VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00142
Package ID: USCOURTS-cofc-1_17-vv-00142
Petitioner: Michael Howells
Filed: 2017-01-30
Decided: 2023-04-20
Vaccine: influenza
Vaccination date: 2015-12-14
Condition: transverse myelitis
Outcome: compensated
Award amount USD: 140947

AI-assisted case summary:
Michael Howells filed a petition on January 30, 2017, alleging that he developed transverse myelitis as a result of the influenza and PCV vaccines he received on December 14, 2015. The petitioner's onset of symptoms occurred 26 days after vaccination, which is considered within the expected period for post-vaccination transverse myelitis. Medical experts, including Dr. Zubkov and Dr. Pachner, provided opinions supporting the claim that the petitioner's spinal cord injury was a direct consequence of the vaccinations. Respondent did not contest the good faith or reasonable basis of the claim. The court found that the petition was filed in good faith and with a reasonable basis, supported by expert reports and medical records. The case is proceeding as an off-Table claim. The decision awarded interim attorneys' fees and costs totaling $140,947.85, recognizing the protracted nature of the proceedings and the costs associated with retaining experts. The final entitlement decision is pending, with a hearing scheduled for February 2024.

Theory of causation field:
Off-Table

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_17-vv-00142-0
Date issued/filed: 2023-06-01
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 4/20/2023) regarding 103 DECISION of Special Master - Interim Attorneys' Fees and Costs. Signed by Special Master Katherine E. Oler. (sl) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-142V
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
MICHAEL HOWELLS, UNPUBLISHED
*
*
Petitioner, *
*
Special Master Katherine E. Oler
*
v.
*
* Filed: April 20, 2023
SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Interim Attorneys’ Fees and Costs
*
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
Anne Carrion Toale, Maglio Christopher & Toale, Sarasota, FL, for Petitioner
Debra A. Begley, U.S. Department of Justice, Washington, DC, for Respondent
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On January 30, 2017, Michael Howells (“Petitioner”) filed a petition seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF
No. 1. Petitioner alleges that he developed transverse myelitis (“TM”) “and/or other injuries” as a
result of the influenza (“flu”) and PCV vaccines he received on December 14, 2015. Pet. at 1.
Petitioner filed a Motion for Interim Attorneys’ Fees and Costs on August 24, 2022,
requesting a total of $152,622.30. ECF No. 97 at 1 (hereinafter “Fees Application” or “Fees
App.”). Respondent filed a response (hereinafter “Fees Response” or “Fees Resp.”) on November
14, 2022, deferring to me as to whether Petitioner has met the legal standard for an award of interim
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 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
1

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 2 of 11
attorneys’ fees and costs. Fees Resp. at 2, ECF No. 99. If I determine that an award of interim fees
and costs is appropriate, Respondent “is satisfied the other statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Id. at 2. Petitioner did not file a reply brief.
I hereby GRANT IN PART Petitioner’s application and award a total of $140,947.85 in
interim attorneys’ fees and costs.
I. Legal Standard
A. Interim Attorneys’ Fees and Costs
The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the
Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under
the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health
& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).
In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.
Likewise, in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of
litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is
proper for the special master to award interim attorneys' fees.” 609 F.3d at 1375. Avera did not,
however, define when interim fees are appropriate; rather, it has been interpreted to allow special
masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it
has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria
as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of
Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,
2015).
A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the
special master finds that a petitioner has brought his petition in good faith and with a reasonable
basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &
Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.
Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,
2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL
1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more
than just financial involvement of a petitioner; it also looks at any money expended by a
petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special
Master Golkiewicz in Kirk found that “the general principle underlying an award of interim fees
[is] clear: avoid working a substantial financial hardship on petitioners and their counsel.” Id.
2

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 3 of 11
B. Good Faith
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health
& Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such
a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly believed
he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-
544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad
faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum.
Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that his claim
could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs.,
No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993
WL 496981, at *1); Turner, 2007 WL 4410030, at *5.
C. Reasonable Basis
Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a
petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at least
be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree v.
Sec’y of Health & Hum. Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.
Nov. 3, 2015).
While the statute does not define the quantum of proof needed to establish reasonable basis,
it is “something less than the preponderant evidence ultimately required to prevail on one’s
vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of
Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no
evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found
that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to
establish reasonable basis. Id. at 290; see also Turpin v. Sec'y Health & Hum. Servs., No. 99-564V,
2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when
petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No.
99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis
when petitioner presented only e-mails between her and her attorney). The Federal Circuit has
affirmed that “more than a mere scintilla but less than a preponderance of proof could provide
sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health &
Hum. Servs., No. 2019-1596, 971 F.3d 1337, 1346 (Fed. Cir. 2020) (finding Petitioner submitted
objective evidence supporting causation when she submitted medical records and a vaccine
package insert); see also James-Cornelius v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1380
(Fed. Cir. 2021) (finding that “the lack of an express medical opinion on causation did not by itself
negate the claim's reasonable basis.”).
Temporal proximity between vaccination and onset of symptoms is a necessary component
in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to
establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.
The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded
that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable
3

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 4 of 11
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 March 2016. Ex. 85 at 1. Additionally, Petitioner has retained two
experts at a substantial cost. Ex. 86 at 1-4 (showing that Petitioner’s expert, Dr. Pachner, has billed
a total of $25,033.00, and Petitioner’s treating physician, Dr. Zubkov has billed $2,950.00 in this
case). This matter is scheduled for an entitlement hearing in February 2024. The Federal Circuit
has noted that interim fees “are particularly appropriate in cases where proceedings are protracted
and costly experts must be retained.” Avera, 515 F.3d at 1352 (Fed. Cir. 2008).
I also note that the COVID-19 pandemic has had a significant impact on the United States
economy and such impact has been recognized by this court. See Monge-Landry v. Sec'y of Health
& Hum. Servs, No. 14-853V, 2020 WL 4219821 *5 (Fed. Cl. Spec. Mstr. Jun. 30, 2020)
4

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 5 of 11
(recognizing the COVID-19 pandemic's continued disruption of the airline industry in its
calculation of appropriate interim fees).
Given these unprecedented economic circumstances, and the time already spent litigating
this case, I find that the Petitioner would suffer undue hardship in the absence of an award of
interim attorneys’ fees and costs.
B. Good Faith and Reasonable Basis
Respondent has not raised any specific objection to the good faith or reasonable basis for
this claim and leaves such a determination to my discretion. See Fees Resp. at 2-3. I find that the
petition was filed in good faith.
With regard to reasonable basis, Petitioner submitted seven expert reports. Dr. Zubkov,
board certified in neurology, vascular neurology, and neurocritical care, has submitted two expert
reports in this case. Ex. 25 at 1-2; see also Exs. 24, 64. Dr. Pachner, who board certified in internal
medicine and neurology,3 has submitted five reports in this case. See Exs. 28, 62, 63, 78, 89. Dr.
Zubkov, Petitioner’s treating physician, has opined that “it is my firm belief that [Petitioner] had
autoimmune transverse myelitis of the cervical spinal cord secondary to reaction to flu shot. His
multiple strokes and diabetes are a separate issue and they did not contribute to initial injury to
spinal cord.” Ex. 24 at 4. Dr. Pachner has similarly proffered his opinion that Petitioner’s spinal
cord injury was from acute transverse myelitis as a direct consequence of his vaccinations on
December 14, 2015. See Ex. 28 at 12. Petitioner’s onset, on January 9, 2016, was 26 days from his
December 14, 2015 vaccinations, which is considered “within the expected period after antigenic
challenge for the occurrence of first symptoms of post-vaccination ATM.” Id.
This constitutes sufficient evidence to establish a reasonable basis for the claim. As there
is no other reason to deny an award of interim attorneys’ fees and costs, I will award Petitioner’s
reasonable fees and costs in this instance.
C. Attorneys’ Fees
Petitioner requests a total of $119,606.90 in attorneys’ fees. Fees App. at 1.
1. Reasonable Hourly Rate
A reasonable hourly rate is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's
attorney.” Rodriguez v. Sec'y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349).
3 See Dartmouth Hitchcock Medical Center, Andrew R. Pachner, https://www.dartmouth-
hitchcock.org/findaprovider/provider/1295/Andrew-R-Pachner (last accessed April 12, 2023).
5

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 6 of 11
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
Petitioner’s counsel, Ms. Anne Toale, requests a rate of $402.00 per hour for work
performed in 2018; $420.00 per hour for work performed in 2019; $445.00 per hour for work
performed in 2020; $475.00 per hour for work performed in 2021; and $500.00 per hour for work
performed in 2022. Ms. Toale also requests the following hourly rate for her colleagues: Mr. Altom
Maglio, $362.00 per hour for work performed in 2017, and $381.00 per hour for work performed
in 2018; Ms. Amber Wilson, $290.00 per hour for work performed in 2017, $308.00 per hour for
work performed in 2018, and $323.00 per hour for work performed in 2019; and Ms. Diana
Stadelnikas, $359.00 per hour for work performed in 2016, and $490.00 per hour for work
performed in 2022.
Lastly, Ms. Toale requests rates ranging from $105.00 to $170.00 per hour for paralegal
work performed between 2016 and 2022. Fees App., Ex. 85 at 70-71.
This request is consistent with what I and other special masters have previously awarded
Ms. Toale and her associates at the Maglio law firm. See, e.g., Thomas Sec’y of Health & Hum.
Servs., No. 18-1948V, 2023 WL 2155057 (Feb. 22, 2023); Morrison v. Sec’y of Health & Hum.
Servs., No. 18-386V, 2023 WL 1873254 (Fed. Cl. Spec. Mstr. Jan. 26, 2023); Scheffler v. Sec’y of
Health & Hum. Servs., No. 19-260V, 2022 WL 16580270 (Fed. Cl. Spec. Mstr. Oct. 3, 2022);
Turkson v. Sec’y of Health & Hum. Servs., No. 18-690V, 2022 WL 10075563 (Fed. Cl. Spec. Mstr.
Sep. 28, 2022); M.D. by next friend Dilascio v. Sec’y of Health & Hum. Servs., No. 10-611V, 2022
WL 3134356 (Fed. Cl. Spec. Mstr. July 11, 2022); Correa v. Sec’y of Health & Hum. Servs., No.
19-592V, 2022 WL 2222485 (Fed. Cl. Spec. Mstr. May 24, 2022). Accordingly, I find the
requested rates are reasonable and that no adjustment is warranted.
2. Hours Reasonably Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion
4 The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%
27%20Forum%20Rate%20Fee%20Schedule%202018.pdf.
The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2
7%20Forum%20Rate%20Fee%20Schedule%202019.pdf.
The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2
7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf
The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo
rum-Rate-Fee-Schedule-2021-PPI-OL.pdf
The 2022 Fee Schedule can be accessed at: https://www.uscfc.uscourts.gov/sites/default/files/Attorneys%
27-Forum-Rate-Fee-Schedule-2022-%28Final%29.pdf.
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
6

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 7 of 11
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”).
a. Clerical and Administrative Time
While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health &
Hum. Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical
and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 2015 WL 5634323, at *26. It is well-established that billing for administrative and
clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379,
387 (1989).
The invoice for MCT includes examples of clerical and administrative tasks and includes
a large number of entries regarding paralegals’ efforts to obtain Petitioner's medical records from
his various providers. Examples include (but are not limited to):
• May 10, 2016 (0.3 hours): “Review client’s providers. Telephone conference with
Bethesda Hospital to obtain record request procedure. Create detailed note to file. Draft
correspondence requesting medical records. Update deadlines and file notes.
• August 24, 2016 (0.3 hours): “Draft rush correspondence to University of Minnesota
Health Clinics and Surgery Center-East Bank requesting medical records. Update
7

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 8 of 11
deadlines and notes to file”
• December 14, 2016 (0.2 hours): “Review correspondence from University of Minnesota
Medical Center Fairview regarding request for partial records due to incomplete
transmission of original correspondence. Redraft request ad update notes to file.”
• December 15, 2016 (0.2 hours): “Analyze medical records from UMMC Fairview for
completeness and prepare for filing”
• April 7, 2017 (0.2 hours): “Review voicemail from UMMC release of information
regarding status of fee documentation for subpoenaed records. Draft email confirming
status, and update notes to file
• April 17, 2017 (0.2 hours): Follow up with provider University of Minnesota medical
center & surgery center for help in regards to medical records”
• September 19, 2017 (0.1 hours): “Update case costs regarding mileage reimbursement”
The gathering of medical records, performed by 14 of 18 paralegals who worked on this
case, totaled approximately 90 hours. I acknowledge that some medical providers required
subpoenas before they would provide records, and that this added time to the normal record
gathering process. However, the four years (90 hours of time) it took to file all of Petitioner’s
relevant medical records in this case (from May 2016 to May 2020), in my experience, is excessive.
My colleagues and I have previously advised MCT that attorneys’ fees for clerical, administrative
tasks, and excessive time spent collecting medical records are not reimbursable in the Program,
and we have reduced their requested attorneys’ fees accordingly. See, e.g., Morrison v. Sec’y of
Health & Hum. Servs., No. 18-386V, 2023 WL 1873254, at *7 (Fed. Cl. Spec. Mstr. Feb. 10, 2023)
(deducting 20.9 hours for administrative and clerical tasks); Scheffler v. Sec’y of Health & Hum.
Servs., No. 19-260V, 2022 WL 16580270 (Fed. Cl. Spec. Mstr. Oct. 3, 2022) (applying a deduction
of $1,500.00 for excessive hours collecting medical records); Blender v. Sec'y of Health & Hum.
Servs., No. 16-1308V, 2020 WL 5090439, at *3 (Fed. Cl. Spec. Mstr. Aug. 5, 2020) (reducing the
requested attorneys’ fees by 5% for administrative and clerical tasks and leaving tasks blank); Reed
v. Sec'y of Health & Hum. Servs., No. 09-650V, 2019 WL 2500417, at *4 (Fed. Cl. Spec. Mstr.
May 21, 2019) (reducing the requested attorneys’ fees by 5% for administrative and clerical tasks).
Because these tasks were mostly completed by paralegals, I shall apply a 5% reduction to
Petitioner’s attorneys’ fees.
Accordingly, I find that a reduction in requested attorneys’ fees of $5,980.35 is warranted.
Total attorneys’ fees to be awarded: $113,626.55
D. Reasonable Costs
Petitioner requests a total of $33,015.40 in costs, which includes obtaining medical records
and medical literature, the Court’s filing fee, Drs. Zubkov and Pachner’s expert fees, counsel’s
travel expenses, and other miscellaneous expenses. Fees App., Ex. 86 at 1-4. Documentation was
provided for the medical record requests, medical literature, and the Court’s filing fee, therefore
these will be paid in full. I discuss the other requests below.
1. Petitioner’s Expert Costs for Dr. Andrew Pachner, M.D.
8

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 9 of 11
Dr. Andrew Pachner submitted five expert reports in this case. Exs. 28, 62, 63, 78, 89. Dr.
Pachner is requesting compensation at an hourly rate of $500.00 for approximately 39 hours (or
2323 minutes) of work performed. Petitioner has submitted 4 invoices documenting the
approximately 39 hours of work performed by Dr. Pachner. Ex. 86 at 62-63, 75-76, 94, 98. Notably,
Dr. Pachner’s invoice for his last expert report, totaling $5,675.00, was not provided. As Dr.
Pachner’s last invoice has not been provided, I will defer that request to a final fees application. No
award is appropriate without an invoice. See, e.g., Pickens v. Sec'y of Health & Hum. Servs., No.
17-187V, 2020 WL 414442, at *4 (Fed. Cl. Jan. 9, 2020) (denying motion for review of a decision
not including an expert's fee in an interim award when the expert's invoice was not readable);
Sabella, 86 Fed. Cl. at 222 (denying motion for review when special master refrained from
compensating an expert for whom an invoice was not submitted).
Regarding Dr. Pachner’s hourly rate, no other special master has determined whether his
requested hourly rate is reasonable. See, e.g., Thomas v. Sec’y of Health & Hum. Servs., No. 18-
1948V, 2023 WL 2155057 (Fed. Cl. Spec. Mstr. Feb. 22, 2023) (deferring on determining Dr.
Pachner’s expert rate and an award of expert costs because no invoices were filed; “Dr. Pachner's
proposed rate is unknown and the reasonableness of his activities cannot be determined.”; cf.
Correa v. Sec'y of Health & Hum. Servs., No. 15-592V, 2022 WL 2222485 at *3 (Fed. Cl. Spec.
Mstr. May 24, 2022) (granting Dr. Pachner’s expert fees in full with no specific analysis). These
two cases are the only cases Dr. Pachner have offered an opinion in for the Vaccine Program.
Dr. Pachner received his medical degree from Yale University and currently works at the
Dartmouth-Hitchcock Medical Center. Ex. 27 at 1. Dr. Pachner is the Murray B. Bornstein
Professor of Neurology at the Geisel School of Medicine at Dartmouth. Id. at 2. Undoubtably, Dr.
Pachner is an extremely well credentialed expert. However, I will defer making a determination
on the reasonableness of Dr. Pachner’s requested hourly rate until the conclusion of this case when
I have had the opportunity to listen to his testimony at the entitlement hearing.
At this juncture, I will award Dr. Pachner’s substantiated expert fees, which total
$19,358.00, without a determination of the reasonableness of his hourly rate. I defer $5,675.00 to
a future application for fees as no invoice has been provided to substantiate this amount.
2. Petitioner’s Expert Costs for Dr. Alexander Zubkov, M.D., Ph.D.
Petitioner requests an hourly rate of $600.00 for 3.5 hours of work performed, totaling
$2,100.00; $500.00 for Dr. Zubkov’s review of records; and $350.00 for a conference with Dr.
Zubkov. Ex. 86 at 52-53, 58, 101. Although invoices from the Minneapolis Clinic of Neurology
were submitted, they did not clearly establish what task was performed by Dr. Zubkov or why he
should receive $600 per hour.
Dr. Zubkov received his medical degree from First Leningrad Medical Institute and his
Ph.D. from the University of Mississippi Medical Center. Ex. 25 at 1. Dr. Zubkov is board certified
in neurology, vascular neurology, and neurocritical care. Id. at 2. Dr. Zubkov is also an associate
professor of neurology at the University of Minnesota. Id. at 3. Dr. Zubkov has not been an expert
in the Vaccine Program prior to this case. Similar to Dr. Pachner, Dr. Zubkov is well qualified to
provide an expert opinion in the Vaccine Program however his requested hourly rate of $600.00
9

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 10 of 11
has been reserved for experts that have a highly specific area of expertise or for experts who have
testified frequently in the Vaccine Program. See, e.g., Reinhardt v. Sec’y of Health & Hum. Servs.,
No. 17-1257V, 2021 WL 2373818, at *4-5 (Fed. Cl. Spec. Mstr. Apr. 22, 2021) (awarding Dr.
Cestari, one of roughly ten neuro-ophthalmology specialists in the U.S. an hourly rate of $550);
Schultz v. Sec'y of Health & Hum. Servs., No. 02-1314V, 2018 WL 1835104, at *3–4 (Fed. Cl.
Spec. Mstr. May 24, 2017) (finding a $600 hourly rate too high for “an expert who does not have
significant experience with the program”). At this time, I will grant Dr. Zubkov’s requested fees,
as the total amount requested appears reasonable based on the work performed, but like Dr.
Pachner, I will not make a determination as to the reasonableness of Dr. Zubkov’s requested hourly
rate for the same reasons discussed above.
3. Travel Expenses
Documentation of the majority of counsel’s travel expenses was provided, with the
exception of her May 23, 2017 Southwest flight to Minnesota, totaling $38.49. Despite the fact that
no receipt was filed, I will grant this expense as it is documented and a compensable business
expense.
4. Miscellaneous
Petitioner also requests reimbursement for “Pacer Service Center Research” fees (totaling
$3.70), USPS mailings (totaling $76.60), and Worldwide Express shipping expenses (totaling
$182.45). Documentation in the form of shipping labels was provided for the USPS and Worldwide
Express costs, with the exception of two USPS costs (totaling $15.40). No documentation was
provided for Pacer Service Center Research. As these are ordinary business expenses, I will grant
the items for which some form of documentation has been submitted in full; therefore, a deduction
of $19.10 will be applied to Petitioner’s requested costs.
Total deductions: $5,694.10
Total costs to be awarded: $27,321.30
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 $140,947.85, representing reimbursement of Petitioner’s
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and his
attorney, Ms. Anne Toale.
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.5
5 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

Case 1:17-vv-00142-UNJ Document 106 Filed 06/01/23 Page 11 of 11
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
11