In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 17-215V
                                      Filed: October 8, 2019
                                          UNPUBLISHED


    JULIA BALASCO,
                                                              Special Master Horner
                         Petitioner,
    v.                                                        Interim Attorneys’ Fees and Costs
                                                              Decision
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                        Respondent.


Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.

               DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

        On August 26, 2019, petitioner moved for an award of interim attorneys’ fees and
costs in the amount of $83,412.75. (ECF No. 65.) 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. 68.) However, respondent did note that he
is satisfied that the statutory requirements for an award of attorneys’ fees and costs
have been met in this case. (Id. at 2.) For the reasons discussed below, I award
petitioner interim attorneys’ fees and costs in the reduced amount of $82,408.75.

         I.     Procedural History

        Petitioner filed this claim on February 14, 2017, seeking compensation for, inter
alia, postural orthostatic tachycardia syndrome (“POTS”) and autonomic dysfunction



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.
caused by the Gardasil human papillomavirus (“HPV) vaccination.2 (ECF No. 1.) This
case was originally assigned to Special Master Millman. (ECF No. 4.) Petitioner filed
an initial statement of completion on April 12, 2017. (ECF No. 9.) Additional records
were required and an amended statement of completion was filed on June 23, 2017.
(ECF No. 15.)

      Thereafter, petitioner filed expert reports by Drs. Yehuda Shoenfeld and Mitchell
Gordon Miglis, along with supporting literature, in October, November, and December of
2017. (ECF Nos. 22-28.) Respondent then filed a Rule 4 Report recommending
against a finding of entitlement to compensation and two responsive expert reports by
Drs. Whitton and Talman in May of 2018. (ECF Nos. 35-36.) Petitioner filed responsive
supplemental reports by Drs. Shoenfeld and Miglis in June and July of 2018. (ECF Nos.
37-40.) Respondent, in turn, also filed a supplemental expert report by Dr. Talman.
(ECF No. 42.)

        On November 5, 2018, petitioner filed a letter by Michaela Balasco memorializing
petitioner’s desire to avoid a hearing and petitioner filed a motion for a ruling on the
record on November 5, 2018. (ECF Nos. 49-50.) Petitioner’s motion was fully briefed
by January 21, 2019 (ECF Nos. 54, 55); however, due to Special Master Millman’s
retirement and additional filings by the parties, the motion did not immediately become
ripe.

        On July 18, 2019, this case was reassigned to me. (ECF No. 61.) On August 5,
2019, I held a status conference during which petitioner confirmed that she wished to
proceed with her motion for a ruling on the record. (ECF No. 63.) Subsequently,
petitioner filed a motion for an award of interim attorneys’ fees and costs on August 26,
2019. (ECF No. 65.) At that time, petitioner’s motion for a ruling on the record was
pending, but not yet ripe for decision. (ECF No. 63.)

       Respondent filed his response to the instant motion on August 28, 2019 (ECF
No. 68) and petitioner filed no reply. Accordingly, petitioner’s motion for interim
attorneys’ fees and costs is now ripe for resolution.

    II.     Discussion

            a. An Award of Interim 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., 

, 1352 (Fed. Cir. 2008). In his

2Initially this case was captioned as Michaela Balasco and Steven Balasco on behalf of their minor child,
J.B. The caption was changed on October 18, 2018, after Julia Balasco reached the age of majority.
(ECF No. 47.)

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response, respondent indicated that he is satisfied this statutory standard has been met
in this case. (ECF No. 68, 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
Services, 

(Fed. Cir. 2010); 

. In Avera, the
Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases where
proceedings are protracted and costly experts must be retained.” 

the
Federal Circuit clarified that “where the claimant 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’ 

.
Respondent deferred to my discretion as to whether the standard for an interim award
of fees and costs is appropriate in this case. (ECF No. 68, p. 2.)

         Here, petitioner’s request for interim fees and costs is made after more than two
years of litigation within the entitlement phase of this case and after petitioner incurred
expenses for two different expert opinions to support her claim. And, although
petitioner’s motion also comes after petitioner moved for a ruling on the record, that
motion has not yet been decided and, given the possibilities of either a damages phase
of litigation and/or a motion for review, the timing of the ultimate resolution of this claim
remains unknown. Accordingly, I find that petitioner’s request for an award for interim
attorneys’ fees and costs is reasonable at this juncture.

          b. Reasonableness of the Requested Award

       The determination of the amount of reasonable attorneys' fees is within the
special master's discretion. See, e.g. Saxton v. Sec’y of Health & Human Servs., 

, 1520 (Fed. Cir. 1993). Special Masters have “wide latitude in determining the
reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human
Servs., 

, 753 (Fed. Cl. 1991). Moreover, special masters are entitled to
rely on their own experience and understanding of the issues raised. Wasson v. Sec’y
of Health & Human Servs., 

, 483 (Fed. Cl. 1991) aff’d in relevant part, 

(Fed. Cir. 1993) (per curiam).

       In this case, petitioner seeks interim attorneys’ fees of $63,726.00 and costs of
$19,686.75, including $18,340.00 in expert costs. (ECF No. 65-1, pp. 47-49.) I have
reviewed the billing records submitted with petitioner’s request and, in my experience,
the hourly rates billed for attorney time, paralegal time, and expert time, are all
reasonable and also in accord with prior awards made by other special masters.
Additionally, I find that the requested interim attorneys’ costs are all reasonable.

       However, turning to the hours billed, 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, 

(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, 

7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent),
mot. for rev. denied, 

(2016). Additionally, special masters have
previously found it reasonable to reduce the fees paid to petitioners due to billing for
intra-office communication. Soto v. Sec’y of Health & Human Servs., No. 09-897V,

, at *6 (Fed. Cl. Spec. Mstr. June 7, 2011); Carcamo v. Sec’y of
Health & Human Servs., No. 97-483V, 

, at *7 (Fed. Cl. Spec. Mstr.
May 20, 2011).

       After reviewing the billing records, I find that counsel included entries that are
duplicative and excessive due to attorneys and paralegals billing for attending the same
case meetings/conferences, communicating with each other regarding the same
matters, and reviewing/receiving the same orders and medical records. These
duplicative billing entries result in a reduction of $843.00 of the interim fee award.3

       Additionally, the hours billed by paralegal Danielle Avery for processing payment
are considered administrative tasks and thus, will be reduced. See Tucker v. Sec’y of
Health & Human Servs., No. 17-566V, 

, at *2 (Fed. Cl. Spec. Mstr.
Apr. 2, 2019) (adjusting the overall award to reduce time billed by paralegal Danielle
Avery for processing payments). These administrative billings result in a further
reduction of $161.00 of the interim fee award.4

    III.    Conclusion

      In light of the above, petitioner’s motion for an award of interim attorneys’ fees
and costs is hereby GRANTED and petitioner is awarded $82,408.75, representing
$62,722.005 in interim attorneys’ fees and $19,686.75 in interim attorneys’ costs.

      Accordingly, I award the total of $82,408.75 as a lump sum in the form of a
check jointly payable to petitioner and petitioner’s counsel Andrew Donald
Downing, Esq.


3 For Ms. Van Cottt, 2.50 hours were reduced from her overall billing, resulting in a reduction of $502.50
for entries billed on May 23, 2017, September 15, 2017, December 11, 2017, July 18, 2018, October 23,
2018, January 14, 2019, June 7, 2019, July 17, 2019, and August 5, 2019. For Mr. Cain, 0.30 hours were
reduced from his overall billing, resulting in a reduction of $40.50 for his entry on May 18, 2019. For Ms.
Avery, 2.30 hours were reduced from her overall billing, resulting in a reduction of $300.00 for entries
billed on December 16, 2016, January 9, 2017, April 11, 2017, May 8, 2017, June 16, 2017, December
11, 2017, May 18, 2018, July 17, 2018, June 7, 2019, June 10, 2019, July 17, 2019, July 18, 2019, and
August 5, 2019.
4There was time billed for administrative tasks on November 7, 2016, November 21, 2016, December 1,
2016, December 12, 2016, January 19, 2017, May 18, 2017, and February 1, 2018. Although reductions
were made only for billing entries that reflected exclusively administrative tasks, counsel is reminded that
block billing is also disfavored.
5$63,726.00 (requested interim attorneys’ fees) - $1,004.00 (reduction for duplicative and excessive
billing and administrative tasks) = $62,722.00.


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        The clerk of the court shall enter judgment in accordance herewith.6

IT IS SO ORDERED.

                                                           s/Daniel T. Horner
                                                           Daniel T. Horner
                                                           Special Master




6 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.

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