In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-150

(Not to be Published)

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

ROBERT KERN, *

* Chief Special Master Corcoran

Petitioner, * 

* Dated: December 9, 2020

v. * 

*

* Attorney’s Fees and Costs.

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

Maximillian Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Heather Pearlman, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1

On February 1, 2016, Robert Kern filed a petition seeking compensation under the National 

Vaccine Injury Compensation Program (“Vaccine Program”),

2 alleging that the influenza (“flu”) 

vaccine he received on November 12, 2014, caused him to experience Guillain-Barré syndrome 

(“GBS”). On August 10, 2020, just a few days after the case was transferred to me, a status 

conference was held to discuss how the parties wished to proceed with the matter. Petitioner’s 

counsel indicated at this time that Mr. Kern had died due to causes unrelated to his alleged injury. 

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the 

Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This 

means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. 

Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any 

information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged 

or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly 

unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. 

Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 

100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). 

All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
2

Counsel stated that he would be speaking with the administrators of Mr. Kern’s estate to determine 

whether they wished to move forward with the claim. 

On August 31, 2020, Petitioner’s counsel filed a status report confirming that Mr. Kern’s 

estate did not wish to proceed with the prosecution of the claim, and a motion to dismiss was 

forthcoming. Status Report, filed Aug. 31, 2020 (ECF No. 53). On September 11, 2020, 

Petitioner’s counsel filed an unopposed Motion to Dismiss (ECF No. 54), which I granted on 

September 11, 2020. Decision, filed Sept. 11, 2020 (ECF No. 55) 

Petitioner has now filed a motion for a final award of attorney’s fees and costs for all work 

performed on the matter since its inception. Motion, filed Oct. 22, 2020 (ECF No. 59) (“Mot.”). 

Petitioner requests a final award of $33,862.70—$19,874.80 in attorney’s fees, plus $13,987.90 in 

costs—for the work of Mr. Max Muller, Esq. and the supportive work of two paralegals. Mot. at 

1–2. The costs requested include costs for medical record retrieval, expert fees, and court filings. 

Id. Respondent reacted to the fees request on October 26, 2020. See Response, dated Oct. 26, 2020 

(ECF No. 60). Respondent is satisfied that the statutory requirements for an attorney’s fees and 

costs award are met in this case, and otherwise defers to my discretion in calculating the amount 

to be awarded. Id. at 2–3.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Although the Vaccine Act only guarantees a reasonable award of attorney’s fees and costs 

to successful petitioners, a special master may also award fees and costs to an unsuccessful 

petitioner if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for 

the claim for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth 

at length the criteria to be applied when determining if a claim possessed “reasonable basis” 

sufficient for a fees award. See, e.g., Sterling v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 

WL 549443, at *4 (Fed. Cl. Spec. Mstr. Jan. 3, 2020). 

In short, the claim’s reasonable basis must be demonstrated through some objective 

evidentiary showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. 

Cir. 2020) (citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). 

This objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may 

bulwark good faith). Simmons, 875 F.3d at 635. Reasonable basis inquiries are not static—they 

evaluate not only what was known at the time the petition was filed, but also take into account 

what is learned about the evidentiary support for the claim as the matter progresses. Perreira v. 

Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the finding that a 

reasonable basis for petitioners’ claims ceased to exist once they had reviewed their expert's 
3

opinion, which consisted entirely of unsupported speculation).

The standard for reasonable basis is lesser (and thus inherently easier to satisfy) than the 

preponderant standard applied when assessing entitlement, as cases that fail can still have 

sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 144 Fed. 

Cl. 72, 77 (2019). Under the Vaccine Act, special masters have “maximum discretion” in applying 

the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401, 

401–02 (Fed. Cl. 2012).3 The Court of Federal Claims has affirmed that “[r]easonable basis is a 

standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of 

Health & Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) 

(affirming special master). The factual basis and medical support for the claim is among the 

evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 

378 (Fed. Cl. 2017).

My review of the file in this matter persuades me that Petitioner’s claim had sufficient 

objective basis to entitle him to a fees and costs award, despite the case’s dismissal. Petitioner’s 

good faith arguments were backed by many solid items of proof, and there was objective support 

in the record for core matters like proof of vaccination and the nature of Petitioner’s injury.

Petitioner was able to offer an expert opinion and some other proof in support of the claim, 

including record proof of treaters associating Petitioner’s GBS with the flu vaccine because of the 

temporal relationship between the two. Respondent for his part does not otherwise contest 

reasonable basis. Accordingly, a final award of fees and costs in this matter is appropriate.

II. Calculation of Fees 

Determining the appropriate amount of the fees award is a two-part process. The first part 

involves application of the lodestar method—“multiplying the number of hours reasonably 

expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 

515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

The second part involves adjusting the lodestar calculation up or down to take relevant factors into 

consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in 

most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 

429–37 (1983). 

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the 

proper hourly rate on the forum in which the relevant court sits (Washington, D.C., for Vaccine 

Act cases), except where an attorney’s work was not performed in the forum and there is a 

3 See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they 

would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is 

consistent with the Vaccine Act as a whole). 
4

substantial difference in rates (the Davis exception). Avera, 515 F.3d at 1348 (citing Davis Cty. 

Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 

755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with 

different levels of experience who are entitled to the forum rate in the Vaccine Program. See

McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. 

Spec. Mstr. Sept. 1, 2015).

Petitioner requests the following rates for his attorney and support staff, based on the years 

work was performed:

2015 2016 2017 2018 2019 2020

Mr. Max Muller 

(Attorney) $255 $275 $300 $317 $325 $350

Ms. Maria Loecker 

(Paralegal) $125 $125 $125 $125 - -

Ms. Tereza Pavlacsek 

(Paralegal) - - - - $140 $140

The attorneys from Muller Brazil (who practice in Philadelphia, Pennsylvania) have 

repeatedly been found to be “in forum,” and are therefore entitled to the rates established in 

McCulloch. The rates requested for Mr. Muller (as well as the paralegal work performed in this 

case) are also consistent with what they have previously been awarded in accordance with the 

Office of Special Masters’ fee schedule4. See, e.g., Hlad v. Sec’y of Health & Hum. Servs., No. 

17-1818V, 2020 WL 3620224, at *2 (Fed. Cl. Spec. Mstr. June 22, 2020). I find no cause to reduce 

them in this instance. I also deem the time devoted to the matter reasonable, and therefore award 

fees for all work performed on the case as requested in the fees application.

III. Calculation of Attorney Costs 

Just as they are required to establish the reasonableness of requested fees, petitioners must 

also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. 

Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).

Reasonable costs include the costs of obtaining medical records and expert time incurred while 

working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at

*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as 

by not providing appropriate documentation to explain the basis for a particular cost, special 

masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health 

& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). 

4 OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Dec. 8, 

2020).
5

Petitioner seeks $13,987.90 in costs incurred since the claim’s filing, including medical 

record retrieval, and filing fees. Fees App. at 11. Such costs are typical in Program cases. Petitioner 

also seeks reimbursement of expert fees for work performed by Dr. Lawrence Steinman, at a rate 

of $500 per hour. Id. at 11, 16. This rate is consistent with what has previously been awarded for 

Dr. Steinman’s services in past Program cases, and I find the rate reasonable in light of his 

contributions to this matter. See, e.g., Samuels v. Sec’y of Health & Hum. Servs., No. 17-71V, 2020 

WL 6395508, at *3 (Fed. Cl. Spec. Mstr. Sept. 25, 2020). I also find that the number of hours 

expended in this matter by Dr. Steinman was reasonable, and Respondent does not otherwise 

dispute the reasonableness of Petitioner’s request. Thus, I award Petitioner’s requested amount of 

$13,987.90 for attorney’s costs in full.

CONCLUSION

Accordingly, in the exercise of the discretion afforded to me in determining the propriety 

of a final fees award, and based on the foregoing, I GRANT Petitioner’s Motion for Attorney’s 

Fees and Costs. I therefore award a total of $33,862.70, reflecting $19,874.80 in attorney’s fees

and $13,987.90 in costs, in the form of a check made jointly payable to Petitioner and his attorney

Mr. Maximillian Muller.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the 

court SHALL ENTER JUDGMENT in accordance with the terms of this decision.5

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices 

renouncing their right to seek review.