VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02032 Package ID: USCOURTS-cofc-1_21-vv-02032 Petitioner: Jerilyn Greenhaw Filed: 2021-10-18 Decided: 2024-01-24 Vaccine: influenza Vaccination date: 2018-10-02 Condition: small fiber neuropathy Outcome: denied Award amount USD: AI-assisted case summary: Jerilyn Greenhaw, a 41-year-old adult, received an influenza vaccine on October 2, 2018. She alleged that this vaccine caused her to develop small fiber neuropathy (SFN), oropharyngeal dysphagia, gastric dysmotility, and degenerative disease of the nervous system. Ms. Greenhaw presented medical records detailing symptoms such as memory loss, stuttering, body aches, difficulty with word finding, and a changed gait, which began to appear within months of her vaccination. Her symptoms progressed, and she was eventually diagnosed with SFN in August 2019 based on a skin biopsy. She also had pre-existing conditions including sleep apnea, GERD, anxiety, depression, and tested positive for ANA. The Secretary of Health and Human Services disputed her claim, arguing that many of her symptoms predated the vaccination and that she failed to establish a causal link. The case proceeded as an off-Table claim, meaning Ms. Greenhaw had to prove causation. She submitted multiple expert reports from Dr. Gurney Pearsall, who opined that the flu vaccine triggered her SFN via molecular mimicry. However, the Special Master found Dr. Pearsall's reports to be inadequate, noting his lack of specific expertise in vaccine-related neuropathy and his failure to substantively apply the theory of molecular mimicry to the facts of Ms. Greenhaw's case. Despite multiple opportunities and extensions, the court determined that Ms. Greenhaw had not presented sufficient evidence to demonstrate a reliable medical theory connecting the flu vaccine to her condition. Consequently, her claim for compensation was denied. Theory of causation field: Off-Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02032-0 Date issued/filed: 2024-01-24 Pages: 15 Docket text: PUBLIC DECISION (Originally filed: 1/2/2024) regarding 81 DECISION of Special Master Signed by Special Master Christian J. Moran. (dksc) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 1 of 15 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * * JERILYN GREENHAW, * No. 21-2032V * Petitioner, * * Special Master Christian J. Moran v. * * Filed: January 2, 2024 SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * Bradley S. Freedberg, Denver, CO, for petitioner; Benjamin Patrick Warder, United States Dep’t of Justice, Washington, DC, for respondent. DECISION DENYING ENTITLEMENT TO COMPENSATION1 Jerilyn Greenhaw alleged that the influenza (“flu”) vaccine caused her to suffer from small fiber neuropathy (“SFN”), oropharyngeal dysphagia, gastric dysmotility, and degenerative disease of the nervous system. Am. Pet., filed Apr. 4, 2022. The Secretary disputed this allegation, contending that Ms. Greenhaw did not have a comprehensive diagnosis that explained her various complaints and that many of her symptoms predated the administration of her flu vaccine. Resp’t’s Rep., filed June 6, 2022. The Secretary contested that Ms. Greenhaw failed to prove that there is a causal link between the flu vaccination and her conditions. Id. 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), the parties have 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. Any changes will appear in the document posted on the website. Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 2 of 15 Ms. Greenhaw has not presented evidence to fulfill her burden of proof, despite presenting four reports from a doctor. She has not established with preponderant evidence a theory by which the flu vaccine can cause her conditions. She is not entitled to compensation. Thus, her case is DENIED. I. Background Material2 Ms. Greenhaw presented information about her health via two methods, medical records and affidavits. These are discussed below. A. Medical Records Ms. Greenhaw was born in 1977. Before her vaccination, significant medical problems included sleep apnea, gastroesophageal reflux disease (“GERD”), anxiety, depression, insomnia, and perioral dermatitis. Exhibit 15 at 1- 2; Exhibit 10 at 303, 307. She tested positive for anti-nuclear antibodies (“ANA”). Exhibit 10 at 293. Ms. Greenhaw was 41 years old when she received the flu vaccine on October 2, 2018. In November 2018, she reported to a medical assistant, Cynthia Cantu, that “she has been noticing some changes such as memory loss and short term memory [and] that she is starting to stutter within the past 6 months.” Exhibit 2 at 1. Ms. Greenhaw saw a physician assistant, Erin Villela to whom she complained of “several months of bodyaches from her shoulders/arms and lower back [and] having difficulty with word finding.” Exhibit 10 at 313. She reported that her gait had changed, causing her to trip often and that she was seeking treatment from a rheumatologist for mixed connective tissue disease. Id. The physical examination did not reveal any abnormality with sensation and gait. Id. at 316. Ms. Villela ordered an MRI of her brain, refilled her Xanax prescription, and discussed the need for sleep. Id. at 317. Ms. Greenhaw also expressed her concerns to a nurse, Sharon Artman, stating that approximately 6 months ago, she had started to experience strange symptoms, including “tripping over [her] right leg,” difficulty with expressing her thoughts, “mix[ing] up words,” repeating herself, memory problems, problems with hand-eye coordination, difficulty writing the letters of the alphabet, muscle twitches and tics in the legs and feet, and stabbing pelvic pains. Exhibit 2 at 1. In late November 2018, Ms. Greenhaw’s lab 2 The facts are presented summarily because this case is being resolved on an element of proof, the causal theory allegedly connecting the flu vaccine to Ms. Greenhaw’s conditions. For more detailed accounts of the medical records, see Resp’t’s Rep., filed June 6, 2022. 2 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 3 of 15 testing for autoimmune disease showed the presence of ANA with a speckled pattern. Exhibit 10 at 325. The MRI showed “minor nonspecific hemispheric leukoencephalopathy with mild changes in the pons.” Exhibit 1 at 33. There was no evidence of an acute abnormality or mass effect. Id. In December 2018, Ms. Greenhaw saw a neurologist, Dr. Walter Werchan, and a rheumatologist, Dr. Sonia Yousuf. Dr. Werchan noted Ms. Greenhaw’s complaints, including an unsteady gait, tripping over her feet, dropping things, memory loss, cramps in her hands and feet, difficulty speaking, muscle twitches, difficulty finding words, memory issues, cramping in her hands and feet, pelvic pain, loss of appetite, tremors, ringing in her ears, urinary changes, pelvic pain, fatigue, itching, and jaw pain. Exhibit 3 at 6. She reported that she started having “right foot drop” in mid-November 2018 and “for the last 6 months, she has had ‘mental fog’ with difficulty thinking, mixing up words, repeating sentences, [and] short-term memory problems.” Id. Dr. Werchan stated that her unsteady gait and problems with dropping things were of unclear etiology; however, he opined that these symptoms might be due to neuropathy, radiculopathy or myelopathy. Id. at 4. Dr. Werchan recommended her to have an MRI of the cervical spine and electrodiagnostic testing to identify the cause of her unsteady gait and problems with dropping things. Id. Ms. Greenhaw presented to Dr. Yousuf for a one-year follow-up appointment for widespread myalgias and positive ANA. Exhibit 2 at 3. Dr. Yousuf wrote that she initially developed symptoms of Raynaud syndrome in February 2017 and attributed her myalgias to fibromyalgia. Id. at 6. Dr. Yousuf reviewed her repeat ANA results (1:40 with speckled and homogenous pattern) and opined that there was “no convincing evidence of connective tissue disease besides Raynauds and ANA is low titer positive.” Id. In January 2019, Ms. Greenhaw underwent MRIs of her lumbar and cervical spine. Although the lumbar spine MRI revealed spinal canal narrowing at the L4- L5 vertebrae, there was no localized neural impingement. Exhibit 1 at 17. The cervical spine MRI did not reveal any signal abnormalities, but it showed spondylosis of the C6-C7 vertebrae producing moderate left foraminal and mild spinal canal stenosis. Id. at 19. Several months later, in June 2019, Dr. Werchan suspected the diagnosis of small fiber neuropathy. At this appointment, Dr. Werchan reviewed Ms. Greenhaw’s past medical history and noted: “She . . . has intermittent itching in hands and feet and feels it is neuropathic . . . [S]he continues with ‘drop foot’ and 3 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 4 of 15 dragging her feet at times . . . She also has [a] new complaint of tremor intermittent in bilateral upper [extremities], nothing improves or worsens.” Exhibit 27 at 172. Based on these reported symptoms, Dr. Werchan referred her to a neurologist, Dr. Yessar Hussain, to further examine her. Id. at 169. About two months later, in August 2019, Ms. Greenhaw presented to Dr. Hussain. Exhibit 12 at 5. Ms. Greenhaw reported that she first noticed her symptoms in late 2018, which included dragging her feet, a clumsy grip, brain fogginess. Id. She explained that her “symptoms progressed and started having sensory symptoms too, on and off, diffuse, including her lower and upper extremities [and] [t]hen started having muscle fasciculation at [lower extremities], no triggers, and cramps at hands and feet.” Id. Ms. Greenhaw’s report of these symptoms prompted Dr. Hussain to order a skin biopsy for evaluation of small fiber neuropathy. Id. at 7. The results of the skin biopsy, collected on September 23, 2019, confirmed a diagnosis of small fiber neuropathy. Id. at 8. From 2019 to 2021, the medical records show that Ms. Greenhaw continued to suffer from various symptoms. In addition to small fiber neuropathy, notable diagnoses included GERD (Exhibit 10 at 212), dysphagia (Exhibit 10 at 212), myalgia (Exhibit 2 at 11), pontine lesion (Exhibit 11 at 2), Sjogren’s syndrome (Exhibit 6 at 9) and degenerative disease of the nervous system (Exhibit 6 at 9). B. Affidavits Ms. Greenhaw presented three affidavits to document her health before and after the vaccine. In the damages affidavit, she stated that before the vaccination, she was able to enjoy life with her family members, dine out at restaurants, hike and shoot guns at the shooting range. Exhibit 18. She explained that the “acute severe wide-ranging array of symptoms” due to the vaccine strained her relationship with her family members and made it difficult to eat, hike, and shoot at the shooting range. Id. She did not think the vaccination was beneficial for her health. Id. at 6. She believed that the vaccine caused her to suffer from a slew of neurological deficits, such as difficulty finding words and speaking in sentences and tripping over her feet when walking, and various medical issues, such as swallowing without aspiration. Id. at 3. In Ms. Greenhaw’s affidavit regarding the timeline of events, she considered herself to be in relatively good health before the vaccination. Exhibit 25 at 1. She had some medical problems, including undifferentiated connective tissue disease, Raynaud’s, some thinning of hair, general muscle aches, and chronic long-term 4 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 5 of 15 memory issues. Id. However, after the vaccination, she noticed that she exhibited strange symptoms, such as repeating herself, mixing up words, and difficulty expressing her thoughts. She first realized these symptoms on November 2, 2018, exactly a month after her vaccination on October 2, 2018. Id. Later that month, she had an episode where she tripped over her foot 7 times in 15 minutes at work and an incident during which she was so light-headed that she “felt like [she] was not even inside [her] body . . . [and her] head was floating somewhere . . .” Id. at 2. When she showered, she felt “extremely short of breath [and her] legs and arms got very shaky.” Id. at 2. She had stabbing pains all over her body and eventually saw a neurologist, Dr. Werchan, who said she likely had “peripheral neuropathy.” Id. at 3. She wrote that her labs confirmed that she had small fiber neuropathy. Id. at 4. In Ms. Greenhaw’s onset affidavit, she clarified that she did not have the following problems in May 2018: tripping over her feet, difficulty expressing herself, mixing up words, repeating herself, memory loss, eye-hand coordination, writing letters, muscle twitches, and stabbing pelvic pain. Exhibit 28. She noted that she started to develop these symptoms 10 days after the flu shot and was “unsure of the exact date but can say with certainty that they were present in early November.” Id. at 2. The symptoms began slowly but “hit like a wall in mid November.” Id. II. Procedural History Ms. Greenhaw, appearing as pro se, initiated a claim in the National Vaccine Injury Compensation Program by filing a petition on October 18, 2021. She alleged that she suffered from various injuries, including small fiber neuropathy, leukoencephalopathy, and myositis as a result of receiving the flu vaccine on October 2, 2018. In November 2021, she retained an attorney, Mr. Bradley Freedberg, to represent her. With his assistance, she filed medical records and confirmed that the record was complete on January 14, 2022. This statement of completion was subsequently amended on February 23, 2022. The case was reassigned to the undersigned on February 4, 2022. A status conference was held on March 2, 2022 to discuss the next steps in the case. Since Ms. Greenhaw retained counsel, the undersigned suggested she submit an amended petition, which she did on April 4, 2022. In the amended petition, she alleged that 5 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 6 of 15 the flu vaccine caused her to suffer from small fiber neuropathy, oropharyngeal dysphagia, gastric dysmotility, and degenerative disease of the nervous system. After reviewing the records, the Secretary contended that the medical evidence did not support Ms. Greenhaw’s allegation and recommended that compensation be denied. Resp’t’s Rep., filed June 6, 2022. Specifically, the Secretary argued that she did not have a comprehensive diagnosis that explained her various complaints and that many of her symptoms predated the administration of her flu vaccine. Therefore, the undersigned issued an order to direct Ms. Greenhaw to answer specific questions regarding her medical records and the onset of her symptoms. Order, issued July 6, 2022. She filed the onset affidavit on September 30, 2022. Once the record was largely complete, the undersigned proposed a set of instructions to facilitate the process of presenting expert reports and solicited comments. Order, issued Oct. 25, 2022. Ms. Greenhaw suggested slight changes. Pet’r’s Resp., filed Nov. 8, 2022. Ms. Greenhaw’s proposal was accepted and the Expert Instructions were made final on November 10, 2022. Ms. Greenhaw was required to submit an expert report by January 23, 2023. Ms. Greenhaw sought for, and was granted, three extensions of time to file this expert report. On May 12, 2023, she filed a report from a doctor she retained in this litigation, Gurney Pearsall. Exhibit 34. This report is eight pages and does not cite any medical articles. Dr. Pearsall opined “the flu vaccine administered on October 2, 2018, unequivocally triggered her small fiber neuropathy and its distressing symptoms.” Id. at 8. Dr. Pearsall did not assert that the vaccination caused her to suffer other problems alleged in the amended petition, such as oropharyngeal dysphagia, gastric dysmotility, and degenerative disease of the nervous system. Consequently, the remainder of this decision focuses on the condition that Ms. Greenhall’s expert has advanced with the most clarity---small fiber neuropathy. A status conference was held on June 1, 2023 during which the undersigned stated that Dr. Pearsall’s expert report did not comprehensively address the issues in respondent’s Rule 4(c) report, particularly with regard to the disputed diagnosis that it could be something other than small fiber neuropathy. Order, issued June 2, 2, 2023. Dr. Pearsall’s discussion of molecular mimicry was cursory. Id. The undersigned, therefore, required Ms. Greenhaw to submit an amended expert report from Dr. Pearsall. 6 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 7 of 15 Ms. Greenhaw filed an amended expert report on July 10, 2023. Exhibit 41. This report is two pages with a third page, listing two medical articles about cognitive impairments in patients with chronic pain. Id. This report remained inadequate on the topic of causation. The undersigned ordered petitioner to show cause on why the case should not be dismissed due to the ineffective expert reports. The undersigned expressed that “[p]etitioner has not carried her burden of presenting a minimally persuasive case that the flu vaccination caused her conditions.” Order to Show Cause, issued July 26, 2023. While Dr. Pearsall explained how the theory of molecular mimicry generally applies to vaccine cases, he did not specifically apply it to the facts in Ms. Greenhaw’s case. Id. Ms. Greenhaw responded to the show cause order by filing a second amended expert report on August 1, 2023. Exhibit 44. That expert report was, once again, insufficient because Dr. Pearsall had ruled out alternative causes of petitioner’s condition(s) and primarily relied on the theory of molecular mimicry to explain that the flu vaccine caused petitioner’s injuries. The undersigned emphasized that the Federal Circuit required more than a “mere showing of a proximate temporal relationship between vaccine and injury” to satisfy Ms. Greenhaw’s burden. Ms. Greenhaw was afforded one last opportunity to submit a revised expert report to discuss molecular mimicry. Ms. Greenhaw filed a third amended expert report on August 21, 2023. Exhibit 47. Petitioner’s counsel followed up with a status report in September 2023, explaining that the undersigned’s request is “impossible to comply with and that the medical records indicate that her immunization more likely than not catalyzed her sequence of symptoms.” Petitioner’s counsel urged the undersigned to permit the case to proceed with the existing expert reports. He pointed out that there have been “numerous VICP claimants [who] have proven entitlement in claims involving small fiber neuropathy.” Pet’r’s Status Rep., filed Sept. 13, 2023. The undersigned has not ordered respondent to present expert reports. For the reasons explained below, this case will not advance further. 7 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 8 of 15 III. Standards of Adjudication A. Burden of Proof A petitioner is required to establish his case by a preponderance of the evidence. 42 U.S.C. § 300aa-13(1)(a). The preponderance of the evidence standard requires a “trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted). Proof of medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). Distinguishing between “preponderant evidence” and “medical certainty” is important because a special master should not impose an evidentiary burden that is too high. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379-80 (Fed. Cir. 2009) (reversing a special master’s decision that petitioners were not entitled to compensation); see also Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357 (Fed. Cir. 2000); Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (disagreeing with the dissenting judge’s contention that the special master confused preponderance of the evidence with medical certainty). B. Elements of Proof When pursuing an off-Table injury, a petitioner bears a burden “to show by preponderant evidence that the vaccination brought about [the vaccinee’s] 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.” Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Because special masters are often called upon to evaluate the persuasiveness of the theory of molecular mimicry, the Court of Federal Claims and the Court of Appeals for the Federal Circuit have considered molecular mimicry in their appellate role opinions from special masters. In December 2019, the undersigned identified the leading precedents as W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352 (Fed. Cir. 2013), and Caves v. Sec’y of Dep’t. of Health & Hum. Servs., 100 Fed. Cl. 119 (2011), aff’d sub nom., 463 F. App’x 932 (Fed. Cir. 2012). Tullio v. Sec’y of Health & Hum. Servs., No. 15-51V, 2019 WL 7580149, at *12- 8 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 9 of 15 14 (Fed. Cl. Spec. Mstr. Dec. 19, 2019), mot. for rev. denied, 149 Fed. Cl. 448 (2020). While Tullio describes those cases in more detail, their essence appears to be that although molecular mimicry is accepted in some contexts, special masters may properly require some empirical evidence to show that a particular vaccine can cause a particular disease. In the next approximately three years, appellate authorities reviewing decisions involving molecular mimicry have generally endorsed the approach of looking for some evidence that persuasively shows that a portion of a vaccine resembles a portion of human tissue, which contributes to causing the disease, and that the immune system will respond to the relevant amino acid sequence. Chronologically, the list of more recent appellate cases begins with the opinion in Tullio, which denied the motion for review. 149 Fed. Cl. 448, 467-68 (2020). Another example in which the Court of Federal Claims held that the special master did not elevate the petitioner’s burden of proof in the context of evaluating the theory of molecular mimicry is Morgan v. Sec’y of Health & Hum. Servs., 148 Fed. Cl. 454, 476-77 (2020), aff’d in non-precedential opinion, 850 F. App’x 775 (Fed. Cir. 2021). In Morgan, the Chief Special Master found that petitioner had not presented persuasive evidence about a relevant antibody. Id. at 477. The Chief Special Master also noted that the articles about the relevant disease do not list the wild flu virus as potentially causing the disease. Id. When examining this analysis, the Court of Federal Claims concluded: “the Chief Special Master did not raise the burden of causation in this case; petitioner simply failed to meet it.” Id. The Federal Circuit also evaluated the Chief Special Master’s approach in Morgan. The Federal Circuit concluded: “We discern no error in the special master’s causation analysis.” 850 F. App’x 775, 784 (Fed. Cir. 2021). Most other recent appellate cases follow this path. See, e.g., Duncan v. Sec’y of Health & Hum. Servs., 153 Fed. Cl. 642, 661 (2021) (finding the special master did not err in rejecting a bare assertion of molecular mimicry); Caredio v. Sec’y of Health & Hum. Servs., No. 17-79V, 2021 WL 6058835, at *11 (Fed. Cl. Dec. 3, 2021) (indicating that a special master did not err in requiring more than homology and citing Tullio); Yalacki v. Sec’y of Health & Hum. Servs., 146 Fed. Cl. 80, 91-92 (2019) (ruling that a special master did not err in looking for reliable evidence to support molecular mimicry as a theory); Dennington v. Sec'y of Health & Hum. Servs., 167 Fed. Cl. 640, 653-54 (2023) (discussing that a special master did not err in requiring more information on how molecular mimicry applies to petitioner’s case), appeal docketed, No. 2024-1214 (Fed. Cir. Dec. 1, 2023); but 9 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 10 of 15 see Patton v. Sec’y of Health & Hum. Servs., 157 Fed. Cl. 159, 169 (2021) (finding that a special master erred in requiring petitioner submit a study to establish medical theory causally connecting flu vaccine to brachial neuritis). C. Procedures for Evaluating Evidence As inquisitorial judicial offers, special masters have been afforded broad authority to seek information. Congress stated special masters (1) may require such evidence as may be reasonable and necessary, (2) may require the submission of such information as may be reasonable and necessary, (3) may require the testimony of any person and the production of any documents as may be reasonable and necessary. 42 U.S.C. § 300aa–12(d)(3)(B). This discretion, however, is also limited by other procedural rules. See Simanski v. Sec’y of Health & Hum. Servs., 671 F.3d 1368, 1380 (Fed. Cir. 2012). A special master’s engagement in the presentation of evidence advances the goal of quicker litigation. “One reason that proceedings are more expeditious in the hands of special masters is that the special masters have the expertise and experience to know the type of information that is most probative of a claim.” Doe v. Sec'y of Health & Hum. Servs., 76 Fed. Cl. 328, 338–39 (2007). A special master’s requesting information can “mean[] he did his job.” Id. at 339. After special masters receive evidence, they may comment upon the persuasiveness of the evidence. See Vaccine Rule 5(a) (allowing special masters to “evaluate the parties’ respective positions” and to “present tentative findings”). When a review of the evidence reveals that a petitioner’s expert report is inadequate, special masters may resolve the case without requiring the Secretary to submit rebuttal evidence or to file a motion for summary judgment. Duncan v. Sec’y of Health & Hum. Servs., 153 Fed. Cl. 642, 656-57 (2021); see also Deidrich v. Sec’y of Health & Hum. Servs., 137 Fed. Cl. 51 (2018); Hayman v. United 10 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 11 of 15 States, No. 02-725, 2005 WL 6124101 (May 9, 2005).3 Before special masters resolve a case without holding a hearing, special masters must allow the losing party an opportunity to present its case. Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d 1362, 1365 (Fed. Cir. 2020) (recognizing that a special master may decide a case on written submissions without a motion for summary judgment); Duncan, 153 Fed. Cl at 657-58 (citing Kreizenbeck). IV. Analysis Ms. Greenhaw’s case presents two questions, one procedural and the other evidentiary. The first question is whether Ms. Greenhaw has been given a fair opportunity to present her evidence. The answer is yes. The second question is whether the evidence Ms. Greenhaw has presented carries her burden of proof. The answer is no. Thus, Ms. Greenhaw’s case is dismissed. A. Fair Opportunity to Present Evidence Multiple times Ms. Greenhaw was informed about the need to present evidence and was given chances to present the evidence. Mr. Freedberg, as an attorney who has represented other petitioners in the Vaccine Program, presumably came to the case with some background knowledge. Even in the absence of any general information, Ms. Greenhaw should have learned about her evidentiary burdens from the Secretary’s report. See Simanski v. Sec’y of Health & Hum. Servs., 96 Fed. Cl. 588, 605 (2010) (noting that a purpose of the Rule 4 report is to alert all parties about the issues in the case), rev’d on other grounds, 671 F.3d 1368 (Fed. Cir. 2012). Here, the Secretary advised Ms. Greenhaw that her medical records do not meet the Althen prongs and that she had not retained an expert to support her claim. Resp’t’s Rep. at 18.4 To assist in the production of a meaningful expert report, the undersigned proposed instructions, setting out the minimum expected content. Ms. Greenhaw thereafter proposed some changes to the instructions, which were accepted and made final on November 10, 2022. 3 Although the respondent in Hayman is identified in the caption as the “United States,” the opinion resolves a motion for review filed after a special master’s decision. 4 Ms. Greenhaw has not argued that the medical records entitle her to compensation. Thus, her case rises or falls on the strength of the report of Dr. Pearsall. 11 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 12 of 15 About half a year later, Ms. Greenhaw submitted an initial expert report from Dr. Pearsall. Dr. Pearsall opined that the flu vaccine triggered small fiber neuropathy and minimally addressed molecular mimicry. The undersigned cautioned that such a cursory discussion of molecular mimicry would not help petitioner prevail on her claim and ordered Ms. Greenhaw to file an amended report. Order, issued June 2, 2023. Ms. Greenhaw presented an amended report on July 10, 2023, which was inadequate and prompted the undersigned to issue an order to show cause. Order to show cause, issued July 26, 2023. The undersigned advised petitioner’s counsel to review Tullio v. Sec’y of Health & Human Servs., No. 15-51V, 2019 WL 7580149, at *13-14 (Fed. Cl. Spec. Mstr. Dec. 19, 2019) because that decision cites various cases discussing molecular mimicry. Id. Ms. Greenhaw subsequently filed a second amended expert report on August 1, 2023 in an attempt to discuss molecular mimicry more substantively. However, this report remained insufficient. The undersigned, again, afforded petitioner “one last opportunity” to submit an amended expert report. The undersigned reminded petitioner’s counsel to examine the caselaw in Tullio when addressing the theory of molecular mimicry. Order, issued August 15, 2023. Ms. Greenhaw submitted a third amended expert report on August 21, 2023. She advised that “it is impossible to comply with” the precedent set in Tullio. She relied on the medical records to “indicate that her immunization more likely than not catalyzed her sequence of symptoms.” Pet’r’s Status Rep., filed Sept. 13, 2023. This status report communicated that Ms. Greenhaw does not want to submit additional evidence. B. Ms. Greenhaw Has Not Presented Evidence to Demonstrate a Reliable Medical Theory under Althen Prong 1 Ms. Greenhaw advanced the theory of molecular mimicry to explain how a flu vaccine could cause small fiber neuropathy. The undersigned provided much guidance on appellate authority regarding molecular mimicry and offered Ms. Greenhaw and Dr. Pearsall multiple opportunities to explain how the flu vaccine could cause SFN via molecular mimicry. As a preliminary point, Dr. Pearsall’s experience appears not to lend itself to presenting a persuasive report for Ms. Greenhaw. Dr. Pearsall has not had any experience treating patients with the diagnosis of post immunization neuropathy and/or its subcategory small fiber neuropathy in the past five years. Exhibit 34. He provided expert testimony in one case of vaccine-related transverse myelitis and one case of post immunization neuropathy. Id. His curriculum vitae does not 12 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 13 of 15 mention any academic or professional experience in vaccines or small fiber neuropathy. Exhibit 49 (curriculum vitae). Rather, he describes himself as specializing in the “fields of Orthomolecular & IV Chelation Medicine, Minimally Invasive Aesthetic Medicine, Stem Cell Medicine, General Surgery and Family Medicine.” Id. at 1. As such, Dr. Pearsall’s expertise appears to be in areas unrelated to vaccines and small fiber neuropathy. Extending the case is not likely to lead to an enhancement of Dr. Pearsall’s qualifications. Dr. Pearsall’s initial expert report from May 12, 2023 barely discussed the theory of molecular mimicry. He quoted the definition of “molecular mimicry” from R. T. Damian: “the sharing of antigens between parasite and host.” Exhibit 34 at 6. He stated that the theory “is considered the most common mechanism for the induction of autoimmunity by a foreign source.” Id. He did not provide a substantive explanation on how the flu vaccine might lead to a cross-reaction with components of the nervous system leading to small fiber neuropathy. Similarly, the subsequent (amended) expert reports contain cursory explanations on how molecular mimicry pertains to Ms. Greenhaw’s case. The theory is discussed in a general context and is not applied to the unique facts of this case. In the expert report from July 10, 2023, Dr. Pearsall wrote: The theory of molecular mimicry suggests that certain non-host (foreign) proteins can induce an immune response that cross-reacts with a host’s self- antigens, leading to autoimmune disorders. In the context of vaccines, molecular mimicry refers to the resemblance between components of the vaccine and the body's own molecules, specifically those found in normal tissues. Autoimmune disorders occur when the immune system mistakenly targets and attacks healthy cells and tissues in the body. Vaccines, while designed to trigger an immune response against specific pathogens, are known to induce immune responses that recognize self-antigens due to molecular mimicry. In this case, one or more antigens present in the vaccine may has [sic] share structural similarities with self-antigens. When the petitioner’s immune system encountered these antigens during vaccination, it generated an immune response that not only targeted the intended antigens but also cross- reacts with similar self-antigens. This cross-reactivity lead to an immune 13 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 14 of 15 response against the petitioner's own tissues, causing her constellation of symptoms secondary to autoimmune reactions. Exhibit 41 at 2. In the second amended expert report from August 1, 2023, Dr. Pearsall provided a thorough description of molecular mimicry but did not substantively address why it applies to Ms. Greenhaw’s case. Exhibit 44. In the third amended expert report from August 21, 2023, Dr. Pearsall acknowledged that “the Greenhaw case conspicuously lacks a molecular-level ‘smoking gun’” and concluded that there is a “rational inference” that there is a “higher probability than not” that the immunization catalyzed her sequence of symptoms. Dr. Pearsall elaborated that “[w]hile the Molecular Mimicry theory expounds upon the mechanism through which this phenomenon might have unfolded, definitive evidence illustrating which molecule enacted what action and at what juncture remains absent.” Exhibit 46. Dr. Pearsall’s expert reports are sparse and conclusory, as they do not substantively explain how the theory of molecular mimicry applies to Ms. Greenhaw’s case. Since the existing expert reports are inadequate to carry Ms. Greenhaw’s burden, the undersigned required her to submit additional reports to support her claim. Ms. Greenhaw cited eight cases in which petitioners with small fiber neuropathy received compensation in the Vaccine Program. Pet’r’s Status Rep. at 2 n.1., filed Sept. 13, 2023. However, these are settlements and settlements carry little, if any, evidentiary value. See Woods v. Sec’y of Health & Hum. Servs., 105 Fed. Cl. 148, 152-53 (2012). Reasoned opinions may influence an adjudication of cases; however, they do not dictate how a special master should rule. See Boatmon v. Sec'y of Health & Hum. Servs, 941 F.3d 1351, 1358 (Fed. Cir. 2019) (“[S]pecial masters are not required to distinguish non-binding decisions of other special masters.”) Ms. Greenhaw has not presented a reliable medical theory to explain how the flu vaccine can cause small fiber neuropathy. Without sufficiently developed proof on this element, she cannot be found entitled to compensation. The weakness of Dr. Pearsall’s reports, considered singularly or collectively, is readily apparent. With “accumulated expertise,” special masters can identify can cases that are not likely to be successful. See Whitecotton v. Sec’y of Health & 14 Case 1:21-vv-02032-UNJ Document 84 Filed 01/24/24 Page 15 of 15 Hum. Servs., 81 F.3d 1099, 1104 (Fed. Cir. 1996). While conceivably respondent could have been directed to obtain a report, such a process would simply consume limited resources. Given that Dr. Pearsall has not shore up his opinions in response to multiple orders, there is no reason to expect that Dr. Pearsall will write a stronger report in response to an expert whom the Secretary retains. Ms. Greenhaw has enjoyed more than sufficient opportunities to make her case. It is simply time for all concerned to devote their attentions to other cases. V. Conclusion For the foregoing reasons, Ms. Greenhaw has not presented sufficient evidence to show that the flu vaccine caused her to develop small fiber neuropathy. Accordingly, her claim for compensation is DENIED. The Clerk's Office is instructed to enter judgment in accord with this decision unless a motion for review is filed. Information about filing a motion for review, including the deadline, can be found in the Vaccine Rules, which are available on the website for the Court of Federal Claims. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 15 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-02032-cl-extra-10734338 Date issued/filed: 2024-09-04 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267748 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************** JERILYN GREENHAW, * * No. 21-2032V Petitioner, * Special Master Christian J. Moran * v. * Filed: June 18, 2024 * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * ** * Bradley S. Freedberg, Bradley S. Freedberg, P.C., Denver, CO, for Petitioner. Benjamin Patrick Warder, United States Dep’t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 Pending before the Court is petitioner Jerilyn Greenhaw’s motion for final attorneys’ fees and costs. She is awarded $74,584.55. * * * On October 18, 2021, petitioner filed for compensation under the Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34. Petitioner alleged that the influenza (“flu”) vaccine caused her to suffer from small 1 Because this published decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims' website 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 posting means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 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 agrees that the identified material fits within this definition, the undersigned will redact such material from public access. fiber neuropathy (“SFN”), oropharyngeal dysphagia, gastric dysmotility, and degenerative disease of the nervous system. Am. Pet., filed Apr. 4, 2022. After respondent contested entitlement contending that petitioner failed to prove that there is a causal link between the flu vaccination and her conditions, petitioner submitted an expert report from Dr. Gurney Fields Pearsall, Jr., M.D.,2 a family practitioner. Exhibits (Exs.) 34-48. The undersigned determined that Dr. Pearsall’s expert report did not comprehensively address the issues in respondent’s Rule 4(c) report, and petitioner was required to submit an amended expert report from Dr. Pearsall, which remained inadequate on the topic of causation. On January 2, 2024, the undersigned issued his decision denying compensation. 2024 WL 263123. On February 7, 2024, petitioner filed a motion for final attorneys’ fees and costs (“Fees App.”). Petitioner requested attorneys’ fees of $77,613.50 and attorneys’ costs of $20,567.35 for a total request of $98,180.85. Id. at 2. Pursuant to General Order No. 9, counsel for petitioner represents that there are no personal incurred any costs related to the prosecution of this case. Id. at 1. On October 30, 2023, respondent filed a response to petitioners’ motion. Resp’t’s Resp. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Additionally, he recommends “that the Court exercise its discretion” when determining a reasonable award for attorneys’ fees and costs. Id. at 3. Petitioner did not file a reply thereafter. * * * Although compensation was denied, petitioners who bring their petitions in good faith and who have a reasonable basis for their petitions may be awarded attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although petitioner’s claim was ultimately unsuccessful, the undersigned finds that good faith and reasonable basis existed throughout the matter. Respondent has also indicated that he is satisfied that the claim has good faith and reasonable basis. Respondent’s position greatly contributes to the finding of reasonable basis. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of 2 Dr. Pearsall appears to be the father of Mr. Freedberg’s co-counsel in this case, Gurney F. Pearsall, III. See Exhibit 49 (curriculum vitae of Dr. Pearsall) at 4 (identifying “Gurney III” as one of his children). 2 matters the parties present.”). A final award of reasonable attorneys’ fees and costs is therefore proper in this case and the remaining question is whether the requested fees and costs are reasonable. The Vaccine Act permits an award of reasonable attorney’s fees and costs. §15(e). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). 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. Here, because the lodestar process yields a reasonable result, no additional adjustments are required. Instead, the analysis focuses on the elements of the lodestar formula, a reasonable hourly rate and a reasonable number of hours. In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See McIntosh v. Secʼy of Health & Human Servs., 139 Fed. Cl. 238 (2018). A. Reasonable Hourly Rates Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. There is, however, an exception (the so-called Davis County exception) to this general rule when the bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work was done outside of the District of Columbia. Petitioner requests the following rates for the work of his counsel, Bradley S. Freedberg and his associate counsel, Gurney F. Pearsall, III: Bradley S. Freedberg Gurney F. Pearsall, III 2020 $410 $255 2021 $455 $275 2022 $480 $300 2023 $515 $325 2024 $550 $400 3 Fees App. at 2. All hourly rates requested for work performed by Mr. Pearsall in 2020 and 2022, and by Mr. Freedberg in 2020-2023, are consistent with what counsel have previously been awarded for their Vaccine Program work, and the undersigned finds them to be reasonable herein for work performed in the instant case. See Comeau v. Sec’y of Health & Human Servs., No. 19-198V, 2021 WL 3053038 (Fed. Cl. Spec. Mstr. June 15, 2021); Ward v. Sec’y of Health & Human Servs., No. 19-1621V, 2021 WL 3408511 (Fed. Cl. Spec. Mstr. June 30, 2021); Walker v. Sec’y of Health & Human Servs., No. 21-1318V, 2023 WL 8946623 (Fed. Cl. Spec. Mstr. Jan. 8, 2023). The 2021 and 2023 hourly rates for Mr. Pearsall and the 2024 hourly rates for both attorneys require adjustment. i. Gurney Pearsall, III Attorneys’ fees have been previously awarded for Mr. Pearsall’s 2021 work utilizing an hourly rate of $270, and $315 for the work he performed in 2023.3 See Comeau, 2021 WL 3053038, at *2; Ward, 2021 WL 3408511, at *2; Walker, 2023 WL 8946623, at *2. This results in a reduction of $214.00.4 Regarding Mr. Pearsall’s requested rate for 2024, $400 per hour falls within the experience range of four to seven years of experience provided in OSM’s Attorney’s Fees rate chart for similarly situated attorneys. However, the specifically requested increase is also excessive based on Mr. Pearsall’s experience in the Vaccine Program. Rather, based on my experience applying the factors relevant to determining proper hourly rates for Program attorneys, a rate of $350 per hour is more appropriate for Mr. Pearsall’s 2024 work. This results in a reduction of $445.00.5 ii. Bradley Freedberg Regarding Mr. Freedberg’s requested rate for 2024, $550 per hour falls within the experience range provided in OSM’s Attorney’s Fees rate chart for similarly situated attorneys, the specifically requested increase is excessive based 3 The greater hourly rate of $275 was employed in two cases, due to an error made when quoting the hourly rates utilized in Comeau and Ward. See Rybicki v. Sec’y of Health & Human Servs., No. 20-332V, 2023 WL 2440377, at *2 (Fed. Cl. Spec. Mstr. Feb. 7, 2023); Key v. Sec’y of Health & Human Servs., No. 20-379V, 2023 WL 2440863, at *2 (Fed. Cl. Spec. Mstr. Feb. 7, 2023). 4 ($275 - $270) x 5.5 hrs. + ($325 - $315) x 18.65 hrs. = $214.00. 5 ($400 - $350) x 8.9 hrs. = $445.00. 4 on Mr. Freedberg’s experience in the Vaccine Program.6 Rather, based on my experience applying the factors relevant to determining proper hourly rates for Program attorneys, a rate of $540 per hour is more appropriate for Mr. Freedberg’s 2024 work. This results in a reduction of $58.00.7 B. Reasonable Number of Hours The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). The Secretary also did not directly challenge any of the requested hours as unreasonable. A review of the billing records reveals multiple entries involving tasks that are considered paralegal in nature8 were billed at the attorneys’ hourly rates. See Fees App. Ex. B. Although at least fourteen entries - totaling 11.3 hours,9 involve only paralegal tasks, numerous other entries describe both attorney and paralegal tasks. E.g., id. at 1 (entry dated 2/16/22). Such block billing makes it is difficult to ascertain the amount of time which should have been billed at a paralegal hourly rate. The undersigned will therefore address the matter, along with further reductions in amount of hours billed in the next section. The undersigned has reviewed the submitted billing entries and finds several issues which need to be addressed further. Petitioner seeks attorneys’ fees for work performed by Mr. Freedberg and Mr. Pearsall that is generally not reimbursed in 6 The OSM Attorneys’ Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claims website at http://www.cofc.uscourts.gov/node/2914. 7 ($550 - $540) x 5.8 hrs. = $58.00. 8 Attorneys may be compensated for paralegal-level work, but only at a rate that is comparable to that of a paralegal. See, e.g., Doe/11 v. Sec’y of Health & Human. Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535, 2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). 9 These entries are as follows: 4.15 hours billed on 2/16/22, 2/23/22, 9/7/22, 5/22/23, and 1/8/24, by Mr. Pearsall; and 7.15 hours billed on 11/11/21, 11/18/21, 1/4/22, 2/4/22, 2/22/22, 2/23/22, 8/28/22, 10/12/22, and 10/17/22, by Mr. Freedberg. 5 vaccine cases such as work that is considered secretarial in nature,10 time spent performing basic research,11 and excessive or duplicative work.12 Fees App. Ex. B. For example, Mr. Freedberg and Mr. Pearsall spent 3.5 hours finalizing their internal expert instructions. Id. at 2, 9-10 (entries dated 10/4/21, 10/5/21 and 11/10/21). And Mr. Pearsall spent time researching the Vaccine Act’s statute of limitations. Id. at 1 (entry dated 10/2/20). Furthermore, the billing records contained numerous entries involving time spent by both Mr. Freedberg and Mr. Pearsall discussing the merits of petitioner’s case and coordinating schedules and tasks. E.g., id. at 1-5, 6-9, 11-14 (entries dated 6/13/22 showing 1 hour of this time spent on same call with petitioner and 10/24/22 showing 1.4 hours discussing next step). On multiple occasions, Mr. Freedberg and Mr. Pearsall have been informed of these deficiencies in their billing records. E.g., Hergett v. Sec’y of Health & Human Servs., No. 17-2008V, 2020 WL 1080295 at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2020); Mackey v. Sec’y of Health & Human Servs., No. 16-1289V, 2020 WL 2596801, at *7 (Fed. Cl. Spec. Mstr. May 10, 2018); Comeau, 2021 WL 3053038, at *2; Ward, 2021 WL 3408511, at *2; Rybicki, 2023 WL 2440377, at *2-3. Due to the extensive block billing found throughout the billing records submitted in this case, it is difficult to ascertain the exact amount of time involved in each of the mentioned categories. Block billing or billing large amounts of time without sufficient detail as to what tasks were performed, is clearly disfavored in 10 Secretarial work “should be considered as normal overhead office costs included within the attorneys’ fee rates.” Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.” Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). 11 “[I]t 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). “An inexperienced attorney may not ethically bill his client to learn about an area of law in which he is unfamiliar. If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007). 12 The fees paid to petitioners have been reduced due to excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). Staffing cases with multiple attorneys can result in inefficiencies and reductions in fees. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). 6 the Program. See Broekelschen v. Sec’y of Health & Human Servs., 07-137V, 2008 WL 5456319, at *4 (Fed. Cl. Spec. Mstr. Dec 17, 2006). Rather, the Vaccine Program’s Guidelines for Practice state that “[e]ach task should have its own line entry indicating the amount of time spent on that task.” Several tasks lumped together with one-time entry impedes assessment of the reasonableness of the request. In evaluating a motion for attorney’s fees and costs, special masters “need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). Instead, in appropriate circumstances they may make reasonable, across-the-board percentage adjustments. E.g., Raymo, 129 Fed. Cl. at 703-04. The undersigned finds a reduction of twenty percent is warranted in this case. This results in a further reduction of $15,379.30.13 C. Costs Incurred Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner’s requests a total of $20,567.35 in attorneys’ costs. Fees App. at 3. This amount is comprised of the court’s filing fee, postage obtaining medical records and work performed by petitioner’s expert, Dr. Gurney F. Pearsall, a family practitioner. Fees App. Ex. C. For the work performed by Dr. Pearsall, petitioner requests a total of $20,000.00, comprised of 50.0 hours of work billed at $400.00 per hour. Fees App. at 3.14 The undersigned was unable to find any prior instances of Dr. Pearsall performing Vaccine Program work, thus petitioner would have been well served to provide some evidence regarding a reasonable rate for general practitioners. A general practitioner was compensated at a rate of $250.00 per hour. Wynne v. Sec’y of Health & Hum. Servs., No. 17-1908V, 2022 WL 1869355, at *3 (Fed. Cl. Spec. Mstr. May 3, 2022). A rate of $250.00 per hour is reasonable (and perhaps generous) for someone who lacks specialized medical knowledge, who does not teach at medical schools, and who has authored only two articles published in journals. See Exhibit 49 (curriculum vitae). 13 $76,896.50 x 0.20 = $15,379.30. 14 Although petitioner only requests $20,000.00 for 50.0 hours of work by Dr. Pearsall, Dr. Pearsall billed petitioner $20,800.00 for 52.0 hours of work. Fees App. Ex. D at 2. 7 Dr. Pearsall billed petitioner for 52 hours. Fees App. Ex. D. Dr. Pearsall has lumped together many activities within the same day. This method of accounting for his time fails to comply with the Instructions, issued Nov. 10, 2022. As such, Dr. Pearsall should identify his activities with more precision going forward. However, because Dr. Pearsall has not previously submitted invoices, the number of hours is accepted as reasonable. A reasonable amount of compensation for Dr. Pearsall is $12,500.00.15 Petitioner has provided adequate documentation supporting the requested costs and all are reasonable in the undersigned’s experience. Petitioner is therefore awarded final attorneys’ costs of $13,067.35. D. Conclusion The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $74,584.55 (representing $61,517.20 in attorneys’ fees and $13,067.35 in attorneys’ costs) as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel, Bradley S. Freedberg. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.16 IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 15 $250.00 per hour x 50.0 hours = $10,000.00. 16 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 8