VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00336
Package ID: USCOURTS-cofc-1_21-vv-00336
Petitioner: Yacoub Innabi
Filed: 2021-01-08
Decided: 2025-01-14
Vaccine: varicella
Vaccination date: 2020-07-27
Condition: pain and decreased shoulder mobility in his left shoulder
Outcome: compensated
Award amount USD: 39970

AI-assisted case summary:
Yacoub Innabi filed a claim alleging that a varicella vaccination on July 27, 2020, caused pain and decreased shoulder mobility in his left shoulder. The respondent filed a Rule 4c report recommending against compensation, and both parties submitted expert reports. The case has been pending for over two years. On December 19, 2024, Yacoub Innabi filed a motion for interim attorneys' fees and costs, requesting $39,970.13. The Special Master granted the motion, finding that the petitioner acted in good faith and had a reasonable basis for the claim, and that an interim award was appropriate due to the protracted nature of the litigation and the costs incurred, including expert fees. The award of $39,970.13 was granted for interim attorneys' fees and costs.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00336-0
Date issued/filed: 2026-03-12
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 01/14/2025) regarding 53 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
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Case 1:21-vv-00336-UNJ Document 73 Filed 03/12/26 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 14, 2025
* * * * * * * * * * * * *
YACOUB INNABI, *
*
*
Petitioner, * No. 21-336V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Christopher Williams, Siri & Glimstad LLP, New York, NY, for petitioner.
Irene A. Firippis, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On December 19, 2024, Yacoub Innabi (“petitioner”), filed a motion for interim
attorneys’ fees and costs. Petitioner (“Pet’r”) Interim Fees Motion (“Int. Mot.”) (ECF No. 48).
For the reasons discussed below, I GRANT petitioner’s motion and find that petitioner’s former
attorney is entitled to $39,970.13 in interim attorneys’ fees and costs.
I. Procedural History
On January 8, 2021, petitioner filed his claim in the National Vaccine Injury
Compensation Program.2 Petition (ECF No. 1). Petitioner alleges that as a result of receiving a
varicella vaccination on July 27, 2020, he suffered from pain and decreased shoulder mobility in
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the
decision.” Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(“Vaccine Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42
U.S.C.A. § 300aa.

Case 1:21-vv-00336-UNJ Document 73 Filed 03/12/26 Page 2 of 5
his left shoulder. Id. Petitioner also filed medical records to support his claim. See Pet’r
Exhibits (“Exs.”) 2-8.
On January 10, 2023, respondent filed the Rule 4c report recommending against
compensation. Respondent (“Resp’t”) Report (“Rept.”) (ECF No. 34). In response, petitioner
filed an expert report from orthopedic surgeon, Dr. Jerome Piontek. Pet’r Ex. 9. Respondent
filed a responsive expert report by orthopedic surgeon, Dr. Geoffrey Adams. Resp’t Ex. A (ECF
No. 36). Petitioner filed a responsive expert report from Dr. Piontek on November 20, 2023.
Pet’r Ex. 20 (ECF No. 39).
I held a Rule 5 status conference on September 25, 2024. Rule 5 Order (ECF No. 45). I
recommended the parties engage in litigative risk settlement negotiations. Id. at 3. However,
respondent filed a status report stating that he intended to continue to defend this claim and
requested an opportunity to file a responsive expert report. Resp’t Status Rept. (ECF No. 46).
On December 19, 2024, petitioner filed this motion for interim attorneys’ fees and costs,
requesting a total of $39,970.13. Pet’r Int. Mot. at 12. More specifically, petitioner is requesting
$28,900.50 in attorneys’ fees and $11,069.63 in attorneys’ costs. Id. at 7. On December 31,
2024, respondent filed a response stating that he “defers to the Special Master to determine
whether or not petitioner has met her legal standard for an interim fees and costs award,” and that
respondent “requests that the Court exercise its discretion regarding petitioner’s request for an
award of interim attorneys’ fees and costs.” Resp’t Response at 3-4 (ECF No. 50). Petitioner
did not file a reply.3
This matter is now ripe for adjudication.
II. Entitlement to attorneys’ fees and costs
A. Legal standard
The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012).
Petitioners act in “good faith” if they filed their claims with an honest belief that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL
4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). In this case, respondent does not contest
petitioner’s good faith in bringing this claim and petitioner’s medical records establish that he
3 On January 6, 2024, petitioner filed a consented motion to substitute counsel, with Mr. Christopher Williams
entering his appearance on behalf of Mr. Andrew Downing. This interim attorneys’ fees decision resolves the
attorneys’ fees and costs for Mr. Downing. See Consented Motion to Substitute Counsel (ECF No. 51).
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Case 1:21-vv-00336-UNJ Document 73 Filed 03/12/26 Page 3 of 5
has an honest belief that his left shoulder pain was caused by the varicella vaccine. See Pet’r Ex.
1 at 1-2 (ECF No. 10).
To receive an award of fees and costs, a petitioner must also demonstrate the claim was
brought with a reasonable basis through objective evidence supporting “the claim for which the
petition was brought.” Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir.
2017); see also 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. 297, 303 (2011)). Petitioner
filed accompanying medical records to support his claim and expert reports to support vaccine
causation. Accordingly, I find that there is reasonable basis to award petitioner reasonable
interim attorneys’ fees and costs.
A. Interim awards
The Vaccine Act permits interim attorneys’ fees and costs. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of Health & Human Servs.,
609 F.3d 1372 (Fed. Cir. 2010). In Shaw, the Federal Circuit held that it was proper to grant an
interim award when “the claimant establishes that the cost of litigation has imposed an undue
hardship.” 609 F.3d at 1375. In Avera, the Federal Circuit stated that “[i]nterim fees are
particularly appropriate in cases where proceedings are protracted, and costly experts must be
retained.” 515 F.3d at 1352. I do not routinely grant interim fee applications. I generally defer
ruling on an interim fee application if: the case has been pending for less than 1.5 years
(measured from the date of filing); the amount of fees requested is less than $30,000; and/ or the
aggregate amount of expert costs is less than $15,000.00. If any one of these conditions exists, I
generally defer ruling until these thresholds are met or until an entitlement hearing has occurred.
These are, however, only informal requirements, and there are ultimately many factors bearing
on the merit of an interim fee application. I evaluate each one on its own merits.
In this case, the total amount of interim fees and costs being requested is $39,970.13 and
while the attorneys’ fees and costs are less than the amounts listed above, this case has been
pending for over two years, petitioner’s expert has already written two expert reports and more
fees are likely to be incurred as litigation in this matter continues. As such, I find that an award
of interim attorneys’ fees and costs is appropriate at this time.
III. Reasonable attorneys’ fees and costs
A. Legal standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar approach, a
court first determines “an initial estimate of a reasonable attorneys’ fee by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at
1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an
upward or downward departure from the initial calculation of the fee award based on other
specific findings. Id. at 1348. Although not explicitly stated in the statute, the requirement that
3

Case 1:21-vv-00336-UNJ Document 73 Filed 03/12/26 Page 4 of 5
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,
and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the
claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel
“should make a good faith effort to exclude from a fee request hour that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
B. Hourly rate
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon an individual’s experience. McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate Fee Schedules
for 2018-2025 can be accessed online.
Petitioner’s hourly rate requests for his attorneys, Mr. Andrew Downing and Ms.
Courtney Jorgenson consistent with the OSM Attorneys’ Forum Hourly Rate Fee Schedules and
consistent with past attorneys’ fees decisions granted by myself and other special masters. See
McCall v. Sec’y of Health & Hum. Servs., No. 18-152V, 2023 WL 1956354 (Fed. Cl. Spec. Mstr.
Feb. 13, 2023); Krietor v. Sec’y of Health & Hum. Servs., No. 19-1450V, 2023 WL 4571971, at
*2 (Fed. Cl. Spec. Mstr. June, 29, 2023); Fiske v. Sec’y of Health & Hum. Servs., No. 17-1378V,
2024 WL 4931334, at *2 (Fed. Cl. Spec. Mstr. Nov. 1, 2024). Accordingly, I find that the hourly
rates charged by the Downing, Allison & Jorgenson firm to be reasonable and no adjustments are
necessary.
C. Reasonable Hours 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, 3 F.3d at 1521 (quoting Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983)).
The overall hours spent on this matter appear to be reasonable. I have reviewed the
billing entries and find that they adequately describe the work performed on this case and the
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amount of time performed on each task. None of the entries appear to be redundant or
objectionable, and respondent has not identified any entries as objectionable. Accordingly,
petitioner’s interim attorneys’ fees shall be awarded in full.
D. Attorneys’ 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 is
requesting a total of $11,069.63 in attorneys’ costs. Int. Mot. at 7; Exhibit (“Ex.”) A at 12.
These costs include the filing fee, fees for obtaining medical records, postage charges, and the
fee associated with petitioner’s expert, Dr. Jerome G. Pointek.
Dr. Pointek is an orthopedic surgeon, and he charged a total of $10,500.00 at $400.00 per
hour for his work as an expert, which included reviewing petitioner’s medical records,
respondent’s Rule 4(c) report, and respondent’s expert’s reports and write two expert reports in
support of petitioner’s case. See Pet’r Exs. 8 & 20. Dr. Pointek’s hourly rate is consistent with
what other orthopedic surgeons with his education and professional experience have been
awarded in other Vaccine Program cases and shall be awarded his fees in full.
Petitioner’s costs have been supported with the necessary documentation and are
reasonable. Petitioner shall be awarded the full of amount of interim attorneys’ costs requested.
IV. Conclusion
For the reasons set forth above, I find that it is reasonable to compensate petitioner’s
former attorney, Mr. Andrew Downing, for interim attorneys’ fees and costs.
Accordingly, the petitioner is awarded interim attorneys’ fees and costs in the total
amount of $39,970.13, to be paid through an ACH deposit to petitioner’s former
counsel, Mr. Andrew D. Downing’s IOLTA account for prompt disbursement.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).
5