VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00834
Package ID: USCOURTS-cofc-1_20-vv-00834
Petitioner: Jake Buchman
Filed: 2020-07-09
Decided: 2023-10-11
Vaccine: HPV
Vaccination date: 2017-09-12
Condition: ulcerative colitis
Outcome: compensated
Award amount USD: 104066

AI-assisted case summary:
Jake Buchman filed a petition for compensation under the National Vaccine Injury Compensation Program on July 9, 2020, alleging that the human papillomavirus (HPV) vaccination he received on September 12, 2017, caused him to develop ulcerative colitis. This decision addresses his motion 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. Hiroshi Mashimo, a gastroenterologist, who opined that the HPV vaccine triggered autoimmunity, leading to tissue damage in Buchman's intestinal tract. The court also noted that Buchman would suffer undue hardship without an award of interim fees and costs due to protracted proceedings and the retention of costly experts, especially in light of the economic impact of the COVID-19 pandemic. The court awarded $104,066.44 in interim attorneys' fees and costs, after making reductions for clerical tasks and excessive expert billing hours. The case is ongoing, with this decision pertaining only to interim fees and costs.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00834-0
Date issued/filed: 2023-11-02
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 10/11/2023) regarding 48 DECISION of Special Master - Interim Attorneys' Fees. Signed by Special Master Katherine E. Oler. (emh) Service on parties made.
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Case 1:20-vv-00834-UNJ Document 53 Filed 11/02/23 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-834V
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
JAKE BUCHMAN,
* UNPUBLISHED
Petitioner,
*
*
v. * Special Master Katherine E. Oler
*
*
SECRETARY OF HEALTH AND * Filed: October 11, 2023
HUMAN SERVICES, *
*
*
Respondent.
*
*
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
Diana Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner
Sarah Rifkin, U.S. Department of Justice, Washington, DC, for Respondent
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
Oler, Special Master:
On July 9, 2020, Jake Buchman (“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”). ECF No. 1 (“Pet.”). The petition alleges that the human papillomavirus
(“HPV”) vaccination that Petitioner received on September 12, 2017, caused him to develop
ulcerative colitis. Pet.
1 Because this Decision contains a reasoned explanation for the action in this case, it must be made publicly
accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 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-00834-UNJ Document 53 Filed 11/02/23 Page 2 of 9
Petitioner filed a motion for interim attorneys’ fees and costs on April 5, 2023, requesting
a total of $107,536.24. ECF No. 43 (“Fees App.” or “Application”). Respondent filed a response
to the Application on April 7, 2023, deferring to me as to whether Petitioner has met the legal
standard for an award of interim attorneys’ fees and costs. ECF No. 44 (“Fees Resp.”) at 2-3. If I
determine that an award of interim fees and costs is appropriate, Respondent “respectfully defers
to the Special Master as to whether the amount being sought – over $100,000.00 for a case that was
filed in July 2020 – is appropriate.” Id. at 4-5.
I hereby GRANT IN PART Petitioner’s application and award a total of $104,066.44 in
interim attorneys’ fees and costs.
I. Legal Standard
A. Interim Attorneys’ Fees and Costs
The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372 (Fed.
Cir. 2010); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008). In Cloer, the
Federal Circuit noted that “Congress [has] made clear that denying interim attorneys' fees under
the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health
& Hum. Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).
In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352.
Likewise, in Shaw, the Federal Circuit held that “where the claimant establishes that the cost of
litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is
proper for the special master to award interim attorneys' fees.” 609 F.3d at 1375. Avera did not,
however, define when interim fees are appropriate; rather, it has been interpreted to allow special
masters discretion. See Avera, 515 F.3d; Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V,
2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Hum.
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though it
has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria
as possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; see Al-Uffi v. Sec’y of
Health & Hum. Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30,
2015).
A petitioner is eligible for an interim award of reasonable attorneys’ fees and costs if the
special master finds that a petitioner has brought his petition in good faith and with a reasonable
basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609 F.3d at 1372; Woods v. Sec’y of Health &
Hum. Servs, 105 Fed. Cl. 148 (2012), at 154; Friedman v. Sec’y of Health & Hum. Servs., 94 Fed.
Cl. 323, 334 (2010); Doe 21 v. Sec’y of Health & Hum. Servs., 89 Fed. Cl. 661, 668 (2009); Bear,
2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Hum. Servs., No. 97-588V, 2012 WL
1450520, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). The undue hardship inquiry looks at more
than just financial involvement of a petitioner; it also looks at any money expended by a
petitioner’s counsel. Kirk, 2009 WL 775396, at *2. Referring to Avera, former Chief Special
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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.”).
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.
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Case 1:20-vv-00834-UNJ Document 53 Filed 11/02/23 Page 4 of 9
The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded
that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable
basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed.
Cir. 2017). Further, an impending statute of limitations should not even be one of several factors
the special master considers in her reasonable basis analysis. “[T]he Federal Circuit forbade,
altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in
determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of Health &
Hum. Servs., 138 Fed. Cl. 282, 289 (2018).
“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements
for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient
evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs., No.
15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award
compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by
medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal
Claims have interpreted this provision to mean that petitioners must submit medical records or
expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &
Hum. Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Hum. Servs., 35
Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-Table
theory where medical records fail to establish a Table injury).
When determining if a reasonable basis exists, many special masters and judges consider
a myriad of factors. The factors to be considered may include “the factual basis of the claim, the
medical and scientific support for the claim, the novelty of the vaccine, and the novelty of the
theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to
look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of
Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19,
2007).
II. Discussion
A. Undue Financial Hardship
The undue hardship inquiry looks at more than just financial involvement of a petitioner;
it also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2 (finding
“the general principle underlying an award of interim fees was clear: avoid working a substantial
financial hardship on petitioners and their counsel.”). In this case, Petitioner’s attorney has been
working on this case since 2019. Ex. 33 at 1. Additionally, Petitioner has an expert at a substantial
cost. Id. at 4. The Federal Circuit has noted that interim fees “are particularly appropriate in cases
where proceedings are protracted, and costly experts must be retained.” Avera, 515 F.3d at 1352
(Fed. Cir. 2008).
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)
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Case 1:20-vv-00834-UNJ Document 53 Filed 11/02/23 Page 5 of 9
(recognizing the COVID-19 pandemic's continued disruption of the airline industry in its
calculation of appropriate interim fees).
Given these unprecedented economic circumstances, and the time already spent litigating
this case, I find that the Petitioner would suffer undue hardship in the absence of an award of
interim attorneys’ fees and costs.
B. Good Faith and Reasonable Basis
Respondent has not raised any specific objection to the good faith or reasonable basis for
this claim and leaves such a determination to my discretion. See Fees Resp. at 2-4. I find that the
petition was filed in good faith.
With regard to reasonable basis, Petitioner submitted two expert reports from
gastroenterologist Hiroshi Mashimo, M.D., Ph.D. Exs. 12, 32. Dr. Mashimo opined that the HPV
vaccine caused Petitioner to develop ulcerative colitis.
Specifically, Dr. Mashimo opined that Petitioner had an underlying genetic susceptibility
to developing inflammatory bowel disease (“IBD”) (of which ulcerative colitis is one example)
due to his Ashkenazi Jewish heritage, his history of allergies, and known cases of IBD among
members of his family. Ex. 12 at 11. He posited that the HPV vaccine triggered autoimmunity by
over-activating immune cells, causing them to attack Petitioner’s intestinal tract which resulted in
tissue damage. Id. at 10-11.
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 retained Ms. Diana Stadelnikas of Maglio Christopher and Toale, PA (“MCT
Law”), to represent him in this matter. See generally, Fees App. Petitioner requests a total of
$92,229.30 in attorneys’ fees. Id. 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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Case 1:20-vv-00834-UNJ Document 53 Filed 11/02/23 Page 6 of 9
subsequent years.3
Petitioner requests compensation for his attorney, Diana Stadelnikas, at the following
hourly rates: $415.00 per hour for work performed in 2019; $440.00 per hour for work performed
in 2020; $470.00 per hour for work performed in 2021; $490.00 per hour for work performed in
2022; and $525.00 per hour for work performed in 2023. Ex. 33 at 25.
Ms. Stadelnikas also requests compensation for two of her colleagues. For Mr. Altom
Maglio, $400.00 per hour for work performed in 2019. For Ms. Danielle Strait, $340.00 per hour
for work performed in 2019; and $395.00 per hour for work performed in 2021. Ex. 33 at 25. Ms.
Stadelnikas also requests compensation for paralegal work performed from 2019 to 2023 at hourly
rates ranging from $145.00 to $180.00. Id. at 25-26.
The requested rates are consistent with what Ms. Stadelnikas and MCT Law have been
awarded in previous cases. Franklin v. Sec’y of Health & Hum. Servs., No. 21-885V, 2023 WL
6388242, at *2 (Fed. Cl. Spec. Mstr. Sept. 7, 2023); Puhi v. Sec’y of Health & Hum. Servs., No.
20-553V, 2023 WL 4586176, at *2 (Fed. Cl. Spec. Mstr. June 28, 2023); Robinson v. Sec’y of
Health & Hum. Servs., No. 19-725V, 2023 WL 3778894, at *2 (Fed. Cl. Spec. Mstr. June 2, 2023);
Morrsion v. Sec’y of Health & Hum. Servs., No 18-386V, 2023 WL 1873254, at *5 (Fed. Cl. Spec.
Mstr. Feb. 10, 2023). Accordingly, 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,
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 2023 Fee Schedule can be accessed at: https://www.cofc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule-2023.pdf
The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL
5634323.
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independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum.
Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed.
Cl. 313, 318 (Fed. Cl. 2008), aff’d No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22,
2008).
A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed.
Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees
and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Hum.
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). It is within a special master's discretion to instead make
a global reduction to the total amount of fees requested. See Hines v. Sec’y of Health & Hum.
Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the
reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec’y of Health & Hum. Servs.,
No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011
WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and
endorsing “a global – rather than line-by-line – approach to determine the reasonable number of
hours expended in this case”).
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).
MCT Law’s invoice includes numerous examples of clerical and administrative tasks. The
majority of these entries describe paralegals’ 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):
• June 7, 2019, 0.1 hours: “Coordinate and review request for medical records from AO Fox
Hospital.”
• August 19, 2019, 0.2 hours: “Telephone conference with UHS Medical Group regarding
outstanding medical request status. Update notes regarding same.”
• April 13, 2020, 0.2 hours: “Review correspondence from Ciox regarding outstanding
production of medical records from Bassett Health. Draft response to same.”
These administrative and clerical tasks total approximately 14.6 hours, resulting in
$2,250.90 in charges. Accordingly, I find that a reduction in requested attorneys’ fees of $2,250.90
is warranted.
As a result, I award Petitioner a total of $89,978.40 in attorneys’ fees.
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D. Reasonable Costs
Petitioner requests a total of $15,306.94 in costs: $14,200.00 for expert costs; $350.50 for
medical record requests; $400.00 for the Court’s filing fee; $82.09 for shipping costs; and $274.35
for accessing medical literature. With two exceptions, Petitioner provided documentation of the
medical record requests, the Court’s filing fee, the shipping costs, and the costs for accessing
medical literature. One shipping charge of $6.95 appears to have been billed twice and
documentation for one item of medical literature in the amount of $35.95 is missing. Accordingly,
a reduction of $42.90 is appropriate. I find the remaining costs for these items reasonable, and thus
no further reduction is necessary.
1. Petitioner’s Expert Costs for Hiroshi Mashimo, M.D., Ph.D.
Dr. Mashimo submitted two expert reports in this case. Exs. 12, 32. He requests
compensation at an hourly rate of $300.00 for 38.5 hours of work totaling $11,700.00. Ex. 34 at 53,
59. Dr. Mashimo received his Ph.D. in microbiology and immunology and his medical degree at
Albert Einstein College of Medicine in the Bronx in 1988. Ex. 13 at 1. He completed research
fellowships in gastroenterology and in cardiovascular research and developmental biology in 1995
and a postdoctoral fellowship in gastroenterology in 1997. Id. Since 2015, he has held the position
of associate professor of medicine in at Harvard Medical School. Id. at 2. He has also been a visiting
physician in gastroenterology at Brigham and Women’s Hospital in Boston since 2001. Id.
A search of prior cases reveals that this is Dr. Mashimo’s first time submitting an expert
report in the Vaccine Program. I note that his requested hourly rate of $300.00 is less than what has
been awarded to other gastroenterologists, including those with limited experience in the Vaccine
Program. See, e.g., Reske v. Sec’y of Health & Hum. Servs., No. 19-131V, 2023 WL 6464919, at
*2 (Fed. Cl. Spec. Mstr. Aug. 29, 2023) (awarding Petitioner’s pediatric gastroenterologist’s
requested rate of $500.00 per hour for his second case in the Vaccine Program); Zug v. Sec’y of
Health & Hum. Servs., No. 15-1166V, 2023 WL 3000821, at *6 (Fed. Cl. Spec. Mstr. Mar. 23,
2023) (reducing the requested hourly rate for Petitioner’s pediatric gastroenterologist from $600.00
to $500.00 per hour). Accordingly, I find that Dr. Mashimo’s requested rate is reasonable.
In reviewing Dr. Mashimo’s invoices, I find that the number of hours he billed was
unreasonably high. Dr. Mashimo’s two expert reports total 11 pages of analysis. See Exs. 12, 32. I
have examined his invoices line by line and determined that he spent approximately 9.1 hours (24%
of the total hours billed) in editing his draft expert reports (compared to eight hours, or 21% of the
total, on writing the reports). Furthermore, Dr. Mashimo spent approximately 6.9 hours (18% of the
total hours billed) on communications with counsel via telephone and email.
I have previously found that reduction of expert hours is appropriate where a particular kind
of task accounted for a disproportionate number of the total hours billed. See, e.g., Walters v. Sec’y
of Health & Hum Servs., No. 15-1380V, 2021 WL 3928993, at *7-8 (Fed. Cl. Spec. Mstr. June 16,
2021) (deducting 20% of expert’s billed hours for excessive time spent reviewing medical
literature); Reinhardt v. Sec’y of Health & Hum. Servs., No 17-1257V, 2021 WL 2373818, at *5
(Fed. Cl. Spec. Mstr. Apr. 22, 2021) (same). Based on my experience in reviewing similarly
situated cases, I find that a 20% reduction of Dr. Mashimo’s hours spent editing and communicating
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with counsel is appropriate. This results in a reduction of 3.42 hours at $300.00 per hour, for a total
reduction of $1,026.00.
Review of Dr. Mashimo’s invoices also reveals a mathematical error in the total number of
hours requested. Dr. Mashimo requests compensation in the amount of $11,700.00, but the
individual billing entries for his time add up to $11,550.00. See Ex. 34 at 53, 59. Accordingly, I will
deduct $150.00 from the total.
In addition to Dr. Mashimo’s fees, MCT Law requests reimbursement for a 2,500.00 fee to
Guidepoint Global Expert Services for access to their network of advisors, and documentation of
this cost was provided. Ex. 34 at 43. I have previously reimbursed a petitioner for Guidepoint’s fee
and will do so again in this instance. Scheffler v. Sec’y of Health & Hum. Servs., No. 19-260V, 2022
WL 16580270, at *6-7 (Fed. Cl. Spec. Mstr. Oct. 3, 2022).
I award Petitioner a total of $14,088.04 in attorneys’ costs.
III. Conclusion
Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
interim fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner’s
application, as follows:
• A lump sum in the amount of $104,066.44, representing reimbursement of Petitioner’s
interim attorneys’ fees and costs in the form of a check jointly payable to Petitioner and
Maglio Christopher and Toale, PA.
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.4
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
9