In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                         No. 16-923V
                                     Filed: April 12, 2019

* * * * * * * * * * * * *
STEPHANIE NWALA and     *
EMMANUEL NWALA, as parents and
                        *                                          UNPUBLISHED
natural guardians of C.N., a minor,
                        *
                        *
         Petitioner,    *                                          Motion for Reconsideration;
                        *                                          Vaccine Rule 10(e); Expert
v.                      *                                          Rate; Decision on Attorneys’ Fees
                        *                                          and Costs
SECRETARY OF HEALTH     *
AND HUMAN SERVICES,     *
                        *
         Respondent.    *
* * * * * * * * * * * * *

Diana Stadelnikas, Esq., Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Gabrielle Fielding, Esq., US Department of Justice, Washington, DC, for respondent.

         RULING ON MOTION FOR RECONSIDERATION AND DECISION ON
                      ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

         On March 8, 2019, petitioners filed a Motion for Reconsideration of the undersigned’s
Decision on Attorneys’ Fees and Costs, issued on February 15, 2019. Motion, ECF No. 49.
Specifically, petitioners requested that the undersigned reconsider her decision to decrease the
award granted to petitioner’s expert, Dr. Joseph Rizzo. 

Upon review of Dr. Rizzo’s
qualifications, the quality of his work in this matter, and the quick resolution of this case following
the filing of his expert report, petitioners’ request is GRANTED.


1
  Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. 

   Procedural History

        On August 2, 2016, Stephanie and Emmanuel Nwala (“petitioners”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.,2 (“Vaccine Act” or “ Vaccine Program”) as parents and natural guardians of their minor
son, C.N. Petitioners alleged that C.N. developed oculomotor never palsy of the right eye after
receiving the hepatitis A, measles mumps rubella (“MMR”), and varicella vaccinations on January
15, 2014. Petition, ECF No. 1.

         After filing several medical records, Petitioners’ Exhibits (“Pet. Ex.”) 1-15, ECF Nos. 5-7,
10, 16, petitioners filed an expert report from Dr. Joseph Rizzo III, M.D., along with his curriculum
vitae, on October 25, 2017. Pet. Ex. 18-19, ECF No. 23. Petitioners filed supporting medical
literature on October 26, 2017. Pet. Ex. 20-59, ECF Nos. 24-28.

        Approximately six weeks later, on December 11, 2017, respondent filed a status report
advising he was willing to engage in settlement discussions. Respondent’s Status Report (“Resp.
S.R.”), ECF No. 29. After several months of negotiations, respondent filed a Stipulation for Award
on October 15, 2018. Stipulation, ECF No. 39. The undersigned issued a Decision on the
Stipulation the same day. Decision, ECF No. 40.

        On November 26, 2018, petitioners filed a motion for attorneys’ fees and costs (“Fees
Motion”). Fees Motion, ECF No. 45. Petitioners requested attorneys’ fees in the amount of
$34,127.80 and costs in the amount of $11,362.88, for a total of $45,490.68. 

Specifically,
petitioner requested costs for their expert, Dr. Joseph Rizzo, in the amount of $9,912.50. Id.; Pet.
Ex. 2 at 36. Dr. Rizzo billed 15.25 hours of work at a rate of $650.00 per hour. Fees Motion Ex. 2
at 36. Petitioners provided no documentation in support of Dr. Rizzo’s requested hourly rate, even
though the rate is $200.00 above the highest rate paid to a seasoned expert in the Vaccine Program.
See Green v. Sec’y of Health & Human Servs., 15-1447V, 

, at *4 (Fed. Cl. Spec.
Mstr. Nov. 16, 2017); Rosof v. Sec’y of Health & Human Servs., No. 14-766V, 

,
at *4 (Fed. Cl. Spec. Mstr. Mar. 31, 2017). On November 29, 2018, respondent filed a response to
petitioners’ Fees Motion, stating, “Respondent is satisfied the statutory requirements for an award
of attorneys’ fees and costs are met in this case,” and requesting that the undersigned “exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Response at 2-3, ECF
No. 50. Petitioners filed their reply to respondent’s response on the same day, reiterating their
belief that the requested fees and costs were reasonable. Reply at 4-5, ECF No. 47.

        On February 15, 2019, the undersigned issued a Decision on Attorneys’ Fees and Costs in
which Dr. Rizzo was awarded $450.00 per hour for his work in this case as petitioners filed no
documentation that supported awarding Dr. Rizzo costs above the highest hourly rate awarded,
despite his lack of experience in the Vaccine Program.

       On March 8, 2019, petitioners filed a Motion for Reconsideration of Expert Rates (“Motion
for Reconsideration”) requesting that the Court reconsider its decision to decrease Dr. Rizzo’s
award amount. Motion for Reconsideration at 1, ECF No. 49. Along with their motion, petitioners
provided curriculum vitaes of experts with comparable experience to Dr. Rizzo and their standard

2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
                                                      2
hourly rates, along with Dr. Rizzo’s standard hourly fee schedule for non-Vaccine Program cases.
See Pet. Ex. 59-64. In their Motion for Reconsideration, petitioners argued that the reasonableness
of Dr. Rizzo’s proposed expert rate should be evaluated using five relevant factors set forth in
Sabella. Motion for Reconsideration at 2 (citing Sabella v. Secretary of Health and Human
Services, 

(Fed. Cl. 1992)). Petitioners then provided support for each of the above
factors in favor of Dr. Rizzo’s proposed hourly rate. Motion for Reconsideration at 2-6.

        The undersigned withdrew her February 15, 2019 Decision on Attorneys’ Fees and Costs
in order to properly rule on petitioners’ Motion for Reconsideration. Order, ECF No. 50. On March
18, 2019, the undersigned granted petitioners’ Motion for Reconsideration, noting that whether
petitioners would be entitled to the substantive relief requested in their motion would be
determined after further analysis. 

Respondent filed a response to petitioners’ Motion for
Reconsideration on March 22, 2019, in which he deferred to the undersigned’s discretion to
determine a reasonable hourly rate for petitioners’ expert. Response at 1, ECF No. 52.

       This matter is now ripe for determination.

                          II.   Petitioners’ Motion for Reconsideration

                                            A. Legal Framework

        Vaccine Rule 10(e) governs motions for reconsideration. It is within a special master’s
discretion to grant or deny the motion “in the interest of justice.” Vaccine Rule 10(e)(3). Special
masters have construed the “interest of justice” standard articulated in Vaccine Rule 10(e)(3) as a
lesser standard than the showing of “manifest injustice” required by RCFC Rule 59(a). See, e.g.,
R.K. v. Sec’y of Health and Human Servs., No. 03-632V, 

, at *5 (Fed. Cl. Spec.
Mstr. Nov. 12, 2010). Moreover, Vaccine Rule 10 provides a special master with “significant
discretion to determine in a particular case what result is in the interest of justice.” McAllister v.
Sec’y of Health and Human Servs., No. 03-2476V, 

, at *1 (Fed. Cl. Spec. Mstr.
Oct. 6, 2011). Additionally, special masters are not required to provide “a detailed order denying
every argument for reconsideration.” Doe/17 v. Sec’y of Health and Human Servs., 

, 704 n.18 (2008).

                                                 B. Discussion

       Special masters have consistently declined to award more than $500.00 per hour to even the
most experienced experts in the Vaccine Program. See Green, 

at *4; Rosof,

at *4 (“[I]n the Vaccine Program, even the payment of $500.00 per hour is
rare.”). In the original decision on attorneys’ fees and costs issued on February 15, 2019, the
undersigned awarded petitioners’ expert an hourly rate of $450.00, which was a $200.00 reduction
of the $650.00 per hour petitioners originally requested in their Motion for Fees. This reduction
was a direct result of petitioners’ failure to provide corroborating documentation that supported
awarding Dr. Rizzo more than any other expert in the Vaccine Program and Dr. Rizzo’s lack of
experience in the Program. Thus, Dr. Rizzo’s requested overall award was reduced from $9,912.50
to $6,862.50.

       In their Motion for Reconsideration, petitioners argued that when a special master
determines the reasonableness of a proposed expert rate, she should consider five factors including:
(1) the area of the expert’s expertise; (2) the education and training required to provide necessary
                                                  3
insight; (3) the prevailing rates for other comparably respected available experts; (4) the nature,
quality, and complexity of the information provided; and (5) the cost of living in the expert’s
geographic area. Motion for Reconsideration at 2 (citing 

).3

        Petitioners outlined Dr. Rizzo’s impressive credentials including his double-board
certification in Neurology/Psychiatry and Ophthalmology, his teaching position at Harvard
Medical School, and his collaborative research at MIT. Motion for Reconsideration at 2.
Petitioners also noted that Dr. Rizzo is the director of Neuro-Ophthalmology at the Massachusetts
Eye and Ear Infirmary. 

information regarding comparable experts and their hourly rates
outside of the Vaccine Program. 

Dr. Alan Weingarden, a Neuro-Ophthalmologist from
the University of Minnesota receives an hourly rate of $750.00 for testifying as an expert witness,
Dr. Timothy McCulley, a Neuro-Ophthalmologist from the Johns Hopkins Wilmer Eye Institute
receives $750.00 per hour as an expert, Dr. Mark Kupersmith, a board-certified physician in
Neurology and Ophthalmology from the Mount Sinai Icahn School of Medicine charges $750.00
per hour for testifying as an expert, Dr. Ken Gorson, a board-certified neurologist from Tufts
School of Medicine receives an hourly rate of $750.00, and Dr. Wayne Cornblath, a physician who
is board certified in Neurology and Ophthalmology from the University of Michigan’s W.K.
Kellogg Eye Center receives $900.00 per hour for testifying as an expert. 

Petitioners
argue the prevailing expert rate for an expert with Dr. Rizzo’s qualifications is between $750.00
and $900.00 per hour. 

In fact, Dr. Rizzo typically charges an hourly rate of $750.00 for
testifying as an expert witness and had already agreed to reduce his hourly rate to the below-market
level of $650.00 per hour for work performed in the Vaccine Program. 

        Petitioners highlighted the work Dr. Rizzo performed in this case. 

They noted Dr.
Rizzo reviewed the medical records in this case, and over 40 publications related to C.N.’s eye
issues. 

“provided an in-depth expert report explaining the cause and effect
relationship between the vaccine and the development of a third cranial nerve palsy” and discussed
each Althen prong in relationship to the case. 

Ex. 18). Petitioners noted that while
respondent was initially hesitant to entertain settlement discussions, the parties were able to resolve
the case after Dr. Rizzo’s report was filed. 

pointed out that Dr. Rizzo’s
“high quality” expert reports prompted resolution of three other relevant cases. Id.; see e.g.,
McGehee v. Sec’y of Health & Human Servs., No. 14-1020 V, 

(Fed. Cl. Spec.
Mstr. Jan. 26, 2017), Beckner v. Sec’y of Health & Human Servs., No. 11-668V, 

(Fed. Cl. Spec. Mstr. Aug. 24, 2015), Chapnick v. Sec’y of Health & Human Servs., No. 10-210V,

(Fed. Cl. Spec. Mstr. Apr. 28, 2011).

       Petitioners noted that Dr. Rizzo lives in Boston, MA and that this Court has previously
determined Boston’s cost of living is comparable to that of Washington, DC. Motion for
Reconsideration at 5 (citing McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 

, at *10 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)). Accordingly, petitioners argued that
based on these factors, the requested costs for Dr. Rizzo’s involvement in this matter are
reasonable. Motion for Reconsideration at 5.



3
  Petitioners’ counsel should have argued this in their initial Fees Motion and provided all of the
corroborating information they provided in the Motion for Reconsideration so as to have avoided added
drain on judicial time and resources.
                                                  4
       Petitioners also included citations to cases in which special masters have previously
awarded experts’ costs at rates above the $500 per hour cap “where the overall amount requested
[was] deemed reasonable.” 

Dr. Thomas Wright, a board-certified orthopedist, was
awarded $600 per hour as his requested costs were deemed reasonable. Montague v. Sec’y of
Health & Human Servs., No. 16-0298V, 

, at *2 (Fed. Cl. Spec. Mstr. Sept. 19,
2018). Dr. Ram Ayyar, a neurologist, was awarded an hourly rate of $600 as his full costs were
found reasonable. 

Dr. Rohit Bakshi, a neuroradiologist, was awarded an hourly rate of
$1,500. Swintosky v. Sec’y of Health & Human Servs., No. 12-403V, 

(Fed. Cl.
Spec. Mstr. Nov. 6, 2017). Accordingly, petitioners argued Dr. Rizzo’s requested cost is similarly
reasonable and should be awarded. Motion for Reconsideration at 8.

         Finally, petitioners argued it is in the interest of justice for the Court to reevaluate the
general $500 cap on expert rates as it is difficult for petitioners to obtain well-qualified experts to
testify in their cases when the experts will be paid below-market rates. 

        Upon review of his certification and experience, it is clear Dr. Rizzo is highly qualified and
specialized. His double board certification, employment, and teaching and researching positions
make him one of only a handful of physicians with such specialized concentration, emphasized by
the fact that petitioners could only provide examples of five experts whose credentials even come
close to Dr. Rizzo’s in his field. See Motion for Reconsideration at 3-4.

        As pointed out by petitioners in their Motion for Reconsideration, it is increasingly difficult
for parties to retain highly credentialed specialists to participate in vaccine cases when the experts
will be paid below-market rates. Upon reflection, it is not the undersigned’s intent to thwart
attorneys’ abilities to secure highly qualified experts when, as was the case in this matter, these
experts may issue reports that lead to prompt resolution. The undersigned is not addressing Dr.
Rizzo’s specific hourly rate, but due to the quality of his work, his time invested in this case, and
the quick resolution of this matter following the filing of his report, the undersigned concludes that
Dr. Rizzo’s overall bill of $9,912.50 is appropriate. See McAllister, 

at *1.

       Accordingly, in the interest of justice, petitioners will be awarded $9,912.50 in costs for
Dr. Rizzo’s involvement in the case. Petitioners’ additional requested costs will be discussed
below.

                   III.    Petitioners’ Motion for Attorneys’ Fees and Costs

                                             A. Legal Framework

        Because the undersigned’s original Decision on Attorneys’ Fees and Costs was withdrawn
to properly rule on petitioners’ Motion for Reconsideration, petitioners’ application for attorneys’
fees and additional costs will now be addressed. The Vaccine Act permits an award of “reasonable
attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her
claim, the award of attorneys’ fees is automatic. Id.; see Sebelius v. Cloer, 

, 1891
(2013). However, a petitioner need not prevail on entitlement to receive a fee award so long as the
petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed.
§ 15(e)(1). Here, because petitioners were compensated for their son’s injury, they are entitled to
a reasonable award of attorneys’ fees and costs.



                                                  5
        The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 

, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys’ fees” is calculated by multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” 

(quoting Blum
v. Stenson, 

, 888 (1984)). That product is then adjusted upward or downward based
on other specific findings. 

have substantial discretion in awarding fees and costs and may adjust a
request sua sponte, apart from objections raised by respondent and without providing petitioners
with notice and opportunity to respond. See 

. Special masters need not
engage in a line-by-line analysis of petitioners’ fee application when reducing fees. See
Broekelschen v. Sec’y of Health & Human Servs., 

, 729 (2011).

                                                  B. Discussion

        1. Reasonable Hourly Rate

        A reasonable hourly rate is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” 

(quoting 

n.11). This rate is based on “the forum rate for the District of
Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.”
Rodriguez v. Sec’y of Health & Human Servs., 

, 1384 (Fed. Cir. 2011) (citing 

). There is a limited exception that provides for attorneys’ fees to be awarded at
local hourly rates when “the bulk of the attorney’s work is done outside the forum jurisdiction”
and “there is a very significant difference” between the local hourly rate and forum hourly rate. 

known as the Davis County exception. See Hall v. Sec’y of Health & Human Servs., 

, 1353 (Fed. Cir. 2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special
Serv. Dist. v. U.S. EPA, 

, 758 (D.C. Cir. 1999)).

       For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 

(Fed. Cl. Spec.
Mstr. Sept. 1, 2015). The Office of Special Masters has issued a fee schedule that updates the
McCulloch rates to account for inflation in subsequent years.4

       Petitioners requested the following hourly rates for their attorney, Ms. Diana Stadelnikas:
$359.00 for work performed in 2016, $372.00 for work performed in 2017, and $396.00 for work
performed in 2018. Fees Motion Ex. 1 at 19. Petitioners also requested hourly rates ranging from
$95.00 to $148.00 for the work of several paralegals from 2016-2018. 

hourly rates for both Ms. Stadelnikas and the paralegals who worked on this case are consistent
with what Ms. Stadelnikas and Maglio paralegals have been previously awarded. Accordingly, no
adjustments to the requested hourly rates are required.



4
 This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’ Forum
Hourly Rate Fee Schedule: 2018, http://www.uscfc.uscourts.gov/node/2914.
                                                   6
        2. Hours Reasonably Expended

      Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” 

. The application for fees and costs
must “sufficiently detail and explain the time billed so that a special master may determine . . .
whether the amount requested is reasonable,” and an award of attorneys’ fees may be reduced for
“vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No. 15-1551V,

, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, counsel should not include
in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton ex
rel. Saxton v. Sec’y of Health & Human Servs., 

, 1521 (Fed. Cir. 1993) (quoting
Hensley v. Eckerhart, 

, 434 (1983)). “Unreasonably duplicative or excessive billing”
includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for
a single task, attorneys billing excessively for intra office communications, attorneys billing
excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec’y of Health &
Human Servs., 

, 703 (2016).

         Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who
perform non-attorney-level work are compensated at a rate comparable to what would be paid to
a paralegal. See O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 

, at
*9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Hours spent traveling are ordinarily compensated at one-
half of the normal hourly attorney rate. See Scott v. Sec’y of Health & Human Servs., No. 08-756V,

, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). Finally, some tasks
are never compensable. For instance, “it is inappropriate for counsel to bill time for educating
themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health & Human
Servs., No 14-1111V, 

, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Additionally,
clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 

, at *26. Non-compensable clerical and secretarial tasks include
making travel arrangements, reviewing and paying invoices, setting up meetings, organizing files,
scheduling conference calls, and reviewing files for consistency. J.W., 

, at *3;
Barry v. Sec’y of Health & Human Servs., No. 12-039V, 

, at *4 (Fed. Cl. Spec.
Mstr. Oct. 25, 2016).

       The undersigned has reviewed the billing entries and finds the overall hours spent on this
matter by Ms. Stadelnikas (67.8) to be reasonable. However, the hours billed by the paralegals in
this matter require slight adjustment. There are several entries 5 in which the paralegals billed for
administrative and/or clerical tasks, such as processing billing records and payments, organizing
medical records, and preparing records for electronic filing. Additionally, there are several
examples of multiple paralegals billing for review of the same document, such as status reports
and scheduling orders. See Fees Motion Ex. 1 at 13-14. Frequently, Ms. Stadelnikas also billed
time for review of the same documents, thus obviating the need for paralegal review.




5
    The following entries are examples and are not exhaustive; they merely provide a sampling
                                                     7
      Accordingly, the undersigned will reduce the amount billed by the paralegals in this matter
by 5%, resulting in a reduction in the amount of $435.81.6 Petitioners’ are therefore awarded
$33,691.99 in attorneys’ fees.

       3. Reasonable Costs

       Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 

, 34 (Fed. Cl. 1992). Petitioners
requested a total of $11,362.88 in costs. The majority of this amount ($9,912.50) is for the work
of petitioners’ expert, Dr. Rizzo, which was discussed above.

       The remainder of petitioners’ requested costs ($1,450.38) are for routine expenses in the
Vaccine Program, such as the cost of obtaining medical records, medical literature, mailing costs,
and the Court’s filing fee. See generally Motion for Fees Ex. 2. The undersigned has reviewed the
requested costs, aside from Dr. Rizzo’s requested costs, for reasonableness and finds the requested
amount reasonable and supported by adequate documentation. Petitioners are therefore entitled to
attorneys’ costs in the amount of $1,450.38, in addition to Dr. Rizzo’s costs discussed above,
$9,912.50, totaling $11,362.88.

                                            IV.     Conclusion

       Based on the foregoing, the undersigned awards petitioners’ counsel $45,054.87,
representing, $33,691.99 in attorneys’ fees, and $11,362.88 in costs, in the form of a check made
payable jointly to petitioners and their counsel, Diana Stadelnikas, Esq. In the absence of a
motion for review filed pursuant to RCFC Appendix B, the Clerk of Court shall enter judgment in
accordance herein.7


        IT IS SO ORDERED.

                                                  s/ Mindy Michaels Roth
                                                  Mindy Michaels Roth
                                                  Special Master




6
  The billing records indicated that paralegals billed 62.5 hours for a total of $8,716.20. Motion for Fees
Ex. 1 at 19. Thus, $8,716.20 * 0.05 = $435.81.
7
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
                                                      8