In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

KRISTEN DE NUTO *

(aka Kristen De Nuto Sudacki) and, *

WILLIS J. DE NUTO, JR. * No. 17-104V

as Substituted Administrators * Special Master Christian J. Moran

of the Estate of ANDREA DE NUTO *

(aka Andrea DeNuto), Deceased, * Filed: June 12, 2019

*

Petitioners, *

*

v. *

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

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

Kate G. Westad, SiebenCarey, Minneapolis, MN, for Petitioner;

Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for 

Respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS1

 

1 The undersigned intends to post this Ruling on the United States Court of 

Federal Claims' website. This means the ruling will be available to anyone with 

access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 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. Because this unpublished 

ruling 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 
2

On March 4, 2019, petitioners Kristen De Nuto and Willis J. De Nuto, Jr., as 

substituted administrators of the estate of Andrea De Nuto, moved for final 

attorneys’ fees and costs. They are awarded $47,045.45.

* * *

On January 23, 2017, petitioners filed for compensation under the Nation 

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

Petitioners alleged that the influenza (“flu”) vaccine Ms. De Nuto received on 

October 18, 2014, which is contained in the Vaccine Injury Table, 42 C.F.R. § 

100.3(a), caused her to suffer Guillain-Barré syndrome and/or transverse myelitis, 

which ultimately led to her death. The petition further alleged that Ms. De Nuto

suffered the residual effects of this injury for more than six months. The parties 

submitted a joint stipulation that was incorporated by a decision awarding 

petitioners compensation in the amount of $345,000.00. Decision, issued August 

22, 2018.

On March 4, 2019, petitioners filed a motion for final attorneys’ fees and 

costs (“Fees App.”). Petitioner requests attorneys’ fees of $45,012.50 and 

attorneys’ costs of $8,024.45 for a total request of $53,036.95. Fees App. at 1. 

Pursuant to General Order No. 9, petitioners warrant they have not personally 

incurred any costs in pursuit of this litigation. Id.

On March 18, 2019, respondent filed a response to petitioner’s motion.

Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 

contemplates any role for respondent in the resolution of a request by a petitioner 

for an award of attorneys’ fees and costs.” Response 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 special master exercise his discretion” when determining a reasonable award 

for attorneys’ fees and costs. Id. at 3. Petitioners did not file a reply thereafter.

* * *

 

accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) 

(Federal Management and Promotion of Electronic Government Services).
3

Because petitioners received compensation, they are entitled to an award of 

reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question 

at bar is whether the requested amount is reasonable. 

The Vaccine Act permits an award of reasonable attorney’s 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 & Human 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 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. 

In light of the Secretary’s lack of objection, the undersigned has reviewed 

the fee application for its reasonableness. See McIntosh v. Secʼy of Health & 

Human Servs., 139 Fed. Cl. 238 (2018)

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. 

There is, however, an exception (the so-called Davis County exception) to this 

general rule when the bulk of the work is done outside the District of Columbia 

and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid 

Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. 

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work 

was done outside of the District of Columbia. 

Petitioners request that their counsel, Ms. Kate Westad, be compensated at 

$350.00 per hour for all work performed on this case between 2016-2019. 

Petitioners also request that paralegals be compensated at $125.00 per hour and 

that the “litigation paralegal” be compensated at $160.00 per hour. The 

undersigned has previously conducted a thorough analysis of Ms. Westad’s rates, 

finding that a reasonable rate of compensation for Ms. Westad’s work is $325.00 

per hour for work performed in 2016 and $350.00 per hour thereafter. See Dahl v. 

Sec’y of Health & Human Servs., No. 13-98V, 2018 WL 6818741, at *4-6 (Fed. 

Cl. Spec. Mstr. Nov. 30, 2018); Choiniere v. Sec’y of Health & Human Servs., No. 
4

16-1286V, 2019 WL 518519, at *2 (Fed. Cl. Spec. Mstr. Jan. 11, 2019). In the 

instant case, the billing records reflect that Ms. Westad billed 8.5 hours in 2016 at 

$350.00 per hour. The undersigned will therefore reduce the final award of fees by 

$212.50 to reflect the reduction to $325.00 per hour.

Also requiring reduction is the rate for the “litigation paralegal” of $160.00 

per hour because this rate exceeds the rate at which the Vaccine Program 

compensates paralegal work. See OSM Attorneys’ Forum Hourly Rate Fee 

Schedule, 2015-2016, 2017, 2018, 2019.2In rare instances, paralegals who possess 

credentials above and beyond an average paralegal have been compensated in 

excess of the maximum rate prescribed by the Fee Schedule. See, e.g. Cagle v. 

Sec’y of Health & Human Servs., No. 16-693V, 2019 WL 1894410, at *2 (Fed. Cl. 

Spec. Mstr. Mar. 28, 2019) (compensating a paralegal with experience as a 

registered nurse at $165.00 per hour). However, in this case petitioners have not 

provided any information explaining the credentials of the litigation paralegal and 

why that individual should be compensated more than other paralegals. 

Accordingly, the undersigned will compensate the work done by the litigation

paralegal at $125.00 per hour, resulting in a reduction of $210.00.

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 v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). 

The Secretary also did not directly challenge any of the requested hours as 

unreasonable. 

The undersigned has reviewed the billing records and finds the number of 

hours billed (162.4) to require some adjustment. The main issue is one of general 

overbilling. For example, Ms. Westad and her paralegals appeared to view 0.2 

hours as the minimum amount of time to conduct any task, whether than be 

sending an e-mail, placing a phone call, or reviewing a routine filing (e.g., entry on 

8/18/17 for 0.2 hours on “email to client regarding status”, entry on 3/23/18 for 0.3 

hours for “Receive and review Scheduling Order; calendar due dates; update 

pleadings index and scheduling order books”, entries on 4/16/18 and 4/23/18 for 

0.2 hours each on “Follow-up with DOJ”). The undersigned has previously 

reduced an award of final fees when attorneys and paralegals overbill in this 

 

2 Office of Special Masters (OSM) Attorneys’ Forum Hourly Rate Fee 

Schedules, accessed at http://www.cofc.uscourts.gov/node/2914.
5

manner. See Wood v. Sec’y of Health & Human Servs., No. 15-1568V, 2019 WL 

518521, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 11, 2019) (reducing final award of fees 

when attorney and paralegal “routinely considered 0.2 hours to be the minimum 

quantity of time for communications). While the undersigned is cognizant that 

some communications take longer than others, it is highly unlikely that all

communications in this case took a minimum of twelve minutes to complete, let 

alone review of routine scheduling orders and calendaring deadlines.

Additionally, paralegals billed time on tasks which are typically considered 

administrative/clerical, such as printing, scanning, mailing, and faxing documents 

(e.g., entries on 5/3/16, 10/19/16, 10/25/16, 1/27/17, 2/14/17, 2/27/17).3It is well 

established that billing for clerical and other secretarial work is not permitted in the 

Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (denied 

an award of fees for time billed by a secretary and found that “[these] services ... 

should be considered as normal overhead office costs included within the 

attorneys’ fees rates”).

For all these reasons, the undersigned finds a total reduction of 10% to the 

final award of attorneys’ fees to be reasonable. This results in a total reduction of 

$4,459.00.

4 Petitioners are thus awarded final attorneys’ fees of $40,131.00.

C. Costs Incurred

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

reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. 

Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of 

$8,024.45 in costs, comprising of acquiring medical records, postage, and the 

expert work of Dr. Justin Willer in reviewing medical records and preparing an 

expert report. In this case, Dr. Willer performed 14.8 hours of work and billed at 

$500.00 per hour. 

The undersigned previously considered Dr. Willer’s work in Dahl. 2018 WL 

6818741, at *8. In Dahl, Dr. Willer also requested $500.00 per hour for his work 

and billed a total of 30.51 hours. In reducing the amount for Dr. Willer, the 

undersigned noted that he lacked experience in the Vaccine Program and presented 

billing invoices with insufficient detail to properly ascertain whether the work he 

 

3 These are merely examples and are not intended to be an exhaustive list of 

all instances of administrative tasks.

4

($45,012.50 fees requested - $422.50 rate reduction) * 0.1 = $4,459.00
6

performed was reasonable. The undersigned therefore awarded $12,000.00 for Dr. 

Willer’s work, effectively compensating him at $393.31 per hour.5

Since that time, Dr. Willer has acquired more vaccine program experience, 

performing expert work six cases by his count. Fees App. Ex. 3 at 3. Additionally,

his billing invoices provide far more clarity than before, accurately describing the 

time spent examining each medical record and preparing his expert report. Fees 

App. Ex. 2 at 3, 5. Still, as the undersigned noted in Dahl, a rate of $500.00 per 

hour is typically reserved for experts who have a great deal of experience in the 

Vaccine Program (several of the highest paid experts have authored reports in 

dozens of cases while also offering live testimony in entitlement hearings). While 

there is no doubt that Dr. Willer’s increased experience and continuing 

involvement in Vaccine Program litigation should afford him a higher rate of 

compensation, six cases simply are not enough to justify payment commensurate to 

the very highest paid experts. In recognition of Dr. Willer’s growing body of work 

in the program, the undersigned shall compensate his work in this matter at 

$425.00 per hour. But see Moran v. Sec’y of Health & Human Servs., No. 16-

1224V, slip op. at 4-5 (Fed. Cl. Spec. Mstr. Jun. 3, 2019) (awarding Dr. Willer 

$500.00 per hour).6 Application of this rate results in a reduction of $1,110.00.

The remainder of the costs are typical of Vaccine Program litigation and 

petitioners have provided adequate documentation to support them. Respondent 

has not identified any of the costs as objectionable, and the undersigned finds them 

to be reasonable. Accordingly, petitioners are entitled to a final award of costs in 

the amount of $6,914.45.

 

5 The undersigned did not assign a specific hourly rate to Dr. Willer’s work 

in Dahl, but the submitted billing invoices indicate he performed 30.51 hours of 

work. $12,000.00 awarded / 30.51 hours = $393.31 per hour.

6 Moran relied upon Bakken v. Sec’y of Health & Human Servs. for support 

of Dr. Willer’s requested rate of $500.00 per hour. Bakken v. Sec’y of Health & 

Human Servs., No. 16-1283V, 2018 WL 4140890, at *1-2 (Fed. Cl. Spec. Mstr. 

Apr. 24, 2018) However, the undersigned notes that Bakken does not contain a 

reasoned analysis of Dr. Willer’s rate. While Moran does contain a reasoned 

discussion, based upon the undersigned’s previous decision in Dahl and analysis of 

the work performed in the instant case, the undersigned finds $425.00 per hour to 

be a more reasonable rate.
7

E. 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 $47,045.45 (representing 

$40,131.00 in attorneys’ fees and $6,914.45 in attorneys’ costs) as a lump sum in 

the form of a check jointly payable to petitioners and the Larkin Hoffman Law 

Firm.

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.7

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

 

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

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