In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

ANNE ABBOTT, *

on behalf of her minor child, R.A. *

* No. 14-907V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: May 14, 2020

*

SECRETARY OF HEALTH * Attorneys’ fees and costs, interim

AND HUMAN SERVICES, * award, expert costs

*

Respondent. *

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

Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;

Jennifer Reynaud, United States Dep’t of Justice, Washington, DC, for respondent.

UNPUBLISHED DECISION AWARDING ATTORNEYS’

COSTS ON AN INTERIM BASIS1

Anne Abbott’s claim that a measles-mumps-rubella (“MMR”) vaccination 

harmed her child, R.A., remains pending while the parties explore an informal 

resolution. The anticipated duration of these discussions justifies an award to 

cover the previously deferred costs of Dr. David Siegler. For his work, Ms. Abbott 

is awarded $28,260.00. 

 

1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and 

Promotion of Electronic Government Services), requires that the Court post this decision on its 

website (http://www.cofc.uscourts.gov/aggregator/sources/7). This posting will make the 

decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have 

14 days to file a motion proposing redaction of medical information or other information 

described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will 

appear in the document posted on the website. 
2

Procedural History

The decision on the first motion for attorneys’ fees and costs on an interim 

basis provided a factual background and a summary of the procedural history up 

through the scheduling of an entitlement hearing on January 19, 2017. First 

Interim Fees Decision, 2016 WL 4151689, issued July 15, 2016. From that date, 

the procedural history is set out in the Second Interim Fees Decision, 2019 WL 

1856435, issued March 19, 2019. The Second Interim Fees Decision deferred the 

costs requested for Dr. Siegler because he had not testified and because an 

adjudication was expected as the parties were submitting briefs. On March 20, 

2019, petitioner moved for reconsideration of the deferral of Dr. Siegler’s costs. 

Subsequently, petitioner moved for reimbursement of Dr. Siegler’s costs on May 

15, 2019.

After reviewing the parties’ entitlement briefs, the undersigned determined 

that a hearing was appropriate. Order, issued Aug. 20, 2019. In November 2019, 

the parties advised that the earliest mutually convenient date for a four-day hearing 

was in October 2020. Order, issued Nov. 21, 2019. On January 6, 2020, the 

undersigned referred the case to Special Master Oler for alternative dispute 

resolution. 

With guidance from Special Master Oler, the parties have agreed to explore 

resolution. Due to the extensive needs of R.A., the settlement efforts may take one 

year. The October 2020 hearing, at the parties’ request, has been cancelled. Order, 

issued Apr. 29, 2020. 

The issue of Dr. Siegler’s requested costs is now ripe for adjudication.

Analysis

Ms. Abbott’s motion raises a series of sequential questions, each of which 

requires an affirmative answer to the previous question. First, whether Ms. Abbott 

has submitted evidence that makes her eligible to receive an award of attorneys’ 

fees and costs? Second, whether, as a matter of discretion, Ms. Abbott should be 

awarded her attorneys’ fees and costs on an interim basis? Third, what is a 

reasonable amount of attorneys’ fees and costs? These questions are addressed 

below. 
3

I. Whether the Petitioner’s Case Satisfies the Requirements for an Award 

of Attorneys’ Fees and Costs

A petitioner who has not received compensation may be awarded 

“compensation to cover petitioner’s reasonable attorneys’ fees and other costs

incurred in any proceeding on such petition if the special master or court 

determines that the petition was brought in good faith and there was a reasonable 

basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). 

The First Interim Fees Decision and the Second Interim Fees Decision each 

found that Ms. Abbott possessed a reasonable basis for the claim asserted in her 

petition. No evidence changes that finding. 

II. Whether the Petitioner Should be Awarded Attorneys’ Fees and Costs 

on an Interim Basis as a Matter of Discretion

After a finding of good faith and reasonable basis, the special master may 

exercise discretion in awarding attorneys’ fees and costs on an interim basis. Rehn 

v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 91 (2016) (citing Cloer v. 

Sec’y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012) (en banc), 

aff’d, 133 S.Ct. 1886 (2012)); Friedman v. Sec’y of Health & Human Servs., 94 

Fed. Cl. 323, 334 (2010) (ruling that special master acted within discretion in 

denying an award of attorneys’ fees and costs on an interim basis). The Federal 

Circuit identified some factors for a special master to consider before awarding 

attorneys’ fees and costs on an interim basis. These include: “protracted 

proceedings,” “costly experts,” and “undue hardship.” Avera, 515 F.3d at 1352. 

This list is illustrative, not exhaustive. 

Here, Ms. Abbott has previously demonstrated that an interim award is 

appropriate. The costs associated with Dr. Siegler were not included with the First 

and Second Interim Fee Decisions because testimony from Dr. Siegler could lend 

additional information about the quality of his work in this case, especially since 

the undersigned has not observed Dr. Siegler testifying previously. Special 

masters sometimes defer paying the cost for an expert until the expert testifies. 

See, e.g., Schultz v. Sec’y of Health & Human Servs., No. 16-539V, 2019 WL 

5098963, at *4-5 (Fed. Cl. Spec. Mstr. Aug. 28, 2019) (denying mot. for 

reconsideration on this point); Jones v. Sec’y of Health & Human Servs., No. 16-

864V, 2019 WL 5098965, at *3 (Fed. Cl. Spec. Mstr. Aug. 26, 2019); Nifakos v. 

Sec’y of Health & Human Servs., No. 14-236V, 2018 WL 7286553, at *5 (Fed. Cl. 

Spec. Mstr. Dec. 12, 2018) (deferring award when expert’s invoice is not detailed); 
4

Al-Uffi v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at 

*14 (Fed. Cl. Spec. Mstr. Sept. 30, 2015) (noting that interim expert costs are more 

commonly awarded after a hearing and deferring request for Dr. Siegler). 

However, the parties’ settlement efforts change the balance. It is 

foreseeable, although not guaranteed, that the parties will agree to resolve the case 

informally. If so, a hearing will not be held, and the undersigned would resolve the 

reasonableness of Dr. Siegler’s request as part of an application for final fees 

without the benefit of hearing his testimony. Alternatively, if settlement efforts do 

not reach fruition, then Dr. Siegler will remain without payment for probably one 

year until a hearing can be rescheduled. To avoid this situation, payment for Dr. 

Siegler is appropriate now. 

III. What is a Reasonable Amount of Dr. Siegler’s Fee

The final issue is quantifying a reasonable amount for Dr. Siegler’s costs, 

who has requested $37,900.00. Reasonable expert fees are determined using the 

lodestar method in which a reasonable hourly rate is multiplied by a reasonable 

number of hours. See Chevalier v. Sec’y of Health & Human Servs., No. 15-

001V, 2017 WL 490426, at *3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017). 

Dr. Siegler began working on this case on December 7, 2014. His initial 

proposed hourly rate was $450 per hour. He maintained that proposed rate through 

June 30, 2015. For work performed on or after July 1, 2015, Dr. Siegler proposed 

$500 per hour. See Pet’r’s Second Fee Appl’n, exhibit A at 41 (Dr. Siegler’s first 

invoice), 50 (Dr. Siegler’s second invoice). While petitioner had highlighted Dr. 

Siegler’s experience in her first attorneys’ fees and costs motion, petitioner did not 

provide any cases with a reasoned basis to establish Dr. Siegler’s hourly rate. 

Pet’r’s First Fee Appl’n, filed July 1, 2015, exhibit A at 31-32. In response to the 

first motion on attorneys’ fees and costs, the Secretary made specific objections to 

Dr. Siegler’s hourly rate and proposed an hourly rate of $350. Resp’t’s Resp. First 

Fee Appl’n, filed Aug. 10, 2015, at 18-20. In the second interim attorneys’ fees 

and costs motion, petitioner again did not cite any cases to support Dr. Siegler’s 

hourly rate in the second motion. 

In a motion for reconsideration of the Second Interim Fees Decision, 

petitioner for the first time cited some cases to support Dr. Siegler’s hourly rate. 

Pet’r’s Mot. Reconsideration, filed Mar. 20, 2019. In Ahlum, petitioner pointed

out that a special master heard Dr. Siegler testify and stated that Dr. Siegler is 

familiar with how the MMR vaccine triggers an immune reaction. Id. (citing 
5

Ahlum v. Sec’y of Health & Human Servs., No. 12-763V, 2018 WL 4323623, at 

*26 (Fed. Cl. Spec. Mstr. Aug. 16, 2018)). Dr. Siegler’s testimony in Ahlum

supported one of three vaccines claims in that case (two on-Table and one offTable) but the petitioners in Ahlum were not awarded compensation based on the 

claim supported by Dr. Siegler. Ahlum, 2018 WL 4323623, at *44. While the 

petitioners in Ahlum were summarily awarded attorneys’ fees and costs in two 

interim decisions, neither decision contained a discussion of Dr. Siegler’s hourly 

rate. See Ahlum v. Sec'y of Health & Human Servs., No. 12-763V, 2016 WL 

3360423, at *1 (Fed. Cl. Spec. Mstr. May 26, 2016); Ahlum v. Sec'y of Health & 

Human Servs., No. 12-763V, 2014 WL 4100938, at *1 (Fed. Cl. Spec. Mstr. July 

31, 2014). The special master in Al-Uffi v. Sec’y of Health & Human Servs., No. 

13-956V (Fed. Cl. Spec. Mstr. Oct. 17, 2017), awarded Dr. Siegler fees without a 

discussion of his hourly rate, but a few months later in Zumwalt the same special 

master determined that Dr. Siegler’s hourly rate for 2017 and 2018 should be $400. 

Zumwalt v. Sec'y of Health & Human Servs., No. 16-994V, 2018 WL 6975184, at 

*5 (Fed. Cl. Spec. Mstr. Nov. 27, 2018). Petitioner cited other cases that did not 

discuss Dr. Siegler’s hourly rate. Pet’r’s Mot. Reconsideration at 3-4; see Silverio 

v. Sec’y of Health & Human Servs., No. 15-235V, 2018 WL 3432889 (Fed. Cl. 

Spec. Mstr. June 6, 2018); Rich v. Sec’y of Health & Human Servs., No. 12-742V,

2016 WL 3996334 (Fed. Cl. Spec. Mstr. June 30, 2016), aff’d, 129 Fed. Cl. 642 

(2016); Ramirez v. Sec’y of Health & Human Servs., No. 16-1180V, 2019 WL 

948385 (Fed. Cl. Spec. Mstr. Jan. 30, 2019). Petitioner stated that the cases she 

had cited were non-exhaustive. Pet’r’s Mot. Reconsideration at 4.

In her most recent motion for Dr. Siegler’s expert costs, petitioner provided 

three additional cases not cited in her motion for reconsideration. Pet’r’s Mot. for 

Expert Costs, filed May 15, 2019. The first additional case, Bales, awarded costs 

for Dr. Siegler but, again, did not contain a discussion of Dr. Siegler’s rates. Bales 

v. Sec’y of Health & Human Servs., No. 15-882V, 2017 WL 2243094 (Fed. Cl. 

Spec. Mstr. Apr. 26, 2017). In the second additional case, Boyd, the parties 

stipulated to award petitioner compensation and then also stipulated to attorneys’ 

fees and costs. Boyd v. Sec'y of Health & Human Servs., No. 13-634V, 2015 WL 

1161658, at *1 (Fed. Cl. Spec. Mstr. Feb. 13, 2015). In the last additional case, 

Van Alst, the petitioner was awarded all attorneys’ fees and costs on the basis that 

respondent did not object to the amounts requested. Van Alst v. Sec’y of Health & 

Human Servs., No. 15-1180V, 2018 WL 655043 (Fed. Cl. Spec. Mstr. Jan. 4, 
6

2018).

2

 A Westlaw search for Dr. Siegler did not reveal any other vaccine cases 

that he participated in.

In reviewing these cases cited by petitioner, the undersigned notes that only 

one case contained a discussion of Dr. Siegler’s hourly rate, Zumwalt, and that 

case set his hourly rate at $400/hour. 2018 WL 6975184, at *5. Considering that 

one discussion of Dr. Siegler’s hourly rate, the lack of any other substantive 

discussions of Dr. Siegler’s hourly rate, and the fact that the undersigned has not 

yet observed Dr. Siegler testify, the undersigned finds that $400/hour is a 

reasonable hourly rate for Dr. Siegler. 

With respect to the number of hours, Dr. Siegler should provide additional 

detail. For example, on December 19, 2015, Dr. Siegler states that he spent 2.5 

hours when he “reviewed literature.” However, the articles that Dr. Siegler 

reviewed are not specified and without some information, assessing the 

reasonableness of his activity is difficult. A separate issue is that Dr. Siegler has 

charged his full rate for performing tasks, such as collecting references, that could 

be delegated to a person charging a lower hourly rate. For these reasons, an 

additional 10 percent is removed from Dr. Siegler’s invoice. 

Accordingly, a reasonable amount of compensation for Dr. Siegler’s work is 

$28,260.00. 

Conclusion

The Vaccine Act permits an award of reasonable attorneys’ costs. § 15(e). 

This shall be paid as follows:

A lump sum payment of $28,260.00 in the form of a check made payable 

jointly to petitioner and petitioner’s attorney, Andrew D. Downing, of 

Van Cott & Talamante, PLLC, for attorneys’ costs on an interim basis 

available under 42 U.S.C. § 300aa-15(e).

 

2 While the fees decision in Van Alst was not challenged, other cases using the same 

reasoning were challenged and reversed on review. See McIntosh v. Sec’y of Health & Human 

Servs., 139 Fed. Cl. 238 (2018) (holding that special masters must make an independent 

evaluation of the reasonableness of attorneys’ fees and costs even without any objections from 

respondent).
7

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. 3 

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

 

3 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgement by each 

party filing a notice renouncing the right to seek review by a United States Court of Federal 

Claims judge.