1 

# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS ( Filed: March 27, 2014 )
PUBLISHED

* * * * * * * * * * * * * *

ROBERT D IMATTEO

, * No. 10

- 566V

*

* Special Master
Petitioner

, * Hamilton

- Fieldman

*

v. * Interim Fees and Costs; Excessive Fees

* and Costs; Attorneys’ Hourly Rates;

SECRETARY OF HEALTH * Expert Hourly Rates; Vague or AND HUMAN SERVICES, * Excessi ve Time Entries

. * Respondent. *

* * * * * * * * * * * * * *

Patricia A. Finn , Patricia Finn Esq

., Piermont, NY, for Petitioner

. Jennifer Reynaud , U.S. Department of Justice, Washington, DC, for Respondent.

DECISIO N AWARDING INTERIM FEES AND COSTS 1

On August 19, 2010, Robert D i m atteo (“Petitioner ”) filed a petition in the National Vaccine Injury Compensation Program (the “Program ”), 2 alleging that the

1 Because this published decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this order on the United States Court of Federal Claims website, in accordance with the E

- Government Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 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 inc ludes medical files or similar files, the disclosure of which would constitute a clearly unw arranted invasion of privacy.” Otherwise, the entire order will be available to the public. Id.

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986 (the “Vaccine Act”) , Pub. L. No. 99

- 660,2

hepatitis A and va

ricella vaccines administered on August 12, 2009

, caused h im to develop transverse myelitis (“TM ” ). Petition (“Pet.”) at 1. Over t he next three years,
Petitioner filed medical records and an expert report. This matter has not yet gone to hearing and no decision on entitlement has issued. Petitioner i s now seeking an interim award of $50, 631 .00 3 in attorneys’ fees for work performed up to and including October 23, 2013, and $ 27

, 97 7.50 4 in expert fees and costs for work performed and expenses
incurred t hrough October 29, 2013. See Pet’r’s Reply at 4

- 5, ECF No. 60; Invoices; ECF

No s . 60

- 1 , 60

- 2.

For the rea sons set forth below, the undersigned awards Petitioner $ 2 5, 442

. 6 0 in
interim attorney s ’ fees

, up to and including October 23, 2013, and $ 25,247.50 in interim

costs

, incurred up to and including October 2 9 , 2013

.

I. PROCEDURAL BACKGROUND

Following the filing of their petition on August 19, 2010, Petitioner filed numerous medical records in support of their claim. See Filings, August 25, 2010, April 4, 2011, April 29, 2011, May 2, 2011, October 18, 2011, December 15, 2011, January 20

, 2012, February 2, 2012, ECF Nos. 4, 14, 18, 19, 26, 29, 35, 36. Respondent filed a Rule

4 (c) Report on March 19, 2012, requesting missing medical reco rds, and arguing that
Petitioner ’ s claim be dismissed because they had not proffered a medical opinion or theory to establish that the administered vaccinations were causally related t o Petition er ’ s TM

. See generally Resp’t’s Report, ECF No. 37.

Petitioner fi led additional medical records on April 18, 2012, and May 21, 2012

, and filed a statement of completion on July 23, 2012. Filings, ECF Nos. 39, 41, 43. On June 11, 2013, Petitioner filed an expert report from Marcel Kinsbourne M.D., accompanied by his c urriculum vitae (“ CV ”) and supporting literature. Filings, ECF Nos. 48, 49. On July 1 and 22, 2013, Petitioner filed addition al medical records regarding amplification of varicella virus DNA i n Petitioner

. Filings, ECF Nos. 50, 51.

100 Stat. 3755, codified as amended, 42 U.S.C.A. § 300aa

- 10

- 34 (2006). All citations in
this decision to individual sec tions of the Vaccine Act are to 42 U.S.C.A. § 300aa.

3 Petitioner’s original “Motion for Interim Attorney’s Fees and Costs” indicated that they were seeking $50,000.00 in attorneys’ fees and costs in the amount of $4,850.00. Petitioner ’ s Reply lists total legal fees as $50,689.10; however

, the total

amount requested, as supported by the submitted invoices , ECF No. 60

- 1, is equal to $50,631.00

.

4 The requested $27,977.50 in fees is comprised of the $350.00 filing fee for the Program, the $10,450.00 invoice from Dr. Marcel Kinsbourne, the $ 625.00 invoice from Dr. Joseph Berger, and the $16,552.50 invoice from BalaCare LLC. ECF No. 60

- 2.3

A status conferenc e was hel d on September 19 , 2013

, and Respondent’s counsel

indicated that settlement appeared feasible in this case . Order, ECF No. 53. Accordingly, Petitioner w a s ordered to send a settlement demand to Respondent by October 24, 2013, and both parties were orde red to file a joint status report by D ecember 2, 2013, updating the undersigned on the progress of settlement negotiations. Order, Sept

. 19, 2013, ECF No. 53. O n October 31, 2013, Petitioner informed the undersigned
that a settlement demand had been sent to Respondent . Status Report, ECF No. 57.
Petitioner and Respondent filed a joint status report on December 2, 2013

, indicating that they are both diligently working toward s settlement. Status Report, ECF No. 62

.

Amidst settlement negotiations, on Oc tober 1, 2013, Petitioner filed a motion for interim attorneys’ fees and costs. Motion, ECF No. 54. P etitioner requested $50,000 .00

in attorneys’ fees and $4,850 .00 for costs associated with retainers paid to experts

. Motion at 4

- 5 , ECF No. 54. Petit ioner contend s that his claim was brought in good faith upon a reasonable basis, and believe interim attorneys’ fees and costs are justified because they have been pursuing this claim for over three years, P etitioner ’ s counsel has eight pe n d ing cases in the Program, and Petitioner had to borrow money to pay the retainers needed for an expert opinion and a life care plan. Included with Petitioner ’ s motion was a retainer letter, fee schedules and relevant CV s for BalaCare LLC, the company Petitioner use d to obtain a life care plan . Motion, Ex

. 1, ECF No. 54

- 1.

On Novemb er 1, 2013, Respondent filed a r esponse objecting to Petitioner ’ s motion for interim attorneys’ fees and costs. Response, ECF No. 58. Respondent contends that the undersigned la cks the authority to grant attorneys’ fees and costs until compensation is awarded or judgment is entered denying compensation. Id. at 5

- 6 . If the undersigned were inclined to grant any interim attorneys’ fees or co sts , then Respondent argues that Petiti oner ha d no t met t he i r burden of establishing that the attorneys’ fees and

costs are reasonable. Id. at 7. Respondent noted that Petitioner had not filed any invoices for costs, and had not filed any supporting documentation related to the hourly rate of
Petitioner ’ s counsel ($420.00 per hour)

. Id. at 7

.

Petitioner filed a reply to Respondent’s objections on November 19, 2013. Reply,
ECF No. 60. Petitioner argued that under applicable Federal Circuit precedent

, the Program has awarded interim at torneys’ fees and costs to many other petit ioners, and
reasserted that an interim attorneys’ fees and costs award is appropriate for this claim. Reply, Nov

. 19, 2013, ECF No. 60. P etitioner submitted an invoice of billed hours and
contended that the rat e charged by Petitioner ’ s counsel was re asonable for the New York City a rea. Id. at 4 ; see also Invoice, ECF No. 60

- 1 . In addition, Petitioner filed invoices from Dr. Marcel Kinsbourne, BalaCare LLC, and Dr. Joseph Berger. Invoice, ECF No.

60

- 2 . Petit ioner now request s payment of the full invoice amounts, as opposed to only
the reta iner already paid. Reply at 5 , ECF No. 60 . Petitioner ha s also added the Court’s original filing fee to their costs request.4

On December 11, 2013, Respondent filed a r e sponse to Petitioner ’ s r eply ( “Respondent ’ s Second Response” ). Resp ’t ’s Second Response, ECF No. 63

. Respondent objected to the rate of $420 .00 per hour charged by attorneys Patricia Finn and Jonathan Victor, arguing that they lacked the necessary experi ence and expertise to warrant such a high hourly rate. Id. at 7

- 10. Respondent also objected to the hourly rate billed for paralegal tasks, the vagueness of certain billing descriptions, and the rate billed for normally non

- compensable administrative tas ks. Id . at 10

- 11. Respondent did not object to the invoices submitted by BalaCare LLC or Dr. Joseph B erger, but contends that

Dr. Kins bourne’s hours billed and hourly rate are unreasonable and not sufficiently substantiated. This matter is now ripe for adjudication.

II. LEGAL STANDARD

The Vaccine Act permits a n award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa

– 15(e)

. If petitioner is ultimately unsuccessful, he can still recover attorneys’ fees and costs as long as their claim was br ought in good faith and upon a
reasonable basis

. Cloer v. Sec’ y of Health & Human Servs.

, 133 S.Ct. 1886, 1893 (2013)

. The Federal Circuit has held that a ttorney s ’ fees and costs may be granted on an interim
basis prior to a decision on entitlement

. Ave ra v. Sec ’ y of Health & Human Servs.

, 515

F. 3d 1343, 1352 (Fed. Cir. 2008) ; Shaw v. Sec’ y of Health & Human Servs. , 609 F.3d 1372, 1375 (Fed. Cir. 2010) (“A special master can often determine at an early stage of the proceedings whether a claim was brought in good fait h and with a reasonable basis.” (quoting Avera , 515 F.3d at 1352) )

.

In Avera , the Federal Circuit provided examples of circumstances where an interim fee award may be appropriate, such as when the case involved protracted legal proceedings, when costly experts had been retained, or when petitioners have suffered an undue hardship. Avera , 515 F.3d at 1351

- 52; see also McKellar v. Sec’ y of Health &

Human Servs. , 101 Fed. Cl. 297, 301 ( Fed. Cl. Nov. 4, 2011) (“some special showing is

necessary to warrant interim fees, including but not limited to delineated [ Avera ] factors....”); Vaccine Rule 13(b). Since Avera , cases have clarified that an award of interim fees is in the special master's discretion and that there are various circumstances
und er which an interim award is appropriate. See Crutchfield v. Sec’ y of Health &

Human Serv. , No. 09

– 39V, 2011 WL 3806351, at *5

– 7 (Fed. Cl. Spec. Mstr. Aug. 4, 2011) (listing cases).

F ees and costs must both be reasonable

. See Perreira v. S ec’ y of Health & Human

Servs. , 27 Fed. Cl. 29, 34 ( Fed. Cl. Oct. 30, 1992) (“The conjunction ‘and’ conjoins both ‘attorneys ’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. Not only must any request for reimbursement of attorneys ’ fees be r easonable, so also must any request for reimbursement of costs.”), aff’ d , 33 F.3d 1375 (Fed. Cir.1994) . The
burden is on p etitioner s to provide an adequate description and sufficient documentation5

demonstrating the reasonableness of requested f ees and costs

. S ee Sabella v. Sec’ y o f
Health & Human Servs. , 86 Fed. Cl. 201, 208

– 09 ( Fed. Cl. Feb. 10, 2009).

In reviewing a fees and costs application, the special master need not engage in a
line

- by

- line analysis of the application. See H ocraffer v. Sec’

y of Health & Human Servs.

, 99

– 533V, 2011 W L 6292218, at *13 ( Fed. Cl. Spec. Mstr. Nov. 22, 2011) (citing Fox v.

Vice , 131 S.Ct. 2205, 2216 (2011)). Special masters are afforded wide discretion in determining the r easonableness of both attorneys’ fe es and incurred costs. Morse v. Sec’ y of Health & Human Servs. , 89 Fed. Cl. 683, 687 ( Fed. Cl. Nov. 10, 2009) Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours
claimed in attor ney fee requests . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton v. Sec’y of Health &

Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993).

To determine reasonable attorneys' fees , the Federal Circuit has traditionally employed the lodestar method, a two

- step process. First

, a court makes an “initial
estimate” which involves “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Ave ra , 515 F.3d a t 1347

– 48 ( c iti ng Blum v.

Stenson , 465 U.S. 886, 888 (1984) ). Second, the court may make an upward or
downward adjustment to the initial fee estimate based on other specific findings. Id. at
1348

.

To determine a reasonable hourly rate, the special master must examine the prevailing rate for “similar services by lawyers of reasonably comparable skill, experience, and reputation.” Avera

, 515 F.3d at 1347

– 48 ( citing Blum , 465 U.S. at 888 ). Hourly rates will be based on the precise task performed, “not the title or education of the person performing it.” Doe/11 v. Sec’ y of Health & Human Servs. , 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) ( citing Missouri v. Jenkins , 491 U.S. 274, 288, (1989)). For example, substantive review of medical records is appropriately performed by an attorney and should be billed as such. Copying and compiling such records, however, should be billed at the paralegal or administrative rate.

In Vacc ine Act cases, the prevailing market rate is determined using the forum rule rather than the geographic rule. Avera , 515 F.3d at 1349. T he applicable forum is Washington, D.C.; but, to prevent windfalls to attorneys from less expensive legal markets, th e Federal Circuit applies the “Davis exception

. ” Id. ( citing Davis Cnty . Solid

Waste M g m t

. and Energy Recovery Special Serv

. Dist

. v. U.S. En vt l

. Prot

. Agency, 169 F.3d 755 (D.C.Cir.1999)). The Davis exception is applied in cases where the majority of

an attorney’ s work occurs outside the forum , and there is a “very significant difference”

between the forum rate and the local rate. Id. at 1349

- 50.

Under the lodestar approach, a court must “exclude ... hours that were not ‘reasonably expended,’ ” which wo uld include hours that are “excessive, redundant, or6

otherwise unnecessary.” Hensley v. Sec’y of Health & Human Servs. , 461 U.S. 424, 433

- 34 (1933)

. In the past, compensation has been denied for certain secretarial or
administrative tasks. See Hocraffer v. Sec’ y of Health & Human Servs.

, No. 99

- 533V,

2011 WL 3705153

, at *22 (Fed. Cl. Spec. Mstr. July 25, 2011) (list ing examples from past cases).

III. DISCUSSION

a. Authority to Award Interim Attorney s ’ Fees and Costs

Respondent objects to a ny issuance of inter im attorney s ’ fees and costs, contending that judgment must be entered before any award of attorney s’ fees and costs can be authorized. The undersigned is aware that this is an issue regu larly raised by Respondent. However, Respondent also frequently sti pulates to such fees. F ollowing the Federal Circuit precedent of Shaw and Avera

, many special masters have awarded interim
attorney s’ fees and costs.

In Shaw

, the Federal Circuit relied on the reasoning used in Avera s ince s pecial
masters can often det ermine good faith and reasonableness early in proceedings

, interim
fee awards are consistent with the underlying pur pose of the Vaccine Act and allow petitioners access to a competent bar. See, e.g.

, Shaw

, 609 F.3d at 1374

– 75; Avera , 515
F.3d at 1352

. The Supreme Court reiterated this type of reasoning in the recent Cloer

decision

. In Cloer , the Supreme Court held that attorneys’ fees and costs may still be
awarded even where the claim is un timely , as long as they are reasonable and brought in good faith, because to do otherwise would contradict the intentions of the Act’s “fee scheme” by discouraging attorneys from representing petitioners with potentially untimely claims. Cloer , 133 S.Ct. at 1896 . The Supreme Court further reasoned that
“shadow t rials” for reasonableness and good faith will not occur because while special

masters are reviewing the record for timeliness

, they will be able to determine if there is a
reasonable basis for the claim , and if it was brought in good faith. Id. The under signed
concludes she has the authority to award interim attorney s’ fees and costs.

b. Justification for Award of Interim Attorney s ’ Fees and Costs

Respondent has not disputed the reasonableness and good faith of Petitioner ’ s claim. Petitioner ha s filed medical records and an exper t report to demonstrate t hat he developed TM from the hepatitis A and varicella vaccines. There is no evidence that
Petitioner do es not earnestly believe t hat his injury is vaccine related. Petitioner ha s filed
an expert rep ort by Dr. Kinsbourne, who has in the past given expert testimony in several
other TM cases. Therefore

, Petitioner ha s brought a claim in good faith and upon a
reasonable basis.7

Respondent has also not specifically objected to Petitioner ’ s assertions that they
deserve an interim award for attorneys’ fees and costs due to the protracted nature of this dispute and the undue hardship the cost of litigation has placed on Petitioner and
Petitioner ’ s counsel. Although the parties appear to be working towa rds an informal settlement, it has been over three years and come at considerable cost to both Petitioner
himself and Petitioner ’ s counsel. Petitioner took out a loan to afford the cost of an expert witness retainer and a life planner retainer. Moti on at 4, ECF No. 54. In addition,
Petitioner ’ s counsel appears to have a small practice with several pending claims in the Program, Id. at 3 ; Reply at 5 , ECF No. 60 , and s he has had to work for three years without compensation

. Petitioner ha s establishe d that h e may be awarded reasonable interim attorneys’ fees and costs

.

c. Reasonableness of Requested Interim Attorney s’ Fees

Petitioner i s represented by Patricia Finn of Piermont, New York. Petitioner ha s filed invoices dating from March 2010 thro ugh De cember 2013. Invoice, ECF 6 0

- 1. These invoices included fees billed for Ms. Finn, and apparently for Mr. Jonathan Victor,
and Ms. Jessica Lucas Paradies (identified in the invoices as PF, JV and JL), along with
an unidentified assistant indicated a s YA in the July 31, 2011 invoice

. Id.

Petitioner ha s filed attorney invoices for a total of $50,631 .00 in related legal fees.

For their senior attorneys Ms. Finn and Mr. Victor, Petitioner seek s a rate of $420.00 per

hour. For Ms. Finn, Petitioner request s fees for 42 hours of work for a total of $ 17,640

. 00. For Mr. Victor, Petitioner seek s fees for 26.45 hours of work for a total of $ 11,109 .00 . For Ms. Lu cas Paradies, Petitioner seek s fees for 109.36 hours of work at a rate of $200 .00 per hour, fo r a total of $ 21,872 .00 . For the unidentified a ssistant labeled YA, Petitioner seek s fees for 0 .1 hours of work at a rate of $100 .00 per hour, for a total of $10. 00. Invoice, ECF No. 60

- 1.

i. Hourly Rates for Ms. Finn and Mr. Victor

Respondent o bject s to the $420.00 per hour requested by Ms. Finn and Mr. Victor. The reasonable hourly rate for each attorney must be in accord with “the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation .” Avera , 515 F.3d at 1348 (quoting Blum , 465 U.S. at 896). If a significant portion of an attorney’s work is done outside of the Vaccine Program
forum

— the D istrict of Columbia

— and the forum hourly rat e is significantly higher than the local hourly rate where an attorney’s work was performed , then the Davis exception applies and the award will be based on the lower local hourly rate. Id. at 1349. The

Davis exception does not apply when the forum rates are lower than an attorney’s local

rate. Id. ; see R odriguez v. Sec’ y of Health & Human Servs.

, 2009 WL 2568468

, at *16 (Fed. Cl. Spec. Mstr. July 27, 2009)(discussing why Avera does not mention a higher

cost exception, and how other federal courts have only applied such a higher rate than the8

forum rate wh en “ out of town counsel possessed special expe rtise or [] local counsel were unwilling to take such cases ”).

Petitioner ’ s counsel both practice in the New York City Tri

- State area, with significantly higher overhead th a n other areas, and request a reasona ble rate that appropriately reflects the higher costs of the area . Reply at 4

- 5 , ECF No. 60

. Comparing New York City rates to forum rates, another special master has found that forum rates must apply. Rodriguez v. Sec’ y of Health & Human Servs.

, 2009 WL 2568468 at *16 (Fed. Cl. Spec. Mstr. July 27, 2009). The undersigned concludes that
forum rate determination is appropriate in this case, as well; t herefore there is no need to
determine local rate s

. Petitioner ’ s counsel will be awarded reasonable f orum rates based on experience, skill and reputation.

Aside from the rates requested, and mention of a similar rate awarded to another New York City a ttorney, P etitioner ’ s counsel has presented no evidence of the appropriate forum rate. Motion , ECF No. 54 ; Re ply at 4

- 5 , ECF No. 60

. Ms. Finn and Mr. Victor have never before been awarded a specific hourly rate in the Vaccine Program, although Ms. Finn has received stipulated attorney s ’ fees in the past. Ms. Finn has been in practice s ince 2003. 5 Ms. Finn atte sts that she has ten pending Vaccine Act

cases , and since 2004 she worked on as many as 25 cases in the Program. Reply at 5

, ECF No. 60 ; Motion at 3 , ECF No. 54 . Mr. Victor first began practicing in 2008 , and he is currently operating a separate law firm with more diverse interests

.

Respondent has pointed to numerous recent cases where other special masters
have determined the forum rates for attorneys. For example, an attorney with 40 years of legal experience, and ten years of Program experience

, was awarded $340.00 per hour for the years 2010 and 2011. Rodriguez v. Sec’ y of Health & Human Servs.

, No. 06

- 559V, 2013 WL 1189451 (Fed. Cl. Spec. Mstr. Mar. 1, 2013); Garcia v. v. Sec’ y of Health &

Human Servs.

, No. 07

- 286V, 2011 WL 6941702 (Fed. Cl. Spec. Mstr. Dec. 13, 2011)

. In

a case from 2009 , a special master found that “ a reasonable range for attorneys with ten or more years of experience providing services in the Vacci ne Program in Washington, D.C. [wa s ] $250 .00 to $375 .00 per hour. ” Masias v. Sec’ y of Health & Human Servs.

, 2009 WL 1838979

, at *25 (Fed. Cl. Spec. Mstr

. June 23, 2009). In 2011, a special master found that the forum rate for an attorney with 13 years of experience and no previous V accine P rogram experience was $256.00 per hour to $293 .00 per hour for the years 2005 to 2009. Carcamo v. Sec’y of Health & Human Servs. , No. 07

- 483V, 2011 WL 2413345 (Fed. Cl. Spec. Mstr. May 20, 2011)

.

Petitioner pre sented little to no evidence regarding h is experience or what forum rates should apply. However, b ased on the sparse re cord at hand and past decisions of

5 ( http://iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId=5636509 ).9

other special masters, the undersigned finds that

, for the years 2010 through 2013

, Ms.
Fin n should be compensated at $300.00 per hour and Mr. Victor should be compensated at $2 2 0.00 per hour

.

ii. Hourly Rate of Jessica Lu c as Paradies and Y A

Petitioner seek s a rate of $200 .00 per hour for work performed by Jessica Luc as Paradies. Respondent believes that the reasonable rate for paralegal tasks performed by

Ms. Luc as Paradies is $110 per hour . Resp’t’s Response at 10 , ECF No. 63

. Respondent
believ es that Ms. Luc as Paradies has the title of Office Manager or Vaccine Manager.
Petitioner ’ s counsel has not presented any information on the background or title of Ms.
Lucas Paradies.

After review of the invoice, it is appare nt that Ms. Lucas Paradies performed research and drafting consistent with standard paralegal duties. Other special masters in the Program have determined that paralegal rates of up to $125 per hour are reasonable
forum rates. See Yang v. Sec’y of Health & Human Servs.

, No. 10

- 33V, 2013 WL
4875120

, at *4 (Fed. Cl. Spec. Mstr. Aug

. 22, 2013) ; Brown v. Sec ’y of Health & Human
Serv s. , No. 09

– 426V, 2012 WL 952268, at *3 (Fed. Cl. Spec. Mstr. Feb. 29, 2012);
Broekelschen v. Sec’

y of Health & Human Servs. , 102 Fed. Cl. 719, 723 ( Fed. Cl. Oct. 31, 2011)

. Therefore, the undersigned finds that Ms. Lucas Paradies should be compensated at the $110 .00 per hour rate proposed by Respondent

.

Petitioner seek s a rate of $100.00 per hour for a person identified as YA for the specific task of receiving and reviewing a court order. Invoice at 6, ECF No. 60

- 1. Respondent has not challenged this rate. Therefore, the undersigned finds that YA shall be compensated at $100 .00 per hour

.

iii. Vague Entries and Administrative Tasks

Respondent objects to vague entries listed in Petitioner ’ s invoice, arguing that

some of the billing descriptions for Mr. Victor are so vague that the undersigned cannot
determine if the time billed is reasonable. Res pondent objects to the following time entries by Mr. Victor: .2 hours for “ Received Verification, ” Invoice at 3 , ECF 60

- 1; .2
hours for “ Medical records needed, ” Id. ; .3 hours for “Followed up on medical records,”

Id. at 4 ; and 2 hours for “ Requesting additional records...

, ” Id. at 9 . It is unc lear from these billing entries whether the task s performed w ere administrative

, the task should have been performed by a paralegal, or w ere reasonably performed by Mr. Victor

. Therefore, the undersigned declines to compensate these hours.

Res pondent also objects to apparent administrative tasks performed by Ms. Lucas
Paradies. Ms. Lucas Paradies billed 40.2 hours for scanning and preparing medical records. This type of task should be characterized as administrative or secretarial work,10

which other special masters have determined as non

- compensable. See Hocraffer

, 2011
WL 3705153 , at *22 (listing examples from past cases). See Riggins v. Sec ’ y of Health &

Human Servs. , No. 99

– 382V, 2009 WL 3319818, at *20 (Fed. Cl. Spec. Mstr. Jun. 15, 2009) (meetings regarding scanning and computer issues, consultation with Legal Nurses
Associa tion to discuss reviewing cases and preparing chronologies are not compensable);
see also Cowan v. Sec ’

y of Health & Human Servs. , No. 90

– 1189V, 1993 WL 410090 (Fed. Cl. Spec. Mstr. Sep. 30, 1998) (faxing, delivering and mailing information,
conf erring with staff, planning travel arrangements was administrative, secretarial and not compensable); see also Vickery v. Sec ’ y of Health & Human Servs. , No. 90

– 997V, 1992 WL 281073 ( Fed. Cl. Spec. Mstr. Sep. 24, 1992) (telephonically leaving a message, fil ing
records in a drawer are secreta rial tasks and not compensable) ; see Lamar v. Sec ’ y of
Health & Human Servs

. , No. 99

– 583V, 2008 WL 3845165, at *14 (Fed. Cl. Spec. Mstr. Jul. 30, 2008) (reducing the number of hours spent by an attorney on tasks that do not “require an attorney's time or attention ”)

. The undersigned declines to compensate for
these administrative tasks

.

iv. Final Attorneys’ Fee Calculations

In accordance with the above analysis, Ms. Finn billed 42 hours at a rate of $300 .00 per hour for a total fee of $ 12,600 .00 . Mr. Victor billed 23.75 hours at $220 .00 per hour for a total of $ 5 ,225 .00

. Ms. Lucas Paradies billed 69.16 hours at a rate of $110 .00 per hour for a total of $ 7607.60

. The person identified as YA billed .1 hours at $100.00 per h ou r for a total fee of $10 .00

. In sum, Petitioner i s awarded $ 2 5, 4 42.60 in
interim attorneys’ fees.

d. Reasonableness of Requested and Costs

Petitioner ha s requested $27,977.50 in interim costs . This amount is comprised of the $350.00 filing fee for the Program, the $10,450.00 invoice due to Dr. Marcel Kinsbourne, the $625.00 invoice due to Dr. Joseph Berger, and the $16,552.50 invoi ce due to BalaCare LLC. T he burden is on Petitioner to provide an adequate description and sufficient documentation demonstrating the reasonableness of requested costs

. See
Sabella , 86 Fed. Cl. a t 2 09 ; Duncan v. Sec ’ y of Health & Human Servs.

, No. 99

- 455V,

2008 W L 4743493, at *1 (Fed. Cl. Aug. 4, 2008)

.

i. Life Care Plan and Other Costs

Respondent has not objected to Petitioner ’ s costs for a life care p lanning
assessment. Petitioner hired Balacare LLC to provide a life care pla n assessment.
Petitioner ha s submitted an invoice from Balacare LLC that included comprehensive CV s for all of the Balacare LLC employees involved in the assessment. Balacare LLC charged P etitioner for 72.25 hours at $230 .00 per h ou r , plus an addition al $165 .00 in travel costs, for a total of $16,552.50

. See Invoice, ECF 60

- 2

. The cost for the life11

planning assessment is reasonable; ther efore

, Petitioner is awarded $16,552.50 for the costs charged by Balacare LLC.

Respondent has also not objected to Petitioner ’ s re quest for the cost of the Program filing fee ($350.00) or the cost for a Kentucky record review by Dr. Berger ( 1.25 hours at $500.00 per hour for a total of $625.00)

. Therefore Petitioner shall be
awarded $350.00 for the cost of the Pro gram filing fee, as well as $625.00 for the cost of Dr. Berger’s services.

ii. Petitioner ’ s Expert, Dr. Kinsbourne

Respondent objects to both the hours expended by Dr. Kinsbourne and hi s requested hourly rate of $500 .00. Petitioner ha s submitted a one

- p age invoice from Dr.
Kinsbourne showing that he spent 20.9 hours, at a rate of $500 .00 per hour , for a total of $10,450 .00

. Petitioner ha s not submitted any other evidence or argument to show that the hours expended and hourly rate are reasonable. Dr. Kinsbourne frequently testifies and submits expert opinions in the Program. In the past

, he has been awarded an hourly rate of $500 .00 , but some special masters have reduced his requ ested hourly rate to $300 .00

. See Hammit t v. Sec’y of Health & Human Serv s. , 2011 WL 182722 1

, at *7 (Fed. Cl. Spec. Mstr. Apr. 7, 2011) ; S imon v. Sec’y of Health & Human Servs.

, No. 05

- 941V, 2008

WL 623833

, * 8 (Fed. Cl. Spec. Mstr. Feb. 21, 2008). Respondent believes that a rate of $30 0 .00 per hour would be reasonable in this case. Response at 12, ECF No. 63.

Respondent believes that Dr. Kinsbourne’s hourly rate should be reduced following the 2011 Hammitt decision. Id. at 12 . According to Respondent, Dr.
Kinsbourne’s rate was reduced because his status as a non

- practicin g neurologist raises “significant concerns” as to his reliability. However, in Hammit, Dr. Kinsbourne ’ s lack of a clinical neurology practice was only one of the critiques that caused the special master to reduce his hourly ra te to $300 per h ou r. Hammi t t

, 2011 WL 1827221, at *7. The special master was also concerned about the quality of Dr. Kinsbourne’s performance at hearing, particularly his parroting of the literature and his highly generalized testimony. Id. Most importantly, Hammit t was concerned with genetics issues, but Dr. Kinsbourne is a neurologist with limited knowledge of genetics. Id.

Dr. Kinsbourne previously has been aw arded an hourly rate of $500.00; however, the undersigned notes that Dr. Kinsbourne’s award of $500.00 in previous cas es was notably unusual. See, e.g.

, Simon

, 2008 WL 623833, at *6 ; Adams v. Sec’y of Health &

Human Servs. , No. 01

- 267V, 2008 WL 2221852, at *2 (Fed. Cl. Spec. Mstr. Apr. 30

, 2008). In many other cases, he was awarded less. See, e.g., Stone v. Sec’y of Health &

Human Servs. , No. 90

- 1041, 2010 WL 3790297, at *6 (Fed. Cl. Spec. Mstr. Sept. 9, 2010) (Dr. Kinsbourne awarded $300.00 per hour); Hammitt

, 2011 WL 1827221, at *7 (Dr. Kinsbourne awarded $300.00 per hour).12

To further substantiate this notion, in Simon v. Secretary of Health and Human

Services

, Dr. Kinsbourne was awarded $500 .00 per hour f or his expert services, but only $300.00 per h ou r for time expended for non

- expert services. Simon

, 2008 WL 623833, at

* 8 . The special master in Simon found that $500.00 per h ou r is “deserved only for those hours spent as an expert

, ” not for medical resea rch or consulting with the attorney. Id

. Dr. Kinsbourne deserved this expert rate based on his past experience in the Program and the “knowledge and efficiency” he brought to reviewing the medical record and preparing
that particular case. Id. at *7. H owever, t he special master determined that Dr.
Kinsbourne should b e awarded only $300.00 per h ou r when he was actually working in a consultant capacity

— performing tasks such as “consulting on strategy, selection of experts, or trial tactics.” Id. at *8.

Her e, Dr. Kinsbourne has submitted an expert report on TM , an area of the Program in which he has significant experience. See Hargrove v. Sec’y of Health &

Human Servs. , No. 05

- 0694V, 2009 WL 1220986, at *7

- 18 (Fed. Cl. Spec. Mstr. Apr. 14, 2009). This case has not yet gone to hearing, and the hours billed by Dr. Kinsbourne
reflect time spent reviewing the re cord

, preparing his expert report , retrieving medical literature, conferenc i ng, and email i ng

. Specifically , Dr. Kinsbourne billed 6.1 hours of
his 20.9 h our total on “Email.” In the past, Dr. Kinsbourne has charged the lesser rate of $300.00 per h ou r for emails and phone calls. See Stone

, 2010 WL 3790297, at *6

. The undersig ned has determined that “Email” is not expert work and will therefore be

award ed at the lesser rate of $300 .00 per hour

.

Aside from the quarter of his time spent on correspondence, the undersigned is not satisfied that Dr. Kinsbourne performed with the re quisite knowledge and efficiency to deserve an hourly rate of $500 .00

. Dr. Kinsbourne is highly experienced in TM , and it appears that he billed some time for r eview of the medical literature

. Moreov er, Dr

. Kinsbourne billed over 20 hours for a matter f or which he has not yet testified . In contrast, in Simon , the special master found it reasonable that Dr. Kinsbourne billed 24 hours including time spent testifying at trial. Therefore, for time billed other than for emails, Dr. Kinsbourne is awarded a rate of $400 .00 per hour

.

In sum, Petitioner i s awarded $7,750.00 for costs associated with Dr.

Kinsbour ne

— 6.1 hours of email at $300.00 per hour ($1,830.00), plus 14.8 hours of oth er services performed at $400 .00 pe r hour ($5,920.00).

iii. Final Costs Calculations

Petitioner shall receive $16,522.50 for the cost of a life care assessment, $625 .00 for the cost of Dr. Berger’s record review in Kentucky, $350 .00 for the cost of the filing fee, and $7,750 .00 for the cost of Dr. Kinsbourne’s expert report . In total, Petitioner i s awarded $2 5,247.50 in costs.13

IV. CONCLUSION

The special master determines that 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 ENT ER
JUDGMENT in P etitioner’s favor for $ 2 5, 442

. 6 0 in interim attorneys’ fees generated up to and including October 23, 2011
, and $25,247.50 in interim cos ts , generated through October 29, 2013. Checks should be made payable jointly to
Petitioner and Petitioner ’ s counsel, Patricia Finn, Esq. Under Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing the right t o seek review.

IT IS SO ORDERED.
s/ Lisa D. Hamilton

- Fieldman
Lisa D. Hamilton

- Fieldman Special Master