1

In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

(Filed: March 27, 2014)

PUBLISHED

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

ROBERT DIMATTEO, * 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, * Excessive Time Entries.

*

Respondent. *

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

Patricia A. Finn, Patricia Finn Esq., Piermont, NY, for Petitioner.

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

DECISION AWARDING INTERIM FEES AND COSTS1

On August 19, 2010, Robert Dimatteo (“Petitioner”) filed a petition in the 

National Vaccine Injury Compensation Program (the “Program”),2alleging 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 includes medical files or similar files, the disclosure of which would constitute a 

clearly unwarranted 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, 
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hepatitis A and varicella vaccines administered on August 12, 2009, caused him to

develop transverse myelitis (“TM”). Petition (“Pet.”) at 1. Over the 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 is now seeking an interim 

award of $50,631.003in attorneys’ fees for work performed up to and including October 

23, 2013, and $27,977.504in expert fees and costs for work performed and expenses 

incurred through October 29, 2013. See Pet’r’s Reply at 4-5, ECF No. 60; Invoices; ECF 

Nos. 60-1, 60-2.

For the reasons set forth below, the undersigned awards Petitioner $25,442.60 in 

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

costs, incurred up to and including October 29, 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 records, 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 to Petitioner’s

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

Petitioner filed 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 curriculum vitae (“CV”) and supporting literature. Filings, ECF 

Nos. 48, 49. On July 1 and 22, 2013, Petitioner filed additional medical records 

regarding amplification of varicella virus DNA in 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 sections of the Vaccine Act are to 42 U.S.C.A. §300aa.

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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.
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A status conference was held on September 19, 2013, and Respondent’s counsel 

indicated that settlement appeared feasible in this case. Order, ECF No. 53. 

Accordingly, Petitioner was ordered to send a settlement demand to Respondent by 

October 24, 2013, and both parties were ordered to file a joint status report by December 

2, 2013, updating the undersigned on the progress of settlement negotiations. Order, 

Sept.19, 2013, ECF No. 53. On 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 towards settlement. Status Report, ECF No. 62.

Amidst settlement negotiations, on October 1, 2013, Petitioner filed a motion for 

interim attorneys’ fees and costs. Motion, ECF No. 54. Petitioner 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. Petitioner contends 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, Petitioner’s counsel has 

eight pending 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 CVs for BalaCare LLC, the 

company Petitioner used to obtain a life care plan. Motion, Ex. 1, ECF No. 54-1. 

On November 1, 2013, Respondent filed a response objecting to Petitioner’s 

motion for interim attorneys’ fees and costs. Response, ECF No. 58. Respondent 

contends that the undersigned lacks 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 costs, then Respondent 

argues that Petitioner had not met their 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 attorneys’ fees and costs to many other petitioners, and 

reasserted that an interim attorneys’ fees and costs award is appropriate for this claim. 

Reply, Nov. 19, 2013, ECF No. 60. Petitioner submitted an invoice of billed hours and 

contended that the rate charged by Petitioner’s counsel was reasonable for the New York 

City area. 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. Petitioner now requests payment of the full invoice amounts, as opposed to only 

the retainer already paid. Reply at 5, ECF No. 60. Petitioner has also added the Court’s 

original filing fee to their costs request.
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On December 11, 2013, Respondent filed a response to Petitioner’s reply

(“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 experience 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 tasks. Id. at 10-11. Respondent did not 

object to the invoices submitted by BalaCare LLC or Dr. Joseph Berger, but contends that 

Dr. Kinsbourne’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 an award of reasonable attorneys’ fees and costs. 42 

U.S.C. § 300aa–15(e). If petitioner is ultimately unsuccessful, he can still recover 

attorneys’ fees and costs as long as their claim was brought 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 attorneys’ fees and costs may be granted on an interim 

basis prior to a decision on entitlement. Avera 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 faith 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 

under 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).

Fees and costs must both be reasonable. See Perreira v. Sec’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 reasonable, so also 

must any request for reimbursement of costs.”), aff’d, 33 F.3d 1375 (Fed. Cir.1994). The

burden is on petitioners to provide an adequate description and sufficient documentation 
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demonstrating the reasonableness of requested fees and costs. See Sabella v. Sec’y of

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 Hocraffer v. Sec’y of Health & Human Servs., 

99–533V, 2011 WL 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 reasonableness of both attorneys’ fees 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 attorney 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.” Avera, 515 F.3d at 1347–48 (citing 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 Vaccine Act cases, the prevailing market rate is determined using the forum 

rule rather than the geographic rule. Avera, 515 F.3d at 1349. The applicable forum is 

Washington, D.C.; but, to prevent windfalls to attorneys from less expensive legal 

markets, the Federal Circuit applies the “Davis exception.” Id. (citing Davis Cnty. Solid 

Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. 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 would include hours that are “excessive, redundant, or 
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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) (listing examples from 

past cases). 

III. DISCUSSION

a. Authority to Award Interim Attorneys’ Fees and Costs

Respondent objects to any issuance of interim attorneys’ fees and costs, 

contending that judgment must be entered before any award of attorneys’ fees and costs 

can be authorized. The undersigned is aware that this is an issue regularly raised by 

Respondent. However, Respondent also frequently stipulates to such fees. Following the 

Federal Circuit precedent of Shaw and Avera, many special masters have awarded interim 

attorneys’ fees and costs. 

In Shaw, the Federal Circuit relied on the reasoning used in Avera since special 

masters can often determine good faith and reasonableness early in proceedings, interim 

fee awards are consistent with the underlying purpose 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 untimely, 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 trials” 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 undersigned 

concludes she has the authority to award interim attorneys’ fees and costs.

b. Justification for Award of Interim Attorneys’ Fees and Costs

Respondent has not disputed the reasonableness and good faith of Petitioner’s 

claim. Petitioner has filed medical records and an expert report to demonstrate that he

developed TM from the hepatitis A and varicella vaccines. There is no evidence that 

Petitioner does not earnestly believe that his injury is vaccine related. Petitioner has filed 

an expert report by Dr. Kinsbourne, who has in the past given expert testimony in several 

other TM cases. Therefore, Petitioner has brought a claim in good faith and upon a 

reasonable basis. 
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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 towards 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. Motion 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 she has had to work for three years 

without compensation. Petitioner has established that he may be awarded reasonable 

interim attorneys’ fees and costs. 

c. Reasonableness of Requested Interim Attorneys’ Fees

Petitioner is represented by Patricia Finn of Piermont, New York. Petitioner has

filed invoices dating from March 2010 through December 2013. Invoice, ECF 60-1. 

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 as YA in the July 31, 2011 invoice. Id.

Petitioner has filed attorney invoices for a total of $50,631.00 in related legal fees. 

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

hour. For Ms. Finn, Petitioner requests fees for 42 hours of work for a total of

$17,640.00. For Mr. Victor, Petitioner seeks fees for 26.45 hours of work for a total of 

$11,109.00. For Ms. Lucas Paradies, Petitioner seeks fees for 109.36 hours of work at a 

rate of $200.00 per hour, for a total of $21,872.00. For the unidentified assistant labeled 

YA, Petitioner seeks 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 objects 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 District of Columbia—and the forum hourly rate 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 Rodriguez 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 highercost exception, and how other federal courts have only applied such a higher rate than the 
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forum rate when “out of town counsel possessed special expertise 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 than other areas, and request a reasonable 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; therefore there is no need to 

determine local rates. Petitioner’s counsel will be awarded reasonable forum rates based 

on experience, skill and reputation. 

Aside from the rates requested, and mention of a similar rate awarded to another 

New York City attorney, Petitioner’s counsel has presented no evidence of the 

appropriate forum rate. Motion, ECF No. 54; Reply 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 attorneys’ fees in the past. Ms. Finn 

has been in practice since 2003.5 Ms. Finn attests 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 Vaccine Program in Washington, 

D.C. [was] $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 Vaccine Program 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 presented little to no evidence regarding his experience or what forum 

rates should apply. However, based on the sparse record at hand and past decisions of 

 

5

(http://iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId=5636509).
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other special masters, the undersigned finds that, for the years 2010 through 2013, Ms. 

Finn should be compensated at $300.00 per hour and Mr. Victor should be compensated 

at $220.00 per hour. 

ii. Hourly Rate of Jessica Lucas Paradies and YA

Petitioner seeks a rate of $200.00 per hour for work performed by Jessica Lucas 

Paradies. Respondent believes that the reasonable rate for paralegal tasks performed by 

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

believes that Ms. Lucas 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 apparent 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 

Servs., 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 seeks 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. Respondent 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 unclear from 

these billing entries whether the tasks performed were administrative, the task should 

have been performed by a paralegal, or were reasonably performed by Mr. Victor. 

Therefore, the undersigned declines to compensate these hours.

Respondent 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, 
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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 

Association 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, 

conferring 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, filing 

records in a drawer are secretarial 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 hour for a total fee of $10.00. In sum, Petitioner is awarded $25,442.60 in 

interim attorneys’ fees. 

d. Reasonableness of Requested and Costs

Petitioner has 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 invoice 

due to BalaCare LLC. The burden is on Petitioner to provide an adequate description and 

sufficient documentation demonstrating the reasonableness of requested costs. See 

Sabella, 86 Fed. Cl. at 209; Duncan v. Sec’y of Health & Human Servs., No. 99-455V, 

2008 WL 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 planning 

assessment. Petitioner hired Balacare LLC to provide a life care plan assessment. 

Petitioner has submitted an invoice from Balacare LLC that included comprehensive CVs

for all of the Balacare LLC employees involved in the assessment. Balacare LLC 

charged Petitioner for 72.25 hours at $230.00 per hour, plus an additional $165.00 in 

travel costs, for a total of $16,552.50. See Invoice, ECF 60-2. The cost for the life 
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planning assessment is reasonable; therefore, Petitioner is awarded $16,552.50 for the 

costs charged by Balacare LLC. 

Respondent has also not objected to Petitioner’s request 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 Program 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 his 

requested hourly rate of $500.00. Petitioner has submitted a one-page 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 has 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 requested hourly rate to $300.00. 

See Hammitt v. Sec’y of Health & Human Servs., 2011 WL 1827221, at *7 (Fed. Cl. 

Spec. Mstr. Apr. 7, 2011); Simon 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 

$300.00 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-practicing 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 rate to $300 per hour. Hammitt, 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, Hammitt was concerned with genetics 

issues, but Dr. Kinsbourne is a neurologist with limited knowledge of genetics. Id. 

Dr. Kinsbourne previously has been awarded an hourly rate of $500.00; however, 

the undersigned notes that Dr. Kinsbourne’s award of $500.00 in previous cases 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 for his expert services, but only 

$300.00 per hour for time expended for non-expert services. Simon, 2008 WL 623833, at 

*8. The special master in Simon found that $500.00 per hour is “deserved only for those 

hours spent as an expert,” not for medical research 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. However, the special master determined that Dr. 

Kinsbourne should be awarded only $300.00 per hour 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.

Here, 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 record, preparing his expert report, retrieving medical 

literature, conferencing, and emailing. Specifically, Dr. Kinsbourne billed 6.1 hours of 

his 20.9 hour total on “Email.” In the past, Dr. Kinsbourne has charged the lesser rate of 

$300.00 per hour for emails and phone calls. See Stone, 2010 WL 3790297, at *6. The 

undersigned has determined that “Email” is not expert work and will therefore be 

awarded 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 requisite 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 review of the medical literature. Moreover, Dr. 

Kinsbourne billed over 20 hours for a matter for 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 is awarded $7,750.00 for costs associated with Dr. 

Kinsbourne—6.1 hours of email at $300.00 per hour ($1,830.00), plus 14.8 hours of other 

services performed at $400.00 per 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 is

awarded $25,247.50 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 ENTER 

JUDGMENT in Petitioner’s favor for $25,442.60 in interim attorneys’ fees 

generated up to and including October 23, 2011, and $25,247.50 in interim costs,

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 to 

seek review. 

IT IS SO ORDERED. 

s/Lisa D. Hamilton-Fieldman

 Lisa D. Hamilton-Fieldman

Special Master