Dominguez v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
GEORGE DOMINGUEZ, *
* No. 12-378V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: May 25, 2018
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees & costs;
* hourly rate for Ph.D. immunologist.
Respondent. *
*********************
Clifford Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA for
petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
PUBLISHED DECISION ON REMAND AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1
On July 29, 2017, petitioner moved for interim fees, requesting $40,915.80
in fees and $34,095.70 in costs, for a total of $75,011.50. These fees and costs
covered the period ending on the date of the filing of the motion.
Two days later, respondent filed his response to petitioner’s motion. In his
response, respondent did not object to petitioner’s request. Resp’t’s Resp. at 2.
Instead, respondent stated that he was “satisfied that the statutory and other legal
requirements for an award of attorneys’ fees and costs are met.” Id.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
Based on the rationale expressed in Swintosky v. Secʼy of Health & Human
Servs., No. 12-403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6, 2017), on
December 18, 2017, the undersigned awarded petitioner the full amount of his
request for fees and costs.
On January 16, 2018, respondent moved for a review of the undersigned’s
decision on interim fees and costs. The Court granted respondent’s motion and
remanded the case to the undersigned for reconsideration of the fees decision
applying the “lodestar approach set forth in the controlling precedent.” Opinion
and Order, 2018 WL 1514447 (Fed. Cl. Mar. 8, 2018).
Shortly after the decision on interim fees was remanded, petitioner moved to
dismiss his case. Pet’r’s Mot., filed Mar. 30, 2018. This motion for dismissal was
granted. Decision, issued Apr. 2, 2018, 2018 WL 1514447. Thus, petitioner is
now eligible to file a motion for final fees and costs. Nonetheless, this decision
implements the Court’s instructions. See Vaccine Rule 28 (establishing time for
remand). Furthermore, whether the motion is labelled as one for final fees or
interim fees does not affect the ultimate procedure or outcome in this case.
Based upon a lodestar analysis, a reasonable amount of attorneys’ fees and
costs is $39,464.25.
* * *
I. Attorneys’ Fees
To determine reasonable attorneys’ fees under the Vaccine Act, the Federal
Circuit has approved the lodestar approach. This is a two-step process. Avera v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, the
court determines an “initial estimate . . . by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-
48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee
award based on specific findings. Id. at 1348. Here, an adjustment is not required.
A. Reasonable Hourly Rates
Mr. Dominguez seeks reimbursement for work performed by three different
attorneys: Clifford Shoemaker, Renee Gentry, and Sabrina Knickelbein. The rates
requested are presented in the table below in bold.
2
In determining what constitutes a “reasonable hourly rate,” special masters
generally defer to the rate schedule adopted in McCulloch v. Sec’y of Health &
Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), with annual adjustments made for inflation. The range of rates suggested
by McCulloch for each of the attorneys is noted in a parenthetical next to the
requested rate.
2015 2016 2017
Clifford Shoemaker $415 ($385 – $430) $430 ($385 – $430) $446 ($394 – $440)
Renee Gentry $400 ($350 – $415) -- $430 ($358 – $424)
Sabrina Knickelbein $350 ($300 – $375) $365 ($300 – $375) $378 ($307 – $383)
Neither petitioner nor respondent made an argument for departing from the
McCulloch guidance and thus the undersigned sees no reason to depart from those
guidelines here. Accordingly, Mr. Shoemaker’s and Ms. Gentry’s 2017 rates
should be reduced to be within the guidelines suggested by McCulloch.2
As for where in the range the attorneys’ hourly rate should be set,
McCulloch also provides some additional guidance, noting that “the following
factors are paramount in deciding a reasonable forum hourly rate: experience in the
2
It is curious why Mr. Shoemaker proposes rates that are marginally outside the
McCulloch guidelines without any argument for why a departure from the guidelines is
appropriate. Mr. Shoemaker is surely aware that his requested amount is not within the
McCulloch guidelines. For two recent examples where a special master reduced Mr.
Shoemaker’s rates to fall within the guidelines, see Bookey by Rosenbloom v. Sec'y of Health &
Human Servs., No. 13-026V, 2017 WL 2544892 (Fed. Cl. Spec. Mstr. May 18, 2017), and
Meramo by Meramo v. Sec'y of Health & Human Servs., No. 15-1234V, 2017 WL 4321084
(Fed. Cl. Spec. Mstr. Sep. 1, 2017). Absent an argument that Mr. Shoemaker deserves to be paid
at a rate higher than the listed rate, Mr. Shoemaker’s continued practice of requesting departures
from the guidelines consumes judicial resources unnecessarily. Mr. Shoemaker is warned that
requesting an excessive hourly rate without any argument in support of that rate may result in a
penalty. See Valdes v. Secʼy of Health & Human Servs., No. 99-310V, 2009 WL 1456437, at *4
(Fed. Cl. Spec. Mstr. Apr. 30, 2009) (warning Mr. Shoemaker that penalties may be necessary to
motivate him to submit requests for fees that do not contain “erroneous, duplicative, or
unreasonable entries”), mot. for rev. granted in non-relevant part and denied in non-relevant part,
89 Fed. Cl. 415 (2009).
3
Vaccine Program, overall legal experience, the quality of work performed, and the
reputation in the legal community and community at large.” Id. at *17.
In the case of the attorneys here, each has considerable experience in the
Vaccine Program and, accordingly, deserves compensation at the top of their
respective ranges. Accordingly, Mr. Shoemaker’s 2017 hourly rate is reduced to
the maximum 2017 rate: $440. Similarly, Ms. Gentry’s 2017 rate is reduced to
$415. The undersigned finds all other proposed rates appropriate.
However, the rates adopted here envision the attorney in question doing the
work of an attorney. When an attorney does the work of a paralegal or
administrative assistant, he or she should be paid a rate commensurate with the
nature of the work. See Valdes v. Sec'y of Health & Human Servs., 89 Fed. Cl.
415, 425 (2009) (noting that “the Special Master exercised appropriate discretion
in denying requested costs for work performed by Petitioner's counsel's associate”
when the special master determined “that the associate's time spent obtaining
medical records was more consistent with paralegal duties.”); see also Bratcher v.
United States, No. 15-986, 2018 WL 1225032, at *8 (Fed. Cl. Mar. 9, 2018)
(declining to reimburse for work even at paralegal rates when plaintiffs failed to
demonstrate that the work was not “largely clerical or secretarial in nature”).
Ms. Knickelbein’s work in this case is more consistent with the work of a
paralegal, or even an administrative assistant, than an experienced attorney. The
vast majority of Ms. Knickelbein’s documented work shows that her primary
function in this case was to collect medical records, to file material through the
CM/ECF system, and to act more generally as a go-between between Mr.
Shoemaker and the court, the clients, and the experts. These tasks, in the
undersigned’s experience, are almost universally billed at a non-attorney rate. The
finding that Ms. Knickelbein’s work is more consistent with paralegal work is not
novel to this case. The undersigned made the same finding in Valdes 2009 WL
1456437, at *4, mot. for rev. denied in relevant part, 89 Fed. Cl. at 425 (2009), and
Turpin v. Sec'y of Health & Human Servs., No. 99–535V, 2008 WL 5747914, at
*5–7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). Accordingly, Ms. Knickelbein’s work
will be reimbursed at the top of the McCulloch range for paralegal work: $145 in
2015 and 2016, and $148 in 2017.
Based on the adjustments detailed above, the fee award is reduced to
$36,175.10.
4
B. A Reasonable Number of Hours
Having established an appropriate rate for counsel’s time, the undersigned
turns to the amount of time counsel billed on this matter in order to determine the
total fee award.
To facilitate the process of evaluating the reasonableness of an attorney’s
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner’s
responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys’ fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).
Inconsistent with the Guidelines and Avgoustis, the petitioner’s attorneys’
billing records are often vague. This is especially an issue with Mr. Shoemaker’s
records, which frequently leave out the subject matter of correspondence. For
example, records such as “Email from Sabrina,” “Email to and from Dr. Mikovits,”
and “PC with Dr. Mikovits” make an effective review of appropriateness difficult.
A review of all of Mr. Shoemaker’s entries makes clear that this vagueness is
common. Mr. Shoemaker’s entries can be contrasted with Ms. Gentry’s records,
which consistently note the nature of the correspondence, for example: “email to
client re settlement demand,” “email from & to doj re doj rejecting settlement w/o
making counter,” and “E-mail to client regarding the Court’s last order.”
Although Mr. Shoemaker’s individual records are difficult to evaluate due to
his vague records, the undersigned is left with the overall impression that his
claimed work is approximately reasonable given the nature of the case. Therefore,
denying his requested fees in toto would be inappropriate. However, to account for
the vagueness, the undersigned finds a 15% fee reduction to be appropriate. See
Abbott v. Sec'y of Health & Human Servs., 135 Fed. Cl. 107 (2017) (holding that
the special master acted within his discretion in reducing an award based on vague
billing entries); see also Almanza v. United States, No. 13-130, 2018 WL 1704521,
5
at *7 (Fed. Cl. Apr. 9, 2018) (reducing specific time entries with block billing by
50 percent because the Court could not assess the reasonableness of the activity).
Since Mr. Shoemaker’s individual billings following the previous adjustment total
$27,543.70, this reduction reduces the total fee award by $4,131.55. The total
awarded in attorneys’ fees is thus $32,043.55.
II. Costs
Mr. Dominguez also moves for reimbursement of $34,095.70 in costs. This
includes routine costs of $31.20 for photocopies and $114.50 in costs for obtaining
medical records. These costs are reasonable and awarded in full.
The balance of costs comes from an invoice of $33,950.00 for expert
services provided by Ms. Mikovits and Mr. Ruscetti. Although both Ms. Mikovits
and Mr. Ruscetti signed the expert reports, Ms. Mikovits was to be the testifying
witness and the analysis here thus refers solely to her.3
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable expert fees are
determined using the lodestar method, in which a reasonable hourly rate is
multiplied by a reasonable number of hours. Caves v. Sec'y of Health & Human
Servs., 111 Fed. Cl. 774, 779 (2013).
A. A Reasonable Hourly Rate for Ms. Mikovits
To determine the reasonableness of this rate, it is appropriate to consider the
“area of expertise; the education and training required to provide necessary insight;
the prevailing rates for other comparably respected available experts; the nature,
quality, and complexity of the information provided; [and] the cost of living in the
3
More generally, the undersigned is aware that “MAR Consulting” has
submitted a number of reports in Vaccine Program cases, all signed by both Mr.
Ruscetti and Ms. Mikovits but with Ms. Mikovits being the testifying witness in
each case. Thus, it remains unclear the extent to which the opinions contained in
the report reflect the analysis and conclusions of Mr. Ruscetti exclusively. The
invoice for the work indicates that a small fraction of the work was performed by
Mr. Ruscetti. See Pet’r’s Resp., filed Mar. 19, 2018, at 3-5.
6
expert's geographic area.” Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl.
201, 206 (2009). Furthermore, “[p]etitioner has the burden of providing the
foregoing information concerning expert fees.” Id. Ms. Mikovits has billed an
hourly rate of $350.
An hourly rate of $350 is consistent with the range of rates provided to
expert medically-trained immunologists with extensive research experience that
testify in the Vaccine Program. See, e.g., Laderer v. Sec'y of Health & Human
Servs., No. 09-097V, 2016 WL 3044838, at *6 (Fed. Cl. Spec. Mstr. Apr. 20,
2016) (awarding an immunologist, Dr. Shoenfeld, $400 per hour); Crutchfield v.
Sec'y of Health & Human Servs., No. 09-39V, 2011 WL 3806351, at *8 (Fed. Cl.
Spec. Mstr. Aug. 4, 2011) (paying Dr. Shoenfeld, $350 per hour); Savin v. Sec'y of
Health & Human Servs., No. 99-537V, 2008 WL 2066611, at *4 (Fed. Cl. Spec.
Mstr. Apr. 22, 2008) (awarding another board-certified immunologist, Dr. Bellanti,
$350 per hour without objection by the Secretary), mot. for rev. denied on non-
relevant grounds, 85 Fed. Cl. 313 (2008).
However, Drs. Bellanti and Shoenfeld are both physicians with medical
training. This medical training has often proved, in the undersigned’s experience,
invaluable in vaccine injury cases.4
It is true that Ms. Mikovits has been awarded a Ph.D. in biochemistry and
neither Dr. Bellanti nor Dr. Shoenfeld has a Ph.D. While earning a Ph.D. is, itself,
an accomplishment, an advanced degree is neither sufficient nor necessary for
demonstrating the scientific expertise expected of expert witnesses in the Vaccine
Program. For instance, while it is true that Dr. Bellanti and Dr. Shoenfeld do not
have a Ph.D., they are each far more widely published than Ms. Mikovits. Dr.
Bellanti has co-authored over 275 research articles and Dr. Shoenfeld has co-
authored over 2,000. Beyond the expertise and experience that Drs. Bellanti and
Shoenfeld bring to the program as physicians, their publication record suggests that
they are capable scientists as well. In the undersigned’s estimation, the publication
4
Often parties will need to supplement an expert opinion provided by a non-
medically trained expert with an opinion provided by a physician. Physician-
scientists can thus present a bargain to parties in their ability to provide expert
opinion regarding not only the science, but the diagnoses and treatment as well.
7
record provides information useful in determining an individual’s scientific
expertise in a given field.
Even though a petitioner bears the burden to demonstrate the reasonableness
of his expert’s hourly rate, petitioner’s original motion for fees and costs did not
provide any support for Ms. Mikovits’ $350 hourly fee. Petitioner was
subsequently provided an opportunity to file support for Ms. Mikovits’ rate. See
order, issued Apr. 6, 2018.
In response to this invitation, petitioner filed very similar affidavits from
four individuals stating that they paid Mr. Ruscetti individually, or Mr. Ruscetti’s
and Ms. Mikovits’ consulting firm (MAR Consulting, Inc.) between $350 and
$500 per hour for an unspecified amount of time. No affidavit pertained to Ms.
Mikovits individually. The affidavits provide very little information about the
nature of the work that Mr. Ruscetti or MAR Consulting, Inc. performed.5 Without
any substantive description of the work that MAR performed, these affidavits carry
little weight in determining a reasonable hourly rate for providing opinions in the
Vaccine Program.
Based on the undersigned’s experience and the cases cited above, there does
appear to be support for using $450 per hour as a reference point for a reasonable
hourly rate for a medically-trained immunologist with extensive research
experience. Given that starting point, the next step is to adjust it to account for Ms.
Mikovits’ lack of medical experience and expertise. Based on the undersigned’s
knowledge and experience, a physician-scientist appears to warrant an additional
$200 per hour compared to equally capable research scientist without a medical
degree and experience for at least two reasons. First, a physician can opine on
medical questions in addition to purely scientific ones and thus provides additional
value to the Program. Second, a physician’s time is more valuable outside of the
Program since they can earn compensation not only through their research work,
but their clinical work as well. The $200 per hour premium may actually
5
One affiant owns a company called Success Summits, LLC. It appears that
Success Summits, LLC is in the life coaching business. The affidavit from the
owner of Success Summits, LLC does not indicate that the consultation related to
medical or scientific matters, unlike the other affidavits that were based on the
same form language.
8
undervalue the real-world value of a medical degree. Thus, the undersigned finds
$250 per hour to be a suitable rate of compensation for a comparably respected
expert in immunology who does not practice medicine.
However, Ms. Mikovits is not a comparably respected expert in
immunology. Ms. Mikovits’ scientific credentials could be generously labelled as
having a checkered past. Ms. Mikovits’ reputation began to unravel after a paper
she wrote in 2009 — linking a mouse virus (XMRV) with chronic fatigue
syndrome — was retracted by the publisher. See court exhibit 1001 (Bruce
Alberts, Retraction, 334 Science 1636 (2011)). The publisher stated that the
retraction was due to multiple other studies being unable to confirm the results
(including studies performed by some of the original authors), evidence of poor
quality control in some of the experiments, and evidence of manipulation or
mislabeling of certain figures used in the studies. Id.
At the time questions began to be raised about the XMRV-CFS article, Ms.
Mikovits was employed as the Research Director of the Whittemore Peterson
Institute for Neuroimmune Disease (WPI). Exhibit 25 at 2. However, Ms.
Mikovits was fired from this position that same year, and WPI later accused her of
stealing and deleting research materials from the institute. See Rogero v. Sec'y of
Health & Human Servs., No. 11-770V, 2017 WL 4277580, at *47 (Fed. Cl. Spec.
Mstr. Sept. 1, 2017); court exhibit 1002 (Trine Tsouderos, Discredited Chronic
Fatigue Researcher in California Jail, Chicago Tribune, Nov. 22, 2011). This
incident with WPI diminishes her relative reputation as a scientist.
Ms. Mikovits has not held a research position since 2012. See exhibit 25 at
1-2. Since then, she has worked as an advisor to Yorkbridge Capital and has co-
founded and worked as a consultant for MAR Consulting Inc. Id. Her current
services are provided through her role with MAR Consulting. Id. at 1. According
to her C.V., Ms. Mikovits has also not published scientific research since 2012,
and her last three publications consist of (1) a research article failing to replicate
the retracted 2009 XMRV-CFS article, (2) a short statement partially retracting the
2009 XMRV-CFS article (the full retraction was made by the editor himself), and
(3) another research article failing to replicate the retracted 2009 XMRV-CFS
article. See id. at 9. The absence of any publications, or apparently any research
activity at all, in the past six years weighs heavily against the relative reputation
she holds in the field of immunology.
9
Based on her reputation and bona fides, Ms. Mikovits’ credentials are simply
not in the same league as experts who are paid $250 (or more) per hour. While this
does not mean that Ms. Mikovits is incapable of providing expert testimony on
specific topics, it does mean that she cannot expect to be paid the same hourly rate
as those with much better reputations than she. Individuals with better reputations
are, presumably, in far higher demand. Accordingly, based on the rate that the
undersigned found reasonable for non-medically trained immunologists—$250 per
hour—the undersigned makes an additional deduction of 40%. This deduction
reflects Ms. Mikovits’ relative lack of reputability in the field compared to
comparable experts. This results in a rate of $150 per hour for a non-medically
trained immunologist of Ms. Mikovits’ reputation.
An appropriate rate for an expert also depends, in part, on “the nature,
quality, and complexity of the information provided.” Sabella, 86 Fed. Cl. at 206.
Ms. Mikovits’ work in this case was, frankly, poor. Her reports were riddled with
errors, exaggerations, and false statements. A non-exhaustive list includes:
1. “Several vaccines have been documented to have contributed to
vasculitis.” Exhibit 24 at 9. As Dr. Forsthuber pointed out, the
references Ms. Mikovits cites in support of this claim do not say this.
Exhibit H at 6. In fact, they often expressly discredit this interpretation.
Id.
2. “Moreover, many types of inflammatory vasculitis including granulomas
following vaccinations have been reported. (Ex44 - Kallenberg).” Exhibit
24 at 13. As Dr. Forsthuber pointed out, this reference does not discuss
vaccines at all. Exhibit H at 6.
3. “Within fourteen days [of the vaccination] on 9/16/2011, Mr. Dominguez
was seen at Kaiser for blurred vision (Ex1@60).” Exhibit 24 at 15. This
statement was critical since it was the first medical record following the
August 31, 2011 vaccination and the theory that Ms. Mikovits put forth
linking the Tdap vaccine and Mr. Dominguez’s disease indicated that
there should be a rapid onset of the illness. See id. Thus, when Ms.
Mikovits stated that he was seen for “blurred vision” 14 days following
the vaccination, it induces a fact-finder to infer that the blurred vision
may be the first symptom related to the onset of his disease, lending
credibility to her theory. However, as Dr. Forsthuber pointed out, Ms.
10
Mikovits failed to mention the records stated the “chief complaint/reason
for visit” was “routine” and that he was there that day for an “eye
examination.” Exhibit 1 at 57-60. No abnormal findings were made
except that he was diagnosed with myopia and provided with a new lens
prescription. Id. By not providing the context for this visit, Ms.
Mikovits’ characterization of Mr. Dominguez’s visit is, at best,
misleading.
4. Ms. Mikovits’ proposed medical theory was based on the premise that
checkpoint inhibitors were analogous to vaccines. Checkpoint inhibitors
are a form of cancer treatment that allows immune cells to attack cancer
cells by having them bypass internal “brakes” that limit what the immune
cells consider foreign. See exhibit H at 7. A consequence of this potent
pharmaceutical treatment is that immune cells will also attack healthy
host cells. This can lead to side effects that, though sometimes severe,
are outweighed by the benefit the treatment provides. Ms. Mikovits
never provided a logical basis beyond mere ipse dixit for this proposed
equivalency.
5. “The experience of toxic shock deaths from toxins contained in tampons
and legionnaire’s disease outbreaks of the 90s directly inform the
reliability of this theory that a vaccine can cause severe immune related
adverse events by a toxic cytokine/chemokine storm as does the recent
experience of the toxicity realized in the brutally selective checkpoint
inhibitors in cancer immune therapy.” Exhibit 24 at 14-15. The
undersigned, like Dr. Forsthuber, is “at a loss” in how Ms. Mikovits
connects toxic shock, Legionnaire’s disease, and checkpoint inhibitors
with Mr. Dominguez’s Tdap vaccination. Exhibit H at 11.
6. “Since he had been given this vaccine in 2006 and a booster is
recommended every ten years and since the patient was suffering from
viral induced inflammation, it was inappropriate to give him TDaP which
would induce more inflammation.” Exhibit 24 at 15. In the
undersigned’s experience, Ms. Mikovits is all too willing to “play
medical doctor” by frequently making statements, such as this one, that
challenge the treatment given by petitioners’ treating physicians. This is
not a new complaint of Ms. Mikovits’ conduct. See Rogero, 2017 WL
11
 4277580, at *24 (“her expert testimony seemed to shift throughout the
litigation, often veering into opinions concerning medical disciplines in
which she was wholly unqualified”). Ms. Mikovits is not trained as a
physician and has no experience as a physician. See exhibit 25 at 1-5.
This explains why Ms. Mikovits, when she does make medical opinions,
will often make incorrect statements, such as the one cited above. As Dr.
Forsthuber pointed out, “Tdap can be administered regardless of the
interval since the previous Td dose (CDC Tdap recommendations).
Halperin et al. concluded in a study of 7,156 children that Tdap can be
safely administered at intervals > than 18 months since the previous
TD/Td vaccine (24), and G.D. had received the Td vaccination in 2006,
i.e. 5 years earlier.” Exhibit H at 11.
Though given the opportunity in her supplemental report (exhibit 68), Ms.
Mikovits did not adequately (or, more typically, at all) address these issues and
others after they were raised by respondent.
Based on the deficiencies in Ms. Mikovits’ reports, shortly before the
scheduled hearing Mr. Dominguez moved to dismiss his petition, noting that “[a]n
investigation of the facts and science supporting has demonstrated to the Petitioner
that he will be unable to prove that he is entitled to compensation in the Vaccine
Program.” Pet’r’s Mot., filed Mar. 30, 2018, at 1. He further noted: “In these
circumstances, to proceed any further would be unreasonable and would waste the
resources of the Court, the Respondent, and the Vaccine Program.” Id. In the
undersigned’s opinion, the poor quality of Ms. Mikovits’ reports resulted in this
matter being drawn out far longer than it should have. By filing a report that relied
on mischaracterizations, statements that she was not qualified to make, and
misdirection, Ms. Mikovits wasted the resources of the Vaccine Program. Based
on the inferior quality of her work, the undersigned finds an additional 50%
reduction of Ms. Mikovits’ rate appropriate. Ms. Mikovits’ work will be
compensated at a rate of $75.00 per hour.6
6
The undersigned notes that Ms. Mikovits’ invoice indicates that Mr.
Ruscetti performed some of the work contained in the invoice. As noted above,
because Ms. Mikovits was the testifying witness and the invoice indicates that she
12
Furthermore, since the evidence indicates that the quality of Ms. Mikovits’
work here is consistent with the quality of work she has previously submitted in
Vaccine Program cases and with the reputation of her work as a scientist more
generally, Mr. Shoemaker and other attorneys are put on notice that future reliance
on Ms. Mikovits may not be reasonable.
B. Reasonable Number of Hours
The undersigned finds that the number of hours billed by Ms. Mikovits is
generally consistent with the amount billed in comparable proceedings.
Consequently, the amount awarded for Ms. Mikovits’ work is $7,275.00.
* * *
Accordingly, petitioner is awarded:
A lump sum of $39,464.25 in the form of a check made payable to
petitioner and petitioner’s attorney, Clifford Shoemaker.
These amounts represents reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith. The Clerk’s Office is also directed to provide this
decision to the presiding judge pursuant to Vaccine Rule 28.1(a).
s/Christian J. Moran
Christian J. Moran
Special Master
performed nearly all the work, she is referenced throughout this decision
individually. Nonetheless, the analysis provided in this decision largely applies to
Mr. Ruscetti as well.
13