Dezern v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-643V
(to be published)

*************************
* Special Master Corcoran
BARRY S. DEZERN, *
* Filed: October 14, 2016
Petitioner, *
* Attorney’s Fees and Costs;
v. * Influenza (“Flu”) Vaccine;
* Reconsideration; Local versus
SECRETARY OF HEALTH * Forum Hourly Rates
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************

F. John Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for Petitioner.

Claudia B. Gangi, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION ON RECONSIDERATION AWARDING
ATTORNEY’S FEES AND COSTS IN PART1

On September 4, 2013, Barry S. Dezern filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”),2 based upon allegations that
he developed Guillain–Barré syndrome (“GBS”) and/or Chronic Demyelinating Inflammatory
Polyneuropathy (“CIDP”) as a result of his November 22, 2010, receipt of the influenza (“flu”)
vaccine. The parties stipulated to damages, and I issued a decision awarding them on January 21,
2016 (ECF No. 43).

On June 16, 2016, Petitioner filed a Motion requesting an award of attorney’s fees and costs
in the total amount of $53,982.95. ECF No. 48. Respondent did not oppose the request in substance,

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, 44 U.S.C. § 3501 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published 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 National Vaccine Injury Compensation 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 through 34 (2012)).
but suggested that the total amount sought was too high, leaving it to my discretion to determine the
proper sum to be awarded.

I issued a decision awarding $48,523.55 in total fees and costs on August 18, 2016. See
Decision on Attorney’s Fees and Costs (the “First Decision”) (ECF No. 50). Thereafter, Petitioner
requested reconsideration, arguing that the rate I awarded the primary attorney in this case for work
performed in 2016 was too low, and also questioning some of the time reductions in my decision. I
agreed to reconsider my decision in light of Petitioner’s arguments. Now, having reviewed the matter
a second time, I deny in part and grant in part Petitioner’s motion, awarding $48,594.95 in fees and
costs – a small upward adjustment that is the product of a change from my earlier decision as to the
proper rate for 2016.

FACTUAL BACKGROUND

As noted above, Mr. Dezern alleged that he developed a peripheral neuropathy after receipt
of the flu vaccine in November 2010. The primary attorney to have worked on the case is John
Caldwell of the Sarasota, Florida, office of the law firm of Maglio, Christopher & Toale (the “Maglio
Firm”)3, and the billing invoices filed in connection with the present fee request reveal the work he
performed on the matter. See generally Pet.r’s Ex. 33 (billing invoices), filed as ECF No. 48-1, at 1-
16.

My first decision sets forth a brief recitation of the case’s history, along with the tasks
performed by Maglio Firm attorneys and paralegals at various stages. See First Decision. In essence,
the case existed from August 2011 (when it was first brought to the Maglio Firm) until January 2016,
when it was settled by stipulation. Approximately six months later, in June 2016, Petitioner filed his
fees and costs request.

The hourly rate requested in the fees request was consistent for all years of work performed
in the case except 2016 – at which time the Maglio Firm raised its Vaccine Program rates for all
attorneys, including Mr. Caldwell, whose requested rate went from $300 per hour to $356 per hour.
A declaration attached to the original fees request from the Maglio Firm’s managing partner, Altom
Maglio, Esq. (Ex. 35, filed as ECF No. 48-3) explained that the Maglio Firm took this step in response
to a 2015 decision regarding proper rates for “in forum” practitioners, McCulloch v. Sec’y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015); Pet.r’s Ex.
35 at 2.

After the parties had fully briefed the fees request, I issued the First Decision, awarding the

3
The billing invoices reveal that one other attorney, identified as “AMM” (most likely Altom Maglio) performed .2 hours
of work on the case in September 2011, but did nothing thereafter. Ex. 33, filed as ECF No. 48-1, at 1.

2
Maglio Firm the total sum of $48,523.55. I awarded $40,114.00 in fees (for Mr. Caldwell and Dr.
Steinman) – a difference of $5,111.40 from what Petitioner originally requested. See First Decision.
I made two principal kinds of adjustments to the award requested. First, I determined that, based on
prior decisions, the Maglio Firm was not entitled to forum rates set by McCulloch, and therefore
declined to award Mr. Caldwell $356 per hour for 2016, choosing instead to adjust his $300 rate up
to $335 for 2016. Id. Second, I eliminated 15.55 hours of time from the award after careful review of
the bill, and after determining that in some few instances, unnecessary time was expended (for
example, in preparation of the two-page petition, or Mr. Caldwell’s assisting his expert in preparation
of the expert report). Id.

On September 8, 2016, Petitioner requested reconsideration of the First Decision. See Motion
for Reconsideration, dated September 8, 2016 (ECF No. 51)(“Mot.”). As general justification for
reconsideration, Petitioner asserted that the First Decision was based on minimal evidence submitted
by Petitioner, depriving him an opportunity to justify the 2016 rates. Id. at 1. Substantively, however,
Petitioner offered two specific objections to my decision. First, Petitioner asserted that the Maglio
Firm should in fact not be considered out-of-forum, and therefore not subject to the exception set out
in Davis City Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency,
169 F.3d 755, 758 (D.C. Cir. 1999), allowing them to be awarded rates consistent with McCulloch.
Mot. at 6-8. In support of this argument, Petitioner offered nine declarations or affidavits from a
variety of Sarasota-region practitioners, plus a Florida state court fee award consistent with the other
evidence, intended to support the claim that the local billing rates are not significantly different
enough from the forum rate. See Pet.r’s Ex. 37 to Mot. (filed as ECF No. 51).

Second, Petitioner objects to my reduction of 8.6 hours from time he spent collaborating with
Dr. Steinman in preparation of his expert report, arguing that it was a reasonable and efficient use of
resources. Mot. at 7. Moreover, Petitioner states that he performed the “factual legwork” on the
medical records to reduce the amount of hours that the expert would bill, at a higher rate, for the same
work. Id. at 7-8. Petitioner emphasizes the importance of attorney oversight in the review and
preparation of the expert report, especially as it concerns the medical literature and medical records.
Id. at 8.

After receiving the motion, I determined that reconsideration was in the interests of justice.
R.K. v. Sec’y of Health & Human Servs., No. 03-632V, 2010 WL 5572074, at *3 (Fed. Cl. Spec. Mstr.
Jan. 10, 2011) (granting reconsideration of decision dismissing case for failure to prosecute). I
therefore withdrew my earlier decision pursuant to Vaccine Rule 10(e)(3)(A), and also ordered
Respondent to file a response in reaction to the Petitioner’s Motion. Respondent did so on September
28, 2016 (ECF No. 54), stating that in her view my original decision was not only within the bounds
of my discretion but correct and therefore should stand. She did not, however, offer any specific
comment on Petitioner’s objections on reconsideration.

3
 Petitioner filed a reply on October 11, 2016 (ECF No. 55), citing two recently-decided cases
where the Maglio Firm was awarded $356 per hour. In the first instance, Chief Special Master Dorsey
determined that the fees requested were reasonable without resolving whether the Maglio Firm is
entitled to forum rates. Bray v. Sec’y of Health & Human Servs., No. 10-207V, slip op. (Fed. Cl. Spec.
Mstr. Aug. 23, 2016). The second case relied on Respondent’s concurrence in it that the amount
sought by the Maglio Firm was not an unreasonable amount. Phillips-Deloatch v. Sec’y of Health &
Human Servs., No. 09-171V, slip op. (Fed. Cl. Spec. Mstr. Sep. 26, 2016).

ANALYSIS

I. Background on Avera and Prior Treatment of Davis Exception.

I have previously discussed at length in other decisions the legal standards applicable to a
request for attorney’s fees in a Program case generally – and in particular how special masters
evaluate the proper hourly rate. See, e.g., Auch v. Sec'y of Health & Human Servs., No. 12-673V,
2016 WL 3944701, at *9-13 (Fed. Cl. Spec. Mstr. May 20, 2016). Such standards were also addressed
in my withdrawn First Decision, and will not be repeated herein.

Nevertheless, Petitioner’s request that I find the Maglio Firm’s Sarasota local rates to be
equivalent to rates charged in the Court’s forum merits brief consideration of the intent and meaning
of the Davis exception as embraced by the Federal Circuit in Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343 (Fed. Cir. 2008), and its application in the Program. Before Avera, the practice
in the Program was to award fees based on the locality of the attorney’s practice. Id. at 1348. There
were, however, many circumstances where petitioners attempted to obtain higher fees awards, often
by noting the fees paid to counsel in Washington, D.C. district court cases involving federal fee-
shifting statutes under the “Laffey matrix,” a rate schedule established for that purpose. Rodriguez v.
Sec'y of Health & Human Servs., 632 F.3d 1381 (Fed. Cir. 2011).

Efforts to obtain Laffey matrix rates for Vaccine Program cases were uniformly unsuccessful.
English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at *7 (Fed. Cl. Spec.
Mstr. Nov. 9, 2006). In denying such requests, special masters observed that the Laffey matrix only
provided guidance for non-Program matters, since it applied to complex litigation; Program cases, by
contrast, did not require use of the federal rules of evidence or the taking of discovery, and were tried
without the constraints of the Federal Rules of Civil Procedure. Rodriguez, 515 F.3d at 1384.
Moreover, special masters pointed out that, in keeping with Federal Circuit pronouncements on the
matter, Program attorney compensation could not be based on the concept that the nationwide, single-
practice character of Program litigation favored a single rate for all Vaccine Act counsel. English,
2006 WL 3419805, at *8-9.

4
 Avera introduced the rule that attorneys practicing outside of D.C., but where rates were
consistent with that of the forum, should receive the higher forum rate, unless the local rate was
sufficiently lower. Avera, 515 F.3d at 1349. Avera did not, however, establish a bright-line rule for
determining when local rates were sufficiently different to trigger the exception. Subsequent Federal
Circuit discussions of Avera have embraced inclusion of the Davis exception, but endorsed Avera’s
reluctance to firmly define what is “very significantly different.” See, e.g., Hall v. Sec’y of Health
and Human Servs., 640 F.3d 1351,1357 (Fed. Cir. 2011). Thus, although in Hall the special master’s
original decision that had been appealed engaged in a differential comparison4 in order to evaluate
the extent of the rate gap (No. 02–1052V, 2009 WL 3423036, at *20–21 (Fed.C1.Spec.Mstr. Oct. 6,
2009)), the Federal Circuit emphasized that at bottom special masters must consider “the evidence
before them and their own trial experience in similar litigations” in deciding if the Davis exception
should be applied. Hall, 640 F.3d at 1357.5

Another point relevant to the analysis herein is the underlying policy goal animating the Davis
exception. As the Federal Circuit stated in Avera, the intent of an exception to awarding a single,
forum-based rate in all Program cases is to ensure against a “windfall” – meaning paying a lawyer in
a rural or less expensive locale more than she would otherwise earn, simply because she is litigating
a case in a court of national jurisdiction. Avera, 515 F.3d at1349. Implicit to this is the fact that it is
less expensive to practice law in some parts of the United States than others, given prevailing office
overhead costs as well as the market for attorney services. Id. at 1348. Paying a Program lawyer more
than he or she would ordinarily earn for comparable work is not reasonable. See, e.g., Rodriguez, 632
F.3d at 1385 (the Act’s fee provision is “not designed as a form of economic relief to improve the
financial lot of lawyers”) (citing City of Burlington v. Dague, 505 U.S. 557, 563 (1992)).

The generosity of the Act’s fees provision also factors in to what a Program attorney should
receive generally. Many federal fee-shifting statutes allow a fees award only when a claimant has
succeeded. The Vaccine Program, by contrast, pays petitioner’s counsel win or lose (except when a
case should not have been brought at all under the “reasonable basis” standard – an exception not
frequently triggered), and even permits interim payments, before an entitlement decision has issued.
Because Program practitioners enjoy compensation protection not available elsewhere, attorneys who
accept representation of a Vaccine Act petitioner bear far less risk – and it is therefore reasonable

4
The Davis exception formula to determine the difference between the local and forum rates has been calculated as
follows: [(forum rate – local rate) / local rate] x 100. Barrett v. Sec'y of Health & Human Servs., No. 09-389V, 2014 WL
2505689, at *12 (Fed. Cl. Spec. Mstr. May 13, 2014).
5
Although decisions of special masters, and in the Court of Federal Claims, have often attempted to adopt a mathematical
formula for determining if a local rate is “very significantly different” from the forum rate, D.C. district court cases
discussing Davis have tended to take the more common-sense view that its application should mainly be a function of
whether the non-forum location is “less expensive” in terms of attorney costs, regardless of degree. Avera, 515 F.3d at
1349; see also Sierra Club v. Jackson, 926 F. Supp. 2d 341 (D. D.C. 2013); Conservation Force v. Salazar, 916 F. Supp.
2d 15, 24 (D. D.C. 2013)(noting an “exception where lawyers practice in far less expensive legal markets”); Rocky
Mountain Clean Air Action v. Johnson, No. 06-1992, 2008 WL 1885333, at *2 (D. D.C. Jan. 28, 2008).
5
(especially since they are paid from a public fund) that they should not receive the same amounts as
other attorneys pursuing claims under federal statutes. This is especially so for attorneys who literally
do not practice in the forum or its equivalent.

Finally, and as alluded to above, the nature of the work performed in vaccine cases is a relevant
factor. The Federal Circuit has repeatedly observed that Program work cannot be compared with other
kinds of federal litigation, given the more relaxed nature of Program cases. Rodriguez, 632 F.3d at
1384. This factor suggests not only that vaccine work should be reimbursed at a lower market rate
generally, but also that in determining whether the Davis exception applies, it is critical that counsel
demonstrate that a purported “local” rate reflects comparable work, rather than more complex
litigation.

II. The Maglio Firm Should Receive Forum Rates for its Sarasota-based Counsel.

With all of the above in mind, I turn to Petitioner’s argument on reconsideration. Petitioner
requests that I award Mr. Caldwell $356 per hour for work performed in 2016, rather than the $335
per hour in the First Decision. I arrived at this figure based upon my finding that the Maglio Firm’s
Sarasota office falls into the Davis exception (although I did adjust Mr. Caldwell’s rate upward from
$300 to account for inflation). See First Decision. Petitioner now offers a passel of attorney
declarations and affidavits aimed at demonstrating that in fact its local Sarasota rates are not “very
significantly different” from the rates recently set for forum attorneys in McCulloch. See Ex. 37 to
Mot.

The evidence offered relevant to Mr. Caldwell (attorneys with 20 to 30 years of experience)
sets forth a local rate range of $350 an hour to $425 an hour – mostly congruent with the McCulloch
ranges. I note, however, the generally-observed point other special masters have emphasized:
attorneys have a natural interest in obtaining the highest payment possible, for themselves and their
professional colleagues. Masias v. Sec’y of Health & Human Servs., No. 99-697, 2009 WL 1838979,
at *27 (Fed. Cl. Spec. Mstr. Jun. 12, 2009) (attorney affidavits should be “evaluated with a grain of
salt”), aff’d and rehearing den’d en banc, 634 F.3d 1283 (Fed. Cir. 2011). As a result, while the
offered declarations and affidavits have some evidentiary value, they do not constitute the most
trustworthy evidence possible, given their inherently subjective nature.

Better would be objective proof reflecting independently-collected evidence of rates, or
information about costs in the relevant area. Here, such evidence has not been offered, even though
other decisions (McCulloch in particular) found such information extremely probative. Nevertheless,
and in keeping with my inquisitorial role in deciding the matters before me, I have conducted my own
review of a sampling of federal fees decisions from the Middle District of Florida (the relevant region
for purposes of evaluating Sarasota rates) suggesting a wide variety of rates, depending on the nature
of work performed. Notably, there are many federal cases awarding fees under the Fair Debt
6
 Collection Practices Act (the “FDCPA”) – a statute involving claims that have been deemed routine
and straightforward. Selby v. Christian Nicholas & Associates, No. 309–cv121–J–34JRK, 2010 WL
745748 at*5 (M.D. Fla. Feb. 26, 2010). As the chart below illustrates, rates in those cases range from
$200 per hour to $394 per hour depending on the attorney’s experience:

Case Name Claim Type Rate Atty’s Experience
Amaro v. Specialized Loan Servicing, LLC, 8:10-CV-1729, 2011 FDCPA* $350/hr 23 years
WL 6181918 (M.D. Fla. Dec. 13, 2011)
Selby, 2010 WL 745748 at *5 FDCPA $200/hr All Attorneys
Thomas v. Arm WNY, No.3:14-CV-360-J-39MCR, 2014 WL FDCPA $200- 2-5 years
6871654 (M.D. Fla. Dec. 3, 2014) $250/hour
Stone v. Nat.’l Enterprise Systems, No.6:08-cv-1523-Orl-22GJK, FDCPA $225-254, 2-6,
2009 WL 3336073 (M.D. Fla. Oct. 15, 2009) $300, 7-8,
$394/hour 13-15 years
Myrick v. Distribution & Acquisition Network, No. 8:09-CV- FDCPA $200- All Attorneys
1391-T-33TBM, 2010 WL 2179112 (M.D. Fla. April 28, 2010) $300/hour
Zachloul v. Fair Debt Collections and Outsourcing, No. 8:09– FDCPA $300/hour 16+ years
CV–128–T–27MAP, 2010 WL 1730789 (M.D.Fla. March 19,
2010)
Holland v. Gee, No.8:08-CV-2458-T-33AEP, 2012 WL FCRA* $350, 14 years,
5845010 (M.D. Fla. Oct. 23, 2012) $175/hour 4 years
Butdorf v. SC Maintenance, Inc., No.8:15-CV-916-T-23TGW, FLSA* $350/hour 10 years
2015 WL 9694516 ( M.D. Fla. Dec. 7, 2015)
*Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), Fair Labor Standards Act (FLSA)

The decisions of prior special masters present little guidance on whether the Maglio Firm’s
Florida office should receive forum rates. The vast majority of the fees motions filed by Maglio Firm
petitioners in the past have been resolved by stipulation or settlement. And (as my First Decision
noted) where the issue was disputed in the past, the Maglio Firm was awarded the local rate – although
such cases do not shed significant light of how the question should be resolved. O’Neill v. Sec’y of
Health & Human Servs., No. 08-243V, 2015 WL 2399211 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).6
Thus, in O’Neill, Special Master Hamilton-Fieldman awarded the local rate because it was requested

6
In requesting reconsideration, Petitioner also suggests that my own decision in Scharfengerger v. Sec'y of HHS, No. 11–
221V, 2015 WL 3526559, at *10 (Fed. Cl. Spec. Mstr. May 15, 2015) does not itself support the conclusion that the
Maglio Firm’s Sarasota office is out-of-forum. Mot. at 5. Petitioner is literally correct – Scharfenberger dealt with
determining the proper rate for a Maglio Firm attorney who practices out of its DC office, and therefore did not determine
proper Maglio Firm rates for its Sarasota-based lawyers. However, Scharfenberger referenced some of the decisions in
which the Sarasota office was deemed out-of-forum. Scharfenberger, 2015 WL 3526559, at *8. It also reasonably
considered the rates paid to the more experienced attorneys in its Florida location in order to draw conclusions about what
fairly should be paid a less-experienced attorney who happened to be in the more expensive location. Id. This is a product
of the fact – unique in the Program – that the Maglio firm has a DC satellite office, in addition to its primary location in
Sarasota.

7
by the Maglio Firm, while finding that the local rate was in fact appropriate.

After consideration of all evidence filed on this matter as well as the aforementioned law and
facts, I now conclude that the difference between the local rates in Sarasota awarded in similar
circumstances and the forum rates are insufficiently different for someone of Mr. Caldwell’s vintage
to apply the Davis exception. The low-end forum rate for an attorney with comparable experience
(20+ years of practice) is $350 per hour. McCulloch, 2015 WL 5634323, at * 19. That amount is not
significantly different from what a Florida attorney in the Tampa-Sarasota area would be paid for
comparable work under a federal fee-shifting statute like the FDCPA. This is true whether or not I
accept the Hall/McCulloch formulation of “very significantly different.”7 Mr. Caldwell will therefore
receive the requested $356 per hour for 2016.8

In ruling as I do, I acknowledge the disparity between the decisions of prior special masters
(which uniformly found Sarasota to be a non-forum region) and this one. Although I am not formally
bound by other special masters’ determinations, I still hesitate to act contrary to prior conclusions on
this subject. It appears, however, that the disparity may be attributable to a confluence of factors and
circumstances different from what attorneys obtained in the Program even five years ago. The rates
paid to Vaccine Program counsel may well have been held down for the past several years, whether
due to slow economic growth generally or informal compensation/rate agreements struck between
frequent Program counsel and the Department of Justice that have now been deemed (not surprisingly,
by the petitioners’ bar) stale.9 At the same time, McCulloch may have lowered the ceiling on what
constitutes a forum rate. See, e.g., Garrison v. Sec’y of Health & Human Servs., No. 14-762V, 2016
WL 3022076 (Fed. Cl. Spec. Mstr. Apr. 29, 2016), mot. for review den’d, 2016 WL 4784054 (Fed.
Cl. Aug. 17, 2016) (Idaho-based attorney entitled to forum hourly rate). McCulloch itself accepts the
premise that Program attorneys do not receive the same hourly rate that they would from more
complex litigation, and attempted to set a reasonable forum rate in light of such constraints, even

7
In fact (and consistent with the lack of a bright-line rule for how a special master should determine if forum and non-
forum rates are sufficiently different), I do not find that the Hall rate differential calculation approach always embodies
the best test for when to apply the Davis exception - although other special masters have reasonably embraced it as
consistent with Avera. See, e.g., Garrison v. Sec’y of Health & Human Servs., No. 14-762V, 2016 WL 3022076, at *7
(Fed. Cl. Spec. Mstr. Apr. 29, 2016).
8
Although Respondent did not substantively object to Petitioner’s request for reconsideration, and although I deemed it
in the interests of justice to take a second look at my First Decision (given the benefits to be derived from resolving the
entitlement of the Maglio Firm’s Sarasota office to forum rates), I note that reconsideration under Vaccine Rule 10(e)
should not be viewed by petitioners or their counsel as an opportunity to make new arguments not previously addressed
– or, in the context of fees requests, to dicker over a special master’s calculations. This is especially so where the results
of reconsideration will not appreciably alter my original determination; here, for example, reconsideration is leading to
an increase of less than $100 to the total sum originally awarded. I will therefore not make it a practice to use the vehicle
of reconsideration under such circumstances, and petitioners and their counsel should not expect otherwise.
9
Indeed, it was the collapse of such an agreement that led to the McCulloch decision in the first place. McCulloch, 2015
WL 5634323, at *19.

8
though it would be a lower rate. McCulloch, 2015 WL 5634323, at *18-19.

Given the above, more and more Program lawyers formerly viewed as out of the forum, given
their literal geographic location, may now be able to succeed in establishing an entitlement to forum
rates. There nevertheless remain common-sense limits to what a lawyer who does not otherwise
practice in the equivalent of the D.C. forum should receive for an hour’s work on a Vaccine matter.
Avera, with its embrace of the Davis exception, remains controlling law – and counsel should not
expect to evade it by engaging in clever mathematical exercises intended to “beat the spread” between
local and forum rates.

III. Merits of Remaining Arguments on Reconsideration.

Besides arguing for forum rates, Petitioner also addresses six additional points in his Motion
for Reconsideration – although these points do not contest the remaining aspects of my prior decision,
such as expert costs, and therefore those elements as determined in the First Decision will be deemed
unopposed. In addition, most of Petitioner’s points relate simply to factual assertions or findings that
Petitioner disputes, but which substantively do not bear directly on the outcome herein.10

This leaves only one additional point for reconsideration (other than Mr. Caldwell’s rate). See
Mot. at 7-8 (Point #5). In the First Decision, I cut in half the 17.2 hours Petitioner’s counsel spent
working with Dr. Steinman on his expert report, finding that this was excessive in light of Dr.
Steinman’s own high billing rate (which greatly exceeds what Petitioner’s counsel is receiving) and
the needs of this case. See First Decision. Petitioner now argues that this amount of work was
reasonable, and that in fact there were cost savings achieved by devoting such time to the expert
report. Mot. at 8.

Petitioner’s arguments are unpersuasive. Although I am largely giving Petitioner all of the
attorney time requested, the fact this case was a flu-GBS case, and hence a common Program claim,
and that the matter settled without hearing, bear on how much work really needed to be put into the

10
For example, in an effort to rebut the observation in the First Decision that counsel did not appear to have performed
any work on the matter prior to its filing, Petitioner argues that the attorney invoices connected with the matter do not
reveal work that was in fact performed by Maglio Firm attorneys on the case. Motion at 6 (Point #1). It is of course
admirable for Program lawyers to request compensation only for work they deem fair – but the fact that an invoice does
not include requested time does not permit me to speculate as to how much time was devoted to the matter but deducted
before filing a fees request. This argument would have more heft if the invoice supporting the fees request detailed work
that Petitioner was not including in his fees request.

Petitioner’s argument about the validity of using the consumer price index rate of inflation as a modifier (Point #3) is
similarly irrelevant herein, since the grounds for reconsideration turn only on the proper rate for the present year – not a
prior year that had to be inflated up or down.

9
expert report. I also note (based on my experience with Program matters) that Dr. Steinman often
submits expert reports that appear more the product of cutting and pasting of information from other
sources into an electronic document, rather than an originally produced piece of writing. This report,
as with others filed in cases assigned to me, does not appear to have been edited by counsel in any
way that would make it more legible or useful. See generally Pet.r’s Ex. 15. Under such
circumstances, a 50 percent reduction was wholly warranted.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C. § 300aa-
15(e). Based on the reasonableness of Petitioner’s request, as well as my reductions and hourly fee
rate decisions set forth above, on reconsideration I hereby GRANT in part Petitioner’s Motion for
attorney’s fees and costs, awarding Petitioner the $356 hourly rate for work performed by Mr.
Caldwell in 2016, but otherwise DENY the motion leaving intact the fees and costs determinations
of my First decision. This results in a revised total award as follows:

Contested Sum Amount Requested Reduction Total Awarded

Mr. Caldwell’s Fees $36,850.40 $4,665.00 $32,185.40

Maglio Firm Costs11 $3,103.05 none $3,103.05

Dr. Steinman’s Fees $8,375.00 $375.00 $8,000.00

Paralegal Costs $5,654.50 $348.00 $5,306.50

Accordingly, I award a total of $48,594.95 as a lump sum in the form of a check jointly
payable to Petitioner and Petitioner’s counsel, Franklin J. Caldwell, Jr., Esq. In the absence of a
motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter
judgment herewith.12

11
In accordance with General Order No. 9, Petitioner’s counsel has represented that Mr. Dezern separately incurred no
reimbursable costs in proceeding with this petition. Ex. 36 (ECF No. 48-4). Accordingly, costs paid herein include no
separate costs payable to Mr. Dezern.
12
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.

10
IT IS SO ORDERED.

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

11