In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-22V

Filed: December 10, 2020

UNPUBLISHED

SUZANNE MULRENIN, on behalf of 

her minor child, R.M.,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On September 1, 2020, petitioner moved for an award of interim attorneys’ fees 

and costs in the amount of $67,886.16. (ECF No. 45.) In response, respondent 

deferred to the special master regarding both the amount and appropriateness of an 

award of interim attorneys’ fees and costs. (ECF No. 46.) However, respondent did 

note that “respondent is satisfied the statutory requirements and other legal 

requirements for an award of attorneys’ fees and costs are met.” (Id. at 2.) For the 

reasons discussed below, I award petitioner interim attorneys’ fees and costs in reduced 

amount of $65,321.16.

I. Procedural History

On January 4, 2018, petitioner filed a petition under the National Childhood 

Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that her minor child, R.M., 

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will 

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government 

Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This means the decision will be available to anyone with access to the 

Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact 

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy. 

If the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.

Special Master Horner

Interim Attorneys’ Fees and 

Costs Decision; Expert Costs; 

Reasonable Hourly Rate
2

experienced post-vaccination symptoms later diagnosed as a Mast Cell Activation 

Syndrome (“MCAS”), caused or significantly aggravated by her November 16, 2015 

influenza (“flu”) vaccination. (ECF No. 1.) 

This case was originally assigned to Special Master Millman. (ECF No. 4.) 

Petitioners filed records to a support her claim and a Statement of Completion. (ECF 

Nos. 6-9, 11, 13, 14.) Thereafter, respondent filed his Rule 4(c) report, recommending 

against compensation on May 17, 2018. (ECF No. 19.) 

Petitioner then filed an expert report from Dr. Jonathan A. Bernstein, allergist and 

immunologist. (ECF No. 21.) In response, respondent filed an expert report from Dr. 

Andrew J. MacGinnitie. (ECF No. 24.) This case was reassigned to my docket on June 

5, 2019. (ECF No. 30.) Subsequently, I held a status conference and asked the parties 

to file a round of supplemental reports from their respective experts. 

On January 20, 2020, petitioner filed a supplemental report from Dr. Bernstein 

and on February 24, 2020, respondent filed a supplemental report from Dr. MacGinnitie. 

(ECF Nos. 34, 37.) Thereafter, petitioner proposed resolving this case based on the 

written record and respondent had no objection. (ECF No. 38.) On June 12, 2020, 

petitioner moved for a decision on the record, on July 31, 2020, respondent filed his 

response, and on August 7, 2020, petitioner filed a reply. (ECF Nos. 41-42, 44.) 

Petitioner filed the instant motion for interim attorneys’ fees and costs on 

September 1, 2020, respondent filed his response on September 8, 2020, and petitioner 

did not file a reply. (ECF Nos. 45-46.) Accordingly, petitioner’s motion for interim 

attorneys’ fees and costs is now ripe for resolution. 

II. An Award of Interim Attorneys’ Fees and Costs is Appropriate

Section 15(e)(1) of the Vaccine Act allows for the special master to award 

“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are 

entitled to an award of reasonable attorneys' fees and costs if they are entitled to 

compensation under the Vaccine Act, or, even if they are unsuccessful, if the special 

master finds that the petition was filed in good faith and with a reasonable basis. Avera 

v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). In his 

response, respondent indicated that the statutory requirements were met in this case. 

(ECF No. 46, p. 2.) I agree. 

Additionally, the Federal Circuit has concluded that interim fee awards are 

permissible and appropriate under the Vaccine Act. Shaw v. Sec’y of Health & Human 

Servs., 609 F.3d 1372 (Fed. Cir. 2010); Avera, 515 F.3d at 1352. In Avera, the Federal 

Circuit stated, “[i]nterim fees are particularly appropriate in cases where proceedings 

are protracted and costly experts must be retained.” Id. In denying an interim fee 

award, the Avera court reasoned, “The amount of fees here was not substantial; 

appellants had not employed any experts; and there was only a short delay in the award 

pending the appeal.” Id. In Shaw, the Federal Circuit clarified that “where the claimant 
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establishes that the cost of litigation has imposed an undue hardship and there exists a 

good faith basis for the claim, it is proper for the special master to award interim 

attorneys’ fees.” 609 F.3d at 1375. Here, petitioner’s request for interim attorneys’ 

fees and costs is made after more than two years of litigation within the entitlement 

phase of this case and after petitioner incurred costs for providing multiple expert 

reports to support her claim. 

III. Reasonableness of the Requested Award

a. Attorneys’ Fees

It is “well within the special master’s discretion” to determine the reasonableness 

of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 

1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) 

(“[T]he reviewing court must grant the special master wide latitude in determining the 

reasonableness of both attorneys’ fees and costs.”). The Federal Circuit has approved 

the lodestar approach to determine reasonable attorneys’ fees and costs under the 

Vaccine Act. Avera, 515 F.3d at 1347. This is a two-step process. Id. at 1347-48. 

First, a court determines an “initial estimate...by ‘multiplying the number of hours 

reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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. 

A reasonable hourly rate is “the prevailing market rate defined as the rate 

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

skill, experience, and reputation.” Avera, 515 F.3d at 1348 (citation and quotation 

omitted). The decision in McCulloch provides a further framework for consideration of 

appropriate ranges for attorneys’ fees based upon the experience of the practicing 

attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 

5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motions for recons. denied, 2015 

WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office of Special Masters has 

subsequently updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee 

Schedules for 2015-2016, 2017, 2018, 2019 and 2020 can be accessed online.2

In this case, petitioner is seeking $60,946.50 in interim attorneys’ fees for work 

performed in 2017 through 2020. I have reviewed the billing records submitted with 

petitioner’s request, and in my experience, the hourly rates billed for 2017 through 2020

for attorney time and paralegal time are all reasonable and in accord with prior awards 

made by other special masters. 

2 Each of the Fee Schedules for 2015 through 2020 can be accessed at 

http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived 

from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, and 2020 are 

adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”). 
4

Turning next to the requested hours expended, special masters may rely on their 

experience within the Vaccine Program to determine the reasonable number of hours 

expended. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), 

rev’d on other grounds and aff’d in relevant part ̧ 988 F.2d 131 (Fed. Cir. 1993). Special 

masters have previously reduced the fees paid to petitioners due to excessive and 

duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016 

WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 

percent due to excessive and duplicative billing); Raymo v. Sec’y of Health & Human 

Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced 

overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). Special 

masters can reduce a fee request sua sponte, without providing petitioners notice and

opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 

201, 209 (2009). 

First, after reviewing the billing records, I find that counsel included entries that 

are duplicative and excessive due to attorneys and paralegals billing for reviewing the 

same orders and attending the same status conference. For duplicative entries, only 

hours billed by Mr. Downing, the lead attorney in this case, will be awarded. These 

duplicative billing entries result in a reduction of $450.50 of the interim fee award.3

Second, I find that the work billed by paralegal Danielle P. Avery for “analysis” of 

the medical records to be duplicative and excessive. Ms. Avery billed between 0.20 to 

0.40 hours for “analysis of medical records ... to determine begin and end date of 

records” for all the medical records received from different providers before preparing to 

file such records. (See e.g., ECF No. 45-1, pp. 17-27, 29-30, 32, 34, 37.) In some 

instances, Ms. Avery then followed by billing an additional 0.30 hours for “analysis of file 

to determine end date of previous records,” to update the file and request for 

supplemental records. (Id. at 26, 28-29, 31, 34, 37.) I find this work to be repetitive and 

does not reflect substantive work in pursuing this case. Moreover, these records are 

also reviewed substantively by either or both Courtney Van Cott, attorney, and/or 

Robert W. Cain, paralegal, and subsequently analyzed by Mr. Downing. Additionally, 

Ms. Avery included entries that are duplicative due to attorneys and paralegals billing for 

reviewing the same orders. When calculating these entries, Ms. Avery billed over 12 

hours of duplicative and/or excessive work. Therefore, I find the majority of the work 

billed by Ms. Avery to be unnecessary and will reduce her hours billed by 20%. This 

results in a reduction of $1,714.50 of the interim fee award. 

b. Interim Attorneys’ Costs

Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health & 

Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both 

3 There were duplicative entries billed by Courtney Van Cott on February 23, 2018, February 27, 2018, 

May 17, 2018, July 17, 2018, July 18, 2018, and November 18, 2019. Of note, at least three people 

reviewed respondent’s Rule 4(c) report and Ms. Van Cott additionally billed 0.2 hours to re-review the 

report. 
5

‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. 

Not only must any request for reimbursement of attorneys’ fees be reasonable, so also 

must any request for reimbursement of costs.”). An expert retained by the petitioner in 

the Vaccine Program will only be compensated at a reasonable hourly rate, and the 

petitioners have the burden of demonstrating that the expert costs incurred were 

reasonable. Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL 623833, 

at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2008).

In this case, petitioner seeks $6,939.66 in interim attorneys’ costs. The majority 

of the expenses incurred were expert costs billed by Dr. Bernstein, who is relatively new 

as an expert within the Vaccine Program. Therefore, there has not been a reasonable 

hourly rate set for Dr. Bernstein. Dr. Bernstein received his medical degree from the 

University of Cincinnati College of Medicine in 1985 and completed his fellowship in 

allergy and immunology at Northwestern University in Chicago. Dr. Bernstein currently 

holds a teaching position at his alma mater medical school, where he’s been since 

1990, and works at his practice, Bernstein Allergy Group and Clinical Research Center. 

His curriculum vitae identifies extensive research and publication work. Dr. Bernstein 

billed $5,000.00 for 10 hours of work (8 hours in 2018 and 2 hours in 2020) at $500 an 

hour. 

Many Vaccine Program cases provide a framework for determining the 

appropriate rate for experts in this program at a range between $250 and $500 an hour. 

See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *17 

(Fed. Cl. Spec. Mstr. Apr. 28, 2015) (awarding an hourly rate of $400 to an expert in 

neurology); Dingle v. Sec'y of Health & Human Servs., No. 08–579V, 2014 WL 630473, 

at *8 (Fed. Cl. Spec. Mstr. Jan. 24, 2014) (expert did not have “specialized knowledge

and experience” in the case to justify his requested hourly rate of $500 and, accordingly, 

rate was reduced to $400 per hour); Allen v. Sec'y of Health & Human Servs., No. 11–

051V, 2013 WL 5229796, at *2 (Fed. Cl. Spec. Mstr. Aug. 23, 2013) (approving a rate of 

$500 per hour for an expert in neurology and immunology and who also had expertise in 

a pertinent area to the issue in the case); Chen Bou v. Sec’y of Health & Human Servs.,

No. 04-1329V, 2007 WL 924495, at *10, *16 (Fed. Cl. Spec. Mstr. Mar. 9, 2007) 

(awarding an expert a rate of $350 per hour based in part on his poor performance in 

testifying at hearing, but noting that “[b]ased upon the information submitted [ ], with the 

appropriate set of facts the undersigned would have no issue with awarding the $500 

requested by petitioner”)). 

In 2018 a different special master observed, however, that “there does appear to 

be support for using $450 per hour as a reference point for a reasonable hourly rate for 

a medically-trained immunologist with extensive research experience.” Dominguez v. 

Sec’y of Health & Human Servs., No. 12-378V, 2018 WL 3028975, at *5 (Fed. Cl. Spec. 

Mstr. May 25, 2018); see also Lewis v. Sec’y of Health & Human Servs., 149 Fed. Cl. 

308 (2020) (approving of the $450 reference point identified in Dominguez). Although 

lower than what Dr. Bernstein has invoiced, I find that this constitutes a reasonable 

hourly rate for Dr. Bernstein’s work in this case in 2018. I will award the requested rate 

for his 2020 work. By way of comparison, this is also comparable to what Dr. Gershwin, 
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an immunologist who participates frequently in Vaccine Program cases, has billed for 

work performed as recently as 2019. A.S. by Svagdis v. Sec’y of Health & Human 

Servs., No. 15-520V, 2020 WL 3969874 (Fed. Cl. Spec. Mstr. June 4, 2020) (billing 

$450 per hour); but see Hoskins v. Sec’y of Health & Human Servs., No. 15-71V, 2017 

WL 3379270 (Fed. Cl. Spec. Mstr. July 12, 2017) (billing $500 per hour). 

Upon review of Dr. Bernstein’s two invoices, he spent 1.5 hours writing the first 

report, 2 hours writing the supplemental report, 6 hours on “review of records (includes 

review of literature,” and 0.5 hours on correspondence. (ECF No. 45-1, pp. 71, 74.) I 

find the 10 hours billed by Dr. Bernstein in this case to be reasonable and award him 

the hours in full.

The change in hourly rate for Dr. Bernstein results in a reduction of $400.00 in 

the interim costs award. Aside from the expert costs, the remaining costs were welldocumented and shall be awarded in full. 

IV. Conclusion

In light of the above, petitioner’s motion for an award of interim attorneys’ fees 

and costs is hereby GRANTED. Petitioner is awarded $65,321.16, representing 

$58,781.50 in interim attorneys’ fees and $6,539.66 in interim attorneys’ costs. 

Accordingly, I award a total of $65,321.16 as a lump sum in the form of a check 

payable to petitioner and her counsel, Andrew Donald Downing, Esq.

The clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

4 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.