In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 16-333V 

Filed: July 5, 2017

UNPUBLISHED

SHELLY M. PINCKARD, 

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU); 

Attorneys’ Fees and Costs

Daniel Mark Soloway, Soloway Law Firm, Pensacola, FL, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

 

On March 15, 2016, petitioner filed a petition for compensation under the 

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the 

“Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury following her 

September 19, 2013 influenza vaccination. On February 15, 2017, the undersigned

issued a decision awarding compensation to petitioner based on respondent’s proffer. 

(ECF No. 29). Petitioner now moves for attorneys’ fees and costs, which are awarded in 

the amount of $84,748.25, reduced from $108,471.18, for the reasons described below.

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends 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). 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.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for 

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012).
2 

I. Procedural History

On May 17, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF 

No. 33). Petitioner requests attorneys’ fees in the amount of $96,958.50 and attorneys’ 

costs in the amount of $11,512.68 for a total amount of $108,471.18. Id. at 6. In 

compliance with General Order #9, petitioner has filed a signed statement indicating 

petitioner incurred no out-of-pocket expenses. 

On May 18, 2017, respondent filed a response to petitioner’s motion. (ECF No. 

34). 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.” 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. Respondent “respectfully recommends that the Chief Special 

Master exercise her discretion and determine a reasonable award for attorneys’ fees 

and costs.” Id. at 3. 

On June 22, 2017, the staff attorney managing this case held a status 

conference on the undersigned’s behalf to seek further clarification of petitioner’s 

counsel’s billing records. (ECF No. 35.)

II. The Special Master’s Authority to Determine the Amount of Fees and Costs

Since the petition for compensation was successful, petitioner is entitled to 

reasonable attorneys’ fees and costs. See § 15(e)(1) (emphasis added). Reasonable 

attorneys’ fees and costs in Vaccine Act cases are determined using the lodestar 

approach, which begins with an assessment of a reasonable hourly rate multiplied by a 

reasonable number of hours expended in the case. Avera v. HHS, 515 F.3d 

1343,1347-48 (Fed. Cir. 2008.) 

The determination of the amount of reasonable attorneys' fees is within the 

special master's discretion. See, e.g., Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 

1993). Special masters have “wide latitude in determining the reasonableness of both 

attorneys’ fees and costs.” Hines v. HHS, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). 

Moreover, special masters are entitled to rely on their own experience and 

understanding of the issues raised. Wasson v. HHS, 24 Cl. Ct. 482, 483 (Fed. Cl. 1991),

aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). 

Petitioner “bears the burden of establishing the hours expended” and the 

reasonableness of the requested fee award. Wasson, 24 Cl. Ct. at 484. Notwithstanding 

respondent’s failure to raise any specific objections to petitioner’s fee application, “the 

Special Master . . . [is] not limited to endorsing or rejecting respondent’s critique.” 

Duncan v. HHS, No. 99-455V, 2008 WL 4743493 (Fed. Cl. 2008). Furthermore, “the 

Special Master [has] no additional obligation to warn petitioners that [she] might go 

beyond the particularized list of respondent’s challenges.” Id.
3 

The undersigned has reviewed the billing records submitted with petitioner’s 

request. In the undersigned’s experience, the requested hourly rates appear 

reasonable; however, for the reasons described below, the undersigned finds the hours 

billed in this case to be excessive. 

III. Determining a Reasonable Number of Hours

In determining the amount of reasonable hours, a special master has discretion 

to exclude hours expended that are “’excessive, redundant, or otherwise unnecessary’” 

based on his or her experience or judgment.” Hocraffer v. HHS, No. 99-533V, 2011 WL 

6292218, at *3 (Fed. Cl. Nov. 22, 2011). The fee applicant bears the burden of 

documenting hours that are reasonable and the special master is not obligated to 

evaluate a fees petition on a line-by-line basis. Id. at *3, 13. Rather, particularly where 

billing entries are cryptic or inadequately described,3 the Special Master may determine 

whether the claimed hours are reasonable based on her experience and the context of 

the Vaccine Program. Wasson v. HHS, 24 Cl. Ct. 482, 483-84 (Fed. Cl. 1991), aff’d 988 

F.2d 131 (Fed. Cir. 1993). That is, special masters are permitted to use “a global – 

rather than line-by-line – approach to determine the reasonable number of hours 

expended.” Hocraffer, 2011 WL 6292218, at *13.

In that regard, the undersigned notes that the amount of attorneys’ fees 

requested in this case is very high compared to similar SPU cases which have resolved 

quickly and informally without a hearing. See, e.g. J.B. v. HHS, No. 15-67V, 2016 WL 

4046871 (Fed. Cl. Spec. Mstr. July 8, 2016)(noting based on a review of over 300 SPU 

cases that such cases typically incur less than $64,000.00 in attorneys’ fees and costs.). 

Like the instant case, the petitioner in J.B. received an unusually high award. The 

attorneys in that case argued that their high fees were justified by the result. The 

undersigned rejected that argument, noting that the size of petitioner’s award does not 

equate to the complexity of the case given that the case resolved quickly and without 

significant litigation within the Special Processing Unit. Id., at *6-7. 

Thus, although the undersigned acknowledges that this case involved some 

complexity regarding petitioner’s damages, it is also worth stressing that this case was 

highly streamlined, resolving as a conceded case within one year of filing. With that 

 

3 Attorneys are cautioned about such billing practices in the Guidelines for Practice Under the National 

Vaccine Injury Compensation Program (available on the court’s website at 

http://www.cofc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-4212016.pdf). Section X, 

Chapter 3, explains the requirements of an application for fees and costs, including the instruction that 

“[c]ontemporaneous time records should indicate the date and specific character of the service 

performed.” Vaccine Guidelines, p. 68. Attorneys are further advised that “[e]ach task should have its 

own line entry indicating the amount of time spent on that task” and that “[l]umping together several 

unrelated tasks in the same time entry frustrates the court’s ability to assess the reasonableness of the 

request.” Id. 
4 

context in mind, the undersigned has identified a number of specific issues, discussed 

below, which contribute to the excessive billing in this case.

IV. Problems Identified in the Billing Records

a. Excessive or Redundant Billing

A significant factor contributing to the high cost of attorneys’ fees in this case 

appears to be excessive or redundant billing. Upon the undersigned’s review, there 

appears to be a pattern of such overbilling within the records. 

For example, in January and February of 2014, Mr. Soloway spent 4.5 hours 

engaged in initial meetings in person and via telephone with petitioner and her husband 

prior to beginning work on this case. (ECF No. 33-5, p. 1.) His associates, Ms. Corkill 

and Mr. MacLaren, each spent 2.5 hours conducting “initial meetings” with the clients. 

(ECF No. 33-6, p. 1; 33-7, p. 1.) The undersigned finds these client intake meetings to 

be excessive. Notably, the billing records suggest that these extensive meetings took 

place prior to counsel’s obtaining of medical records or the receipt of any documents 

from the client. The billing records also suggest that Ms. Corkill’s and Mr. MacLaren’s 

initial client meetings occurred prior to being assigned to the case by Mr. Soloway on 

February 20, 2014.

Review of medical records in this case was also excessive. Mr. Soloway billed 

10.45 hours for review of medical records in this case. Additionally, Ms. Corkill billed 

15.75 hours reviewing medical records and Mr. MacLaren a further 9.8 hours. Much of 

this review appears to be redundant. For example, Mr. Soloway billed 1.3 hours for the 

review of records by Drs. Nall and Davis on March 4, 2014. (ECF No. 33-5, p. 1.) The 

next day Ms. Corkill billed an additional .9 hours reviewing records from the same 

treaters. (ECF No. 33-6.) Based on the undersigned’s review, four different medical 

providers had their records separately reviewed by two of the three attorneys working 

on this case. The records of five additional providers were separately reviewed by all 

three attorneys. Mr. MacLaren billed .5 hours reviewing medical records more than a 

month after judgment was entered in this case. (ECF No. 33-7, p. 3.)

The undersigned also questions the 32.15 hours billed by Mr. Soloway to resolve 

a subrogation issue raised in the case.4 Much of Mr. Soloway’s time was devoted to 

case law research which likely could have been done by his associates. Indeed, Ms. 

Corkill billed a further 3 hours devoted to this issue. 

 

4 Based on the representations counsel made during the status conference held June 22, 2017, the 

undersigned is satisfied that Mr. Soloway’s efforts in this regard were necessary to the resolution of 

damages in this case; however, that is a separate question from whether the hours expended were 

reasonable.
5 

The undersigned reduces all of the above-identified hours5 by half. This results 

in a reduction of 23.6 hours from Mr. Soloway’s billing, 10.6 hours from Ms. Corkill’s 

billing, and 6.2 hours from Mr. MacLaren’s billing.6

b. Inappropriate or Non-compensable Activities

A further deficiency in counsels’ billing records is the inclusion of many hours 

billed for activities which are not appropriately charged to the Vaccine Program. The 

undersigned will not compensate counsel for these hours.

Ms. Corkill billed 1.4 hours researching the admission requirements for the U.S. 

Court of Federal Claims bar. (ECF No. 33-6, pp. 2-3.) She also billed .45 hours 

researching opposing counsel, Mr. Pyles. (Id., p. 5.) Mr. Soloway similarly billed 1.25 

hours researching Mr. Pyles as well as consulting Wall Street Journal articles about 

increases in claims filings. He also spent 5.25 hours researching the file of a prior 

Vaccine case he had prosecuted. (ECF No. 33-5, p. 1.) 

Ms. Corkill’s research into court admission constitutes professional development 

and is therefore not compensable. It is well established that attorneys may not be 

compensated for professional development concerning the Vaccine Program. See, 

e.g., Lord v. HHS, No. 12-255V, 2016 WL 3960445, at *4 (Fed. Cl. Spec. Mstr. June 30, 

2016). Nor does the undersigned find it appropriate for counsel to bill for research 

regarding opposing counsel or into counsel’s own prior case. If these hours were 

meaningfully spent, they are at best similarly characterized as professional 

development.

Thus, the undersigned further reduces Mr. Soloway’s billing by 6.5 hours. Ms. 

Corkill’s billing is reduced by 1.9 hours. 

c. Travel Time

Mr. Soloway billed 9 hours of travel time on August 21, 2014.7 (ECF No. 33-5; 

ECF No. 35.) An additional billing entry of 2.75 hours dated January 5, 2017, includes 

an unspecified amount of travel time.8 (ECF No. 33-5, p. 11.) This accounts for 11.75

 

5 That is, 47.1 hours by Mr. Soloway, 21.25 hours by Ms. Corkill, and 12.3 hours by Mr. MacLaren.

6 All reductions throughout this decision are rounded to the nearest tenth of an hour.

7 Although the billing entry shows one entry including both travel time and preparation for the taking of Dr. 

Greer’s sworn statement, Mr. Soloway orally amended this billing entry during the status conference held 

June 22, 2017, to clarify that 9 of the 11 hours were spent travelling. Respondent had no objection to the 

oral amendment. (See ECF No. 35.)

8 Since the amount of travel time is not specified and there is a separate billing entry of 2.75 hours for the 

taking of Dr. Seller’s sworn statement which includes an identical description of activity, the undersigned 

will treat the entirety of this entry as travel time. (ECF No. 33-5, p. 11.)
6 

hours of Mr. Soloway’s billing in this case. The undersigned reduces Mr. Soloway’s 

billing rate by 50% for this time spent travelling. See, e.g., Hocraffer, 2011 WL 

3705153, at *24 (noting that “Special masters consistently award compensation for 

travel time at 50% of the billing rate in the Vaccine Program.”).

d. Inefficient Use of Attorney Time and Inscrutable Billing Entries

Another significant issue permeating the billing records in this case is counsel’s 

inefficient use of attorney resources. Upon the undersigned’s review, many of the tasks 

for which counsel has billed would have been better handled by more junior members of 

counsel’s team, resulting in inflated attorneys’ fees. Determining the exact extent of this 

issue is made more difficult by the nature of counsel’s records, which often make it 

difficult to ascertain what the attorneys in this case were doing. The associate billing 

records, in particular, were often vague and difficult to understand.

As noted above, despite having assigned two associate attorneys to this case, 

Mr. Soloway nonetheless billed significant time reviewing medical records and 

researching case law regarding subrogation. This issue, however, is not limited to the 

above-discussed entries. For example, on February 7, 2017, Mr. Soloway, the most 

senior attorney on this case, billed 4.5 hours for sorting a box of receipts related to 

petitioner’s medical expenses. (ECF No. 33-5, p. 12.) 

Mr. Soloway also included several .25 hour billing entries for the purpose of 

authorizing invoices for medical records. (See, e.g. ECF No. 33-5, p. 2.) Mr. Soloway 

billed .25 hours to authorize an invoice for unspecified “mileage.” (ECF No. 33-5, p. 3.) 

Additionally, throughout the course of this case, Ms. Corkill billed a total of 1.2 hours for 

generating fax cover sheets, document requests, and case captions. (ECF No. 33-6, 

passim.) She also billed .75 hours for traveling to pick up records. (ECF No. 33-6, p. 3.) 

These activities are secretarial in nature and are not compensable. See, e.g. Mooney v. 

HHS, No. 05-266, 2014 WL 7715158, at *11 (Fed. Cl. Spec. Mstr. Dec. 29, 2014)(noting 

that “tasks which are secretarial in nature represent overhead expenses and are thus 

not compensable.”) 

Moreover, the undersigned finds it particularly difficult to resolve this concern 

given the state of the billing records generally. In some instances, Mr. Soloway has 

combined multiple activities into one billing entry, making it difficult to separate 

appropriate and inappropriate billing activity. For example, on March 17, 2016, Mr. 

Soloway billed one hour in a single entry for reviewing both the medical record exhibits 

to be filed as well as the court’s rules for filing medical records. The undersigned will 

not compensate Mr. Soloway for review of the court’s filing procedures, but might 

otherwise have found a substantive review of exhibits to be reasonable.

There are also many entries which are too vague, leaving the undersigned 

unable to determine the nature of the task being performed. For example, on June 3, 

2014, Ms. Corkill billed .8 hours under the category of reviewing medical records, but 
7 

included a subject which instead suggests a telephone call with an unspecified 

individual. (ECF No. 33-6, p. 2.) Both Ms. Corkill and Mr. MacLaren at separate times 

included billing entries for the creation of a “blank pleading.” (ECF No.33-6, p. 7; ECF 

No. 33-7, p. 3.) Mr. Corkill included a billing entry labeled only as “AUTH-Ours.” (ECF 

No. 33-6, p. 1.) Other entries by Ms. Corkill are suggestive of potentially duplicative 

entries. For example, on March 9, 2016, Ms. Corkill included two separate one hour 

entries for a meeting with petitioner. (ECF No. 33-6, p. 5.) 

In light of the above-described inefficiencies and billing deficiencies, separate 

and apart from the previously addressed reductions, the undersigned finds that a further 

5% reduction in counsel’s remaining billing is warranted. As noted above, the 

undersigned is not required to perform a line-by-line analysis of the billing records. 

Hocraffer, 2011 WL 6292218, at *13. Moreover, Special Masters have previously 

reduced fees globally for insufficient billing practices. See, e.g. Stone v. HHS, No. 90-

1041V, 2010 WL 3790297, at *5 (Fed. Cl. Spec. Mstr. Sept. 9, 2010)(deducting 10% 

from requested hours due to excessive and vague billing). 

Mr. Soloway billed 179.5 hours. The undersigned previously reduced Mr. 

Soloway’s billing by 23.6 hours for excessive or redundant billing, 6.5 hours for noncompensable activities, and otherwise addressed 11.75 hours of travel time. These 

reductions result in net billing of 137.65.9 Reducing this amount by an additional 5%, 

the undersigned finds a reduction of 6.9 hours to be appropriate.

Ms. Corkill billed 93.65 hours. The undersigned previously reduced Ms. Corkill’s 

billing by 10.6 hours for excessive or redundant billing and 1.9 hours for noncompensable activities. This results in net billing of 81.15 hours. Reducing this amount 

by an additional 5%, the undersigned finds a reduction of 4.1 hours to be appropriate. 

Mr. MacLaren billed 47.15 hours. The undersigned previously reduced Mr. 

MacLaren’s billing by 6.2 hours for excessive or redundant billing. This results in net 

billing of 40.95 hours. Reducing this amount by an additional 5%, the undersigned finds 

a reduction of 2.0 hours to be appropriate.

V. Attorney Costs

Petitioner’s counsel requested reimbursement in the amount of $17.36 for the 

cost of obtaining medical records from Andrews Orthopedic. (ECF No. 33-9, p. 1.) 

Invoices attached to the motion, however, indicate only a charge of half that amount 

($8.68) for these records. Thus, a reduction of $8.68 is needed. Additionally, counsel 

requests reimbursement in the amount of $552 for Ms. Corkill’s and Mr. MacLaren’s 

admission to the U.S. Court of Federal Claims bar. Such expenses are not recoverable. 

 

9 Although Mr. Soloway’s 11.75 hours of travel time do not represent a reduction of hours billed, they have 

been subtracted from his total billing for purposes of this calculation because they have been previously 

addressed via rate reduction and are not being further reduced by 5%. 
8 

See, e.g., Velting v. HHS, No. 90-1432, 1996 WL 937626, at *1-2 (Fed. Cl. Spec. Mstr. 

Sept. 24, 1996). 

The undersigned otherwise finds no cause to reduce any of the other costs. 

Thus, the undersigned reduces petitioner’s requested costs by $560.68. 

VI. Conclusion

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

§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned 

GRANTS petitioner’s motion for attorneys’ fees and costs in a reduced amount as 

follows: 

Attorneys’ Fees: 

Mr. Soloway:

Original Hours Billed: 179.15

 

Less: 

 Excessive hours: - 23.6

 Non-compensable: - 6.5

 Travel billed at full rate: - 11.75

 Inefficiency: - 6.9 

Total (full rate) Hours Allowed: 130.4

Plus: 

Total (travel rate) Hours 

Allowed: 11.75

130.4 *$350 per hour = $45,640.00

 11.75 *$175 per hour = $2,056.25

Mr. Soloway’s Total: $47,696.25

Ms. Corkill: 

Original Hours Billed: 93.65 

 

Less: 

 Excessive hours: - 10.6

 Non-compensable: - 1.9

 Inefficiency: - 4.1

Total Hours Allowed: 77.05

77.05 *$225 per hour = $17,336.25
9 

Mr. MacLaren: 

Original Hours Billed: 47.15 

 

Less: 

 Excessive hours: - 6.2

 Inefficiency: - 2.0

Total Hours Allowed: 38.95

 

38.95 *$225 per hour = $8,763.75

Total Attorneys’ Fees Awarded: $73,796.25

Attorneys’ Costs: 

 

Original request: $11,512.68

Less reductions: - $560.68

Total Attorneys’ Costs Awarded: $10,952.00

Overall Total Awarded: $84,748.25

Accordingly, the undersigned awards the total of $84,748.2510 as a lump 

sum in the form of a check jointly payable to petitioner and petitioner’s counsel 

Daniel Mark Soloway, Esq. 

 The clerk of the court shall enter judgment in accordance herewith.11

IT IS SO ORDERED.

s/Nora Beth Dorsey

 Nora Beth Dorsey

Chief Special Master

 

10 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses 

all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. 

Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would 

be in addition to the amount awarded herein. See generally Beck v.HHS, 924 F.2d 1029 (Fed. Cir.1991).

11 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice 

renouncing the right to seek review.