In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

DANIELLE JENNINGS, * No. 16-779V

* Special Master Christian J. Moran

Petitioner, *

* Filed:January 22, 2021

v. * Reissued: April 23, 2021

*

SECRETARY OF HEALTH * attorneys’ fees and costs, reasonable

AND HUMAN SERVICES, * basis, expert’s hourly rate

*

Respondent. *

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

Scott W. Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner;

Darryl Wishard, U.S. Dep’t of Justice, Washington, DC, for respondent. 

PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS*

Danielle Jennings sought an award through the National Childhood Vaccine 

Injury Compensation Program (the “Vaccine Act”), 42 U.S.C. § 300aa—10 to 34 

(2012). She alleged that a human papillomavirus (“HPV”) vaccine she received 

caused her to develop various conditions, including asthma/breathing problems. 

Pet., filed June 30, 2016. Ms. Jennings was not awarded compensation primarily 

because she did not establish that she suffered from many conditions she alleged 

the HPV vaccine caused her to suffer. Decision, issued July 8, 2020. 

As the Vaccine Act permits, Ms. Jennings seeks an award of attorneys’ fees 

and costs. She is awarded $62,738.17.

* The parties were informed that this decision would be made available to the public. Ms. 

Jennings sought redaction of this decision, but her motions were denied. Orders, issued Oct. 19, 

2020 and Sep. 15, 2020. After Ms. Jennings requested that the Court of Federal Claims review 

the orders denying redaction, the Court denied the motion for review. Order, issued Feb. 8, 

2021. Accordingly, this decision is being posted as originally submitted, except for modification 

to this footnote. 
2

I. Procedural History

Ms. Jennings’s case proceeded through two distinct phases. The first 

concerns her claim that she was entitled to compensation. The second concerns 

her motion for attorneys’ fees and costs. 

A. Entitlement Phase

Ms. Jennings began this case by filing a petition on June 30, 2016.1 As part 

of the response to the petition, the undersigned issued an order regarding attorneys’ 

fees. Order, issued July 7, 2016. She filed a collection of medical records. 

Petitioner periodically filed medical records and other documents over the next six 

months. 

The Secretary reviewed the submitted material and summarized the medical 

records. Resp’t’s Rep., filed May 1, 2017, at 2-8. After reviewing the standards 

for entitlement, the Secretary argued that petitioner had not established that Ms. 

Jennings was entitled to compensation. The Secretary “disputes that petitioner has 

demonstrated that vaccine-related injury.” Id. at 9. The Secretary indicated that 

neither a treating doctor nor a retained expert offered any theory to explain how a 

vaccine caused Ms. Jennings’s injury. Id. The Secretary also disputed the 

temporality in that some symptoms occurred before the vaccination and some 

diagnoses occurred months after the vaccination. Id. at 11. 

The undersigned proposed a set of instructions for the expert, which later 

became final. Order, issued Aug. 2, 2017. The instructions directed the way 

experts for petitioners were to prepare invoices for their work. 

Petitioner filed an amended petition. The amended petition alleges that 

Danielle Jennings “continues to suffer from a toxic reaction to the vaccinations as 

identified above.” Am. Pet., filed June 21, 2017, ¶ 11. The amended petition does 

not specify a particular disease or condition that the vaccinations allegedly caused. 

However, the amended petition does assert that after the vaccinations, Ms. 

Jennings experienced “hand numbness, headaches, handwriting difficulties, visual 

1

Initially, Denise Jennings, the mother of Danielle Jennings, acted as petitioner because 

Danielle had not reached the age of majority. However, Danielle eventually became the 

petitioner. Order, issued Aug. 23, 2018. Whether Denise Jennings or Danielle Jennings was the 

petitioner does not affect the outcome. 
3

comprehension difficulties” as well as “memory impairments and neurologic 

impairments.” Id. ¶¶ 9-10. 

Petitioner filed the first report from Dr. Santoro on May 29, 2018. Exhibit 

26. This report did not comply with the August 2, 2017 Expert Instructions. For 

example, Dr. Santoro did not define the condition that was affecting Danielle. 

Consequently, petitioner was ordered to obtain a supplemental report. Order, 

issued June 25, 2018. 

This supplemental report from Dr. Santoro was filed on August 23, 2018. 

Exhibit 27. Dr. Santoro, again, did not reach a conclusion about Danielle’s 

diagnosis. Order, issued Sept. 17, 2018. The Secretary intended to file an expert 

report in response. 

Aftersimilarly receiving multiple enlargements of time, the Secretary filed a 

report from Dr. MacGinnitie on February 14, 2019. Exhibit A. Dr. MacGinnitie 

challenged many aspects of Dr. Santoro’s opinion, including the lack of diagnosis. 

Id. at 4-5, 9. 

Petitioner’s response to Dr. MacGinnitie’s report took place in two forms. 

Denise Jennings challenged some of Dr. MacGinnitie’s factual assertions in an

affidavit. Exhibit 39. Dr. Santoro disputed some of Dr. MacGinnitie’s medical 

opinions in two more reports. Exhibits 40-41. 

The Secretary filed another report from Dr. MacGinnitie on September 10, 

2019. Exhibit P.2 The parties were directed to file briefs regarding entitlement. 

Order, issued Sept. 25, 2019. This order allowed the parties to file a limited 

amount of additional information, including updated medical records for Danielle. 

Petitioner filed her brief with additional evidence on March 4, 2020. 

Exhibits 42-53. The Secretary filed his brief on March 27, 2020. The Secretary, 

too, filed additional evidence. Exhibits U-Z. 

The undersigned found that Ms. Jennings was not entitled to compensation. 

On the claims that the HPV vaccination caused her to suffer allergies, chronic 

fatigue syndrome, and a gastrointestinal illness, Ms. Jennings had not established 

that she suffered from any of these. This lack of proof regarding an appropriate 

diagnosis prevented Ms. Jennings from receiving compensation. See Lombardi v. 

2 The Secretary also designated another document as exhibit P, a disciplinary action 

against Dr. Neuenschwander, that was filed on July 15, 2019.
4

Sec’y of Health & Human Servs., 656 F.3d 1343, 1353 (Fed. Cir. 2011). For 

another condition that Ms. Jennings did suffer, asthma and breathing difficulties, 

Ms. Jennings did not receive compensation because the medical records showed 

that she suffered those problems before receiving the vaccination. Thus, the 

vaccination could not have caused Ms. Jennings to suffer asthma and breathing 

problems. See Locane v. Sec'y of Health & Human Servs., 685 F.3d 1375, 1380-

81 (Fed. Cir. 2012). After the time for filing a motion for review lapsed, judgment 

entered on August 10, 2020. 

B. Attorneys’ Fees and Costs Phase

Ms. Jennings requested attorneys’ fees and costs. To establish her 

eligibility, Ms. Jennings argued that reasonable basis supported her claim in that 

that she “received a vaccination that, within a short time thereof, caused her to 

develop injuries as set forth in the Petition and medical records.” Pet’r’s Mot., 

filed July 22, 2020, ¶ 3. Ms. Jennings did not discuss the July 8, 2020 decision, 

which found that Ms. Jennings did not develop the injuries as set forth in her 

amended petition. 

The Secretary stated that he “is satisfied the statutory requirements for an 

award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed July 

23, 2020, at 2. However, the Secretary, too, did not explain how the statutory 

requirements are met and did not address the July 8, 2020 decision. With respect 

to the amount of attorneys’ fees and costs, the Secretary filed his standard response 

in which he deferred to the special master. 

Given that neither party discussed the findings in the July 8, 2020 decision 

that Ms. Jennings did not suffer from the conditions for which she claimed 

compensation, the undersigned directed the parties to file supplemental briefs 

regarding reasonable basis. The undersigned also encouraged petitioner to develop 

evidence regarding the amount Dr. Santoro had requested. Order, issued July 23, 

2020. During this time, the Federal Circuit issued Cottingham v. Sec’y of Health 

& Human Servs., 971 F.3d 1337 (Fed. Cir. 2020). Thus, the parties were directed 

to discuss this new precedent. Order, issued August 25, 2020. 

Ms. Jennings filed a supplemental brief. Over the course of approximately 

ten pages, she argued that the claims regarding asthma, chronic fatigue syndrome, 

and gastrointestinal disease were reasonable. Pet’r’s Supp’l Br., filed Sep. 23, 

2020, at 4-10. Ms. Jennings also presented four exhibits of which one reproduced 

a special master’s decision. 
5

The Secretary’s response, which was filed the next day, did not discuss any 

of the facts of Ms. Jennings’s medical history, although the Secretary did set out 

the procedural history in one paragraph. Resp’t’s Resp., filed Sept. 24, 2020. In 

conclusion, the Secretary stated: “Respondent defers to the Special Master to 

determine whether the record evidence as a whole in this particular case, in light of 

Vaccine Program precedent, supports the conclusion that petitioner’s claim had a 

reasonable basis.” Id. at 4. The Secretary did not explain a shift in position. 

Previously, he previously had stated that he was satisfied that Ms. Jennings had 

met her burden. SeeResp’t’s Resp., filed July 23, 2020, at 2.

Citing Penson v. Ohio, 488 U.S. 75, 84 (1988); Mote v. Wilke, 976 F.3d 

1337, 1346 (Fed. Cir. 2020); and McIntosh v. Sec’y of Health & Human Servs., 

139 Fed. Cl. 238 (2018), the undersigned directed the Secretary “to take a position 

regarding whether ‘there was a reasonable basis for the claim for which the petition 

was brought.’” Order, issued Sep. 28, 2020, at 3, quoting 42 U.S.C. § 300aa–

15(e). The undersigned explained that a “discussion of the evidence (not a 

recitation of the law) would encompass at least five pages.” Id.

The Secretary declined to discuss the evidence. Instead, the Secretary 

maintained “Respondent has again reviewed the objective evidence, and again 

states in this response that he does not object to an award of attorneys’ fees and 

costs due to a lack of reasonable basis.” Resp’t’s Resp., filed Oct. 15, 2020, at 7. 

The Secretary also “defers to the discretion of the Special Master – as the 

adjudicator of the question at issue here under Section 15(e) of the Act – to 

determine whether, in his view, the objective evidence based on the totality of the 

circumstances supports a conclusion that petitioner’s claim had a reasonable basis, 

and, if so, to award reasonable attorneys’ fees and costs.” Id. at 8. 

Ms. Jennings has not filed a reply. However, Ms. Jennings stated that Dr. 

Santoro died in October 2020. Pet’r’s Status Rep. filed Oct. 19, 2020. 

Nonetheless, Ms. Jennings provided additional information regarding the 

reasonableness of the amount requested for Dr. Santoro. Pet’r’s Status Rep., filed 

Dec. 3, 2020. In response from inquiries from the undersigned, Ms. Jennings 

provided additional information about the costs she is requesting. Exhibits 54-56. 

With these submissions, Ms. Jennings’s motion is ready for adjudication. 

Her motion presents two issues: whether she is eligible for an award of attorneys’ 

fees and costs and, if so, what is the reasonable amount of attorneys’ fees and 

costs. 
6

II. Eligibility for Attorneys’ Fees and Costs

Even though compensation was denied, a petitioner who brings a petition in 

good faith and who has a reasonable basis for the petition may be awarded 

attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). “Respondent is 

satisfied the statutory requirements for an award of attorneys’ fees and costs are 

met in this case.” Resp’t’s Resp., filed July 23, 2020, at 2. When directed to 

comment on this position, the Secretary confirmed that “he does not object to an 

award of attorneys’ fees and costs due to a lack of reasonable basis.” Resp’t’s 

Resp., filed Oct. 15, 2020, at 7. Thus, due to the lack of objection from the 

Secretary, the undersigned finds that petitioner is eligible for an award of 

attorneys’ fees and costs. 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.”). 

III. Reasonable Amount of Attorneys’ Fees

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. The undersigned has assessed the material submitted in the fee 

application. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 

(2018). 

A. Reasonable Hourly Rate

For Mr. Rooney’s initial work, Ms. Jennings proposes that a reasonable rate 

of compensation is $300 per hour. For work in 2017, the rate increases to $350 per 

hour. There is another increase in 2020 to $380 per hour. Pet’r’s Mot. at 1. 

Special masters have accepted $300 per hour as a reasonable hourly rate for 

Mr. Rooney’s work in 2018, and thereafter increased it to $350 per hour. Thomas 

v. Sec’y of Health & Human Servs., No. 14-966V, 2018 WL 5725184 (Fed. Cl. 

Spec. Mstr. Oct. 5, 2018). The increase from $350 per hour in 2018 to $380 per 

hour in 2020 is reasonable. 
7

B. Reasonable Number of Hours

While most entries in Mr. Rooney’s timesheets are adequate and reasonable, 

many are not. Examples of vague and poorly expressed activities include: 

8/16/2017 SWR Email correspondence 0.10 $30.00

6/6/2019 SWR Email correspondence 

with client 0.10 $35.00

5/26/2020 SWR Telephone conference 

with client 0.50 $190.00

7/10/2020 SWR

Telephone conference 

with expert; conference 

with client; review court 

rules; modify decision

3.00 $1,05.00

As explained early in this case, even an attorney’s communication with a 

client should have some detail to assess its reasonableness. Order, issued July 7, 

2016, citing Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011).

3

 

In some entries, either Mr. Rooney or his paralegal charged for filing 

documents. See, e.g., entries for 7/5/2016; 7/13/2016; 9/11/2017; 1/15/2018; 

8/30/2019; and 10/5/2019. Filing documents is a clerical task for which attorneys 

should not charge. See Guerrero v. Secʼy of Health & Human Servs., No. 12-

689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015) (citing cases), 

mot. for rev. den’d in relevant part and granted in non-relevant part, 124 Fed. Cl. 

153, 160 (2015), app. dismissed, No. 2016-1753 (Fed. Cir. Apr. 22, 2016). 

Mr. Rooney appears to have spent an unusually lengthy amount of time 

researching medical articles. While attorneys may legitimately perform some basic 

legal and medical research at the beginning of the case, an attorney should not 

displace the work of an expert. See K.G. v. Sec'y of Health & Human Servs., No. 

18-120V, 2020 WL 3495990, at *6 (Fed. Cl. May 21, 2020) (stating “reduction is 

necessary to account for time spent performing medical research” and citing 

cases). Here, even after Dr. Santoro was participating in the case, Mr. Rooney 

researched medical articles. See entries for 8/29/2019; 10/23/2019. 

3 The July 10, 2020 entry suffers from block billing in that determining how much of the 

three hours was spent in communicating with the expert, conferring with the client, reviewing the 

Court’s rules, or modifying the decision is not clear. 
8

To account for these issues, $3,000 is reduced from the attorneys’ fees 

invoice. See Fox v. Vice, 563 U.S. 836, 838 (2011) (indicating that trial courts 

may use “rough justice” in awarding attorneys’ fees). Consequently, a reasonable 

amount of attorneys’ fees is $50,075.50.

4

 

C. Costs

For the costs advanced by her attorney, Ms. Jennings requests $21,114.04.

5

 

Pet’r’s Mot. ¶ 7. She also requests reimbursement of costs that her parents 

advanced in the amount of $536.13. Id. ¶ 12, citing fee exhibit 2. The latter 

expenses for the collection of medical records are reasonable and adequately, if 

imperfectly, documented. Exhibits54, 56.

6

Similarly, some of the expenses incurred by Mr. Rooney are routine 

expenses associated with gathering medical records, mailing materials, and filing 

the petition. These costs are reasonable and awarded. 

The majority of expenses concern the costs for two experts, David Axelrod 

and John Santoro. Pet’r’s Mot. at 2. Reasonable expert fees are determined using 

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

reasonable number of hours. Caves v. Sec'y of Health & Human Servs., 111 Fed. 

Cl. 774, 779 (2013).

Dr. Axelrod has requested compensation for $4,100.00, representing 10.25 

hours at a rate of $400 per hour. While Dr. Axelrod did not state the date on which 

he performed the work, Mr. Rooney’s timesheets show that he began consulting 

with unidentified experts by August 24, 2017. Pet’r’s Mot. at 11. Mr. Rooney’s 

4 Petitioner appears to have requested inconsistent amounts for attorneys’ fees. In the 

motion (paragraph 4), petitioner sought $53,075.50. Yet, the timesheets suggest a slightly larger 

amount, $53,177.50. The undersigned uses the former figure because it more closely matches 

the undersigned’s computation of the charges listed in the timesheets. 

5 Again, there is a discrepancy within petitioner’s submission. The invoice for itemized 

cost shows the total as $21,114.04. However, petitioner’s motion (paragraph 5) claimed 

$26,106.04. The former figure appears accurate. 

6 Petitioner submitted the documents supporting the request for costs only after an 

informal inquiry from the undersigned’s chambers. The documents do not match the items 

requested in costs exactly. However, the amount substantiated by documents ($562.18) is nearly 

the same as the amount requested in the motion. 
9

list of costs includes an entry for payment to Dr. Axelrod on May 18, 2018 for 

$4,100. Id. at 21. 

Dr. Axelrod has not submitted a report in this case and Ms. Jennings has not 

explained why she consulted him. On the other hand, the Secretary did not raise 

any objection to compensating Ms. Jennings for work Dr. Axelrod performed. 

Dr. Axelrod’s proposed rate of compensation ($400 per hour) is reasonable. 

See Gonzalez v. Sec’y of Health & Human Servs., No. 14-1072V, 2015 WL 

10435023, at *17 (Fed. Cl. Spec. Mstr. Nov. 10, 2015) (awarding $450/hr. to Dr. 

Axelrod for work performed in the case); see also Abbott v. Sec’y of Health & 

Human Servs., 150 Fed. Cl. 241 (2020) (listing factors to consider in evaluating the 

hourly rate for an expert). 

However, the information provided does not justify the request for 10.25 

hours. Dr. Axelrod’s invoice shows he spent 6.25 hours on “chart review” and 1 

hour on “research.” These entries are reasonable, although Dr. Axelrod should 

have described his activities with more detail. Dr. Axelrod’s final entry is 3 hours 

for “Discussion of Report.” Pet’r’s Mot. at 26. Three hours to discuss a report, 

which seems not to have been written, appears excessive. The unusualness of the 

amount of time seems corroborated in Mr. Rooney’s parallel entry. On April 22, 

2018, Mr. Rooney spent less than one-hour (0.8 hour to be precise) in a “telephone 

conference with expert.” Pet’r’s Mot. at 12. Consequently, Dr. Axelrod’s entry is 

reduced from three hours to one hour, causing a reduction of $800.00. 

Apparently, after Dr. Axelrod did not present a useful report, Mr. Rooney 

turned to Dr. Santoro. Pet’r’s Mot. at 12 (entry for April 23, 2018). Dr. Santoro 

wrote four reports: exhibit 26 (dated May 27, 2018), exhibit 27 (dated Aug. 21, 

2018), exhibit 40 (dated June 4, 2019), and exhibit 41 (dated Aug. 30, 2019). 

Initially, Ms. Jennings submitted one invoice from Dr. Santoro, dated June 

3, 2018, which lists activities associated with Dr. Santoro’s first report. Pet’r’s 

Mot. at 27; see also id. at 20-22 (Mr. Rooney’s list of costs including only a single 

payment to Dr. Santoro). Dr. Santoro has requested compensation for $16,000, 

representing 32 hours at $500 per hour. However, after an informal inquiry from 

chambers regarding documentation supporting the costs incurred by Ms. 

Jennings’s parents (see note, 6, above), Ms. Jennings added two more invoices 

from Dr. Santoro. Exhibit 55. Through these two additional invoices, Dr. Santoro 

has sought an additional $9,500, representing 19 more hours of work at $500 per 

hour. 
10

The reasonableness of neither the proposed hourly rate nor the number of 

hours has been persuasively demonstrated. With respect to the proposed hourly 

rate, Dr. Santoro described himself as a “board certified internist and 

gastrointestinal physician.” Exhibit 26 at 1. He specialized in treating patients 

with inflammatory bowel disease, meaning Crohn’s disease and ulcerative colitis. 

Id.; but see exhibit 27 at 1 (Dr. Santoro’s supplemental report asserting that he 

treated patients with “reactive airway disease, headaches, fatigue, chronic fatigue 

syndrome, epilepsy, digestive condition and depression”). While some experts 

with these qualifications might warrant compensation at $500 per hour, Dr. 

Santoro does not, in this case, for two reasons. 

First, Dr. Santoro’s area of specialization (inflammatory bowel disease) does 

not match Ms. Jennings’s case. No evidence suggests that any doctor diagnosed 

Ms. Jennings with inflammatory bowel disease and Ms. Jennings did not claim that 

the vaccination caused her inflammatory bowel disease. On the other hand, Ms. 

Jennings more generally asserted that she suffered from gastrointestinal disease. 

Pet’r’s Entitlement Br., filed March 4, 2020, at 25, 35. While this might be Ms. 

Jennings’s claim, no persuasive evidence shows Ms. Jennings suffered any 

gastrointestinal illness. “Ms. Jennings has not identified any treating doctors who 

diagnosed her with any gastrointestinal disease. It appears that none of the doctors 

who treated Ms. Jennings referred her to a gastroenterologist and there are no 

records from a gastroenterologist who treated her.” Decision, issued July 8, 2020, 

at 25.7 

Second, Dr. Santoro’s work simply was not good. An appropriate rate for an 

expert also depends, in part, on “the nature, quality, and complexity of the 

information provided.” Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 

201, 206 (2009). 

Dr. Santoro’s reports contained many deficiencies. But, the fundamental 

problem is the lack of support for any diagnosis in Ms. Jennings. The Secretary 

alerted Ms. Jennings to this problem before she retained Dr. Santoro. SeeResp’t’s 

Rep., filed May 1, 2017, at 9. Dr. Santoro, in turn, reviewed the Secretary’s report 

before he wrote his first report. Exhibit 26 at 1. The August 2, 2017 Instructions 

for expert witnesses directed any expert to identify the relevant disease or 

7 The basis for Dr. Santoro’s opinion that Ms. Jennings suffered a gastrointestinal illness 

appears to be an affidavit from Ms. Jennings’s mother. But, Dr. Santoro did not explain how an 

affidavit in the absence of any reports to medical doctors and/or any medical testing can ground a 

medical diagnosis. 
11

condition. Order ¶ 4. Dr. Santoro should have been familiar with these 

Instructions before he wrote his report. 

Despite these notices, Dr. Santoro did not come close to presenting a 

credible case for any of Ms. Jennings’s proposed diagnosis. The weakness in Dr. 

Santoro’s opinion contributed to a decision being entered against her without a 

hearing. 

Accordingly, for Dr. Santoro’s work in this case, a reasonable rate of 

compensation is $250 per hour. The undersigned recognizes that in other cases in 

which Dr. Santoro’s expertise more closely aligns with the relevant subject and in 

which Dr. Santoro presents more credible opinions, his work might merit a higher 

hourly rate. 

As for the other component of an expert’s compensation, a reasonable 

number of hours, Dr. Santoro’s presentation is lacking again. “Again,” refers to 

the prior decisions finding Dr. Santoro’s “billing records are problematically vague 

and block billed.” Morris v. Sec’y of Health & Human Servs., No. 17-165V, 2020 

WL 3960338, at *2 (Fed. Cl. Spec. Mstr. May 28, 2020) (citing cases). Before Dr. 

Santoro began working on this case, Ms. Jennings and Dr. Santoro were notified 

about the expected content of the invoices. “The expert should list separate tasks 

separately. A rule of thumb is that every half hour should have a separate task, 

differentiated from other tasks.” Instructions at 8. 

Dr. Santoro failed to detail what he was doing. For example, he has charged 

$3,500 (or 7 hours of work) for a “Retainer Initial Case Review and Case 

Conference / Record Review.” The next entry is 10 hours for “Case Records 

Comprehensive Review.” Thus, it appears that Dr. Santoro spent approximately 

17 hours reviewing medical records. This much time is nearly triple the amount of 

time Dr. Axelrod spent. 

From the undersigned’s experience in reviewing applications for attorneys’ 

fees and costs generally and from the undersigned’s specific experience in 

reviewing Ms. Jennings’s medical records, the undersigned is confident in stating 

that 17 hours to review medical records in this case is excessive. Consequently, 

the number of hours for Dr. Santoro’s review of medical records is reduced to the 

number of hours for Dr. Axelrod’s review of medical records (6.25).8 

8 Dr. Axelrod’s charge of 6.25 hours also seems to be high for the number of records in 

this case. But, it is not shockingly high and within the upper bounds of reasonableness. 
12

Dr. Santoro’s next entry is for 12 hours to review medical literature. It 

would seem that if Dr. Santoro were an expert in the fields in which he was 

opining, then 12 hours for research might be excessive. However, Dr. Santoro’s 

hourly rate has been reduced due to his lack of expertise in the relevant field. 

Thus, 12 hours at a reduced rate is a reasonable amount of time. 

Dr. Santoro’s final two entries in his first invoice are for preparing, 

correcting, and revising his report ($1,000 (or two hours)) and phone conferences 

before and after his letter ($500 (or one hour)). These entries are reasonable. 

Accordingly, a reasonable amount of time for Dr. Santoro to prepare his first report 

is 21.25 hours. 

In Dr. Santoro’s second invoice, he has multiple unreasonable entries. Dr. 

Santoro states that he spent 5 hours on a “comprehensive repeat review” of the 

medical records. Exhibit 55 at 3 (invoice dated Sep. 8, 2018). While most experts 

do not charge for a “repeat review” at all, the undersigned will allot one-half hour 

for this task. Dr. Santoro has also charged 4 hours for discussing the case. Four 

hours of discussion between an attorney and an expert seems to be beyond what 

normally happens and Mr. Rooney’s timesheet shows that around this time, Mr. 

Rooney spent less than a half an hour on two calls with Dr. Santoro. Due to the 

discrepancy between billing records of Mr. Rooney and Dr. Santoro, Dr. Santoro’s 

charge for phone consultation is reduced to 1 hour. Dr. Santoro has also charged

two hours for preparing, revising, and emailing his supplemental report. This 

charge is reasonable. Thus, a reasonable amount of time associated with Dr. 

Santoro’s second invoice is 3.5 hours (0.5 + 1.0 + 2.0). 

Dr. Santoro dated his third invoice July 22, 2020. It seeks compensation for 

an additional 7 hours of work. Because Dr. Santoro neglected to provide the date 

of his activities, determining when he performed the work is difficult. It appears 

that these entries might concern the preparation of Dr. Santoro’s report 

approximately one year earlier. Exhibit 41 (report dated Aug. 30, 2019). While 

some of the entries in the third invoice seem to be near the higher bound of 

reasonableness, the only entry that is excessively unreasonable is time spent again 

reviewing the medical records. This time is again reduced to 0.5 hours, resulting in 

a removal of 0.5 hours. Therefore, for Dr. Santoro’s third invoice a reasonable 

amount of time is 6.5 hours. 

In sum, a reasonable amount of time for Dr. Santoro’s work in this case is 

31.25 hours (21.25 + 3.5 + 6.5). Given the finding that a reasonable hourly rate for 

Dr. Santoro is $250, a reasonable amount of compensation for Dr. Santoro is 

$7,812.50. 
13

In sum, a reasonable amount of attorneys’ fees is $12,126.54, consisting of 

$1,014.04 in miscellaneous costs, $3,300 for Dr. Axelrod, and $7,812.50 for Dr. 

Santoro. As previously mentioned, the costs that Denise Jennings incurred 

($536.13) are also reasonable. 

IV. Conclusion

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

42 U.S.C. § 300aa-15(e). Ms. Jennings is awarded a total of $62,738.17. Of this 

amount, $62,202.04 (representing $50,075.50 in attorneys’ fees and $12,126.54in 

attorneys’ costs) shall be paid as a lump sum in the form of a check jointly payable 

to petitioner and her attorney, Scott Rooney. In addition, $536.13 shall be paid as 

a lump sum in the form of a check payable to the former petitioner, Denise 

Jennings. 

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.9

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

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

joint notice renouncing their right to seek review.