VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01374
Package ID: USCOURTS-cofc-1_20-vv-01374
Petitioner: Jesse D. Krebs
Filed: 2020-10-13
Decided: 2024-06-17
Vaccine: influenza
Vaccination date: 2019-10-16
Condition: transverse myelitis
Outcome: compensated
Award amount USD: 69703

AI-assisted case summary:
Jesse D. Krebs filed a petition for compensation alleging that he suffered from transverse myelitis as a result of an influenza vaccine administered on October 16, 2019. The petition was filed on October 13, 2020. Respondent initially asserted that the case was not appropriate for compensation. The parties engaged in settlement discussions for an extended period, involving life care planners and economists. On April 2, 2024, they indicated a desire to resume litigation. On October 12, 2023, Jesse D. Krebs filed a motion for interim attorneys' fees and costs. Respondent deferred to the special master's determination but stated satisfaction with the statutory requirements for an award. The Special Master found that the petition was brought in good faith with a reasonable basis, and that an interim award was appropriate due to the protracted nature of the proceedings and accumulated fees and costs. The Special Master awarded $69,703.35 in interim attorneys' fees and costs, jointly payable to the petitioner and his counsel, John Scanlon.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01374-0
Date issued/filed: 2024-07-09
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 6/17/24) regarding 65 DECISION of Special Master - Interim Attorney's Fees Signed by Special Master Herbrina Sanders. (sh) Service on parties made.
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Case 1:20-vv-01374-UNJ Document 68 Filed 07/09/24 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 17, 2024
* * * * * * * * * * * * * * *
JESSE D. KREBS, * No. 20-1374V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
John Scanlon, The Scanlon Group, Akron, OH, for Petitioner.
Madelyn Weeks, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1
On October 12, 2023, Jesse D. Krebs (“Petitioner”) filed a motion for interim attorneys’
fees and costs in the amount of $80,262.59,2 representing $57,770.20 in attorneys’ fees and
$22,492.39 in attorneys’ costs. Pet’r’s Mot. Int. Attorneys’ Fees & Costs at 1, ECF No. 57
[hereinafter “Pet’r’s Mot. for IAFC”]; Costs Chart, ECF No. 63-1.3 On October 25, 2023,
Respondent filed his response to Petitioner’s motion. Resp’t’s Resp., ECF No. 58. In his response,
Respondent states that he “defers to the special master to determine whether or not [P]etitioner has
met the legal standard for an interim fees and costs award[.]” Id. at 2. Respondent states that he “is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this
case[,]” and he “respectfully requests that the Court exercise its discretion and determine a
reasonable award for attorneys’ fees and costs.” Id. at 2–3. For the reasons stated below, I will
award interim attorneys’ fees and costs for Petitioner at this time.
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, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 Petitioner requested interim attorneys’ fees and costs of $80,262.39, but this appears to be an error. See
Pet’r’s Mot. for IAFC at 1.
3 Petitioner request attorneys’ costs for costs incurred through September 19, 2023. See Costs Chart.

Case 1:20-vv-01374-UNJ Document 68 Filed 07/09/24 Page 2 of 7
I. Procedural History
On October 13, 2020, Petitioner filed a petition for compensation pursuant to the National
Vaccine Injury Compensation Program (“Program”).4 42 U.S.C. §§ 300aa-1 to -34 (2012); Pet.,
ECF No. 1. Petitioner alleged that he suffered from transverse myelitis (“TM”) as a result of an
influenza (“flu”) vaccine administered on October 16, 2019. Pet. at 1. Petitioner filed medical
records, opinion letters from treating physicians, and an affidavit, on October 13, 2020, and he
filed medical records and a statement of completion on February 23, 2021. See ECF Nos. 1, 9–10.
On September 3, 2021, Respondent filed his Rule 4(c) report asserting that this case is not
appropriate for compensation. Resp’t’s Report at 1, ECF No. 18. Petitioner filed an expert report
from Lawrence Steinman, M.D., Dr. Steinman’s curriculum vitae (“CV”), and medical records
between November 24, 2021, and April 21, 2022. ECF Nos. 19–23. On April 21, 2022, I ordered
Respondent to file a responsive expert report, but on September 26, 2022, Respondent filed a
motion to suspend his expert report deadline to allow the parties to explore settlement discussions.
Scheduling Order, docketed Apr. 21, 2022; ECF No. 27. I granted Respondent’s motion, and the
parties began settlement discussions. See Order, ECF No. 28.
Petitioner filed motions for subpoena, which were granted, and additional medical records
between November 23, 2022, and February 16, 2023. ECF Nos. 29–41. The parties communicated
to Chambers that they had retained life care planners and were working to informally resolve this
case. Informal Comm., docketed Feb. 10, 2023. The parties continued settlement discussions,
involving life care planners and economists, through April of 2024. See ECF Nos. 43–51, 55, 59–
62. On April 2, 2024, the parties filed a joint status report indicating that they would like to resume
litigation. ECF No. 62.
II. Availability of Interim Attorneys’ Fees and Costs
A. Good Faith and Reasonable Basis
Under the Vaccine Act, petitioners may recover reasonable attorneys’ fees and costs only
if “the petition was brought in good faith, and there was a reasonable basis for which the petition
was brought.” § 15(e)(1). Respondent does not object to Petitioner’s motion on the basis of good
faith or reasonable basis, and I find that the statutory criteria for an award of interim fees and costs
are met.
B. Justification for an Interim Award
In Avera, the Federal Circuit stated that a special master may award attorneys’ fees and
costs on an interim basis. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir.
2008). The Court noted that such awards “are particularly appropriate in cases where proceedings
are protracted, and costly experts must be retained.” Id. Similarly, the Federal Circuit held in Shaw
that it is proper for a special master to award interim attorneys’ fees “[w]here the claimant
4 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
2

Case 1:20-vv-01374-UNJ Document 68 Filed 07/09/24 Page 3 of 7
establishes that the cost of litigation has imposed an undue hardship and that there exists a good
faith basis for the claim[.]” Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372, 1375 (Fed.
Cir. 2010).
Many cases in the Program are proceeding slower than they have in the past. See Miles v.
Sec’y of Health & Hum. Servs., No. 12-254V, 2017 WL 4875816 at *5 (Fed. Cl. Spec. Mstr. Oct.
4, 2017) (“[i]t may be months to years before an entitlement ruling is issued”); Abbott v. Sec’y of
Health & Hum. Servs., No. 14-907V, 2016 WL 4151689, at *4 (Fed. Cl. Spec. Mstr. July 15, 2016)
(“The delay in adjudication, to date, is due to a steady increase in the number of petitions filed
each year.”).
This case has been pending for more than three years, and litigation of this case remains
ongoing. Meanwhile, Petitioner’s fees and costs have accumulated in the course of prosecuting
this case. Petitioners’ counsel has requested $80,262.59 in fees and costs, and “[i]t cannot be
seriously argued that in essence loaning cases thousands of dollars for years is not a hardship.”
Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr.
Mar. 13, 2009). Because of the protracted nature of the proceedings and the accumulation of fees
and costs, I find an award of interim attorneys’ fees and costs reasonable and appropriate in this
case.
III. Reasonable Attorneys’ Fees
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . 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)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings. Id. at 1348.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d
at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895 n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
3

Case 1:20-vv-01374-UNJ Document 68 Filed 07/09/24 Page 4 of 7
A. Hourly Rate
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), mot. for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office
of Special Masters has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate
Fee Schedules for 2015–2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023, and 2024 can be
accessed online.5
Petitioner requests the following hourly rates for the work of her counsel: for Mr. John
Scanlon, $394.00 per hour for work performed in 2020, $414.00 per hour for work performed in
2021, $427.00 per hour for work performed in 2022, and $450.00 per hour for work performed in
2023; for Ms. Tracye Lanham, paralegal, , $141.00 per hour for work performed in 2020, $148.00
per hour for work performed in 2021, $153.00 per hour for work performed in 2022, and $161.00
per hour for work performed in 2023. Pet’r’s Mot. for IAFC, Ex. 1 ¶¶ 6–7.
Because this is Mr. Scanlon’s first case in the Program, neither he nor his paralegal has
established rates. See Pet’r’s Mot. for IAFC, Ex. 1 ¶ 5. For Mr. Scanlon’s work, Petitioner requests
the lowest forum rate listed on the OSM Fee Schedules for an attorney with twenty to thirty years
of experience for 2020 through 2023. For Ms. Lanham, Petitioner requests the lowest paralegal
rate listed on the OSM Fee Schedules for each year. I find these rates appropriate.
Mr. Scanlon’s office is located in Akron, Ohio, which is a part of a metropolitan area of
approximately 700,000 people and which is approximately forty miles outside of Cleveland, Ohio.
Akron and Cleveland are both located in the jurisdiction of the U.S. District Court for the Northern
District of Ohio, and special masters have previously awarded forum rates to attorneys based in
Cleveland. See Kami v. Sec’y of Health & Hum. Servs., No. 17-1468V, 2018 WL 7049397, at *2–
3 (Fed. Cl. Spec. Mstr. Nov. 30, 2018). Although the U.S. Bureau of Labor Statistics does not
identify Akron and Cleveland as being in the same metropolitan area,6 the U.S. Census Bureau
includes Cleveland and Akron in the Cleveland-Akron-Canton Combined Statistical Area.7
Furthermore, Cleveland and Akron have similar costs of living,8 and special masters have
previously awarded forum rates to attorneys located in smaller cities located thirty to forty miles
outside of larger cities. Moore v. Sec’y of Health & Hum. Servs., No. 15-90V, 2019 WL 423066,
at *5 (Fed. Cl. Spec. Mstr. Jan. 10, 2019) (determining that forum rates applied in a city
approximately forty miles outside of Miami, Florida); Razka v. Sec’y of Health & Hum. Servs.,
No. 14-1224V, 2017 WL 3165479, at *2 (Fed. Cl. Spec. Mstr. June 30, 2017) (finding forum rates
appropriate for an attorney based approximately thirty-two miles outside of Chicago, Illinois).
5 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
6 U.S. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, May 2023 Metropolitan
and Nonmetropolitan Area Definitions, https://www.bls.gov/oes/current/msa_def.htm (last visited June
16, 2024).
7 U.S. Census Bureau, Combined Statistical Areas of the United States and Puerto Rico March 2020,
https://www.census.gov/geographies/reference-maps/2020/geo/csa.html (last visited June 16, 2024).
8 Best Places, Cost of Living Comparison Calculator, Cleveland, Ohio vs. Akron, Ohio,
http://www.bestplaces.net/cost-of-living/cleveland-oh/akron-oh/75000 (last visited June 16, 2024).
4

Case 1:20-vv-01374-UNJ Document 68 Filed 07/09/24 Page 5 of 7
Thus, I find it appropriate to award Petitioner’s counsel forum rates, similar to an attorney based
in Cleveland, Ohio.
I find Mr. Scanlon’s requested rates commensurate with his experience. Although this is
his first case in the Program, he stated in his affidavit submitted with Petitioner’s motion that he
was admitted to the Ohio Bar in 1994 and has “practiced exclusively in the area of [p]laintiff’s
personal injury litigation[]” since that year. Pet’r’s Mot. for IAFC, Ex. 1 ¶¶ 3–4. Thus, Mr. Scanlon
had approximately twenty-six years of experience in practice when beginning work on this case in
2020. I find that Mr. Scanlon appropriately requested rates at the bottom of the listed ranges for
attorneys with twenty to thirty years of experience to account for his lack of his experience in the
Program. Likewise, I find the rates requested for Ms. Lanham, which are similarly at the bottom
of the listed ranges for paralegals, appropriate.
B. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Billing for administrative tasks is not appropriate. See
Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (stating that services that are “primarily of
a secretarial or clerical nature . . . should be considered as normal overhead office costs included
within the attorneys' fee rates”); see also Isom v. Sec'y of Health & Hum. Servs., No. 94-770, 2001
WL 101459, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2001) (agreeing with Respondent that tasks such
as filing and photocopying are subsumed under overhead expenses); Walters v. Sec’y of Health &
Hum. Servs., No. 15-1380V, 2022 WL 1077311, at *5 (Fed. Cl. Spec. Mstr. Feb. 23, 2022) (failing
to award fees for the review of CM/ECF notifications and the organization of the file); McCulloch,
2015 WL 5634323, at *26 (noting that clerical and secretarial tasks should not be billed at all,
regardless of who performs them).
Upon review of the submitted billing records, I find that the time billed reasonable for the
work performed in this case The invoice entries are sufficiently detailed for an assessment to be
made of the entries’ reasonableness. However, a small reduction is necessary due to time billed
for filing Petitioner’s petition on October 13, 2020. Pet’r’s Mot. for IAFC, Ex. 3 at 1. This results
in a deduction of $105.75.
C. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $22,492.39 in attorneys’ costs. Costs Chart. This is comprised of costs for acquiring
records and a certificate of good standing. Id. It also comprises an application fee to the U.S. Court
of Federal Claims, the Court’s filing fee, costs for scanning documents, costs for Dr. Steinman’s
retainer, costs related to Petitioner’s life care planner and economic expert, and a payment to a
video services company. Id. Petitioner has provided adequate documentation for some of these
expenses. However, some deductions are necessary.
Petitioner requests reimbursement for $6.50 for medical records on April 7, 2020, for
$26.50 for acquiring his birth certificate on April 21, 2020, for $6.50 for medical records on June
5, 2020, and for $63.49 for medical records on July 21, 2020. Costs Chart. However,
documentation of these expenses appears missing from the receipts Petitioner provided. See Pet’r’s
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Mot. for IAFC at 16–64.9 I will therefore deduct these costs from Petitioner’s award. Petitioner
requests reimbursement for two separate charges of $19.50 and $22.68 for acquiring medical
records. Id. at 24–25. However, these appear to be the same expense, as the bill for $19.50 also
requests $3.18 for postage and as Petitioner did not provide a separate bill corresponding to the
$22.68 check he filed. See id. Thus, I will deduct $19.50 from Petitioner’s award.10
Petitioner’s costs chart indicates that he is requesting reimbursement for a $2,000.00 life
care planning expert retainer paid to Ripple Life Care Planning and a $1,500.00 economist expert
retainer paid to Constable Consulting, LLC. Costs Chart. He is also requesting $7,625.00 for a life
care plan report from Ripple Life Care Planning and $6,637.50 for an economic expert wage loss
report from Constable Consulting, LLC. Id. Petitioner has also requested reimbursement for a
$400.00 payment to Mirror Image Video for “Day in the Life Video Services.” Id. Petitioner’s
payments to Constable Consulting are sufficiently documented, and the documentation includes a
description of the work performed and the total hours expended. See Pet’r’s Mot. for IAFC at 44.
These costs appear reasonable for the work performed in this case. However, Petitioner has not
provided sufficient documentation related to Ripple Life Care Planning and Mirror Image Video
to support that these costs are reasonable. Petitioner filed a check for Ripple Life Care Planning’s
$2,000.00 retainer and a receipt for $7,625.00 paid to the company based on a $9,625.00 invoice.11
However, Petitioner has not provided a bill from Ripple Life Care Planning describing the work
performed or hours expended in this case. Thus, I cannot evaluate whether this amount is
reasonable, and I will deduct $9,625.00 from Petitioner’s award.12 Although Petitioner has
provided an invoice from Mirror Image Video explaining the work performed, it is unclear from
the receipts and Petitioner’s motion why this expense was necessary to further this case, or whether
it was requested by Petitioner’s life care planner or economic expert. Thus, I will not reimburse
this $400.00 cost at this time.
Petitioner also requests reimbursement for a $281.00 application fee to the U.S. Court of
Federal Claims and for a $25.00 cost for acquiring a certificate of good standing, presumably to
support Mr. Scanlon’s application, from the Supreme Court of Ohio. Costs Chart; Pet’r’s Mot. for
IAFC at 57. However, “[c]osts associated with bar admission to the Court of Federal Claims are
not reimbursable in the Vaccine Program[.]” Romo-Villanueva v. Sec’y of Health & Hum. Servs.,
No. 18-1609V, 2022 WL 1197463, at *3 (Fed. Cl. Spec. Mstr. Mar. 18, 2022). These issues result
in a total deduction of $10,453.49.
IV. Conclusion
Petitioner’s motion is hereby GRANTED. In accordance with the Vaccine Act, 42 U.S.C.
§ 300aa-15(e), the undersigned has reviewed the billing records and costs in this case and finds
9 Because Petitioner did not mark these receipts with exhibit numbers, citations to these receipts refer to
the page numbers generated by CM/ECF.
10 Petitioner’s receipts include a October 27, 2020 bill for $190.76 for medical record copies, but
Petitioner’s costs chart does not indicate that he is requesting reimbursement for this expense. See Pet'r's
Mot. for IAFC at 22; Costs Chart. Thus, I will not reimburse this cost at this time. Petitioner may request
reimbursement for this cost, and file adequate documentation, in a future motion for attorneys’ fees and
costs.
11 Petitioner presumably deducted the retainer when paying this bill.
12 Petitioner may request reimbursement for these costs, as well as other costs not reimbursed at this time,
with appropriate documentation in a future motion for attorneys’ fees and costs.
6

Case 1:20-vv-01374-UNJ Document 68 Filed 07/09/24 Page 7 of 7
that Petitioner’s request for fees and costs, other than the reductions delineated above, is
reasonable. Based on the above analysis, the undersigned finds that it is reasonable to compensate
Petitioner and her counsel as follows:
Attorneys’ Fees Requested $57,770.20
(Reduction to Fees) - ($105.75)
Total Attorneys’ Fees Awarded $57,664.45
Attorneys’ Costs Requested $22,492.39
(Reduction of Costs) -
($10,453.49)
Total Attorneys’ Costs Awarded $12,038.90
Total Attorneys’ Fees and Costs $69,703.35
Accordingly, I award a lump sum in the amount of $69,703.35 to be issued in the form of
a check payable jointly to Petitioner and Petitioner’s counsel, Mr. John Scanlon, for interim
attorneys’ fees and costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the above Decision.13
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
13 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
7