McCulloch v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 09-293V

Filed: September 1, 2015

[TO BE PUBLISHED]

* * ** * * * * * * * * * * * * * * *

RACHEL MCCULLOCH, *

as parent and legal guardian of A.M., *

*

*

Petitioner, * Interim Attorneys’ Fees and Costs;

* Forum Hourly Rate; Boston Local Rate.

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * ** ** * *

Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.

Debra A. Filteau Begley, United States Department of Justice, Washington, DC, for respondent.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1

Gowen, Special Master:

On May 11, 2009, Rachel McCulloch (“petitioner”) filed a petition on behalf of her minor

daughter (“A.M.” or “minor child”) for compensation under the National Vaccine Injury

Compensation Program, 42 U.S.C. § 300aa-10 – 34 (2012)2 (the “Vaccine Act” or “the Program”).

Petitioner alleged that as a result of receiving a Human Papillomavirus vaccine (“HPV” or

“Gardasil”) on August 16, 2007, her minor child developed a severe neurological injury. On

December 7, 2009, petitioner filed an Amended Petition alleging that the HPV vaccine caused the

1

Because this published ruling contains a reasoned explanation for the action in this case, I intend

to post it on the United States Court of Federal Claims' website, in accordance with the E-

Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In

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

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

If, upon review, I agree that the identified material fits within this definition, I will redact such

material from public access.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter,

for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of

42 U.S.C. § 300aa (2012).

1

minor child to develop encephalitis, intractable epilepsy, and subsequent developmental delays.

See Amended Petition at Preamble.

A ruling on entitlement was issued on May 22, 2015, after a two-day hearing and extensive

post-trial briefing by both parties. I rendered a decision finding that the petitioner was entitled to

compensation for A.M.’s injuries. No damages award has been issued yet.

On March 18, 2015, petitioner filed a Motion for Interim Attorneys’ Fees and Costs with

a supporting memorandum (“Pet. Motion”). Petitioner requests $156,343.60 for attorneys’ fees,

$75,860.52 for costs, and $250.00 in costs personally incurred by the petitioner, Rachel

McCulloch. See Pet. Motion at 1. Petitioner filed detailed time sheets and invoices in support of

her motion. See generally Pet. Motion Tab A at 4-133. Petitioner also requests that I determine

appropriate 2014 and 2015 hourly rates for Conway Homer & Chin-Caplan (“CHC”) attorneys,

law clerks, and paralegals, as petitioner and respondent are no longer operating under the fee

agreement reached in Carr v. Secy’ of HHS, No. 00-778V, 2006 WL 1073032 (Fed. Cl. Spec. Mstr.

Mar. 29, 2006). See Pet. Memorandum for Interim Attorneys’ Fees and Costs (“Pet. Memo”) at 2.

Petitioner argues that CHC is entitled to forum rates of Washington, D.C. Id.

On May 12, 2015, respondent filed a response opposing petitioner’s motion for interim

attorneys’ fees and costs, “on the grounds that (1) an award of interim attorneys’ fees and costs are

[sic] not appropriate at this time, (2) the attorneys’ hourly rates sought for the period of March 31,

2014 to the present are not reasonable, and (3) portions of the time expended by [petitioner’s]

counsel are excessive and/or unreasonable.” Respondent’s Opposition to Petitioner’s Application

for Attorneys’ Fees and Costs (“Resp. Response”) at 1. Respondent suggests that the petitioner’s

attorneys’ fees be reduced by $77,892.60, and costs reduced by $1,857.00. See Resp. Response at

40-41. Respondent does not object to awarding $250.00 for costs expended by Rachel McCulloch.

On June 5, 2015, petitioner filed a reply in further support of her interim fee and cost

requests. Petitioner argues that an award of interim attorneys’ fees and costs is appropriate under

Avera where, as in this case, the fees and costs are substantial and an award will prevent undue

hardship. See Pet. Reply at 4-5 (citing Avera, 515 F.3d 1343, 1352 (Fed. Cir. 2008)). Petitioner

further argues that the forum rates sought by counsel at CHC are reasonable as there is no

significant difference between the local Boston hourly rate and the Washington D.C. forum rate.

Id. at 7-10. With regard to the respondent’s objections to portions of time spent by CHC on this

case, petitioner argues for compensation for all their time, and further argues for compensation for

all costs.

Petitioner filed a supplemental fee request on June 5, 2015 in the amount of $16,752.00 for

preparing a reply to respondent’s response. See Pet. Supp. Motion for Interim Attorneys’ Fees and

Costs (“Pet. Supp. Motion”) at 1. On June 26, 2015, respondent filed a response to petitioner’s

supplemental fees motion and a sur-reply to petitioner’s reply. Respondent maintained her position

as indicated in her response, with the added argument that, based on recent forum rate decisions

by Special Masters, all attorneys at CHC (and not just the partners as respondent initially argued

in her response) should be awarded local rates because she contends there is a significant difference

between forum and local rates based on her suggested forum and local rates for CHC. See Sur-

Reply at 2-3. Respondent further argued that the rates under Carr are not supported by law or any

evidence, and that those rates have “provided a windfall to CHC” over the years. Id. at 4-6.

2

During a telephonic status conference on the issue of petitioner’s interim fees and costs

request on June 17, 2015, the parties indicated that they would like a decision on the record without

a hearing or mediation. Accordingly, this matter is now ripe for a decision.

For the reasons set forth below, petitioner is awarded $165,326.60 for interim attorneys’

fees and $74,183.52 for interim costs incurred up to and including June 5, 2015. Petitioner is also

awarded $250.00 for costs personally incurred, pursuant to General Order No. 9.

I. BACKGROUND

A. Procedural History and Background of the Petition for Vaccine Program

Compensation

This case was filed on May 11, 2009, and assigned to then-Chief Special Master

Golkiewicz. In the eight months following the filing of the petition, petitioner filed extensive

medical records detailing A.M.’s diagnosis and treatment of “encephalitis of unknown origin.” See

Pet. Exhibit (“Ex.”) 1-20, 23.

Petitioner filed an Amended Petition on December 7, 2009, alleging that the HPV vaccine

caused petitioner to develop encephalitis, intractable epilepsy, and developmental delay. See

Amended Petition at Preamble. On March 9, 2010, respondent filed her Rule 4(c) Report against

compensation under the Vaccine Act asserting petitioner had not produced any medical or

scientific explanation of her claim sufficient to establish causation. Resp. Rule 4 at 10-11, docket

no. 25, filed Mar. 9, 2010. Respondent further argued that none of A.M.’s treating physicians

linked her condition to the HPV vaccination. Id. Accordingly, on April 8, 2010, petitioner was

ordered to file an expert report addressing the Althen criteria. See Althen v. Sec’y of HHS, 418 F.3d

1274, 1278 (Fed. Cir. 2005).

Petitioner filed a motion to stay the proceedings on September 7, 2010, stating that the

medical literature and scientific evidence at that time did not adequately address the safety of the

HPV vaccine, and that additional time was therefore needed “to allow the science surrounding the

[HPV vaccine] to develop.” Pet. Mot. to Stay Proceedings at 8. On October 7, 2010, respondent

filed a response to petitioner’s motion arguing against an indefinite stay of the proceedings. Resp.

Response to Motion to Stay at 4. After holding a status conference on November 23, 2010, Chief

Special Master Golkiewicz granted petitioner ninety days to file an expert report. Petitioner

subsequently filed an expert report from Dr. Svetlana Blitshteyn, along with several exhibits of

medical literature in support of the opinion on February 22, 2011. See Pet. Ex. 25-26.

The case was reassigned to Special Master Zane on March 16, 2011. Thereafter, respondent

filed a responsive expert report along with medical literature from Dr. John Sladky on April 22,

2011. See Resp. Ex. A-G. Petitioner filed a supplemental expert report from Dr. Blitshteyn on

August 16, 2011. See Pet. Ex. 27. Respondent filed a supplemental amended expert report from

Dr. Arun Venkatesan on November 21, 2011. See Resp. Ex. H. Petitioner filed a supplemental

report from Dr. Lawrence Steinman on October 10, 2012. See Pet. Ex. 34. Respondent filed a

responsive supplemental expert report from Dr. Venkatesan on March 25, 2013. See Resp. Ex.

3

Q-R.

After the parties indicated a willingness to engage in settlement discussions, Special Master

Zane ordered periodic status reports on the progress of settlement discussions beginning on July

15, 2013. Chief Special Master Vowell was assigned this case on September 6, 2013. After several

months of settlement negotiations, the parties filed a joint status report on December 20, 2013

stating settlement was not feasible. See Joint Status Report filed December 20, 2013.

Thereafter, I was assigned to this case on March 4, 2014 and an entitlement hearing was

held on April 10 and 11, 2014. After extensive post hearing briefing by both parties, a decision

finding that the petitioner was entitled to compensation for A.M.’s injury was entered on May 22,

2015.

B. Background of the Fee Dispute

Some background information is useful to the understanding of the issues presented in this

matter. The firm of CHC, located in Boston, Massachusetts, has long been one of the most active

firms in the representation of petitioners in the Vaccine Program. See Pet. Memo at 1. In fact, the

firm’s practice is limited to Vaccine Act cases. Id. at 2. Because of CHC’s significant participation

in the Program, and in order to avoid unnecessary litigation over hourly rates, the parties reached

an agreement as to rates for CHC cases in 2006. At the request of the parties, former Chief Special

Master Gary Golkiewicz entered a decision in Carr v. Sec’y of HHS, setting forth the agreement

between the parties on hourly rates for CHC attorneys and paralegals based upon prevailing rates

for the Boston area. See Carr v. Sec’y of HHS, No. 00-778V, 2006 WL10730321, at *1-*4 (Fed.

Cl. Spec. Mstr. Mar. 29, 2006). This decision was entered at the request of the parties after

extensive discussion and similar briefing of their disagreement on appropriate hourly rates. See

generally id.

Carr set forth rates in 2006 for Kevin Conway ($300), Sylvia Chin-Caplan ($270), Ronald

Homer ($260), and firm paralegals at $95 per hour. Id. at *3. The parties further agreed that the

rates in the agreement (hereinafter referred to as “Carr rates”) would increase in specific annual

increments until the remaining two partners, Sylvia Chin-Caplan and Ronald Homer were billing

at $300 an hour. Id. Thereafter rates for Sylvia Chin-Caplan and Ronald Homer would be increased

in accordance with the annual rate of increase in the Consumer Price Index (“CPI”). Id. The rates

for partner Kevin Conway and firm paralegals would also be adjusted after 2006 consistent with

the CPI. Id. The parties generally operated under that agreement through March 2014, as

petitioners represented by CHC submitted fee requests with the agreed upon hourly rates, to which

respondent generally did not object. Specifically, as to this case, CHC submitted billings under the

Carr rate for all activity prior to March 2014, and billed at their newly proposed hourly rates for

activity after March 2014 up to June 5, 2015, when their supplemental fees request was filed. See

Pet. Motion Tab A at 4-133.

As noted by former Chief Special Master Golkiewicz, the precedential value of his decision

in Carr was “restricted to the named attorneys and paralegals of CHC, and other vaccine lawyers

practicing in the relevant community of Boston.” Carr, 2006 WL 1073032 at *2. Furthermore, the

agreed upon rates and methodology for calculating those rates were to be used for the “time periods

indicated,” namely, from 2006 and thereafter, with annual CPI adjustments. Id. While the Carr

4

agreement did not have a specific expiration date, after nine years, CHC is requesting that the

agreement be reviewed in light of more recent fee decisions involving other counsel, and in light

of the Avera decision from the Federal Circuit indicating that the forum rate for Washington D.C.

should be utilized in fee decisions unless the locality where the bulk of the case work is performed

has a “very significant[ly]” lower rate than the forum rate (the “Davis exception”). Avera, 515

F.3d at 1348 (citing Davis Cnty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v.

U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). Petitioner here is seeking an upward

adjustment from the Carr rates— ranging from 20 to 45 percent— for different members of the

CHC firm. See generally Pet. Memo.

In her response, respondent initially contended that comparable attorneys’ fee rates in

Boston are 52 percent less than in Washington D.C. at the partner level and approximately 27

percent less at the associate level. Resp. Response at 12. Thus, according to respondent, the Davis

exception to the forum rule should apply to the partners, all of whom have more than 20 years of

experience as attorneys, because the partner rates in Boston are significantly less than they are in

Washington D.C. Resp. Response at 17 (citing the Davis exception as applied in Hall v. Sec’y of

HHS, No. 02-1052V, 2010 WL 1840837, at *10 (Fed. Cl. Spec. Mstr. May 5, 2010)) (internal

citations omitted). The respondent initially contended that the associates, all of whom have less

than 10 years of experience, should receive the Washington D.C. forum rate as she stated the Davis

exception does not apply when there is a 27 percent difference between the local rate and forum

rate. However, as stated in her sur-reply, respondent now contends that based on recent Vaccine

Program forum rate decisions in O’Neil,3 Barrett,4 and Scharfenberger,5 all of which awarded

higher rates for attorneys with 10 or less years of experience, the Davis exception should apply to

CHC associates as well because there is a now a “very significant difference” of 57 percent

between the forum and suggested local rates. See Sur-Reply at 2-3. The respondent also proposes

a significant downward adjustment in the Carr rates for CHC, ranging from 25 to 29 percent—

contending not only that an upward adjustment of the 2014-15 rates based on the CPI is not

justified, but also that the Carr rates over the years have provided a “windfall” for CHC. See Sur-

Reply at 4-5.

On June 17, 2015, I held a recorded status conference in which Kevin Conway, Ronald

Homer and Joseph Pepper participated for the petitioner, and Debra Begley, Catherine Reeves,

Voris Johnson, and Darryl Wishard participated on behalf of the respondent. See Transcript,

docket no. 141, June 25, 2015. During the status conference, Mr. Homer emphasized the need for

a timely decision on this issue as all the firm’s fee applications were now being litigated and thus

may potentially affect the firm’s ability to retain necessary experts for ongoing cases. Id.

Respondent’s counsel, Ms. Begley, indicated the respondent believed it had thoroughly set forth

her objections to CHC’s proposed hourly rates and fee request based on her interpretation of the

evidence to support a forum versus local rate. The parties were offered the opportunity to engage

in mediation or to have a hearing on this issue. Id. Both parties elected to proceed to a decision on

3

O’Neil v. Sec’y of HHS, No. 08-243V, 2015 WL 2399211, at *7 (Fed. Cl. Spec. Mstr. Apr. 28,

2015).

4

Barrett v. Sec’y of HHS, No. 09-389V, 2014 WL 2505689, at *13 (Fed. Cl. Spec. Mstr. May 13,

2014).

5

Scharfengerger v. Sec’y of HHS, No. 11-221V, 2015 WL 3526559, at *10 (Fed. Cl. Spec. Mstr.

May 15, 2015).

5

the record. Id.

II. ANALYSIS

A. Legal Standard

Interim fee awards are permissible under the Vaccine Act. See Avera, 515 F.3d at 1352;

see also Shaw v. Sec’y of HHS, 609 F.3d 1372 (Fed. Cir. 2010). In Avera, the Federal Circuit noted

that “interim fees are particularly appropriate in cases where proceedings are protracted and costly

experts must be retained.” Avera, 515 F.3d at 1352. The court reasoned that when the amount of

fees and costs is substantial, and/or there is a delay in an award, interim fees are appropriate to

prevent undue hardship. Id. This reasoning was extended in Shaw when the Federal Circuit held

that “where the claimant establishes that the cost of litigation has imposed an undue hardship and

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

attorneys’ fees.” Shaw v. Sec’y of HHS, 609 F.3d 1372, 1375 (Fed. Cir. 2010).

The Federal Circuit in Avera noted, “[o]ne of the underlying purposes of the Vaccine Act

was to ensure that vaccine injury claimants have readily available a competent bar to prosecute

their claims.” Avera, 515 F.3d at 1352 (citing Saunders v. Sec’y of HHS, 25 F.3d 1031, 1035 (Fed.

Cir. 1994)). “Denying interim fee awards would clearly make it more difficult for claimants to

secure competent counsel because delaying payments decreases the effective value of awards.” Id.

Post-Avera, a number of judges and many special masters have found interim fee awards

permissible under various circumstances, including when petitioner’s counsel withdraws from the

case. See, e.g., Woods v. Sec’y of HHS, 105 Fed. Cl. 148, 154 (Fed. Cl. 2012) (Judge Williams

affirmed the special master’s award of interim fees and suggested that when counsel withdraws,

and it is unknowable how long case resolution might take, an interim award may be appropriate);

Dobrydnev v. Sec’y of HHS, 94 Fed. Cl. 134, 148 (2010) rev’d on other grounds, 98 Fed. Cl. 190

(2011) (Judge Braden held that a denial of petitioner’s request for interim fees for an expert witness

was prejudicial where the expert represented that he would not participate in further proceedings

without payment of outstanding bills petitioners could not pay); Nuttall v. Sec’y of HHS, No. 07-

810, 2011 WL 5926131, at *2 (Fed. Cl. Spec. Mstr. Nov. 4, 2011) (Special Master Moran found

that interim fees were appropriate as the case had been pending for approximately four years);

Hirmiz v. Sec’y of HHS, No. 06-371, 2011 WL 2680721, at *4 (Fed. Cl. Spec. Mstr. June 13, 2011)

(Special Master Hastings cited seventeen special master decisions granting interim fees in cases

where judgment on the merits had yet to be granted, and also found that the circumstances of the

case at hand warranted an award of fees in part because it seemed likely that it would be a long

time before a final decision would be rendered and that petitioner needed funds to obtain an expert

opinion).

Nevertheless, petitioner “bears the burden of establishing the hours expended” and the

reasonableness of the requested fee award. Wasson v. Sec’y of HHS, 24 Cl. Ct. 482, 484 (1991),

aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam). A special master has “wide

discretion in determining the reasonableness” of attorneys' fees and costs. Perreira v. Sec’y of

HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable attorneys’ fees

are determined by applying the lodestar method. Avera, 515 F.3d at 1347-48 (quoting Blum v.

6

Stenson, 465 U.S. 886, 888 (1984)). Under this method, the special master first determines an

“initial estimate [of fees] . . . by ‘multiplying the number of hours reasonably expended on the

litigation times a reasonable hourly rate.’” Id. Then, the special master may make an upward or

downward departure from the initial calculation of the fee award based on specific findings. Id. at

1348. Additionally, the requirement that attorneys’ fees be reasonable also applies to costs.

Perreira, 27 Fed. Cl. at 34 (“Not only must any request for attorneys’ fees be reasonable, so must

any request for reimbursement of costs.”).

In making reductions, a line-by-line evaluation of the fee application is not required.

Wasson, 24 Cl. Ct. at 484. Special masters may rely on their experience with the Vaccine Act and

its attorneys to determine the reasonable number of hours expended. Id. Just as “[t]rial courts

routinely use their prior experience to reduce hourly rates and the number of hours claimed in

attorneys’ fee requests . . . [v]accine program special masters are also entitled to use their prior

experience in reviewing fee applications.” Saxton v. Sec’y of HHS, 3 F.3d 1517, 1521 (Fed. Cir.

1993).

B. Interim Fee and Cost Award

Interim fees may be paid at the discretion of the special master. While they are not routinely

awarded, interim fees may be awarded where the case has been proceeding for a significant amount

of time, where the fees and costs are substantial, or where a hardship would be created by not

awarding interim fees. Avera, 515 F.3d at 1352.

Petitioner argues that proceedings in the instant case “ha[ve] been extensive, costly experts

have been retained (costs are $75,860.52), and the requested fees ($156,343.60) are substantial.”

Pet. Reply at 4. Respondent argues that hardship under Avera refers specifically to a petitioner’s

hardship and not that of their counsel, and that “to the extent the circumstances of counsel are

relevant, . . . [CHC] has received over $21,500,000.00 in fees and costs paid by the Program since

2007,” and “that it would be disingenuous for [CHC] to assert that it would suffer financial

hardship if it were required to wait until this case is concluded to receive an award of fees and

costs.” Resp. Response at 4 (citing Avera, 515 F.3d at 1352 for the proposition that the “undue

hardship” requirement applies only to petitioners and not their counsel).

The respondent provided a chart showing the amount of fees earned by the CHC firm since

2007 to support her argument that CHC has no hardship and that in fact it has received a windfall

under the Carr rates. Respondent contended that CHC has handled 9.7 percent of the cases (350

cases) filed in the Program since 2007 and received 18.24 percent of the fees and costs paid. Resp.

Response at 8-9. CHC vigorously contested this argument on several grounds. First, CHC correctly

noted that all of its fees were approved by a special master, generally after input from the

respondent. Pet. Sur-Reply to Resp. Reply (“Pet. Sur-Reply”) at 21. Second, the $21.5 million

figure cited by the respondent failed to exclude costs and fees paid to persons outside the CHC

firm, such as fees paid to referring attorneys. According to petitioner’s counsel, the costs amounted

to $3.7 million and fees paid to other attorneys amounted to $1.2 million. Id. at 22-23.6 Third, and

most importantly, the fees paid to CHC reflected payment for 1100 cases handled, most of which

6

Respondent’s Response to Petitioner’s Reply at page 6 acknowledges that the data and evidence

relied upon by respondent does not makes the distinction between attorneys’ fees and costs.

7

were filed before 2007, not the 350 cases filed since that time as respondent asserts.7 Id. at 22; Pet.

Reply at 23 n. 3 (according to CHC, as of the time of filing of respondent’s objections in this

matter, no fee has been paid on 117 of the 350 cases respondent references). Petitioner submits

that it has received approximately $7.4 million in fees for cases filed since 2007, much less than

the $21.5 million suggested by respondent. Id.

In considering the parties’ arguments, I find that when the divisor is changed from 350

cases to 1100, and costs subtracted from $21.5 million, the suggested disproportion between fees

earned and cases litigated disappears. In fact, considering only the actual amount of fees CHC

received ($7.4 million), it appears CHC received 6.3 percent of the fees paid in the Program for

cases filed since 2007, not 18.24 percent. In a different view, when the total amount of attorneys’

fees and costs paid by the Program since 2007 is considered, (approximately $117.9 million), and

compared directly to the amount CHC actually received in cases filed since 2007 for attorneys’

fees for both the firm and for outside attorneys ($8.6 million) and including the amount CHC

received in costs ($3.7 million) (total $12.3 million), the percentage of total fees and costs paid to

CHC is 10.4 percent, and not 18.24 percent.8 Obviously, this number is much more in line with

the total number of cases filed since 2007.

Whether or not respondent intended to exaggerate the extent of fees received in order to

suggest a windfall, the effect of the argument was in fact misleading and needlessly so. The

argument is unpersuasive for other reasons as well. A statistic merely comparing the total amount

of fees to the number of cases handled fails to account for the complexity of the cases handled and

the extent of the defenses raised by the respondent. As the parties well know, the volume of work

required in vaccine cases varies dramatically based upon complexity. Fees for cases which are

conceded or stipulated at an early time in the litigation generate far lower fees than cases that

proceed through expert analyses, literature submissions, briefings, and hearings. Comparative

hourly rate data derived from other Vaccine Program cases, as will be discussed below, suggests

that the CHC firm has not received rates in excess of other attorneys in the Program, and that the

extent of fees earned is more reflective of the volume of work performed.

Moreover, the amount of fees and costs CHC has received in this Program since 2007 is

irrelevant to whether CHC is entitled to interim attorneys’ fees and costs in this specific matter—

a matter in which substantial costs have been incurred and considerable time expended over the

eight years since petitioner sought counsel from CHC in June 2008. CHC has been representing

petitioner in the litigation of this case since May 2009. The issues involved in the entitlement

7

Respondent’s opposition to petitioner’s application for interim attorneys’ fees and costs states:

Further, according to statistics published on HHS’s website, there were 3595

petitions filed between FY 2007 and FY 2014. According to a data search of the

court’s CM/ECF system, CHCC filed 350 cases between FY 2007 and FY 2014 or

about 9.7% of the total number of petitions filed. Thus, although CHCC filed only

about 9.7% of the Program’s petitions, CHCC was awarded about 18.24% of all

fees and costs in the program. Resp. Response at 10.

8

This number is derived by adding the total amount of fees ($8.6 million) and costs ($3.7 million)

and dividing that number ($12.3 million) by $117.9 million, equaling 10.4 percent.

8

portion of this case were complex, requiring significant medical research and expert testimony, as

well as preparation for a two-day entitlement hearing. Indeed, “protracted” litigation and “costly

experts” have been substantial in this case. The fees and costs which the firm has been carrying,

whether calculated by its formula or by the respondent’s, are substantial at $156,343.60 for fees

and $75,860.52 for costs based on petitioner’s figures, or $78,451.60 in fees and $74,003.52 in

costs based upon the respondent’s recommendations.

As to respondent’s argument that, under Avera, hardship refers to that of petitioner and not

her counsel, I find respondent’s argument lacks support in the law. Avera makes no indication,

either explicitly or implicitly, that the hardship requirement pertains only to petitioners and not

their counsel. In fact, as part of its reasoning for why interim fee awards are appropriate in the

Vaccine Program, the Federal Circuit reasoned that “denying interim fee awards would clearly

make it more difficult for claimants to secure competent counsel because delaying payments

decreases the effective value of awards.” Id. (emphasis added). Thus, the Federal Circuit clearly

considered counsel in its discussion of interim fee awards in the Vaccine Program. The value of

awards of fees and reimbursement of costs affects counsel not the individual petitioner.

Furthermore, there is little doubt that petitioner has brought this case in good faith and

established a reasonable basis for the claim as noted in Shaw. See 609 F.3d at 1375. A ruling on

entitlement in favor of the petitioner was issued on May 22, 2015.

Accordingly, petitioner is entitled to an award of interim attorneys’ fees and costs based

upon the age of the case, the extent of the work performed, and the amount of costs incurred.

C. Discussion of a Reasonable Hourly Rate

Nine years have passed since the adoption of the Carr rate agreement, and the special

masters acknowledge and appreciate that it is likely that considerable litigation, such as that

involved in this case, has been avoided by the willingness of both sides to agree to a formula for

rates. However, it is not unreasonable that the terms of such an agreement be reviewed after the

passage of this much time. The parties were strongly encouraged to engage in reasonable

discussion of rates that could form the basis of a new agreement. See Transcript dated June 17,

2015 at 4-5. But in light of the respective positions taken, an agreement was not forthcoming. Id.

at 7-8.

The petitioner’s fee request can best be summarized in table form and therein be compared

to the respondent’s proposed rate.9 The table will compare the Carr rates for 2014—which includes

a CPI adjustment of 1.5 percent, consistent with data provided by the U.S. Department of Labor

Statistics for all urban consumers10—with the rates proposed by CHC and by the respondent.

9

The information in the Table is taken from petitioner’s memorandum, filed March 18, 2015, and

respondent’s response and sur-reply, filed on May 12, 2015 and June 26, 2015 respectively.

10

The Bureau of Labor Statistics has a Consumer Price Index (“CPI”) Inflation calculator, which

uses the average CPI for a given calendar year. See US INFLATION CALCULATOR, Consumer Price

Index Data from 1913 to 2015, http://www.usinflationcalculator.com/inflation/consumer-price-

index-and-annual-percent-changes-from-1913-to-2008/ (last visited Aug. 10, 2015).

9

Attorney Carr Rate Pet. Proposed Rate Resp. Proposed Rate

Kevin Conway $358 $425 $270

Sylvia Chin-Caplan $327 $415 $250

Ronald Homer $327 $415 $230

Christine Ciampolillo $216 $310 $180

Joseph Pepper $216 $295 $170

Meredith Daniels $216 $285 $160

Paralegals $108 $135 $135

Law Clerks --- $160 $135

I will first consider the parties’ arguments in favor and against awarding a Washington

D.C. forum rate as opposed to awarding a local Boston, Massachusetts rate. Then, I will discuss

the current forum rates in Washington, D.C. generally, and forum rates specific to the Vaccine

Program. Based on the prevailing rate for legal work in Washington DC, the prevailing rate for

cases in the Vaccine Program, the experience of CHC attorneys (both in the Vaccine Program and

in the practice of law generally), the quality of work CHC performs in vaccine cases, and the

attorneys’ reputation in the legal community and community at large, I will determine reasonable

2014 and 2015 forum hourly rates for the above named CHC attorneys, paralegals and law clerks.

i. Local Rates vs. Forum Rates

At the time that the Carr rate agreement was reached and entered as a decision, Avera had

not been decided by the Federal Circuit. Most fees were determined by reference to the prevailing

rates in the locality of the petitioner’s firm. The Federal Circuit in Avera directed that fees be based

upon the “forum rate,” which in this Program would be Washington D.C., except where the work

was substantially performed in the firm’s home locale and the local rates are very significantly

less than those in Washington D.C. Avera, 515 F.3d at 1349 (emphasis added). CHC acknowledges

that nearly all of its work in vaccine cases is performed in its office in downtown Boston,

Massachusetts. Pet. Memo at 5. In this case, it appears that but for two days of an entitlement

hearing, and some preparation which took place in Washington D.C., essentially all the work was

performed in Boston, Massachusetts. Id. This pattern of work is also typical for most cases in the

Vaccine Program, where most of the work is performed in the home jurisdiction of counsel.

In support of its application for an increase in hourly rates beginning after March of 2014,

CHC has provided references to fee awards for another Massachusetts attorney in the Vaccine

Program and to several decisions of the United States District Court for the District of

Massachusetts. Petitioner cites to Oswalt v. Sec’y of HHS11 and Yang v. Sec’y of HHS12 in which

the same attorney, practicing in Marblehead, Massachusetts, was awarded $340 an hour for work

performed in 2007 in Oswalt and $370 an hour for work performed in 2009 in Yang.13 Additionally,

11

Estate of Oswalt v. Sec’y of HHS, No. 03-2153V, 2011 WL 2149932, at *3-*4 (Fed. Cl. Spec.

Mstr. May 2, 2011).

12

Yang v. Sec’y of HHS, No. 10-33V, 2013 WL 4875120, at *1 (Fed. Cl. Spec. Mstr. Aug. 22,

2013).

13

In Yang, the special master held that “the local market rate for Boston is not very significantly

below the DC forum rate, and therefore [petitioner’s attorney] receives the forum rate. See Yang,

2013 WL 4875120, at *4. Respondent contends that the special master’s conclusion in that

10

the petitioner submits references to three District Court cases in which rates of $409 to $425 were

approved for partners and $290 to $310 for associates. See Pet. Memo at 8 (citing Barbosa v.

Hyland, 2014 WL 1847211, at *3 (D. Mass. 2014) which awarded $425 for a partner with 33 years

of experience and $310 for an associate with 11 years of experience in a police misconduct, civil

rights case, Shirokov v. Dunlap et al., 2014 WL 1271557, at *2 (D. Mass. 2014) which awarded

an attorney rate of $409 in a small consumer class action case, and Rosie D. ex rel. John D. v.

Patrick, 593 F. Supp. 2d 290, 293 (D. Mass. 2009), a significant civil rights case in which the

plaintiff’s counsel reduced their hourly rate by more than a third to $290-$425 for the attorneys

and $125-$145 for paralegals).

The respondent claims that comparable attorneys’ rates are 52 percent lower in Boston than

they are in Washington, D.C. for partners and approximately 57 percent lower for associates. See

Resp. Response at 17-18; Sur-Reply at 2-3. Respondent further contends that the 52 percent rate

differential as to the partners justifies payment of the partners at a local rate, which is substantially

less than the rates paid to date under the Carr agreement, and also very substantially less than the

rate CHC proposes here. Resp. Response at 17-18. Respondent argues that the 57 percent

differential as to associates, all with less than 10 years of experience as attorneys, also justifies

payment at a local rate for their work. Sur-Reply at 2-3.

At first blush, the assertion that comparable attorneys’ fees in Boston could be 52 to 57

percent lower than those charged in Washington, D.C. seemed mildly astonishing, so I endeavored

to carefully evaluate the data supporting this claim as supplied by the respondent in exhibits

attached to her response, as well as other publicly available information which I provided to both

parties for comment. See Order, filed Aug. 10, 2015. I also reviewed decisions awarding fees in

the Vaccine Program and Massachusetts District Court as submitted by the parties.

As the primary basis for her arguments, respondent submits excerpts from the “Real Rate

Report for 2014” marked as exhibit Z. The Real Rate Report (“RRR”) is a product of

Datacert/Tymetrix. Resp. Ex. Z at 1. The RRR reports on corporate billing rates paid to small,

medium, and large law firms in different practice areas serving corporate clients. The Executive

Summary of the report states that this year’s data contains more than $16 billion in legal spending

data from corporations and law firms e-billing and time management solutions, as well as other

industry sources. Resp. Ex. Z at 5. The study reports on rates in various metropolitan areas and

defines small firms as those with fewer than 50 lawyers. Resp. Ex. Z at 11-14.

Respondent argues that the size of the firm is the primary driver of higher fees, with the

largest firms receiving the highest fees. See Resp. Response at 12. She further argues that because

CHC is a small firm with only six lawyers, it should be compensated at the lowest rate in the

proposed category. Id. Respondent submits data on the category denoted “General Liability

Litigation” in the Boston area, which respondent suggests is the most appropriate for comparative

purposes. See Resp. Ex. Z at 14. In this category, based on invoices to corporations covering 37

partners and 67 associates, hourly rates for the lowest quartile for partners in 2013 was $198.00,

for the second quartile $220.00, and for the third and highest $260.00. Id. The report also showed

the mean rates for the category of partners in the small firm general liability category as moving

decision should be disregarded as she did not have before her the respondent’s new evidence as

discussed here.

11

from $210.26 in 2011, to $221.36 in 2012, and $234.42 in 2013. Id. The mean rates for the

category of associates moved from $168.28 in 2011, to $169.44 in 2012, and to $173.14 in 2013.

The respondent compared these rates to those paid in the Vaccine Program and argued that the

Boston rate was very significantly different. See Res. Response at 17. Based primarily on this

report, the respondent argues that CHC’s proposed rate increases are not reasonable and rather the

firm’s fees should be substantially reduced from the Carr rates by approximately 24 to 29 percent.

Unfortunately, the term “General Liability Litigation” is not defined in the excerpts from

the study submitted as exhibit Z. It is difficult to tell what it includes, but I can deduce that the

category does not include plaintiff’s personal injury litigation as that is done on contingency basis,

and is not typically a service performed for corporations. It does not include insurance defense, as

that is another category explicitly noted on the page submitted. See Resp. Ex. Z at 164. It does not

include large corporate litigation, which is primarily done by the most highly paid large firms. Nor

does it include patents, or finance and securities, as these areas are also broken out on respondent’s

exhibit Z at page 14.

Most significantly, respondent did not provide RRR comparative data for general liability

litigation in Washington D.C., so that the proverbial apples to apples comparison could be made.

Instead, respondent compared general liability litigation by small firms in Boston, Massachusetts

to “forum” rates in the Vaccine Program. Petitioner argues that this comparison is inappropriate in

that the firms doing general liability litigation are not specialized in a particular area, such as

vaccine practice, those firms expect monthly payment of bills, and they do not front and carry costs

for prolonged periods of time. In particular, petitioner further argues that no firm that could have

been included among the Boston firms in the RRR study has ever done a vaccine case, nor is it

likely that they would, as the initial outlay of capital would be too great and the learning curve for

the science and medicine involved would be too steep. As it is unlikely that firms practicing in the

small general liability category, which does not include insurance defense, would have any

significant personal injury experience, much less experience with complex personal injury issues,

it would appear that this point is well taken.

Considerations of the billing and cost model of general liability practice is also significant,

as the Vaccine Program operates on a model that defers the reimbursement of fees and costs, in

most cases, to the conclusion of the case—which can vary from months to, as in this case, multiple

years. Firms practicing corporate law, whether it be litigation or transactional, virtually always

rely on a monthly billing model or at least something close to that, like a quarterly billing system.

They expect prompt reimbursement of costs, or in many instances, expect the client to pay directly

for items like expert fees. Firms carrying substantial costs, like vaccine firms or plaintiffs’ personal

injury firms, frequently finance costs through a credit line, causing them to incur interest costs

which are not reimbursed by the Program. Accordingly, the comparison of small general liability

firms in one market to vaccine specialized firms in the forum is not a comparable comparison and

is not helpful to the analysis.

The RRR does provide some information that is informative, even if it is drawn entirely

from corporate billings. The Executive Summary of the RRR states:

Lawyer rates have risen in each of the past seven years that we have analyzed

12

lawyer invoices—even despite a significant decline in economic growth in 2008

and 2009. That said, lawyer rate increases in 2013 indicate a stabilizing post-

recession trend of approximately 3.7% (which is in line with the prior five year

average), which is a sizable decrease from pre-recession increases of closer to 7%

per year.

Resp. Ex. Z at 7.

Obviously the RRR summary indicates that lawyer fees are continuing to increase albeit at

a slower rate than they were prior to the recession. Id. However, when compared to increases in

the CPI, upon which the Carr rates were based, it is apparent that lawyer rates increased, even in

the post-recession years, at a rate well in excess of the CPI.14

Respondent also submitted exhibit AA, which is an excerpt from an analysis of the RRR

undertaken by the New England In-House magazine.15 The article reviewed the RRR data and

compared rates for lawyers in the top twelve North American cities. Based on the RRR data and

as set forth in exhibit AA, the article explained that indeed the average rate for Washington D.C.

lawyers was somewhat higher at $649.24 an hour for partners and $411.55 for associates. Id. In

Boston, the average for partners was $598.69 and for associates $388.21. Washington D.C. was

the third most expensive city for lawyer rates, behind New York and San Francisco; Boston was

the sixth most expensive in the United States. Id. Comparatively the Washington, D.C. rate was 8

percent higher for partners and 6 percent higher for associates. Exhibit AA also showed that rates

for litigation in Boston, excluding insurance, increased by 28.9 percent from 2010 to 2012.

Litigation rates for partners in Boston ranged from $325 an hour at the low end to $708 at the

highest level. See Resp. Ex. AA, chart F. Thus, the distinction between the Boston and

Washington, D.C. market exists, but is not significant.

“When the parties do not provide reliable evidence, the court can look to other evidence to

establish a reasonable hourly rate.” Dougherty v. Sec’y of HHS, 2011 WL 5357816 at *6 (Fed. Cl.

Spec. Mstr. Oct. 14, 2011) (citing to Rupert ex rel. Rupert, v. Sec’y of HHS, 52 Fed. Cl. 684, 688-

89 (2002)). To that end, additional comparative data can be found in Occupational Employment

14

According to the United States Bureau of Labor Statistics, the rate of increase in the CPI

beginning with the base year of 2009, and showing the rate of increase for each year over the prior

one, was 2010 – 1.6 percent, 2011 – 3.2 percent, 2012 – 2.1 percent, 2013 – 1.5 percent, 2014 –

1.6 percent.

15

See generally, Brandon Gee, The Going Rate(s): 2013 ‘Real Rate Report’ Reveals Who’s

Charging What in the Legal Community, NEW ENGLAND IN-HOUSE, Dec. 2013, at 1, available at

http://www.pageturnpro.com/Lawyers-Weekly/35126-New-England-In-House--June-

2013/index.html#/1. The New England In-House magazine is a publication by the Dolan

Company—a company which provides “business information and professional services to legal,

financial and real estate sectors . . . across the United States.” THE DOLAN COMPANY,

http://thedolancompany.com/ (last visited Aug. 10, 2015). It currently publishes 35 print and

online publications for clients in the legal, financial, and real estate industries. See generally, id.

13

Statistics from the U.S. Bureau of Labor Statistics.16 The hourly mean wage for lawyers in

Washington, D.C. in 2014 was $81.1317 and in Boston $71.08.18 Annual mean wage for lawyers

in Washington, D.C. was $168,74019 and in Boston $147,850.20

In reviewing the federal government’s salary and wages locality pay tables, which are used

by the federal government to equalize the rate of pay for federal employees in different

metropolitan areas, the Boston-Worcester-Manchester area rate adjustment is 24.80 percent while

Washington D.C. is 24.22 percent, 21 suggesting a slightly higher cost of living in the Boston area.

Further, using a cost of living calculator to compare the cost of living between the two metropolitan

areas, which are the 22nd and 24th largest cities in the country respectively,22 a person making

$100,000 a year in Washington D.C. could maintain the same standard of living in Boston for

$97,906.49. 23 Similarly, according to another cost of living calculator, an associate attorney

earning $100,000 a year in Washington, D.C. could maintain the same standard of living in Boston

on $98,349.00 per year.24 Not surprisingly, the cost of living in the two metropolitan areas appear

to be nearly the same by all three indexes.

Both parties provided cases of fee awards in the Boston area, supporting their respective

positions, with court-approved rates for partners ranging from $250 to $425. See, e.g., Barbosa v.

Hyland, No. 11-11997-JGD, 2014 WL 1847211, at *3-*4 (D. Mass. 2014) (allowing $425 an hour

for lead counsel with 33 years of experience and $310 to $322 for a senior associate with 11 years

of experience in a police misconduct civil rights case); Rosie D. ex rel. John D. v. Patrick, 593 F.

Supp. 2d 325, 331 (D. Mass. 2009) (awarding a large law firm, Wilmer Hale, $290 for associates

16

UNITED STATES DEP’T OF LABOR BUREAU OF LABOR STATISTICS, Occupational Employment

Statistics, http://www.bls.gov/oes/ (last visited July 13, 2015).

17

See UNITED STATES DEP’T OF LABOR BUREAU OF LABOR STATISTICS, District of Columbia –

May 2014 OES State Occupational Employment and Wage Estimates,

http://www.bls.gov/oes/current/oes_dc.htm#23-0000 (last visited July 13, 2015).

18

See UNITED STATES DEP’T OF LABOR BUREAU OF LABOR STATISTICS, Boston – Cambridge –

Quincy, MA-NH – May 2014 OES Metropolitan and Nonmetropolitan Area Occupational

Employment and Wage Estimates, http://www.bls.gov/oes/current/oes_71650.htm#23-0000 (last

visited July 13, 2015).

19

See supra n. 17.

20

See supra n. 18.

21

See OPM.GOV, General Schedule, https://www.opm.gov/policy-data-oversight/pay-

leave/salaries-wages/2015/general-schedule/ (last visited July 13, 2015). The OPM uses salary

surveys from the Bureau of Labor Statistics to set locality pay.

22

See Top 100 Largest Cities | 2015 U.S. Population Data, http://www.biggestuscities.com/ (last

visited Aug. 31, 2015) (stating Washington D.C. had a population of 658,893 in 2014, and

Boston, Massachusetts had 655,884 in 2014).

23

Cost of Living Calculator | Comparison Tool,

http://www.bankrate.com/calculators/savings/moving-cost-of-living-calculator.aspx (last visited

July 13, 2015).

24

PAYSCALE, Cost of Living Cities- Washington District of Columbia and Boston Massachusetts

for Associate Attorney, http://www.payscale.com/cost-of-living-calculator/Massachusetts-

Boston/District-of-Columbia-Washington/Associate-Attorney (last visited July 13, 2015).

14

and $425 an hour for partners based on the firm’s own reduction to 62 percent of its normal hourly

rates. Significantly, the court also found that the reduced Wilmer Hale rates were appropriate for

the public interest lawyers outside the firm who worked on the case as well). All cases cited by the

parties provided imperfect comparisons, either because the case was not analogous to vaccine

litigation, or the rate decision was prompted by extraneous factors not relevant to the instant case.

See e.g., Shirokov v. Dunlap, Grubb & Weaver PLLC, No. 10-12043-GAO, 2014 WL 1271557, at

*1-*2 (D. Mass. 2014) (allowing $409 per hour in a small consumer class action); McDermott v.

Marcus, Errico, Emmer & Brooks, P.C., 53 F. Supp. 3d 312, 322 (D. Mass. 2014) (allowing $250

an hour for an attorney from Lynn, Massachusetts in a Fair Debt Collection Practices Act case.

Petitioner in this matter (McCulloch) contends Lynn is a considerably less expensive market than

Boston); Gardner v. Simpson Financing, et al., 963 F. Supp. 2d 89, 93-94 (D. Mass. 2013) (holding

that the grossly inflated and insufficient billing records justified a substantial reduction of fees in

a relatively simple case involving a covenant of quiet enjoyment and an apartment house fire. The

court reduced the hourly rate to $250 for a Boston law firm partner with 29 years of experience);

Aly v. Mohegan Council, Boy Scouts of America, 871 F. Supp. 2d 19, 28 (D. Mass. 2012) (awarding

the requested amount of $250 an hour in a civil rights case to an attorney newly admitted to the

Massachusetts District Court).

Petitioner has also cited two cases in which fees were awarded to the only other

Massachusetts practitioner in the Vaccine Program with a published fee decision on her hourly

rate.25 Elaine Sharp (practicing in the nearby community of Marblehead, Massachusetts), who was

admitted to law practice in 1987 and to the Court of Federal Claims in 2003,26 was awarded $340

an hour for her work in 2007 in Estate of Oswalt. See No. 03-2153V, 2011 WL 2149932, at *3-*4

(Fed. Cl. Spec. Mstr. May 2, 2011). A review of the court’s electronic filing system reveals that

Ms. Sharp filed her first case in the Program in 2003. She was awarded $370 an hour in Yang for

work done in 2013, by which time she had 26 years of legal experience and about 10 years of

experience litigating cases in the Vaccine Program. See No. 10-33V, 2013 WL 4875120, at *1

(Fed. Cl. Spec. Mstr. Aug. 22, 2013). This determination of a reasonable fee is higher than has

been awarded under the Carr agreement to even the most senior CHC partners. Furthermore, in

Yang, Special Master Millman found that Boston rates were not much different than Washington

D.C. rates. Id. at *3.

In deciding attorneys’ fees and costs in the Vaccine Program, special masters have

reviewed evidence, affidavits, and testimony from various practitioners in the localities of the

petitioning attorney to establish a prevailing rate. See, e.g., Mooney v. Sec’y of HHS, No. 05-266V,

2014 WL 7715158, at *4-*5 (Fed. Cl. Spec. Mstr. Dec. 29, 2014); Masias v. Sec’y of HHS, No.

99-697V, 2009 WL 1838979, at *5-*6 (Fed. Cl. Spec. Mstr. June 12, 2009) (clerical errors in fees

judgment corrected pursuant to R.C.F.C. 60(a) in 2013 WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30,

2013). Generally, the fee comparisons from other practice areas were found unsatisfactory in

various respects. Corporate billings are not comparable to fees paid by individuals. Plaintiffs’

25

A review of the list of vaccine attorneys maintained by this court indicates that only three other

attorneys from Massachusetts, beside those in the CHC firm and attorney Elaine Sharp, litigate

vaccine cases. Two of the other three have handled fewer than five cases each. No other attorneys,

besides those in the CHC firm, have offices in Boston, Massachusetts.

26

The source of dates of admission are Martindale Hubbell as to law practice and the U.S. Court

of Federal Claims as to this court.

15

personal injury cases are done on a contingency basis. Insurance companies can dictate low rates

because they can promise a significant volume of business to an insurance defense firm.27

Respondent here is correct in that the bigger law firms command very high hourly rates mostly

because they are representing the largest corporations or wealthy individuals in high value

litigation or transactions where the market will bear high fees for representation by prestigious

firms. See Resp. Response at 11 n. 20, 11-13. However, the size of the firm is hardly the relevant

consideration in determining a reasonable rate for vaccine cases. It seems unlikely that, if a lawyer

from a large corporate firm decided to handle a vaccine case, the respondent would readily agree

to pay his or her usual $700 hourly rate to do so. In fact, in the Vaccine Program, the fees of a

large Washington D.C. firm were reduced consistent with respondent’s objection from a $480 rate

for associates and as much as $710 for a partner. See Hasson v. Sec’y of HHS, No. 04-03V, 2014

WL 5466609, at *11 (Fed. Cl. Spec. Mstr. Oct. 7, 2014). In that case, the Program awarded $340

to $360 an hour for work done between 2006 and 2010. Id. at *14.

I find the greatest similarities between vaccine practice and other practice areas is in the

comparison to plaintiffs’ personal injury work. In both types of cases, the lawyers are representing

injured individuals, who are not expecting to receive a monthly bill. In most instances, the firms

are relatively small. In the case of personal injury work, the fee is paid from a recovery, with most

firms charging between 33.3 percent and 40 percent. In the vaccine cases, the Program pays the

fee. See 42 U.S.C. § 300aa-15(e) (2012). In both types of practice, the fees are not recovered until

the end of the case, and the firms expend the money to pay for experts, medical records, exhibits,

travel and other costs. In most instances, these costs are not recovered until the end of the case. In

both types of cases, the plaintiff or petitioner has the burden of proof and must build the entire

case, finding appropriate experts to address the issues raised. As is often argued in respondent’s

briefings, the Federal Circuit has recognized that it is petitioner’s burden to do the “heavy lifting”

to meet the preponderance standard in these cases, citing to Althen, 418 F.3d at 1280 and Lampe

v. Sec’y of HHS, 219 F.3d 1357, 1360 (Fed. Cir. 2000).

Of course, there are also significant differences between these practice areas, in that in a

non-vaccine personal injury case (which can include auto accidents, medical malpractice, products

liability, toxic torts, construction accidents and others) the plaintiff must prove negligence or

product defect in addition to causation and damages. There are often anywhere from one or two to

twenty-five or thirty depositions in individual personal injury cases, and at times motion practice.

If a case comes to trial, and less than 10 percent do, there is the added complexity of a jury trial

with the presentation of evidence adhering strictly to the rules of evidence. The value of the fees

in those cases, if converted to an hourly rate, varies greatly. The occasional multi-million dollar

case will usually generate a high hourly rate, but so would the $30,000 auto accident case which

requires 8 to10 hours to prepare the evidence and present a demand. The efficient handling of this

type of case results in a fee of a little over $1000 an hour at a one-third contingency. Cases that

are heavily litigated and resolve for less than major dollars generate lower fees. There is also the

occasional case that is lost and results in a write off of time and expenses. Firms that have

maintained longevity in practice tend to minimize their exposure to losing cases by rejecting them

27

For further discussion on the insurance defense firm model, see Special Master Edward’s

decision on remand in Rupert v. Sec’y of HHS, No. 99-774V, 2002 WL 31441211, at *2-*3 (Fed.

Cl. Spec. Mstr. Aug. 26, 2002), remanded by 55 Fed. Cl. 293 (2003).

16

at the outset.28

In Rupert IV, Judge Christine Miller held that the skill set of vaccine attorneys was most

equivalent to personal injury, medical malpractice, and products liability litigators, but because the

testimony of attorneys in that case reflected upon rates for complex commercial matters as a proxy,

the court needed to consider fees in a broader range of complex civil matters. Rupert v. Sec’y of

HHS, 55 Fed Cl. 293, 306 (2003). The special master in Masias observed the difficulty in following

that ruling, in that it gave little guidance as to the meaning of the term “complex civil matters.”

Masias v. Sec’y of HHS, No 99-697V, 2009 WL 1838979, at *16 (Fed. Cl. Spec. Mstr. June 12,

2009). As also noted in Masias, the special master observed that the witnesses whose testimony

was heard in Rupert practiced in the fields of civil rights, commercial litigation, and shareholder

derivative actions. Id.

In the Vaccine Program, in most instances, the petitioner’s counsel will be paid even if

petitioner loses, as long as the case is brought in good faith and with a reasonable basis. Negligence

does not have to be proven against the defense of a potentially culpable tortfeasor, but causation

does.29 In Vaccine Program cases, as in a great many tort cases that would fit into the complex

category, the most difficult issue is causation. It is usually not the procedure or the rules of

evidence that make personal injury or civil rights cases complex and difficult, but the substance of

the case. The most difficult substantive issue is often the same one that bedevils vaccine

litigation— causation. In fact, in vaccine cases the interplay between the immune system and the

nervous system, or other bodily systems, presents substantive complexity that often exceeds the

level of difficulty in complex tort cases, requiring the attorney to develop some command of

difficult scientific concepts and language to capably handle the case.

Whatever constitutes the category of general liability litigation done by small firms, (most

likely including smaller contract claims, employment discrimination defense, defense of uninsured

clients, bill collection or possibly landlord and tenant issues) the cases are litigated in the

nomenclature of everyday life. They do not involve concepts of medical diagnosis and complex

theories in molecular biology as must be presented by petitioner’s counsel in vaccine cases. See

Mooney v. Sec’s of HHS, No. 05-266V, 2014 WL 7715158, at *6 (Fed. Cl. Spec. Mstr. Dec. 29,

2014) (finding vaccine cases more analogous to tort, personal injury, medical malpractice, or

medical products liability cases under the Federal Tort Claims Act). Several Vaccine Program

cases have noted the greater procedural complexity of civil personal injury cases, noting that

discovery and motion practice are often involved, as well as jury trials and the strict use of the

rules of evidence. See, e.g., Masias, 2009 WL 1838979, at *20-*22; Scharfenberger, 2015 WL

3526559, at *7. While it is certainly true that vaccine cases have limited discovery and motions,

28

Civil rights cases also bear similarities in that they often involve issues of personal injury with

the additional feature that the attorneys are eligible for fees under fee-shifting statutes when

liability, causation, and damages are successfully proved. In that event, in the Washington D.C.

forum, the Laffey Matrix may then apply.

29

Causation has to be proven in a vaccine case, unless a petitioner is alleging a Table claim, in

which case the petitioner must put forth preponderant evidence that he or she has met the

requirements as established by the Vaccine Injury Table. See ' 300aa-14; see also 42 C.F.R. '

100.3. Vaccine causation is presumed in a successful Table case. Id. However, for roughly more

than the past two decades, the vast majority of cases in the Program are non-Table claims.

17

and have no jury trials, the added time involved in handling those functions of a civil case would

be reflected in increased fees based upon the number of hours expended, at least in the case of

hourly billers receiving fees under fee-shifting statutes in which the lodestar method is used to

calculate awards, as well as in commercial litigation. Thus, it is not clear that the absence of

discovery and motions should justify a substantially lower hourly rate, as that difference is

reflected in fewer hours billed.

Respondent argues, in quoting Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1385-86 (Fed.

Cir. 2011), that because Vaccine Program attorneys are “practically assured of compensation in

every case, regardless of whether they win or lose,” the Program risks overcompensating vaccine

attorneys relative to attorneys in other fee shifting cases where they must succeed on those claims

in order to receive fees. Sur-Reply at 7. This is certainly a valid argument, even though respondent

periodically raises a reasonable basis objection to attorneys’ fees in unsuccessful cases and does

not account for time spent in reviewing and rejecting non-meritorious vaccine cases for which

potential clients sought representation. Nevertheless, Vaccine Act fees and those sought by CHC

in this case are generally significantly less than the Laffey Matrix fees, which are used in other

fee-shifting cases in Washington D.C., so as to provide a risk premium to non-vaccine attorneys.

Despite the many similarities between vaccine practice and plaintiff’s personal injury

work, the comparison also has many dissimilarities and suffers from the same lack of

comparability as most other areas of practice. For purposes of lodestar fee analysis, the relationship

of the fee to the outcome, rather than to the volume of work, makes the comparison quite difficult.

Therefore, I have concluded that for purposes of comparing the Washington D.C. forum rate to the

Boston rate for attorneys’ fees, the overall comparability of attorneys’ fees in those communities

is the most relevant and demonstrable consideration. Respondent’s evidence for average attorneys’

fees and for litigation fees in general demonstrates a small differential. Similarly, contingent fee

percentage rates for personal injury are similar throughout the country and certainly are not

significantly less in Boston than they are in Washington D.C.30

After review of the study provided by the respondent and other generally available data

regarding attorneys’ fees in the comparative metropolitan areas, as well as cost of living data, I

can find no persuasive support for the argument that average attorneys’ fees in Boston are “very

significantly” lower than they are in Washington D.C. While the prevailing rates in Washington

D.C. appear to be somewhat higher than Boston rates, they are not significantly so. In addition,

the RRR study does not account for “skill, experience, and reputation” in the relevant community

or complexity of the subject matter of the practice, all of which should be relevant considerations

in arriving at a reasonable attorneys’ fee. As stated in Avera, regarding local rate analysis,

comparisons must be to attorneys of reasonably comparable skill, experience, and reputation. 515

F.3d at 1348 (quoting Blum, 465 U.S. at 895, n.11); see Hensley v. Eckerhart, 461 U.S. 424, 429-

30

Most contingent fees range from 33.3 percent to 40 percent. Sixteen states have enacted

statutory limitations on medical malpractice fees. Massachusetts limits fees in malpractice cases

(but not others) to 40 percent of the first $150,000, 33.3 percent of the next $150,000, 30 percent

of the next $200,000, and 25 percent of damages that exceed $500,000. See OLR RESEARCH

REPORT, Medical Malpractice—Attorneys’ Fees,

http://www.cga.ct.gov/2003/olrdata/jud/rpt/2003-r-0664.htm; see also Mass. Ann. Laws ch. 231,

§ 60I.

18

37 (1983).

Accordingly, I find that pursuant to Avera, the appropriate rate for CHC attorneys will be

determined by consideration of the forum rate. Avera, 515 F.3d at 1349; see Rodriguez, 632 F.3d

at 1382; see also Sabella v. Sec’y of HHS, 86 Fed. Cl. 201, 205 (2009).

ii. The Forum Rate

The Federal Circuit in Avera held that unless there is a very significant difference favoring

Washington D.C. the forum rate should apply, and the forum is Washington D.C. where the U.S.

Court of Federal Claims is located. Avera, 515 F.3d at 1349. As previously noted, CHC

acknowledges that almost all of its work on vaccine cases is done at its office in Boston, See Pet.

Memo at 5. However, as explained above, I have concluded that the difference in lawyer rates

between the Boston, Massachusetts and Washington D.C. markets, as well as cost of living, is

minimal and thus the forum rates will apply.

Determining the prevailing rates “for similar services by lawyers of reasonably comparable

skill, experience and reputation,” and the appropriate practice model for fees in the Vaccine

Program, is a challenge that can be approached in different ways. Blum, 465 U.S. at 897 n. 11; see

generally, Barrett v. Sec’y of HHS, 09-389V, 2014 WL 2505689, at *12 (Fed. Cl. Spec. Mstr. May

13, 2014) (commenting that determining reasonable hourly rates can be difficult because there is

relatively little guidance about how to determine the prevailing market rate for similar services);

see also Information Sciences Corp. v. United States, 86 Fed. Cl. 269, 291 (2009) (stating that

although “[t]he United States Supreme Court recently held that a ‘prevailing party that satisfies

EAJA's other requirements may recover . . . paralegal fees from the Government at prevailing

market rates,’” the Court “did not provide trial courts with guidance in how to determine ‘the

prevailing market rate.’” (internal citations omitted)).

Decisions on Vaccine Program rates often considered affidavits and other evidence from

attorneys practicing primarily in the locality of the petitioner’s counsel. Special masters have

expressed frustration with the inaptness of most of the evidence presented, because most of it did

not reflect knowledge of the practice in the Vaccine Program or have sufficient similarity to

Vaccine Program cases to intelligently inform the decisions. See, e.g., Masias, 2009 WL 1838979,

at *20 (commenting that “[t]he various affiants provided little, if any, reasoning that underlies their

conclusion that the Vaccine Program is complex”); Mooney, 2014 WL 7715158, at *6

(commenting that “unfortunately, there is relatively little guidance about how to determine the

‘prevailing market rate’ for ‘similar services’”). Petitioner’s counsel were criticized for presenting

expert testimony from local attorneys or consultants to establish prevailing rates in the forum as

an excessive expenditure of costs. See, e.g., Scharfenberger, 2015 WL 3526559, at *14; O’Neil,

2015 WL 2399211, at *12.

Since Avera, special masters have built upon cases such as Masias, Mooney and Rodriguez.

The forum rates in Mooney and Rodriguez were largely based upon comparisons to rates charged

by attorneys in the vaccine attorney’s local area. See Rodriguez, 632 F.3d at 1387; Mooney, 2014

WL 7715158, at *40. In Masias, the special master determined a Washington D.C. forum rate of

$250 to $375 an hour based on a comparison to rates awarded to two Virginia attorneys in vaccine

19

cases, and an attorney in a fee shifting case. Masias, 2009 WL 1838979, at *24-*25. In subsequent

cases, special masters utilized the rates in those cases and applied an inflation factor to bring the

rates to current market rates. Special masters in multiple cases have determined that the most

reasonable forum is the Vaccine Program itself. See e.g., Guerrero v. Sec’y of HHS, 12-689V,

2014 WL 5335301, at *5 (Fed. Cl. Spec. Mstr. May 22, 2015); Scharfenberger, 2015 WL 3526559,

at *6; O’Neil, 2015 WL 2399211, at *8-*9; Barrett, 2014 WL 2505689, at *12; Tieu Binh Le v.

Sec’y of HHS, 07-895V, 2014 WL 4177331, at *3 (Fed. Cl. Spec. Mstr. Sept. 23, 2015). The special

masters also gave significant consideration to the years in practice of each attorney, the years in

vaccine practice in particular, and the extent of experience during that time.

Utilizing this methodology, Special Master Corcoran noted in Scharfenberger that the

Federal Circuit in Avera held that generally the forum rate in Washington D.C. should be used for

Vaccine Program attorneys and that a “‘reasonable’ hourly rate is, at bottom, defined as the rate

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

experience and reputation.’” Scharfenberger, 2015 WL 3526559, at *6 (citing Avera, 515 F.3d at

1348) (emphasis in original). He then held that the Vaccine Program itself provided the most

relevant baseline for comparing attorney billing rates because other types of practice do not provide

perfect comparisons to vaccine practice. Id. Special Master Corcoran then took the fees determined

to be reasonable as Washington D.C. forum rates for 2009 in Masias, which was in a range of $250

to $375 an hour for lawyers with more than 10 years’ experience, and in Rodriguez in which the

forum rate for attorneys with more than 20 years’ experience was held to be $275 to $360 an hour,

and then applied a CPI adjustment which brought the reasonable range to $272.66 to $413 per hour

in 2015. Id. Special Master Hamilton-Fieldman in O’Neil, using similar methodology, found a

2014 forum rate of $413. O’Neil, 2015 WL 2399211, at *6-*8.

The Laffey Matrix is often referenced as a data point in consideration of reasonable

attorneys’ fee rates in fee-shifting cases in Washington D.C. The matrix which was initially

developed to evaluate fees in a complex employment discrimination case, see Laffey v. Northwest

Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), affirmed in part, reversed in part on other grounds,

746 F.2d 4 (D.C. Cir. 1984), has since been republished annually by the U.S. Attorney’s office in

Washington D.C. for use in fee-shifting cases.31 While the Laffey Matrix has never been applied

for various reasons in vaccine cases, it provides a valuable structure for considering the prevailing

rates in Washington D.C., including the weight to be given to varying levels of experience in the

practice of law. Although the petitioner has not requested Laffey rates, and in fact her proposal is

31

The Laffey Matrix was initially approved for use by the District Court in the Laffey case for

work done in 1981-82. The rates for subsequent yearly periods were determined by adding the

change in the cost of living for the Washington, D.C. area to the applicable rate for the prior year

and then rounding to the nearest multiple of $5. The matrix which is prepared by the Civil Division

of the United States Attorney’s Office for the District of Columbia is intended to be used in cases

in which a “fee shifting” statute permits the prevailing party to recover “reasonable attorneys’

fees.” The explanatory note to the updated Laffey Matrix references Civil Rights cases, Freedom

of Information Act cases and Equal Access to Justice Act cases by way of example.

Laffey Matrix – 2014-2015 Explanatory Notes, http://www.justice.gov/sites/default/files/usao-

dc/legacy/2014/07/14/Laffey%20Matrix_2014-2015.pdf (last accessed Aug. 4, 2015); see

Covington v. District of Columbia, 57 F.3d 1101,1105 n.14 (D.C.Cir.1995), cert denied, 516 U.S.

1115 (1996).

20

generally less than the Laffey rates, the structure utilized by the U.S. Attorney’s office in

evaluating rates will be used for comparative purposes here. One of the ultimate problems with the

Carr agreement, aside from its reliance on the CPI rather than the rate of growth in attorneys’ fees,

is that it did not provide any enhancement based upon the increased experience level of the

respective attorneys. Most law firms increase the rates charged by their attorneys as they

progressively gain more experience. Certainly, all of the respondent’s exhibits support the notion

that partners are generally paid more than associates which reflects increased experience. This is

particularly important in this case, as the CHC firm concentrates its practice in the Vaccine

Program and thus benefits its clients by a vaccine-concentrated increase in experience for each of

the attorneys. Mr. Homer, Ms. Ciampolillo, Mr. Pepper and Ms. Daniels would all have moved

from lower to higher Laffey categories since the initiation of the Carr agreement while doing

exclusively vaccine work. As Laffey stops at twenty years and above, Mr. Conway and Ms. Chin-

Caplan did not advance categories but also have benefitted from eight additional years of

experience concentrated in the Program.

Based upon a review of fees decisions in the Vaccine Program, the table set forth below

was derived from attorneys’ fees awarded in vaccine cases in which the decision of the court set

forth the rates to be paid in cases decided since 2009. The table also adjusts each of the rates from

the year in which they were awarded to 2014 by applying the rate of growth in the CPI and also

by the rate of growth in attorneys’ fees as stated in the Executive Summary of the RRR, 3.7 percent.

See Resp. Ex. Z at 7. For example, if as an alternative to the CPI adjustment for the upper Masias

rate of $375 for 2009, that rate was adjusted for the 3.7 percent growth in attorneys’ fees, that rate

would be $449 in 2014, rather than $413 based on the CPI. The decisions in which fees were

awarded often used different rates for different years, such as granting a $10 per year increase for

each year in which the case continued. For purposes of this table, the last year, which most often

was the highest year, is utilized and then adjusted to show a 2014 rate. Attorneys will be listed by

the experience categories utilized in the Laffey Matrix. Every effort has been made to identify the

year in which the work was performed as opposed to the year of the decision. The Laffey Matrix

is based upon the prior year CPI and runs from June 1 to May 31.32

Laffey Category 20 years+ legal experience Laffey Rate 2013-2014 $510; 2014-2015 $520

Case Attorney Year of Work Rate Approved CPI RRR average rate

Rodriguez John McHugh 2009 $335 $369 $416

Rivard Stanley Kopps 2009 $300 $331 $373

Fragoso Jill Follows 2010 $344 $374 $412

Whitener Steve Goldston 2010 $300 $326 $360

Carcamo Dale Galipo 2010 $327 $355 $392

Kennedy Albert Brooks 2007 $325 $370 $418

Rodriguez Gilbert Gaynor 2012 $295 $305 $329

Tieu Binh Le Brian Arnold 2012 $295 $305 $329

Garrett Sean Greenwood 2013 $300 $305 $311

Hasson Paul Honigsberg 2011 $360 $380 $402

32

Laffey Matrix rates are not awarded or considered as a prima facie Vaccine Act forum rate

here, but its structure is useful for comparative purposes and its rates are considered here as one

of multiple factors in determining a reasonable rate.

21

Guerrero Lisa Roquemore 2015 $365 $365 $365

Nadar Simina Vourlis 2014 $300 $300 $300

Yang Elaine Sharp 2011 $370 $390 $413

Laffey Category 11-19 years legal experience Laffey Rate 2013-2014 $450; 2014-2015 $460

O’Neil Altom Maglio 2011-2013 $300 $305 $311

O’Neil John Caldwell 2011-2013 $300 $305 $311

Carcamo Z. Kohanim 2010 $293 $318 $351

Rowan Patricia Finn 2014 $310 $310 $310

Mooney Michael Cave 2013 $270 $274 $290

Laffey Category 8-10 years legal experience Laffey Rate 2013-2014 $360; 2014-2015 $370

O’Neil Isaiah Kalinowski 2012-13 $325 $330 $337

Laffey Category 4-7 years legal experience Laffey Rate 2013-2014 $295; 2014-2015 $300

O’Neil Danielle Strait 2012 $295 $304 $329

Rowan Jonathan Victor 2013 $220 $223 $228

It should be noted that the above data as to fee rates was derived from case reports or

stipulations in which the hourly rate was reported. Fee issues are most often resolved by stipulation

and when fees are stipulated, the hourly rate usually is not reported in the submitted stipulation. It

should also be noted that most of the decisions regarding fees reported above were at least

significantly influenced by comparisons to local attorneys.33 However, cases in which a

Washington D.C. forum rate was requested and denied based upon a finding of a very significant

difference in the rates for the local area were not included. For example, the fees awarded in Masias

and Avera are not included in the table as the attorneys practiced in Cheyenne, Wyoming where

the attorneys’ fees rates were found to be very significantly lower than Washington D.C. rates.

The special master’s determination of a forum rate of $250 to $375 in Masias is considered here

but not in the table, as the Special Master awarded local rates in that case.

It is also very important to note that none of the attorneys in the 20+ years of experience

category listed above, with the exception of Lisa Roquemore and John McHugh, have close to the

same experience in the Vaccine Program as do the three senior partners at CHC. In the second

category, Mr. Maglio and Mr. Caldwell have significant vaccine experience and in the third and

fourth categories, Mr. Kalinowski and Ms. Strait also have substantial concentrated vaccine

experience. Among the others, in all categories, the vaccine experience has ranged from a single

case in the Program to several cases per year.

33

See for example Mooney v. Sec’y of HHS, No. 05-266V, 2014 WL 7715158, at *4-*5 (Fed. Cl.

Spec. Mstr. Dec. 29, 2014) for New Orleans area attorneys. Tieu Binh Le v. Sec’y of HHS, 07-

895V, 2014 WL 4177331, at *3 (Fed. Cl. Spec. Mstr. Sept. 23, 2015) for Dallas attorneys, and

Garrett v. Sec'y of HHS, No. 14-16V, 2014 WL 6237632, at *6 (Fed. Cl. Spec. Mstr. Oct. 27,

2014) for Houston attorneys.

22

The data are not abundant for attorneys from the District of Columbia practicing in the

Vaccine Program, as there are very few. The recent cases which decided a specific Washington

D.C. forum rate, O’Neil and Scharfenberger, awarded fees of $325 to an attorney with 8 years

overall and concentrated vaccine experience in O’Neil, and $305 to the same attorney in

Scharfenberer, and $295 to an attorney with 7 years’ experience in the relevant year. Clifford

Shoemaker, a practitioner from Vienna, Virginia, has represented numerous petitioners in the

Program and has received fee awards in many cases.34 In more recent years, he has received fees

in Andreu and Drost having requested $336 and $337 per hour in 2009 and 2010 respectively. See

Andreu v. Sec’y of HHS, No. 98-817V, Decision on Attorneys’ Fees and Costs, filed Jan. 25, 2011;

Drost v. Sec’y of HHS, No. 01-502V, Decision on Attorneys’ Fees and Costs, filed July 30, 2010.

Those rates would be the equivalent of $370 or $416 per hour in 2014, depending upon whether

the CPI or the average attorney fee inflation rate was applied.

iii. Factors in Establishing Appropriate Rates

As cited in the foregoing discussion, after reviewing cases both in and outside the Program,

I have concluded that a multifactorial approach should be used and that the following factors are

paramount in deciding the reasonable forum rate:

1. The prevailing rate for comparable legal work in the forum of Washington D.C.;

2. The prevailing rate for cases in the Vaccine Program;

3. The experience of the attorneys in the Vaccine Program;

4. The overall legal experience of the attorneys;

5. The quality of work performed in vaccine cases; and

6. Reputation in the legal community and community at large.

a. Prevailing Rate for Legal Work in Washington D.C.

Respondent’s evidence quite clearly demonstrates that Washington D.C. is one of the most

expensive legal markets in the country. Part of that is driven by the large corporate firms in practice

in this forum, and part by the relatively high cost of living in the DC area. Respondent’s exhibit

AA, which compares “average” rates for lawyers in different metropolitan areas, indicates that the

average rate for Washington D.C. is $649 for partners and $411 for associates. An average rate, of

course, includes high and low rates, as well as those in between.

The Laffey Matrix may more precisely target appropriate forum rates because it is designed

for use in fee shifting cases. The Federal Circuit in Rodriguez, 632 F.3d at1384-86 affirmed the

special master’s refusal to award Laffey Matrix rates in a vaccine case. In its analysis, the court

focused on the original Laffey case which was a complex employment discrimination case brought

on behalf of 3,300 flight attendants. Id. The case was litigated over thirteen years, involved

thousands of hours of personnel time, and raised novel issues under Title VII and the Equal Pay

Act in the early stages of the development of those bodies of law. Id. In Rodriguez, the court

distinguished the Laffey case from the more streamlined vaccine practice. Id.

34

See Masias, 2009 WL 1838979, at Appendix Table 5 for a chart of Mr. Shoemaker’s fee awards,

in which the lump sum award in approximately 20 cases from 2005-2006 is detailed but no hourly

rate is shown.

23

In Masias, 634 F.3d at 1288 n. 6, the Federal Circuit explained its decision in Rodriguez

stating:

In Rodriguez we addressed ‘whether the reasonable hourly rate for attorneys

handling Vaccine Act cases in the District of Columbia should be determined by

applying the Laffey Matrix, or whether the rate should be determined by

considering a variety of factors, which may or may not include the Laffey Matrix.’

In Rodriguez, the special master determined that the Vaccine Act Litigation is not

analogous to ‘complex federal litigation’ as described in Laffey, so as to justify use

of the matrix rather than consideration of rates charged by skilled Vaccine Act

practitioners. The special master therefore rejected the petitioner’s claim that the

Laffey Matrix sets a prima facie forum rate schedule for Vaccine Act attorneys’

fees. Instead, to determine the forum rate for compensation of the petitioner’s

attorneys, the special master analyzed six separate pieces of evidence, including

the Laffey Matrix . . . . We affirmed the special master, concluding that she had

not applied an incorrect legal standard, that she had considered appropriate

evidence, and that she had fully explained the basis for determining the fee rates

for the petitioner’s attorneys.

Masias, 634 F.3d at 1288 n. 6 (internal citations removed) (emphasis added in bold).

It should also be noted that in the years since the original Laffey decision in 1983, the U.S.

Attorney’s Office for the District of Columbia has republished the Laffey rates, utilizing the

original structure, and applying an inflation adjustment for use in all fee-shifting cases in

Washington D.C. These include civil rights cases, employment discrimination, Freedom of

Information Act cases, and Equal Access to Justice Act cases. While the Laffey case itself was

quite complicated and heavily litigated, many of these cases are not as complex as, or no more

complex than, vaccine cases in terms of their subject matter and evidence. It is true that before fees

are awarded in fee shifting cases there is the requirement that the case be won, that negligence or

some other form of liability be proven (in addition to causation in personal injury cases), and that

those cases include the array of available discovery devices provided under the Federal Rules of

Civil Procedure. However, it should be noted that procedural tasks such as depositions and motions

result in the billing of many additional hours, and thus the ultimate compensation in those cases is

raised relative to vaccine cases by virtue of the number of hours billed rather than necessarily the

hourly rate.

As noted above, the Laffey Matrix rate for 2014-15 was $520 for lawyers with 20 years or

more experience; $460 for 11 to 19 years, $370 for 8 to 10 years in practice, $300 an hour for

lawyers having 4 to 7 years’ experience, and $255 for those with 1 to 3 years in practice. Paralegals

and law clerks are at $150 an hour. In my analysis of the appropriate rates for Vaccine Act cases,

the Laffey Matrix is utilized for its structure and as one comparative data point, but not as a prima

facie forum rate.

24

b. Prevailing Rates in Vaccine Cases

While the obtainable data is far from comprehensive as to rates paid in vaccine cases, it

appears that after adjustment for inflation and attorney rate increases that rates paid for attorneys

with 20 or more years’ experience range from about $300 an hour to $425. For practitioners having

between 11 and 19 years’ experience the rates range from $275 to $375 an hour, and based upon

the very limited data of two practitioners with extensive vaccine experience relative to their years

in practice, $275 to $325 for attorneys having between 8 and 10 years of experience. For attorneys

having 4 to7 years’ experience, $250 to $300.35 For attorneys having fewer than four years in

practice $150 to $200.

Petitioner argues that vaccine practice is a specialty practice in which relatively few

attorneys are engaged. In fact, based upon data from the U.S. Court of Federal Claims, there were

440 lawyers from across the United States who were named as counsel in vaccine cases that have

been filed since 2010. Approximately 60 percent of the cases were handled by 30 lawyers and 80

percent were handled by just 57 attorneys.36 The cases do involve a steep learning curve as the

subject matter often involves cutting edge issues in immunology, neurology, rheumatology and

gastroenterology, as well as epidemiology, neuropsychology, psychology, and life care planning.

The alleged connection between a vaccine and a disease is often to a disease that is not fully

understood itself such as epilepsy or multiple sclerosis. In many of the cases, including the present

one, the causation case turns on contested issues in microbiology as well. Medical malpractice

litigation, brain damage, or toxic torts—which are among the most difficult areas of personal injury

practice—often require knowledge of different complex areas of medicine. However, the issues in

those subspecialties rarely involve the interplay of the immune system and the central nervous

system or other body systems with eminent researchers and scientists offering conflicting

testimony on causation, as is often the situation in vaccine cases.

Accordingly, it is reasonable to conclude that vaccine practice is a specialty area that has

attracted a fairly small number of attorneys nationwide. It does have a steep learning curve, the

need to front costs for expensive experts, and features deferred payment of fees and costs. On the

other hand, there is no need to prove negligence or product defect to succeed, and discovery is

limited to the production of medical records, expert reports, medical literature and other

information about the petitioner such as employment records.

When evaluating rates outside the Program in the Washington D.C. forum, I noted that the

average attorneys’ fees for all lawyers are substantially higher than the Laffey Matrix, and the rates

in the Laffey Matrix are higher than have generally been awarded in vaccine cases (and are higher

than what petitioner requests in this case). The higher rate for Laffey Matrix cases reflects a risk

premium that is reasonable for fee shifting cases in which the plaintiff must win before counsel is

35

For a practitioner in this category with considerably less vaccine experience who participated as

second chair, a fee of $220 was granted in 2014. See Rowan v. Sec’y of HHS, 2014 WL 3375588,

at *3 (Fed. Cl. Spec. Mstr. June 19, 2014).

36

In more detail, of 2,814 cases filed by attorneys since 2010, over 1,750 were filed or handled by

30 attorneys. About 2,200 cases were handled by 57 attorneys, while there were approximately

440 attorneys who handled at least 1 vaccine case since 2010. These figures recognize that there

are attorneys who handle cases after other attorneys have filed them.

25

entitled to fees.

For all of the reasons recited above, I therefore conclude that the range of $350 to $425 an

hour for attorneys with more than 20 years of experience is a reasonable forum rate. The higher

end of the range should be awarded to those with significant Vaccine Program experience who

perform high quality legal work in vaccine cases. Similarly, I have concluded that lawyers with 11

to 19 years of experience may reasonably charge $300 to $375 an hour, with higher rates to be

paid to those with significant vaccine experience who perform quality work in these cases.

Attorneys with 8 to 10 years’ experience may reasonably request and be paid $275 to $350 an

hour. Attorneys in practice for 4 to 7 years may reasonably charge $225 to $300, and those with

less than 4 years’ experience may receive between $150 and $225. Particularly, in the latter

category, prior clerkships or legal intern work during law school in the Vaccine Program may be

considered.

c. Vaccine Program Experience and Quality of Work

The Conway Homer and Chin-Caplan firm has concentrated its practice in the Vaccine

Program for over 20 years. It does indeed represent a sizable number of petitioners in the program,

from many different states. CHC attorneys handle both the more straight forward cases in which

early settlement is achieved and the most difficult which require complex expert testimony at a

hearing. Special masters have noted in other cases that the firm does high quality work for its

petitioners and I concur in that judgment based upon the underlying case in this matter and multiple

others which I have reviewed. If the respondent’s tabulation of the number of cases handled and

amount of fees received is relevant on any issue in this case, it speaks to the strong reputation that

the firm has built in and out of the legal community for handling these cases. Accordingly, the

firm’s attorneys should be entitled to receive fees in the higher end of the range for their specific

level of experience.

The petitioners have presented evidence of the experience of the lawyers who worked on

this case along with their requested rate. These are summarized as follows:

Kevin Conway-Requested rate of $425 an hour. Mr. Conway has over 45 years of

experience in the legal profession and 26 years in the Vaccine Program. He has represented

numerous petitioners before the Office of Special Masters (“OSM”), the Court of Federal Claims

(“CFC”), and the Federal Circuit. He serves as a member of the OSM Process Committee and

assisted in the preparation of the Vaccine Program guidelines. He is an Adjunct Professor at Boston

College.

Ronald Homer-Requested rate of $415 an hour. Mr. Homer has over 24 years of

experience as an attorney with 22 years in the Vaccine Program. He is the attorney of record in all

CHC cases filed in the Program, which is approximately 3,000 cases. He has practiced before

special masters at OSM, and judges at the Court of Federal Claims, and the Federal Circuit. He

has assisted the Chief Special Master in the orderly resolution of claims in the Omnibus Autism

Proceeding. He serves on the OSM Outreach Committee and is a member of the CFC Bar

Association. Mr. Homer plays a supervisory role in the firm as well as in this case, which is

discussed in further detail below.

26

Sylvia Chin-Caplan-Requested rate of $415 an hour. Ms. Chin-Caplan is a partner at

CHC. She has 30 years’ experience in the practice of law and 17 years in the Vaccine Program.

She is also a registered nurse and has practiced as a civil litigator in medical malpractice and

product liability cases. She has practiced extensively at OSM, the Court of Federal Claims, and

the Federal Circuit. She serves as co-chair of the Science and Technology Subcommittee of the

Vaccine Injured Petitioner’s Bar Association. She is a member of the CFC Bar Association.

Specifically, in this case, Ms. Chin-Caplan presented the direct testimony of Dr. Lawrence

Steinman, cross-examined Dr. Arun Venkatesan, and authored parts of the briefs in this case.

Christine Ciampolillo-Requested rate of $310 an hour. Ms. Ciampolillo is a junior partner

at CHC. She has 6 years’ experience as an attorney exclusively in the Vaccine Program. She has

handled first chair in multiple vaccine cases and she did the direct examination of one of

petitioner’s experts, Dr. Svetlana Blitshteyn. She contributed to the extensive written work

product produced for this case. She serves as Secretary of the Vaccine Injured Petitioner’s Bar

Association. Ms. Ciampolillo worked at CHC during law school as a law clerk and was thus

familiar with the Program and issues in it when she began work as an attorney. See Pet. Reply at

15. Ms. Ciampolillo has represented petitioners at hearings, and along with Mr. Pepper, has been

invited to speak on the Vaccine Program at various conferences.

Amy Schwader, formerly Amy Fashano-Requested rate of $295 an hour. Ms. Schwader,

who appears on the billing records of this case as Amy Fashano, had seven years’ experience in

the Vaccine Program. She is no longer employed by the firm.

Joseph Pepper-Requested rate of $295 an hour. Mr. Pepper is an associate at CHC with

6 years’ experience as an attorney. He has 5 years’ experience in the Vaccine Program. He is lead

counsel in multiple Vaccine Program cases and serves in multiple positions in Vaccine Program

bar associations. Mr. Pepper is active in the U.S. Court of Claims Vaccine Bar Association and in

the Vaccine Litigation Group of the American Association for Justice. Id. at 14. He has practiced

before OSM, the Court of Federal Claims, and the Federal Circuit. Mr. Pepper manages 50 to 60

vaccine cases at all times, has represented petitioners at several hearings and argued appeals. Id.

at 15.

Meredith Daniels-Requested rate of $285 an hour. Ms. Daniels has 5 years’ experience

working as an attorney in the Vaccine Program. She has practiced before the OSM, the Court of

Federal Claims, and the Federal Circuit. She serves on the Board of Governors of the Newly

Admitted Lawyers Division of the CFC Bar Association and is a member of the Vaccine Injured

Petitioner’s Bar Association and the American Association for Justice. Ms. Daniels worked at

CHC during law school as a law clerk and was thus familiar with the Program and issues in it when

she began work as an attorney. Id. Ms. Daniels has represented petitioners at hearings and argued

appeals.

Law Clerks-Requested rate of $160 an hour. The law clerks are law students who work at

the firm under the supervision of CHC attorneys. Id. at 20. They perform numerous tasks at lower

rates that are often performed by attorneys at other firms.

27

Paralegals-Requested rate of $135 an hour. The firm represents that its paralegals are

“well-qualified, carefully chosen college graduates” who also perform many tasks that are

performed by attorneys in other firms. Pet. Memo at 15. The paralegals each have several years at

the firm doing exclusively vaccine work. The firm represents that it uses law clerks and paralegals

to perform tasks whenever possible resulting in minimized fees and conservation of Program

resources. See Pet. Reply at 18-21.

The paralegal rate for CHC paralegals is supported by respondent’s exhibit BB, the

National Association of Legal Assistants and Paralegals 2014 Utilization and Compensation

Review. A survey in the exhibit indicates that the highest billing rates are earned by paralegals

with college degrees. Resp. Ex. BB at 8 (noting the 2014 average rate billed by a paralegal with a

bachelor’s degree as $134 an hour). The concentrated work by the CHC paralegals in vaccine work

also enhances their value. According to the Utilization and Compensation Review, exhibit BB,

paralegal rates range from under $30 an hour to over $200 an hour, with college graduates billing

at an average of $134 an hour. Id. at 2, 8.

Based upon all of the factors discussed above with particular emphasis on prevailing rates

relative to years of experience, concentrated work in the Vaccine Program, the responsibility

assumed in Vaccine Program cases, and the consistently high quality of work in those cases relative

to the years of experience, I have concluded that the following rates are currently reasonable for

CHC attorneys and staff:

More than 20 years’ experience

Kevin Conway $415

Ronald Homer $400

Sylvia Chin-Caplan $400

Four to Seven years’ experience

Christine Ciampolillo $300

Amy Schwader $285

Joseph Pepper $290

Meredith Daniels $280

Law Clerks $145

Paralegals $135

I anticipate utilizing these rates in all other challenges to CHC rates for work performed in

2014 and 2015 currently pending before me.

D. Discussion of Reasonable Hours Expended and Costs

Petitioner “bears the burden of establishing the hours expended” in seeking a fee award

for those hours. Wasson v. Sec’y of HHS, 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and

aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam). Reasonable attorneys’ fees are

determined by applying the lodestar method of multiplying a reasonable amount of hours

expended by a reasonable hourly rate. Avera, 515 F.3d at 1347-48 (quoting Blum, 465 U.S. at

28

888). A line-by-line evaluation of the fee application is not required and special masters may rely

on their experience with the Vaccine Program and its attorneys to determine the reasonable number

of hours expended. See Wasson, 24 Cl. Ct. at 484; see also, Saxton v. Sec’y of HHS, 3 F.3d 1517,

1521 (Fed. Cir. 1993). The requirement that attorneys’ fees be reasonable also applies to costs.

Perreira, 27 Fed. Cl. at 34.

Petitioner has submitted detailed billing to substantiate her request for attorneys’ fees and

costs. Respondent has raised numerous objections to hours expended on projects and the number

of people doing work on this case. These objections will be addressed below.

Concerning costs, respondent’s only objection is for a first class plane ticket purchased by

Dr. Steinman to testify at the entitlement hearing, which was reimbursed by the firm. The cost of

the ticket was $2,357.00. I agree that the Program should not have to pay first class airfare, and

accordingly the price of the plane ticket will be reduced to $680, the approximate cost of a daytime,

nonstop flight from San Francisco, California to Washington D.C. See Resp. Ex. CC. This

reduction amounts to $1677.00. Thus, petitioner’s costs are approved in the amount of $74,183.52,

in addition to $250 to be reimbursed to Mrs. McCulloch pursuant to General Order No. 9.

i. Summary of the Entitlement Portion37

This case was vigorously and capably defended on all fronts by respondent. The

government contested the diagnosis, the etiology of the harm, the theory of connection to the

vaccine and the logical explanation of the cause. Respondent, now somewhat disingenuously,

argues that the case was in fact simple and straight forward, and that there was not significant

medical literature submitted. Her objections to time expended by petitioner’s counsel in this case

largely flow from this proposed notion of simplicity.

At the outset, it should be clear that this was not a simple case. There were 10,438 pages

of medical records filed. Pet. Reply at 18. Petitioner filed 34 medical articles and respondent filed

13. The vaccine in question, HPV, was relatively new at the time this petition was filed and did

not have a long history of adverse effects. What is more, the underlying cause of the petitioner’s

severe epilepsy proposed by the petitioner’s experts, damage to the aquaporin-4 water channels,

was also novel. The aquaporin-4 water channels are themselves a molecular discovery of the

twenty-first century. Epilepsy is certainly not a fully understood disease and four highly qualified

experts, two on each side, disagreed as to the underlying cause of the petitioner’s daughter’s severe

epileptic disorder. Was the correct diagnosis limbic encephalopathy or febrile infection related

epilepsy syndrome—one condition rarer than the other? The causal theory was founded on

molecular mimicry and the parties, among other issues, debated the sufficiency of the homology

between the vaccine and the aquaporin-4 water channels, as well as the role of the aquaporin-4

water channels in the genesis of epilepsy. Not only were 47 articles from the medical literature

filed to address the issues in the case, but the literature involved complex issues of central nervous

system anatomy and diagnosis as well as molecular biology. This was a complex case brought on

behalf of a very severely injured and impaired minor child. It deserved the full attention of counsel.

As the U.S. Court of Federal Claims has said:

For a full discussion of petitioner’s entitlement to compensation, see McCulloch v. Sec’y of HHS,

37

No. 09-293V, 2015 WL 3640610, at *1 (Fed. Cl. Spec. Mstr. May 22, 2015).

29

We reject unequivocally any suggestion that an attorney for a petitioner under the

vaccine program is warranted in putting out anything less than the highest effort . .

. . An attorney for a petitioner under the vaccine program must prepare his [or her]

case as if every factual and legal issue will be contested, regardless of how straight

forward or uncontested the case may appear with hindsight. Any other approach

would not serve the client’s interest.

Holton by and through Holton v. Sec’y of HHS, 24 Cl. Ct. 391, 398 (U.S.C.F.C 1991).

This case was heavily litigated and required extensive attention to detail and mastery of

complex concepts of medicine and biology. The petitioner’s firm must have discretion in the way

it builds and presents its cases. While it is certainly a difficult task for the respondent to fairly

evaluate the reasonable number of hours that are justified in preparation of the case, the analysis

should not be overly mechanical as if the tasks in question were simple, which they were not in

this case.

ii. Objection to Time Spent Preparing the Amended Petition and

Affidavit

The guiding principle in evaluating fee petitions is that the work performed and the hours

billed must be reasonable. 42 U.S.C. ' 300aa-15(e) (2012). As the United States Supreme Court

instructs, when awarding attorneys’ fees, special masters may use estimates to achieve “rough

justice.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011). “‘The [trial forum] also should exclude from

the initial fee calculation hours that were not ‘reasonably expended.’ . . . . Counsel for [petitioner]

should make a good faith effort to exclude from a fee request hours that are excessive, redundant,

or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such

hours from his fee submission.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S.

424, 433-34 (1983)).

Respondent, as she has in multiple other cases, objects to the amount of time spent in

preparing the detailed Amended Petition that the CHC firm often files and did file in this case.

Respondent objects that paralegals prepare a chronology of the medical records and therefore that

law clerks working on the amended petition are merely “transcriptionists” and attorneys should

not have spent more than 1 hour reviewing the 29 page Amended Petition. See Resp. Response at

21. Petitioner responds that the respondent misconstrues the nature of the medical chronology,

which is a summary of all 10,438 pages of the records involved in the case. Pet. Reply at 18-22.

The ultimate preparation and selection of the quotations that are used in the Amended Petition

requires considerable review of the chronology and the records as well as professional judgment

about the narrative prepared. The quotations to be used set forth a clear road map of the case. See

id.

I have previously ruled on this objection in Jones v. Sec’y of HHS in which I held:

The undersigned is inclined to agree with petitioner’s view that the preparation of

the detailed Amended Petition requires significant review, analysis, and

30

organization of the medical records. Particularly, the undersigned finds that the

detailed and organized Amended Petition prepared by counsel in this and other

cases is helpful in coming to an efficient understanding of the issues—just as

respondent’s Rule 4(c) reports are helpful in achieving the same. These reports or

petitions require professional judgment as to the relevance of records inserted as

well as organization and analysis of the chronologies presented through both the

Amended Petition and the Rule 4(c) reports. The undersigned finds that both of

these documents were helpful in reviewing the case and finds that it is highly likely

that expert witnesses and mediators would have also found them helpful in

achieving efficiency in the expenditure of their time. The undersigned also finds

that billing seventeen hours of attorney time to prepare the Amended Petition and

Affidavit, containing considerable medical detail with direct quotations from the

medical records, in addition to approximately twenty-one hours of paralegal time

summarizing nineteen exhibits of medical records, to be reasonable in this case.

No. 11-70V, 2014 WL 7508006, at *7 (Fed. Cl. Spec. Mstr. Dec. 4, 2014).

In this case in which the petitioner had over 10,000 pages of medical records and a

considerably more complex record than in Jones, I found the Amended Petition quite helpful in

outlining the case with numerous direct quotations from the medical record. The petitioner also

indicated that the Amended Petition served as the basis of a substantial portion of the stipulated

statement of facts which the parties were ordered to file after the entitlement hearing in this matter.

Accordingly, I will deny respondent’s objection to this billing and grant the requested fee for

preparation of the Amended Petition at the rates that I have determined to be reasonable above.

Respondent also objects to 12.7 hours for preparation of the affidavit of the petitioner, who

is the mother of the injured child. As the affidavit serves as a substitute for the direct examination

of the mother, it must be prepared with considerable care and verification of memory against events

recorded in the medical records. The affidavit filed is only 5 pages long and does largely consist

of memories of the mother. Respondent requests a reduction of $924.60. I find it reasonable to

reduce the billing by $500.00.

iii. Objection to Hours Expended by Attorneys Not Primarily

Working on the Case

Respondent objects to the time spent on this file by attorneys other than Ms. Chin-Caplan

and Ms. Ciampolillo. As set forth in the respondent’s objections, over the course of the 8 year

history of this case Mr. Conway billed 18.7 hours, Mr. Homer billed 11 hours, Ms. Fashano 5

hours, Mr. Pepper .1 hours, and Ms. Daniels 7.5 hours. Resp. Response at 25. Respondent argues

that no private client would agree to pay for the time of attorneys who had “no substantive

involvement in, or knowledge of the case.” Id. A review of the billing records indicates that Mr.

Conway was involved in the case at the outset and appeared to be in charge of the firm’s initial

intake and evaluation of the case. See generally Pet. Motion Tab A. He billed 9.5 hours prior to

2014 with an additional 9.2 hours to prepare the fee petition, to which the respondent does not

object. Resp. Response at 25, 40; see Pet. Motion Tab A. After the initial period, Mr. Conway’s

involvement seems to have been primarily editing motions or correspondence with experts.

31

Respondent requests that I use my discretion to reduce all of the time billed by Ronald

Homer, a total of 11 hours over the life of this case. Resp. Response at 24. Both Mr. Conway and

Mr. Homer are among the most experienced attorneys in the Vaccine Program. Mr. Homer is the

attorney of record on all cases at the firm. This is done so that he performs a supervisory function,

assuring that all orders are complied with, deadlines met and assignments among the firm’s

attorneys made. Most of his time entries are in very short increments of time such as .1 or .2 hours

at a time. See generally Pet. Motion Tab A. Given that the firm has been counsel of record in

approximately 350 cases since 2007, the need to perform this function and to otherwise provide a

quality control function to the work output of the firm is commendable. As attorney of record, Mr.

Homer is responsible for assuring that all deadlines are met and that the work on behalf of the

firm’s clients proceed as it should. The fact that he usually delegates more individually time

consuming projects such as petition preparation, research, brief writing, work with experts, and

trial work to attorneys with lower billing rates amounts to a savings to the Program. At least in

this case, the same is true for Mr. Conway. I will not disallow the modest billings made to this file

to perform their functions for this case.

Amy Fashano appeared to be more involved in the case at the beginning before Christine

Ciampolillo became primarily involved. Meredith Daniels did various research projects, cite

checking, and editing of briefs. All of these were reasonable functions and did not involve

duplication of work done by others, and from what I can tell from the billing records did not

involve any significant amount of time in becoming familiar with an unfamiliar case. I find that

the modest billings for Ms. Fashano and Ms. Daniels are also reasonable.

iv. Objection to Having Two Attorneys Work on the Case as

Duplicative

If the billings had not been minimal and did not involve tasks such as oversight,

management, cite checking, proof reading, and research by the other members of the firm, there

might have been some basis for the objection of duplicative work by attorneys other than trial

counsel. However, in my experience, most firms handling complicated cases for plaintiffs assign

at least two attorneys to a file. As has been recited above, the scientific and medical foundation of

this case was quite complicated and involved relatively new theories as to multiple issues in the

case. Ms. Chin-Caplan did the direct and re-direct examinations of Dr. Steinman and Ms.

Ciampolillo did the same with Dr. Blitshteyn. Ms. Chin-Caplan cross-examined Dr. Venkatesan.38

Both were involved in the preparation of the pre- and post-trial briefing of this case. There can be

no question that both played substantive roles in the case.

Once again the respondent’s objections to the time spent appear to be largely mechanical

and do not reflect the reality of the work involved in carrying the burden of proof in a complicated

medical case such as this one. Respondent suggests that the two primary attorneys should not have

interacted as to each other’s witnesses, that they should have taken less than 16.9 hours of time to

review and highlight for the court 34 medical articles on autoimmunity, molecular biology of the

38

Respondent also filed an expert report from Dr. Sladky but ultimately decided not to present his

testimony, most likely for reasons unrelated to the case. Nevertheless, petitioner’s response to his

report had to be prepared.

32

brain, epilepsy, limbic encephalopathy, febrile infection related epilepsy syndrome, molecular

mimicry, the role of the aquaporin-4 water channels in the brain, and their postulated role in the

genesis of epilepsy. Resp. Response at 26-39. Respondent objects to both attorneys reviewing the

expert reports from both sides and essentially suggests that it would be appropriate for each

attorney to be satisfied to understand half the case. Id. If it is not facially clear that both attorneys

have to be intimately familiar with all of the expert reports, and of the close interrelationship of

the subjects covered, the fact that the issues presented by all of the experts overlapped, and cross

examination of both did as well, should make it clear. It is appropriate for both lead attorneys to

know and to interact in all issues of the case.

Respondent suggests that 100 hours between the two attorneys was too much for trial

preparation and suggests that I reduce the trial preparation time to 25 hours per attorney or the

equivalent of three work days each. Resp. Response at 39. I find it difficult to place these kinds of

arbitrary limits on the competent preparation for trial as the Court of Federal Claims has rejected

the notion that petitioner’s attorneys should put forth less than their best effort on behalf of

petitioner, or that they should not prepare for all potentially contested issues. See Holton, 24 Cl.

Ct. at 398. It is easy to say, as respondent does, that no client would pay for two attorneys to work

on a case, but the reality is that clients in private practice or in the Vaccine Program want their

attorneys to do what is necessary to effectively present and win their cases. In these cases, which

require the presentation and cross-examination on complex medical and scientific concepts, the

time spent to review and digest hundreds of pages of medical articles and records that are being

submitted as evidence to the court in support of the expert testimony by both sides is time

consuming. The need for trial counsel to have reasonable command of the medical and scientific

evidence presented in the case is paramount if the petitioner is to be competently represented. The

thorough preparation of expert witnesses is as well. I find the amount of time spent in preparation

for trial on the issues actually litigated in this case to be reasonable and accordingly am allowing

the time billed for trial preparation.

v. Travel Expenses

Some of petitioner’s counsel’s travel expenses for the hearing appear to have been billed

at their full rate. Petitioner’s counsel have indicated that they worked on the way to the hearing.

It is reasonable that counsel can work while waiting at the airport and on the flight, but unlikely

that they would be able to do much work during the remainder of the transfer. Therefore, I will

allow three hours at full rate for each counsel on the pre-hearing flights, and the balance of the

travel time on the way and in return to be billed at half rate. Thus, Ms. Chin-Caplan’s travel invoice

is reduced by $2,075.00 and Ms. Ciampolillo’s by $570.00 as she had billed the return travel at

half rate originally. This calculation is based upon the rates determined to be reasonable above.

vi. Objection to Administrative and Secretarial Tasks Performed

by Paralegals

Respondent objects to paralegals billing for what she characterizes as administrative or

secretarial tasks. The objection goes to a category of billing called “prepping” of records billed

for a total of $2,220.50. Further objection is raised to burning CDs or copying records sent to

experts, creating copies of records for binders or electronic copies of documents for hearing, and

33

booking travel. Respondent states that these tasks were billed at $2,945.10 and should be entirely

deducted from any fee award. Resp. Response at 23.

CHC provides four pages of explanation in its reply. See Pet. Reply at 23-27. In essence,

CHC indicates that the paralegals who are familiar with the case review incoming medical records,

confirm that they are complete, assure that all filings with the court are correct, and completely

oversee the production of files to be sent to the experts. Id. The paralegals make sure that the

records are legible, complete, in order, and belong to the client in whose case they are being filed.

Id. at 23. The paralegal places exhibits in chronological order, scans and paginates the exhibits.

Id. at 24. The paralegal also assures that the exhibits are properly prepared for electronic filing

with the court and that they are compliant with the maximum filing requirements. Id. In this case,

the primary hospital records were filed in 9 separate volumes so as to comply with those

requirements. Respondent objects to the paralegal involvement in preparing the trial notebooks for

the hearings and suggests that this is mostly a matter of standing at a photocopy machine. Resp.

Response at 22-23. CHC attributes considerably more judgment and organizational skill to these

tasks. CHC responds that the paralegals are involved in arranging travel for the attorneys and

experts because of the need to interact with the experts, the need to find hotels near the courthouse,

and the need to assure that there is conference room space when necessary. Pet. Reply at 25-26.

It is interesting that respondent objects to attorneys not primarily working on the file being

assigned tasks, such as research or proof reading, because (as explained above) she suggests that

this involves needlessly having another person familiarize himself with the case. Yet, in the

paralegal category, respondent seems to argue that secretaries should be able to do many tasks that

are closely involved with the organized preparation of a large file, and that somehow it makes

more sense for the paralegal to spend the time explaining tasks to a secretary rather than just

completing the work him or herself. There seems to be little consideration of how much instruction

time is involved in that hand off and how much quality control oversight has to be done to assure

that all of the documents are properly prepared, managed, and filed.

Nonetheless, as some special masters have disallowed billing for photocopying and similar

tasks, I will deduct $1,000.00 from the billing for paralegal time which reflects some consideration

of time spent photocopying and other administrative tasks but allows for all the time involved in

organizational oversight and quality control functions that a paralegal performs.

vii. Fees for Preparation of Fee Application and Responses to

Respondent’s Objections

Petitioner has filed a supplemental request for $16,752.00 for attorneys’ fees necessitated

by the preparation of answers to the respondent’s objections to the firm’s fee application. See

generally Pet. Supp. Motion. Based upon the array of issues raised by the respondent, including

the extent of fees earned by CHC since 2007, the cases to which those were attributable, the local

rate versus forum rate issues, an appropriate forum rate, and objections to specific uses of time,

CHC filed three briefs in support of its fees and in opposition to the respondent’s objections. The

research and preparation of these documents, including review of all fees and costs received by

the firm since 2007, required significant input and time from Mr. Conway and Mr. Homer. The

supplemental fee application is granted as modified to reflect the rates that I have determined

34

above.

III. CONCLUSION

At page 103 of its billing statement, CHC provides a summary of each timekeeper’s billing

at the varying rates for the different years in which the work on this case was done. See Pet. Motion

Tab A at 103. The summary for each attorney and for the paralegals and law clerks is shown at

the Carr rates for all lines except one which is shown at the CHC proposed rates. While it appears

that the respondent is objecting to the Carr rates as well in her sur-reply to petitioner’s motion for

interim fees and costs, I have concluded that the objection was completely without merit and the

Carr rates to which both parties had agreed were in effect for prior years. As I have concluded that

the appropriate rates differ from the proposed rates for 2014 and 2015, I will show the calculations

below.

Interim Fees Request

Timekeeper CHC Rates x hours = Adjudicated rate x hours = Difference

Conway $425 x 9.2 = $3,910.00 $415 x 9.2 = $3,818.00 $92.00

Homer $415 x 3.3 = $1,369.50 $400 x 3.3 = $1,320.00 $49.50

Chin-Caplan $415 x 68.3 = $28,344.50 $400 x68.3 =$27,320.00 $1,024.50

Ciampolillo $310 x 115.5 = $35,805.00 $300 x 115.5 = $34,650.00 $1,155.00

Schwader no billings at proposed rate ----

Pepper $295 x 0.1 = $29.50 $290 x 0.1 = $29.00 $0.50

Daniels $285 x 2.8 = $798.00 $280 x 2.8 = $784.00 $14.00

Caplan 39 $200 x 13.8 = $2,760.00 $145 x 13.8 = $2,001.00 $759.00

Law Clerks $160 x 1.6 = $256.00 $145 x 1.6 = $232.00 $24.00

Paralegals $135 x 13.4 = $1,809.00 $135 x 13.4 = $1,809.00 $0.00

_________

Total reduction to bill based on adjudicated rates $3,118.50

Supplemental Fees Request

Timekeeper CHC Rates x hours= Adjudicated rate x hours= Difference

Conway $425 x 10.2 = $4,335.00 $415 x10.2 = $4,233.00 $102.00

Homer $415 x 22.1 = $9,171.50 $400 x22.1 = $8,840.00 $331.50

Ciampolillo $310 x 2.4 = $744.00 $300 x 2.4 = $720.00 $24.00

Pepper $295 x 6.7 = $1,976.50 $290 x 6.7 = $1,943.00 $33.50

Daniels $285 x 0.2 = $57.00 $280 x 0.2 = $56.00 $1.00

Law Clerks $160 x 0.9 = $144.00 $145 x 0.9 = $130.50 $13.50

Paralegals $135 x 2.4 = $324.00 $135 x 2.4 = $324.00 $0.00

__________

Total reduction from supplemental fee request $505.50

39

In reviewing Ms. Nicole Caplan’s resume attached as Tab A to petitioner’s reply, it appears Ms.

Caplan worked at CHC as a law clerk until May 2013. She was admitted to the Massachusetts Bar

in November 2013.

35

Total reduction of combined fees requests based on adjudicated rates $3,624.00

In addition I have deducted a total of $4,145 as set forth above. $4,145.00

Total deduction from requested fees $7,769.00

Total fees requested including supplemental $173,095.60 Total fee award $165,326.60

Total costs billed $75,860.52 Total Cost award $74,183.52

Reimbursement to Mrs. McCulloch $250.00

The above amounts reflect the total amount of interim attorneys’ fees, costs and

reimbursements approved in this case. Accordingly, an award shall be made as follows:

1) In the form of a check jointly payable to petitioner and to petitioner’s attorneys at

Conway, Homer & Chin-Caplan P.C., in the amount of $239,510.12 ($165,326.60 for

fees, $74,183.52 for costs); and

2) In the form of a check payable to petitioner, Rachel McCulloch, in the amount of

$250.00 as reimbursement of her costs.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

court SHALL ENTER JUDGMENT in accord with this decision.

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

36