In the United States Court of Federal Claims

No. 10-485V

(Filed under seal October 31, 2017)

(Reissued November 16, 2017)†

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

*

SALLYANN ABBOTT, * National Vaccine Injury

* Compensation Program; attorneys’

Petitioner, * fees, 42 U.S.C. § 300aa-15(e)(1);

* percentage reduction of hours;

v. * baseless litigation position; vague

* billing entries.

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Ronald C. Homer & Christina Ciampolillo, Conway Homer P.C., Boston, MA,

for the petitioner.

Althea Walker Davis, Senior Trial Counsel, Torts Branch, Civil Division, 

Department of Justice, with whom were Chad A. Readler, Acting Assistant Attorney 

General, C. Salvatore D’Alessio, Acting Director, Catharine E. Reeves, Deputy 

Director, and Alexis B. Babcock, Assistant Director, all of Washington, D.C., for the 

respondent.

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Petitioner Sallyann Abbott has moved for review, pursuant to 42 U.S.C. 

§ 300aa-12(e), of a special master’s decision denying a portion of the attorneys’ fees 

and costs for which she had applied. She contends that the Special Master acted

arbitrarily in making percentage reductions to the hours billed by her two principal 

attorneys. But after reviewing the briefs of the parties and hearing oral argument 

 †

 Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal

Claims, this opinion was initially filed under seal, to allow the parties to request 

redactions. None having been requested, the opinion is now reissued for publication 

with some minor, non-substantive corrections. 
-2-

on this matter, the Court concludes that the Special Master reasonably acted within 

his discretion in reducing the attorneys’ fees award. For the reasons that follow, 

petitioner’s motion for review is DENIED and the Special Master’s decision is 

SUSTAINED.

I. BACKGROUND

In 2007, Mrs. Abbott received a human papillomavirus vaccine, which she 

contends caused her to suffer from neurological problems. Abbott v. Sec’y of Health 

& Human Servs., No. 10-485V, 2017 WL 2226614, at *1 (Fed. Cl. Apr. 26, 2017). 

After several years of litigation, Mrs. Abbott received a settlement of $80,000 and 

filed a motion for attorneys’ fees and costs, requesting an award of $193,955.15. Id. 

at *1, *5. Special Master Christian J. Moran made several reductions in fees based 

on the vagueness of billing records, the superfluity of tasks, the baselessness of a 

litigation position, and because tasks billed to paralegals were clerical or secretarial 

in nature.1 Id. at *6–8. Petitioner ultimately was awarded $150,499.04 in fees and 

costs. Id. at *11. 

The bulk of the fees reduction was due to the disallowance of a percentage of

the hours billed by two attorneys.2 The Special Master made a 30% reduction to the 

hours of one attorney, Christina Ciampolillo, and a 10% reduction to the hours of a 

second attorney, Sylvia Chin-Caplan.3 Id. at *6–8. The “primary reason” given for 

the Ciampolillo reduction was that the Special Master found that “her billing 

records are too vague to demonstrate the reasonableness of her work.” Abbott, 2017 

WL 2226614, at *8. The Special Master explained that he “conducted a line-by-line 

analysis of all the entries documented in the timesheets” submitted by petitioner’s 

counsel. Id. at *6. He found “Ms. Ciampolillo’s descriptions of her work” to be 

 1 Petitioner’s request of $36,228.79 in attorneys’ costs was reduced to $25,421.29, 

as the Special Master made adjustments to the hourly rates of two expert

witnesses. Abbott, 2017 WL 2226614, at *8–11. Additionally, Ms. Abbott was 

awarded $400.16 for her personally incurred costs. Id. at *11. The costs portion of 

the award has not been challenged.

2 The reductions made to work billed by other attorneys or paralegals, see Abbott, 

2017 WL 2226614, at *6, *8, are not challenged in petitioner’s motion for review.

3 These attorneys were the ones primarily responsible for representing petitioner, 

as Ms. Ciampolillo and Ms. Chin-Caplan respectively represented 49.7% and 23.5% 

of the total fees requested by petitioner. See Pet’r’s Appl. for Attorneys’ Fees and 

Costs at 88, ECF No. 202.
-3-

“consistently nonspecific,” providing examples “such as ‘DRAFT email to expert,’ or 

‘PHONE CALL with expert.’” Id. at *7. He faulted her for not providing the name 

of the particular expert, of several, with whom she had communicated, or “some 

information about the topic or purpose of the communication.” Id.

The “secondary reason” for the Ciampolillo reduction was due to her efforts 

resisting a fact hearing the Special Master held to determine whether petitioner 

suffered a seizure at her pediatrician’s office after receiving the vaccination. Abbott, 

2017 WL 2226614, at *4, *7–8. Although two of petitioner’s experts assumed that 

such a seizure occurred, petitioner’s initial plan was not to have her mother or 

herself testify as to the event, but to rely on medical records “created much later” 

that contained their recounts of petitioner’s medical history. Id. at *3.4 The Special 

Master determined that testimony from percipient witnesses would be useful to 

determine how Mrs. Abbott reacted in her pediatrician’s office after the vaccination, 

but petitioner opposed the introduction of these witnesses and refused to authorize 

communications to facilitate their testimony. Id. at *4.5 The Special Master 

determined that this position was unreasonable and “without any basis,” and 

therefore did not allow petitioner’s counsel to be compensated for these activities. 

Id. at *7.

The reductions to Ms. Chin-Caplan’s billed hours were made because the 

Special Master found “many entries” to be “vague.” Id. at *6. Several merely read 

“Review file,” and entries for meetings “do not identify the purpose or the topic of 

the meeting.” Id. The Special Master concluded that “[t]he vagueness of these 

entries does not provide sufficient information to establish the reasonableness of the 

activity,” and on that basis reduced the hours billed by ten percent. Id. 

Petitioner has timely moved for review of the Special Master’s decision, 

arguing that a portion of the reductions based on vagueness and baselessness were 

arbitrary and capricious and resulted from an abuse of discretion. See Pet’r’s Mem. 

Supp. Mot. for Review at 12–33, ECF No. 213 (Pet’r’s Br.). The Secretary of Health 

 4 Initially, the allegation of this seizure was not based on witness testimony, but on 

the affidavit of petitioner’s father, who stated that his wife said the seizure 

occurred. Abbott, 2017 WL 2226614, at *1. After the Special Master proposed a 

hearing on the subject, see Order (Apr. 11, 2013) at 2–3, ECF No. 109, petitioner’s 

mother submitted her own affidavit, see Pet’r’s Ex. 95, Aff. of Josephine 

Jocksberger, ECF No. 121-1.

5

 This proceeding resulted in the issuance of a Ruling Finding Facts. Jocksberger v. 

Sec’y of Health & Human Servs., No. 10-485V, 2015 WL 6291671 (Feb. 10, 2015).
-4-

and Human Services has responded, arguing that the Special Master appropriately 

determined the amount of attorneys’ fees awardable to petitioner. See Resp’t’s 

Mem. Resp. to Mot. for Review at 6–13, ECF No. 215 (Resp’t’s Br.). On October 4, 

2017, the Court held oral argument on the motion.

II. DISCUSSION

A. Legal Standards

Under the National Vaccine Injury Compensation Program, 42 U.S.C. 

§§ 300aa-10 to 300aa-34 (“Vaccine Act”), whenever a petitioner is awarded 

compensation the special master “shall also award . . . an amount to cover . . . 

reasonable attorneys’ fees, and . . . other costs.” 42 U.S.C. § 300aa-15(e)(1). The 

Vaccine Act provides for review of a special master's decision, wherein the court 

may “set aside any findings of fact or conclusion of law of the special master found 

to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law and issue its own findings of fact and conclusions of law.” 42 U.S.C. § 

300aa-12(e)(2)(B).

The Federal Circuit has held that awards of attorneys’ fees are to be reviewed 

under the abuse-of-discretion standard. Hall v. Sec’y of Health & Human Servs., 

640 F.3d 1351, 1356 (Fed. Cir. 2011) (citing Pierce v. Underwood, 487 U.S. 552, 

558–63 (1988); Saxton ex rel. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 

1517, 1520 (Fed. Cir. 1993)). Under this standard, “only if [a tribunal] erred in 

interpreting the law or exercised its judgment on clearly erroneous findings of 

material fact, or its decision represents an irrational judgment in weighing the 

relevant factors can its decision be overturned.” Chiu v. United States, 948 F.2d 

711, 713 (Fed. Cir. 1991) (reviewing a non-vaccine decision to award attorneys’ fees 

under the Equal Access to Justice Act). In general, “reversible error is ‘extremely 

difficult to demonstrate’ if the special master ‘has considered the relevant evidence 

of record, drawn plausible inferences and articulated a rational basis for the 

decision.’” Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.

2000) (quoting Hines ex. Rel. Sevier v. Sec’y of Health & Human Servs., 940 F.2d 

1518, 1528 (Fed. Cir. 1991)). 

B. Analysis

In calculating an award of reasonable attorneys’ fees, the Special Master 

reduced the hours billed by two of petitioner’s attorneys. One, Ms. Ciampolillo, 

billed 355.8 hours for a total fee of $78,222.60. See Pet’r’s Appl. for Attorneys’ Fees 

and Costs at 88. This amount was reduced by 30%, down to $54,755.82. See Abbott,

2017 WL 2226614, at *8. The other, Ms. Chin-Caplan, billed a total of 107.8 hours 
-5-

for a total fee of $36,924.80. See Pet’r’s Appl. at 88. This request was reduced by 

10%, down to $33,232.32. See Abbott, 2017 WL 2226614, at *6. 

Petitioner raises two objections to the Special Master’s decision. First, she 

argues that her attorneys acted appropriately in opposing a hearing that excluded 

medical expert testimony, and that the Special Master arbitrarily penalized them

for zealously advancing her interests. Pet’r’s Br. at 12–18. Second, she argues that 

it was arbitrary for the Special Master to reduce billed hours based on the 

vagueness of billing entries, contending that the entries were sufficiently detailed; 

that the Special Master did not adequately quantify these reductions; and that 

providing more detail concerning the subject matter of tasks could implicate the 

attorney-client privilege or the work-product doctrine. Id. at 18–33.

1. Fact Witness Testimony

In objecting to the reduction for hours spent opposing the hearing concerning 

whether she suffered a seizure at her pediatrician’s office, petitioner offers a 

number of justifications for her attorneys’ efforts. Petitioner argues that she did not 

want a hearing that did not also include medical expert testimony. Pet’r’s Br. at 13. 

She explains that she did not wish to call the employees of that office as her 

witnesses because she suspected that their recollections would differ from those of 

her own fact witnesses and she needed therefore to cross-examine them. Id. at 13–

14. Despite the narrow topic of the proceeding, petitioner did not want to authorize 

these employees of one of her health providers to speak with the Secretary’s 

lawyers, because she did not want the latter to have “unfettered access” to the 

former. Id. at 13. 

Petitioner further maintains that the Special Master improperly penalized 

her counsel for zealous representation, when the Massachusetts Rules of 

Professional Conduct require such behavior. Id. at 15 (citing MASS. R. PROF. C. 

Preamble & Rule 1.3). And she argues that the Special Master interfered with her 

attorneys’ ability to pursue their own legal strategy. Id. at 16. This, she contends, 

violates the “full and fair opportunity to present its case” guaranteed each party 

under Vaccine Rule 3(b)(2), and the “principles of fundamental fairness” that are 

required by Vaccine Rule 8(b)(1). Id. 

The Court is not persuaded that the Special Master abused his discretion in 

reducing petitioner’s fees by the hours spent opposing the testimony of the

employees of petitioner’s pediatrician’s office. As the Secretary has pointed out, see 

Resp’t’s Br. at 7, under Vaccine Rule 8(c)(1) the Special Master had the discretion to 

“conduct an evidentiary hearing to provide for the questioning of witnesses,” and 
-6-

the “fundamental fairness” concept of Vaccine Rule 8(b)(1) “requires a search for the 

truth,” Boley v. Sec’y of Health & Human Servs., 82 Fed. Cl. 407, 413 (2008) 

(citations omitted). The Special Master explained that “the foundational predicate” 

for the opinions of petitioner’s critical medical experts was “that she suffered a 

seizure after vaccination.” Abbott, 2017 WL 2226614, at *3. Petitioners’ counsel 

may have zealously sought to limit the evidence of this seizure to the intake 

histories she recounted to medical providers much after the fact, but such selfreported histories can have low probative value. See Langland v. Sec’y of Health & 

Human Servs., 109 Fed. Cl. 421, 439–440 (2013) (noting the evidentiary problems of 

patient histories related to subsequent medical professionals by patients or their 

parents). The Special Master was, essentially, telegraphing to petitioner that he 

would have trouble finding the existence of this necessary predicate on the basis of 

such evidence, or on the affidavit from petitioner’s father stating that his wife had 

told him that petitioner suffered a seizure. See Abbott, 2017 WL 2226614, at *1.

Under these circumstances, it was entirely appropriate for the Special Master

to seek testimony from office staff present the day of the vaccination, in order to 

“search for the truth.” Boley, 82 Fed. Cl. at 413. Special masters may use their 

prior experience in making fees determinations. See Saxton, 3 F.3d at 1521. And 

as the person who was “intimately familiar with all the facts before” him, Hall, 640 

F.3d at 1356, the Special Master was in the best position to determine whether 

petitioner’s counsel’s efforts to resist the fact hearing were baseless and not 

reasonably compensable. Accordingly, the finding that the attorneys’ fee award 

should not cover these hours cannot be set aside as an abuse of discretion. 

2. Vague Billing Entries

The “primary reason” for the reduction in compensable hours billed by Ms. 

Ciampolillo, and the sole reason for the reduction concerning Ms. Chin-Caplan, was 

that the Special Master found many of their time entries to be too vague. Abbott, 

2017 WL 2226614, at *6–8. Petitioner’s chief argument against these reductions is 

that her counsel has submitted similar entries many times in the past without any 

reductions being made. Pet’r’s Br. at 18–20. Petitioner’s counsel’s firm “has 

practiced exclusively in the Vaccine Program for decades and represented 

thousands of petitioners. Attorneys’ fees at [petitioner’s counsel’s firm] have never 

been reduced due to vague billing entries.” Id. at 18. Petitioner argues that 

because no change has been made to the billing practices, the Special Master’s 

sudden decision that her entries are “too vague” is arbitrary and capricious and 

should be reversed. Id. 
-7-

Petitioner relies on Guerrero v. Sec’y of Health and Human Servs., where our

court found that a special master had inadequately explained the reasons for his 

deductions, and required him to explain how he calculated his percentage reduction 

in attorney hours. Pet’r’s Br. at 20–21 (citing Guerrero, 120 Fed. Cl. 474, 480–481 

(Fed. Cl. 2015)). In that case, our court recognized that “decisions employing 

percentage reductions [should receive] ‘heightened scrutiny,’” adding that there 

must be a “‘concise but clear’ explanation for reducing a fee award so that an 

appellate tribunal is able to assess whether there has been an abuse of discretion.” 

Guerrero at 481 (quoting Int’l Rectifier Corp. v. Sumsung Elecs. Co., 424 F.3d 1235, 

1239 (Fed. Cir. 2005)). The problem there was that “[t]he Special Master did not 

identify any of the referenced ‘multitude of tasks’ or ‘small incremental charges,’

cite any instance of overbilling, or identify a time period when billing levels were 

inappropriate.” Id. But in contrast, here the Special Master has identified a 

number of specific instances of vague entries, including specific citations to 

petitioner’s fee application. See Abbott, 2017 WL 2226614, at *6–7. Furthermore, 

unlike in Guerrero, here the Special Master made a line-by-line analysis of the 

timesheets submitted by petitioner. See id. at *6. It would be unreasonable, 

however, to expect the Special Master to explain how each individual entry affected 

his final calculation, as in conducting fee determinations tribunals “need not, and 

indeed should not, become green-eyeshade accountants.” Fox, 563 U.S. at 838.6

Petitioner further argues that the Special Master’s decision to reduce the fee 

award based on vague billing entries was arbitrary and capricious because the 

billing entries in question fully complied with the Guidelines for Practice under the 

National Vaccine Injury Compensation Program (NVICP). Pet’r’s Br. at 22 (quoting 

Guidelines for Practice under the NVICP § X, Chapter 1(A) (Rev. Apr. 2016)). 

Petitioner is mistaken to understand this language to be setting any sort of 

standard for specificity in billing entries, however. These guidelines merely explain

the structure of attorney payment under the Vaccine Act --- they do not set 

minimum standards for fee awards.

 6 With the burden of establishing the reasonableness of an attorneys’ fee request 

falling on petitioner’s attorneys, if anyone should assume the role of “greeneyeshade accountants” it is they. But petitioner has failed to present in her motion 

for review her own estimate of the percentage of billing entries of Ms. Ciampolillo or 

Ms. Chin-Caplin which are of the sort the Special Master found impermissibly 

vague. 
-8-

Much of Mrs. Abbott’s concern with the Special Master’s requirement of more 

specificity in billing records is that providing the topic of communications between 

attorneys and their clients or their expert witnesses could violate attorney-client 

privilege or divulge information protected by the work-product doctrine. Pet’r’s Br. 

at 24–30. But in the context of a fee application under the Equal Access to Justice 

Act, the Federal Circuit held that the disclosure of general subject matter for billing 

entries could be done in a manner that did not violate the attorney-client privilege. 

Avgoustis v. Shinseki, 639 F.3d 1340, 1343–46 (Fed. Cir. 2011)). That case involved 

a reduction in compensable attorneys’ hours due to billing entries strikingly similar 

to those found problematic by the Special Master, such as “‘review[ed] client 

correspondence’ or ‘draft[ed] client correspondence.’” Id. at 1341. Petitioner has 

explained that the billing entry software used by her counsel maintains two sets of 

records, one for public consumption and the other containing internal 

communications regarding the entries. Pet’r’s Br. at 24 n.23, 29 n.26. In future fee 

applications, it should not be difficult to supplement any vague entries with 

additional information from the latter, appropriately redacted to protect workproduct and preserve privileged information.

Petitioner also argues that the missing information from billing entries found 

vague by the Special Master could be pieced together by considering other billing 

entries or other information pertaining to the case. See Pet’r’s Br. at 31–33. But 

again, this would impose upon the Special Master the “green-eyeshade accountant” 

role from which he has been spared by the Supreme Court. See Fox, 563 U.S. at 

838.

The Court finds that the Special Master did not abuse his discretion in 

making percentage reductions to the hours billed by two of Mrs. Abbott’s attorneys.

He sufficiently explained that these reductions were the result of his line-by-line 

analysis of the billing records, and were based on records he found to be vague. 

Even if petitioner’s attorneys had been compensated based on similar records in the 

past, the burden falls on them to justify their fee application, and additional 

information can be relayed without divulging privileged information. 

III. CONCLUSION

For the foregoing reasons, petitioner’s motion for review is hereby DENIED

and the decision under review is SUSTAINED. 
-9-

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Judge