VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01221
Package ID: USCOURTS-cofc-1_19-vv-01221
Petitioner: BRYAN PAUL
Filed: 2019-08-16
Decided: 2023-01-18
Vaccine: meningococcal
Vaccination date: 2018-08-16
Condition: encephalopathy and residual seizure disorder
Outcome: compensated
Award amount USD: 107535

AI-assisted case summary:
Jennifer Paul filed a petition on August 16, 2019, as legal guardian for her son, Bryan Paul, alleging he suffered encephalopathy and residual seizure disorder as a result of a meningococcal vaccine received on August 16, 2018. This decision addresses the petitioner's motion for interim attorneys' fees and costs. The case has been pending for over three years, involving extensive filings of medical records and expert reports from both parties. Respondent did not object to the motion, stating that the statutory requirements for an award of attorneys' fees and costs were met. The Special Master found that interim fees were warranted due to the protracted nature of the proceedings and the potential hardship on the petitioner. The court awarded $55,651.20 in attorneys' fees and $51,884.24 in costs, for a total of $107,535.44, payable jointly to the petitioner and her counsel.

Theory of causation field:
unclear

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_19-vv-01221-0
Date issued/filed: 2023-02-13
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 1/18/2023) regarding 63 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Mindy Michaels Roth. (msg) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1221V
Filed: January 18, 2023
* * * * * * * * * * * * * * *
JENNIFER PAUL, as legal guardian * UNPUBLISHED
of BRYAN PAUL, *
*
Petitioner, * Decision on Interim Attorneys’ Fees and
v. * Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent.
* * * * * * * * * * * * * * *
Jessica Wallace, Esq., Siri & Glimstad LLP, Aventura, FL, for petitioner.
Lynn Schlie, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On August 16, 2019, Jennifer Paul (“petitioner” or “Mrs. Paul”) filed a petition for
compensation under the National Vaccine Injury Compensation Program2 as legal guardian of her
son, Bryan Paul. Petitioner alleges that Bryan suffered from encephalopathy and residual seizure
disorder as a result of the meningococcal vaccine he received on August 16, 2018. Petition, ECF
No. 1. Petitioner now seeks an award of interim attorneys’ fees and costs.
I. Procedural History
The petition and medical records were filed on August 16, 2019 and the matter was
assigned to me on August 19, 2019. Petitioner’s Exhibits (“Pet. Ex.”) 1-10; ECF Nos. 1, 5.
1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of
Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone
with access to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of
confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request
redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance
and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be
available to the public. Id.
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 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 2 of 7
Petitioner filed additional medical records on September 17, 2019 and September 23, 2019, and a
Statement of Completion on September 23, 2019. Pet. Ex. 11, ECF No. 8; Pet. Ex. 12, ECF No. 9;
ECF No. 10.
Respondent filed a status report on November 22, 2019 identifying additional records that
were outstanding. ECF No. 11. Petitioner was ordered to file the outstanding medical records and
an amended Statement of Completion.
Petitioner filed Motions for extension of time to file the outstanding medical records on
January 17, 2020 and March 19, 2020, both of which were granted. ECF Nos. 13-14. On April 22,
2020, petitioner filed medical records and a Motion for extension of time to file employment
records, which was granted. Pet. Ex. 13-27, ECF Nos. 17-18. On May 22, 2020, petitioner filed a
status report advising of the unavailability of Bryan’s medical records and a Statement of
Completion. ECF Nos. 19-20.
Respondent filed his Rule 4(c) Report on September 4, 2020. ECF No. 22. A status
conference was held thereafter, on October 29, 2020, and petitioner was ordered to file an expert
report. ECF No. 23.
Petitioner filed Motions for extension of time to file an expert report on January 19, 2021
and February 24, 2021, both of which were granted. ECF Nos. 24-25. Petitioner filed an expert
report from Dr. Shafrir and corresponding medical literature on March 12, 2021. Pet. Ex. 28-29,
ECF No. 26. Respondent was then ordered to file an expert report. Non-PDF Scheduling Order,
issued May 26, 2021.
Respondent filed Motions for extension of time to file his expert report on May 26, 2021
and July 22, 2021, both of which were granted. ECF Nos. 28-29. Respondent filed expert reports
from Dr. McCusker and Dr. Wiznitzer and accompanying literature on September 13, 2021. ECF
Nos. 30-31.
After two Motions for extensions of time filed on November 9, 2021 and January 12, 2022,
which were granted, petitioner filed responsive expert reports and medical literature from Dr.
Shafrir and Dr. Akbari on January 21, 2022. ECF Nos. 35-36. Respondent was then ordered to file
responsive expert reports or a status report advising how he intended to proceed, and on March 24,
2022, respondent filed a Motion for extension of time to file responsive expert reports. ECF No.
44. The Motion was granted. Non-PDF Order, issued Mar. 24, 2022.
On April 13, 2022, petitioner filed the instant Motion for Interim Attorneys’ Fees and Costs
seeking $55,651.20 in attorneys’ fees and $57,017.44 in costs for a total of $112,668.64. Motion
for Interim Fees, ECF No. 47. On April 19, 2022, respondent filed a response stating that he “is
satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this
case” and deferring to the special master for a determination of interim fees and costs. Response
to Motion for Interim Fees (“Response”) at 2-4, ECF No. 48. Petitioner did not file a reply.
This matter is now ripe for determination.
2

Case 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 3 of 7
II. Legal Framework
The Vaccine Act permits an award of reasonable attorneys’ fees and other costs. § 15(e)(1).
If a petitioner succeeds on the merits of his or her claim, petitioner’s counsel is automatically
entitled to reasonable attorneys’ fees. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013).
However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition
was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1).
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys’ fee” is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347-48 (quoting Blum
v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based
on other specific findings. Id.
Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (2009). Special masters need not engage in a line-by-line analysis of petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011).
III. Discussion
A. Availability of Interim Fees
Special masters have discretion to award interim fees while the litigation is ongoing if “the
cost of litigation has imposed an undue hardship” and there is “a good faith basis for the claim.”
Shaw v. Sec’y of Health & Human Servs., 609 F. 3d 1372, 1375 (Fed. Cir. 2010); see Avera, 515
F. 3d at 1352. The court in Avera held that interim fees may be awarded “in appropriate
circumstances.” Id. at 1351. The court then listed some circumstances—cases involving
“protracted” proceedings and “costly experts”—in which it would be “particularly appropriate” to
award interim fees. Id. at 1352. But “the Federal Circuit in Avera . . . did not enunciate the universe
of litigation circumstances which would warrant an award of interim attorney’s fees,” Woods v.
Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 154 (2012), and “special masters [retain] broad
discretion in determining whether to award” them, Al-Uffi ex rel. R.B. v. Sec’y of Health & Human
Servs., No. 13-956V, 2015 WL 6181669, at *5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). In making
this determination, “the special master may consider any of the unique facts of a case.” Rehn v.
Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 94 (2016).
Under the circumstances of this case, interim fees are warranted. This case has been
pending for over three years, which ordinarily “suffice[s] to constitute the type of ‘circumstances’
to warrant an interim fee award.” Woods, 105 Fed. Cl. at 154; see also, e.g., Thompson v. Sec’y of
Health & Human Servs., No. 12-475V, 2018 WL 1559799, at *1 (Fed. Cl. Spec. Mstr. Feb. 28,
2018) (“[I]nterim attorneys’ fees and costs are appropriate because waiting for the conclusion of
the case would place an undue hardship in petitioner”); Kottenstette v. Sec’y of Health & Human
3

Case 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 4 of 7
Servs., No. 15-1016V, 2017 WL 5662780, at *3 (Fed. Cl. Spec. Mstr. Oct. 30, 2017) (finding two-
year proceeding constituted appropriate circumstances for interim fees). Respondent has raised no
objection to the motion and submitted that petitioner has satisfied the statutory requirements.
Motion for Interim Fees at 2. Moreover, petitioner has expended significant time and costs in
litigating this matter, and with the current case load, an entitlement hearing cannot be held for quite
some time. In sum, the circumstances of this case warrant an award of interim fees and costs so as
not to impose economic hardship on petitioner.
B. Reasonable Hourly Rates
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 petitioner’s
attorney.” Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees
to be awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. Hall v. Sec’y of Health & Human
Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3
Petitioner requests the following hourly rates for the work of her counsel: for Mr. Aaron
Siri, $363 per hour for work performed in 2016 and $376 for work performed in 2017; for Mr.
Mark Farmer, $230 for work performed in 2017; for Mr. Joseph Krueger, $240 for work performed
in 2017 and $248 for worked performed in 2018; and for Ms. Jessica Wallace, $195 for work
performed in 2018; $205 for work performed in 2019, $231 for work performed in 2020, $241 for
work performed in 2021, and $275 for work performed in 2022. Motion for Interim Fees at 20.
The hourly rates requested for Mr. Siri, Mr. Krueger, and Mr. Farmer are consistent with
what they have been previously awarded, as are Ms. Wallace’s rates for 2018 through 2021 and
shall be awarded herein. See Phillips v. Sec'y of Health & Human Servs., No. 18-015V, 2021 WL
5854073 (Fed. Cl. Spec. Mstr. Nov. 5, 2021). Further, Ms. Wallace’s requested 2022 rate is
consistent with the forum hourly rate fee schedule for an attorney of her experience and shall be
awarded as well.
3 The 2015-2022 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health & Human Sers., No.
09-923V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
4

Case 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 5 of 7
Ms. Wallace, petitioner’s counsel of record, was assisted by law clerks and paralegals:
William Pauley, Patricia Chen, Kimberly Hertz, Ashley Plescia, Gretchen Elgersma, and Esther
Novak. She was also assisted by Jill Rubolino, a legal nurse consultant. The rates requested for
these individuals are consistent with the forum hourly rate fee schedule and are therefore
reasonable.
Accordingly, the hourly rates as awarded as requested above.
C. Hours Reasonably Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal. O’Neill v. Sec’y of Health & Human 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. McCulloch, 2015 WL 5634323,
at *26. Hours spent traveling are ordinarily compensated at one-half of the normal hourly attorney
rate. See Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed.
Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time
for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health
& Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).
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, 3 F.3d at 1522. In
exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-29 (affirming the Special
Master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38
Fed. Cl. 403, 406 (1997) (same).
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that, generally, the billing entries 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. Accordingly, petitioner
is awarded interim attorneys’ fees of $55,651.20.
D. Reasonable Costs
Petitioner requests a total of $57,017.44 in costs. Motion for Interim Fees at 2. The
requested costs consist of securing medical records, postage costs, and fees for two experts, Dr.
Yuval Shafrir and Dr. Omid Akbari. Motion for Interim Fees, Ex. 1 at 46.
5

Case 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 6 of 7
1. Dr. Yuval Shafrir
Petitioner requests a total of $22,860.00 in expert costs for Dr. Yuval Shafrir. Dr. Shafrir
billed for 50.8 hours at a rate of $450 per hour for preparing two expert reports between October
2020 and January 2022. Motion for Interim Fees, Ex. 1 at 89-90.
Dr. Shafrir has consistently been awarded a rate of $350 per hour without an increase since
he began serving as an expert in the Program in 1996, more than 20 years ago. See Kinney v. Sec'y
of Health & Human Servs., No. 18-1522V, 2022 WL 17968792 (Fed. Cl. Spec. Mstr. Dec. 7,
2022). Other pediatric neurologists who serve in the Program on behalf of petitioners are being
paid at a rate of $500, including Dr. Kinsbourne and Dr. Shoenfeld. See Worcester v. Sec'y of
Health & Human Servs., No. 16-1641V, 2022 WL 3369714 (Fed. Cl. Spec. Mstr. July 13, 2022)
(awarding Dr. Kinsbourne an hourly rate of $500); Switzer v. Sec'y of Health & Human Servs., No.
18-1418V, 2022 WL 774712 (Fed. Cl. Spec. Mstr. Jan. 25, 2022) (awarding Dr. Shoenfeld an
hourly rate of $500). Based on Dr. Shafrir’s familiarity and longevity with the Program as well as
his active clinical and academic practice, Dr. Shafrir should be paid as requested at a rate of $450
per hour, bringing his hourly rate for 2021 and 2022 more in line with other pediatric neurologists
who serve as experts for petitioners in the Program.
Therefore, applying the increased rate for his work in 2021 and 2022, Dr. Shafrir is awarded
a total of $20,486.80.4
2. Dr. Omid Akbari
Petitioner requests a total of $30,360.00 in expert costs for Dr. Omid Akbari for 55.2 hours
of work at a rate of $550 per hour. Motion for Interim Fees, Ex. 1 at 91-93. However, Dr. Akbari
has consistently been awarded a rate of $500 per hour by special masters in the Program. See
Bristow v. Sec'y of Health & Human Servs., No. 19-457V, 2022 WL 17821111 (Fed. Cl. Spec.
Mstr. Nov. 15, 2022) (listing cases in which Dr. Akbari has been awarded $500 per hour); Walters
v. Sec'y of Health & Human Servs., No. 15-1380V, 2022 WL 1077311 (Fed. Cl. Spec. Mstr. Feb.
23, 2022) (same). Accordingly, I find that $500 per hour, as has been consistently awarded to Dr.
Akbari including for work in 2021 and 2022, to be an appropriate hourly rate.
Dr. Akbari billed for 55.2 hours of work in the period from October 2021 through March
2022, providing one expert report during that time. Dr. Akbari provided detailed records of his
tasks and the time spent on those tasks and these generally appear reasonable and will therefore be
rewarded. Thus, the amount awarded to Dr. Akbari will be reduced by $2,760.00 to reflect
application of the $500 per hour rate, resulting in a total of $27,600.00.5
3. Total Reasonable Costs
I have reviewed all the other requested costs and find them reasonable and supported with
adequate documentation. Accordingly, petitioner is awarded a total of $51,884.24 in costs.
4 This amount is comprised of 24 hours of work completed in 2020 at a rate of $350 ($8,400) and 26.8 hours of
work completed in 2021 and 2022 at a rate of $450 ($12,086.80).
5 ($550 x 55.2 hours) – ($500 x 55.2 hours) = $2,760.00
6

Case 1:19-vv-01221-UNJ Document 67 Filed 02/13/23 Page 7 of 7
IV. Conclusion
Based on the foregoing, petitioner’s Motion for Interim Attorneys’ Fees and Costs is
GRANTED in part. Accordingly, I award $107,535.44, representing $55,651.20 in attorneys’
fees and $51,884.24 in attorneys’ costs in the form of a check payable jointly to petitioner and
petitioner’s counsel, Jessica Wallace. The clerk shall enter judgment accordingly.6
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the
right to seek review.
7