         In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                              No. 16-1144
                                          (Not to be Published)

*************************
ZACHARIAH OTTO,             *
                            *                                             Chief Special Master Corcoran
                Petitioner, *
                            *                                             Dated: February 10, 2020
v.                          *
                            *                                             Attorney’s Fees and Costs;
                            *                                             Interim Fees; Expert Costs;
SECRETARY OF HEALTH AND     *                                             Travel Costs.
HUMAN SERVICES,             *
                            *
                Respondent. *
                            *
*************************

Andrew D. Downing, Van Cott & Talamante, Phoenix, AZ, for Petitioner.

Mark Helle, U.S. Dep’t of Justice, Washington, DC, for Respondent.


    DECISION GRANTING INTERIM AWARD OF ATTORNEY’S FEES AND COSTS1

       On September 15, 2016, Zachariah Otto filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that the human
papillomavirus (“HPV”) vaccine he received on October 13, 2014, caused him to experience an
adverse reaction, including but not limited to chronic fatigue or postural orthostatic intolerance
syndrome (“POTS”). An entitlement hearing was held on November 4–5, 2019, in Washington,
DC, But no ruling or decision in the matter has yet issued.

1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public.
Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
        Petitioner has now requested a second interim award of attorney’s fees and costs in the
total amount of $145,887.96 (representing $76,116.50 in attorney’s fees, plus $69,771.46 in costs).
Second Mot. Interim Attorney’s Fees and Costs at 8, November 20, 2019, ECF No. 91 (“Second
Interim Fees App.”).

        Respondent filed a Response to Petitioner’s Motion on December 4, 2019, deferring to my
discretion as to whether Petitioner has met the legal standards for an interim fees and costs award.
Response at 2, ECF No. 92. Respondent otherwise represents that the statutory and other legal
requirements for an award of attorneys’ fees and costs are met, and he recommends that if an
interim award is appropriate, I calculate a reasonable award. Id. at 2–3.

        For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding
at this time interim costs in the amount of $64,820.31, while deferring ruling on additional
attorney’s fees requested since the first interim request.

                                        Procedural History

        This action has been underway for over three years. See Pet. at 1, Sept. 15, 2016, ECF
No. 1. Petitioner filed a first application for interim fees and costs on August 21, 2018. First Mot.
Interim Attorney’s Fees and Costs, ECF No. 39 (“First Interim Fees App.”) (requesting
$59,208.75). I issued a decision granting in part Petitioner’s first motion for attorney’s fees and
costs which included attorney’s fees generated to that date (but not fees associated with the
hearing—which was still a year away). Decision on Attorney’s Fees and Costs, October 5, 2018,
ECF No. 43 (“First Interim Fees Decision”) (awarding $42,143.50 in fees and $1,225.25 in costs,
and deferring ruling on expert costs). I deferred ruling on costs related to Petitioner’s expert
witnesses, because at the time, “the causation theories advanced in such cases have proven
unreliable and have accordingly not resulted in favorable decisions.” Id. Waiting until after the
hearing would help me determine if Petitioner’s experts were helpful in resolving the case and if
their theories merely “parrot[ed] back previously-rejected theories.” Id. I instructed Petitioner that
he “may renew his request for expert costs after [the] hearing.” Id. As noted, a hearing has now
been held.

                                            ANALYSIS

I.     Legal Standard for Awarding Interim Fees and Costs

       I have previously discussed at length the standards applicable to determining whether to
award interim fees and costs. See, e.g., Auch v. Sec’y of Health & Human Servs., No. 12-673V,
2016 WL 3944701, at *6–9 (Fed. Cl. Spec. Mstr. May 20, 2016); Al-Uffi v. Sec’y of Health &
Human Servs., No. 13-956V, 2015 WL 6181669, at *5–9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It

                                                  2
is well-established that a decision on entitlement is not required before interim fees and costs may
be awarded. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); see
also Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Fester v.
Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr.
Aug. 27, 2013). While there is no presumption of entitlement to interim fees and cost awards,
special masters may in their discretion make such awards, and often do so. Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests
for interim costs are subject to the same standards. Presault v. United States, 52 Fed. Cl. 667, 670
(2002); Perreira, 27 Fed. Cl. at 34; Fester, 2013 WL 5367670, at *16.

II.    Appropriate Fees Award

        I recently considered a second application for interim fees involving the same counsel, Mr.
Andrew Downing. See Schultz v. Sec’y of Health & Human Servs., No. 16-539V, 2019 WL
5095634, at *1 (Fed. Cl. Spec. Mstr. Aug. 15, 2019). In Schultz, I explained that my policy is to
avoid multiple interim attorney’s fees awards. Schultz, 2019 WL 5095634, at *2. Those same
policy concerns apply to this case. No entitlement determination has yet been made, and there is a
high likelihood that thereafter additional attorney’s fees will be generated (whether in connection
with appeal of entitlement or incurred in determining and/or litigating damages). Under such
circumstances, it is my view that only one interim fees award is appropriate, with the remainder of
fees addressed when the case finally concludes.

        Petitioner’s counsel has been made aware of my views on this matter (most recently in the
Schultz interim fees decision, which issued over three months before the filing of the present
interim request in this case). Yet in the present motion, he repeatedly questions my policy of
avoiding multiple interim attorney’s fees and awards. E.g., Second Interim Fees App. at 2–4. While
fees issues are a matter that is solely within my discretion, I will explain my reasoning.

         One of the most important aims of the Vaccine Program is expeditious resolutions of
petitions. See, e.g., Section 12(d)(2)(A). The Supreme Court has instructed that “the determination
of fees ‘should not result in a second major litigation.’” Fox v. Vice, 563 U.S. 826, 838 (2011)
(“trial courts need not, and indeed should not become green-eyeshade accountants”). Indeed,
potentially increasing the litigation of fee matters is at odds with promoting judicial economy. See
White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 453 (1982) (explaining that
filing repeated interim fee motions would “serve no useful purpose”).

        I balance this concern with Avera’s directive that interim fees are appropriate where
petitioner demonstrates undue hardship. 515 F.3d at 1352. But in my experience multiple interim
fees applications rarely meet this standard. Avera reflects the concern that a Program petitioner
would be out-of-pocket during a lengthy litigation, and that this is contrary to the Vaccine Act’s


                                                 3
remedial goals. Id. Here, by contrast, the fees request seeks prompt payment for the sole benefit of
counsel, and for work recently performed on this matter. While it is true that the Act’s generous
fees provisions are intended to ensure the existence of a bar of skilled attorneys ready to represent
claimants, it stretches the intent of that provision too far to ask also that the Act provide “just-in-
time” payment to Program lawyers, redeeming their fees requests as a case is litigated. To do so
not only elevates counsel to the same protected class as petitioners, but (as I have observed
frequently when denying serial interim fees requests) essentially puts the Office of Special Masters
“into business” with counsel. Schultz, 2019 WL 5098963, at *5 n.6 (citing Dean v. Sec'y of Health
& Human Servs., No. 13-808V, 2015 WL 8001603, at *9 (Fed. Cl. Spec. Mstr. Nov. 12, 2015)).
And it requires me to engage in the sort of piecemeal determinations warned against by the
Supreme Court—determinations that distract me from deciding entitlement in this case.

        My policies in this regard are not driven by personal animosity toward counsel. I also have
empathy for the financial struggles any Program attorney faces in attempting to run a successful
and solvent practice, and the hardships they may face while awaiting fees payments from the
Program. But all of the above counter-considerations counsel against multiple interim fees awards
in a single case, except in rare circumstances, and I will therefore continue to defer second interim
requests for fees in all cases before me. Counsel in this case should not keep requesting them (and
is placed on notice that time devoted to future such requests shall not be compensated).

III.   Requested Costs

         Although I am not willing to issue a second interim fees award at this time, costs are another
matter. Now that the hearing has concluded, the largest component of costs—those associated with
experts—are not likely to recur. The same goes for other trial-oriented costs. It is reasonable that
they be reimbursed as shortly after hearing as possible. Thus, I will permit a recovery of such costs
at this time.

        Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Presault, 52 Fed. Cl. at 670;
Perreira, 27 Fed. Cl. at 34. Reasonable costs include the costs of obtaining medical records and
expert time incurred while working on a case. Fester, 2013 WL 5367670, at *16. When petitioners
fail to carry their burden, such as by not providing appropriate documentation to substantiate a
requested cost, special masters have refrained from awarding compensation. See, e.g., Gardner-
Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec.
Mstr. June 30, 2005).

        Petitioner requests a total of $69,771.46 in costs. The requested costs herein fall into three
general categories: (1) expert costs; (2) travel costs; and (3) office and filing-related costs. The
third category includes charges for photocopies, postage, faxes, obtaining medical records, and


                                                  4
Westlaw legal research, all of which are to be reimbursed (in the total amount of $391.85). The
other two categories require discussion.

         A.       Expert Costs

        Petitioner requests a total of $49,885.00 for Drs. Miglis and Shoenfeld. Second Interim
Fees App. Ex. A at 44, 49–50. Dr. Miglis billed at a rate of $500 per hour for a total of $6,250.00.
Id. at 49. Dr. Shoenfeld billed for fifteen hours at an hourly rate of $500 for a total of $7,500.00,
plus a fee of $45.00 to wire the retainer money to his account. Id. at 50. Petitioner also requests
reimbursement for a retainer fee of $2,000.00 paid to Dr. Shoenfeld, as well as an additional $45.00
wiring fee.

        In my first interim fees decision, I deferred awarding expert time, explaining that “[n]either
requested rate greatly exceeds what experts are often paid for Program work, although $500 per
hour is at the top of the general range for expert costs, at least as of the present, and Petitioner has
not established that Dr. Miglis should receive that rate.” First Interim Fees Decision, at 5. My
reservations were also based partly on concerns about the viability of the theories to be offered in
this case. Causation theories advanced in similar HPV–POTS cases have been found unreliable.
See, e.g., Johnson v. Sec’y of Health & Human Servs., No. 14-254V, 2018 WL 2051760, at *24
(Fed. Cl. Spec. Mstr. Mar. 23, 2018) (finding that Dr. Shoenfeld’s testimony on the association
between HPV and POTS was not reliable); Combs v. Sec’y of Health & Human Servs., No. 14-
878V, 2019 WL 1581672 (Fed. Cl. Spec. Mstr. Feb. 15, 2018).

       After reading the expert reports in this case and observing each expert testify at the hearing,
I am convinced that their requested rates are warranted. Both produced expert reports that were
generally helpful in understanding Petitioner’s causation theory. In addition, although I have not
ruled on entitlement yet (and cannot therefore say with certainty how persuasive I will find these
opinions), I can preliminarily state that the opinions offered were not of the caliber that I would
deem inappropriate for compensation.3

       I have previously found $500.00 per hour to be a reasonable rate for Dr. Shoenfeld’s time.
See Johnson v. Sec’y of Health & Human Servs., No. 14-254V, 2018 WL 3991262, at *4 (Fed. Cl.
Spec. Mstr. July 3, 2018); Schultz v. Sec'y of Health & Human Servs., No. 16-539V, 2018 WL
1835104, at * 4 (Fed. Cl. Spec. Mstr. Feb. 16, 2018). Other special masters have also recently
compensated Dr. Shoenfeld at $500.00 per hour. See Puckett v. Sec'y of Health & Human Servs.,
No. 15-929V, 2018 WL 2225067, at *3 (Fed. Cl. Spec. Mstr. April 17, 2018); Bello v. Sec'y of

3
  This does not mean that I am finding the opinions persuasive or scientifically reliable for entitlement purposes.
Indeed, I continue to harbor concerns about the overall persuasiveness of theories that the HPV vaccine can directly
damage the autonomic nervous system, or interfere with it, sufficient to cause POTS. In future cases I am likely to
resist similar opinions from these or other experts earlier in the case. But for present purposes, I find that both experts
should be compensated for their assistance at the hearing for this matter.

                                                            5
Health & Human Servs., No. 13-349V, 2017 WL 785692 (Fed. Cl. Spec. Mstr. Jan. 24, 2017). I
have not considered Dr. Miglis’s requested rate before. But other special masters have found his
requested rate of $500.00 per hour reasonable. See, e.g., Walker v. Sec’y of Health & Human
Servs., No. 16-543V, 2019 WL 7288770, at *4 (Fed. Cl. Spec. Mstr. Dec. 2, 2019). Accordingly,
I find the requested rates for both experts reasonable.

        I also find the number of hours billed by Drs. Miglis and Shoenfeld to be reasonable. Dr.
Shoenfeld spent 15 hours preparing and writing his expert report. Second Interim Fees App., Ex.
A, at 28. He also spent 44.5 hours for the entitlement hearing. Id. at 75. This was comprised of 3
hours preparing for the hearing, 13.5 hours in the hearing itself, and 28 hours billed at half his
hourly rate for travel. Id. Dr. Miglis spent 8.5 hours preparing and writing his expert report. Id. at
31. He also spent a total of 40 hours for the entitlement hearing. Id. at 77. This included 20 hours
preparing for the hearing, 15 hours in the hearing itself, and five hours traveling billed at half his
hourly rate. Id. at 76–77. In similar cases, I have found that comparable amounts of time preparing
an expert report, testifying at an entitlement hearing, and traveling were reasonable. See Johnson,
2018 WL 3991262, at *4 (Fed. Cl. Spec. Mstr. July 3, 2018) (compensating Dr. Shoenfeld for “29
hours of work, plus an additional 28 hours” of travel). Thus, I find the amount of time Petitioner’s
experts spent on this case reasonable.

        B.       Travel Costs

        Although the costs related to the expert witnesses were reasonable, some of Petitioner’s
travel costs and expenses require adjustment. First, Dr. Shoenfeld’s flight from Tel Aviv to
Washington, D.C. cost $4,965.00. The receipt provided for this flight was a wire transfer to “Ophir
Tours.” An online search however showed that the average flight, arriving and departing on the
same days of the week, (for coach or economy seating) generally cost between $750 and $1250
depending on when the flight was scheduled.4 Flights scheduled for similar days in November
2020 cost about $1056. No explanation is given for why Dr. Shoenfeld’s flight cost more than four
times that of similar flights. Nor is any explanation given for what Ophir Tours is or what it does.

        The Vaccine Program does not compensate such a high disparity in price without
explanation. See, e.g., Mooney v. Sec'y of Health & Human Servs., No. 05-226V, 2014 WL
7715158, at * 12 (Fed. Cl. Spec. Mstr. Dec. 29, 2014) (declining to compensate for higher airfare
cost for counsel to sit in a higher class of seating when the extra expense was for comfort, not
expense); McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *22
(Fed. Cl. Spec. Mstr. Sept. 1, 2015) (declining to compensate for the increased price of a first-class



4
  Flights from Tel Aviv to Washington, D.C., https://www.kayak.com/flights/TLV-WAS/2020-11-01/2020-11-
03?sort=bestflight_a (last visited Feb. 7, 2020). Prices in this range were achieved using this website (and other
comparable websites) when scheduling flights a week to several months in advance.

                                                        6
plane ticket). Therefore, Petitioner’s costs are reduced by $3,909.00—meaning that Dr. Shoenfeld
is only compensated for $1,056.00 of the airfare cost.

         Second, Petitioner’s counsel and Dr. Miglis arrived in D.C. two days before the hearing.
See Second Interim Fees App., Ex. A at 34–37, 73. Previous special masters have determined that
it is “unfair and unnecessary for petitioner's counsel to travel one day earlier than required . . . .”
See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 732 (Fed. Cl. 2011)
(affirming special master). No explanation is given for why counsel needed to arrive two days
early for the hearing. While it appears they spent some time the morning before the hearing
prepping with Dr. Miglis, that alone is not enough to justify the extra expense of arriving two days
before the hearing. Accordingly, I find that the requested hotel and food costs from November 2,
2019, are unreasonable. This results in a reduction of $929.17.5

         Third, expenses for some meals raise concerns. Special masters routinely reduce meal
charges that are excessive. See, e.g., Digerolamo v. Sec’y of Health & Human Servs., 2019 WL
4305792, at *4 (Fed. Cl. Spec. Mstr. June 28, 2019) (reducing meal expenses that exceeded the
daily per diem). Petitioner requests $524.50 in expenses for a meal at Rare Steakhouse (for 6
people) on November 4 and $348.96 in expenses for a meal at Ghibellina (for 4 people). This
results in an average cost per person of $87.33 for the meal at Rare steakhouse, and $87.24 for the
meal at Ghibellina. For these meals, I reduce the average charges to the daily per diem rate in
Washington, D.C. This results in a reduction of $112.98.6

         After review of the record I am satisfied that other expenses are reasonable. Petitioner’s
trial team stayed at a hotel that cost an average of $383.75 per night. Second Interim Fees App. at
7. Petitioner filed records showing that similar hotels in the area cost comparable amounts. Id. at
7–8. As I stated in Schultz (another case where Mr. Downing was counsel) I find hotel rates greater
than $400 per night unjustifiably high. Schultz, 2019 WL 5095634, at *3. The rate Petitioner
requests toes the line of what is reasonable. Otherwise, I have reviewed Petitioner’s other expenses
and find them reasonable.

                                                CONCLUSION

        Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for
Interim Attorney’s Fees, as follows:


5
 This reduction is calculated by adding the price of the hotel rooms on November 2, 2019, plus tax, plus the cost of
meals incurred on that day.
6
    [Total Cost of Meal] - [Daily GSA Per Diem] x [Number of Meal Participants] = [Amount of Reduction Per Meal]


                                                         7
                                 Amount Requested                          Reduction       Total Awarded
    Attorney’s Fees                     $76,116.50                           Deferred                    $0
    Litigation Costs                    $69,771.46                          $4,951.15            $64,820.31
                                                                                    Grand Total: $64,820.31

       I therefore award a total of $64,820.31 in interim fees and costs as a lump sum in the form
of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. Andrew Downing, Esq.,
representing costs in the amount of $64,820.31.

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


         IT IS SO ORDERED.
                                                                s/ Brian H. Corcoran
                                                                Brian H. Corcoran
                                                                Chief Special Master




7
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.

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