In the United States Court of Federal Claims

No. 13-158

(Filed Under Seal: November 13, 2019)

Reissued: December 20, 20191

SIERRA FRANTZ,

Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

Respondent.

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Vaccine Case; Motion for Review; 

Attorneys’ Fees; National Vaccine Injury 

Compensation Program, 42 U.S.C. §§ 

300aa-10–34 (2018); Reasonable Basis

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

Daniel Principato & Debra A. Filteau Begley, Vaccine/Torts Branch, Civil Division, United 

States Department of Justice, Washington, DC, for respondent.

OPINION AND ORDER

SMITH, Senior Judge

Petitioner, Sierra Frantz, seeks review of a partial award of attorneys’ fees and costs 

issued by Special Master Christian J. Moran. Petitioner brought this action pursuant to the 

National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10–34 (2018) (hereinafter 

“Vaccine Act”), alleging that petitioner’s multiple sclerosis (hereinafter “MS”) was caused by 

the scheduled tetanus-diphtheria-acellular pertussis (hereinafter “Tdap”) and hepatitis A 

(hereinafter “hep A”) vaccinations she received on August 6, 2010. The Special Master denied 

compensation, finding that petitioner failed to establish that her condition did not pre-date the 

vaccination, especially given the poor analysis performed by petitioner’s expert. Frantz v. Sec’y 

of Health & Human Servs., 2017 WL 4899415 (Fed. Cl. Spec. Mstr. Oct. 3, 2017) (Frantz I). 

Petitioner subsequently sought attorneys’ fees and costs pursuant to the Vaccine Act and was 

awarded partial fees and costs. Frantz v. Sec’y of Health & Human Servs., 2019 WL 3713942

 

1 An unredacted version of this opinion was issued under seal on November 13, 2019. The 

parties were given an opportunity to propose redactions, but no such proposals were made.
2

(Fed. Cl. Spec. Mstr. Jun. 24, 2019) (Frantz II). This case is now before the Court on 

petitioner’s Motion for Review of that decision. For the reasons that follow, the Court denies

petitioner’s Motion. 

I. Factual Background and Procedural History

A brief recitation of the facts provides necessary context.2 

Ms. Frantz, a healthy and active twelve-year-old, received her scheduled Tdap

3

and hep 

A

4

vaccinations on August 6, 2010. Frantz II at *2. The next day, Ms. Frantz reported feeling 

off-balance, dizzy, and sluggish. On August 9, 2010, Ms. Frantz’s mother called the doctor to 

report her symptoms, and later went with petitioner to the emergency room. Id. After her 

neurological symptoms worsened, Ms. Frantz received her first magnetic resonance imaging test5

(“MRI”) on August 12, 2010, which revealed one enhancing lesion6on her brain stem as well as 

two non-enhancing lesions on her upper medulla7and left periventricular8region. Id. Following 

further MRIs, petitioner was diagnosed with MS.

9

 Id.

 

2 As the basic facts in this case have not changed significantly, the Court’s recitation of the 

background facts herein draws from the Special Master’s decision in Frantz II.

3 The Tdap vaccination “is administered intramuscularly to adolescents and adults, for 

simultaneous immunization against diphtheria, tetanus, and pertussis.” Dorland’s Illustrated 

Medical Dictionary 2017 (32nd ed. 2012) (hereinafter “Dorland’s”).

4 The hep A vaccination is “administered intramuscularly as an immunizing agent for preexposure prophylaxis in susceptible persons at least two years of age.” Dorland’s 2016. 

5 A magnetic resonance imaging test is defined as “a method of visualizing soft tissues of 

the body by applying an external magnetic field that makes it possible to distinguish between 

hydrogen atoms in different environments.” Dorland’s 916.

6 A lesion is defined as “any pathological or traumatic discontinuity of tissue or loss of

function of a part.” Dorland’s 1025.

7 The medulla, or medulla oblongata, is defined as “the truncated cone of nerve tissue 

continuous above with the pons and below the spinal cord” that “contains ascending and 

descending tracts and important collections of nerve cells that deal with vital functions such as 

respiration, circulation, and special senses.” Dorland’s 1121.

8 Periventricular is defined as “around a ventricle.” Dorland’s 1419. The periventricular 

system is defined as the “collective name for the efferent pathways of the hypothalamus that 

arise mainly in the supraoptic, posterior, and tuberal nuclei and descend in the periventricular 

grey matter.” Dorland’s 1862.

9 Multiple sclerosis is defined as “a disease in which there are foci of demyelination 

throughout the white matter of the central nervous system, sometimes extending into the grey 

matter.” Dorland’s 1680.
3

A. Entitlement Litigation 

On March 3, 2013, petitioner filed a petition under the Vaccine Act, alleging that the 

Tdap and hep A vaccinations she received caused her to develop a demyelinating10 disorder of 

the central nervous system that ultimately led to MS. Id. at *3. The Secretary of Health and 

Human Services recommended against compensation, arguing that compensation was 

inappropriate because Ms. Frantz had not offered a medical theory connecting her symptoms to 

the vaccinations and that the temporal connection between the vaccines and onset of the 

symptoms was insufficient to establish causation. Id.

On November 25, 2014, petitioner’s expert, Dr. Carlo Tornatore,

11 filed his first expert 

report, in which he opined that Ms. Frantz likely suffered from acute disseminated 

encephalomyelitis12 (hereinafter “ADEM”), that could have begun exhibiting symptoms as early 

as two days post-vaccination, and that ultimately developed into MS. Frantz II at *3. The 

temporal development of the lesions continued to be a point of contention throughout the 

litigation preparation and entitlement hearing. See id. at *3–*6. 

Following an entitlement hearing on September 27-29, 2017, Special Master Moran

issued a bench ruling that the evidence supported the respondent’s position that Ms. Frantz’s preclinical MS predated her vaccinations. Id. at *7. Citing a 2003 Francois Cotton article13

(“Cotton article”) and a highly similar case recently decided by the Office of Special Masters, 

W.C. v. Sec’y of Health & Human Servs., No. 07-456V, 2011 WL 4537877 (Fed. Cl. Spec. Mstr. 

Feb. 22, 2011), mot. for rev. denied on relevant grounds, 100 Fed. Cl. 440 (2011), aff’d, 704 

F.3d 1352 (Fed. Cir. 2013),

14 he found that Ms. Frantz had at least one lesion in her brain that 

 

10

 Demyelination is defined as the “destruction, removal, or loss of the myelin sheath of a 

nerve or nerves.” Dorland’s 486.

11 Dr. Tornatore received an undergraduate degree in neurobiology from Cornell University. 

Expert Report, ECF No. 50-9 at 2. He earned a master’s degree in physiology from Georgetown 

University and earned his medical degree from Georgetown University School of Medicine. Id. 

At the time of Frantz II, Dr. Tornatore was working as the Vice Chairman of the Department of 

Neurology at the Medstar Georgetown University Hospital and as an Associate Professor of 

Neurology at the Georgetown University Medical Center. Id. He has published over 50 

academic articles on neurology and has been an invited lecturer at chapter meetings of the 

National Multiple Sclerosis Society around the country. Id. at 15–18.

12 Encephalomyelitis is defined as an “inflammation involving both the brain and the spinal 

cord.” Dorland’s 613. Acute disseminated encephalomyelitis is defined as “an acute or 

subacute encephalomyelitis or myelitis characterized by perivascular lymphocyte and 

mononuclear cell infiltration and demyelination.” Id. 

13 In a study examining the developmental time of enhancing and non-enhancing lesions 

using weekly MRI scans, Cotton and fellow researchers found that half of the studied lesions 

were enhancing after 14 days. Francois Cotton et al., MRI Contrast Uptake in New Lesions in 

Relapsing-remitting MS Followed at Weekly Intervals, 60 Neurology 640 (2003).

14 W.C. presents a very similar allegation that the flu vaccination caused a minor to develop 

MS. 2011 WL 4537877 at *1. Using the Cotton article to evaluate W.C.’s lesions, the Special 
4

likely existed before the vaccinations, so the vaccines could not have caused her condition. Id.

Therefore, Ms. Frantz was not awarded compensation. Special Master Moran issued a written 

memorialization of his bench ruling on October 3, 2017. Id.; see also generally Frantz I. 

Petitioner did not file a motion for review of that decision, and judgment was entered on 

November 6, 2017. Frantz II at *7.

B. Fee Litigation 

After the denial of compensation, Ms. Frantz requested $326,914.44 (later amended to 

$352,451.91) in attorneys’ fees and costs. Id. Relying heavily on the Cotton article and the 

ruling in W.C., the Special Master awarded Ms. Frantz $135,187.59. Id. at *1. The Special 

Master based this decision on the following two grounds: (1) the time period during which Ms. 

Frantz had a reasonable basis for her claim and (2) the actual value of the work for which she 

was requesting compensation. Id. at *11, *20–*21. 

In determining the time frame during which petitioner’s claim was reasonable, the 

Special Master performed an in-depth evaluation of each of petitioner’s expert reports. Id.at *13.

The Special Master determined that the findings of emergency room doctors established that a 

reasonable basis existed for petitioner’s claim through the first two expert reports, despite the 

subpar nature of Dr. Tornatore’s submissions. Id. However, the third report’s failure to address 

questions regarding the rate of petitioner’s lesion enhancement or include a proposed timeline of 

enhancement brought the claim’s reasonable basis into doubt. Frantz II at *14 –*15. 

The Special Master determined that petitioner’s fourth expert report cemented the lack of 

a reasonable basis for petitioner’s claim, as that report was highly speculative and failed to 

address fundamental issues raised by respondent’s expert. Id. at *15. As a result, the Special 

Master awarded petitioner attorneys’ fees only for the duration of the case that occurred prior to 

the point in which petitioner’s claim no longer had a reasonable basis. Id. at *20.

The Special Master determined the awarded costs based on the period during which 

petitioner’s claim appeared to have a viable reasonable basis—through March 16, 2016—but 

reduced the attorneys’ fees award where the requested compensation was unreasonable. Id. at 

*19–*20. Special Master Moran determined that the reasonable amount of attorneys’ fees for the 

portion of the entitlement phase in which a reasonable basis was supported was $87,505.50, 

which includes a onetime reduction of $750 to account for discrepancies in the attorneys’

reasonable hours. Id. at *19. Additionally, the Special Master found that, even during the period 

in which Ms. Frantz’s case had a reasonable basis, the quality of the reports Dr. Tornatore 

produced was “not commensurate with the work of an expert charging $400 per hour,” and, as a 

 

Master found that, because lesions had entered the non-enhancing phase 17 days after 

vaccination, they could not have been caused by the vaccination. Id. at *8. On review, the 

Court, and subsequently Federal Circuit, upheld the Special Master’s finding as neither arbitrary 

nor capricious. W.C., 100 Fed. Cl. at 443; W.C., 704 F.3d at 1354.
5

result, reduced Dr. Tornatore’s rate from $400 per hour to $250 per hour. Id. at *20. The final 

costs award, which included the payments made to petitioner’s expert, totaled $22,144.62. 

Frantz II at *21. The Special Master ultimately awarded petitioner a lump sum of $135,187.59

in attorneys’ fees and costs. Id.

On July 24, 2019, petitioner filed her Motion for Review of the Special Master’s 

compensation decision. See generally Petitioner’s Memorandum in Support of the Motion for 

Review of the Special Master’s June 24, 2019 Decision (hereinafter “Pet’r Mem.”). Petitioner 

alleged that the Special Master’s decision to only award partial fees was “arbitrary, capricious, 

an abuse of his discretion, and not in accordance with law.” Id. at 2–3. On August 22, 2019, 

respondent filed its Response, arguing that petitioner failed to identify reversible error and that 

the Special Master was acting within his discretion. See generally Respondent’s Response to 

Petitioner’s Motion for Review (hereinafter “Resp’t Mot.”). Petitioner’s Motion is fully briefed 

and ripe for review.

II. Standard of Review

Under the Vaccine Act, this Court may review a special master’s decision upon the 

timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)–(2). Upon receiving a timely 

request, the Court may “(A) uphold the findings of fact and conclusions of law . . . , (B) set aside 

any findings of fact or conclusion of law . . . found to be arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law . . . , or, (C) remand the petition to the 

Special Master for further action in accordance with the court’s direction.” Id. § 

300aa-12(e)(2)(A)–(C). Findings of fact and discretionary rulings are reviewed under an 

“arbitrary and capricious” standard, while legal conclusions are reviewed de novo. Munn v. 

Sec’y of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).

The arbitrary and capricious standard that the Court applies to factual findings is a 

“uniquely deferential” standard. Veryzer v. Sec’y of Health & Human Servs., 100 Fed. Cl. 344, 

350 (2011) (citing Doe v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 

2010)); see also Munn, 970 F.2d at 869–870 (emphasizing that the arbitrary and capricious 

standard is “well understood to be the most deferential possible.”). The Federal Circuit has held 

that in cases where the special master “has considered the relevant evidence in the record, drawn 

plausible inferences and articulated a rational basis for the decision, reversible error will be 

extremely difficult to demonstrate.” Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 

1528 (Fed. Cir. 1991).

III. Discussion

A. Reasonable Basis Review

Under the Vaccine Act, a special master may award reasonable attorneys’ fees and costs 

even if the petitioner does not prevail on their vaccine claim. 42 U.S.C. § 300aa-15(e)(1) (2018). 
6

Awarding fees and costs to a failed claim brought under the Vaccine Act is not mandatory and 

occurs only after determining that the petition was “brought in good faith and there was a 

reasonable basis for the claim.” Id. At issue here is the life of the reasonable basis of the claim, 

as petitioner alleges that the Special Master arbitrarily determined that the reasonable basis 

ended after petitioner filed her fourth expert report. 

In the context of the Vaccine Act, “good faith” is a subjective standard that “focuses upon 

whether the petitioner honestly believed he had a legitimate claim for compensation.” Turner v. 

Sec’y of Health & Human Servs., 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007)

(citing Di Roma v. Sec’y of Dept. of Health & Human Servs., 1993 WL 496981, at *1 (Fed. Cl. 

Spec. Mstr. Nov. 18, 1993)). If the special master determines that “petitioner held an honest 

belief that he has sustained a vaccine-related injury,” and that petitioner had not acted in bad 

faith, the special master may then “make a presumptive factual finding of good faith.” Id. at *5 

(citing Grice v. Sec’y of Dept. of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996)).

Petitioner clearly held an “honest belief” that she had sustained a vaccine injury 

throughout the early stages of her claim. Petitioner underwent an extensive litigation process, 

including hiring an expert witness and spending upwards of $325,000. See generally Pet’r Mem. 

Moreover, the Special Master found no evidence of bad faith on the part of Ms. Frantz. Frantz II 

at *8. 

A determination regarding the “reasonable basis” requirement” is “objective, looking not 

at the likelihood of success” of a claim but more to the viability of the claim. Woods v. Sec’y of 

Dept. of Health & Human Servs., 2012 WL 4010485, at *5 (Fed. Cl. Spec. Mstr. Aug. 23, 2012) 

(Woods III) (quoting Turner, 2007 WL 4410030, at *6). Such a determination considers the 

totality of circumstances of a petitioner’s claim, analyzing factors such as “‘the factual basis, the 

medical support . . . [and] jurisdictional issues,’ including the statute of limitations. . . when 

considering whether there was a reasonable basis for a claim.” Spahn v. Sec’y of Health & 

Human Servs., 133 Fed. Cl. 588, 599 (2017) (quoting in relevant part Simmons v. Sec’y of Health 

& Human Servs., 105 Fed. Cl. 579, 583 (2016) (citing Chuisano v. United States, 116 Fed. Cl. 

276, 288 (2014))). While special masters often look to expert reports in analyzing whether there 

is a reasonable basis for a petitioner’s claim, “expert testimony in and of itself does not 

determine reasonableness.” Murphy v. Sec’y of Dept. of Health & Human Servs., 30 Fed. Cl. 60, 

62 (1993). 

Additionally, a petition may have a reasonable basis when initially filed but lack a 

reasonable basis at a later phase if, among other things, “an expert report is unsupported and 

deficient.” Woods III, 2012 WL 4010485, at *5. In such a case, a partial award of attorneys’

fees and costs is permitted for the duration of the case up to and until a petitioner’s theory of 

causation is discredited. See, e.g., Hooker v. Sec’y of Health & Human Servs., 2017 WL 

3033940, at *22 (Fed. Cl. Spec. Mstr. Apr. 11, 2017) (declining to award attorneys’ fees and 

costs incurred after petitioner’s causation theory was rejected). 
7

Petitioner contends that the Special Master improperly relied on the Cotton article in 

determining whether there existed a reasonable basis for her claim, arguing that the small size of 

the research survey and the averages it produced should not overshadow the totality of Ms. 

Frantz’s circumstances. Pet’r Mem. at 22–23. However, the Court affords special masters wide 

latitude in determining the weight of evidence, and, absent “extreme circumstances,” will not 

substitute its judgment for that of the special master. Munn v. Sec’y of Health & Humans Servs., 

21 Cl. Ct. 345, 350 (1990), aff’d, 970 F.2d 863 (Fed. Cir. 1992); see Holmes v. Sec’y of Health & 

Human Servs., 115 Fed. Cl. 469, 483 (2014) (citing Lampe v. Sec’y of Health & Human Servs., 

219 F.3d 1357, 1362 (Fed. Cir. 2000)) (“A special master’s ‘assessments of the credibility of the 

witnesses’ and of ‘the relative persuasiveness of the competing medical theories of the case’ are 

‘virtually unchallengeable on appeal.”). Given this deference, the Court will not overturn the

Special Master’s determination that the Cotton article called Dr. Tornatore’s findings into 

question and discredited petitioner’s causation theory. Petitioner may disagree with Special 

Master Moran’s evaluation of the relevant evidence and competing medical theories, but that 

does not in itself satisfy the high bar set by the arbitrary or capricious standard. 

The Special Master determined that Ms. Frantz’s claim ceased to maintain the reasonable 

basis created by the original documentation of her claim when Dr. Tornatore was unable to 

counter respondent’s evidence regarding Ms. Frantz’s lesions. On several occasions, respondent

presented evidence that Ms. Frantz’s lesions may have predated her vaccinations. See Frantz II

at *3–*6. In an April 30, 2015 report, Dr. Subramaniam Sriram,15 respondent’s expert, asserted 

that the lesions that resulted in Ms. Frantz’s muscular failure likely could not have developed in 

the two days after the vaccination. Frantz II at *3. Moreover, it was unlikely that the lesions 

developed in the six days between the vaccinations and Ms. Frantz’s first MRI on August 12, 

2010. Id. In a December 4, 2015 report, Dr. Sriram reiterated her concerns regarding the low 

likelihood that Ms. Frantz’s lesions would develop, present on an MRI as enhancing, and then 

present on an MRI as non-enhancing within the post-vaccination window. Id. at *4. In response, 

Dr. Tornatore neither challenged the validity of the timeline established by the Cotton article nor 

responded to Dr. Sriram’s findings, but instead questioned the MRI techniques utilized. Id.

The Special Master’s reasonable basis determination is not arbitrary as it directly and 

temporally relates to the point in which Ms. Frantz’s theory of causation was clearly discredited. 

Petitioner’s causation theory was discredited when petitioner’s expert failed to dispute evidence 

that petitioner’s lesions and resulting neurological condition pre-dated the vaccination. 

 

15 Dr. Sriram received an M.B. and a B.S from the University of Madras, in Madras, India. 

Literature and C.V of Dr. Sriram, ECF No. 59-4 at 1. He served as a Medicine Intern and 

Internal Medicine Resident at Wayne State University before becoming a Neurology Resident, 

the Chief Neurology Resident, and Post-Doctoral Fellow of Neuroimmunology at Stanford 

University. Id. At the time of Frantz II, Dr. Sriram was working at Vanderbilt University as the 

William Weaver Professor of Experimental Neurology and the Joint appointment Professor of 

Pathology, Microbiology, and Immunology. Id. at 2. Dr. Sriram has received multiple grants 

from the National Multiple Sclerosis Society and hosted MS work shops around the country. Id.

at 3–4, 6–7.
8

Petitioner alleges that the Special Master inappropriately “treat[ed] his reasonable basis analysis 

and his entitlement analysis exactly the same.” Pet’r Mem. at 26 (emphasis in original). The 

Court disagrees with petitioner’s understanding. While petitioner had a reasonable basis for 

filing her initial claim, once the foundation of Ms. Frantz’s causation theory was clearly 

discredited, there was no longer a reasonable basis for the continued pursuit of that claim. See 

Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 573 (2017) (“The Special 

Master ultimately held that . . . Petitioner had failed to prove that her claim had a reasonable 

basis, finding the medical records collected at the time the petition was filed did not support 

causation . . . .”).

Reasonable-basis review requires objective evidence of the reasonable basis of claim. 

See Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017) 

(establishing a baseline of objective evidence for a reasonable basis review). Dr. Tornatore’s 

failure to dispute evidence that the lesions pre-dated the vaccination triggered the point at which

continued pursuit of a claim with a discredited causation theory was without a reasonable basis. 

Special Master Moran performed a thorough examination of litigation to pinpoint exactly when 

the claim could no longer retain a reasonable basis, and awarded Ms. Frantz “the benefit of the 

doubt,” even when “the reasonable basis for Ms. Frantz’s continued litigation [became]

doubtful.” Frantz II at *15. Moreover, the Special Master warned the petitioner that, due to the 

strong parallels to W.C., the claim likely lacked a reasonable basis. Id. at *6. Therefore, it seems 

clear to the Court that the Special Master’s evaluation centered not around the likelihood that the 

claim would succeed, but, rather, on an objective evaluation of the relevant medical information 

that served as the basis for petitioner’s claim.

Petitioner asserts that Special Master Moran contradicted himself in determining the 

onset of Ms. Frantz’s symptoms and establishing a timeline for enhancing versus non-enhancing 

lesions. See Pet’r Mem. at 18–19, 23–24, 26. Petitioner specifically points to statements from

the bench that Ms. Frantz’s symptom’s likely developed within 36 hours of the vaccination, 

which fell within the proposed timeline that the Special Master ultimately found inconsistent. Id. 

at 19–20. Petitioner’s assertion fails for two reasons. First, much like W.C., where the Court 

found the petitioner’s proposed timeline was possible but deferred to the Special Master’s 

discretionary determination that the respondent’s timeline was more likely, here Special Master 

Moran was appropriately exercising his discretion by determining that the respondent’s proposed 

timeline, which claimed that Ms. Frantz’s condition pre-dated the vaccination, was more likely. 

See Frantz II at *7; see also Munn, 21 Cl. Ct. at 350 (“In the [Vaccine Program], weight given 

evidence in the record is a matter particularly within the responsibilities of the special master.”). 

Second, petitioner fails to distinguish between the onset of Ms. Frantz’s symptoms and the onset 

of her condition. The Court acknowledges a single onset of a condition. See Shalala v. 

Whitecotton, 514 U.S. 268, 274 (1995) (“There cannot be two first symptoms or onsets of the 

same injury.”). Therefore, given Special Master Moran’s determination that the condition

predated the vaccination, the onset of symptoms in relationship to the vaccine is irrelevant. See 

Frantz II at *7.
9

B. Hourly Rate Reduction

A special master’s determination of attorneys’ fees is highly discretionary. See Saxton v. 

Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993) (“The determination of the 

amount of reasonable attorneys’ fees is within the special master’s discretion.”); see also Caves 

v. Sec’y of Health & Human Servs., 111 Fed. Cl. 774, 778 (2013) (“A special master’s 

determination of reasonable attorneys’ fees and costs in a Vaccine Act case is a discretionary 

ruling that is entitled to deference . . . .”). In calculating such an award, a special master must 

determine whether “the hours spent [by an expert] on the case were reasonable.” Wilcox v. Sec’y 

of Dept. of Health & Human Servs., 1997 WL 101572, at *4 (Fed. Cl. Spec. Mstr. Feb. 14, 

1997). 

The Court has held that “[f]ees for experts are subject to the same reasonableness 

standards as fees for attorneys.” Crossett v. Sec’y of Dept. of Health & Human Servs., 1990 WL 

293878, at *4 (Fed. Cl. Spec. Mstr. Aug. 3, 1990). For attorneys, a reasonable hourly rate is the 

rate “prevailing in the community for similar services by lawyers of a reasonably comparable 

skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). “Hours that 

are excessive, redundant, or otherwise unnecessary,” are not compensable. Saxton, 3 F.3d at

1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

In determining the appropriate compensation for experts, a special master may consider 

the following factors:

(1) [T]he witness’ area of expertise; (2) the education and training required to 

provide the expert insight that is sought; (3) the prevailing rates for other 

comparably respected available experts; (4) the nature, quality and complexity of 

the [information] provided; (5) the cost of living in the particular geographic area; 

and (6) any other factor likely to be of assistance to the [Special Master] in 

balancing the interests implicated by the [Vaccine Act]. 

Wilcox, 1997 WL 101572, at *4 (citing McClain v. Owens-Corning Fiberglass Corp., 1966 WL 

650524, *3 (N.D.Ill.)). Special masters “are also entitled to use their prior experience in 

reviewing fee applications.” Saxton, 3 F.3d at 1521 (citing Farrar v. Sec’y of Dept. of Health & 

Human Servs., 192 WL 336502, at *2–*3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)). 

The Court applies the lodestar approach “to determine what constitutes ‘reasonable 

attorneys’ fees’ under the Vaccine Act.” Avera v. Sec’y of Health & Human Servs., 515 F.3d 

1343, 1347 (Fed. Cir. 2008) (citing Saxton, 3 F.3d at 1521). Using that approach, the Court “first 

determines an initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours 

reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347–48 (quoting 

Blum, 465 U.S. at 888). Once the initial calculation has been made, the Court will then “make an 

upward or downward departure to the fee award based on other specific findings.” Avera, 515 

F.3d at 1348 (citing Blum, 465 U.S. at 888). 
10

Petitioner does not dispute the initial estimate of reasonably expended hours, but, rather, 

she alleges that the Special Master’s decision to reduce the hourly rate was an abuse of 

discretion. Pet’r Mem. at 35. During the compensable period of litigation, Dr. Tornatore spent 

73.5 hours on the case, at $400 per hour, for a total of $29,400.00. Frantz II at *20. However, 

Special Master Moran found that, of the fifty-nine pages in Dr. Tornatore’s report, fifty-six were 

summarizations of medical records that “turned out not to be relevant to the outcome of the 

case,” and only three pages contained substantive analyses. Id. 

Petitioner argues that the Special Master inappropriately relied on the Cotton article and 

W.C. in reducing expert fees. See Pet’r Mem. at 39. Additionally, petitioner claims that the fee 

reduction runs contrary to Congress’ intent in enacting the Vaccine Act—to encourage qualified 

experts to support petitioners litigating under the Act. See id. at 40–41. For the reasons set forth

above, the Special Master exercised appropriate discretion in relying on the Cotton article and 

W.C. in calculating expert fees. Dr. Tornatore’s failed to address either the Cotton article or

W.C., or to respond to evidence contradicting his medical theory. The Special Master may 

exercise his discretion in considering such an omission when determining the value of Dr. 

Tornatore’s work. 

Despite petitioner’s arguments related to Dr. Tornatore’s experience and past 

participation in the program, the Special Master acted within the bounds of his discretion in 

determining that the expert’s work was not worth the charged hourly rate. The Court has 

acknowledged that prior participation in cases before the Office of the Special Masters does not 

create an assumption of credibility or performance when the quality of testimony is substandard. 

See, e.g., A.W. v. Sec’y of Health & Human Servs., 2019 WL 518512, at *7 (2019). Special 

masters determine the value of an expert’s work on an individual case basis. As such, Special 

Master Moran was well within the bounds of his discretion in reducing the compensation for Dr. 

Tornatore’s work on this case, regardless of his qualifications and history with the Court. 

While the Court acknowledges the importance of petitioner access to quality expert 

support, it also recognizes the danger of rewarding experts for mere participation—particularly 

when such participation is substandard. Capable experts would not be encouraged to participate 

in vaccine litigation if their work was rewarded, and subsequently compensated, at the same rate 

as substandard experts. See A.W., 2019 WL 518512, at *8 (“A system in which experts would be 

paid substantial amounts of money, regardless of the quality of their opinion, may harm future 

petitioners whose cases would be delayed as special masters resolved other weak cases 

buttressed by baseless expert opinions . . . .”). Therefore, the Court finds that the Special 

Master’s decision to reduce the fee award was neither arbitrary, capricious, nor contrary to law.

IV. Conclusion

This Court finds that the Special Master’s decision was neither an abuse of discretion nor 

contrary to law, and that the Special Master’s findings were neither arbitrary nor capricious. For 
11

the foregoing reasons, petitioner’s Motion for Review of the Special Master’s June 24, 2019 

Decision is hereby DENIED. The Clerk of Court is directed to enter judgment, consistent with 

this opinion.

IT IS SO ORDERED.

s/ Loren A. Smith

Loren A. Smith,

Senior Judge