In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

SANDRA MEADOR, *

*

* No. 19-1333V

Petitioner, * Special Master Christian J. Moran

*

v. *

* Filed: June 1, 2022

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ fees and costs.

* 

Respondent. *

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

David J. Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner; 

Adriana R. Teitel and Darryl R. Wishard, United States Dep’t of Justice, 

Washington, DC, for respondent.

UNPUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS1

On August 8, 2021, petitioner Sandra Meador moved for final attorneys’ 

fees and costs. She is awarded $26,887.93.

* * *

1 Because this published decision contains a reasoned explanation for the 

action in this case, the undersigned is required to post it on the United States Court 

of Federal Claims website in accordance with the E-Government Act of 2002. 44 

U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This posting means the decision will be available to 

anyone with access to the Internet. In accordance with Vaccine Rule 18(b), the 

parties have 14 days to identify and move to redact medical or other information, 

the disclosure of which would constitute an unwarranted invasion of privacy. If, 

upon review, the undersigned agrees that the identified material fits within this 

definition, the undersigned will redact such material from public access.
2

On August 30, 2019, petitioner filed for compensation under the National 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34. The 

petition alleged that the influenza (“flu”) vaccine she received on October 11, 

2016, caused her to develop rheumatoid arthritis. After filing initial medical 

records, petitioner was ordered to begin the process of retaining an expert. Order, 

issued Mar. 18, 2020. In a status conference held on June 29, 2020, the 

undersigned discussed the potential impact of Tullio v. Secretary of Health & 

Human Services, No. 15-51V, 2019 WL 7580149 (Fed. Cl. Spec. Mstr. Dec. 19, 

2019), mot. for rev. denied, 149 Fed. Cl. 448 (2020). In Tullio, the undersigned

found that the petitioner failed to establish that the flu vaccine can cause 

rheumatoid arthritis via molecular mimicry. The undersigned stated that for the 

case to proceed, any expert retained by petitioner should advance a different theory 

than the experts in Tullio. Order, issued June 29, 2020. Petitioner was unable to 

secure an expert opinion and moved to dismiss her claim on March 2, 2021. 

Pet’r’s Mot., filed Mar. 2, 2021, at 5-6. On April 28, 2021, the undersigned issued 

his decision dismissing the petition for insufficient proof. Decision, 2021 WL 

2106068 (Fed. Cl. Spec. Mstr. Apr. 28, 2021). 

On August 5, 2021, petitioner moved for final attorneys’ fees and

costs. Pet’r’s Mot., filed Aug. 5, 2021. Petitioner requests attorneys’ fees of 

$23,544.00 and attorneys’ costs of $3,843.93 for a total request of $27,387.93. 

Pet’r’s Mot. at 2-3. Pursuant to General Order No. 9, petitioner states that she has 

not personally incurred any costs in pursuit of this litigation. Fee exhibit 3. On

August 13, 2021, respondent filed a response to petitioner’s motion. Resp’t’s

Resp., filed Aug. 13, 2021. Respondent argues, “Neither the Vaccine Act nor 

Vaccine Rule 13 requires respondent to file a response to a request by a petitioner 

for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however,

that he “is satisfied the statutory requirements for an award of attorneys’ fees and 

costs are met in this case.” Id. at 2. Additionally, he recommends that the 

undersigned “exercise [his] discretion” when determining a reasonable award for 

attorneys’ fees and costs. Id. at 3. Petitioner did not file a reply.

* * *

The burden is on the petitioner to provide sufficient evidence to support a 

request for attorneys’ fees and costs. See, e.g., Scharfenberger v. Sec’y of Health 

& Hum. Servs., 124 Fed. Cl. 225, 234 (2015). The Secretary is not required to 

make objections to requests for fees and costs. Id. Accordingly, special masters 

are “not limited to objections raised by respondent.” Id. (quoting Lamar v. Sec’y 
3

of Health & Hum. Servs., No. 99-538V, 2008 WL 3845165, at *5 (Fed. Cl. Spec. 

Mstr. July 30, 2008)).

The Secretary previously provided objections to requests for attorneys’ fees 

and costs. See Dominguez v. Sec’y of Health & Hum. Servs., 136 Fed. Cl. 779, 

781 (2018). However, the Secretary no longer routinely provides objections to fee 

motions due to lack of resources and desire to avoid further litigation. See id. 

Given the Secretary’s lack of substantive participation in fee motions, special 

masters have an independent duty to evaluate them for their reasonableness. See

id. at 785; McIntosh v. Secʼy of Health & Hum. Servs., 139 Fed. Cl. 238 (2018); 

Spahn v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 252, 262-63 (2018). 

Therefore, the undersigned has independently reviewed the fee application for its 

reasonableness. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1520 

(Fed. Cir. 1993); Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 

(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994) (affording special masters discretion 

to determine the reasonableness of requests of attorneys’ fees and costs); see also

Saxton, 3 F.3d at 1521; Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 

209 (2009) (allowing special masters to rely on accumulated experience in 

determining fee awards). 

Although compensation was denied, petitioners who bring their petitions in 

good faith and who have a reasonable basis for their petitions may be awarded 

attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although 

petitioner’s claim was ultimately unsuccessful, the undersigned finds that good 

faith and reasonable basis existed throughout the matter. Respondent also has not 

challenged the reasonable basis of the claim. A final award of reasonable 

attorneys’ fees and costs is therefore proper in this case. See Greenlaw v. United 

States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for 

decision and assign to courts the role of neutral arbiter of matters the parties 

present.”).

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 

§ 15(e). The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 

process. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1348 (Fed. Cir. 

2008). First, a court determines an “initial estimate . . . by ‘multiplying the number 

of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. 

at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the 

court may make an upward or downward departure from the initial calculation of 

the fee award based on specific findings. Id. at 1348. Here, because the lodestar 
4

process yields a reasonable result, no additional adjustments are required. Instead, 

the analysis focuses on the elements of the lodestar formula, a reasonable hourly 

rate and a reasonable number of hours.

A. Reasonable Hourly Rates

Under the Vaccine Act, special masters, in general, should use the forum 

(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. 

However, when the bulk of the work is done outside the District of Columbia and 

the attorneys’ rates are substantially lower, the Davis County exception applies,

and petitioner’s counsel is paid according to the local rate. Id. at 1349 (citing 

Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. 

Env’t Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the 

attorneys’ work was done in Philadelphia, Pennsylvania. The local rate of 

Philadelphia, Pennsylvania is substantially similar to the forum rate. Therefore, 

the Davis County exception does not apply.

Petitioner requests the following hourly rates for the work of her counsel, 

Mr. David Carney: $325.00 per hour for work performed in 2019; $350.00 per 

hour for work performed in 2020; and $375.00 per hour for work performed in 

2021. These rates are consistent with what Mr. Carney has previously been 

awarded for his Vaccine Program work. See, e.g., Martinez v. Sec’y of Health & 

Hum. Servs., No. 16-738V, 2022 WL 1210556, at *3 (Fed. Cl. Spec. Mstr. Mar. 

29, 2022); Morgan v. Sec’y of Health & Hum. Servs., No. 19-1105V, 2021 WL 

3056271, at *2 (Fed. Cl. Spec. Mstr. June 28, 2021). Petitioner also requests

reasonable hourly rates for work performed by the firm’s paralegal. Accordingly, 

the requested hourly rates are reasonable.

B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours. 

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton, 3 F.3d at 1521. The Secretary did not directly challenge any of the 

requested hours as unreasonable.

The undersigned has reviewed the submitted billing records and finds most 

of the time billed to be reasonable. The timesheet provides sufficiently detailed 

descriptions of the work performed. See fee exhibit 1. One issue is a small 

amount of clerical work billed by the firm’s paralegal, including time billed for 

receiving and downloading medical records, reviewing court orders, and 
5

calendaring dates. Mr. Carney also occasionally billed for time spent filing 

documents. Billing for clerical or administrative work is not permitted in the 

Vaccine Program. See Rochester v. United States, 18 Cl. Ct. 379 (1989). 

However, this issue is relatively minor and merits only a reduction of $500.00. 

Accordingly, petitioner is awarded final attorneys’ fees of $23,044.00.

C. Costs

Like attorneys’ fees, a request for reimbursement of costs must be 

reasonable. Perreira, 27 Fed. Cl. at 34. Petitioner requests a total of $3,843.93 in 

attorneys’ costs. This amount is comprised of acquiring medical records, postage, 

the Court’s filing fee, and expert fees for Dr. Marc Serota. The bulk of the costs 

represent fees incurred by counsel in attempting to secure an expert opinion by Dr. 

Serota. See fee exhibit 2. 

Dr. Serota billed a total of 6 hours at a rate of $400.00 per hour to review 

and analyze medical records and medical literature. See Pet’r’s Mot. at 39. This 

totals $2,400, the amount of Dr. Serota’s retainer fee. Petitioner notes that Dr. 

Serota did not charge for telephone or email correspondence or any work beyond 

the $2,400 retainer fee because he did not provide an expert report. Id. at 3. Dr. 

Serota was awarded his requested hourly rate in a previous Vaccine Program case. 

See Petrocelli v. Sec’y of Health & Hum. Servs., No. 17-1019V, 2021 WL 

1771786, at *3 (Fed. Cl. Spec. Mstr. Mar. 30, 2021). Although Dr. Serota did not 

ultimately provide an expert opinion, special masters have previously awarded 

expert costs in the absence of an expert report. See, e.g., Spain v. Sec’y of Health 

& Hum. Servs., No. 18-737V, 2020 WL 3619927, at *2 (Fed. Cl. Spec. Mstr. June 

15, 2020); Sykes v. Sec’y of Health & Hum. Servs., No. 17-716V, 2019 WL 

7565467, at *6 (Fed. Cl. Spec. Mstr. Oct. 15, 2019); Gambrill v. Sec’y of Health & 

Hum. Servs., No. 17-105V, 2018 WL 6787629, at *7 (Fed. Cl. Spec. Mstr. Nov. 

29, 2018); Replogle v. Sec’y of Health & Hum. Servs., No. 16-1274V, 2018 WL 

2225081, at *4 (Fed. Cl. Spec. Mstr. Apr. 6, 2018). Additionally, Dr. Serota’s 

review and conclusion that he was unable to provide an opinion supporting vaccine 

causation played a direct role in petitioner’s decision to move for dismissal. See

Gambrill, 2018 WL 6787629, at *7. Accordingly, Dr. Serota is awarded a total of

$2,400.00 in expert costs. 

For the remainder of the costs, petitioner has provided adequate 

documentation supporting all of the requested costs, and all appear reasonable in 

the undersigned’s experience. Petitioner is therefore awarded $3,843.93 in costs.
6

D. Conclusion

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $26,887.93 (representing 

$23,044.00 in attorneys’ fees and $3,843.93 in attorneys’ costs) as a lump sum in 

the form of a check jointly payable to petitioner and petitioner’s counsel, Mr. 

David Carney. In the absence of a motion for review filed pursuant to RCFC

Appendix B, the clerk of the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment 

by filing a joint notice renouncing their right to seek review.