VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00488
Package ID: USCOURTS-cofc-1_20-vv-00488
Petitioner: Ruth Vizcarra
Filed: 2020-04-22
Decided: 2025-08-18
Vaccine: influenza
Vaccination date: 2019-09-21
Condition: sudden sensorineural hearing loss
Outcome: compensated
Award amount USD: 52216

AI-assisted case summary:
Ruth Vizcarra filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she developed sudden sensorineural hearing loss (SSNHL) after receiving an influenza vaccination on September 21, 2019. She reported hearing loss in her right ear within 24 hours of the vaccination, which was diagnosed as sudden idiopathic hearing loss. The case proceeded as an off-Table claim, with both parties filing expert reports. The court addressed a motion to limit the testimony of respondent's expert, Dr. Staats, a Ph.D., ruling that he should focus on the science behind the petitioner's theory and defer to medical doctors on diagnosis and specific causation. The court also awarded interim attorneys' fees and costs on two occasions, totaling $52,216.36 in the first award and $33,619.56 in the second, reflecting the protracted nature of the litigation and the costs associated with expert witnesses. The case is ongoing, with a hearing scheduled for October 2027.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00488-0
Date issued/filed: 2023-05-15
Pages: 6
Docket text: PUBLIC ORDER (Originally filed: 4/17/2023) regarding 58 Order Granting in Part Motion to Limit Testimony. Signed by Special Master Mindy Michaels Roth. (dkj) Service on parties made.
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Case 1:20-vv-00488-UNJ Document 61 Filed 05/15/23 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-488V
Filed: April 17, 2023
* * * * * * * * * * * * * * *
RUTH VIZCARRA, *
* UNPUBLISHED
Petitioner, *
*
v. * Motion to Limit Expert Testimony
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Andrew Downing, Esq., Downing, Allison & Jorgenson, Phoenix, AZ, for petitioner.
Alec Saxe, Esq., United States Department of Justice, Washington, DC, for respondent.
ORDER GRANTING IN PART MOTION TO LIMIT TESTIMONY1
Roth, Special Master:
On April 22, 2020, Ruth Vizcarra (“Ms. Vizcarra” or “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”). Petitioner alleged that she developed sudden
sensorineural hearing loss (“SSNHL”) after receiving an influenza (“flu”) vaccination on
September 21, 2019. See Petition (“Pet.”), ECF No. 1.
1 Although this Order 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 Order
will be available to anyone with access to the internet. However, the parties may object to the Order’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 Order will be available to the public. Id.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). 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 1:20-vv-00488-UNJ Document 61 Filed 05/15/23 Page 2 of 6
On March 20, 2023, respondent filed an expert report authored by Herman F. Staats, Ph.D.
Respondent Exhibit (“Resp. Ex.”) C, ECF No. 52. According to his CV, Dr. Staats is a tenured
Professor of Pathology and Professor of Medicine and Immunology at Duke University Medical
Center (“DUMC”). Resp. Ex. D, ECF No. 52. He holds a Ph.D. in Basic Medical Sciences
(Microbiology and Immunology). Id.
On March 21, 2023, petitioner filed a Motion to Limit the Testimony of Dr. Staats. Motion,
ECF No. 54. She argued that Dr. Staats is “neither legally nor ethically permitted to address
specific causation in the Vaccine Program”. Id. at 1. Petitioner’s Motion seeks to limit Dr. Staats’
testimony relating to specific causation—Althen prong II—because he is not a medical doctor and
lacks the credentials to opine on a medical diagnosis or possible causes. Id. at 1-2. Petitioner argued
that “[c]ourts have insisted time and again that an expert may not give opinion testimony regarding
specific causation if the expert has not engaged in the process of differential diagnosis.” Id. at 3,
citing In re Paoli R.R. Yard PCB Lit, 2000 WL 1279922, at *5 (E.D. Pa. Sept. 6, 2000) (emphasis
added). Because Dr. Staats is not a medical doctor, he cannot render a differential diagnosis or an
opinion as to possible causes, and therefore, his testimony should be limited to general causation
only. Motion at 3.
On March 31, 2023, respondent filed a Response to petitioner’s Motion. Response, ECF
No. 55. In his Response, respondent detailed Dr. Staats’ qualifications and accomplishments,
including his position as Vice Chair of Research in the Pathology Department at DUMC and his
participation in a research laboratory funded by the National Institute of Health that focuses on the
development and use of novel vaccine adjuvants. Id. at 1. Respondent pointed out that petitioner
failed to cite any Vaccine Program cases to support her request and relied only on an unreported
decision from the Eastern District of Pennsylvania and a decision from the Supreme Court of
Appeals for West Virginia. Id. at 2.
Respondent further argued that special masters are not bound by the rules of evidence but
rely on the Daubert factors to assign weight to an expert’s testimony. Response at 3. “The typical
practice in Vaccine Act cases is for the special masters to employ the factors in Daubert, to weigh
an expert’s opinion, not exclude it.” Id., citing See Oliver v. Sec’y of Health & Human Servs., 900
F.3d 1357, 1362 (Fed. Cir. 2018) (holding that “the Chief Special Master did not misapply Daubert
in weighing the parties’ experts’ testimony and supporting evidence . . .”); Terran v. Sec’y of
Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999) (affirming a “[s]pecial [m]aster’s
analysis . . . using Daubert[ ] . . . as a tool or framework for conducting the inquiry into the
reliability of the evidence,” where the special master’s “application of the Daubert factors [was]
reasonable”); see also Garcia v. Sec’y of Health & Human Servs., No. 05-0720V, 2010 WL
2507793, at *17, n.7 (Fed. Cl. May 19, 2010) (“where an expert’s methodology is at least generally
aligned with accepted scientific method, his conclusions are weighed on probative merit; they are
not excluded, even if the factfinder may consider his testimony to be less persuasive than that of
the other party’s expert.”).
Respondent disagreed with petitioner that specific causation necessarily involves rendering
a differential diagnosis. Response at 4-5. Other federal courts have noted that differential diagnosis
is only one method used to establish specific causation. Id. at 5, citing Parenti v. Cnty. of Monterey,
No. 14-CV-05481-BLF, 2017 WL 1709349, at *3 (N.D. Cal. May 3, 2017); Bell v. Gonzales, No.
2

Case 1:20-vv-00488-UNJ Document 61 Filed 05/15/23 Page 3 of 6
CIV.A. 03-163 (JDB), 2005 WL 3555490, at *17 (D.D.C. Dec. 23, 2005); Milward v. Rust-Oleum
Corp., 820 F.3d 469, 474-76 (1st Cir. 2016).
Further, respondent argued that non-medical doctors have been permitted to engage in a
differential diagnosis process. For example, the U.S. Court of Appeals for the Third Circuit held
that the lower court abused its discretion in excluding the testimony of the plaintiff’s non-physician
experts because they lacked medical degrees and were not trained in differential diagnosis.
Response at 6, citing In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 855-56 (3d Cir. 1990).
Moreover, respondent pointed out that Dr. Staats deferred to both petitioner’s expert and
respondent’s other expert on the issue of petitioner’s diagnosis. Response at 8; see also Resp. Ex.
C at 2. Dr. Staats also did not opine on what caused petitioner’s SSNHL, but rather, stated that the
cause is not clear. Response at 8-9; see also Resp. Ex. C at 12. Respondent argued that Dr. Staats’
opinion was that petitioner’s theory “is not supported by the published literature” and “petitioner’s
proposed mechanism of vaccine-induced damage that resulted in sudden hearing loss is not
supported by the scientific literature.” Response at 9; see also Resp. Ex. C at 12. Dr. Staats is
qualified to rely on his interpretation of the medical literature to support his opinion that
petitioner’s theory lacks immunological support. Response at 9.
Finally, in a footnote, respondent requested that petitioner be denied any attorneys’ fees or
costs for the drafting and filing of the present Motion. Response at 10 n.1.
Petitioner submitted a Reply on April 7, 2023. Reply, ECF No. 56. Petitioner distinguished
the cases relied on by respondent, stating that nothing in the cases related to a Ph.D. attempting to
testify as a medical doctor on specific causation. Id. at 1, 2, citing Clausen v. M/V New Carissa,
339 F.3d 1049, 1052-53 (9th Cir. 2003); Southern States Co-op., Inc. v. Melick Aquafeeds, Inc.,
476 Fed. Appx. 185, 186 (11th Cir. 2012). “Dr. Staats is not the correct professional to discuss
specific causation”; rather, the “correct professional” is a medical doctor with expertise in the area
at issue. Reply at 2.
According to petitioner, only a medical doctor may render an opinion on specific causation
in humans. Reply at 2. Petitioner agreed that the Daubert factors are used in the Vaccine Program
to assess the weight given to expert testimony. Id. at 3. Because Dr. Staats cannot “evaluate,
diagnose, treat, or opine of the specific cause of any medical condition”, his opinion is “unreliable
and entitled to no weight in this case on specific causation.” Id.
Petitioner has no issue with Dr. Staats’ opinions as long as they do not include specific
causation. Reply at 3. However, in his expert report Dr. Staats wrote, “[I]n this section, I will
discuss why the specific scientific articles Dr. Hicks cites to support his proposed theory of
vaccine-induced damage do not support the proposed mechanism of damage in this specific case.”
Id., citing Resp. Ex. C at 7. According to petitioner, this is an opinion on Althen prong II—specific
causation. Reply at 3-4. Further, Dr. Staats included a section heading entitled “Logical Sequence
of Cause and Effect” and analyzed the timing in petitioner’s case to refute specific causation. Id.
at 4. Finally, Dr. Staats stated that it is his opinion that petitioner’s hearing loss was unrelated to
the flu vaccine. Id., citing Resp. Ex. C at 12-13.
3

Case 1:20-vv-00488-UNJ Document 61 Filed 05/15/23 Page 4 of 6
Petitioner requested that respondent’s “assertion of withholding attorney’s fees be
ignored”, as it is a threat by respondent to “attempt to get Petitioner’s attorneys to stop advocating
for their clients.” Reply at 4.
After consideration of both parties’ arguments, petitioner’s Motion to Limit the Testimony
of Dr. Staats is GRANTED in part.
I. Discussion
Special masters use the framework established in Althen v. Sec’y of Health & Human Servs.
to determine causation in off-Table vaccine cases. 418 F.3d 1274 (Fed. Cir. 2005). Althen requires
that petitioners show by preponderant evidence that a vaccination petitioner received caused his
or her injury “by providing: (1) a medical theory causally connecting the vaccination and the
injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for
the injury; and (3) a showing of a proximate temporal relationship between vaccination and
injury.” Id. at 1278. Causation is determined on a case-by-case basis, with “no hard and fast per se
scientific or medical rules.” Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed.
Cir. 1994). Petitioner’s Motion only concerns Dr. Staats’ testimony on prong II—a logical
sequence of cause and effect. Petitioner may satisfy prong II with medical opinion alone, but the
special master may require “some indicia of reliability to support the assertion of the expert
witness.” Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1324 (Fed. Cir. 2010) (citing
Terran, 195 F.3d at 1316).
In other federal courts, judges either admit or exclude evidence based on guidance from
the Federal Rules of Evidence (“FRE”). The FRE play an important role in our judicial system
ensuring that the evidence admitted is sufficiently reliable and relevant to empower a jury to reach
a just outcome.
In contrast, vaccine cases are not tried before a jury. Rather, the special master is the sole
finder of fact. Thus, the need for strict rules of evidence is obfuscated, as the special masters are
extremely familiar with the law and are in a better position to determine what evidence is reliable
when compared to a layperson. It is well-established in the Vaccine Program that special masters
are tasked with the responsibility of assessing the reliability of testimony, including testimony
from expert witnesses. Moberly, 592 F.3d at 1325. Special masters employ the Daubert factors to
evaluate expert testimony. In distinguishing this Court from other federal courts, the Chief Special
Master noted that
The Daubert factors play a slightly different role in Vaccine Program cases than
they do when applied in other federal judicial [courts] (such as the district courts).
Daubert factors are usually employed by judges (in the performance of their
evidentiary gatekeeper roles) to exclude evidence that is unreliable and/or could
confuse a jury. In Vaccine Program cases, by contrast, these factors are used in the
weighing of the reliability of scientific evidence proffered. Davis v. Sec'y of Health
& Human Servs., 94 Fed. Cl. 53, 66–67 (2010) (“uniquely in this Circuit, the
Daubert factors have been employed also as an acceptable evidentiary-gauging tool
with respect to persuasiveness of expert testimony already admitted”) . . . In this
4

Case 1:20-vv-00488-UNJ Document 61 Filed 05/15/23 Page 5 of 6
matter (as in numerous other Vaccine Program cases), Daubert has not been
employed at the threshold, to determine what evidence should be admitted, but
instead to determine whether expert testimony offered is reliable and/or persuasive.
Lozano v. Sec’y of Health & Human Servs., No. 15–369V, 2017 WL 3811124, at *10 (Fed. Cl.
Spec. Mstr. Aug. 4, 2017). In weighing expert testimony, special masters may consider factors
such as an expert’s experience, training, research credentials, and specialization—or lack thereof.
See Copenhaver v. Sec’y of Health & Human Servs., 129 Fed. Cl. 176, 183 (2016) (citations
omitted).
Several experts who participate in Vaccine Program cases for both petitioners and
respondent are not medical doctors but hold Ph.D.’s in a relevant field. Their testimony has been
helpful in resolving claims both in favor of and against petitioners. See e.g., Hazlehurst v. Sec’y of
Health & Human Servs., No. 03–654V, 2009 WL 332306, at *5 (Fed. Cl. Spec. Mstr. Feb. 12,
2009) (finding that three of petitioner’s experts and four of respondent’s experts—all of whom
held Ph.D.’s and not M.D.’s—were qualified and credible witnesses, though some were more
persuasive). Dr. Staats holds a Ph.D. in Immunology and is a tenured Professor of Pathology and
Professor of Immunology and Medicine at a highly regarded medical school. Resp. Ex. D. He has
completed post-doctoral research in immunology, specifically studying Mucosal HIV vaccines. Id.
He has published over eighty peer reviewed articles, often working alongside medical doctors. Id.
I find, and petitioner concedes, that Dr. Staats is well qualified in his field. Motion at 2.
However, all experts, including Dr. Staats, are cautioned to limit their testimony to their
areas of expertise and defer where appropriate. For example, respondent utilized Robert Fujinami,
Ph.D., who has a somewhat similar background to Dr. Staats, in Bielak v. Sec’y of Health & Human
Servs.3 No. 18-761V, 2023 WL 35509, at *18 (Fed. Cl. Spec. Mstr. Jan. 3, 2023). The Chief Special
Master approvingly noted in his decision that Dr. Fujinami deferred to respondent’s other expert
“as to any matters pertaining to [petitioner’s] diagnosis, medical course, or the manner in which
GBS is believed to occur biologically” and “instead focused on the science behind [p]etitioner’s
theory” in his own testimony. Id.
Rendering a diagnosis is reserved for those with the appropriate training, education, and
credentials: medical doctors. Petitioner and respondent are both correct that differential diagnosis
is a well-accepted method to determine causation. The Third Circuit addressed the reliability of
differential diagnosis as a method for assessing causation, holding:
We have recognized that differential diagnosis is a technique that involves
assessing causation with respect to a particular individual, In Re Paoli R.R. Yard
PCB Litigation, 35 F.3d 717, 758 (3d Cir.1994). Differential diagnosis is defined
for physicians as “the determination of which of two or more diseases with similar
symptoms is the one from which the patient is suffering, by a systematic
comparison and contrasting of the clinical findings.” STEDMAN'S MEDICAL
DICTIONARY 428 (25th Ed.1990). The elements of a differential diagnosis may
3 Both Dr. Staats and Dr. Fujinami are Professors of Pathology and Immunology at different medical
schools, and they both have studied microbiology. See Resp. Ex. D; Bielak, No. 18-761V, 2023 WL 35509,
at *18.
5

Case 1:20-vv-00488-UNJ Document 61 Filed 05/15/23 Page 6 of 6
consist of the performance of physical examinations, the taking of medical
histories, and the review of clinical tests, including laboratory tests. A doctor does
not have to employ all of these techniques in order for the doctor's diagnosis to be
reliable. See Paoli, 35 F.3d at 759. A differential diagnosis may be reliable with
less than all the types of information set out above. See id. Indeed as we held in
Paoli to the extent that the district court concluded otherwise [i.e. that a differential
diagnosis made on less than all types of information cannot be reliable] we hold
that it abused its discretion.... As noted by this court in Paoli, evaluation of the
patient's medical records is a reliable method of concluding that a patient is ill even
in the absence of a physical exam. Kannankeril v. Terminix, 126 F.3d 802, 807–08
(3d Cir.1997).
Dr. Staats is a Ph.D.—not a practicing clinician. He is not trained to treat patients, diagnose
patients, or prescribe medication. Rather, Dr. Staats, as a Ph.D., has expertise in the science of
immunology and pathology, which is relevant to cases in the Vaccine Program. Dr. Staats as a
Ph.D. rather than an M.D. is only one of many factors considered in weighing his expert opinions
in this matter. However, he must focus on the science behind petitioner’s theory and defer to other
experts credentialed to opine on diagnosis, medical course and/or the manner in which sudden
sensorineural hearing loss or SSNHL is believed to occur biologically.
Therefore, petitioner’s Motion to Limit Dr. Staats’ testimony is granted only to the extent
that Dr. Staats should focus his opinions on the science behind petitioner’s theory. Following
review of all the evidence and as the trier of fact, the weight of each expert’s opinion, including
that of Dr. Staats, will be determined, as will all the evidence filed in this matter.
As to respondent’s footnote concerning the payment of fees associated with the filing of
this Motion, the pending Motion for Fees does not include charges for this Motion. See ECF No.
57. Thus, I will not address the arguments on this point. However, it is the responsibility of all
counsel in any case to advocate for their client without the fear of retribution for doing so.
Accordingly, petitioner’s Motion to Limit Testimony is hereby GRANTED in part as set
forth above.
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
6

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-00488-1
Date issued/filed: 2023-09-12
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 8/18/2023) regarding 67 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Mindy Michaels Roth. (dkj) Service on parties made.
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Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-488V
Filed: August 18, 2023
* * * * * * * * * * * * * * *
RUTH VIZCARRA, *
*
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Andrew Downing, Esq., Downing, Allison & Jorgenson, Phoenix, AZ for petitioner.
Alec Saxe, Esq., United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On April 22, 2020, Ruth Vizcarra (“Ms. Vizcarra” or “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”). Petitioner alleged that she developed sudden
sensorineural hearing loss (“SSNHL”) after receiving an influenza (“flu”) vaccination on
September 21, 2019. See Petition (“Pet.”), ECF No. 1. Petitioner now seeks an award of interim
attorneys’ fees and costs. After careful consideration, petitioner’s Motion for Interim Attorneys’
Fees is GRANTED in part for the reasons set forth below.
1 Because this Decision contains a reasoned explanation for the action taken 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, the undersigned finds that the identified material fits within this
definition, such material will be redacted 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 (2018).

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 2 of 12
I. Background
A. Procedural History
The petition was filed on April 22, 2020 along with an affidavit from petitioner. See Pet.,
ECF No. 1. The case was assigned to Chief Special Master Brian H. Corcoran. ECF No. 4.
Petitioner filed medical records along with petitioner’s completed PAR questionnaire on May 4,
2020. See Petitioner’s Exhibit (“Pet. Ex.”) 1-6, ECF Nos. 8-9. On May 5, 2020, petitioner filed a
statement of completion. ECF No. 10.
On May 13, 2020, Chief Special Master Corcoran issued a scheduling order requiring
petitioner to file proof of certified medical records and medical records showing the alleged
vaccine injury lasted at least six months. ECF No. 11.
Petitioner filed three motions for extension of time to file the medical records, each of
which were granted. ECF Nos. 13-15. On August 27, 2020, petitioner filed the requested medical
records. Pet. Ex. 11, ECF No. 16. Petitioner submitted an amended statement of completion on
August 28, 2020. ECF No. 18. On September 1, 2020, the case was reassigned to the undersigned.
ECF No. 20.
Respondent filed a status report on November 30, 2020, stating his intent to proceed on a
litigation track. ECF No. 23. Respondent filed his Rule 4(c) Report on February 1, 2021,
maintaining that the case is not appropriate for compensation. ECF No. 25.
After an order was issued for petitioner to produce an expert report, petitioner filed a
motion for an extension of time, which was granted. ECF No. 26. Petitioner filed Dr. Hicks’ CV
and expert report on June 3, 2021. Pet. Ex. 12-13, ECF No. 27. Petitioner was ordered to file a
supplemental expert report by August 3, 2021. Petitioner filed a motion for extension of time to
file the supplemental report, which was granted. ECF Nos. 28-29.
On October 4, 2021, petitioner filed a supplemental expert report by Dr. Hicks. Pet. Ex.
14, ECF No. 30. On December 3, 2021, respondent filed a responsive status report requesting
additional time for a response from his expert witness and requesting that petitioner file the
literature cited by Dr. Hicks. ECF No. 31.
The undersigned ordered petitioner to file the medical literature cited by Dr. Hicks in the
supplemental expert report and for respondent to file a responsive expert report sixty days
thereafter. Petitioner filed a motion for extension of time to file the supporting medical literature,
which was granted. ECF No. 32. Petitioner failed to comply with the order to file the medical
literature by February 16, 2022.
On February 17, 2022, petitioner filed another motion for extension of time to file medical
literature, which was granted. ECF No. 33. On February 18, 2022, petitioner filed the supporting

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 3 of 12
medical literature from Dr. Hicks. Pet. Ex. 15-50, ECF Nos. 34-37. Petitioner filed additional
supporting medical literature from Dr. Hicks on March 3, 2022. Pet. Ex. 51-62, ECF No. 38.
Respondent filed two motions for extension of time to file a responsive expert report, both
of which were granted. ECF Nos. 39-45. A responsive expert report by Yu-Lan Mary Ying, M.D.
and Dr. Ying’s CV were filed on July 7, 2022 by respondent. Respondent’s Exhibit (Resp. Ex.)
A-B, ECF No. 46.
After two motions for extension of time which were granted, petitioner filed a responsive
expert report from Dr. Hicks on November 14, 2022. Pet. Ex. 63, ECF No. 50.
On March 20, 2023, after a motion for extension of time was granted, respondent filed an
expert report from Herman F. Staats, Ph.D. and a responsive report from Dr. Ying. Resp. Ex. C-
E, ECF Nos. 52-53.
Petitioner filed a motion to limit the testimony of Dr. Staats on March 21, 2023, to which
respondent filed a response on March 31, 2023. Petitioner submitted a reply to the response on
April 7, 2023. ECF Nos. 54-56.
On April 14, 2023, petitioner filed the instant Motion for Interim Attorney’s Fees and Costs
seeking $30,610.00 in attorneys’ fees and $21,771.36 in costs for a total of $52,381.36. Motion for
Interim Fees, ECF No. 57.
On April 17, 2023, an Order issued, granting in part petitioner’s motion to limit Dr. Staats’
testimony. ECF No. 58.
On April 28, 2023, respondent filed his response to the Motion for Interim Fees which
included, “[s]hould the Special Master be satisfied that the reasonable basis and interim fee award
standards are met in this case”, he will defer to the Special Master’s discretion to award a
reasonable fee. Response to Motion for Interim Fees, (“Response”) at 5, ECF No. 59. Petitioner
did not file a reply.
This matter is now ripe for determination.
B. Summary of Relevant Medical Records
Petitioner received the subject flu vaccine on September 21, 2019. Pet. Ex. 2 at 6, 10, 12.
She presented to Sun Valley Pediatric and Family Urgent Care on September 22, 2019 where she
complained of hearing loss in her right ear. Pet. Ex. 4. She reported a sudden onset of hearing loss
less than 24 hours prior. Id. at 1. It was noted that her right tympanic membrane had a dull poor
cone of light but no obstruction and no signs of infection. Id. at 3. The assessment was sudden
idiopathic hearing loss of the right ear. Id. She was given a prescription for a short course of high
dose steroids and instructed to follow up with her primary care physician. Id.

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 4 of 12
On September 23, 2019, petitioner presented to an ENT complaining of hearing loss that
began after she received the flu shot. Pet. Ex. 5 at 11. Upon evaluation, petitioner had “profound
SNHL in the right ear.” Id. at 12. She was diagnosed with sudden idiopathic hearing loss and
tinnitus in the right ear. Id. On October 2, 2019, petitioner underwent a brain MRI which was
unremarkable. Id. at 15-16.
Petitioner followed up with the ENT on October 15, 2019. Pet. Ex. 5 at 6. She was noted
to have no change in her sudden right sensorineural hearing loss. Id. at 7. She received a steroid
injection and was instructed to return in two weeks for a second injection. Id.
On October 25, 2019, petitioner visited her gynecologist for a well woman exam. Pet. Ex.
3 at 7. It was noted that petitioner received a flu shot then lost hearing in her right ear completely.
She was getting steroid injections, but they had not helped. Id.
Petitioner received a second steroid injection on October 30, 2019. Pet. Ex. 5 at 1. Her
condition remained unchanged. Id. at 3.
On December 2, 2019, petitioner presented to Arizona Hearing & Balance Center,
reporting that she completely lost her hearing in her right ear 2-3 hours following a flu shot on
September 21, 2019. Pet. Ex. 6 at 1. Petitioner expressed interest in receiving a cochlear implant.
Id. at 2. She returned to the office on December 24, 2019 for a cochlear implant evaluation. Id. at
3. She was confirmed to be a good candidate for a cochlear implant. Id.
On May 21, 2020, petitioner received a cochlear implant at Banner Dessert Medical Center.
Pet. Ex. 11 at 201, 272-73.
II. Discussion
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, he or she is entitled to an
award of reasonable attorneys’ fees and costs. 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. The lodestar method is also used to calculate a reasonable expert
fee. Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL 623833, at *1 (Fed. Cl.
Spec. Mstr. Feb. 21, 2008).

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 5 of 12
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).
In the instant case, the undersigned has no basis to believe, and respondent does not argue,
that petitioner did not bring her claim in good faith. Therefore, the undersigned finds that petitioner
brought her claim in good faith. At issue is whether the claim has a reasonable basis and if so,
whether interim fees are warranted under the circumstances.
A. Reasonable Basis
1. Legal Standard
In discussing the reasonable basis requirement, the Federal Circuit stressed the prima facie
petition requirements of § 11(c)(1) of the Act. Cottingham ex. rel. K.C. v. Sec’y of Health & Human
Servs., 971 F.3d 1337, 1345-46 (Fed. Cir. 2020). Specifically, the petition must be accompanied
by an affidavit and supporting documentation showing that the vaccinee:
(1) received a vaccine listed on the Vaccine Injury Table;
(2) received the vaccination in the United States, or under certain stated circumstances
outside of the United States;
(3) sustained (or had significantly aggravated) an injury as set forth in the Vaccine Injury
Table (42 C.F.R. § 100.3(e)) or that was caused by the vaccine;
(4) experienced the residual effects of the injury for more than six months, died, or required
an in-patient hospitalization with surgical intervention; and
(5) has not previously collected an award or settlement of a civil action for damages for the
same injury.
Cottingham, 971 F.3d at 1345-46.
Reasonable basis is an objective inquiry, irrespective of counsel’s conduct or a looming
statute of limitations, that evaluates the sufficiency of records available at the time a claim is filed.
Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017); see Turpin v.
Sec’y of Health & Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb.
10, 2005). A special master’s evaluation of reasonable basis focuses on the requirements for a
petition under the Vaccine Act to determine if the elements have been asserted with sufficient
objective evidence to make a feasible claim for recovery. Santacroce v. Sec’y of Health & Human
Servs., No. 15-555V, 2018 WL 405121 at *7 (Fed. Cl. 2018).
Reasonable basis is satisfied when there is more than a mere scintilla of objective evidence,
such as medical records or medical opinions, supporting a feasible claim before filing. See
Cottingham, 971 F.3d at 1346; see Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276,
286 (2014) (citing McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 303, 303 (2011));
see Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 405 (2012). A recent attempt to
clarify what quantifies a “scintilla” looked to the Fourth Circuit, which characterized “more than

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 6 of 12
a mere scintilla of evidence” as “evidence beyond speculation that provides a sufficient basis for
a reasonable inference of causation.” Cottingham v. Sec’y of Health & Human Servs., 154 Fed. Cl.
790, 795 (2021) (quoting Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 765 (4th Cir.
2021)). Additionally, absence of an express medical opinion of causation is not necessarily
dispositive of whether a claim has a reasonable basis. Medical records may support causation even
where the records provide only circumstantial evidence of causation. James-Cornelius on Behalf
of E.J. v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1379-80 (Fed. Cir. 2021).
Evaluation of reasonable basis is limited to the objective evidence submitted. Simmons,
875 F.3d at 636. Still, a special master is not precluded from considering objective factors such as
“the factual basis of the claim, the novelty of the vaccine, and the novelty of the theory of
causation.” Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018). In
Cottingham, the Federal Circuit expressly clarified that special masters are permitted to utilize a
totality of the circumstances inquiry in evaluating reasonable basis, including, but not exclusively
limited to, objective factors such as those identified in Amankwaa. See Cottingham, 971 F.3d at
1344. The Federal Circuit reiterated that counsel conduct is subjective evidence not to be
considered when evaluating reasonable basis. Id. at 1345. Counsel’s attempt or desire to obtain
additional records before filing is subjective evidence and does not negate the objective sufficiency
of evidence presented in support of a claim. James-Cornelius, 984 F.3d at 1381. The Federal
Circuit has additionally articulated that special masters cannot broadly categorize all petitioner
affidavits as subjective evidence or altogether refuse to consider petitioner’s sworn statements in
evaluating reasonable basis. Id. at 1380 (holding that factual testimony, when corroborated by
medical records and a package insert, can amount to relevant objective evidence for supporting
causation). However, a petitioner’s own statements cannot alone support reasonable basis, and
special masters may make factual determinations as to the weight of evidence. See, e.g., Chuisano,
116 Fed. Cl. at 291; Foster v. Sec’y of Health & Human Servs., No. 16-1714V, 2018 WL 774090,
at *3 (Fed. Cl. Spec. Mstr. Jan. 2, 2018); Cottingham, 971 F.3d at 1347.
While absent or incomplete records do not strictly prohibit a finding of reasonable basis,
an overwhelming lack of objective evidence will not support reasonable basis. Chuisano, 116 Fed.
Cl. at 288; see Simmons, 875 F.3d at 634-36 (holding that reasonable basis was not satisfied where
1) petitioner’s medical record lacked proof of vaccination and diagnosis and 2) petitioner
disappeared for two years before filing a claim). The objective evidence in the record must also
not be so contrary that a feasible claim is not possible. Cottingham, 154 Fed. Cl. at 795, citing
Randall v. Sec’y of Health & Human Servs., No. 18-448V, 2020 WL 7491210, at *12 (Fed. Cl.
Spec. Mstr. Nov. 24, 2020) (finding no reasonable basis when petitioner alleged a SIRVA injury
in his left arm though the medical records indicated that the vaccine was administered in
petitioner’s right arm). A claim may lose reasonable basis as it progresses if further evidence is
unsupportive of petitioner’s claim. See R.K. v. Sec’y of Health & Human Servs., 760 F. App’x
1010, 1012 (Fed. Cir. 2019) (citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375,
1376–77 (Fed. Cir. 1994)).
Though a special master has broad discretion, a special master must keep in mind the
Vaccine Act's remedial objective of maintaining petitioners’ access to willing and qualified legal
assistance, and a special master may not abuse their discretion in denying reasonable basis and
fees. See James-Cornelius, 984 F.3d at 1381.

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 7 of 12
2. Analysis of Reasonable Basis
Neither party proposed specific arguments regarding reasonable basis. However, both
parties’ filings contain statements worth mentioning. First, petitioner noted in her Motion for
Interim Fees that “[r]espondent does not make a reasonable basis objection”. It is curious how this
statement was made prior to respondent filing his Response. Second, respondent wrote that
reasonable basis and good faith are prerequisites to an award of fees and costs “in uncompensated
cases like the current case”. Response at 1-2. While not entirely inaccurate to refer to this case as
“uncompensated”, it is slightly misleading as the matter is still pending before the Court.
Respondent stated no specific objection as to reasonable basis but requested that I exercise my
discretion in awarding fees should I determine that the “reasonable basis . . . standards are met in
this case.” Id. at 5.
Consistent with Cottingham, petitioner has filed contemporaneous and facially trustworthy
medical records demonstrating: (1) that petitioner received a covered vaccine; (2) that the vaccine
was administered in the United States; (3) that petitioner experienced symptoms she alleges are
associated with her vaccine; and (4) that these symptoms persisted for at least six months. 971 F.3d
at 1345-46.
Petitioner’s burden for reasonable basis is satisfied when there is “more than a mere
scintilla of evidence” defined as “evidence beyond speculation that provides a sufficient basis for
a reasonable inference of causation.” Cottingham, 154 Fed. Cl. at 795 (quoting Sedar, 988 F.3d at
765). Petitioner need not prove causation to satisfy reasonable basis. See § 300aa-15(e)(1); see
also Chuisano, 116 Fed. Cl. at 287; P.S. v. Sec’y of Health & Human Servs., No. 16-834V, 2022
WL 16635456, at *18 (Fed. Cl. Spec. Mstr. Oct. 6, 2022).
The medical records filed contain sufficient evidence to satisfy petitioner’s burden of more
than a mere scintilla of objective evidence to support a reasonable inference of causation. The
records clearly show that petitioner suffered sudden hearing loss following her flu vaccination.
Petitioner consistently reported losing the hearing in her right ear within 24 hours after receiving
the subject flu vaccine. Pet. Ex. 3 at 7; Pet. Ex. 4 at 1; Pet. Ex. 5 at 11; Pet. Ex. 6 at 1. While
insufficient alone to prove entitlement, these records support the reasonable basis requirement of
more than a mere scintilla of evidence.
Additionally, petitioner has submitted three expert reports in support of her claim. See Pet.
Ex. 12; Pet. Ex. 14; Pet. Ex. 63. Although expert reports are not necessary to prove reasonable
basis, the opinion—grounded in the medical records and supported by medical literature—of a
thus far credible expert3 supports a reasonable inference of causation. James-Cornelius, 984 F.3d
at 1379-80. Notably, a petitioner in a different vaccine case was recently found to be entitled to
compensation for hearing loss following a flu vaccine; Dr. Hicks served as petitioner’s expert in
that matter. Madigan v. Sec’y of Health & Human Servs., No. 14-1187V, 2021 WL 3046614, at
*1 (Fed. Cl. Spec. Mstr. June 25, 2021). To be clear, I have not yet determined whether Dr. Hicks’
3 Dr. Hicks received his M.D. from St. Louis University School of Medicine in 1967. He was in private practice
from 1973 through 2014. He served as President of the Midwest Ear Institute from 1996 through 2014. In 2014, he
started a position as a clinical instructor in the Department of Otolaryngology at Indiana University School of
Medicine. See generally Pet. Ex. 13.

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 8 of 12
opinion is persuasive to support a finding that petitioner here is entitled to compensation. However,
his opinions support a finding of reasonable basis.
The standard for finding reasonable basis is more than a mere scintilla of objective
evidence, which petitioner has satisfied. Whether petitioner can satisfy her burden under Althen to
prove entitlement is not the subject of the current motion and remains to be seen.
B. 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 v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). 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 and petitioner has incurred significant costs for her medical expert.
This 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 on petitioner”); Kottenstette v. Sec’y of Health & Human Servs., No. 15-1016V, 2017
WL 5662780, at *3 (Fed. Cl. Spec. Mstr. Oct. 30, 2017) (finding a two-year proceeding constituted
appropriate circumstances for interim fees). Further, respondent has deferred to the special master
to determine whether an award of interim fees is reasonable in this case. Response at 5. Given the
circumstances, an award of an interim fees is warranted to avoid economic hardship to petitioner.
C. 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 v. Stenson, 465 U.S. 886, 896 n.11 (1984)). 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

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 9 of 12
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.4
The attorneys at Downing, Allison & Jorgenson have been recognized to practice in forum,
entitling them to commensurate rates established in McCulloch. See Rossiter v. Sec'y of Health &
Hum. Servs., No. 20-1888V, 2023 WL 3778899 at *2 (Fed. Cl. Spec. Mstr. June 2, 2023); Simpson
v. Sec'y of Health & Hum. Servs., No. 20-1124V, 2022 WL 16545527 at *1 (Fed. Cl. Spec. Mstr.
Sept. 27, 2022). Petitioner requests fees in various rates of compensation for the attorneys and
paralegals who worked on her case. The rates requested are as follows:
Name 2019 2020 2021 2022 2023
Mr. Downing $385 $385 $385 $415-$445 $445
Ms. Allison n/a n/a n/a $415 n/a
Ms. n/a $275 $275 $325-$345 $345
Jorgenson
(formerly Van
Cott)
Ms. Avery $135 $135 $135 $135-$155 $155
Paralegals $135 $135 $n/a n/a $155
See Motion for Interim Fees at 5-7, 9-28, 39-42.
The majority of the requested rates have been awarded by prior Special Masters in previous
decisions. See Franceschi v. Sec'y of Health & Human Servs., No. 21-0468V, 2023 WL 4270835,
at *2 (Fed. Cl. Spec. Mstr. May 30, 2023); Sewell v. Sec'y of Health & Human Servs., No. 19-
1486V, 2023 WL 5054778, at *2 (Fed. Cl. Spec. Mstr. July 12, 2023); Madigan v. Sec'y of Health
& Human Servs., No. 14-1187V, 2023 WL 3778884, at *2 (Fed. Cl. Spec. Mstr. June 2, 2023);
Perekotiy on behalf of S.K. v. Sec'y of Health & Human Servs., No. 16-997V, 2020 WL 6395509,
at *2-3 (Fed. Cl. Spec. Mstr. Sept. 29, 2020).
However, some of the requested 2022 rates require adjustment. The change in rates for
2022 is due to an increase from counsel changing law firms. However, “the Vaccine Program
typically does not award counsel increased hourly rates mid-year, especially when counsel had
4 The 2015-2023 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).

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 10 of 12
previously increased their hourly rate for the year and billed time at that rate, and other special
masters have declined to award this mid-year increase.” See, e.g., Pryor v. Sec'y of Health &
Human Servs., No. 18-1288V, 2022 WL 17973236, at *4 (Fed. Cl. Spec. Mstr. Dec. 28, 2022).
For work performed in 2022, the Court has awarded hourly rates of $415 for Mr.
Downing’s work, $325 for Ms. Jorgenson’s (Van Cott’s) work, and $135 for Ms. Avery’s work.
See Franceschi, No. 21-0468V, 2023 WL 4270835, at *2; Rossiter v. Sec'y of Health & Human
Servs., No. 20-1888V, 2023 WL 3778899, at *2 (Fed. Cl. Spec. Mstr. June 2, 2023); Thoma v.
Sec'y of Health & Human Servs., No. 19-1848V, 2022 WL 10493481, at *2 (Fed. Cl. Spec. Mstr.
Aug. 31, 2022); Bostic v. Sec'y of Health & Human Servs., No. 22-1118V, 2023 WL 4486158, at
*5 (Fed. Cl. Spec. Mstr. June 15, 2023). The 2022 hourly rates for Mr. Downing, Ms. Jorgenson
(Van Cott), and Ms. Avery are accordingly reduced to correspond with what they have previously
been awarded. This results in a total reduction of $165.00.5
Thus, there will be reduction of $165.00 reflecting an adjustment to Mr. Downing’s, Ms.
Jorgenson’s (Van Cott’s), and Ms. Avery’s previously-awarded rates for 2022. No other reductions
are warranted.
D. 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); see also Knox v. Sec’y of Health & Human Servs.,
No. 90–33V, 1991 WL 33242, at *7 (Fed. Cl. Spec. Mstr. Feb. 22, 1991) (finding that “50% of
the expert’s [travel] time should be compensated”). 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).
5 This number was reached by first adding the hours each person billed in 2022. The Motion for Interim Fees shows
that Mr. Downing billed a total of 9.7 hours in 2022, while Ms. Jorgenson (Van Cott) billed 0.8 hours that year. Ms.
Avery billed 1.9 hours in 2022. I then multiplied the individuals’ hours billed by both the awarded hourly rate and
the hourly rate requested in the current Motion; the difference between the two totals reflects the amount reduced.
See Motion for Interim Fees at 12, 39-40.

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 11 of 12
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 v. Sec’y of Health & Human 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 & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).
Upon review of petitioner’s motion for Interim Attorneys’ Fees, I find the hours billed to
be reasonable. Counsel has provided detailed billing entries which appear to reasonably correspond
with the work performed. No entries appear objectionable. Accordingly, the hours billed on this
matter are reasonable.
E. Reasonable Costs
Petitioner requests compensation of $21,771.36 in total costs to date. Motion for Interim
Fees at 7.
1. Costs Related to Dr. Hicks
Petitioner requested fees for her expert, Dr. Hicks. Dr. Hicks holds a medical degree from
St. Louis University School of Medicine and has practiced in Otolaryngology and Neurotology for
over forty years. See Motion for Interim Fees at 6; Pet. Ex. 13. Dr. Hicks has submitted three expert
reports in this matter. See Pet. Ex. 12; Pet. Ex. 14; Pet. Ex. 63; see generally Pet. Ex. 15-62.
Petitioner requests an hourly rate of $500 for Dr. Hicks.
Dr. Hicks has been awarded the requested hourly rate previously by other special masters
in the Vaccine Program. See Madigan v. Sec'y of Health & Human Servs., No. 14-1187V, 2021
WL 1626621, at *4 (Fed. Cl. Apr. 1, 2021). Furthermore, a fee of $500 per hour for a physician
with expertise in otolaryngology has been previously awarded by other special masters. Id., citing
Harper v. Sec'y of Health & Human Servs., No. 15-1188V, 2018 WL 6006030 (Fed. Cl. Spec.
Mstr. Oct. 15, 2018). Thus, the billing rate of $500 an hour for Dr. Hicks is an appropriate hourly
rate.
Dr. Hicks has billed for 47.5 hours, charging either $250 or $500 per hour depending on
the task (phone conversation or expert report development, etc.). Motion for Interim Fees at 33-
34, 36, 45. I find the requested amount of $21,249.48 for Dr. Hicks’ work to be reasonable in this
case. However, I caution petitioner’s counsel again to have experts provide specific documentation
to support their fees requests. “‘Each task should have its own line entry indicating the amount of
time spent on that task. Several tasks lumped together with one time entry frustrates the court's
ability to assess the reasonableness of the request.’” Cowles v. Sec'y of Health & Hum. Servs., No.
16-1164V, 2018 WL 2772312 *3 (Fed. Cl. Apr. 26, 2018) (quoting The Vaccine Program's
Guidelines for Practice).

Case 1:20-vv-00488-UNJ Document 72 Filed 09/12/23 Page 12 of 12
2. Miscellaneous Costs
Petitioner has also requested $521.88 in other miscellaneous expenses such as medical
records requests and filing fees which are corroborated by receipts attached to the Motion. Thus,
these costs are reasonable, and I award them in full.
III. Total Award Summary
Based on the foregoing, petitioners’ Motion for Interim Attorneys’ Fees and Costs is
GRANTED IN PART. Accordingly, I award $52,216.36 representing $30,445.00 in attorneys’
fees and $21,771.36 in attorneys’ costs in the form of a check payable jointly to petitioner Ruth
Vizcarra and petitioner’s counsel, Andrew Downing of the Downing, Allison & Jorgenson firm.
The clerk shall enter judgment accordingly.
IT IS SO ORDERED
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_20-vv-00488-2
Date issued/filed: 2025-09-16
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 8/18/2025) regarding 102 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Mindy Michaels Roth. (dkj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00488-UNJ Document 105 Filed 09/16/25 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-488V
Filed: August 18, 2025
* * * * * * * * * * * * * * *
RUTH VIZCARRA, *
*
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Ramon Rodriguez, III, Esq., Siri & Glimstad LLP, Richmond, VA, for petitioner.
Alec Saxe, Esq., United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On April 22, 2020, Ruth Vizcarra (“Ms. Vizcarra” or “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”). Petitioner alleged that she developed sudden
sensorineural hearing loss (“SSNHL”) after receiving an influenza (“flu”) vaccination on
September 21, 2019. See Petition (“Pet.”), ECF No. 1. Petitioner was awarded interim fees on
August 18, 2023. ECF No. 67.
On January 4, 2025, petitioner filed the instant Motion for Interim Attorney’s Fees and
Costs requesting a total of $33,619.56, representing $16,942.50 in attorneys’ fees and $16,677.06
1 Because this Decision contains a reasoned explanation for the action taken 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, the
undersigned finds that the identified material fits within this definition, such material will be redacted 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
(2018).
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in costs. Motion for Interim Fees, ECF No. 91. Respondent filed his response on January 21, 2025,
deferring to the undersigned to determine whether petitioner has met the standard for an award of
interim fees and costs and, if so, to determine a reasonable award. Response, ECF No. 93.
Petitioner did not file a reply.
After careful consideration, petitioner’s second Motion for Interim Attorneys’ Fees is
GRANTED for the reasons set forth below.
I. 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).
II. 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.
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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. 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 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). It has been approximately two years since petitioner was awarded
interim fees, during which time the parties exchanged additional expert reports. It is not typical
that the undersigned will entertain two interim fees motions prior to a matter going to hearing;
however, due to expert unavailability, petitioner was required to retain and file a new expert report.
Petitioner then changed counsel. Respondent’s expert then became unavailable for the originally
scheduled hearing which was to take place on August 19 and 20, 2025. Based on the many expert
reports filed in this matter, the parties were advised that a Ruling on the Record would be
appropriate. Nevertheless, petitioner insisted on a hearing. Due to the Court’s hearing schedule,
which the petitioner acknowledged, the hearing is now scheduled for October of 2027, causing a
delay in a decision on entitlement for at least another two years. See ECF Nos. 97-101. In sum, the
circumstances of this case warrant a second award of interim fees and costs.
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.
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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
The attorneys at petitioner’s former counsel’s firm have been recognized to practice in
forum, entitling them to commensurate rates established in McCulloch. See Rossiter v. Sec'y of
Health & Hum. Servs., No. 20-1888V, 2023 WL 3778899 at *2 (Fed. Cl. Spec. Mstr. June 2, 2023);
Simpson v. Sec'y of Health & Hum. Servs., No. 20-1124V, 2022 WL 16545527 at *1 (Fed. Cl.
Spec. Mstr. Sept. 27, 2022). Petitioner requests fees in various rates of compensation for the
attorneys and paralegals who worked on her case. The rates requested are as follows:
Name 2023 2024
Mr. Downing $445 $485
Ms. Allison $415 $435
Ms. Jorgenson $345 $375
Paralegals $155 $175
See Motion for Interim Fees at 11.
The requested rates have all been awarded by special masters in previous decisions. See
Husain v. Sec’y of Health & Human Servs., No. 22-1218V, 2025 WL 1409870, at *1 (Fed. Cl.
Spec. Mstr. Apr. 8, 2025); Lucas v. Sec’y of Health & Human Servs., No. 19-1525V, 2025 WL
1158901, at *1 (Fed. Cl. Spec. Mstr. Mar. 25, 2025). Thus, I award the rates as requested herein.
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.
3 The 2015-2025 Fee Schedules can be accessed at https://www.cofc.uscourts.gov/osm-attorneys-forum-
hourly-rate-fee-schedules. The hourly rates contained within the schedules are updated from the decision
in McCulloch v. Sec’y of Health & Human Servs., No. 09-923V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr.
Sept. 1, 2015).
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Case 1:20-vv-00488-UNJ Document 105 Filed 09/16/25 Page 5 of 6
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).
Upon review of petitioner’s motion, I find the hours billed to be reasonable. Counsel has
provided detailed billing entries which appear to reasonably correspond with the work performed.
No entries appear objectionable, nor did respondent state any objection. The billing records do not
overlap with what was already awarded to counsel. Motion for Interim Fees at 11-20. Accordingly,
the hours billed on this matter are reasonable.
D. Reasonable Costs
Petitioner requests a total of $16,677.06 in costs. Motion for Interim Fees at 20. The
majority of these costs are associated with petitioner’s experts. Petitioner requests a total of $6,000
for Dr. Hicks, who charged at an hourly rate of $250 for research and $500 for drafting a report.
Motion for Interim Fees at 21-24. Dr. Hicks’ hourly rate is consistent with what he has been
awarded in the past and is reasonable. See Madigan v. Sec'y of Health & Human Servs., No. 14-
1187V, 2021 WL 1626621, at *4 (Fed. Cl. Apr. 1, 2021). I also find the hours spent to be reasonable
and adequately documented. Thus, the costs associated with Dr. Hicks are awarded in full.
Dr. Arts charged a total of $10,650 at an hourly rate of $500. Motion for Interim Fees at
25-27. Dr. Arts has been awarded his requested hourly rate by other special masters. See Mayo v.
Sec'y of Health & Human Servs., No. 22-1421V, 2025 WL 707854 (Fed. Cl. Spec. Mstr. Feb. 6,
2025); see also Lund v. Sec'y of Health & Human Servs., No. 20-1454V, 2024 WL 5378643, at *3
(Fed. Cl. Spec. Mstr. Nov. 15. 2024). I find the hours he spent on this matter to be reasonable.
Thus, the costs associated with Dr. Arts are awarded in full.
The remaining costs are for postage, which is routinely awarded in vaccines cases. The
request is supported by adequate documentation and is awarded in full. Motion for Interim Fees at
28-29.
III. Conclusion
Based on the foregoing, petitioner’s second Motion for Interim Attorneys’ Fees and Costs
is GRANTED. Accordingly, I award a total of $33,619.56, representing $16,942.50 in attorneys’
fees and $16,677.06 in costs, to be paid through an ACH deposit to petitioner’s former
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counsel’s IOLTA account for prompt disbursement. The clerk shall enter judgment
accordingly.4
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
6