                  In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 17-1651V
                                          (not to be published)

*************************
PATSY GIPSON, Trustee of Alfred J. *
Gipson, Deceased,                  *
                                   *                             Special Master Corcoran
                                   *
                  Petitioner,      *                             Filed: August 30, 2019
                                   *
             v.                    *
                                   *                             Attorney’s Fees and Costs.
SECRETARY OF HEALTH                *
AND HUMAN SERVICES,                *
                                   *
                                   *
                  Respondent.      *
                                   *
*************************


Timothy J. Lessman, Knutson & Casey Law Firm, Mankato, MN, for Petitioner.

Lisa A. Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.

     DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1

         On November 1, 2017, Patsy Gipson, Trustee of Alfred A. Gipson, filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2
Petitioner alleged that Mr. Gipson suffered from Guillain-Barré syndrome as a result of receiving
the influenza vaccine on November 5, 2015, and that his death on January 1, 2017, was a sequela
of that injury. Petition (ECF No. 1) at 1. The parties filed a Proffer on February 25, 2019, which I
adopted as my Decision awarding compensation on the same day. (ECF No. 25).


1
  Although I have not designated this Decision for publication, it will be made available on the United States Court of
Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). 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 the public Decision.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
        Petitioner has now filed a motion requesting final attorney’s fees and costs, dated June 5,
2019 (ECF No. 34) (“Fees App.”), requesting a total award of $36,326.43 (representing $34,746.33
in fees, plus $1,580.10 in costs). Fees App. at 1. Pursuant to General Order No. 9, Petitioner
warrants that she has not personally incurred any costs in pursuit of this litigation. Fees App. Ex.
4 at 1. Respondent reacted to the motion on May 9, 2019, indicating that he is satisfied that the
statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring
to my discretion to determine the amount to be awarded. Response, ECF No. 35, at 2-3. Petitioner
did not file a reply thereafter.

         For the reasons set forth below, I hereby GRANT Petitioner’s motion in part, awarding
final attorney’s fees and costs in the amount of $35,176.68.


                                                    ANALYSIS

         Vaccine Program attorneys are entitled to a fees award in successful cases like this one.
Determining the appropriate amount of that award is a two-part process. The first part involves
application of the lodestar method – “multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d
1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second
part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered
applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart,
461 U.S. 424, 429-37 (1983).




3
  An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.

In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999) ).

                                                           2
       Petitioner requests the following rates of compensation for her attorneys: for Mr. Randall
Knutson, $365.00 per hour for work performed in 2017-2018; for Mr. Wade Abed, II, $295.00 per
hour for work performed in 2016-2017, and for Mr. Timothy Lessman, $317.00 per hour for work
performed in 2018-2019. Mr. Knutson’s rate is consistent with what he has previously been
awarded for his work in the Vaccine Program, and I find it to be reasonable here as well.

        Concerning the requested rate for Mr. Abed, I note that it exceeds what he has previously
been awarded. See Maddox v. Sec’y of Health & Human Servs., No. 16-1504V, 2018 WL 6382043
(Fed. Cl. Spec. Mstr. Oct. 5, 2018). In Maddox, Mr. Abed sought compensation for his work
through 2017 at $250.00 per hour, which the assigned special master found to be reasonable given
his experience and this Court’s Attorneys’ Hourly Rate Fee Schedule. Id. at *2. In the instant case,
petitioner has not offered any reason as to why I should depart from the reasoned decision in
Maddox and compensate Mr. Abed’s work at a higher rate than what he previously requested and
was awarded. I therefore find it reasonable to compensate Mr. Abed at $250.00 per hour for all
work performed in this matter. Applying this rate to the 22.55 hours billed by Mr. Abed results in
a reduction of $1,149.75 from the final award of fees.

        This is the first time a special master has considered the reasonableness of a rate requested
for Mr. Lessman. Mr. Lessman’s affidavit states that he has been practicing law since 2006, placing
him within the range of 11-19 years of experience on the hourly rate fee schedules at all times
while performing work on this case. 4 I therefore find his requested rate of $317.00 per hour to be
reasonable.

       I have reviewed the billing entries and find them to be reasonable. The billing entries
describe with sufficient detail the task being performed and the time spent on each task.
Respondent has not identified any particular entries as objectionable and upon review, I did not
find any entries to be objectionable either. Accordingly, Petitioner is entitled to a final award of
attorney’s fees of $33,596.58.

       I will next turn to costs. Just as they are required to establish the reasonableness of
requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.

4
 The 2015–2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf. The 2018 Fee
Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202018.p
df. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.p
df. The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

                                                        3
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United
States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining
medical records and expert time incurred while working on a case. Fester v. Sec’y of Health &
Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013).
When petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding compensation. See,
e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4
(Fed. Cl. Spec. Mstr. June 30, 2005).

       Petitioner requests $1,580.10 in overall costs. Fees. App. at 1. This amount is comprised
of obtaining medical records, postage charges, and the Court’s filing fee. I have reviewed all of
the requested costs and find them to be reasonable, and Petitioner has provided adequate
documentation supporting them. Accordingly, Petitioner is entitled to the full amount of costs
requested.

                                                CONCLUSION

        The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C.
§ 300aa-15(e). Accordingly, I award a total of $35,176.68 as a lump sum in the form of a check
jointly payable to Petitioner and her counsel, Mr. Timothy Lessman, Esq. In the absence of a
timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter
judgment in accordance with this decision.5


         IT IS SO ORDERED.


                                                                     /s/ Brian H. Corcoran
                                                                        Brian H. Corcoran
                                                                        Special Master




5
  Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
                                                          4
