Sabella v. Secretary of the Department of Health & Human Services
Full Opinion (html_with_citations)
OPINION
I. Background
Petitioner Christopher Sabella filed a petition in the Vaccine Program at the United States Court of Federal Claims on November 18, 2002 seeking compensation for injuries allegedly caused by the administration of the hepatitis B vaccine to him on November 18, 1999, December 24, 1999, and February 7, 2000. Sabella v. Secây of Health & Human Servs. (Sabella), No. 02-1627V, 2008 WL 4426040, at *1 (Fed.Cl.Spec.Mstr. Sept. 23, 2008). The parties were able to resolve the dispute before the case was decided on the merits and â[a] decision adopting the partiesâ stipulation was issued [by the special master] on May 21, 2007.â Id. On October 10, 2007 petitioner filed a motion with the special master for attorneysâ fees, which included âtime spent by his current counsel of record, Mr. [Clifford] Shoemaker; time spent by his former counsel of record, Mr. [Joel] Korin; and costs of the case, such as the expense of obtaining reports from the various experts.â Id. Petitioner requested $173,448.20 ($235,-244.07-$61,800.87) in attorneysâ fees, see Petitionerâs Motion for Review (petitionerâs Motion or Petârâs Mot.) 1 (stating that petitioner requested a total of $235,244.07 in fees and costs); Sabella, 2008 WL 4426040, at *27 (stating that petitioner requested a total of $61,800.87 in costs), and $61,800.87 in costs, Sabella, 2008 WL 4426040, at *27. The special master issued a decision awarding petitioner $62,207.50 in attorneysâ fees and $17,742.28 in costs on September 23, 2008. Id. at *45.
Petitioner filed a motion for review on September 29, 2008, which the court found did not comply with Vaccine Rule 24, located in Appendix B to the Rules of the United States Court of Federal Claims (RCFC), because it exceeded 20 pages. Order of Oct. 1, 2008. The court regarded the motion for review as filed for timeliness purposes, but ordered petitioner to âfile a motion for review that complies with the page limit set forth in [Vaccine Rule] 24.â Id. On October 6, 2008, petitioner filed a motion requesting leave to exceed the page limit set forth in Vaccine Rule 24, which respondent opposed. Order of Oct. 14, 2008. The court granted petitionerâs motion to exceed the page limit on October 14, 2008. Id. Petitioner filed petitionerâs Motion on October 15, 2008. Respondent filed Respondentâs Memorandum in Response to Petitionerâs Motion for Review (respondentâs Response or Respâtâs Resp.) on November 12, 2008. Petitioner claims that âthe Special Master misapplied the law and abused his discretion, and that many of his reductions were arbitrary and capricious.â Petârâs Mot. 1. More specifically, petitioner states:
The Special Master abused his discretion by arbitrarily and capriciously slashing petitionerâs attorneysâ hours in a punitive manner, by applying, in hindsight, an arbitrary and unsupported âsecond-guessingâ analysis to hours, that he further misapplied the law with respect to a determination of hourly rates, and finally, that his determinations with respect to allowable petitionerâs costs is contrary to law, arbitrary and capricious and an abuse of his discretion.
Petârâs Mot. 1.
II. Standard of Review
The provisions of the National Vaccine Injury Compensation Program (Vaccine Program) are set forth in §§ 300aa-10 through 300aa-34 of title 42 of the United States Code. 42 U.S.C. §§ 300aa-10 to 300aa-34 (2006). When reviewing a decision of a special master, the United States Court of Federal Claims may:
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special masterâs decision,
*204 (B) set aside any finding of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the courtâs direction.
42 U.S.C. § 300aa-12(e)(2). Findings of fact are reviewed under the deferential âarbitrary and capriciousâ standard, Lampe v. Secây of Health & Human Services, 219 F.3d 1357, 1360 (Fed.Cir.2000), and conclusions of law are reviewed de novo, Saunders v. Secây of the Depât of Health & Human Services, 25 F.3d 1031, 1033 (Fed.Cir.1994). Discretionary rulings are reviewed under the âabuse of discretionâ standard. Id. An example of a discretionary ruling is an evidentiary ruling. Plavin v. Secây of the Depât of Health & Human Servs. (Plavin), 40 Fed.Cl. 609, 622 (1998). âUnder the abuse of discretion standard, this court can only reverse for an error in interpreting law, or exercise of judgment on clearly erroneous findings of material fact, or irrational judgment in weighing relevant factors.â Id. The Vaccine Rules of the United States Court of Federal Claims âaccord the special master extensive discretion in conducting proceedings.â Id.; see also Hines v. Secây of the Depât of Health & Human Services (Hines), 940 F.2d 1518, 1528 (Fed.Cir.1991) (noting that the âarbitrary and capriciousâ standard is highly deferential). âIf the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.â Hines, 940 F.2d at 1528.
Under the Vaccine Program, reasonable attorneysâ fees and costs may be awarded to petitioner even if petitioner is not the prevailing party. 42 U.S.C. § 300aa-15(e)(1). The statute states:
If the judgment of the United States Court of Federal Claims on ... a petition [filed under 42 U.S.C. § 300aa-11] does not award compensation, the special master or court may award an amount of compensation to cover petitionerâs reasonable attorneysâ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.
42 U.S.C. § 300aa-15(e)(1). According to the United States Court of Appeals for the Federal Circuit (Federal Circuit), âThe determination of the amount of reasonable attorneysâ fees is within the special masterâs discretion.â Saxton v. Secây of the Depât of Health & Human Servs. (Saxton), 3 F.3d 1517, 1520 (Fed.Cir.1993). Furthermore, special masters in the vaccine program are âentitled to use their prior experience in reviewing fee applications.â Id. at 1521 (noting that â[tjrial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requestsâ). âIn determining attorneysâ fees, the special master is not limited to the objections raised by respondent.â Lamar v. Secây of Health & Human Servs., No. 99-583V, 2008 WL 3845165, at *5 (Fed.Cl. July 30, 2008) (citing Moorhead v. United States, 18 Cl.Ct. 849, 854 (1989)). âHowever, to permit this court to perform its review function and determine whether any abuse of discretion occurred, the special master must provide an appropriate description of the relevant experience and the reasoning that [he or] she used, based on that experience, to reach [his or] her conclusions.â Wasson v. Secây of the Depât of Heath & Human Servs. (Wasson), 24 Cl.Ct. 482, 486 (1991), aff'd, 988 F.2d 131, 1993 WL 18492 (Fed.Cir.1993) (table).
The Court of Federal Claims uses a two-step process known as the lodestar method for determining the award of reasonable attorneysâ fees. Avera v. Secây of the Depât of Health & Human Servs. (Avera II), 515 F.3d 1343, 1347 (Fed.Cir.2008), aff'g Avera v. Secây of the Depât of Health & Human Servs. (Avera I), 75 Fed.Cl. 400 (2007); Rupert v. Secây of the Depât of Health & Human Servs. (Rupert), 52 Fed.Cl. 684, 686 (2002); see Hensley v. Eckerhart (Hensley), 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The first step is to determine âthe number of hours reasonably expended on the litigationâ and multiply it âby a reasonable
â[H]ours that were not âreasonably expendedâ â should be excluded from the initial lodestar calculation. Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (quoting S.Rep. No. 94-1011, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5913
In the second step of the lodestar analysis, the court may adjust the fee award upward or downward âto keep the fee in line with the nature of the services rendered in the particular case.â Rupert, 52 Fed.Cl. at 686; Avera I, 75 Fed.Cl. at 403; see Hensley, 461 U.S. at 434, 103 S.Ct. 1933. â[T]he awarding court must articulate its reasons for the award or denial of fees.â Rupert, 52 Fed.Cl. at 690 (citing Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (âIt remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award.â)). The special master is not ârequired to base his ... decisions on a line-by-line evaluation of the fee application.â Carter v. Secây of the Depât of Health & Human Servs. (Carter), No. 04-1500V, 2007 WL 2241877, at *3 (Fed.Cl.Spec.Mstr. July 13, 2007). The special master can choose to reduce the award by a percentage. Hensley, 461 U.S. at 438 n. 13, 103 S.Ct. 1933 (âIn addition, the District Court properly considered the reasonableness of the hours expended, and reduced the hours of one attorney by thirty percent to account for his inexperience and failure to keep contemporaneous time records.â); Mares v. Credit Bureau of Raton (Mares), 801 F.2d 1197, 1203 (10th Cir.1986) (âA general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.â). âThe burden is not for the court to justify each dollar or hour deducted from the total submitted by counsel. It remains counselâs burden to prove and establish the reasonableness of each dollar, each hour, above zero.â Mares, 801 F.2d at 1210.
âFees for experts are subject to the same reasonableness standards as fees for attorneys.â Baker v. Secây of the Depât of Health and Human Sevrs. (Baker), No. 99-653V, 2005 WL 589431, at *1 (Fed.Cl.Spec.Mstr. Feb. 24, 2005). Courts have considered a number of factors when determining reasonable expert fees, including:
the witnesses] area of expertise; the education and training required to provide [the expert] the necessary insight; the prevailing rates for other comparably respected available experts; the nature, quality, and complexity of the information provided; the cost of living in the expertâs geographic area; and any other factor likely to assist the [court] in balancing the various interests in the case.
Id. (citing Wilcox, 1997 WL 101572, at *4). âIn addition, courts may also look to (1) the fee actually charged the party who retained the expert; and (2) fees traditionally charged by the expert on related matters.â Wilcox, 1997 WL 101572, at *4. Petitioner has the burden of providing the foregoing information concerning expert fees. Id.
III. Decision of the Special Master and Analysis
The special master identified the disputed topics relating to petitionerâs request for attorneysâ fees as âthe hourly rate for Mr. Sabellaâs attorneys, ... the reasonable number of hours spent by Mr. Sabellaâs attorneys, ... the reasonableness of the costs sought for Mr. Sabellaâs experts, and ... other miscellaneous items of costs.â Sabella, 2008 WL 4426040, at *2. Petitioner argues that âthe Special Master misapplied the law and abused his discretion, and that many of his reductions were arbitrary and capricious.â
A. Attorneysâ Fees
Mr. Sabella requested $173,443.20 in attorneysâ fees. See supra Part I (calculation of amount of fees sought). The special master awarded Mr. Sabella $62,207.50 in attorneysâ fees. Sabella, 2008 WL 4426040, at *26.
1. Reasonable Hourly Rate
Petitioner requested that Mr. Shoemaker and his associates be awarded the prevailing market rate in Washington, D.C., ranging from $440 to $645 for Mr. Shoemaker and $390 to $536 and $255 to $380 for his associates. Sabella, 2008 WL 4426040, at *3. The special master applied the lodestar analysis to determine the reasonable hourly rates for Mr. Sabellaâs attorneys, awarding hourly rates from $250 to $310 per hour for Mr. Shoemaker, and from $155 to $215 per hour for his associates. Id. (applying the analytical framework established in Avera II, 515 F.3d at 1348). The special master noted that these were the amounts originally requested by petitioner prior to the assertion that Mr. Shoemaker and his associates were entitled to the higher prevailing market rate in Washington, D.C. Id.
Petitioner did not argue, nor did the special master find any evidence, that Mr. Shoemaker and his associates performed any work in the District of Columbia. Id. at *3-4. Instead, petitioner argued that because the bulk of the work was performed in the Washington, D.C. metropolitan area â Mr. Shoemakerâs office is located in Vienna, VAâ the hourly rates in Washington, D.C. should apply. See id. at *4. The special master found that âwork performed in a suburb of Washington, D.C. is not the same, for an analysis of the forum rate ..., as work performed within the District of Columbiaâ and that âMr. Shoemaker and his associates performed most, if not all, of their work outside of the District of Columbia.â Id. After calculating that the proposed minimum rate of $440 per hour for Washington, D.C. âis 46 percent higherâ than Mr. Shoemakerâs typical hourly rate of $300 per hour, the special master determined that there was a âvery significant differenceâ between the two rates. Id. at *5. The special master stated that this determination âis informed by the policy behind fee-shifting statutes.â Id. The policy behind fee shifting statutes is not to provide ââa form of economic relief to improve the financial lot of attorneys,â â it is to â âenable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws.â â Id. (quoting Pennsylvania v. Del. Valley Citizensâ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)). The special master held that the exception to the forum rule applies and that Mr. Shoemaker should not be reimbursed at the hourly rate prevailing in Washington, D.C. Id. at *6. The special master then stated that â[t]he reasonable rates for Mr. Shoemaker and his associates are the rates set by an agreement between Mr. Shoemaker and attorneys from the United States Department of Justice.â Id. While noting that petitioner claimed that the agreementâs hourly rates â âare the result of a compromise reached after a fairly nasty battle between the firm and Respondentâs counsel involving at least three special masters and nine cases .... [and that] [a]s a compromise they are by definition not reflective of the lodestar market rate,ââ id. (quoting Petitionerâs Response to Respondentâs Opposition to Petitionerâs Application for Attorneysâ Fees and Costs and Amended Application for Attorneysâ Fees and Costs 5), the special master found that â[t]he market rate can be a product of negotiations between a willing buyer of
Prior to Mr. Shoemakerâs becoming Mr. Sabellaâs counsel of record, Mr. Sabellaâs counsel of record was Mr. Korin of Kenney & Kearney, P.C. (Kenney & Kearney). Id. at *7. From the time he commenced work on Mr. Sabellaâs case in June 2002, until the dissolution of Kenney & Kearney on October 15, 2005, Mr. Korin was assisted by Jane A. Kenney, another attorney at the firm. Id. Ms. Kenney ended her representation of Mr. Sabella when Kenney & Kearney closed, but Mr. Korin continued to represent Mr. Sabella at the firm of Ballard Spahr Andrews & Ingersoll, LLP (Ballard Spahr). Id. Mr. Korin stated that he charged $200 per hour while at Kenney and Kearney. Id. Mr. Korinâs hourly rate at Ballard Spahr was $295 per hour in 2005, $320 per hour in 2006, and $345 per hour in 2007. Id. Petitioner claimed Mr. Korin was entitled to an increased hourly rate when he changed firms and respondent objected. Id. The special master analyzed the dispute as follows:
The invoices showing that Mr. Korin charged some clients at Ballard Spahr at least $300 do not address the circumstances of Mr. Korinâs ongoing relationship with Mr. Sabella. Three hundred dollars per hour may be a reasonable rate for an attorney with Mr. Korinâs experience and skills for matters that began at Ballard Spahr in 2005 or 2006. But, Mr. Sabellaâs relationship with Mr. Korin began before that date and Mr. Sabella has not justified using the higher hourly rate.
Id. at *8. The special master then concluded that Mr. Korin was not entitled to an increased hourly rate when he changed law firms and that Mr. Korinâs reasonable hourly rate is $200 per hour. Id. at *9.
The special master has discretion in determining the reasonable amount of attorneysâ fees and costs to award to petitioner. See 42 U.S.C. § 300aa-15(e)(1); Saxton, 3 F.3d at 1520. As respondent argues, âthe trial forum is in the best position to assess the reasonableness of petitionerâs attorneysâ fees petition because the trial court has the greatest familiarity with the proceedings in a case.â Respâtâs Resp. 7 (citing Duncan v. Secây of Health and Human Servs., No. 99-455V, 2008 WL 2465811 (Fed.Cl.Spec.Mstr. May 30, 2008), aff'd, 2008 WL 4743493 (Fed.Cl. Aug.4, 2008) (finding that the special master is in a better position than the court reviewing the decision of the special master to âcritique the hours spentâ) and Saxton, 3 F.3d at 1521). Under Avera II âa reasonable hourly rate is âthe prevailing market rate,â defined as the rate âprevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.â â Avera II, 515 F.3d at 1348 (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Attorneysâ fees are based on the prevailing rate in the forum, in this case Washington, D.C., except â âwhere the bulk of [an attorneyâs] work is done outside the jurisdiction of the court and where there is a very significant difference in compensation favoring D.C.â â Avera II, 515 F.3d at 1349 (quoting Davis, 169 F.3d at 758) (emphasis in Davis) (alteration in Avera II). As respondent correctly states, Respâtâs Resp. 7, the special masterâs determinations are reviewed under an abuse of discretion standard, Saxton, 3 F.3d at 1520; Plavin, 40 Fed.Cl. at 622, and âthe special master is empowered to review the fee petition for reasonableness and can make adjustments he deems necessary as long as he articulates the basis for those adjustments,â Respâtâs Resp. 7; see Saxton, 3 F.3d at 1521; Rupert, 52 Fed.Cl. at 692-94; Wasson, 24 Cl.Ct. at 486. The special master clearly articulated his reasons for establishing the reasonable hourly rates for Mr. Korin and Mr. Shoemaker. See Sabella, 2008 WL 4426040, at *3-9. The court therefore finds unpersuasive petitionerâs unsupported accusation that the special masterâs decision not to afford Mr. Korin payment for an annual rate increase is âludicrous.â Petârâs Mot. 26-27.
One of petitionerâs initial arguments is that a special master cannot sua sponte reduce fee requests. Petârâs Mot. 3 (citing
It thus appears that Bell may be read as merely indicating that a court may not sua sponte reduce a fee request if it lacks any factual or experiential foundation upon which to do so. That, of course, is not the case here. Any broader reading of the Third Circuitâs opinion in Bell â for example, the one petitioners offer â collides with the fact that virtually every other circuit has held that a judge has an independent responsibility to assess the reasonableness of claimed fees and costs, whether [or not] particular items are challenged. This court has likewise so concluded, doing so, most recently, in rejecting the appeal of the denial of another fee request filed by the same counsel. On that occasion, this court stated that âthe Special Master has an independent responsibility to satisfy himself that the fee award is appropriate and [is] not limited to endorsing or rejecting respondentâs critique.â
Savin, 2008 WL 5553274, at 7-8 (footnote omitted) (quoting Duncan v. Secây of Health & Human Servs. (Duncan), 99-455V, 2008 WL 4743493, at *1 (Fed.Cl. Aug.4, 2008) and citing Guy v. Secây of Health & Human Servs., 38 Fed.Cl. 403, 406 (1997)). Respondent correctly argues that â[t]he special master is neither required to give petitioner ânoticeâ of his concerns nor an opportunity to submit further evidence to substantiate the fee petition.â Respâtâs Resp. 12 n. 2 (citing Saunders v. Secây of Health & Human Servs. (Saunders), 26 Cl.Ct. 1221, 1226 (1992) and Duncan, 2008 WL 4743493, at *1). In Saunders, the court stated:
Petitionerâs claim was disallowed because the proof was lacking. The suggestion that the special master had an obligation to cure this defect by calling upon counsel to supply the missing information misconstrues the relationship between court and counsel. Even under the less adversarial mode of proceeding that characterizes litigation before the special masters, it remains counselâs responsibility to submit proof sufficient to support the point in issue.
Saunders, 26 Cl.Ct. at 1226. We agree with respondent, as well as the special master, that âthe Special Master ha[s] no additional obligation to warn petitioners that he might go beyond the particularized list of respondentâs challenges.â Duncan, 2008 WL 4743493, at *1. As respondent states, a âpetitioner must submit with the fee application sufficient documentation that substantiates the fees and costs requested.â Respâtâs Resp. 5; see Wasson, 24 Cl.Ct. at 484 n. 1. It is âwell within the special masterâs discretion to reduce the hours to a number that, in his experience and judgment, [is] reasonable for the work done.â Saxton, 3 F.3d at 1521. Respondent argues, and the court agrees, that âpetitioner never provided the documentation or explanation required to meet his burden of proof, despite having been put on notice of numerous issues by respondentâs pleadings.â Respâtâs Resp. 11.
2. Reasonable Number of Hours
The special master noted that he possessed discretion to reduce the number of hours awarded because a special master is familiar with the litigation and â âis somewhat of an expert in the time required to conduct litigation.â â Sabella, 2008 WL 4426040, at *9 (citations omitted). The special master used the factors set forth by the Court of Appeals for Veterans Claims to evaluate petitionerâs requests for attorneysâ fees for more than one attorney. Id. at *11. The factors are: â â(1) the complexity of the case, (2) the need
According to petitioner, Mr. Sabellaâs ease was âextremely complicated and involved numerous issues,â justifying the use of multiple attorneys and the large number of hours worked. Petârâs Mot. 14-15. Petitioner further contends that this âwas a case of first impression.â Petârâs Mot. 29 (challenging âthe special master to find another case with the same factsâ). According to respondent, considering the âweak evidence of [chronic fatigue syndrome (CFS)], and petitionerâs failure to actively pursue this theory, petitionerâs claim that he should be awarded more compensation for attorneysâ fees and costs because this case was âone of the first cases of [CFS] caused by [the] Hepatitis B vaccine (HBV) to move to hearingâ is not persuasive.â Respâtâs Resp. 14 (quoting Petârâs Mot. 23) (footnote omitted). The special master recognized that âMr. Sabellaâs case is more complicated than other cases in the Vaccine Program,â Sabella, 2008 WL 4426040, at *11, but he also found that the case was needlessly complicated by the introduction of the CFS theory, id. at *12. The special master also determined that Mr. Sa-bellaâs case was not a ease of first impression because â[w]ithout the formation of an omnibus proceeding, Mr. Sabellaâs case would not affect, much less control, the outcome of any other case,â and because âspecial masters had hearings in several other cases involving the hepatitis B vaccine while Mr. Sabellaâs case was being developed.â Sabella, 2008 WL 4426040, at *12-13.
To simplify the analysis the special master divided the litigation into five parts: (1) the period from the beginning of work until the filing of the petition, (2) the period from the filing of the petition until Mr. Shoemaker joined the case, (3) the period from when Mr. Shoemaker joined the ease until Mr. Shoemaker became counsel of record, (4) the period from when Mr. Shoemaker became counsel of record until the entitlement phase of the case ended, and (5) the period of the fee application. Id. at *14r-25. The special master awarded Mr. Sabella a total of $62,207.50 in attorneysâ fees, an amount âwithin the top amounts the [special master] has awarded in attorneysâ fees to a single petitioner.â Id. at *26-27.
a. Attorneysâ Fees Awarded for the Period Prior to the Filing of the Petition
Petitioner requested over $27,000, and the special master awarded $10,000, for
Petitioner emphasizes that âwhile no one suggested that the time recorded was not spent doing what was described, and while no one is challenging the rates charged for this period of time, the special master has simply concluded that $10,000 will be awarded for this work.â Petârâs Mot. 5. The special master, however, is not required to award fees and costs for every hour claimed, he need only award fees and costs that are reasonable. See 42 U.S.C. § 300aa-15(e). As respondent states, âThat petitionerâs lawyers actually expended the time does not automatically establish that the time was reasonably expended.â Respâtâs Resp. 10.
In response to the special masterâs determination that Mr. Korin and Ms. Kenney duplicated work, petitioner argues that Mr. Korin and Ms. Kenney in fact âdivided the work quite well.â Petârâs Mot. 5. According to petitioner, âHaving two lawyers work together on a potential malpractice case was the normal, customary procedure for this law firm, and it is the normal, customary procedure for many law firms, whether on the plaintiff or defense side of such a case.â Petârâs Mot. 4. According to respondent, however, â[t]he use of multiple attorneys in vaccine proceedings is actually rare.â Respâtâs Resp. 11. The special master is entitled to use his prior experience when determining the amount of reasonable attorneysâ fees and this determination is entitled to deference. Saxton, 3 F.3d at 1520-21. The special master is required to provide reasons for his conclusions, in order to enable the reviewing court to address whether there has been an abuse of discretion, Wasson, 24 Cl.Ct. at 486, and the special master has adequately provided such reasoning in this case.
According to petitioner, the 45.5 hours that the special master deemed too long to have been spent working on a medical chronology, Sabella, 2008 WL 4426040, at *15, included time spent on âa lot more than just preparing a medical chronology,â Petârâs Mot. 6. Petitioner notes, âNo one is suggests ing that the paralegal did not spend the time recorded or that the work performed was anything but first rate. The special master just thinks it was too much, without indicating what he considers an appropriate amount should have been.â Id. Petitioner also takes issue with the special masterâs determination that the time Mr. Korin spent developing a report on economic damages with Dr. Wolf was unnecessary. Id. at 7. With respect to the special masterâs determination that Mr. Korin and Ms. Kenney spent too long draft ing documents, petitioner argues that âthe special master gives us no idea how many hours he is criticizing or how many hours he is deducting, so the Court has no way of evaluating whether he is being reasonable in reducing hours or is just being arbitrary and capricious.â Id. According to petitioner, âThis was the first time these lawyers had ever filed a petition in the program, and they were exercising the highest degree of care to make sure that they were doing things correctly.â Id. The burden, however, is on petitioner to show that the hours claimed are reasonable, Hensley, 461 U.S. at 437, 103 S.Ct. 1933; Rupert, 52 Fed.Cl. at 686; Wilcox, 1997 WL 101572, at *4, and that proper documentation of the hours expended and hourly rates has been submitted, Hensley, 461 U.S. at 433, 437, 103 S.Ct. 1933.
Petitioner further argues that even if the charges for Ms. Kenney were deducted for her participation in âthe initial interview with the client, a meeting with a treating doctor, discussions with Dr. Knast, and a meeting between the two attorneys, ... the amount of the reduction would only be $2,060,â
b. Attorneysâ Fees Awarded for the Period From the Filing of the Petition Until Mr. Shoemakerâs Participation
For this six-month period of time, from the filing of the petition on November 18, 2002, until Mr. Shoemaker began participating in the case on April 25, 2003, Mr. Korin and Ms. Kenney âcharged 78 hours and staff members charged approximately 28 hours.â Sabella, 2008 WL 4426040, at *17. The special master determined that the number of claimed hours was excessive and that the total value of the claimed hours, approximately $17,500, was unreasonable. Id. The special master found that some of the activities included in the petition for fees are not compensable, such as time spent investigating a potential medical malpractice action against the doctor who administered the vaccine to Mr. Sabella and the 21.3 hours claimed by Mr. Korin for a trip to Boston in March 2003 for a seminar on vaccines. Id. Even with the reduction in hours for the non-compensable activities, the special master still found the time requested to be âunreasonably high.â Id. at *18. He attributed the excessive amount of hours claimed to the duplication of work by Mr. Korin and Ms. Kenney. Id. The special master did find it reasonable, however, to compensate the attorneys for their work searching for doctors to serve as experts. Id. (noting that â[attorneys who are new to the Vaccine Program can improve it by retaining doctors who have not testified in this program as an expert previouslyâ). The special master awarded $10,000 in attorneysâ fees for this period. Id. at *18.
With respect to this period, petitioner again argues that âthere is no claim that the time recorded was not spent performing the activities described, and there is no dispute about the hourly rates charged.â Petârâs Mot. 8. As noted above, the special master is not required to award fees and costs for every hour claimed, he need only award fees and costs that are reasonable. See 42 U.S.C. § 300aa-15(e); Respâtâs Resp. 10 (âThat petitionerâs lawyers actually expended the time does not automatically establish that the time was reasonably expended.â). Petitioner also accuses the special master of arbitrarily deducting $7,500 just because he found the amount of time excessive. Petârâs Mot. 8. Petitioner seems to imply that because the special master âis one of the newest special masters,â has âvery little experience in the program,â and âhas never been involved as a lawyer in a law firm pursuing a claim in the program,â the special master is not capable of assessing attorneysâ fees based on his experience. Id. at 9. The court does not credit this argument. Special Master Moran is an experienced attorney and was selected by the Court of Federal Claims as qualified to serve as a special master within the Vaccine Program. 42 U.S.C. § 300aa-12(c)(1) (stating that â[t]he judges of the United States Court of Federal Claims shall appoint the special mastersâ). Finally, petitioner acknowledges that the time spent by Mr. Korin attending a conference in Boston âmight warrant a deduction of $4,260,â but objects to the
c. Attorneysâ Fees Awarded for the Period From Mr. Shoemakerâs Participation Until Mr. Shoemaker Became Counsel of Record
Mr. Sabella requested $50,000 for the period encompassing the time from when Mr. Shoemaker began participating in the case on April 25, 2003 until Mr. Shoemaker became counsel of record on December 16, 2005. Sabella, 2008 WL 4426040, at *18-19. The approximate charges were 140 hours at $200 per hour for Mr. Korin and Ms. Ken-ney, 60 hours at $70 per hour for Mr. Korinâs and Ms Kenneyâs support staff, 50 hours at $250 per hour for Mr. Shoemaker, and 22 hours at $150 per hour for other personnel in Mr. Shoemakerâs firm. Id. at *19. The special master noted that during this time period Mr. Sabella filed medical records and expert reports and seven status conferences were held. Id.
The special master determined that time spent obtaining reports from certain experts, Dr. Geier and Dr. Pretorius, was unreasonable. Id.; see infra Part III.B.l, 4. With respect to the remaining activities, the special master determined that â[t]he process of filing medical records from approximately ten medical providers, of producing reports from two experts, and of analyzing reports from two contrary experts reasonably takes much less time tha[n] the amount of time charged by Mr. Sabellaâs attorneys.â Sabella, 2008 WL 4426040, at *19. According to the special master, it âappears that Mr. Ko-rin, with the assistance of Ms. Kenney, was representing Mr. Sabella reasonably wellâ and it is not clear â[h]ow Mr. Shoemaker contributed to the advancement of Mr. Sabel-laâs case.â Id. at *20. Stating that, âas the person requesting fees, Mr. Shoemaker bears the burden of explaining why his participation was necessary,â the special master noted that âMr. Shoemaker chose not to provide any specific examples of how he assisted in a way that Mr. Korin could not.â Id. The special master provided examples of âhow multiple attorneys unnecessarily increased the amount of time,â id. at *21 (discussing the $1,385 charged for an eighteen-minute status conference attended by all three attorneys), âhow the participation of two different law firms caused overstaffing,â id. at *21-22 (discussing how Mr. Shoemakerâs and Mr. Korinâs support staffs duplicated work and how there was a âpattern of multiple reviews by several attorneysâ), and how work that could have been completed by support staff was charged at an attorneyâs billing rate, id. at *22 (discussing how attorneys charged for scheduling appointments and performing administrative tasks). The special master determined that âthe attorneys could have acted more efficientlyâ and reduced the reasonable amount of compensation for this period to $15,000. Id.
Petitioner claims that the special master arbitrarily reduced Mr. Sabellaâs request for attorneysâ fees for this period. Petârâs Mot. 9. Petitioner argues that âthere is no argument that the time claimed was not spent as it has been described, and the hourly rates are not in question, except for the fact that the special master ignored the agreed[ ]upon increase in Mr. Shoemakerâs hourly rates from $250 to $275 an hour beginning January 1, 2005.â Id. at 9-10. As noted above, the special master is not required to award fees and costs for every hour claimed, he need only award fees and costs that are reasonable. See 42 U.S.C. § 300aa-15(e); Respâtâs Resp. 10 (âThat petitionerâs lawyers actually expended the time does not automatically establish that the time was reasonably expended.â). According to petitioner, Petârâs Mot. 10, there is a contradiction between the special masterâs reduction of hours for the first period, Sabella, 2008 WL 4426040, at *15 (âNevertheless, the relatively lower hourly rate does not entirely justify all the number of hours spent in preparing the petition.â), and the special masterâs view that Mr. Korin was a competent attorney who did not need additional assistance from Mr. Shoe
Petitioner argues that Mr. Korin was undertaking the actions of a âgood attorneyâ when he reached out to Mr. Shoemaker, a more experienced attorney in the vaccine program. Petârâs Mot. 10. As respondent argues, however, âpetitioner does not provide any argument or point to any evidence in the record that shows that Mr. Shoemakerâs knowledge of the Vaccine Program enhanced petitionerâs representation in this case, or that a duplication of efforts was reasonable.â Respâtâs Resp. 15. The special master found that specialized knowledge was not required to bring cases in the Vaccine Program. Sabella, 2008 WL 4426040, at *12 (âThe experience of the Office of Special Masters, including the undersigned, is that attorneys who represent petitioners in the program for the first time are able to do so competently.â). Petitioner implies that the special master was somehow using a contingent fee analysis in his determination of attorneysâ fees because the special master posited that if Mr. Shoemaker had not assisted Mr. Korin, Mr. Sabellaâs case would not have come out differently. See Petârâs Mot. 10 (âThis is not a situation where contingent fees are being awarded. Fees are awarded in cases where the petitioner does not prevail at all. Nevertheless, the special master speculates, âIf Mr. Shoemaker did not assist Mr. Korin during this time, would Mr. Sabellaâs case turned [sic] out differently? The answer is probably not.â â (quoting Sabella, 2008 WL 4426040, at *20)). Petitioner argues that â[t]his has never been and cannot be the test for whether or not to award fees to an attorney involved in a vaccine claim.â Id. at 10-11. The court finds that petitioner misconstrued the special masterâs analysis. The court does not understand the special master to say that the award of fees to Mr. Sabella would be different if he had obtained a more favorable overall result; the special master, in the courtâs view, is merely emphasizing that he did not find Mr. Shoemakerâs involvement to be necessary.
The special master referenced the time charged for attending a status conference in May 7, 2003 as an example of how having multiple attorneys led to duplication of work and an inefficient use of time. Sabella, 2008 WL 4426040, at *21. According to petitioner, however, â[i]t was actually more economical for all counsel to attend the status conference, rather than to have one attorney be on the call and take notes and then convey the information to the other.â Petârâs Mot. 11. Petitioner points out that the entries for work performed by Mr. Shoemakerâs support staff, that the special master determined to be duplicated work performed by staff at Mr. Korinâs firm, amounts to only $126.50. Id. at 12. However, the special master is not required to make a line-by-line determination of fees. Carter, 2007 WL 2241877, at *3; see Saxton, 3 F.3d at 1519, 1521. Petitionerâs further arguments that the reductions resulting from the denial of entries cited by the special master are âminimal and nowhere close to the $35,000 reduction that the special master made for this time period,â Petârâs Mot. 13, are therefore without merit.
The special master found that âthe participation of two different law firms caused overstaffing.â Sabella, 2008 WL 4426040, at *21. As' an example, the special master discusses the duplication of efforts and inefficiencies that occurred when scheduling Mr. Sabellaâs visit to Dr. Pretorius. Id. Petitioner argues that âthe amounts of money involved were minimalâ and that âthe special master cannot possibly understand the effort that was involved in setting up this testing.â Petârâs Mot. 12. As examples of how costs
With regard to whether more than one attorney should have participated in discussions with experts or reviewed the expert reports, petitioner argues, âThis is simply not the way cases are handled in the real world of civil litigation, and it was not appropriate in this case.â Petârâs Mot. 13. The court finds that, given the special masterâs discretion in determining the reasonable amount of attorneysâ fees, Saxton, 3 F.3d at 1520, and his entitlement to use his âprior experience in reviewing fee applications,â id. at 1521, the special master did not abuse his discretion.
Petitioner next contends that â[t]he special master improperly denied fees for the time spent obtaining reports from Dr. Geier and Dr. Pretorius.â Petârâs Mot. 11. The special master reasoned:
In early 2004, if attorneys (1) explained to a reasonable client that the opposing side has retained Dr. Herskowitz, a neurologist and psychiatrist, and (2) proposed retaining Dr. Geier, a geneticist whose opinions about neurological diseases have been criticized, then a reasonable person would not want to pay for Dr. Geierâs work.
Sabella, 2008 WL 4426040, at *31. The court finds this analysis to be reasonable. Similarly, the special master was reasonable in concluding that paying for the work of Dr. Pre-torius was unreasonable in the circumstances of this case. See infra Part III.B.4. In this connection, the special master noted that Mr. Sabella failed to show how a single-proton emission computed tomography (SPECT) scan advanced his case, that Dr. Rubin and Dr. Poser âcould not draw any meaningful conclusions from Dr. [Pretorius]âs report,â and that the scan was performed three and a half years after Mr. Sabella received his last dose of the vaccine. Sabella, 2008 WL 4426040, at *35. The court cannot say the special masterâs conclusion was arbitrary, capricious, or an abuse of discretion.
d. Attorneysâ Fees Awarded for the Period From When Mr. Shoemaker Became Counsel of Record Until the Entitlement Phase of the Case Ended
Mr. Sabella requested $50,000 for the period from when Mr. Shoemaker became counsel of record on December 16, 2005 until Mr. Sabella accepted the judgment of the court on July 12, 2007. Id. at *22-23. The approximate charges were 50 hours, id. at *23, at somewhere between $200 per hour and $320 per hour, id., at *7, for Mr. Korin, 55 hours at $70 per hour for Mr. Korinâs support staff, 100 hours at $300 per hour for Mr. Shoemaker, and 20 hours for other personnel in Mr. Shoemakerâs firm. Id. at *23. The special master found that Mr. Sabella did not offer any explanation for why Mr. Korin continued to participate after Mr. Shoemaker became the counsel of record. Id. at *24. The special master found the need for two attorneys at the two-day hearing held during this period to be questionable considering that âfive of the six witnesses were friendly,â and determined that â[a]n attorney with more than 10 years of experience in litigating medicine-based cases can reasonably conduct the examination of five friendly witnesses and one neutral witness over a two-day period.â Id. (noting that in other cases the
Petitioner argues that because Mr. Shoemaker billed 100 hours at $300 per hour, totaling $30,000, the arguments of duplication of efforts alone cannot justify the reduction in fees for this period by $27,000. Petârâs Mot. 14. The special master found that Mr. Sabella did not offer âany explanation as to the division of responsibility between law firmsâ and that Mr. Shoemaker could have performed many of the activities during this period without the assistance of Mr. Korin. Sabella, 2008 WL 4426040, at *24. Because the special master found that not all of the time worked during this period was reasonable, the special master made adjustments in order to determine a reasonable amount of attorneysâ fees. Id. at *25. According to petitioner, however, âMr. Korin was conscientious about representing his client and chose to associate with a lawyer who has over 30 years of litigation experience involving vaccines and who has been involved in litigating cases in the vaccine program since its inception.â Petârâs Mot. 14 (noting that â[t]he case was extremely complicated and involved numerous issuesâ). Petitioner argues that there was a clear division of labor: âMr. Korin was primarily responsible for preparing the lay witnesses and the treating doctors, and Mr. Shoemaker was primarily responsible for retaining the other experts, getting their reports and preparing them to testify in a causation hearing.â Id. at 15. Petitioner justifies what the special master considered duplication by arguing that âit was important for both counsel to be aware of what all the witnesses were saying.â Id.
Regardless of whether Mr. Korinâs choice to associate with Mr. Shoemaker was responsible, it was not arbitrary and capricious for the special master to find that, once Mr. Shoemaker became counsel of record, the assistance of Mr. Korin was not always reasonable. Furthermore, the duplication of efforts by Mr. Shoemaker and Mr. Korin was only one of the factors that the special master used to determine the reasonable number of hours for this period. See Sabella, 2008 WL 4426040, at *24. The special master found that âtasks such as filing reports from experts with associated literature and preparing material for trial may be done efficiently by paralegals or other support staff.â Id. at *25. Contrary to what petitioner implies, Petârâs Mot. 15 (âThe special master makes a great deal of the fact that the case was settled before the hearing with numerous experts went forward to a hearing. That does not negate the fact that counsel had to be prepared to present those experts and cross examine the respondent experts if the case had not settled.â), the special master did not state that he was reducing the award for this period because the case settled and he felt that the experts did not need to be retained in the first place, see Sabella, 2008 WL 4426040, at *24-25. Finally, petitionerâs repeated argument that having two attorneys on the case was reasonable and common does not persuade the court that all of the time claimed by Mr. Sabella is reasonable and that the determinations of the special master were arbitrary and capricious.
e. Attorneysâ Fees Awarded for Work Performed With Regard to the Fee Application
Mr. Sabella requested attorneysâ fees for the time spent litigating the amount of attorneysâ fees. Id. at *25. Mr. Sabella requested $1,000 for the initial application for attorneysâ fees, id., $3,422.50 for briefs filed on December 18, 2007 and February 15, 2008, id. at *26, and additional compensation for work on two briefs discussing Avera II that were requested by the special master, id. at *25-26. The special master did not award additional compensation for work on the additional briefs on Avera II because Mr. Shoemaker did not request additional time for this in his amended application. Id. at *26. The special master deducted $215 from the time spent on Mr. Sabellaâs reply brief to discount for personal attacks against respon
For the fifth and final period of the litigation, petitioner requests âan additional amount [of] 22 hours at $230/hour for a total of $5,060 for work on the two briefs discussing Avera [II], and counsel also seeks an additional 25.4 hours at $324.26/hour for a total of $8,236.20 for work spent on preparing this Motion for Review.â Petârâs Mot. 15. The special master denied compensation for time spent on the two briefs discussing Avera II because Mr. Shoemaker did not amend his application to request additional time for this work. Sabella, 2008 WL 4426040, at *26. Respondent argues that â[pjetitioner is precluded from seeking compensation for these items on appeal, as he failed to properly request compensation for them before the special master.â Respâtâs Resp. 15-16 (citing RCFC, App. B, Vaccine Rule 8(f)). The court finds no abuse of discretion in the decision of the special master not to award compensation that was not requested. Furthermore, pursuant to Rule 8(f) of the Vaccine Rules, âAny factor or argument not raised specifically in the record before the special master shall be considered waived and cannot be raised by either party in proceedings on review of a special masterâs decision.â RCFC, App. B, Vaccine Rule 8(f).
With respect to petitionerâs request for attorneysâ fees for time spent preparing petitionerâs Motion for Review, âRespondent believes that some award of compensation is appropriate for the filing of the [Motion for Review]; however, the amount charged by petitioner appears high, especially considering that a significant portion of petitionerâs [Motion for Review] is devoted to personally attacking the special master.â Respâtâs Resp. 16. Petitioner offers no basis for charging a rate of $324.26 per hour, and, given the quality of petitionerâs Motion and the lack of citations to cases, the court is hesitant to award compensation for the full 25.4 hours requested. The special master determined that a reasonable hourly rate for Mr. Shoemaker ranges between $250 to $310 per hour, Sabella, 2008 WL 4426040, at *3, and the court will therefore apply a rate of $310 per hour to time spent preparing this Motion for Review.
The court is frankly puzzled by the difference between the amount of attorneysâ fees requested for work to prepare this Motion for Review and the smaller amount requested for work to prepare the initial fee application. See Petârâs Mot. 15; Sabella, 2008 WL 4426040, at *25. The court notes that Mr. Sabella requested approximately $1,000 for the preparation of the initial application for attorneysâ fees before the special master, the filing in which counsel must explain with particularity the bases for his request. Sabella, 2008 WL 4426040, at *25. Assuming that counsel, in compliance with the law, sought a âreasonable amountâ for preparing the initial fee application, the court cannot understand how counsel could have reasonably expended more than eight times the compensable effort on a motion for review. The court finds the claim for $8,236.20 unreasonable. In light of the foregoing, the court finds that, subject to the deduction described in the next paragraph, $2,000.00, an amount that is twice the amount claimed for preparing the initial application, is a reasonable amount to award for work performed on this Motion for Review.
The court does not look favorably on ad hominem attacks. See In re Cygnus Telecomms. Tech., LLC, Patent Litig., 536 F.3d 1343, 1360 (Fed.Cir.2008) (âThis court does not condone ad hominem attacks.â) (emphasis omitted). Critical commentary on the special masterâs tenure as a special master does not aid petitionerâs argument. See Petârâs Mot. 25-27. The decision of the special master was not a personal attack on Mr. Shoemaker, as petitioner charges. See Petârâs Mot. 25. The court finds the special masterâs deduction of $215, representing one hour spent on âattacks against respondentâs counsel, personally,â Sabella, 2008 WL 4426040, at *26, to be fair and reasonable, and not an abuse of discretion. Similarly, the court will reduce the amount of attorneysâ fees requested for time spent personally attacking the special master in petitionerâs Motion for Review.
B. Expert Costs
Mr. Sabella requested approximately $33,394 in costs for experts. Sabella, 2008 WL 4426040, at *39. According to the decision of the special master, âThe total amount requested in costs is approximately three times greater than any previous award of costs made by the undersigned. In briefing, Mr. Sabella has not identified any case in which another special master has awarded a comparable amount of costs to a single petitioner.â Id. at *27. The special master limited his analysis to the objections raised by respondent, id., and awarded a total of $7,245
1. Dr. Mark Geier
Mr. Sabella requested $5,375 for Dr. Geierâs work. Sabella, 2008 WL 4426040, at *29. One part of this request was a $750 charge to Mr. Korin for a âmedical consultation.â Id. Dr. Geier also submitted an invoice to Mr. Shoemaker for $4,625. Id. The special master denied the $750 because Mr. Korinâs register contained no explanation of what tasks were performed and there was no way to tell, in light of Dr. Geierâs invoice, if any portion of this charge was repetitious. Id. The special master also denied 2.5 hours for âoriginal publicationsâ because Dr. Geier offered no explanation as to why he should be compensated for such work and because Mr. Sabella did not deny respondentâs assertion that âDr. Geier has repeatedly attempted to obtain compensation for his original work through the vaccine program.â Id. at *30 (âMr. Sabella did not offer any justification for why Dr. Geier should be compensated for âoriginal publications,â which do not appear connected to Mr. Sabellaâs case.â). After finding that Mr. Sabella failed to explain why Dr. Geierâs work âwas necessary to advance his case,â the special master determined that a âhypothetical, reasonable and paying client,â would not have paid for Dr. Geierâs work at the time Dr. Geier was retained. Id. at *30-31. The special master also determined that because Dr. Geier is a geneticist, his opinion would be of little value regarding the injuries to Mr. Sabellaâs brain, and that a reasonable person would seek a neurologist as the relevant medical specialist. Id. at *30. The special master therefore denied the 7.5 hours, id., claimed for Dr. Geierâs writing his report, id. at *31.
The special master found Dr. Geierâs request of 4.0 hours for a âliterature searchâ to be reasonable. Id. Dr. Geier also claimed 4.25 hours for reviewing and summarizing Mr. Sabellaâs medical records, id. at *30, of which the special master determined 1.0 hour to be reasonable, id. at *32. Noting that Mr. Sabella did not provide information concerning Dr. Geierâs reasonable hourly rate, the
Petitioner claims that the special master âarbitrarily slashed [Dr. Geierâs] bill to $1000â and âarbitrarily cut his rate of compensation from $250 an hour ... to $200 an hour.â Petârâs Mot. 17. In making his determination that $200 per hour is a reasonable rate for Dr. Geier, the special master noted that âMr. Sabella has provided no information about the reasonable hourly rate for Dr. Geier,â and examined decisions of other special masters determining Dr. Geierâs reasonable hourly rate. Sabella, 2008 WL 4426040, at *32. While at some point using hourly rates for earlier years could become unreasonable, here the court finds the special masterâs reliance on rates determined in recent years reasonable and not an abuse of discretion.
Petitioner next takes issue with views expressed in the special masterâs opinion that petitioner considers attacks on Dr. Geier because he is a geneticist. Petârâs Mot. 16. Petitioner points out that Dr. Geier is also an epidemiologist, âhas performed extensive analyses of the Vaccine Adverse Event Reporting System (VAERS) and the Vaccine Safety Datalink (VSD),â and âhas published dozens of papers in the peer[-]reviewed medical literature about adverse reactions to vaccines.â Id. at 16-17 (noting that many of Dr. Geierâs âarticles deal with hepatitis B vaccines in particularâ). Petitioner states: âArguably, the bill from Dr. Geier should be reduced by $625 for what was described as âOriginal publicationsâ in his invoice, but the balance of his invoice number 763 ($4,000) should be paid.â Id. at 17. Respondent, however, argues that âDr. Geier has been roundly criticized by special masters in vaccine cases as being unqualified to testify about many vaccine injuries, including those involving the brain, such as the case at bar,â Respâtâs Resp. 19 (citing Daly v. Secây of Health & Human Servs., No. 90-590V, 1991 WL 154573, at *6 (Cl.Ct.Spec.Mstr. July 26, 1991)), and that âspecial masters have tended to be highly critical of Dr. Geierâs testimony,â Respâtâs Resp. 19 (citing Doe v. Secây of Health & Human Servs., No. 99-670V, 2004 WL 3321302, at *22 (Fed.Cl.Spec.Mstr. Oct. 5, 2004)). As respondent argues, âpetitioner never provided any evidence or argument as to why Dr. Geierâs work was ânecessary to advanceâ petitionerâs case, despite the fact that respondent raised objections concerning âthe usefulness of Dr. Geierâs work.â â Respâtâs Resp. 19-20 (quoting Sabella, 2008 WL 4426040, at *30). The special masterâs decision was not an abuse of discretion.
2. Dr. Charles Poser
Mr. Sabella requested $2,600 for time spent by Dr. Poser writing two reports. Sabella, 2008 WL 4426040, at *32. Dr. Poser claims approximately 7.6 hours at $350 per hour for his work. Id. at *32-33. The special master determined that âMr. Sabella acted reasonably in retaining Dr. Poser,â and respondent did not object to the number of hours claimed. Id. at *33. Respondent did, however, object to Dr. Poserâs proposed hourly rate of $350 per hour. Id. The special master determined that a reasonable rate for Dr. Poser would be $200 per hour, the rate awarded to Dr. Poser in Jeffries v. Secây of Health & Human Servs., No. 99-670V, 2006 WL 3903710 (Fed.Cl.Spec.Mstr. Dec. 15, 2006). Sabella, 2008 WL 4426040, at *33. The special master awarded a total of $1,520 in reasonable costs. Id.
Petitioner contends that âDr. Poserâs bill was ... extremely reasonableâ and that the special master arbitrarily âcut his rate to $200 an hour, citing what he was paid in a case filed in 1999.â Petârâs Mot. 17. Petitioner argues that Dr. Poser is highly qualified and offers examples of Dr. Poserâs many accomplishments. Id. at 17-18. According to petitioner, âFor the special master to cut $1080 off of such a reasonable bill is evidence that this entire fee decision was designed to punish Petitioners, their counsel and their experts.â Id. at 18. Respondent again argues that âpetitioner provided little justifica
3. Dr. Yehuda Shoenfeld
Mr. Sabella requested $7,750 for 15.5 hours of work performed by Dr. Shoenfeld at $500 per hour. Sabella, 2008 WL 4426040, at *33. The special master found that âMr. Sabellaâs retention of Dr. Shoenfeld was reasonableâ and that âDr. Shoenfeldâs opinion was useful and relevant in that he explained how a person responds to an immunization.â Id. at *34. The special master faulted Mr. Sabella, however, for failing to provide information regarding Dr. Shoenfeldâs hourly rate and for instead providing information about another doctor, Dr. Kinsboume. Id. The special master found Dr. Kinsboume to be an inadequate comparison to Dr. Shoenfeld because he specializes in a different area of medicine and because Dr. Shoenfeld lives in Tel Aviv, Israel. Id. In an effort to determine a reasonable hourly rate, the special master made a comparison between Dr. Sho-enfeld and Dr. Joseph Bellanti, another doctor in Dr. Shoenfeldâs field who practices in Washington, D.C. and charges $350 per hour. Id. The special master deducted $50 from Dr. Bellantiâs rate â[t]o account for a possible difference in cost of living and cost of practicing medicine in Washington, D.C. and Tel Aviv, Israel.â Id. The special master acknowledged having no evidence of the difference in costs between Washington, D.C. and Tel Aviv, Israel, but stated that he wanted to avoid giving Mr. Sabella a windfall in light of the fact that Mr. Sabella had not provided any specific information regarding Dr. Sho-enfeldâs rate. Id. (âTo the extent that a deduction penalizes Mr. Sabella, the penalty is appropriate because Mr. Sabella has failed to introduce any evidence specifically about Dr. Shoenfeld. In short, $300 per hour is better than zero dollars per hour.â). The special master then deducted, as unreasonable, three hours that Dr. Shoenfeld claimed for traveling in July 2006 to meet with an attorney. Id. at *35. The special master awarded 12.5 hours at $300 per hour, a total of $3,750, in reasonable costs. Id.
Petitioner argues that the special masterâs analysis of expert costs was inconsistent. Petârâs Mot. 18. Dr. Shoenfeld submitted a bill charging $500 per hour and the special master reduced the hourly rate to $300 per hour. Sabella, 2008 WL 4426040, at *33-34. The special master noted that, instead of submitting âinformation about Dr. Shoen-feldâs hourly rate, Mr. Sabella provided information about another doctor, Dr. Kinsbourne.â Id. The special master determined that Dr. Kinsbourneâs rate of $500 per hour was an inadequate comparison for Dr. Shoen-feld because Dr. Shoenfeld specializes in immunology, a different field of medicine, and lives in a foreign country. Id. The special master instead made a comparison to a doctor in the field of Dr. Shoenfeldâs specialization, Dr. Bellanti. Id. Petitioner argues that because the special master cut Dr. Poserâs rate from $350 to $300
Petitioner complains that the special master further reduced the rate by another $50 to account for differences between costs in Washington, D.C. and Tel Aviv, Israel âwithout any warning that he was even thinking about such a thing.â Petârâs Mot. 18. However, the special master has no duty to âwarnâ petitioner about his reasons for reducing petitionerâs claims for costs. Duncan, 2008 WL 4743493, at *1 (stating that âthe Special Master had no additional obligation to warn petitioners that he might go beyond the particularized list of respondentâs challengesâ); Saunders, 26 Cl.Ct. at 1226 (âThe suggestion that the special master had an obligation to cure this defect by calling upon counsel to supply the missing information misconstrues the relationship between court and counsel. Even under the less adversarial mode of proceeding that characterizes litigation before the special masters, it remains counselâs responsibility to submit proof sufficient to support the point in issue.â). Petitioner also states that if the special master âhad done any research, he would have found out that the dollar has dropped considerably in value in relation to Israeli currency, and therefore, if anything, the rate should be increased.â Petârâs Mot. 18-19. Respondent counters, correctly, that âthe special master is not burdened with proving the reasonableness of Dr. Shoenfeldâs hourly rate â petitioner is, and he simply faded to do so.â Respâtâs Resp. 20.
The court does not find that the special master was arbitrary or capricious in determining that the total number of hours claimed by Dr. Shoenfeld should be reduced by three hours for time spent by Dr. Shoen-feld traveling to meet with an attorney. See Sabella, 2008 WL 4426040, at *35. However, the court views the $50 per hour deduction for possible differences in the cost of living, made in the acknowledged absence of evidence on the point, to be arbitrary and capricious. The court therefore awards an additional $50 per hour for Dr. Shoenfeldâs work. The reasonable amount of compensation for Dr. Shoenfeld is therefore $4,375 (12.5 hours at $350 per hour).
4. Dr. Harold Pretorius
Mr. Sabella requested $1,200 for work performed by Dr. Pretorius. Id. Dr. Pretorius performed a SPECT scan of Mr. Sabellaâs brain on August 5, 2003. Id. According to the special master:
If the SPECT scan were justified as part of the treatment for Mr. Sabellaâs condition, then Mr. Sabella should have submitted the invoice to his insurance company and requested reimbursement. See 42 U.S.C. § 300aa-15(g). If the SPECT scan was part of the litigation, Mr. Sabella has not shown how it advanced his case.
Id. Furthermore, the special master found that two doctors with specialized training in neurology, Dr. Poser and Dr. Rubin, âcould not draw any meaningful conclusions from Dr. [Pretoriusjâs report.â Id. Finally, the special master noted that the SPECT scan was performed three and a half years after Mr. Sabella received the last dose of the hepatitis B vaccine, that Mr. Sabella failed to submit an invoice regarding the number of hours Dr. Pretorius spent on the case, and that Mr. Sabella submitted no basis for determining Dr. Pretoriusâs hourly rate. Id. at *35, 36 n. 11. Because âMr. Sabella has not established, by a preponderance of the evidence, that the work of Dr. Pretorius was reasonable,â the special master awarded no compensation. Id. at *36.
Petitioner argues that â[t]he [SPECT] scan performed by Dr. Pretorius was not justified as part of any treatment, but was rather undertaken to demonstrate objective evidence of brain injury.â Petârâs Mot. 19. According to petitioner, â[b]y demonstrating âimmune cerebritis[,â] Dr. Pretorius was prepared to testify that this was objective evidence of the injury experienced by the Petitioner as a result of the vaccines he received.â Id. With respect to the special masterâs concerns with the timing of the SPECT scan, Sabella, 2008 WL 4426040, at *35 (finding that â[t]he elapse of time makes attributing any problems detected on the SPECT scan to the vaccine difficultâ), petitioner argues that âthere was no evidence of any other brain injury or insult in this case in the intervening years,â Petârâs
5. Robert P. Wolf, Ed. D. M.B.A.
Mr. Sabella requested $1,250 for Dr. Wolfs preparation of an economic analysis to determine the value of Mr. Sabellaâs lost earning capacity. Id. at *36. Because 42 U.S.C. § 300aa-15(a)(3)(B) establishes the rate of compensation for lost earning capacity, the special master found Dr. Wolfs economic analysis unnecessary and awarded no compensation. Id.
Petitioner argues that the special master should not have refused to award any compensation for Dr. Wolf because Dr. Wolfs report âwas useful in discussions with the clients about whether to settle the claim and for what amount.â Petârâs Mot. 20. According to petitioner, it was necessary during settlement discussions to talk âabout the potential for a civil suit (in the event the vaccine court claim [was] unsuccessful) and what damages would be awarded if such a case were successful.â Id. Petitioner also claims that statements by the special master that Mr. Korin spent an unreasonable amount of time researching the vaccine program, Sabel-la, 2008 WL 4426040, at *15, and that counsel should have been aware of the statute providing for compensation for loss of earning capacity due to injury caused by a vaccine, id. at *36, are incongruous:
It is ironic that the special master is loathe to award any time for Mr. Korin to research the vaccine program and says that someone like Mr. Shoemaker, with extensive experience in the program is not necessary, but here we have an example of counsel doing the normal, reasonable and prudent thing for his client and being penalized for it.
Petârâs Mot. 20. The court agrees with the special master that time spent preparing Dr. Wolfs report should not be compensated. The special master awarded fees for some of the time spent on basic legal research for the Vaccine Program. Sabella, 2008 WL 4426040, at *15. It is not unreasonable to find that petitionerâs attorneys should have been aware of the basic statutes concerning the Vaccine Program. The special master did not abuse his discretion in awarding no compensation for work performed by Dr. Wolf.
6. Jerome Knast, Ph.D.
Mr. Sabella requested approximately $5,000 for work performed by Dr. Knast. Id. at *36. Petitioner argues that Dr. Knast âevaluat[ed] the [petitioner, performed] neuropsychological testing, prepared] a report and testified].â Petârâs Mot. 21. Respondent initially objected âbecause [D]r. Knast treated Mr. Sabella and, therefore, [D]r. Knast should be compensated as a fact witness only.â Sabella, 2008 WL 4426040, at *36. The special master found that Dr. Knast was âretained in the context of litigationâ and was not a fact witness. Id. The special master also determined that, as a specialist in learning disorders, â[D]r. Knastâs testimony was important and usefulâ and that â[D]r. Knast is entitled to compensation as an expert witness.â Id. Mr. Sabella, however, failed to provide information explaining the basis of Dr. Knastâs fee. Id. at *37. The special master determined that $160 was a reasonable hourly rate for Dr. Knast because âit appears to represent the amount that [D]r. Knast chargesâ and âbecause it is less than the amount that is awarded to Dr. Poser, a neurologist [with a medical degree].â Id. Mr. Sabella provided
Petitioner argues that â[a]n award of $1920 is not even adequate to obtain an evaluation and testing, let alone reports, review of records and testimony.â Petârâs Mot. 21. Calling the special masterâs award âabsurd,â petitioner contends that the hourly rate of $160 set by the special master is arbitrary and that â[f]rom Mr. Korinâs billing records, it can be determined that [D]r. Knast met with counsel on several occasions, and his testimony confirmed the time he spent evaluating the Petitioner.â Id. According to petitioner, justifying the $160 rate by noting that âit is less than the amount that is awarded for Dr. Poser, a neurologist,â Sabella, 2008 WL 4426040, at *37, âis an amazing âCatch-22,â â Petârâs Mot. 21 (âThe special master reduced Dr. Poserâs hourly rate well below another comparable neurologist, Dr. Kinsboume, and then he used that figure to arbitrarily set a low rate for [D]r. Knast.â). The special master did not consider the hourly rate charged by Dr. Kinsbourne in determining Dr. Poserâs hourly rate. See Sabella, 2008 WL 4426040, at *33. The special master determined Dr. Poserâs hourly rate by looking at the rate awarded to Dr. Poser in a prior case in the Vaccine Program. Id. The special master assigned Dr. Knast the $160 per hour rate because âit appears to represent the amount that Dr. Knast charges.â Id. at *37. The special master also supported, in part, the reasonableness of the rate âbecause it is less than the amount that is awarded to Dr. Poser, a neurologist.â Id.
Mr. Sabella failed to submit information âexplaining] the basis of [D]r. Knastâs feeâ and âMr. Sabella did not provide invoices from [D]r. Knast.â Id. Petitioner argues that âthe documentation for Dr. Rubinâs charges are exactly the same as the documentation provided for [D]r. Knastâs charges, so the special master was clearly willing to accept such documentation and should have done so for the amounts that were paid to [D]r. Knast.â Petârâs Mot. 21-22. The special master noted that â[i]t certainly would be better to have invoices from Dr. Rubin,â but found that âthere is some basis for awarding compensation for Dr. Rubinâs activities.â Sabella, 2008 WL 4426040, at *38 (noting that âDr. Rubin has charged time for writing reports and the reports are in the recordâ and that âDr. Rubin appeared before the undersignedâ). With respect to Dr. Knast, on the other hand, the special master found that â[a]lthough the notes on Mr. Korinâs ledger provide some information about the tasks performed by [D]r. Knast, there is no information about the amount of time a particular activity took.â Id. at *37. Where petitioner has failed to provide adequate documentation to support the costs petitioner claimed, the court finds no abuse of discretion in the special masterâs determination.
7. Dr. Allen Rubin
Mr. Sabella requested $4,125 for work performed by Dr. Rubin. Sabella, 2008 WL 4426040, at *37. The special master again found that Mr. Sabella neglected to provide âany basis to determine either Dr. Rubinâs reasonable hourly rate or the reasonable number of hours.â Id. The special master noted that Mr. Sabellaâs only documentation âconsists of entries on Mr. Korinâs ledgerâ and that the ledger âshows that Dr. Rubin was paid for writing three reports.â Id. at *37-38. The special master also noted that Dr. Rubin is board certified in both psychiatry and neurology, id. at *37, saw Mr. Sabel-la on a number of occasions, id. at *38, wrote three reports concerning Mr. Sabella, id., and âtestified for approximately two hours,â id. The special master award the full $4,125 in reasonable costs. Id. (âIt certainly would be better to have invoices from Dr. Rubin. Nevertheless, there is some basis for awarding compensation for Dr. Rubinâs activities.â). Petitioner has no objections to the amount of this award. Petârâs Mot. 21.
Mr. Sabella requested $1,800 for work performed by Dr. Condoluci. Sabella, 2008 WL 4426040, at *38. Dr. Condoluci treated Mr. Sabella prior to April 2001 and testified as an expert on September 15, 2006 âfor slightly more than two hours.â Id. at *38-39. The special master stated that âthe problem again is that Mr. Sabella did not provide any invoices or other material from Dr. Condoluci.â Id. at *39. The special master awarded $1,200 in reasonable costs because of the âabsence of better information from Dr. Con-doluci.â Id.
Petitioner states that â$1800 is a ridiculously low amount of money for a doctor who spent the time meeting with counsel, writing a report and testifying in court.â Petârâs Mot. 22. However, petitioner has only himself to blame for the reduction from the amount requested for Dr. Condoluciâs work. Petitioner argues that âthe special master accepted the documentation for Dr. Rubin, [but] ... ignored the same documentation for Dr. Condoluci.â Id. Petitionerâs comparison of the differing amounts awarded to Drs. Rubin and Condoluci is unavailing. Some documentation regarding the preparation of three reports was provided with respect to Dr. Rubin. See Sabella, 2008 WL 4426040, at *38 (âMr. Korinâs ledger shows that Dr. Rubin was paid for writing three reports.â). If Dr. Condolueiâs work was awarded âa ridiculously low amount,â Petârâs Mot. 22, it was within the power of petitioner to provide documentation to support a different outcome. Where petitioner has failed to provide adequate documentation to support the costs claimed, the court finds no abuse of discretion in the special masterâs determination.
9. Unnamed Individuals
Mr. Sabella requested approximately $3,100 for work performed by an unnamed expert. Sabella, 2008 WL 4426040, at *39. The special master held that â[wjithout any information about the person, it is impossible to determine whether the requested fee is reasonableâ and denied the amount entirely. Id.
Petitioner argues that the special master should not have denied compensation for work by an expert who has not been identified. Petârâs Mot. 22-23. âWhen counsel, such as Mr. Korin, represents to the Court that he has expended these funds in the furtherance of his clientâs ease, then his word, as an officer of the Court, should be sufficient.â Id. Petitioner also notes âa real need to protect these doctors from unnecessary exposure in the event that they are not, in fact, called upon to prepare a report or testify.â Id. at 23. In order to determine reasonable costs, the special master needs information concerning, among other things, an expertâs qualifications, the cost of living in the expertâs geographic area, and what fees an expert usually charges. See Baker, 2005 WL 589431, at *1; Wilcox, 1997 WL 101572, at *4. No such information was provided in this case. It is unnecessary for the court to decide whether it is necessary in all cases to reveal the name of the expert in order to support an award. It was not an abuse of discretion for the special master to have denied compensation for an unnamed individual in this case.
C. Additional Costs
Respondent objected to four additional costs claimed by Mr. Sabella: (1) compensation for Dr. Mark Greenspan, a consultant; (2) uncategorized costs, including travel expenses; (3) printing costs; and (4) costs for paralegal travel. Sabella, 2008 WL 4426040, at *40. Respondent did not object to a fifth type of âmiscellaneousâ additional costs, claimed for âsome other items such as postage and photocopying,â and the special master awarded the claimed amount of $5,916.37 in full. Id. In total, Mr. Sabella requested $28,406.37 in additional costs and the special master awarded $10,497.28. Id. at *44.
1. Dr. Mark Greenspan
Mr. Sabella requested approximately $13,000 for work performed by Dr. Greenspan. Id. at *40. The special master included a chart in his decision showing the reasonable number of hours and reasonable hourly rate for each of the activities performed by Dr. Greenspan. Id. at *42. The special master determined that the 12.75 hours claimed for time spent by Dr. Greenspan
Petitioner argues that âeach review [of records] is critically importantâ and that as both a doctor and a lawyer Dr. Greenspan âis able to see things in the medical records that paralegals, nurses and lawyers do not.â Petârâs Mot. 23. According to petitioner, âA medieal/legal consultant, like Dr. Greenspan, is invaluable for analyzing medical records and finding details that are critical to the presentation of the legal case.â Id. at 24. The special master carefully analyzed the work performed by Dr. Greenspan. See Sabella, 2008 WL 4426040, at *40-42. The special masterâs decision includes a chart showing the special masterâs determination of the reasonable hours and hourly rates for each activity claimed by Dr. Greenspan. Id. at *42. Given the careful analysis undertaken by the special master and the numerous reasons articulated for his determinations, the court does not find that the special master abused his discretion in awarding only a part of the compensation requested for work performed by Dr. Greenspan.
2. Travel Expenses
Mr. Sabella requested approximately $4,000 in âuncategorized costs,â some of which were for travel. Id. at *43. The special master rejected these costs, with two exceptions. Id. The special master awarded $182.00 for a stay at a Doubletree hotel in Mt. Laurel, New Jersey on August 18, 2006, and $252.41 for a stay at a Holiday Inn in September 2006. Id. During the August stay Mr. Sabellaâs counsel met with Mr. Sabella and his treating doctors to prepare for the hearing. Id. The September stay coincides with the hearing held in September 2006. Id. The special master found that the documentation explaining the other items was inadequate and that expenses at certain hotels and restaurants were âmore expensive than reasonable.â Id. With respect to petitionerâs uncategorized costs, including travel costs, the special master awarded a total of $434.41 in reasonable costs. Id. Petitioner did not address this determination in petitionerâs Motion for Review. See Petârâs Mot. passim.
3. Printing Costs
Mr. Sabella requested $1,196.50 in printing costs. Sabella, 2008 WL 4426040, at *43. The special master awarded this amount in full. Id. Petitioner did not address this determination in petitionerâs Motion for Review. See Petârâs Mot. passim.
4. Costs for Paralegal Travel
Mr. Sabella requested over $1,400 for time spent, and costs incurred, by Elizabeth K. Margolis, a paralegal in Mr. Korinâs firm, while accompanying Mr. Sabella on a trip to see Dr. Pretorius. Sabella, 2008 WL 4426040, at *44. The special master denied these costs entirely. Id. (âParalegals are trained to assist attorneys with legal matters. Accompanying a patient on an overnight trip to see a doctor is not using paralegal skills.â).
D. Total Amount of Costs and Fees
The special master awarded a total of $62,207.50 in attorneysâ fees and $17,742.28
1. The award for costs is increased by $6,270.00 to account for a mathematical error, see supra note 5;
2. The award for costs is increased by $625.00 resulting from a $50 per hour increase in Dr. Shoenfeldâs hourly rate, see supra Part III.B.3; and
Petitioner is therefore awarded $24,687.28 in costs.
IV. Conclusion
For the foregoing reasons, petitionerâs Motion is GRANTED-IN-PART and DENIED-IN-PART. The decision of the special master is REVERSED in so far as it (1) denied certain costs due to a mathematical error and (2) improperly reduced Dr. Shoenfeldâs hourly rate by $50 per hour. The decision of the special master is AFFIRMED in all other respects. The Clerk of the Court shall enter judgment in the amount of $62,897.50 for attorneysâ fees and $24,637.28 for costs. No costs.
IT IS SO ORDERED.
. Although the jurisdiction of the United States Court of Federal Claims is not limited to a particular geographic area within the United States, see 28 U.S.C. § 2505, the term âjurisdictionâ in the context of establishing the lodestar, see Avera v. Sec'y of the Dep't of Health & Human Servs. (Avera II), 515 F.3d 1343, 1349 (Fed.Cir.2008), refers to the immediate geographic neighborhood of the court and not the entire area over which the court has jurisdiction. The United States Court of Appeals for the Federal Circuit found that using the market rate in the community where the bulk of the work was performed was a "sound approach to setting the reasonable rate of attorneys' fees in Vaccine Act cases in which the bulk of the work is done outside of the District of Columbia in a legal market where the prevailing attorneysâ rates are substantially lower.â Avera II, 515 F.3d at 1349.
. The Civil Rights Attorneyâs Fees Awards Act of 1976 amended the Civil Rights Act of 1866 to âallow the prevailing party, other than the United States, a reasonable attorneyâs fee as part of the costs.â The Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. No. 94-559, § 2278, 90 Stat. 2641 (1976). A June 29, 1976 Senate Report (Senate Report) noted that the "appropriate standards ... are correctly applied in .... cases [that] have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.â S.Rep. No. 94-1011, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5913 (citations omitted). The Senate Report also stated: "In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, 'for all time reasonably expended on a matter.' " Id. (citations omitted).
. Petitioner argues that because Special Master Moran was not assigned to the case until April 2006 he is somehow not qualified to determine the reasonable amount of fees and costs for any period prior to April 2006. Petitionerâs Motion for Review (petitionerâs Motion or Pet'r's Mot.) 4 n. 1, 10. Respondent argues, and the court agrees, that petitioner's argument is without merit. Respondentâs Memorandum in Response to Petitionerâs Motion for Review (respondentâs Response or Resp'tâs Resp.) 14 ("Here, the special master carefully canvassed all the billing records submitted by petitioner, as he was required to do.â).
. The total of $7,245 in costs for experts awarded by the special master is the result of a mathematical error ($1,000.00 + $1,520.00 + $3750.00 + $0.00 + $0.00 + $1,920.00 + $4,125.00 + $1,200.00 + $0.00 does not equal $7,245.00). See Sabella v. Sec'y of Health & Human Servs. (Sabella), No. 02-1627V, 2008 WL 4426040, at *39 (Fed.Cl.Spec.Mstr. Sept. 23, 2008). The correct amount, based on the special master's analysis, is $13,515.00. See id.
. The court notes that this error and objection could and should have been raised by petitioner in a motion for reconsideration before the special master.
. The special master in fact cut Dr. Poser's rate from $350 to $200 per hour. Sabella, 2008 WL 4426040, at *33, see supra Part III.B.2.
. The special masterâs total of $17,742.28 ($7,245 + $10,497.28) in costs is the result of a mathematical error. See Sabella, 2008 WL 4426040, at *39, 44. The correct amount is $24,012.28 ($13,515.00 + $10,497.28). See id.