    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                 (Filed: August 28, 2019)

* * * * * * * * * * * * * *
KIMBERLY BERTOLUCCI and                 *             UNPUBLISHED
ARTHUR JOSEPH MCCAULEY III              *
Parents and Guardians of E.M., a Minor, *             No. 15-1573
                                        *
       Petitioners,                     *             Chief Special Master Dorsey
                                        *
v.                                      *             Attorneys’ Fees and Costs
                                        *
SECRETARY OF HEALTH                     *
AND HUMAN SERVICES,                     *
                                        *
              Respondent.               *
* * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, N.Y., for petitioners.
Heather L. Pearlman, United States Department of Justice, Washington, DC, for respondent.

                     DECISION ON ATTORNEYS’ FEES AND COSTS1

        On December 23, 2015, Kimberly Bertolucci and Arthur Joseph McCauley III
(“petitioners”) filed a petition under to the National Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-10 et. Seq. (2012) (“Vaccine Act”).2 Petitioners state that their child, E.M., received
vaccines for Diphtheria-Tetanus-acellular Pertussis (DTaP), Hepatitis B (Hep B), inactivated
polio (IPV), and rotavirus on December 28, 2012, and vaccines for DTaP, IPV, Haemophilus
influenzae B (HiB), pneumococcal conjugate, and rotavirus on March 7, 2013. Petition at 4-5.

1
 Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
she will delete such material from public access.
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.
Petitioners alleged that as a result of these vaccines, E.M. suffered from reactive airway disease.
Id. at 7. On August 29, 2018, the undersigned issued her decision dismissing the case for
insufficient proof. Decision at 2-3.

         On May 10, 2019, petitioners filed a final application for attorneys’ fees and costs.
Application for Attorneys’ Fees and Costs (“Fees App.”) (ECF No. 80). Petitioners request
attorneys’ fees in the amount of $41,792.15 and attorneys’ costs in the amount of $32,920.91.
Id. at 1-2. Pursuant to General Order 9, petitioners warrant that they did not personally incur any
costs in pursuit of this litigation. Petitioners’ Exhibit 58; ECF No. 85. The total request for fees
and costs is $74,713.06. Respondent filed his response on May 31, 2019, stating that he

       defers to the discretion of the Chief Special Master whether the statutory
       requirements for an award of attorneys’ fees and costs are met in this case. If the
       Chief Special determines that petitioners’ claim was filed in good faith and with a
       reasonable basis, and that good faith and a reasonable basis were maintained
       throughout the entirety of the litigation, the Federal Circuit has made it clear that
       “the determination of the amount of reasonable attorneys’ fees is within the
       special master’s discretion.” Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993).
       Special masters are thus accorded “wide discretion in determining the
       reasonableness” of a petitioner’s request for reasonable attorneys’ fees and costs.
       Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).

Respondent’s Response at 2. ECF No. 83. Respondent states that he “requests that the Court
exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
On May 31, 2019, petitioners filed a reply restating respondent’s position that the undersigned
exercise her discretion to determine a reasonable award for attorneys’ fees and costs and stating
that petitioners rely on the facts, law and argument presented in their previous submission. ECF
No. 84.

       For the reasons discussed below, the undersigned GRANTS petitioners’ motion and
awards a total of $59,609.91.

       I.      Discussion

         Under the Vaccine Act, a special master shall award reasonable attorney’s fees and costs
for any petition that results in an award of compensation. 42 U.S.C. §300aa-15(e)(1). When
compensation is not awarded, the special master “may” award reasonable attorneys’ fees and
costs “if the special master or court determines that the petition was brought in good faith and
there was reasonable basis for the claim for which the petition was brought.” Id. at§ 15(e)(3).
In this case, although petitioners were denied compensation, the undersigned finds that both
good faith and reasonable basis exist. Petitioners presented a claim which had been resolved in at
least two other cases by stipulations of settlement with the award of compensation to petitioners.
Santiago v. Sec'y of the Dep't of Health & Human Servs., No. 11-342V, 2012 WL 3599221, at *1
(Fed. Cl. July 19, 2012); Carlson v. Sec'y of Health & Human Servs., No. 14-82V, 2015 WL
6728287, at *1 (Fed. Cl. Oct. 13, 2015). The merits of the claim were not discussed in these
decisions and thus, the claim in this case required extensive briefing and expert reports. The


                                                 2
undersigned does not doubt that petitioners brought their claim in good faith. Accordingly, a
final award of attorneys’ fees and costs is reasonable.

               a. Reasonable Attorneys’ Fees

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s 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.

        Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It
is “well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

        A special master need not engaged in a line-by-line analysis of petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d
in relevant part, 988 F. 2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.

                      i.      Reasonable Hourly Rates

       Petitioners requests compensation for attorney Robert Krakow and his paralegal. For Mr.
Krakow, petitioners request a rate of $413 per hour for work performed in 2015, $425 per hour
for work performed in 2016, $435 per hour for work performed in 2017 and 2018, and $464 for
work performed in 2019. As the rates from 2015-2019 are in accordance with those previously
awarded to Mr. Krakow, the undersigned finds them reasonable and will award them in full.
       For the paralegal, petitioners request the rate of $125 per hour for work performed in
2015 and 2016, $140 per hour for work performed in 2017 and 2018, and $156 per hour for work
performed in 2019. The undersigned finds these rates reasonable and awards them in full.


                                                 3
                                a. Paralegal Tasks Billed at Attorney Rates

        Upon review of the billing records, several tasks were billed at the attorney rate for tasks
considered paralegal work. “Tasks that can be completed by a paralegal or legal assistant should
not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Human Servs., No. 99-382V,
2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work
is compensated turns not on who ultimately performed the tasks but instead turns on the nature of
the task performed.” Doe/11 v. Sec’y of Health & Human Servs., No. XX-XXXXV, 2010 WL
529425, at 9* (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Examples of these entries include:3

             •   December 23, 2015 (0.30 hrs) – “Prepare documents for filing”
             •   January 6, 2016 (0.20 hrs) – “Scheduling Order, document calendar and file, etc.”
             •   January 13, 2016 (0.10 hrs) – “Scheduling order, st conference 1/28/16 –
                 document calendar, file and database.”
             •   January 28, 2016 (0.30 hrs) – “Scheduling order. Document calendar and database
                 and file).
             •   March 29, 2016 (0.20 hrs) – “Scheduling order, review, document calendar,
                 database and file.”
             •   March 30, 2016 (0.10 hrs) – “TC T King re problem with CD, Problem was
                 resolved.”
             •   June 1, 2016 (0.20 hrs) – “Scheduling order, document file and calendar and
                 database.”
             •   June 9, 2016 (0.20 hrs) – “Review scheduling order, document calendar, file and
                 database.”
             •   September 29, 2016 (0.20 hrs) – “Receive and review Rule 5 order, document
                 calendar and file.”

       Upon review of the billing entries, the undersigned noted 2.8 hours of time billed from
2016-2018 at an attorney rate that should have been billed at a paralegal rate. This reduces the
request for attorney’s fees in the amount of $922.65.

                                b. Administrative Time

       The undersigned finds it reasonable to reduce some of petitioners’ fees award due to the
excessive amount of administrative work billed. Examples are two (2) hours were billed for
administrative tasks such as scanning documents, making copies, taking screen shots, and
mailing documents.4 Fees App., Exs. 23 at 7-8, 12. Although some of these tasks were billed at

3
    These examples are not an exhaustive list.
4
 Examples include: 12/28/2015 - Organize File; 3/16/2016 – mailing letters to medical
providers; 7/11/2016 – Organize file; 4/21/2017 – organize file, organize docket folder,
download filing and label, organize, etc.; 6/21/2017 – Organize file; 2/21/2018 – Organize
references, exhibits 33-35… organize dkt folder. These examples are not an exhaustive list.


                                                 4
a paralegal rate, it is well established that billing for clerical and other secretarial work is not
permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989)
(denying an award of fees for time billed by a secretary and finding that “[these]
services…should be considered as normal overhead office costs included within the attorney’s
fee rates”). The undersigned reduces the fee application for administrative time in the amount of
$310.00.

                       ii.    Reasonable Hours Expended

        Petitioners have submitted adequate billing logs listing the date, amount of time,
individual, and the nature of each task. The undersigned has reviewed the billing records and
does not find any entries to be objectionable, other than the reductions made above. Respondent
has not objected to any particular entry. Accordingly, subject to the deductions discussed above
for paralegal and administrative time, the undersigned finds the hours expended on this matter to
be reasonable.


               b. Attorneys’ Costs

       Petitioners requests a total of $32,920.91 in attorneys’ costs. These costs consist of
$713.91 in attorney’s costs for typical items such as medical records and postage costs, and
$32,207.00 in costs for expert fees. Petitioners have provided adequate documentation
supporting the costs associated with acquiring medical records and postage, and those costs shall
be reimbursed in full. However, for the reasons set forth below, the undersigned finds it
necessary to reduce the award of expert costs.

       Petitioners request $23,275.00 for work performed by Drs. Judy Mikovits and Francis
Ruscetti for review of medical records and production of expert reports. Together, Drs. Mikovits
and Ruscetti billed 66.5 hours at an hourly rate of $350.00.

        The expert reports and testimony offered by Dr. Mikovits and Dr. Ruscetti have received
significant criticism in the Vaccine Program. In many instances, their reports have been “riddled
with errors, exaggerations, and false statements.” Dominguez v. Sec’y of Health & Human
Servs., No. 12-378V, 2018 WL 3028975, at *6-7 (Fed. Cl. Spec. Mstr. May 25, 2018). Some
special masters have also questioned Dr. Mikovits’ credentials specifically, noting that “one of
her research papers was severely criticized and subject to retraction from a scientific journal,”5
Rogero v. Sec’y of Health & Human Servs., No. 11-770V, 2017 U.S. Claims LEXIS 1200, at
*129 (Fed. Cl. Spec. Mstr. Sept. 1, 2017), and that she has not held a research position since
2012. Dominguez, 2018 WL 3028975, at *6. The undersigned herself has previously called the
experts’ past reports “generally speculative, difficult to follow, and outside the experts’ area of
expertise.” Deisher v. Sec’y of Health & Human Servs., No. 17-294V, 2019 WL 1870737, at *15
Fed. Cl. Spec. Mstr. Apr. 1, 2019).

5
  The retraction was spurred by “multiple other studies being unable to confirm the results
(including studies performed by some of the original authors), evidence of poor quality control in
some of the experiments, and evidence of manipulation or mislabeling of certain figures used in
the studies.” Dominguez, 2018 WL 3028975, at *5.
                                                 5
        The expert reports filed by Drs. Mikovits and Ruscetti in the instant case display the same
weaknesses. As the undersigned previously observed, Drs. Mikovits and Ruscetti are not
specialized in lung disorders and their expert reports did not “provide any factual basis, from
medical records or from other facts or circumstances of the case, to support a coherent theory of
causation. Moreover, the report is generally confusing and unintelligible.” Order, dated June 6,
2018, at 1 (ECF No. 63) (“Order”). Therefore, as she has done in the past, the undersigned will
reduce the requested expert fee by 50%, resulting in a reduction of $11,637.50.

        Petitioners also request $8,932.00 for the work of their other expert, Dr. Karyemaitre
Aliffe, who billed 22.33 hours at an hourly rate of $400.00. The undersigned previously
questioned whether Dr. Aliffe, based upon the credentials as set forth in his curriculum vitae,
was qualified to opine regarding the Althen Prongs, and noted that his supplemental expert report
“is often conclusory, and provides no mechanistic evidence to support a plausible causation
theory” and that he “fail[ed] to address how vaccines might trigger asthma.” Order at 2.
Accordingly, based upon a review of the work performed by Dr. Aliffe in the instant case, the
undersigned finds it reasonable to reduce the requested amount by 25%, resulting in a reduction
of $2,233.00.6

        Thus, based upon the foregoing, the undersigned finds that petitioners are entitled to a
final award of attorneys’ costs of $19,050.41.

         II.    Conclusion

        Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioners and their counsel as follows:

    Attorneys’ Fees Requested                                        $41,792.15
    (Reduction to Fees)                                             - ($1,232.65)
    Total Attorneys’ Fees Awarded                                    $40,559.50

    Attorneys’ Costs Requested                                       $32,920.91
    (Reduction of Costs)                                           - ($13,870.50)
    Total Attorneys’ Costs Awarded                                   $19,050.41

    Total Attorneys’ Fees and Costs                                  $59,609.91

        Accordingly, the undersigned awards the following: a lump sum of $59,609.91 in the
form of a check payable jointly to petitioners and petitioners’ counsel, Robert J. Krakow,
for attorney’s fees and costs available under 42 U.S.C. § 300aa-15(e).




6
    $8,932.00 * 0.25 = $2,233.00


                                                 6
       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.7

       IT IS SO ORDERED.


                                             s/Nora Beth Dorsey
                                             Nora Beth Dorsey
                                             Chief Special Master




7
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
                                                7
