardship in the absence of an award of
interim attorneys’ fees and costs.
B. Good Faith and Reasonable Basis
Respondent has not raised any specific objection to the good faith or reasonable basis for
this claim and leaves such a determination to my discretion. See Fees Resp. at 2-4. I find that the
petition was filed in good faith.
As discussed above, the threshold for reasonable basis is a much lower standard than the
burden to prove entitlement to compensation by preponderant evidence. In making a reasonable
basis determination, I must look at the totality of the circumstances, taking into account the factual
basis for the claim and the medical and scientific support offered. Petitioner has filed extensive
medical records in this case. See Exs. 1-28, 74-76, 78. Petitioner has also filed three expert reports.
ECF Nos. 16, 30, 65. I find that Petitioner had a reasonable basis to file the claim.
As there is no other reason to deny an award of interim attorneys’ fees and costs, I will
award Petitioner’s reasonable fees and costs in this instance.
C. Attorneys’ Fees
Petitioner requests a total of $83,182.50 in attorneys’ fees. Fees Application at 6.
1. Reasonable Hourly Rate
A reasonable hourly rate is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's
attorney.” Rodriguez v. Sec'y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349).
McCulloch provides the framework for determining the appropriate compensation for
attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Hum.
Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of
Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for
subsequent years.4
4 The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-
5

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 6 of 10
Ms. Gallagher, requests to be compensated at a rate of $450 per hour for work performed
between 2021-2024. See Fees App. at 8-48. However, this is not consistent with the Fees Schedule
and with what Ms. Gallagher has been awarded in the past. See Noorani v. Sec'y of Health & Hum.
Servs., No. 16-970V, 2022 WL 780828 (Fed. Cl. Spec. Mstr. Jan. 20, 2022). In previous cases,
including the first interim fees request, Ms. Gallagher requested and was awarded $424.00 per
hour for work performed in 2021. Noorani, 2022 WL 780828, at *4. This appears to reflect a mid-
year rate increase of $26.00. Although the size of the proposed increases is not per se
objectionable, it is not the practice of the OSM to afford mid-year rate increases to attorneys under
any circumstances. Hughes v. Sec'y of Health & Hum. Servs., No. 20-1548V, 2024 WL 1253782
(Fed. Cl. Spec. Mstr. Feb. 28, 2024). Accordingly, I reduce Ms. Gallagher’s rate to $424.00 per
hour for the 31.75 hours billed in 2021, to be consistent with what has previously been awarded.
This results in a reduction of attorney’s fees by $825.50.5
Additionally, this also reflects changes to the requested travel time rate. In the Vaccine
Program, special masters traditionally have compensated time spent traveling when no other work
was being performed at one-half of the hourly rate. See Williams v. Sec’y of Health & Human
Servs., No. 16-24V, 2020 WL 3619504, at *2 (Fed. Cl. Spec. Mstr. Jun. 23, 2020); Hocraffer v.
Sec’y of Health & Human Servs., No. 99– 533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr.
Jul. 25, 2011); Rodriguez v. Sec’y of Health & Human Servs., No. 06–559V, 2009 WL 2568468,
at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs., No. 01–
61V, 2006 WL 3419805, at *12–13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006).6 This results in an
additional reduction of $111.80, with a new total reduction of $937.30.
The remaining rate of $450 requested for Ms. Gallagher’s hourly rate between 2022-2024
is reasonable and no adjustment is warranted. See Morgan v. Sec'y of Health & Hum. Servs., No.
19-71V, 2024 WL 1617314, at *2 (Fed. Cl. Spec. Mstr. Feb. 20, 2024); Perez v. Sec'y of Health &
Hum. Servs., No. 18-999V, 2023 WL 7221314, at *2 (Fed. Cl. Spec. Mstr. Sept. 28, 2023).
2. Hours Reasonably Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
Forum-Rate-Fee-Schedule-2021-PPI-OL.pdf.
The 2022 Fee Schedule can be accessed at: https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%
27-Forum-Rate-Fee-Schedule-2022-%28Final%29.pdf.
The 2023 Fee Schedule can be accessed at: https://www.cofc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule-2023.pdf.
The 2024 Fee Schedule can be accessed at: https://www.cofc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule-2024.pdf
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
5 The previous rate $450.00 x 13.75 hours = $14,287.50. The corrected rate of $424.00 x 13.75 hours =
$13,462.00. Thus, this difference of $14,287.50 - $13,462.00 = $825.50.
6 The previous rate $255.00 x 8.60 hours = $1,935.00. The corrected rate of $212.00 x 8.60 hours =
$1,823.20. Thus, this difference of $1,935.00 - $1,823.20 = $111.80.
6

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 7 of 10
litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion
to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work
done.” Saxton ex rel. Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993).
In exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed.
Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours);
Guy v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master’s
reduction of attorney and paralegal hours). Petitioner bears the burden of establishing that the rates
charged, hours expended, and costs incurred are reasonable. Wasson v. Sec’y of Health & Hum.
Servs., 24 Cl. Ct. 482, 484 (1993). However, special masters may reduce awards sua sponte,
independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum.
Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed.
Cl. 313, 318 (Fed. Cl. 2008), aff’d No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22,
2008).
A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.
Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees
and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Hum.
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). It is within a special master's discretion to instead make
a global reduction to the total amount of fees requested. See Hines v. Sec’y of Health & Hum.
Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the
reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec’y of Health & Hum. Servs.,
No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011
WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and
endorsing “a global – rather than line-by-line – approach to determine the reasonable number of
hours expended in this case”).
Petitioner’s counsel has provided a breakdown of hours billed and costs incurred. Fees
App. Ex A. Since the last interim request for attorneys’ fees and costs, Ms. Gallagher has corrected
errors previously made regarding billing for administrative/secretarial tasks, duplicative billing,
and excessive client communication. ECF No. 121 at 6-7. The undersigned has reviewed the billing
entries and finds that they adequately describe the work done on the case and the amount of time
spent on that work. None of the entries appear objectionable, nor has Respondent identified any
entries as objectionable.
Based on the above, and the corrected hourly rate, I will therefore award Ms. Gallagher
$82,245.20 in attorneys’ fees.
D. Reasonable Costs
Petitioner requests a total of $29,995.48: $26,313.41 for expert costs; $2,765.93for travel
costs; $780.29 for medical record requests; $7.85 for mailing costs; and $128.00 for the transcript.
Petitioner provided documentation of the travel costs, medical record requests, mailing costs, and
transcript. I find the costs for these items reasonable, and award them in full. I discuss the costs for
Petitioner’s experts below.
7

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 8 of 10
1. Petitioner’s Expert Costs for Roberta Hurley
Petitioner requests $4,547.76 for Ms. Hurley’s travel costs, site visit, and assessment and
life care planning at an hourly rate of $150 per hour. Fees App., Ex. C at 75-79. In previous cases,
Ms. Hurley has been awarded $125 per hour for work performed in 2021, and there is no
information on Ms. Hurley’s rate for the following years. Pickard v. Sec'y of Health & Hum. Servs.,
No. 20-276V, 2023 WL 9503424, at *2 (Fed. Cl. Spec. Mstr. Dec. 1, 2023). While other special
masters have noted that Ms. Hurley's rate need not remain static forever, it is incumbent upon
Petitioner and her counsel to substantiate the hourly rates of the experts they retain. Id. Here,
Petitioner has not advanced any such argument providing an explanation for the increase.
Additionally, and Ms. Hurley has already been notified of such a problem in other cases,
her billing statements contain a lack of specificity concerning review of records, communication,
and research.7 Ms. Hurley’s billing statement continues to provide vague descriptions of her billing
entries. Questions concerning Ms. Hurley’s rates and billing statements are enough justification
for me to defer payment until a final fees determination.
2. Petitioner’s Expert Costs for Gary Golkiewicz
Petitioner requests $9,313.41 for work performed by former Chief Special Master Gary
Golkiewicz for his mediation services. Fees App., Ex. C at 80-81. Mr. Golkiewicz’s request
reflects 39.55 hours of work at a rate of $464 per hour between 2022-2023 for time spent meeting
with the parties, discussing and drafting settlement offers, and travelling for the settlement
meetings.8 Mr. Golkiewicz has previously been awarded this rate in the past. See Blair v. Sec'y of
Health & Hum. Servs., No. 19-894V, 2022 WL 17852432, at *3 (Fed. Cl. Spec. Mstr. Nov. 30,
2022). After review of his invoice, the hours are justified and the undersigned finds these costs
to be reasonable and shall fully reimburse them.
3. Petitioner’s Expert Costs for M. Eric Gershwin, M.D.
Petitioner once again requests $9,875.00 for work performed by Dr. Eric Gershwin. Fees
App., Ex. C at 84-85. I had previously noted that I would defer costs related to Dr. Gershwin during
the initial Interim Fees request because of concerns over block billing, which is disfavored in the
Program. ECF No. 121 at 10-11. As I have noted previously, Dr. Gershwin has previously been
awarded his requested rate of $500 per hour and I see no reason to disturb such a request. See A.S.
v. Sec’y of Health & Hum. Servs., No. 15-520V, 2020 U.S. Claims LEXIS 1196 (Fed. Cl. Spec.
Mstr. June 4, 2020); Hoskins v. Sec'y of Health & Hum. Servs., 2017 U.S. Claims LEXIS 934 (Fed.
Cl. Spec. Mstr. July 12, 2017). Since Petitioner’s last Interim Fees request, Dr. Gershwin has
7 For example, on January 17, 2022, Ms. Hurley billed 25 minutes for work described as an “email with
Carol regarding specifics of case.” Fees App. at 77. On June 20, 2023, Ms. Hurley billed 30 minutes for the
same description. Id. at 78.
8 39.55 total hours of work performed at the rate of $464 is $18,351.20. However, the parties agreed to pay
50 percent of the mediator’s fees and costs, so Petitioner’s requested total is 9,313.41. Fees App., Ex C at
81.
8

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 9 of 10
resubmitted his requested costs detailing the hours spent conducting his review of the records and
drafting his report. After review of this document, his hours are justified and there is no longer a
concern over block billing. The undersigned finds these costs to be reasonable and shall fully
reimburse them.
4. Petitioner’s Expert Costs for Nizar Souayah, M.D.
Petitioner once again requests $2,000.00 for work performed by Dr. Nizar Souayah. Fees
App., Ex. C at 83. I had previously noted that I would defer costs related to Dr. Souayah during the
initial Interim Fees request because he did not make clear what work he performed or provide any
rationalization for why he should get paid as he did not provide an expert report. ECF No. 121 at
11. Now, Petitioner once again submits the request, but submits an invoice that provides a
description of his work. He requests an hourly rate of $500 per hour for 4 hours for “pre review
discussion with lawyer,” “review of medical records,” and “post review discussion with lawyer.”
Fees App., Ex. C at 83. After review of this document, there is a rationalization for his requested
hours of work and I find them justified. These costs are reasonable and shall be fully reimbursed.
5. Miscellaneous costs
Petitioner requests $1,259.31 in miscellaneous costs. This amount is comprised of
acquiring transcripts, medical records, postage, and meals during travel. Fees App. at 6. Petitioner
has provided adequate documentation supporting all requested costs and Respondent also has not
identified any specific costs as objectionable. The undersigned finds these costs to be reasonable
and shall fully reimburse them.
I award Petitioner a total of $22,447.72 in attorneys’ costs.
III. Conclusion
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
interim fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner’s
application, as follows:
• A lump sum in the amount of $104,692.92, representing reimbursement of Petitioner’s
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and his
attorney, Ms. Carol L. Gallagher.
9

Case 1:16-vv-00970-UNJ Document 190 Filed 08/23/24 Page 10 of 10
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.9
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
10