VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00065
Package ID: USCOURTS-cofc-1_20-vv-00065
Petitioner: Caprice Angelica Marcum
Filed: 2020-01-21
Decided: 2023-03-08
Vaccine: Prevnar 13
Vaccination date: 2018-10-11
Condition: Guillain-Barré syndrome (GBS)
Outcome: compensated
Award amount USD: 84288

AI-assisted case summary:
Caprice Angelica Marcum filed a petition on January 21, 2020, alleging that she developed Guillain-Barré syndrome (GBS) as a result of the Prevnar 13 vaccine she received on October 11, 2018. This decision addresses her application for interim attorneys' fees and costs. The court found that the petition was filed in good faith and with a reasonable basis, supported by expert reports from Dr. Lawrence Steinman, who theorized that the vaccine caused GBS through molecular mimicry. The court awarded Caprice Marcum $84,288.03 in interim attorneys' fees and costs. This award was granted in part, with a reduction for clerical and administrative tasks billed by her attorney, John Shipley. The decision also detailed the hourly rates and hours reasonably expended for both attorney and expert fees, noting that Dr. Steinman's rate of $550.00 per hour was consistent with recent awards.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00065-0
Date issued/filed: 2023-04-03
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 3/8/2023) regarding 47 DECISION of Special Master - Interim Attorneys' Fees and Costs. Signed by Special Master Katherine E. Oler. (emh) Service on parties made.
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Case 1:20-vv-00065-UNJ Document 51 Filed 04/03/23 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-65V
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
CAPRICE ANGELICA MARCUM,
* UNPUBLISHED
*
Petitioner, *
*
Special Master Katherine E. Oler
*
v.
*
* Filed: March 8, 2023
SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Interim Attorneys’ Fees and Costs
*
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
John Leonard Shipley, Davis, CA, for Petitioner
Austin Egan, U.S. Department of Justice, Washington, DC, for Respondent
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On January 21, 2020, Caprice Angela Marcum (“Petitioner”) filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (“the Vaccine
Program”).2 Pet., ECF No. 1. Petitioner alleges that she developed injuries including Guillain-
Barré syndrome (“GBS”) as a result of the Prevnar 13 vaccine she received on October 11, 2018.
Pet. at 1.
Petitioner filed her First Motion for Interim Attorneys’ Fees and Costs on August 28, 2022,
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I intend to
post this Decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). This means the Decision will be available to anyone with access to the
internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), 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 Decision in its present form will be available. Id.
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.
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Case 1:20-vv-00065-UNJ Document 51 Filed 04/03/23 Page 2 of 10
requesting a total of $87,853.83. ECF No. 36 at 2 (hereinafter “Fees Application” or “Fees App.”).
Respondent filed a response (hereinafter “Fees Resp.”) on September 12, 2022, deferring to me as
to whether Petitioner has met the legal standard for an award of interim attorneys’ fees and costs.
Fees Resp. at 4, ECF No. 37. Petitioner filed a reply (hereinafter “Fees Reply”) on September 20,
2022, arguing that, in the absence of an objection from Respondent, Petitioner’s requested fees
and costs should be awarded in full. Fees Reply at 2, ECF No. 41. On January 13, 2023, Petitioner
filed a Supplemental Affidavit of John L. Shipley (Ex. 60). In his supplemental affidavit, Mr.
Shipley stated that in the Fees Application, he inadvertently understated his years of experience
for purposes of calculating reasonable attorneys’ fees but did not alter the amounts requested in
the Fees Application. Ex. 60 at 3.
I hereby GRANT IN PART Petitioner’s application and award a total of $84,288.03 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
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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.”).
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Case 1:20-vv-00065-UNJ Document 51 Filed 04/03/23 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.”). First, Petitioner’s attorney has been working
on Petitioner’s case since June 2019. Ex. 55 at 2. Second, Petitioner has retained an expert at
substantial cost. Ex. 56 at 17-18 (showing that Dr. Steinman has billed $29,150.00 so far in this
case). This matter will shortly be scheduled for an entitlement hearing, which will likely take place
in 2025. The Federal Circuit has noted that interim fees “are particularly appropriate in cases where
4

Case 1:20-vv-00065-UNJ Document 51 Filed 04/03/23 Page 5 of 10
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)
(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 3-4. I find that the
petition was filed in good faith.
With regard to reasonable basis, Petitioner submitted two expert reports from Lawrence
Steinman, MD, who is board certified in neurology. Ex. 14 at 2. Dr. Steinman has theorized that
the Prevnar 13 vaccine that Petitioner received caused Petitioner’s GBS by means of molecular
mimicry. Ex. 13 at 10-13. Dr. Steinman theorized that two components of the Prevnar 13 vaccine,
phosphoglycerol and CRM protein conjugate, bear sufficient similarity to self antigens in myelin
to cause an autoimmune reaction. Id. at 13, 27. The autoimmune attack on peripheral nerve myelin
results in GBS. Id. at 34. 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 $56,225.80 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).
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
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subsequent years.3
Petitioner’s counsel, Mr. John Shipley, requests a rate of $330.00 per hour for work
performed in 2019; $375.00 per hour for work performed in 2020; $410.00 per hour for work
performed in 2021; and $425.00 per hour for work performed in 2022. Ex. 55 at 1.
Mr. Shipley also requests rates of $156.00 per hour for paralegal work performed in 2019;
$163.00 per hour for paralegal work performed in 2020; $172.00 per hour for paralegal work
performed in 2021; and $177.00 per hour for paralegal work performed in 2022. Ex. 55 at 1.
Although it does not affect my analysis of Mr. Shipley’s fees, I will briefly address the
supplemental affidavit that he filed in which he indicates that he originally understated his years
of experience as an attorney for purposes of calculating reasonable fees. Ex. 60. Mr. Shipley argues
that, having been admitted to the California bar in 2003, his years of experience should be
calculated as one year in 2003, two years in 2004, three years in 2005, etc. Id. at 2. The California
state bar website shows that Mr. Shipley was admitted on December 26, 2003.4 The Attorney Fee
Schedules break down reasonable hourly rates based on “years of experience practicing law, which
generally will be calculated based on the year an attorney was admitted to the bar.” See, e.g.,
Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2022 at 2. It is difficult to
see how, in 2004, Mr. Shipley could have already had two years of experience despite having been
admitted in the final week of 2003. Mr. Shipley’s original statement of his experience, in which
he had one year in 2004, two years in 2005, etc., was correct. See Ex. 58 at 5.
Turning to the reasonableness of his hourly rates, I note that Mr. Shipley is a relative
newcomer to the Vaccine Program. A search of previous vaccine cases reveals only two reasoned
decisions as to fee requests for his work. In Miltenberger v. Secretary of Health & Human Services,
Special Master Moran analyzed market rates for attorneys in Davis, California, and concluded that
Mr. Shipley is entitled to forum rates in the Program. No. 17-1491V, 2019 WL 7557794, at *4
(Fed. Cl. Spec. Mstr. Dec. 19, 2019). In Ferguson v. Secretary of Health & Human Services, Chief
Special Master Corcoran reviewed a request for fees in which the hourly rates that Petitioner
requested for Mr. Shipley’s work were identical to those in the instant fee request. No. 19-1867V,
2022 WL 1421850, at *2 (Fed. Cl. Spec. Mstr. Mar. 25, 2022). The Chief Special Master analyzed
Mr. Shipley’s experience and concluded that a reduction was appropriate for Mr. Shipley’s work
3 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.
4 Verified using the Attorney Search function at https://apps.calbar.ca.gov/attorney/Licensee/Detail/229739,
last visited on March 1, 2023.
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Case 1:20-vv-00065-UNJ Document 51 Filed 04/03/23 Page 7 of 10
in 2020, 2021, and 2022, to $350.00 per hour, $375.00 per hour, and $400.00 per hour,
respectively. Id.
Mr. Shipley requests an increase in the hourly rates awarded in Ferguson, citing additional
experience in the Vaccine Program since that decision was issued (i.e., membership in the Vaccine
Injured Petitioners’ and Court of Federal Claims Bar Associations, conference attendance, and
expansion of his vaccine caseload by six additional claims). Ex. 58 at 5-6. I note that his
membership in the two bar associations began in 2019, which predates Ferguson. Id. at 6.
Furthermore, Mr. Shipley requests an increase in his hourly rate to apply retroactively to work
performed before he acquired additional experience. Accordingly, I do not agree that an increase
is warranted at this time, and I will apply the same reduction to the request in this case as was
applied in Ferguson, resulting in a total reduction of $2,141.00.
Finally, Mr. Shipley requests reimbursement for paralegal work he himself performed at
the reduced rates listed above. As Special Master Moran noted in Miltenberger, “although the rates
represent the highest possible rates for paralegals pursuant to the OSM fee schedules, because Mr.
Shipley is an attorney performing these tasks it is expected that he would be able to perform them
in a more efficient manner than an average paralegal.” 2019 WL 7557794, at *4. Accordingly, I
find Mr. Shipley’s requested paralegal rates reasonable and conclude 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) (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
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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”).
3. 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).
Mr. Shipley’s invoice includes numerous examples of clerical and administrative tasks.
The majority of these entries describe his efforts to obtain Petitioner’s medical records from
various providers, including inquiring about how to submit such requests and following up on
requests already submitted. Examples include (but are not limited to):
• August 2, 2019, 0.4 hours: “Telephone call with Alva Chavez of Santa Clara Medical
Center re obtaining records and recent correspondence rejecting request (.2); prepare
additional forms and correspondence to obtain medical records from Santa Clara Medical
Center.”
• October 21, 2019, 0.1 hours: “Exchange emails and texts with National Healthcare Services
re status of production of medical records.”
• February 7, 2020, 0.2 hours: “Research internet and website regarding obtaining care
records from Visiting Angels Care.”
These administrative and clerical tasks total approximately 8.9 hours, resulting in
$1,424.80 in charges. Accordingly, I find that a reduction in requested attorneys’ fees of $1,424.80
is warranted.
Total attorneys’ fees to be awarded: $52,660.00.
D. Reasonable Costs
Petitioner requests a total of $31,628.03 in costs, which includes obtaining medical records,
the Court’s filing fee, experts fees for Dr. Steinman, counsel’s travel expenses, shipping costs, and
copying charges. Ex. 56 at 1.
Specifically, Petitioner requests $946.85 for medical records requests; $400.00 for the
Court’s filing fee; $29,150.00 for expert reports; $381.98 for counsel’s travel expenses; $218.29 for
shipping; and $530.91 for copying charges. Ex. 56 at 1. Documentation was provided for the
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medical record requests, the Court’s filing fee, counsel’s travel expenses, the shipping costs, and
the copying charges, and these will be paid in full.
1. Petitioner’s Expert Costs for Dr. Lawrence Steinman
Petitioner requests an hourly rate of $550.00 for 53 hours of expert work performed in 2021
and 2022, for a total of $29,150.00.
Dr. Steinman received his medical degree from Harvard University in 1973. Ex. 14 at 1.
Since 2008, he has held the G.A. Zimmerman Chair as professor of neurological sciences,
neurology, and pediatrics. Id. Dr. Steinman is board certified in neurology. Id. at 2. Dr. Steinman
has provided a full accounting of the hours he expended preparing and writing two expert reports
totaling 69 pages in length. Ex. 56 at 17-18.
Although my colleagues and I have denied Dr. Steinman’s request for an hourly rate of
$550.00 in the past, more recent decisions have granted him this rate. Baxter v. Sec’y of Health &
Hum. Servs., No. 16-922V, 2023 WL 2320342, at *6-7 (Fed. Cl. Spec. Mstr. Feb. 14, 2023)
(granting $550.00 per hour for Dr. Steinman’s work performed in 2021 and 2022 and reducing his
requested rate prior to 2021 to $500.00 per hour); Morrison v. Sec’y of Health & Hum. Servs., No.
18-386V, 2023 WL 1873254, at *7 (Fed. Cl. Spec. Mstr. Feb. 10, 2023) (granting $550.00 per
hour for Dr. Steinman’s work performed in 2021 and 2022); Mason v. Sec’y of Health & Hum.
Servs., No. 17-1383V, 2022 WL 4693380, at *3 (Fed. Cl. Spec. Mstr. Sept. 8, 2022) (finding that
Dr. Steinman’s “demonstrated experience with the Vaccine Program has recently been deemed
grounds for a slight rate increase” from $500.00 per hour to $550.00 per hour); Anderson v. Sec’y
of Health & Hum. Servs., No. 20-440V, 2022 WL 3151737, at *3 (Fed. Cl. Spec. Mstr. July 13,
2022) (finding that “Dr. Steinman's expertise in the medical field and long-standing participation
in the Vaccine Program” justified an hourly rate of $550.00 even though this was higher than the
$500.00 “informal cap on expert fees” in the Program).
Accordingly, I find that Dr. Steinman’s requested rate of $550.00 is consistent with what
he has been awarded for work performed in 2021 and 2022. I therefore grant Dr. Steinman’s costs
in full.
Total costs to be awarded: $31,628.03.
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 $84,288.03, representing reimbursement of Petitioner’s
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and her
attorney, Mr. John Shipley.
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Case 1:20-vv-00065-UNJ Document 51 Filed 04/03/23 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.5
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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.
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