              In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 17-989V
                                       Filed: July 31, 2020
                                         UNPUBLISHED

                                                                    Special Master Horner
    JASON QUIRINO,

                         Petitioner,                                Interim Attorneys’ Fees and
    v.                                                              Costs Decision
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                        Respondent.


Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

               DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

       On May 12, 2020, petitioner moved for an award of interim attorneys’ fees and
costs in the amount of $39,267.47 for his current counsel and $17,933.53 for his prior
counsel. (ECF No. 60.) In response, respondent deferred to the special master
regarding both the amount and appropriateness of an award of interim attorneys’ fees
and costs. (ECF No. 61.) However, respondent did note that “respondent is satisfied
the statutory requirements and other legal requirements for an award of attorneys’ fees
and costs are met.” (Id. at 2.) For the reasons discussed below, I award petitioner
interim attorneys’ fees and costs in reduced amount of $33,623.97 for current counsel
and $17,408.53 for prior counsel.

         I.     Procedural History

      On July 21, 2017, petitioner filed this claim, under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that as a result of his July

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
28, 2014 Hepatitis B (“Hep B”) and Tetanus-Diphtheria-acellular-Pertussis (“Tdap”)
vaccination he suffered a rheumatologic injury. (ECF No. 1.) Petitioner filed an
amended petition on December 19, 2019, alleging that his July 28, 2014 vaccinations
actually caused him to suffer an atypical form of Guillain-Barre syndrome (“GBS”),
manifesting as an isolated small fiber neuropathy. (ECF No 53.)

       This case was originally assigned to Special Master Moran and subsequently
reassigned to Special Master Sanders. (ECF Nos. 4, 20.) On February 27, 2018,
respondent filed his Rule 4(c) report, recommending against compensation. (ECF No.
27.) On July 25, 2018, Andrew Donald Downing substituted in as the attorney on
record in place of Ronald Craig Homer. (ECF No. 38.)

        Subsequently, petitioner filed an expert report from Dr. Laura S. Boylan to
support his claim and, in response, respondent filed an expert report from Dr. Jeffrey M.
Gelfand. (ECF Nos. 41, 46.) This case was then reassigned to my docket on August
29, 2019. (ECF No. 49.) Following a status conference held on September 23, 2020,
petitioner filed an amended petition and supplemental report from Dr. Boylan. (ECF
Nos. 53, 57.) Respondent also filed a supplemental report from Dr. Gelfand. (ECF No.
62.) On July 20, 2020, per petitioner’s request, this case has been queued for the
scheduling of an entitlement hearing. (ECF No. 64.)

       Petitioner filed the instant motion for interim attorneys’ fees and costs on May 12,
2020, respondent filed his response on May 13, 2020, and petitioner did not file a reply.
(ECF Nos. 60-61.) Accordingly, petitioner’s motion for interim attorneys’ fees and costs
is now ripe for resolution.

   II.    An Award of Interim Attorneys’ Fees and Costs is Appropriate

        Section 15(e)(1) of the Vaccine Act allows for the special master to award
“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are
entitled to an award of reasonable attorneys' fees and costs if they are entitled to
compensation under the Vaccine Act, or, even if they are unsuccessful, if the special
master finds that the petition was filed in good faith and with a reasonable basis. Avera
v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). In his
response, respondent indicated that the statutory requirements were met in this case.
(ECF No. 61, p. 2.) I agree.

        Additionally, the Federal Circuit has concluded that interim fee awards are
permissible and appropriate under the Vaccine Act. Shaw v. Sec’y of Health & Human
Servs., 609 F.3d 1372 (Fed. Cir. 2010); Avera, 515 F.3d at 1352. In Avera, the Federal
Circuit stated, “[i]nterim fees are particularly appropriate in cases where proceedings
are protracted and costly experts must be retained.” Id. In denying an interim fee
award, the Avera court reasoned, “The amount of fees here was not substantial;
appellants had not employed any experts; and there was only a short delay in the award
pending the appeal.” Id. In Shaw, the Federal Circuit clarified that “where the claimant
establishes that the cost of litigation has imposed an undue hardship and there exists a


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good faith basis for the claim, it is proper for the special master to award interim
attorneys’ fees.” 609 F.3d at 1375.

       Here, petitioner’s request for interim attorneys’ fees and costs is made after more
than two years of litigation within the entitlement phase of this case and after petitioner
incurred costs for providing multiple expert reports to support his claim. Additionally,
this case is awaiting an entitlement hearing, and thus, the timing of the ultimate
resolution of this case remains unknown. Accordingly, I find that petitioner’s request for
an award for interim attorneys’ fees and costs is reasonable at this juncture.

    III.   Reasonableness of the Requested Award

           a. Attorneys’ Fees

        It is “well within the special master’s discretion” to determine the reasonableness
of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir.
1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991)
(“[T]he reviewing court must grant the special master wide latitude in determining the
reasonableness of both attorneys’ fees and costs.”). The Federal Circuit has approved
the lodestar approach to determine reasonable attorneys’ fees and costs under the
Vaccine Act. Avera, 515 F.3d at 1347. This is a two-step process. Id. at 1347-48.
First, a court determines an “initial estimate…by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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.

        A reasonable hourly rate is “the prevailing market rate defined as the rate
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Avera, 515 F.3d at 1348 (citation and quotation
omitted). The decision in McCulloch provides a further framework for consideration of
appropriate ranges for attorneys’ fees based upon the experience of the practicing
attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motions for recons. denied, 2015
WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office of Special Masters has
subsequently updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015-2016, 2017, 2018, 2019 and 2020 can be accessed online.2

      In this case, petitioner is seeking $15,857.00 in interim attorneys’ fees for work
performed in 2018 through 2020 for work completed by Mr. Downing’s firm and
$15,294.70 in attorneys’ fees for work performed in 2017 and 2018 for work completed

2 Each of the Fee Schedules for 2015 through 2020 can be accessed at
http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived
from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, and 2020 are
adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”).


                                                  3
by Mr. Homer’s firm. I have reviewed the billing records submitted with petitioner’s
request, and in my experience, the hourly rates billed for 2017 through 2020 for attorney
time, paralegal time, and law clerk time, are all reasonable and in accord with prior
awards made by other special masters.

       Turning next to the requested hours expended, special masters may rely on their
experience within the Vaccine Program to determine the reasonable number of hours
expended. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991),
rev’d on other grounds and aff’d in relevant part¸ 988 F.2d 131 (Fed. Cir. 1993). Special
masters have previously reduced the fees paid to petitioners 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). Special
masters can reduce a fee request sua sponte, without providing petitioners notice and
opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011).

        First, after reviewing the billing records from Mr. Downing’s firm, I find that
counsel included entries that are duplicative and excessive due to attorneys and
paralegals billing for reviewing the same orders. For duplicative entries, only hours
billed by Mr. Downing, the lead attorney in this case, will be awarded. These duplicative
billing entries result in a reduction of $81.00 of the interim fee award for Mr. Downing.3

        Second, upon review of the billing records submitted by petitioner’s prior counsel,
I find that there were duplicative and excessive billings due to attorneys, paralegals, and
law clerks billing for reviewing the same orders and attending the same case meetings.
Moreover, these duplicative reviews are billed at 0.10 hours, indicating that such
reviews are less likely to have been substantive and less likely to have required multiple
reviewers. Since Joseph Pepper was the lead attorney in this case, handling the
majority work, for duplicative and excessive entries, only hours billed by Mr. Pepper are
awarded. Additionally, the billing records included entries for drafting and reviewing
case memos, which appears to be intra-office communication, and in some instances,
duplicative and excessive where the same memo is being drafted by an attorney and
then reviewed by a paralegal. Such intra-office communication billings will not be
awarded. See Soto v. Sec’y of Health & Human Servs., No. 09-897V, 2011 WL
2269423, at *6 (Fed. Cl. Spec. Mstr. June 7, 2011); Carcamo v. Sec’y of Health &
Human Servs., No. 97-483V, 2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May 20,
2011). These billing entries result in a reduction of $525.00 of the interim fee award for
Mr. Homer.4
3There were duplicative entries billed by Danielle P. Avery on July 31, 2018, June 21, 2019, August 28,
2019, and August 29, 2019.
4There were many instances where attorneys and/or paralegals would bill for reviewing the same court
orders and attending the same case meetings. For example, there were duplicative billings September
11, 2017, September 15, 2017, October 3, 2017, November 1, 2017, December 1, 2017, January 23,

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            b. Interim Attorneys’ Costs

       Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both
‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both.
Not only must any request for reimbursement of attorneys’ fees be reasonable, so also
must any request for reimbursement of costs.”).

      In this case, petitioner seeks $23,410.47 in interim attorneys’ costs for his current
counsel. The majority of the expenses incurred were expert costs billed by Dr. Boylan.
(There were $10.47 spent in other expenses, which are reasonable and awarded in full.)
Upon review of Dr. Boylan’s two invoices, Dr. Boylan initially spent 3.5 hours on “record
review,” 19.25 hours on report preparation and research, and 1.75 hours on “client
communication.” (ECF No. 60-1, p. 16.) In providing a supplemental expert report, Dr.
Boylan spent 3 hours on “record review,” 19.25 hours on “report preparation and
research,” and 0.25 hours on “client communication.” (Id. at 18-19.) In total, she billed
47 hours for two reports totaling 14 pages.

      An expert retained by the petitioner in the Vaccine Program will only be
compensated at a reasonable hourly rate, and the petitioners have the burden of
demonstrating that the expert costs incurred were reasonable. Ceballos v. Sec'y of
Health & Human Servs., No. 99–97V, 2004 WL 784910, at *13 (Fed. Cl. Spec. Mstr.
Mar. 25, 2004). Additionally, such request should be supported by contemporaneous
and detailed invoices. Caves v. Sec’y of Health & Human Servs., 111 Fed. Cl. 774,
781-83 (2013); Morse v. Sec’y of Health & Human Servs., 89 Fed. Cl. 683 (2009).

        Here, Dr. Boylan has requested an hourly rate of $500 per hour. This is
consistent with what has been awarded in prior cases and I find it to be a reasonable
rate in this case as well. E.g. Goff v. Sec’y of Health & Human Servs., No. 17-259V,
2019 WL 3409976 (Fed. Cl. Spec. Mstr. Mar. 29, 2019); Schultz v. Sec’y of Health &
Human Servs., No. 16-539V, 2018 WL 1835104 (Fed. Cl. Spec. Mstr. Feb. 16, 2018).
However, the billing records submitted by Dr. Boylan make it difficult to determine with
confidence whether the time spent was reasonable. Dr. Boylan has been previously
cautioned against such ambiguous billings. See Goff, 2019 WL 3409976, at * 5.

        Nonetheless, I do find the total amount of time Dr. Boylan spent researching and
preparing her reports is likely to be excessive. For example, in Goff, Dr. Boylan billed
24.25 hours preparing a 14-page report in a case alleging ischemic stroke resulting from
an influenza vaccine. 2019 WL 3409976. In this case she has billed nearly twice as
much, a total of 47 hours, to produce a similar 14 pages of analysis, albeit in two
reports. In Schultz, she billed 31 hours for the production of two reports for another
case alleging ischemic stroke. 2018 WL 1835104. Here, she has billed significantly

2018, January 25, 2018, March 1, 2018, March 28, 2018, April 9, 2018, April 30, 2018, and May 3, 2018.
There were intra-office communication and duplicative entries billed on September 19, 2017, October 20,
2017, March 14, 2018, April 9, 2018, July 18, 2018, July 24, 2018, and August 3, 2018.


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more for two reports than she did in Schultz (47 versus 31 hours). Although this case
involves a different injury, based on my review of the reports filed in this case I do not
find that the level of complexity involved petitioner’s own medical history or the general
science involved in this case adequately explain these differences in billing.
Importantly, the conditions at issue in this case – small fiber neuropathy and/or atypical
GBS – should fall squarely within Dr. Boylan’s experience as an attending neurologist
and professor of neurology, suggesting she should already be generally familiar with the
relevant literature. (Ex. 11.) Nothing in her curriculum vitae suggests that she
necessarily should have had greater familiarity with the vascular medicine at issue in
Goff or Schultz. I do note, however, that these comparisons are not dispositive.

         I further stress that following my review of Dr. Boylan’s report I discussed with the
parties the fact that Dr. Boylan’s initial report did not sufficiently address the capacity of
the specific vaccinations at issue in this case to cause the conditions discussed in Dr.
Boylan’s report, prompting in part the supplemental report. (ECF No. 52.) I also note
that Dr. Boylan spent nearly as much time reviewing petitioner’s medical records to
prepare her supplemental report, when she was already familiar with the case and the
medical records, as she did preparing her initial report, when she reviewed them for the
first time. Additionally, she billed exactly the same amount of time researching and
preparing her supplemental report as she did her initial report despite the fact that the
more focused supplemental report was less than half the length with fewer than half the
number of citations.

        For these reasons, I find that a 25% reduction to Dr. Boylan’s time identified
collectively as “research” and “report preparation” (totaling 38.5 hours) is appropriate.
The lack of specificity in Dr. Boylan’s billing records (the difficulty of which she has
previously been warned) prevents a more precise reduction. Additionally, I reduce the
three hours billed for medical record review relative to her supplemental report by half.
These reductions total 11.125 hours or $5,562.50. Subtracting from $23,400.00, this
results in resulting in an award of interim expert costs of $17,837.50.5

        Additionally, petitioner seeks $2,638.83 in interim attorneys’ costs for his prior
counsel, including costs for filing the petition and seeking expert consultation from Dr.
Samar Gupta. Following the Rule 5 conference, held on March 27, 2018, petitioner was
ordered to file an expert report. (ECF No. 32.) It appears Mr. Homer retained Dr. Gupta
to review the records in this case, but ultimately, no report was written. (ECF No. 60-2,
p. 25.) According to the billing records, Dr. Gupta spent three hours reviewing the
medical records and one hour reviewing medical literature, at an hourly rate of $500.

5 Dr. Boylan’s first invoice was for $12,250.00, representing 24.5 hours at $500 per hour. (ECF No. 60-1,
p. 16.) Her second invoice was $11,250.00, representing 22.5 hours at $500 per hour. (Id. at 19.) This
would total $23,500.00. According to counsel’s billing records, however, he advanced client costs of
$12,150.00 for the first report, one hundred dollars less than the invoice amount. (Id. at 13.) This is
further confirmed by a copy of the relevant check. (Id. at 17.) There is no indication on Dr. Boylan’s
second invoice of any carry over balance. Consistent with that, petitioner requests total costs of
$23,410.47 whereas Dr. Boylan’s invoices would have suggested that total costs should have totaled
$23,510.47. Accordingly, this award is calculated based on the lower amount actually paid by petitioner
rather than the amount invoiced by Dr. Boylan.

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(Id.) Of note, shortly thereafter, Mr. Downing was substituted as counsel in place of Mr.
Homer. Upon review of the billing records and supportive documentation, I find the
requested interim attorneys’ costs billed by Mr. Homer to be all reasonable.

    IV.      Conclusion

       In light of the above, petitioner’s motion for an award of interim attorneys’ fees
and costs is hereby GRANTED. Petitioner is awarded $33,623.97, representing
$15,776.00 in interim attorneys’ fees and $17,847.97 in interim attorneys’ costs for Mr.
Downing. Additionally, petitioner is awarded $17,408.53, representing $14,769.70 in
interim attorneys’ fees and $2,638.83 in interim attorneys’ costs for prior counsel, Mr.
Homer.

          Accordingly, I award a total of $51,032.50 as follows:

             •   A lump sum of $33,623.97 in the form of a check payable to petitioner
                 and her counsel, Andrew Donald Downing, Esq.; and

             •   A lump sum of $17,408.53 in the form of a check jointly payable to
                 petitioner and her prior counsel, Ronald Craig Homer, Esq.

          The clerk of the court shall enter judgment in accordance herewith. 6


IT IS SO ORDERED.

                                                           s/Daniel T. Horner
                                                           Daniel T. Horner
                                                           Special Master




6 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.

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