Dean v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-808V
(Not to be Published)

*****************************
JESSICA DEAN and RYAN DEAN, * Special Master Corcoran
on behalf of their minor child, I.D., *
* Filed: November 12, 2015
*
Petitioners, * Attorney’s Fees and Costs;
* Reasonable Basis; Interim Fees;
v. * Expert Costs.
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*****************************

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

Darryl R. Wishard, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING IN PART INTERIM ATTORNEY’S FEES AND COSTS1

On October 17, 2013, Jessica and Ryan Dean filed a petition on behalf of their minor child,
I.D., seeking compensation under the National Vaccine Injury Compensation Program (the
“Vaccine Program”).2 Having filed numerous medical records, along with three reports from two
experts, Petitioners have now requested an interim award of attorney’s fees and costs. Respondent
objects that an interim fees award is not warranted at this juncture because the Deans have not
made the requisite special showing. In the alternative, should I determine that an interim fees award
is appropriate, Respondent argues that (i) the hourly rate requested for Petitioners’ counsel,

1
Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, §205, 116
Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. §3501 (2014)). 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. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Andrew Downing, is not reasonable; (ii) the hours billed by Petitioners’ counsel were excessive
and unreasonable; and (iii) the hourly rate requested for the retained experts in this case are
unreasonable. As discussed below, I hereby GRANT IN PART Petitioners’ interim fees
application, awarding interim attorney’s fees and related costs of $38,104.83, while deferring
action on any expert-related costs.

Factual History

On September 24, 2010, I.D. was born at full term via vaginal delivery, with APGAR
scores of 8/9. Pet’rs’ Ex. 2 at 81; Pet’rs’ Ex. 3 at 6. On December 21, 2010, I.D. received her first
dose of diphtheria and tetanus toxoids and acellular pertussis vaccine (“DTaP”)3 and haemophilus
influenza type b vaccine (“Hib”)4 with no reported adverse reaction. Pet’rs’ Ex. 2 at 8, 10. On
February 24, 2011, I.D. received her second dose of DTaP and Hib. Id. at 24. On March 17, 2011,
I.D. presented with a rash, and was diagnosed with eczema. Id. at 23.

On May 13, 2011, I.D. saw Dr. Davis, a pediatric neurologist, due to “unusual movements.”
Pet’rs’ Ex. 2 at 66. Her mother reported that when I.D. experienced a mood change, she would lift
her hands to and from her face and twist her hands in a flailing-like maneuver. Id. Her neurological
exam and subsequent electroencephalogram were normal, and Dr. Davis diagnosed her with
benign stereotypies of childhood (similar to a childhood tic disorder). Id. at 67.

At I.D.’s nine-month and one-year well-child visits, I.D.’s abnormal movements had
continued, but I.D. had normal growth and development. Pet’rs’ Ex. 2 at 18. Again, I.D. was
diagnosed with benign stereotypies of childhood. Id. On December 28, 2011, I.D.’s pediatrician
recorded that I.D. was sensitive to sounds and textures and was a picky eater. Id. at 14. She saw a
speech and occupational therapist throughout 2012 and 2013 for sensory integration and speech
delay issues. Id. at 64; Pet’rs’ Ex. 4 at 74.

On January 21, 2013, Mrs. Dean reported that I.D. had experienced a reaction to her
February 24, 2011, vaccinations that lasted about a year before resolving. Pet’rs’ Ex. 2 at 72. On
May 17, 2013, I.D.’s pediatrician wrote a permanent medical exemption from future
immunizations due to adverse reaction. Id. at 10. However, prior to this time, there is no
documented discussion in the medical records of adverse reactions to I.D.’s February 24, 2011,
vaccinations.

3
The DTaP vaccine is a “combination of diphtheria toxoid, tetanus toxoid, and acellular pertussis vaccine; absorbed
on an aluminum-adsorbing agent.” Dorland’s Illustrated Medical Dictionary 2015 (32d ed. 2012).
4
The Hib vaccine protects against Haemophilus influenza type b, a disease caused by bacteria. Hib disease was the
leading cause of bacterial meningitis, an infection of the lining of the brain and spinal cord. U.S. Department of Health
and Human Services, Hib Vaccine: What You Need to Know, Vaccine Information Statement (2015),
http://www.cdc.gov/vaccines/hcp/vis/vis-statements/hib html.

2
 I.D.’s pediatrician ultimately concluded that I.D. suffered an encephalopathy due to her
February 24, 2011, vaccinations and diagnosed her with a neuro-encephalopathic reaction. Pet’rs’
Ex. 10. Petitioners now bring this action on behalf of I.D. alleging that I.D. developed significant
neurological deficits following receipt of the Hib and DTaP vaccines at her 5-month wellness
exam, which took place on February 24, 2011. Pet. at 1.

Procedural History

Petitioners filed this action on October 17, 2013, alleging both a Table and a non-Table
injury. The alleged Table injury claim is that I.D. suffered an encephalopathy as defined by the
Vaccine Injury Table. By contrast, the alleged non-Table injury claim is that the vaccinations
resulted in a central nervous system injury.

Petitioners thereafter began the process of gathering and filing relevant medical records.
On December 12, 2013, Petitioners filed their Statement of Completion. ECF No. 10. Following
this filing, Respondent’s Rule 4(c) report deadline was initially set as February 10, 2014. ECF No.
13. However, Petitioners expressed interest in exploring settlement and, as such, the deadline was
suspended. The parties were instructed to file a joint status report on or before March 12, 2014,
regarding the status of settlement negotiations. ECF No. 14. Those discussions extended into early
April, at which time Respondent filed a status report indicating that the parties were unable to
settle this case. ECF No. 18. A status conference was held on April 10, 2014, and I set a deadline
of June 13, 2014, for the filing of Petitioners’ expert report, with a status report by Respondent to
follow within thirty days. ECF No. 19.

Between June and October of 2014, the Deans filed a total of three motions to extend their
deadline to file an expert report. See generally ECF Nos. 22, 26, and 28. Each was granted, and
then on October 20, 2014, Petitioners filed an expert report and supporting literature from Dr.
David Axelrod. ECF No. 30. Respondent filed her Rule 4(c) report on February 6, 2015. ECF No.
36. In it, she disputes that I.D. experienced an encephalopathy post-vaccination. Id. at 6-7. She
also argued that Petitioners failed to carry their burden to prove a non-Table injury. Id. at 7.
Specifically, she noted that Dr. Axelrod’s report’s factual summary was “cursory and inaccurate,”
and he failed to cite to the contemporaneous medical records, instead relying on the parents’
statements made much later. Id. at 8-9. She argues that Petitioners also fail under Althen prong
two, because the treater’s opinion attributing injury to vaccination – which is normally accorded
significant weight in the Vaccine Program – inappropriately relies on the parents’ statements. Id.
at 10-11. Finally, Respondent argues that Petitioners fail to meet Althen prong three, because the
contemporaneous medical records do not support a timeframe consistent with the theory proposed
by Dr. Axelrod. Id. at 11.

3
 Following a status conference, Petitioners were instructed to file a supplemental expert
report from Dr. Axelrod or an additional export report from a pediatric neurologist responding to
the identified issues on or before May 29, 2015. On June 1, 2015, they filed an expert report and
supporting literature from Dr. Harvey Cantor. ECF No. 39.

On June 22, 2015, Petitioners filed the present interim fees award application (“Mot.”).
ECF No. 41. Petitioners argue that they have acted in good faith and have established a reasonable
basis for their claim, and thus fees are generally appropriate. Mot. at 9-10. They also assert that
their case meets all three criteria set forth by the Federal Circuit in Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008) for an interim fees award, because (i) the
case is protracted; (ii) the case involves costly expert testimony; and (iii) the case involves undue
hardship. Mot. at 10-16. Petitioners further maintain that Mr. Downing’s hourly rate is reasonable,
as are Petitioners’ experts’ fees. Id. at 17-33.

The Deans request compensation for Mr. Downing at a rate of $350/hour for the 82.9 hours
he has expended in this case thus far, for a total of $29,015.00. Id. at 18-20. In addition, they ask
that an associate attorney, Jordon Redman, be awarded fees in the amount of $195/hour for the
38.8 hours expended in this case thus far, for a total of $7,566.00, and also seek to recover costs
for work performed by two legal assistants (Robert Cain and Danielle Avery) billing $100/hour,
for a joint total of $588.50. Id. at 18, 24. Petitioners also ask for reimbursement of funds paid to
Drs. Axelrod and Cantor for their initial work on the case, including the preparation of filed expert
reports, in the total sum of $11,800.00, based on hourly rates of $500 for both. Id. at 30.

Respondent filed an opposition to the interim award application on July 1, 2015 (“Opp.”).
ECF No. 42. She maintains that the express language of section 15(e)(1) of the Vaccine Act does
not confer authority on special masters to award interim fees. Opp. at 3-4. She then argues that
even if interim fees awards are permitted, such award is inappropriate in the present case because
Petitioners have not met the “necessary” Avera criteria. Id. at 7-8. Respondent does not, however,
presently contest Petitioners’ good faith in filing the claim, or the claim’s reasonable basis, but
reserves the right to challenge reasonable basis at a later time. Id. at 7, n.3.

Respondent further argues that, to the extent I grant an interim award, the $350 hourly rate
requested for Mr. Downing is unreasonably high. Id. at 12. Respondent suggests a 2013 local rate
of $290.00/hour; then, factoring in Consumer Price Index inflation, a 2014 local rate of
$295.00/hour and a 2015 local rate of $296.00/hour.5 Id. at 13-17. Regarding the total hours
claimed by Mr. Downing, Respondent says that “his work should exhibit more efficiency.” Id. at

5
Respondent has not asserted any objection to the rates requested for the services of Mr. Redman or the paralegals
who have provided services on this matter. Opp at 12, n. 9. As such, these issues are conceded by Respondent. Because
I have independently concluded that these rates are acceptable, I will not be addressing them herein, but instead
applying the relevant rates to my calculation of the interim award to be granted.

4
17. Finally, Respondent contends that the rates charged by Petitioners’ experts are unreasonable.
Id. at 18-19.

Petitioners replied to Respondent’s Opposition on July 7, 2015. ECF No. 43 (“Reply”). In
it, the Deans reiterate their earlier argument that the decisions of the Federal Circuit permit the
recovery of interim fees and costs. Reply at 3-8. With respect to challenging Mr. Downing’s hourly
rate, Petitioners question whether Respondent’s reliance on the 2014 Real Rate Report and the
2013 Economics of Law Survey supports the lower hourly rate she urges. Id. at 9. Petitioners also
object to Respondent’s blanket efficiency objections, noting that Respondent fails to point to any
specific examples in the record of inefficiency. Id. at 15. Finally, Petitioners address Respondent’s
claim that Petitioners’ experts’ fees are not reasonable, by reiterating that these experts are entitled
to the prevailing market rate for the work performed, and that the rates they are charging are in
fact reasonable. Id. at 15-17.

On August 13, 2015, the Deans filed a Supplemental Brief providing additional evidence
that Petitioners’ counsel has not raised his billing rates. See ECF No. 44 (“Supp. Br.”). On August
18, 2015, Respondent filed a response, urging the Court to disregard such evidence. ECF No. 45.
Later that day, Petitioners filed a reply acknowledging that Respondent has, in fact, not conceded
the validity of the rate requested in this case, and is not bound to accept those rates in this instance,
but that Petitioners merely provided the information due to the similarity to a previous case where
the information was requested. ECF No. 46. Thereafter, on October 2, 2015, Petitioners filed a
supplemental brief providing additional information to demonstrate the nature of the burden placed
on Petitioners’ counsel in carrying expert expenses in the Vaccine Program. ECF No. 50 (“Supp.
Br. on Undue Burden”). This matter is now ripe for resolution.

ANALYSIS

I. An Interim Award is Appropriate in this Case.

Controlling decisions of the Federal Circuit6 permit the recovery of interim fees and costs
in Vaccine Program cases. Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed.
Cir. 2012); Avera, 515 F.3d at 1352. Indeed, as noted in McKellar v. Sec’y of Health and Human
Servs., “interim fees are permitted even before an entitlement decision is made.” 101 Fed. Cl. 297,
302 (2011).

In determining that interim fees awards should be available in Vaccine Program cases, the
Federal Circuit followed the Supreme Court’s construction of other fee-shifting statutes. Avera,

6
In this decision, I reference or rely upon both the decisions of special masters as well as the judges of the Court of
Federal Claims, all of which constitute persuasive, but not binding authority. Hanlon v. Sec’y of Health & Human
Servs., 40 Fed. Cl. 625, 630 (1998). Federal Circuit decisions, however, are binding on special masters. Guillory v.
Sec’y of Health & Human Servs., 59 Fed. Cl. 121, 124 (2003), aff’d, 104 Fed. App’x 712 (Fed. Cir. 2004).

5
515 F.3d at 1351-52. Avera, however, did not define precisely the circumstances in which an
interim award might appropriately be issued – leading other special masters to observe that the
standards for granting an interim fees award “remain somewhat muddled.” Small v. Sec’y of Health
& Human Servs., No. 02-1616V, 2014 WL 308297, at *1 (Fed. Cl. Spec. Mstr. Jan. 7, 2014) (citing
Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010)). Avera has thus
been interpreted as allowing special masters broad discretion in determining whether to award
interim fees. See, e.g., Kirk v. Sec’y of Health & Human Servs., No. 08-241V, 2009 WL 775396,
at *1 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (reading Avera to set a “broad, discretionary vehicle for
ensuring that petitioners are not punished financially while pursuing their vaccine claim”); Bear v.
Sec’y of Health & Human Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb.
4, 2013) (Avera provides only “examples and general guidance concerning when interim fees and
costs might be awarded, leaving the special masters broad discretion to consider many factors in
considering whether an interim award is appropriate in a particular case”) (emphasis in original).

The awarding of interim fees must also be based on the more general factors that special
masters consider, in their discretion to award reasonable fees and costs to unsuccessful petitioners
(given that an interim request, being made in a case that has yet to be adjudicated, is literally made
in the context of an “unsuccessful” petition). Thus, a special master asked to make an interim
award must consider if (i) the petition was brought in good faith;7 and (ii) there was a reasonable
basis8 for the claim for which the petition was brought. Section 15(e)(1); Silva v. Sec’y of Health
& Human Servs., 108 Fed. Cl. 401, 405 (2012); McKellar, 101 Fed. Cl. at 303 (applying good
faith/reasonable basis test to interim fees request).

Here, Respondent contests Petitioners’ interim fees application arguing that (i) interim fees
are not statutorily authorized as per Section 15(e)(1) of the Vaccine Act; and (ii) to the extent
special masters are in fact so authorized, then they may only act in limited circumstances, such as
where a petitioner makes a particularized showing of hardship, and that such circumstances are
absent in this case. Opp. at 2-3. The first of these objections is often repeated by Respondent in

7
Determining whether a petition was filed in good faith is a subjective inquiry, and can be established as long as a
petitioner demonstrates an honest belief that she suffered a compensable vaccine injury. See Di Roma v. Sec’y of
Health & Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). This element
is therefore the more easily established of the two. Austin v. Sec’y of Health & Human Servs., No. 10-362V, 2013 WL
659574, at *7 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“[d]ue to its subjective nature, the standard for good faith is very
low”). Indeed, some cases stand for the proposition that absent an affirmative showing that a petitioner acted in bad
faith, a petitioner is entitled to a presumption of good faith. See, e.g., Grice v. Sec’y of Health & Human Servs., 36
Fed. Cl. 114, 121 (1996).
8
The reasonable basis requirement involves an objective inquiry with no such favorable presumption as with
determining good faith. See McKellar, 101 Fed. Cl. at 303-34 (citing Perreira v. Sec’y of Health & Human Servs., 33
F.3d 1375 (Fed. Cir. 1994)) (“[t]he petitioner must affirmatively establish a reasonable basis to recover attorneys’ fees
and costs”). An assessment of reasonable basis “look[s] not at the likelihood of success but more to the feasibility of
the claim.” Di Roma, 1993 WL 496981, at *1.

6
opposing interim fees and costs requests,9 but has been repeatedly dispensed with. See, e.g.,
Crutchfield v. Sec’y of Health & Human Servs., No. 09-39V, 2011 WL 3806351, at *2 (Fed. Cl.
Spec. Mstr. Aug. 4, 2011). In short, I am empowered to grant an interim fees and costs award if I
deem (in the reasonable exercise of my discretion) that it is appropriate to do so.

There is more meat on the bones of Respondent’s second argument – that the Deans have
failed to make a “special showing of hardship” justifying an interim award. Opp. at 5-6, 8 (citing
McKellar, 101 Fed. Cl. at 300-01). Petitioners respond by attempting to demonstrate that they have
satisfied each of the Avera criteria. Mot. at 12 (citing Avera, 515 F.3d at 1352). To resolve this
aspect of Respondent’s objections requires some evaluation of where the case presently stands.

First, I do not find that the matter is notably protracted. In most cases the “protracted
proceedings” element is only satisfied where several years have passed in a case’s life, or where
its trajectory is anticipated to take several more years prior to resolution. See, e.g., Roberts v. Sec’y
of Health & Human Servs., No. 09-427V, 2013 WL 2284989, at *4 (Fed. Cl. Spec. Mstr. Apr. 30,
2013) (granting interim fees when proceedings had been ongoing for over five years); Jakes v.
Sec’y of Health & Human Servs., No. 06-831V, 2013 WL 1150518, at *4 (Fed. Cl. Spec. Mstr.
Feb. 19, 2013) (awarding Mr. Downing interim fees because the case had been ongoing for over
six years).

Second, in an effort to demonstrate costliness of expert testimony, the Deans assert that
their counsel has had to reimburse expert costs of $11,800. Mot. at 33. Although there is no clear
authority for what standard applies in measuring costliness (see, e.g., Avila v. Sec’y of Health &
Human Servs., 90 Fed. Cl. 590, 598 (Dec. 22, 2009) (citing Avera, 515 F.3d at 1352)); but see
Fester v. Sec’y of Health and Human Servs., No. 10-243V, 2013 WL 5367670, at *15 (Fed. Cl.
Spec. Mstr. Aug. 27, 2013) (determining that “[i]t makes considerable practical sense” to evaluate
whether expert costs are high based on objective criteria)), I do not find that the particular expert
costs at issue are notably high from an objective standpoint. $11,800 is not an insignificant amount,
but it is not a shocking price for the services of two experts.

Finally, Petitioners and Respondent disagree whether the undue hardship criterion solely
includes hardship to the Petitioners (Respondent’s position), or whether it should consider hardship
to both Petitioners and Petitioners’ counsel (Petitioners’ position). Mot. at 14-17; Opp. at 8. I have
previously decided, however, in cases very similar to the present, that counsel’s burdens in
litigating a case (and even in litigating multiple Vaccine Program cases) are relevant to evaluating
hardship, since to do so is consistent with one of the underlying purposes of permitting interim
fees in the first place. Al-Uffi v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669,

9
See, e.g., Thomas v. Sec’y of Health & Human Servs., No. 12-309, 2013 WL 5718948, at *1 (Fed. Cl. Spec. Mstr.
Sept. 26, 2013); Whitener v. Sec’y of Health & Human Servs., No. 06-477, 2011 WL 1467919, at *1 (Fed. Cl. Spec.
Mstr. Mar. 25, 2011).

7
at *8 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). Because an interim fees award will assist the
representation of the Petitioners in this matter, I deem one appropriate.

There are no other bases for denial of an interim fees award in this case. Respondent does
not meaningfully contest Petitioners’ good faith or reasonable basis in bringing this petition. Opp.
at 7, n. 3.10 And I am not persuaded by Respondent’s argument that interim fees applications should
only be granted in rare, exceptional instances. As previously discussed, Avera provides special
masters with “broad discretion” in determining whether to make an interim award. See, e.g., Kirk,
2009 WL 775396, at *1. In the exercise of that discretion, I find an interim fees award11 is
appropriate in this particular case.
II. Challenges to the Amounts Requested for Petitioners’ Attorneys.

I must now determine the magnitude of Petitioners’ interim attorney’s fees award. Whether
a fees award is made on an interim basis or after a case’s conclusion, the requested sum must be
“reasonable.” Section 15(e)(1). It is for the special master to evaluate and decide whether this is
the case. See Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d
1375 (Fed. Cir. 1994). To this end, special masters may in their discretion reduce attorney hours
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, 208-
09 (2009); Perreira, 27 Fed. Cl. at 34 (special master has “wide discretion in determining the
reasonableness” of attorney’s fees and costs).

Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part
process. The first part involves application of the lodestar method – “multiplying the number of
hours reasonably expended on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at
1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting
the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This
standard for calculating a fee award is considered applicable in most cases where a fees award is
authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).

A. Proper Hourly Rate

10
Respondent at best indirectly attacks reasonable basis, stating that the two filed expert reports are “weak.” Opp. at
7, n. 3. But for purposes of the present application, Respondent concedes that sufficient reasonable basis is established
to make an interim award appropriate. Id. I separately conclude herein that there is sufficient support for Petitioners’
claim to find reasonable basis for the claim’s filing – based on the evidence of Petitioners’ vaccination, onset, and
injury supported by the medical record, including I.D.’s pediatric treaters. Special Masters have historically accorded
deference to treaters’ opinions. See, e.g., Andreu v. Sec’y of Health & Human Servs., No. 98-817V, 2008 WL 2517179,
at *8 (Fed. Cl. Spec. Mstr. May 29, 2008).
11
I do not, however (for the reasons stated below), find that the present interim award should also include expert costs
incurred to date.

8
 An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing
market rate” in the relevant forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human
Servs., No. 06-559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev.
den’d, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011). That rate is in turn determined
by the “forum rule,” which bases the award rate on rates paid to similarly qualified attorneys in
the forum where the relevant court sits (Washington, DC for Vaccine Program cases). Avera, 515
F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended
must be considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves
consideration of the work performed on the matter, the skill and experience of the attorneys
involved, and whether any waste or duplication of effort is evident. Hensley, 461 U.S. at 434,
437.12

Respondent maintains that Mr. Downing’s requested rate of $350/hour is unreasonable. 13
Id. I recently determined in Al-Uffi, however, that a reasonable hourly rate for Mr. Downing is
$350/hour. That analysis is broadly consistent with two other recent decisions involving different
Vaccine Program counsel – Scharfenberger v. Sec’y of Health & Human Servs., No. 11-221V,
2015 WL 3526559 (Fed. Cl. Spec. Mstr. May 15, 2015), and Special Master Gowen’s decision in
McCulloch v. Sec’y of Health & Human Servs., No. 09-293, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015), reconsid. den’d, 2015 WL 6181910 (Fed. Cl Spec. Mstr. Sept. 21, 2015).

I thus find that $350/hour is a reasonable hourly rate for Mr. Downing for work performed
in 2015. That rate, however, cannot be applied retroactively to work done in previous years, as
doing so would effectively be the equivalent of charging the government interest. Hocraffer v.
Sec’y of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *17-19 (Fed. Cl. Spec. Mstr.
July 25, 2011). As a result, employing the Consumer Price Index Calculator, Mr. Downing’s rate
of $350/hour is hereby adjusted to $348/hour for work performed in 2014 and $342/hour for work
performed in 2013.

B. Reasonable Hours Worked

I must also determine if the fees applicant has established the reasonableness of the work
performed. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986) (“[i]t remains

12
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there
is a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)). Here, however, the parties do not dispute that the forum rate and the rate prevailing among Arizona attorneys
(the geographic locale from which Mr. Downing practices) is substantially equivalent, obviating the need for such rate
comparison. See Opp. at 13.
13
As noted above, Respondent does not contest the reasonability of Mr. Redman’s requested rate of $195/hour. I do
not separately find that particular rate is unreasonable for an attorney with his level of experience, based on the rate
ranges discussed herein.

9
counsel’s burden to prove and establish the reasonableness of each dollar, each hour, above
zero.”).14 In doing so I am not obligated to evaluate an attorney’s billing records on a line-by-line
basis. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993) (approving
the special master's elimination of 50 percent of the hours claimed); see also Broekelschen v. Sec’y
of Health & Huamn Servs., 102 Fed. Cl. 719 at 728-29 (2011) (affirming the special master's
reduction of attorney and paralegal hours). At bottom, as the Supreme Court instructs, when
awarding attorney’s fees, special masters may use estimates to achieve “rough justice.” Fox v.
Vice, 131 S. Ct. 2205, 2216 (2011).

Respondent offers a single blanket objection that the hours billed by Mr. Downing are
“excessive and unreasonable.” Opp. at 17-18. However, this objection is not supported by a single
example from the record. Id. Because I have not been presented with a basis for adjusting the time
billed in this matter, and because I see no basis from my review of the record to do so
independently, Petitioners shall be awarded all the time proposed in their application. This results
in an attorney’s fees award of $28,805.00 in total ($6,532.20 for 19.1 hours in 2013; $9,952.80 for
28.6 hours in 2014; and $12,320.00 for 35.2 hours in 2015).

III. Challenges to Requested Expert Costs.

The Deans also request an award of interim costs for reimbursement (in the total amount
of $12,975.33, $11,800 of which was paid to experts) in this case. They have the same burden of
demonstrating the reasonableness of such costs as they do with respect to attorney’s fees. Perreira,
27 Fed. Cl. at 34; Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Fester, 2013 WL
5367670, at *16.

Here, I am hesitant to award the expert costs for two related reasons. First, the timing of
the request is slightly premature. Such awards are more commonly granted following the expert’s
testimony at an entitlement hearing. See, e.g., Robert, 2013 WL 2284989 (granting interim award
of expert costs after conclusion of hearing but before issuance of entitlement decision); Dobrydnev
v. Sec’y of Health and Human Servs., 94 Fed. Cl. 134, 148 (2010) (error for special master to deny
interim fees request to cover incurred expert costs; expert had testified at hearing and needed to be
compensated for prior work before he would be willing to testify at subsequent rebuttal
proceeding); see also Crutchfield, 2011 WL 3806351, at *8 (granting interim award of expert costs
after expert’s testimony at an evidentiary hearing; although petitioner had paid cost of expert’s
report preparation, it was an undue hardship to require petitioner also cover costs incurred after
expert testified at trial). No hearing is immediately pending, and there has been no representation
by the Petitioners that the experts’ appearances are dependent on satisfying their costs in advance.

14
Although Mares did not interpret the Vaccine Act’s fees provisions, fee-shifting statutes are interpreted similarly.
Avera, 515 F.3d at 1348.

10
 Second, I do not find that the expert costs are particularly high. One of the Avera criteria
for an award of interim costs is whether the matter requires the services of “costly experts,” which
is best resolved by looking at the issue objectively. Avera, 515 F.3d at 1352; Fester, 2013 WL
5367670, at *15 (“[a] petitioner or petitioner’s counsel who has expended $100,000 in expert costs
in a case that may be on review or appeal for several more years certainly presents a more
compelling case for an interim award than one who has only a $1,000 expert retainer cost
outstanding”). The amount in question (approaching $12,000) is not insignificant, and I do not
deny that its satisfaction may impose some burdens on counsel, but they are foreseeable burdens
in any active litigation that do not independently justify an interim award.

My reaction to the interim request for expert costs also is influenced by the case’s nature.
Because I am granting an interim fees award, it follows that (at least at present) I do find the case
has some reasonable basis. Yet I note that there are evident problems with the claims herein
(beyond the notable weaknesses in the Table claim). All of the expert reports offered in support of
both claims seem primarily to rely on statements by Mrs. Dean about I.D.’s vaccination reaction
rather than the medical records themselves. But it is well accepted in the Vaccine Program that
ordinarily medical records (and what they reflect about a vacinee’s health) are considered more
probative than the recollections of interested witnesses. See, e.g., Reusser v. Sec’y of Health &
Human Servs., 28 Fed. Cl. 516, 523-24 (1993) (“written documentation recorded by a disinterested
person at or soon after the event at issue is generally more reliable than the recollection of a party
to a lawsuit many years later”); Robi v. Sec’y of Health & Human Servs., No. 12-352V, 2014 WL
1677116, at *2-3 (Fed. Cl. Spec. Mstr. Apr. 4, 2014) (citing Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993)) (“[i]n weighing divergent pieces of evidence, special
masters usually find contemporaneously written medical records to be more significant than oral
testimony”). Such a case will be difficult to prove, and may turn not on expert testimony at all,
thus diminishing the value of their participation. It is wiser for me to defer ruling on their costs
until after I hear their testimony, and can then evaluate the reasonableness of the requested fees in
light of contribution made to the case by the respective experts.

Petitioners make several policy arguments as to why an interim award of expert costs is
justified, but I find them unpersuasive under the circumstances. Petitioners assert that the ability
of other petitioners to retain competent counsel in the Vaccine Program will be jeopardized if
attorneys must bear expert costs in many Vaccine Program proceedings without an immediate
expectation of reimbursement. Supp. Br. on Undue Burden at 3. They argue that because the
Vaccine Program benefits from having the “highest qualified experts available” to “opine on the
complicated subject matter involved in these cases,” I should err on the side of awarding such costs
when requested. Mot. at 30.

Those sorts of concerns, however, while rational, do not compel an expert costs award
herein. Vaccine Program experts are likely aware of the favorable fee-shifting provisions of the

11
Vaccine Act15 – and thus that they will be compensated, sooner or later, for reasonable time spent
on a case (assuming of course the case has reasonable basis). While counsel may initially bear
some of these costs in prosecuting a petitioner’s claim, that fact alone (given the otherwise
assurance of eventual payment) is not a basis for an interim fees award – otherwise, “interim fees
would be the norm.” McKellar, 101 Fed. Cl. at 301. To ask the special master to act otherwise
requires this Court to partner with counsel in ensuring the successful functioning of their business
model – something that goes well beyond simply encouraging the availability of representation to
successful petitioners, while also inviting inappropriate scrutiny into an attorney’s financial
management of his own practice. Fester, 2013 WL 5367670, at *15 (“[t]o look at such cases
subjectively would require delving into a law firm’s or expert’s financial situation, a requirement
that would likely be repellant to the court and law firm alike”).

Petitioners should certainly renew the present expert costs requests later, after their experts
have carried out their purpose by testifying. At that time, Petitioners may supplement the request
with statements or invoices recording additional expert costs.16 I defer resolution of this aspect of
Petitioners’ motion until that time.

CONCLUSION

Based on all of the above, the following chart sets forth the total calculation of Petitioners’
interim fees and costs award:

Contested Sum Amount Requested Reduction Total Awarded
Mr. Downing’s Fees $29,015.00 $210.00 $28,805.00
Associates and Legal $8,124.50 none $8,124.50
Assistants Fees
Expert Costs $11,800.00 N/A N/A
Other Costs $1,175.33 None $1,175.3317

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 Petitioners’ Motion for
Interim Attorney’s Fees, awarding $38,104.83 in interim fees and costs. I DEFER consideration

15
Indeed, certain experts routinely testify in Vaccine Program cases. It appears Dr. Axelrod himself has participated
to date in nearly a dozen Vaccine Program cases.
16
Should this case become more protracted, or the facts change in such a way that the case for an interim award of
expert costs is more compelling, Petitioners could also renew this portion of her request sooner. And I urge the parties
to consider stipulating to the award of such fees and costs upon conclusion of the hearing.
17
Respondent has not objected to these costs. See generally Opp. Because I find them reasonable, I hereby include
them in the award without adjustment.

12
of expert costs until a later time. 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.18

IT IS SO ORDERED.

/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master

18
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.

13