Sanchez v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS

***********************
TRYSTAN SANCHEZ, by and through *
his parents, GERMAIN SANCHEZ and *
JENNIFER SANCHEZ, *
* No. 11-685V
Petitioners, *
* Filed: December 8, 2021
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs on an
AND HUMAN SERVICES, * Interim Basis; Reasonable Basis;
* Reasonable Number of Attorney
Respondent. * Hours.
***********************
Lisa A. Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita,
CA, for petitioners;
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, D.C., for
respondent.

PUBLISHED DECISION AWARDING ATTORNEYS’ FEES
AND COSTS ON AN INTERIM BASIS FOR A SECOND TIME 1

The petitioners in this lengthy litigation, Mr. and Mrs. Sanchez, seek a
second award of attorneys’ fees and costs on an interim basis. They allege that a
set of vaccines that their son, Trystan, received on February 5, 2009, caused him to
suffer fever and subsequent seizure activity / disorder leading to his developmental
issues. Pet., filed Oct. 17, 2011, at 12. They seek compensation pursuant to the
National Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10
through 34 (2012).

1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
 They filed a motion requesting a second award of attorneys’ fees and costs
on an interim basis. Pet’rs’ Fee Appl’n, filed Apr. 22, 2020. The Secretary
opposed this request, arguing that the Sanchezes did not possess a reasonable basis
to prosecute the case during the time for which the Sanchezes seek attorneys’ fees
and costs. Resp’t’s Resp., filed Sept. 11, 2020.

For the reasons explained below, the Secretary’s position that the Sanchezes
did not have reasonable basis is not persuasive. Because the Sanchezes possessed
a reasonable basis for prosecuting their claim through the time of the fee
application, they are eligible for an award of attorneys’ fees and costs on an interim
basis. As further outlined below, a reasonable amount of attorneys’ fees and costs
is $581,933.38.

I. Procedural History

The course of this case has been lengthy. It has moved through several
discrete phases, which are summarized below.

A. Events Before the Ruling Finding Facts
An abbreviated recitation of the procedural history begins with the filing of
the petition, medical records (exhibit 1), expert report of Lawrence Steinman, M.D.
(exhibit 2), and affidavits (exhibits 3-8) on October 21, 2011. The medical records
show that on February 5, 2009, Trystan received the diphtheria-tetanus-acellular
pertussis (“DTaP”), hepatitis B, haemophilus influenzae type B, and pneumococcal
conjugate vaccines.

In Mrs. Sanchez’s affidavit, she asserted that Trystan was meeting all of his
developmental milestones until he was six months old when he received
vaccinations on February 5, 2009. Exhibit 3 at ¶ 4. Mrs. Sanchez asserted that on
February 16, 2009, Trystan had a seizure. Id. at ¶ 6. She also maintained that
between February 7, 2009 and April 29, 2009, Trystan’s “developmental pace
seemed to slow.” Id. at ¶ 8.

Unlike most petitioners, the Sanchezes included a report from their expert,
Dr. Steinman, in the initial submissions. Exhibit 2. Dr. Steinman accepted the
accuracy of Mrs. Sanchez’s allegations. Relying on Mrs. Sanchez’s allegations,
Dr. Steinman stated Trystan “may have had a seizure.” Id. at 1. He proposed that
the pertussis vaccine and the alum adjuvant in it can cause seizures. Id. at 10.
Ultimately, Dr. Steinman opined that based upon the temporal relationship, his

2
medical expertise, and the medical literature, Trystan would not have suffered from
seizures and developmental delay had he not received the vaccinations. Id. at 14.

The Secretary indicated that petitioners were not entitled to compensation.
The Secretary argued that although Dr. Steinman opined that Trystan had seizures
beginning 11 days after receiving his six-month vaccinations, no contemporaneous
medical records indicated Trystan in fact suffered these seizures. Resp’t’s Rep.,
filed Feb. 28, 2012, at 12. 2

The Sanchezes recognized that the recitation of events in the affidavits did
not match the events in the contemporaneous medical records. Pet’rs’ Supp. to
Pet., filed Mar. 6, 2012. The affidavits asserted that shortly after Trystan received
his vaccinations, he experienced seizures and developmental delay. However,
there are no medical records from around February 2009 that discuss either
seizures or developmental delay. Because of this discrepancy, a fact hearing was
held on May 15, 2012. Mr. and Mrs. Sanchez as well as Germain’s mother and
aunt, Lupe Sanchez and Bertha Sanchez, and Jennifer’s mother, Emma Fernandez
testified.

B. Ruling Finding Facts

On April 10, 2013, the undersigned issued a Ruling Finding Facts. The
Ruling Finding Facts generally accepted the accuracy of medical records created
contemporaneously with events described in the records. The ruling, therefore,
generally did not credit testimony given much later in time. For example, the
Ruling Finding Facts expressly found that Trystan did not contort his arm in
February 2009. Ruling Finding Facts at 13, ¶ 11. The Ruling Finding Facts also
ordered the parties to provide the ruling to any expert they retained.

C. Events from the Ruling Finding Facts Through Anticipated
Start of Hearing
On May 22, 2013, the Sanchezes filed an amended expert report by Dr.
Steinman. Exhibit 17. Dr. Steinman repeatedly asserted that Trystan suffered
from seizures. Dr. Steinman stated that Trystan’s arm contortions started as early
as February 16, 2009. Exhibit 17 at 2 n.1, 3. However, these assertions did not

2
With her report, the Secretary filed a report from Gerald Raymond, M.D. Dr. Raymond
disagreed with Dr. Steinman and concluded that although Trystan suffered from “developmental
delay with associated imaging abnormalities,” there was “no evidence that his condition resulted
from or was exacerbated by any of the immunizations received.” Exhibit A at 7.
3
match the Ruling Finding Facts. See order, issued June 14, 2013. In addition, Dr.
Steinman’s May 17, 2013 report was not clear about the medically appropriate
interval. Thus, the Sanchezes were ordered to file another supplemental report
from Dr. Steinman.

The Sanchezes filed a third report by Dr. Steinman on September 16, 2013.
Exhibit 28. Dr. Steinman again asserted that Trystan had a seizure on February 16,
2009. Exhibit 28 at 2. The Secretary questioned the basis for this assertion and
requested clarification as to whether Dr. Steinman believed that Trystan suffered
other seizures. The Sanchezes were ordered to file a status report addressing
seizures. Order, issued Dec. 11, 2013.3 In addition, the parties were ordered to
plan for a hearing in July, August, or September 2014.

The Sanchezes filed the status report regarding seizure activity on December
18, 2013. They maintained that Trystan suffered seizure activity, including arm
contortions, in “March 2009, (April and May 2009 per Dr. Friedman medical
record notes), August 2009, October/November 2009 after another set of
vaccinations, December 2009, September and October 2010.” Pet’rs’ Status Rep.,
filed Dec. 18, 2013, at 4.

In a January 28, 2014 status conference held to discuss the petitioners’ status
report about seizures, the Secretary’s attorney characterized the Sanchezes’
position as “logical insanity.” In the Secretary’s view, the Sanchezes could not
rely upon Dr. Friedman’s August 3, 2010 record to deviate from the findings of
fact.

On April 4, 2014, the Secretary filed supplemental reports from Drs.
Raymond and McGeady. Exhibits E-F. The Secretary added a report from
Edward Cetaruk, a toxicologist. Exhibit G. Respondent’s experts criticized Dr.
Steinman’s reports, noting his reliance on allegations unsubstantiated by the
medical record or medical literature. Drs. Raymond and Cetaruk also indicated
that Trystan had not been diagnosed with any particular condition, and a lack of
diagnosis makes Dr. Steinman’s attempt to link Trystan’s condition to the
vaccinations scientifically inappropriate. Exhibit E at 2; exhibit G at 17. Both

3
After Dr. Steinman’s September 13, 2013 report and before the December 6, 2013
status conference, the Secretary filed a report from Stephen J. McGeady, M.D. Exhibit C. Dr.
McGeady questioned Dr. Steinman’s assumption that Trystan suffered a seizure. Dr. McGeady
noted that none of Trystan’s doctors had diagnosed him with a seizure disorder and none had
prescribed anticonvulsant medications. Exhibit C at 14.
4
doctors stated that additional testing would be necessary to diagnose Trystan
definitively and accurately.

In an April 10, 2014 status conference, the undersigned extensively
reviewed the criticisms of Dr. Steinman’s opinions, beginning with the lack of
diagnosis and continuing through each of the three prongs set forth in Althen v.
Secretary of Health & Human Services, 418 F.3d 1274, 1278 (Fed. Cir. 2005).
The undersigned expressed concern that the Sanchezes may lack a reasonable basis
to proceed to hearing. The undersigned encouraged the Sanchezes to file a
supplemental report from Dr. Steinman before the entitlement hearing, which was
scheduled for September 10-12, 2014. Order, issued Apr. 11, 2014, at 1.

The undersigned offered more guidance in an order for pre-trial briefs,
issued May 13, 2014. The undersigned reiterated the previous comment that “there
may not be a reasonable basis to proceed to hearing.” Preh’g Order, issued May
13, 2014, at 11. Based on the existing record, Trystan did not have a diagnosis,
which could be an issue for petitioners under Broekelschen v. Secretary of Health
& Human Services, 618 F.3d 1339, 1346 (Fed. Cir. 2010). The undersigned noted
that respondent’s critiques on the Althen prongs appeared persuasive. Preh’g
Order, issued May 13, 2014, at 11. Finally, the undersigned stated that “One
purpose of this order was to identify the shortcomings in petitioners’ case so that, if
possible, they can address the deficiencies before the hearing.” Id. If petitioners
wanted, they could file another supplement expert report by Dr. Steinman. Id. at
11-12.

Petitioners filed a fourth supplemental expert report by Dr. Steinman on
May 29, 2014. Exhibit 36. In his fourth report, Dr. Steinman addressed issues and
criticisms made in respondent’s expert reports and outlined the potential conditions
from which Trystan may be suffering. These conditions include mitochondrial
disorder, encephalopathy, and other neurologic conditions, all of which Dr.
Steinman opined are the result of or were aggravated by the vaccinations. Id. at
15-16.

Mr. and Mrs. Sanchez also filed a status report regarding genetic testing.
The Sanchezes stated that Trystan’s treating doctor, Dr. Haas, ordered genetic
testing for which their insurance would pay. Exhibit 52. The Sanchezes requested
a continuance of the hearing, set for September 10-12, 2014, while the genetic tests
were pending. Pet’rs’ Status Rep., filed June 23, 2014. After a status conference,
the undersigned canceled the September 2014 hearing and suspended the
obligation to file briefs before the hearing. Order, issued July 8, 2014.
5
 D. Petitioners’ First Request for Attorneys’ Fees and Costs on an
Interim Basis

On September 18, 2014, petitioners filed a motion for an award of attorneys’
fees and costs on an interim basis. Petitioners requested $128,860.31 in attorneys’
fees and miscellaneous costs. Although the Sanchezes filed their motion in
September 2014, the attorneys’ timesheets stop in December 2013. The petitioners
requested $15,000.00 for Dr. Steinman’s work from April 2011 to September
2013. Finally, the Sanchezes requested $2,350.00 for costs that they personally
incurred.

The Secretary opposed the Sanchezes’ application for attorneys’ fees and
costs on an interim basis. The Secretary presented two arguments. First, he
contended that the Sanchezes’ claim lacked reasonable basis entirely. Second,
even if the case were supported by reasonable basis, the Sanchezes were requesting
an unreasonable amount. Resp’t’s Resp., filed Nov. 24, 2014, at 10, 15.

The Sanchezes, in turn, filed a reply. They maintained that reasonable basis
supported their claim throughout its duration. They also generally defended the
amount requested in attorneys’ fees and costs. Pet’rs’ Reply, filed Dec. 12, 2014.

E. Events from the Submission of the Request for Attorneys’ Fees
and Costs Until the First Decision Awarding Attorneys’ Fees and Costs

On January 23, 2015, the Sanchezes filed genetic tests that revealed that
Trystan had a mutation in two genes. Exhibit 59. The company that performed the
tests characterized them as “disease-causing mutation[s].” Id. In a February 3,
2015 status conference, the Secretary’s attorney questioned why the case was
continuing. In her view, there was even less of a basis given Trystan’s genetic
mutations. Nevertheless, the Sanchezes wanted to press forward.

By March 2015, Dr. Haas diagnosed Trystan as suffering from Leigh’s
disease. Exhibit 62.4 He also wrote a letter stating that Trystan had a genetic
disease. Id.

The undersigned provided an article on Leigh syndrome on May 8, 2015.
Exhibit 1001. Leigh syndrome is a neurological disorder that usually manifests in

4
Dr. Haas had diagnosed Trystan with a mitochondrial disorder in June 2014. Exhibit
52.
6
the first year of life. Id. at 1. The condition involves progressive loss of mental
and movement abilities and carries a poor prognosis. Id.

In an ensuing status conference, the undersigned discussed the significance
of the genetic testing and Dr. Haas’s diagnosis. Because the genetic mutation
existed before vaccination, an important question was how would Trystan be but
for the vaccinations? The Secretary continued to question the viability of the case
after the Ruling Finding Facts because the onset of neurologic problems seemed to
be months after vaccination. The Sanchezes expressed an intent to pursue a claim
that the vaccinations significantly aggravated Trystan’s Leigh’s disease. See order,
issued Oct. 1, 2015.

In December 2015, the Sanchezes filed two additional expert reports. To
discuss the anticipated course of Leigh’s disease, the Sanchezes presented the
opinion of a new expert, Dmitriy Niyazov, M.D. Dr. Niyazov asserted that the
vaccinations caused Trystan’s Leigh’s disease. Dr. Niyazov reasoned that the
genetic defect could have remained dormant but for the vaccinations. Exhibit 68
at 8.

The Sanchezes also filed another supplemental report from Dr. Steinman.
Dr. Steinman largely reasserted the theories by which the vaccinations could have
caused a neurologic problem but placed these theories in the context of Leigh’s
disease. Exhibit 95.

F. First Decision Awarding Attorneys’ Fees and Costs

Although the Secretary had opposed any award of attorneys’ fees and costs,
see Resp’t’s Resp., filed Nov. 24, 2014, at 10, the undersigned found that Dr.
Steinman’s first report provided a reasonable basis for the claims set forth in the
petition. In short, the petition alleged that the vaccines caused Trystan to suffer
seizures. The assertion that Trystan suffered seizures primarily rested upon
affidavits from Trystan’s parents and other family members. Dr. Steinman, in turn,
provided a theory by which the vaccinations could have caused the seizures.

The undersigned’s finding of reasonable basis extended only through the
Ruling Finding Facts on April 10, 2013. After the Secretary challenged the
amount of time Ms. Roquemore spent on some activities, the undersigned reduced
the amount of attorneys’ fees awarded. First Interim Fees Decision, 2016 WL
909186 (Fed. Cl. Spec. Mstr. Feb. 17, 2016).

7
 G. Events from First Interim Fees Decision Until Hearing on
December 4, 2017

Following the First Interim Fees Decision, the parties continued to develop
evidence. For the Secretary, Dr. Raymond wrote another report opining that
Trystan’s genetic mutation was the sole cause of his Leigh’s syndrome and that the
vaccinations did not cause or aggravate his illness. Exhibit H at 8.

The Sanchezes responded by filing another report from Dr. Niyazov.
Exhibit 102. Dr. Niyazov questioned the interpretation of the genetic studies. In
response, the Secretary presented the ACMG Guidelines. Exhibit J (filed June 10,
2016). Dr. Niyazov addressed this material in another report. Exhibit 132. At this
point, the presentation of reports from specially retained experts appeared largely
complete.

Under the assumption that the parties had disclosed their experts’ opinions
and the bases for those opinions, the parties and the undersigned attempted to find
mutually convenient dates for a multi-day hearing involving six experts. Due to
previous commitments, including the undersigned’s commitments in other cases,
an order issued on August 1, 2016 set the case for a hearing starting more than a
year later, on December 4, 2017. With a trial expected, the Sanchezes and Ms.
Roquemore announced that another attorney, Sheila Bjorklund, was assisting them.
Pet’rs’ Notice, filed Mar. 23, 2017.

Thus, the next step was to direct the parties to file briefs. Order, issued Mar.
21, 2017. In compliance with the March 21, 2017 order, the Sanchezes submitted
several items, including a brief and demonstrative exhibits. The Secretary filed his
brief on September 1, 2017.

Separately, the Secretary argued that the case should not proceed to a
hearing. Resp’t’s Mot. for Judgment on the Record, filed Oct. 18, 2017. The next
day, the Sanchezes opposed this motion and requested an exigent determination.
Pet’rs’ Resp., filed Oct. 19, 2017. The Sanchezes later supplemented their
opposition. Pet’rs’ Resp., filed Nov. 9, 2017.

The Secretary’s motion was denied, mostly due to procedural reasons.
Order, issued Nov. 14, 2017. Due to commitments to conduct hearings in other
cases, the undersigned ordered the hearing to proceed rather than rule on the
Secretary’s motion. Id. The undersigned denied the Secretary’s motion without
regard to the merit (or lack thereof) of the motion. Id. After this order, the parties
8
updated the curricula vitae for their experts and the Sanchezes filed 10 additional
articles before the hearing started.

From the First Interim Fees Decision (February 17, 2016) through the
completion of the hearing in December 2017, Ms. Roquemore’s requested fees
exceed $180,000.00. See Ms. Roquemore’s Declaration, ¶¶ 22-23, found at Pet’rs’
Mot., page 24-25.

H. Events from Hearing to Decision

The hearing was held on four days, December 4-7, 2017. Following the
hearing, the undersigned did not order the parties to file briefs.

The undersigned found that the Sanchezes had not established that the
vaccinations harmed Trystan. First Decision, 2018 WL 5856556, at *13 (Oct. 9,
2018). The undersigned found that the Sanchezes met their burden of showing that
the vaccines can cause the initial manifestations of Leigh’s syndrome. Id.
However, the timing of Trystan’s manifestation of Leigh’s syndrome was
inconsistent with the vaccinations being the cause of the illness. Id. The
undersigned found that the evidence did not sufficiently establish that Trystan’s
neurological deterioration began on February 5, 2009. Id. at *14. Instead, the
undersigned found that the medical records supported a finding that Trystan’s
deterioration did not begin until May 2009. Id. The three-month delay between
Trystan’s vaccinations and the onset of Leigh’s syndrome is inconsistent with
vaccine-causation. Id.

I. Appellate Activity

The Sanchezes challenged the October 9, 2018 decision. Pet’rs’ Mot. for
Rev., filed Nov. 8, 2018. The Sanchezes primarily argued that their affidavits and
testimony regarding the onset of Trystan’s illness in February 2009 should have
been given more weight. Id. at 14-19. The Sanchezes further argued that even if
Trystan’s illness did not begin until May 2009, the timing is consistent with
vaccine-causation. Id. at 20-24. The Sanchezes relied on medical literature
Edmonds, Shoffner, and Naviaux and the expert testimony of Dr. Niyazov to
support their theory that neurological degeneration can occur within weeks to
months after vaccination. Id. at 22-24. Finally, the Sanchezes argued that the
undersigned should have given more consideration to the rechallenge argument
that the combined effect of Trystan’s February and August vaccinations aggravated
his illness. Id. at 34-37.

9
 After the Secretary responded contesting the reliability of the Sanchez’s
affidavits and their theory of timing, the Sanchezes filed a reply reasserting their
position. For the work at the Court of Federal Claims, Ms. Roquemore has
requested fees slightly more than $60,000.00. See Ms. Roquemore’s Declaration,
¶ 26, found at Pet’rs’ Mot., page 26.

The Court denied the motion for review. Opinion, 142 Fed. Cl. 247 (2019).
Accordingly, judgment was entered.
The Sanchezes appealed this judgment. They filed a primary brief and a
reply brief at the Federal Circuit. Ms. Roquemore’s request for the written
submissions to the Federal Circuit is approximately $87,000.00. See Ms.
Roquemore’s Declaration, ¶ 27, found at Pet’rs’ Mot., page 27.
Ms. Roquemore also appeared at an oral argument in Washington, DC. The
charges associated with this work are approximately $60,000.00. See Ms.
Roquemore’s Declaration, ¶ 28, found at Pet’rs’ Mot., page 27.

The Federal Circuit identified an error in the October 9, 2018 decision,
vacated the February 11, 2019 judgment, and remanded for additional
consideration. 809 F. App’x 843 (Fed. Cir. 2020).
J. Motion for a Second Award of Attorneys’ Fees and Costs on an
Interim Basis
Approximately two weeks after the Federal Circuit’s Opinion, the Sanchezes
requested another award of attorneys’ fees and costs on an interim basis. This
request begins with Ms. Roquemore’s work in May 2013 and ends shortly after the
Federal Circuit’s remand. Fee exhibit 2 (timesheets). Ms. Roquemore’s time
entries are presented on 231 pages.
Ms. Roquemore courteously consented to a schedule in which the
Secretary’s response to the motion for attorneys’ fees and costs was delayed until
September 4, 2020, to allow the parties to focus on the proceedings on remand.
Order, issued June 12, 2020. The Secretary opposed any award of attorneys’ fees
and costs. Resp’t’s Resp., filed Sept. 11, 2020. The Sanchezes replied on October
22, 2020.

10
 K. Events After the Filing of the Motion for a Second Interim Award
of Attorneys’ Fees and Costs

As just noted, the pending motion for attorneys’ fees and costs ends with
Ms. Roquemore’s work on April 22, 2020. After that date, Ms. Roquemore has
continued to represent the Sanchezes. The Sanchezes filed additional reports from
Dr. Steinman and Dr. Niyazov (exhibits 195-96), participated in a hearing on July
9, 2021, and submitted written arguments on July 29, 2021 and August 5, 2021.

After an August 26, 2021 decision found that they were not entitled to
compensation, the Sanchezes filed a second motion for review. They supported
their motion with a reply brief, filed October 30, 2021. The Court denied this
motion for review. Opinion, 152 Fed. Cl. 782 (2021).

The Sanchezes returned to the Federal Circuit. Their appeal remains
pending. None of the activities after the Federal Circuit’s remand are encompassed
with the pending motion for attorneys’ fees and costs.

II. Analysis
Broadly speaking, to resolve the pending motion for an award of attorneys’
fees and costs on an interim basis, there are three issues. The first is whether
petitioners are eligible for attorneys’ fees and costs. The second is whether
petitioners should receive any attorneys’ fees and costs at this time as a matter of
discretion. The third question is, assuming that some award is appropriate, what
constitutes a reasonable amount in this case.

A. Whether the Petitioners’ Case Satisfies the Requirements for an
Award of Attorneys’ Fees and Costs
Petitioners who have not yet been awarded compensation may be entitled to
an award of attorneys’ fees and costs when “the petition was brought in good faith
and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). Here,
the parties have disputed and are disputing the reasonable basis.

The controversy regarding reasonable basis started when the Sanchezes
requested an award of attorneys’ fees and costs on an interim basis on September
18, 2014. In response, the Secretary challenged the reasonable basis because, in
part, Dr. Steinman’s first report relied on facts in affidavits that are not found in
medical records created contemporaneously. Resp’t’s Resp., filed Nov. 24, 2014,
at 12; see also section I.D. above.
11
 The First Interim Fees Decision found that Dr. Steinman’s report justified a
finding of reasonable basis through the Ruling Finding Facts. The case seemed to
turn with the Ruling Finding Facts. The Ruling states that Trystan did not have
any arm contortions, rigidity, hypotonia, or twitches until he was around one year
old. Ruling ¶¶ 10-20. Because these conditions appeared to be predicates for Dr.
Steinman’s previously issued opinions, the continued reliability of Dr. Steinman’s
opinions seemed questionable. See Burns v. Sec’y of Health & Hum. Servs., 3
F.3d 415, 417 (Fed. Cir. 1993) (a special master may disregard an expert’s report
that assumes assertions not established by a preponderance of the evidence). Thus,
the First Interim Fees Decision left open the question as to whether the Sanchezes
had a reasonable basis to continue their case after the Ruling Finding Facts. See
section I.F. above.

As noted in the procedural history, the Sanchezes did prosecute their case
and are still appealing the judgment to the Federal Circuit. During this litigation,
in advance of the two scheduled entitlement hearings, the undersigned expressed
concerns about the reasonable basis to proceed. For example, the first order for
submissions in advance of a hearing advised “on the existing record, there may not
be a reasonable basis to proceed to a hearing.” Order, issued May 13, 2014, at 11.

The May 13, 2014 order was based “on the existing record.” At that time,
doctors had not determined what condition was afflicting Trystan. Without a
diagnosis, the Sanchezes’ ability to define the injury for which they were seeking
compensation was doubtful. See Broekelschen, 618 F.3d at 1346 (requiring
petitioners to establish the condition a vaccine allegedly caused). In response, the
Sanchezes requested a delay in the hearing and eventually Dr. Haas determined
that Trystan suffered from Leigh’s syndrome.

While the diagnosis of Leigh’s syndrome eliminated any Broekelschen
dispute, the genetic basis for Leigh’s syndrome raised challenges for the Sanchezes
in showing that a vaccination harmed Trystan. (“Harmed,” here refers to either
caused the Leigh’s syndrome or significantly aggravated the Leigh’s syndrome.)
See Order, issued May 8, 2015.

To address Trystan’s Leigh’s syndrome, the Sanchezes obtained a report
from Dr. Steinman, which tracked the Ruling Finding Facts. Exhibit 95 at 8. In
addition, the Sanchezes brought in Dr. Niyazov, who has expertise in
mitochondrial diseases.

12
 After the Leigh’s syndrome diagnosis and the detection of two mutations in
Trystan’s genes, the Secretary’s expert, Dr. Raymond, maintained that the genetic
mutations were the cause of the Leigh’s syndrome. Exhibit H. The parties were
expected to advocate for their positions in briefs filed in advance of the hearing.

Following a review of the evidence and the briefs, the undersigned advised
he “continues to have concerns about the reasonable basis to proceed to a hearing.”
Order, issued Oct. 13, 2017, at 1. Similarly, in response to the Secretary’s motion
for judgment without a hearing, the undersigned stated that the case would
continue “despite the undersigned’s expression about the reasonable basis to
proceed to a hearing.” Order, issued Nov. 14, 2017.

In the hearing, the testimony from Dr. Niyavoz was much stronger than the
undersigned expected. Dr. Niyavoz’s testimony provided a credible, but ultimately
not persuasive, reason to find that the genetics did not explain everything. See
First Decision, 2018 WL 5856556, at *22-25.

In the Sanchezes’ motion for review, they argued, among other points, that
the First Decision was inconsistent with the Ruling Finding Facts. The Court,
however, disagreed. 142 Fed. Cl. at 258.

At the Federal Circuit, the Sanchezes again pressed an argument regarding
the discrepancy. The Federal Circuit agreed and stated that this issue should be
considered again. 809 F. App’x at 852-53.

The Federal Circuit’s opinion was the last significant action by a judicial
officer before the Sanchezes filed their pending motion for attorneys’ fees and
costs. They asserted that they possessed reasonable basis. Pet’rs’ Mot. at 5.

In a status conference to discuss proceedings on remand, the undersigned
directed the Secretary to address reasonable basis particularly in regard to the
Sanchezes’ success at the Federal Circuit. Order, issued June 12, 2020 and
clarified on June 15, 2020. These orders, as noted previously, delayed the
Secretary’s response to the motion until September 4, 2020, which was later
extended to September 11, 2020.

The Secretary argued “this claim lost reasonable basis in April 2013.”
Resp’t’s Resp., filed Sept. 11, 2020, at 6. The primary reason is that “none of the
contemporaneous, objective medical records suggest that Trystan’s progressive
neurological decline began with or soon after his February 5, 2009 vaccinations, as
13
would be required for petitioners to demonstrate a causal relationship between
Trystan’s vaccinations and his Leigh’s syndrome.” Id. at 6 (citing Remand
Decision, 2020 WL 5641872, at *8-14, *38-67 (Fed. Cl. Spec. Mstr. Aug. 26,
2020).

The Sanchezes’ reply presents arguments in two themes. First, the
Sanchezes respond directly to the Secretary’s argument regarding the onset of
Trystan’s neurologic decline. Referring to the First Decision’s finding that
Trystan’s arm contorted 10 days after vaccination, the Sanchezes maintain “this
old concern regarding Dr. Steinman’s alleged disregard of the Findings of Facts
should be, by now, laid to rest given the Decision and given that Dr. Steinman, a
highly qualified neurologist, interpreted the medical records and doctor notes
differently from the Court.” Pet’rs’ Reply at 4. They continue: “However, such
alleged concerns keep cropping up in Respondent’s briefings in regard to the
reasonable basis issue without recognizing and squaring up how the fact findings
had changed and the fluidity of this case.” Id.

The second theme concerns the issue that the Secretary did not address—the
rulings by the Court of Federal Claims and the Federal Circuit. “[A]t no point in
time did either Judge Campbell-Smith or the Federal Circuit state that
Petitioner[s’] Motions for Review or the Federal Circuit appeal were without
reasonable basis.” Id. at 6.

The undersigned finds that the Sanchezes’ arguments regarding their
reasonable basis to continue the case persuasive. While the undersigned cautioned
the Sanchezes that their case may lack a reasonable basis, the warning to be
cautious is just that, a warning. In other cases, petitioners have not heeded these
warnings and then have not been awarded the attorneys’ fees and costs. See, e.g.,
Frantz v. Sec’y of Health & Hum. Servs., 146 Fed. Cl. 137, 144 (2019) (ruling that
the special master was not arbitrary in finding reasonable basis ceased after the
Secretary presented expert reports refuting petitioner’s evidence); Rehn v. Sec’y of
Health & Hum. Servs., No. 14-1012V, 2017 WL 1011487, at *6 (Fed. Cl. Mar. 2,
2017) (after first counsel withdrew, second counsel was on notice that case might
lack a reasonable basis). But a warning is not a ruling.

Here, after the undersigned’s warnings, the Sanchezes strengthened their
case. With assistance from Dr. Haas, the Sanchezes put forward a diagnosis for
Trystan. Then, with their retained expert Dr. Niyavoz, the Sanchezes presented
oral testimony regarding genetics that was credible, although not persuasive.

14
 Moreover, the Sanchezes persuaded the Federal Circuit to vacate the
October 9, 2018 Decision, and ensuing judgment of February 11, 2019. Their
success would seem to indicate that the outcome of the appeal is consistent with a
finding of reasonable basis. 5 While the question of reasonable basis was not before
the Federal Circuit, the Federal Circuit did not suggest that the appeal bordered on
frivolous such that an award of attorneys’ fees would not be appropriate.
Accordingly, the Sanchezes are eligible for an award of attorneys’ fees and costs
on an interim basis.
B. Whether the Petitioners Should Be Awarded Attorneys’ Fees and
Costs as a Matter of Discretion

Before awarding attorneys’ fees and costs on an interim basis, a special
master must consider various factors. These include: “protracted proceedings,”
“costly experts,” and “undue hardship.” Avera v. Sec’y of Health & Hum. Servs.,
515 F.3d 1343, 1352 (Fed. Cir. 2008). This list is illustrative, not exhaustive.
The Secretary did not present any argument regarding the Avera factors and
any argument would appear difficult to justify as the circumstances support a
second interim award. First, Ms. Roquemore has worked on this case for many
years after the First Interim Fees Decision. Second, petitioners have retained two
experts whose invoices exceed $15,000.00. Third, petitioners have personally
incurred costs. Therefore, Mr. and Mrs. Sanchez have established that an interim
award is appropriate. The remaining question is what is a reasonable amount for
attorneys’ fees and for attorneys’ costs.

C. What Is a Reasonable Amount of Attorneys’ Fees and Costs

With respect to the process for determining the reasonableness of the amount
requested in attorneys’ fees and costs, the pending motion for a second interim
award contrasts with the first motion for an interim award. To review, after the
Sanchezes sought an interim award of attorneys’ fees, totaling $128,860.31, Pet’rs’
Mot., filed Sept. 18, 2014, the Secretary objected to the amount requested. The
Secretary pointed out aspects of the case in which the billing was excessive.
Resp’t’s Resp., filed Nov. 24, 2014, at 10, 15. The undersigned resolved those

5
By way of contrast, unsuccessful appellate review often still is found to be reasonable.
See, e.g., Hirmiz v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 260 (2017). If unsuccessful
appeals merit awards of reasonable attorneys’ fees and costs, then the Secretary would have been
well served to advance some argument why the Sanchezes lacked a reasonable basis to appeal to
the Federal Circuit.
15
disputes and found that a reasonable amount of attorneys’ fees was $94,885.35.
First Interim Fees Decision, 2016 WL 909186, at *1. 6

Adjudication of the present motion is following a different process. After
the Sanchezes requested this second award, the undersigned “invited” the Secretary
to provide his “views regarding the amount requested.” Order, issued June 15,
2020 (citing D.G. v. Sec’y of Health & Hum. Servs., No. 11-577V, 2020 WL
3265015, at *5 n.8 (Fed. Cl. Spec. Mstr. May 22, 2020)). However, the Secretary
did not address the reasonableness of the amount requested, other than to present
the entirely unpersuasive argument that the case lacked reasonable basis. Resp’t’s
Resp., filed Sept. 11, 2020. This omission led the Sanchezes to reinforce their
request for attorneys’ fees and costs, arguing “Respondent did not accept the
Special Master’s invitation to address its views on the amount requested. Thus,
Petitioners respectfully request all fees and costs be approved as reasonable.”
Pet’rs’ Reply, filed Oct. 8, 2020, at 7.

While the Sanchezes’ proposal has some appeal, see Dorego v. Secretary of
Health & Human Services, No. 14-337V, 2016 WL 1635826, at *4-5 (Fed. Cl.
Spec. Mstr. Apr. 4, 2016), the Court of Federal Claims requires that special
masters evaluate the reasonableness of the amount requested independently.
McIntosh v. Sec’y of Health & Hum. Servs., 139 Fed. Cl. 238 (2018). In other
words, the undersigned cannot simply approve the Sanchezes’ request because the
Secretary did not raise any objections. Instead, the undersigned is obligated to
review the motion.

The review of the request was hampered by the way Ms. Roquemore
presented her invoices, which exceed 200 pages. The undersigned requested that
Ms. Roquemore present an electronic version of her invoices in an excel
spreadsheet “if it would be relatively easy for petitioners’ counsel to do so.”
Order, issued June 12, 2020; accord Order, issued July 1, 2020, ¶ 6. Ms.
Roquemore represented that as her paralegal and she understood how the Timeslips
program functioned, she could not. Pet’rs’ Status Rep., filed Jan. 14, 2021.
However, according to information available on the internet about Timeslips,
Timeslips can present individualized reports for each client and reports in excel
format. Order, issued Jan. 29, 2021, and attachment (Professional Billing that

6
The amount requested does not exactly correspond to the amount awarded because the
motion requested attorneys’ fees for work performed through December 2013, but the First
Interim Fees Decision found that the Sanchezes were eligible for attorneys’ fees through April
2013.
16
Simply Works, Sage Timeslips, https://timeslipssage.com/ (last visited Dec. 8,
2021); Sage Timeslips Features: Export to Excel or Word, Sage City,
https://www.sagecity.com/us/sage_timeslips/f/sage-timeslips-
features/126199/export-to-excel-or-word (last visited Dec. 8, 2021)).

The lack of an electronic record has increased the amount of time the
undersigned has spent reviewing the application, increasing the delay to the
Sanchezes, their attorney, and the experts whom they retained. The undersigned’s
attention to this fee application has, consequently, delayed the processing of cases
involving other petitioners and other attorneys. This situation can be remedied.
Just as attorneys were directed to refrain from submitting handwritten invoices, see
Schueman v. Secretary of Health & Human Services, No. 04-693V, 2010 WL
3421956, at *2 (Fed. Cl. Spec. Mstr. Aug. 11, 2010), so, too, Ms. Roquemore may
be ordered to submit electronic versions of her invoices. See Robinson v. City of
Edmund, 160 F.3d 1275, 1285 n.11 (10th Cir. 1998) (a trial court “may quite
properly impose on the claimant the burden or organizing or summarizing the
billing records in such a manner to facilitate judicial review of the reasonableness
of the claim for attorneys’ fees”); Rule 1.1(a) of the California Rules of
Professional Conduct, comment [1] (“The duties set forth in this rule include the
duty to keep abreast of changes in the law and its practice, including the benefits
and risks associated with relevant technology.”).7

First, the undersigned considers the Sanchezes’ request for attorneys’ fees.
To determine the reasonable amount of attorneys’ fees, the court uses the lodestar
approach. Using the lodestar approach, the undersigned addresses the reasonable
amount of attorneys’ fees for Ms. Roquemore. Then, the reasonable amount of
attorneys’ fees for Ms. Bjorklund’s work is considered. Second, the undersigned
addresses the request for costs, including requests for the costs Ms. Roquemore’s
law firm incurred, Ms. Bjorklund’s travel expenses, Dr. Steinman’s expenses, Dr.
Niyavoz’s expenses, and the costs the Sanchezes personally incurred.

1. Reasonable Amount of Attorneys’ Fees

The Federal Circuit has approved the lodestar approach to determine
“reasonable attorneys’ fees.” Avera, 515 F.3d at 1347. The lodestar approach
involves a two-step process. First, a court determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a

7
The undersigned requested, but did not order Ms. Roquemore to submit electronic
versions of her invoices. Order, issued Jan. 29, 2021.
17
reasonable hourly rate.”’ Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886,
888 (1984)). Secondly, the court may make an upward or downward departure
from the initial calculation of the fee award based on specific findings. Id. at 1348.

A reasonable hourly rate is “the prevailing market rate defined as the rate
prevailing in the community for similar services by lawyers of reasonable skill,
experience, and reputation.” Avera, 515 F.3d at 1347. In Avera, the Federal
Circuit found that in Vaccine Act cases, a special master should use the forum rate,
the Washington, DC rate, in determining an award of attorneys’ fees. Id. at 1349.
However, the court adopted the Davis County exception to prevent windfalls to
attorneys who work in less expensive legal markets. Id. (citing Davis Cty. Solid
Waste Mgmt. & Energy Recovery Spec. Serv. Dist. v. U.S. Env’t Prot. Agency,
169 F.3d 755 (D.C. Cir. 1999)). In cases where the bulk of the work is done
outside of the District of Columbia, and there is a “very significant difference”
between the forum hourly rate and the local hourly rate, the court should calculate
an award based on local hourly rates. Id. (finding the market rate in Washington,
DC to be significantly higher than the market rate in Cheyenne, WY).

The lodestar approach requires that the reasonable hourly rate be multiplied
by the number of hours “reasonably expended on the litigation.” Avera, 515 F.3d
at 1347-48. First, counsel must submit fee requests that include contemporaneous
and specific billing entries, indicating the task performed, the number of hours
expended on the task, and who performed the task. See Savin ex rel. Savin v.
Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 315-18 (2008). Counsel must not
include in their fee request hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed.
Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well
within the special master’s discretion to reduce the hours to a number that, in his
experience and judgment, [is] reasonable for the work done.” Id. However, the
time spent by an attorney performing the work that a paralegal can accomplish
should be billed at a paralegal’s hourly rate, not an attorney’s. Riggins v. Sec’y of
Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *25 (Fed. Cl. Spec.
Mstr. June 15, 2009), mot. for rev. denied, (Dec. 10, 2009), aff’d, 406 F. App’x
479 (Fed. Cir. 2011). Second, activities that are “purely clerical or secretarial tasks
should not be billed at a paralegal rate, regardless of who performs them.”
Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Attorneys may not separately
charge for clerical or secretarial work because those changes are overhead for
which the hourly rate accounts. See Bennett v. Dep’t of the Navy, 699 F.2d 1140,
1145 n.5 (Fed. Cir. 1983); Guy v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 403,
407-08 (1997).
18
 Here, the Sanchezes are requesting $520,798.80 in attorneys’ fees for Ms.
Roquemore’s work performed from May 2013 to April 22, 2020, and $72,405.00
in attorneys’ fees for Ms. Bjorklund’s work. Pet’rs’ Mot., filed Apr. 22, 2020, at
3-4, ¶¶ 1, 4. They are addressed separately.

a) Reasonable Fees for Ms. Roquemore

Preliminarily, the Sanchezes request that Ms. Roquemore be compensated at
rates ranging from $355.00 per hour in 2013 to $410.00 per hour for work in 2019.
Pet’rs’ Mot. at 7-9 (citing McCulloch v. Sec’y of Health & Hum. Servs., No. 09-
293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015); Raicevic v. Sec’y of
Health & Hum. Servs., No. 14-554V, 2016 WL 5362695 (Fed. Cl. Spec. Mstr.
Aug. 31, 2016); Taylor v. Sec’y of Health & Hum. Servs., No. 14-861V, 2016 WL
5390169 (Fed. Cl. Spec. Mstr. Sept. 2, 2016); Davis v. Sec’y of Health & Hum.
Servs., No. 14-978V, 2017 WL 656304 (Fed. Cl. Spec. Mstr. Jan. 23, 2017);
Amani v. Sec’y of Health & Hum. Servs., No. 14-150V, 2017 WL 772536 (Fed.
Cl. Spec. Mstr. Jan. 31, 2017); Guerrero v. Sec’y of Health & Hum. Servs., 120
Fed. Cl. 474 (2015); J.T. v. Sec’y of Health & Hum. Servs., No. 12-618V, 2018
WL 4623163 (Fed. Cl. Spec. Mstr. Apr. 20, 2018); Chinea v. Sec’y of Health &
Hum. Servs., No. 15-95V, 2019 WL 3206829 (Fed. Cl. Spec. Mstr. June 11,
2019)). These hourly rates are appropriate when Ms. Roquemore was performing
sophisticated legal work commensurate with the skills of an attorney who has
practiced in the Vaccine Program for more than 20 years. The vast majority of Ms.
Roquemore’s entries are appropriate. However, for a minority of entries, as
explained below, Ms. Roquemore was performing either tasks appropriate for a
more junior attorney or a paralegal to perform. Another problem is that Ms.
Roquemore spent an excessive amount of time on some tasks.

Similarly, the request for a paralegal in Ms. Roquemore’s firm appears to
span from $135.00 per hour to $139.00 per hour. Id. These rates are appropriate
for paralegal tasks. But, Ms. Roquemore’s paralegal consistently performed
clerical tasks for which an award of attorneys’ fees is not permitted.

Untangling the appropriately charged tasks from the unreasonably charged
activities is not practicable when the invoice runs more than 200 pages.8 Thus,
under these circumstances, the undersigned will determine a reasonable amount of
attorneys’ fees for Ms. Roquemore by reducing the request by a percentage. See,

8
An electronic spreadsheet might have allowed more precision.
19
e.g., Town of Grantwood Vill. v. United States, 55 Fed. Cl. 481, 489 (2003)
(reduction of 30% for supplemental fee petition); Presault v. United States, 52 Fed.
Cl. 667, 681 (2002) (reduction of 20% of the total requested fee); cf. FastShip,
LLC v. United States, 143 Fed. Cl. 700, 733 (2019) (reducing a damages expert’s
fees by 85%), vacated on other grounds, 968 F.3d 1335 (Fed. Cir. 2020), reinstated
after remand, 153 Fed. Cl. 215, 232-33 (2021), app. dismissed, No. 2021-2031,
2021 WL 2413188 (Fed. Cir. June 10, 2021). While the reduction is not expressed
on a line-by-line basis, the undersigned has reviewed each page and each line on
each page in the fee request multiple times. The combination of this line-by-line
review and the undersigned’s experience in presiding over the case allows for the
following comments.

The evaluation of a reasonable amount of attorney’s fees for Ms. Roquemore
considers multiple factors. These include the factual complications, the legal
complications, the amount of time spent on activities, the choice to engage on the
activity, the charge for the activity, and the sufficiency of the billing records.
This case was complicated factually. Early in the litigation, an onset hearing
was held to determine when Trystan began experiencing certain symptoms. As the
litigation continued, the Sanchezes learned more about Trystan’s health. With
respect to the discovery of genetic mutations, it appears that the litigation may
have contributed to the Sanchezes’ pursuit of genetic testing. Once the results of
the genetic testing became available, the Sanchezes provided this information to
their attorney and their expert, Dr. Steinman. Dr. Steinman wrote seven reports
before the December 4, 2017 entitlement hearing. Exhibits 2, 17, 28, 36, 55, 95,
157. The genetic testing also prompted the Sanchezes to retain reports from a
second expert, Dr. Niyazov. As the attorney proffering reports from two experts,
Ms. Roquemore would reasonably spend more time than an attorney who has
presented reports from only one expert.

The factual complications in turn made the case more complicated legally.
Although the Sanchezes consistently compared their case to a case in which the
petitioners received compensation, Paluck v. Secretary of Health & Human
Services, 786 F.3d 1373 (Fed. Cir. 2015), petitioners in other cases involving
genetic mutations have not succeeded. See, e.g., Stone v. Sec’y of Health & Hum.
Servs., 676 F.3d 1373 (Fed. Cir. 2012). Thus, the path leading to a favorable
outcome for the Sanchezes was not well established.

The legal complications also prolonged the litigation. The Sanchezes filed a
motion for review, which was not successful. The Sanchezes also filed an appeal
to the Federal Circuit, which succeeded at least in part.
20
 Throughout all stages of the case, assessing the reasonableness of Ms.
Roquemore’s activities is not always easy. A reasonable amount of time for a
particular task depends, in part, on the experience of the person performing the
task. An attorney with years of experience litigating cases can charge more per
hour because the attorney accomplishes more in that hour than a less experienced
attorney. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 723,
730 (2011) (“[J]ust because one attorney was awarded compensation based upon a
specific number of hours worked does not mean that the special master must make
an award based upon the same number of hours worked in an entirely different
case at a higher hourly rate.”); see also Garrison v. Sec’y of Health & Hum. Servs.,
128 Fed. Cl. 99, 107 (2016). For example, a routine motion for enlargement of
time for an expert might take an experienced attorney 0.2 hours. And, perhaps, a
newer attorney might take 0.3 hours or 0.4 hours to draft the same motion. But, for
any routine motion for enlargement of time, approximately 1.0 hour is not
reasonable. Cf. fee exhibit 2 at 7 (entry for July 29, 2013).

The question of the reasonable amount of time for a task presupposes that
the task itself is reasonable to perform. However, Ms. Roquemore performed
activities that appear to be excessive. For example, Ms. Roquemore investigated
Dr. Niyazov before retaining him. Ms. Roquemore watched a presentation Dr.
Niyazov made. See fee exhibit 2 at 84 (entry for November 11, 2015). She also
reviewed transcripts in which he testified. Id. (entry for November 12, 2015).
Probably one activity or the other is enough. Spending time on both seems
excessive.

Another example of an activity that might start as reasonable but then slip
into unnecessary concerns consulting colleagues. Over the course of the litigation,
Ms. Roquemore’s billing records include more than 20 entries in which she
consulted another attorney. The undersigned does not recall seeing any billing for
discussions with an outside attorney. 9 Some of Ms. Roquemore’s consultation
may stem from the complexity of the case and some of the consultations may be
due to Ms. Roquemore’s work as a solo practitioner. Yet, the Sanchezes hired Ms.
Roquemore and Ms. Roquemore is being compensated at a high hourly rate due to
her expertise. At some point, excessive consultation with other attorneys is not
something for which attorneys should bill their clients. See Carter v. Sec’y of
Health & Hum. Servs., No. 04-1500V, 2007 WL 2241877 (Fed. Cl. Spec. Mstr.

9
Counsel of record may consult with outside attorneys but not necessarily bill the
Vaccine Program for those consultations.
21
July 13, 2007) (indicating attorneys may not bill for learning about an area of the
law about which they are not familiar).

The structure of a solo practice and how Ms. Roquemore delegates (or does
not delegate) work contributes to the relatively high fee request. See Barclay v.
Sec’y of Health & Hum. Servs., No. 07-605V, 2014 WL 2925245 (Fed. Cl. Spec.
Mstr. Feb. 7, 2014). Of course, Ms. Roquemore is free to practice as she wants.
But, the question arises as to whether the Trust Fund should pay for her operations.
Without an associate attorney, Ms. Roquemore spent relatively large amounts of
time on activities like research. (Again “relatively large” places Ms. Roquemore in
the context other experienced and high-charging attorneys, who, often, are
supported by lower-charging associate attorneys.) See, e.g., fee exhibit 2 at 12
(entry for October 18, 2013) (researching Daubert and Restatement of Torts); id. at
53 (entry for December 17, 2014) (researching motions for review of non-
entitlement orders); id. at 66 (entry for April 2, 2015) (reviewing opinions from the
Court of Federal Claims and Federal Circuit in the same case for more than one
hour); id. at 144 (entry for October 5, 2017) (researching ADP ribosylation); id. at
196 (entries for April 11-12, 2019) (spending more than two hours on the Federal
Circuit rules).
Ms. Roquemore also performed duties that a paralegal could perform. For
example, she frequently communicated with clients to request medical records.
Ms. Roquemore may favor direct contact with her clients. However, Ms.
Roquemore has billed at a high hourly rate for communications that paralegals at
other firms routinely do.

The paralegal at Ms. Roquemore’s law firm, in turn, routinely charged for
performing clerical tasks such as filing documents.10 This consistent invoicing
reflects a lack of billing judgment as Ms. Roquemore litigated this issue. On a
motion for review, the Court ruled deductions were not arbitrary, capricious, or an
abuse of discretion. Guerrero v. Sec’y of Health & Hum. Servs., 124 Fed. Cl. 153,
158-59 (2015), app. dismissed, No. 2016-1753 (Fed. Cir. Apr. 22, 2016).

While Guerrero does not constitute binding precedent in Sanchez, Ms.
Roquemore could have appealed to the Federal Circuit for a precedential opinion.11

10
In future submissions, Ms. Roquemore should identify the paralegal. Floyd v. Sec’y of
Health & Hum. Servs., No. 13-556V, 2017 WL 1344623, at *3-4 (Fed. Cl. Spec. Mstr. Mar. 2,
2017).
11
The respondent, not the petitioner, filed the notice of appeal that was subsequently
withdrawn.
22
But, the prospects of the Federal Circuit determining that filing a document is not a
clerical activity seems doubtful because of existing precedent. See Bennett v.
Dep’t of the Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983). Accordingly, on the
undersigned’s line-by-line review, the undersigned found most of the paralegal’s
activities to be non-compensable clerical work.12
Ms. Roquemore also created time entries that lacked sufficient detail to
assess their reasonableness. Examples of overly general descriptions tended to
occur in preparing for the hearing, writing briefs, and preparing for oral argument
at the Federal Circuit. See fee exhibit 2 at 129 (entry for June 12, 2017) (more
than 5 hours revising Dr. Niyazov’s rebuttal report); id. at 145 (entry for October
10, 2017) (12 hours preparing Dr. Steinman’s direct testimony over multiple days);
id. at 146 (entry for October 20, 2017) (more than 34 hours reviewing Dr.
Steinman’s literature over multiple days); id. at 149 (entry for November 1, 2017)
(27 hours preparing Dr. Niyazov’s testimony over multiple days). Ms.
Roquemore’s time in preparing for oral argument at the Federal Circuit particularly
illustrates how her billing entries make crediting all her time challenging. To start,
there is no question that before appearing at a Circuit Court of Appeals, an attorney
should review the written briefs, plan and practice an oral statement, and anticipate
questions from the bench. But, the question is how much time is reasonable?
Here, after the Federal Circuit scheduled the argument, Ms. Roquemore spent more
than 80 hours in preparation. See id. at 219 (entries starting December 27, 2019).
Some amount of this time is reasonable. For example, Ms. Roquemore took part in
a moot court. But, 80 hours is essentially two normal 40-hour work weeks devoted
to an argument scheduled to last 30 minutes. Thus, it seems that some amount of
time is redundant and, therefore, excessive. Broekelschen, 102 Fed. Cl. at 731
(ruling that the special master did not abuse his discretion in reducing number of
hours for Federal Circuit appeal); cf. Biery v. United States, 2014 WL 12540517,
at *3 (finding only 25% of 168 hours preparing for oral argument before the
Supreme Court of Kansas reasonable); Infiniti Info. Solutions, LLC. v. United
States, 94 Fed. Cl. 740, 752 (2010) (reducing time preparing for oral argument
because the arguing attorney was previously unfamiliar with the case).

Continuing to list further examples of excessive hours seems unnecessary.
In many respects, the time Ms. Roquemore spent on this case produced a better
product. For example, she engaged with the experts as they wrote their reports.
See fee exhibit 2 at 81 (entry for October 2, 2015) (email to Dr. Steinman
explaining what his opinion needs to cover). In short, her lawyering was good.
12
Due to the way Ms. Roquemore presented her invoices, precisely quantifying the value
of the clerical work is practically impossible.
23
But, in some respects, her billing judgment was not as good. Other special masters
have critiqued Ms. Roquemore similarly. See, e.g., D.G., 2020 WL 3265015
(reducing Ms. Roquemore’s fees by 20%); J.T., 2018 WL 4623163 (effectively
reducing Ms. Roquemore’s fees by 18%); D.S. v. Sec’y of Health & Hum. Servs.,
No. 10-77V, 2017 WL 6397826 (Fed. Cl. Spec. Mstr. Nov. 20, 2017); Torday v.
Sec’y of Health & Hum. Servs., No. 07-372V, 2011 WL 2680687 (Fed. Cl. Spec.
Mstr. Apr. 7, 2011).
Although those cases provide a tiny measure of support to the outcome here,
the analysis in this case depends upon a detailed assessment of the timesheets Ms.
Roquemore submitted as well as the undersigned’s firsthand observations in
overseeing this litigation from its inception in 2011. The conclusion does not
follow a simple logic of finding that the amount requested in attorney’s fees is
“large and therefore too much.” Instead, as McIntosh requires, the undersigned
evaluated the reasonableness of the proposal.

The undersigned finds that to accomplish “rough justice,” see Fox v. Vice,
563 U.S. 826, 837 (2011), an appropriate reduction to Ms. Roquemore’s fee
request is 20 percent.

b) Reasonable Fees for Ms. Bjorklund
In addition to seeking attorneys’ fees for work Ms. Roquemore and her
paralegal performed, the Sanchezes request attorneys’ fees for work of a second
attorney, Sheila Bjorklund. Ms. Bjorklund’s invoice totals $72,405.00 in fees.
Initially, the retention of a second attorney was reasonable due to the case’s
complexity. The Sanchezes retained two experts and the Secretary retained four
experts. The hearing lasted four days. Ms. Roquemore and Ms. Bjorklund mostly
divided tasks so that they did not duplicate efforts unreasonably. The Secretary
also planned to use two attorneys at the hearing.13 Accordingly, the circumstances
of this case made two attorneys at trial appropriate.
The next issue is the lodestar value of Ms. Bjorklund’s work. For the first
factor in the lodestar equation, a reasonable hourly rate, Ms. Bjorklund proposes
$450.00 per hour. This amount is reasonable.
The second factor is a reasonable number of hours. In general, Ms.
Bjorklund’s invoices contain an acceptable amount of detail to assess the

13
Actually, one attorney from the Department of Justice conducted almost all of the
hearing because one attorney became ill.
24
reasonableness of the activity. 14 At the beginning of her involvement, Ms.
Bjorklund repeated some tasks that Ms. Roquemore had already performed. For
example, Ms. Bjorklund reviewed the pretrial order, the reports from the
Secretary’s experts, and leading cases. Fee exhibit 19 at 2 (entry for June 20,
2017). However, this repetition is not excessive because the attorney joining the
case in anticipation of a trial must learn where the case stands. Similarly, Ms.
Bjorklund reviewed the outlines of the direct examinations for Dr. Steinman and
Dr. Niyazov, which Ms. Roquemore had prepared. Id. at 4 (entries from
November 7, 2017 to November 15, 2017). While the amount of time Ms.
Bjorklund spent might be near the upper bound of reasonableness, the undersigned
sees little basis to quibble, especially because the Secretary did not interpose any
objection to the amount of time requested.

Ms. Bjorklund spent most of her time in preparing to cross-examine the
Secretary’s four experts. This time was productive. Ms. Bjorklund’s cross-
examinations were effective. Ms. Bjorklund pointed out the limits to the expertise
of the Secretary’s experts. She spontaneously dispensed with lines of questioning
that were not advancing the Sanchezes’ case to pursue other avenues. And yet, at
the same time, Ms. Bjorklund maintained a professional tone. 15

In short, the time Ms. Bjorklund has requested is reasonable. The Sanchezes
are awarded $72,405.00 for Ms. Bjorklund’s work.

2. Costs
The request for costs contains several categories. The law firm’s costs
include relatively mundane items, such as postage and copies. 16 The law firm also
requests costs for mileage and travel expenses Ms. Roquemore incurred. Fee
exhibit 4 at 2. In general, these costs are reasonable. The only exceptions are
14
A small number of entries from Ms. Bjorklund might have contained more detail or
have been divided into component tasks. For example, on April 16, 2017, Ms. Bjorklund spent
1.0 hour on “review expert reports” and on the next day she spent 2.5 hours “on review expert
reports.” Fee exhibit 19 at 2. Given the extent of litigation, reading the expert reports over the
course of 3.5 hours was reasonable. But, the entries could have specified which reports were
read on which days.
15
This praise for Ms. Bjorklund’s effectiveness in cross-examination may seem
incongruent with the outcome in which the Sanchezes were not entitled to compensation.
However, cross-examination of the Secretary’s witnesses would not change the fact that Trystan
did not display any significant and lasting changes to his development in the months immediately
following his February vaccination. See Remand Decision, 2020 WL 5641872, at *44.
16
Given the availability of scanning and emailing documents, continuing to incur
expenses for copying and mailing documents may be questionable in the future.
25
certain costs that appear more for Ms. Roquemore’s convenience, such as in-room
dining and valet parking at the hotel. A reasonable reduction for these unnecessary
expenditures is $200.00. In addition, for the oral argument at the Federal Circuit
on Friday, February 7, 2020, Ms. Roquemore flew to Washington, DC on
Wednesday, February 5, 2020. 17 Fee exhibit 4 at 23. Ms. Roquemore has not
demonstrated that an additional day’s lodging and food is justified. See
Broekelschen, 102 Fed. Cl. at 733 (denying motion for review of fees decision).
Therefore, $470.77 is reduced. Accordingly, the Sanchezes are awarded $4,498.71
in costs Ms. Roquemore’s law firm incurred.

Ms. Bjorklund, separately, requested an award of her costs for traveling to
the hearing. The Sanchezes documented Ms. Bjorklund’s costs in a supplemental
response, filed November 3, 2021. Accordingly, the Sanchezes are awarded
$2,063.13 for Ms. Bjorklund’s costs.

Dr. Steinman seeks reimbursement of his costs, totaling $1,147.63. See fee
exhibit 9. While most of these costs are reasonable, Dr. Steinman flew to the
hearing in first class. See id. at 8. When directed to explain Dr. Steinman’s costs,
the Sanchezes represented that Dr. Steinman inadvertently failed to reduce his
claim for reimbursement to the amount of a coach-class ticket. Thus, they propose
that his costs be reduced by $164.37 because a reduction would approximate the
cost of Dr. Steinman’s return trip, which was in coach. Pet’rs’ Resp., filed Oct. 21,
2021, at 5. Dr. Steinman, in fact, has requested reimbursement of his return trip at
a coach-class rate corroborating that any overbilling was inadvertent. Thus, the
Sanchezes are awarded $983.26 for Dr. Steinman’s travel costs.

Dr. Niyazov proposes that he be awarded $2,377.98. See fee exhibit 16 at 5.
A portion of those costs derives from renting a car and parking the car. However,
after arriving in the hotel, a car was not reasonable or necessary. Thus, $600.00 is
deducted. A reasonable amount of costs for Dr. Niyazov is $1,777.98.

a) Dr. Steinman
The Sanchezes’ primary expert has been Lawrence Steinman, who has
assisted petitioners in the Vaccine Program in numerous cases. As such, Dr.
Steinman is well known to special masters. Dr. Steinman’s invoice requests
compensation in the amount of $46,375.00 for his work after 2013. Fee exhibit
17
Although Ms. Roquemore paid for a ticket in first class, she sought reimbursement
only for a coach-class ticket and documented the cost of the coach-class ticket. See fee exhibit 4
at 24-33. This method comports with the expectation that the Vaccine Injury Compensation
Trust Fund will pay for only reasonable expenses.
26
9. 18 This reflects $48,375.00 for Dr. Steinman’s work performed after April 2013
minus the $2,000.00 retainer paid by the Sanchezes. Id.

With respect to Dr. Steinman’s hourly rate, Dr. Steinman’s invoices are
based upon a charge of $500.00 per hour. See fee exhibit 9. However, in Dr.
Steinman’s accompanying affidavit, he suggests that an appropriate rate is $550.00
per hour. Fee exhibit 7. Dr. Steinman’s suggestion that his hourly rate increase if
only to account for inflation certainly merits consideration. After all, since 2016,
the Office of Special Masters has adjusted hourly rates for attorneys based upon
inflation. U.S. Ct. of Fed. Cl., OSM Attorneys’ Forum Hourly Rate Fee Schedules,
https://www.uscfc.uscourts.gov/node/2914 (last visited Dec. 8, 2021).

Any adjustment to Dr. Steinman’s hourly rate is better left for another day
and another case. In this case, the hourly rate that Dr. Steinman has proposed is
$500.00 per hour and that rate is reasonable. Accordingly, Dr. Steinman will be
compensated at a rate of $500.00 per hour.

For work performed after April 2013, Dr. Steinman’s invoice lists tasks
totaling 96.75 hours. A significant portion of this total was spent in preparing for
and attending the four-day hearing. Given that the Secretary did not interpose any
objection to the number of hours Dr. Steinman spent, the undersigned finds that the
number of hours is reasonable. Accordingly, the Sanchezes are awarded
$46,375.00 for Dr. Steinman’s professional services.
b) Dr. Niyavoz

The Sanchezes’ second expert is Dmitriy Niyazov. Dr. Niyazov’s invoice
requests compensation in the amount of $28,880.00 for his work from November
2015 through December 2017. Fee exhibit 16. This accounts for $32,880.00 for
Dr. Niyazov’s work minus $4,000.00 in retainer fees paid by the Sanchezes. Id.

With respect to Dr. Niyazov’s hourly rate, Dr. Niyazov’s invoices request
$400.00 per hour. Fee exhibit 14 at ¶ 7. Dr. Niyazov graduated from medical
school in 2001 and has been a diplomate of the American Board of Medical
Genetics since 2009. His current primary position is the section head for medical
genetics in the department of pediatrics for Ochsner Health System in New
Orleans. Fee exhibit 15 (curriculum vitae). The proposed hourly rate ($400.00 per
hour) is reasonable for Dr. Niyazov.

18
The First Interim Fees Decision compensated the Sanchezes for Dr. Steinman’s work
through April 2013.
27
 For his work, Dr. Niyazov’s invoice lists tasks totaling 82.2 hours. Like Dr.
Steinman, Dr. Niyazov spent a significant amount of time preparing for and
attending the four-day hearing. Given that the Secretary did not interpose any
objection to the number of hours Dr. Niyazov spent, the undersigned finds that the
number of hours is reasonable. Accordingly, the Sanchezes are awarded
$28,880.00 for Dr. Niyazov’s professional services.

c) Mr. and Mrs. Sanchez

The Sanchezes request reimbursement for costs that they incurred personally
in the amount of $9,170.26. See fee exhibits 5-6. The Sanchezes seek
reimbursement for the following costs: $4,000.00 for Dr. Niyazov’s retainer;
$4,714.70 for Federal Circuit Appeal costs; $377.73 for accommodations during
the December 2017 hearing; $48.28 for travel expenses; $29.55 for out-of-pocket
litigation expenses, and $500.00 for the filing the Federal Circuit appeal. Fee
exhibit 5 at 2; fee exhibit 6; Pet’rs’ Resp., filed Oct. 21, 2021, at 4. Some items are
relatively routine, such as the cost of lodging to attend the hearing, mailing costs,
and retainers for Dr. Niyazov. These items are awarded.

The costs associated with the Federal Circuit appeal fall into a different
category, partially. Ms. Roquemore contracted with a vendor, Counsel Press, Inc.,
to assist with the Federal Circuit appeal. Counsel Press, in turn, presented two
invoices with charges for items such as preparing the brief, “docket tracking,”
“electronic file production and review,” “electronic filing,” “filing of documents,”
“shipping & handling,” “Federal Express to client,” “shipping and handling,” and
“preparation of motion.” How Counsel Press determined its charges is not
explained. However, to extend to Ms. Roquemore and the Sanchezes the benefit of
the doubt, the undersigned will accept, as reasonable, the charges associated with
preparing the brief ($1,395.00) and preparing the reply brief ($525.00). So, too,
the undersigned will accept the fee for preparing a motion ($450.00), despite the
fact that the motion appears predicated on Ms. Roquemore’s error in calendaring.
The remaining list of charges have not been justified. For example, Counsel Press
has invoice for both “electronic filing” and “filing of documents.” Counsel Press
also did not demonstrate the costs of shipping materials. Accordingly, $859.00 is
removed from the list of charges from Counsel Press as unreasonable. The
reasonable costs paid by the Sanchezes totals $8,311.26 ($9,170.26 - $859.00).

The Sanchezes cannot pay a price because their attorney engaged a third-
party vendor whose costs were excessive. “No attorney may charge any fee for
services in connection with a petition [in the Vaccine Program] which is in
addition to any amount awarded as compensation by the special master.” 42
28
U.S.C. § 300aa-15(e)(3). The provision prevents attorneys from shifting
unawarded costs to their clients. Beck v. Sec’y of Health & Hum. Servs., 924 F.2d
1029 (Fed. Cir. 1991). Accordingly, the undersigned will deduct the $859.00 from
costs awarded to Ms. Roquemore, leaving the Sanchezes costs intact.

3. Summary Regarding the Reasonable Amount of
Attorneys’ Fees and Costs.

For the reasons explained above, a reasonable amount of attorneys’ fees and
costs from May 2013 to April 2020 is as follows:

Attorneys’ Fees
Ms. Roquemore’s Fees
Requested $520,798.80
Reduction (20%) $104,159.76
Awarded $416,639.04

Ms. Bjorklund’s Fees
Requested and Awarded $72,405.00

Costs
Ms. Roquemore’s Law Firm
Requested $5,169.48
Reduction $670.77
Awarded $4,498.71
Further reduction for costs the Sanchezes incurred: $859.00
Final award $3,639.71

Ms. Bjorklund’s Travel Costs
Requested and Awarded $2,063.13

Dr. Steinman’s Professional Fees
Requested and Awarded $46,375.00

Dr. Niyavoz’s Professional Fees
Requested and Awarded $28,880.00

29
 Dr. Steinman’s Expenses
Requested $1,147.63
Reduction $164.37
Awarded $983.26

Dr. Niyazov’s Expenses
Requested $2,377.98
Reduction $600.00
Awarded $1,777.98

Mr. and Mrs. Sanchez’s Expenses
Requested $9,170.26
Reduction $859.00
Awarded $8,311.26
Restored amount $859.00
Final Award $9,170.26

III. Conclusion

The Sanchezes have prosecuted their action with a reasonable basis. The
duration and fees incurred since the previous decision awarding attorneys’ fees and
costs on an interim basis justifies a second award on an interim basis.
A reasonable amount of attorneys’ fees and costs totals $581,933.38. This
amount shall be paid as follows:

The amount of $498,294.99 in a check made payable to petitioners and Ms.
Roquemore. This amount represents fees and costs associated with Ms.
Roquemore, Dr. Steinman, and Dr. Niyazov.

The amount of $74,468.13 in a check made payable to petitioners and Ms.
Bjorklund. This amount represents fees and costs associated with Ms. Bjorklund.

The amount of $9,170.26 in a check made payable to petitioners alone.

30
 There is no just reason to delay the entry of judgment on interim attorneys’
fees and costs. Therefore, in the absence of a motion for review filed under RCFC
Appendix B, the clerk of court shall enter judgment in petitioners’ favor. 19

IT IS SO ORDERED.

s/ Christian J. Moran
Christian J. Moran
Special Master

19
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.

31