                In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                         Filed: July 28, 2020

* * * * * * * * * * *                          *   *
MICHAEL J. GORDON, parent and                      *
natural guardian of J.M.G.,                        *       UNPUBLISHED
                                                   *
                 Petitioner,                       *       No. 17-743V
                                                   *
       v.                                          *       Special Master Dorsey
                                                   *
SECRETARY OF HEALTH                                *       Interim Attorneys’ Fees and Costs.
AND HUMAN SERVICES,                                *
                                                   *
                 Respondent.                       *
                                                   *
*   * *     *    *   *   *     *   *   *   *   *   *

Michael J. Gordon, pro se, for petitioner.
Colleen C. Hartley, United States Department of Justice, Washington, DC, for respondent.

          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

       On June 6, 2017, Michael Gordon (“petitioner”), as parent and natural guardian of
J.M.G., filed a petition in the National Vaccine Injury Program2 alleging that as a result of the
Diphtheria-tetanus-acellular pertussis (“Dtap”), Hepatitis B, Rotavirus, Polio (“IPV”),
Haemophilus influenzae type B (“Hib”), and pneumococcal conjugate (“PCV 13”) vaccines
J.M.G. received on May 13, 2014 and July 16, 2014, he suffers from an adverse reaction and
developmental delays. Amended Petition at 1, 3.


1
  Because this unpublished Decision contains a reasoned explanation for the action in this case,
the undersigned is required to post it 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). This means the Decision will
be available to anyone with access to the Internet. 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
                                                       1
       On June 4, 2020, petitioner filed a motion for interim attorneys’ fees and costs,
requesting compensation for the attorney who worked on their case. Petitioner’s Motion for
Interim Fees and Costs (“Pet. Mot.”), filed June 4, 2020 (ECF No. 84); see also Addendum to
Verified Petition for Interim Attorney Fees and Expenses (“Addendum”), filed July 23, 2020
(ECF No. 96). Petitioner’s request can be summarized as follows:

Attorneys’ Fees – $34,982.00
Attorneys’ Costs – $9,250.00

       Petitioner thus requests a total of $44,232.00. Respondent filed his response on June 18,
2020, stating that he “recommends that the [] Special Master exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Respondent’s Response to Pet.
Mot. (“Resp. Response”), filed May 8, 2020, at 3 (ECF No. 57); see also Response to Motion to
Amended Motion for Interim Attorneys’ Fees and Costs, filed July 23, 2020 (ECF No. 97).

       This matter is now ripe for adjudication. For the reasons discussed below, the
undersigned GRANTS petitioner’s motion and awards $43,303.25 in attorneys’ fees and costs.

I.     DISCUSSION

        Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. § 15(e)(1). When
compensation is not awarded, the special master “may” award reasonable fees and costs “if the
special master or court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought.” Id. If a special master has
not yet determined entitlement, she may still award attorneys’ fees and costs on an interim
basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Such
awards “are particularly appropriate in cases where proceedings are protracted and costly
experts must be retained.” Id. Similarly, it is proper for a special master to award interim fees
and costs “[w]here the claimant establishes that the cost of litigation has imposed an undue
hardship and that there exists a good faith basis for the claim.” Shaw v. Sec’y of Health &
Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010).

        The claim appears at this point to have been brought in good faith and built on a
reasonable basis. Moreover, the undersigned finds that an award of interim attorneys’ fees and
costs is appropriate here where there are significant expert fees to be paid.

       A.      Reasonable Attorneys’ Fees

       The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “an initial estimate of a reasonable attorneys’ fee by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings. Id. at 1348.

                                                 2
        Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is
“well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

       A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991), rev’d on other grounds and aff’d in
relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.

      Here, petitioner requests the following hourly rates for the attorney and paralegal who
worked on this matter:

Mr. Murphy – Attorney
     2019-2020: $400.00

Ms. Baker – Paralegal
      2019-2020: $135.00

        The undersigned finds that the requested rates are reasonable and in accordance with
what this attorney has previously been awarded for his Vaccine Program work. See, e.g.,
Dougherty v. Sec’y of Health & Human Servs., No. 15-1333V, 2019 WL 1301903, at *2 (Fed.
Cl. Spec. Mstr. Mar. 6, 2019) (awarding $400.00 per hour for all work performed from 2015-
2018); Phipps v. Sec’y of Health & Human Servs., No. 15-238V, slip op. at 2 (Fed. Cl. Spec.
Mstr. Jan. 9, 2017); Adler v. Sec’y of Health & Human Servs., No. 16-960V, slip op. at 2 (Fed.
Cl. Spec. Mstr. Dec. 1, 2016). Mr. Murphy proposed that his 2019-2020 hourly rate be
maintained at $400.00. See Pet. Mot. at 6. The undersigned finds the proposed rate reasonable,
as it remains consistent with the rates reflected in the Office of Special Masters’ Attorneys’
Forum Hourly Rate Fee Schedule for an attorney of counsel’s experience.3 Mr. Murphy also


3
 The 2020 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys–Forum–Rate–Fee–Schedule–
2020.pdf.
                                                3
proposed that the 2019-2020 hourly rate of his paralegal should be $135.00. Id. The
undersigned likewise finds the proposed rate reasonable, as it remains consistent with the rates
reflected in the Hourly Rate Fee Schedule. The undersigned will therefore award the rates
requested.

       Petitioner’s counsel requests compensation for 55.7 hours for 2019 and 27.3 hours for
2020. Pet. Mot. at 6. Petitioner further requests compensation for Ms. Baker’s paralegal work of
13.2 hours for 2019-2020.

       Upon review, the undersigned notes Mr. Murphy’s entry on March 18, 2020 is
duplicative and will result in a reduction of $240.00. Pet. Mot., Ex. B at 13. Additionally, Mr.
Murphy also billed for time regarding funding of the case.4 Time spent related to funding
requests is not compensated by the Program and will result in a reduction of $400.00. Finally, on
January 22, 2020, Mr. Murphy billed for an e-mail “requesting Diversion Agreement and
including copy of Davis v. State.” Id. at 9. This entry appears irrelevant to the above-captioned
case and will result in a reduction of $120.00.

        The undersigned finds a percentage reduction necessary for Ms. Baker’s invoice entries
billed as “web research” due to vagueness.5 Based on the hours billed for these tasks, the
undersigned finds that a 50% reduction to the two entries is appropriate. This results in a further
reduction of $168.75. Petitioner is thus awarded attorneys’ fees of $34,053.25.

         B.      Attorneys’ Costs

                 1.   Expert Fees

        Petitioner requests $1,600.00 for work performed by Dr. Michael Katz, which was a total
of 9 hours, billed at an hourly rate of $400.00, and the $2,000 retainer fee paid to Dr. Katz. Pet.
Mot., Ex. D; Addendum, Ex. B-C. Petitioner also requests $3,500.00 for work performed by Dr.
Sarah Sobotka, which was a total of 10 hours, billed at an hourly rate of $350.00. Pet. Mot., Ex.
G; Addendum, Ex. E. The undersigned finds these costs reasonable and well-documented, and
she will award them in full.

                 2.   Miscellaneous Costs

       Petitioner requests $1,750.00 to cover their attorney’s other miscellaneous expenses,
including a call with Elite Medical Experts for the purpose of locating a medical expert to
evaluate petitioner’s claim. Pet. Mot. at 7, Ex. B. Additionally, petitioner advanced the sum of
$400 toward the payment of the fee of Saponaro, Inc. for obtaining a medical expert to evaluate


4
  On March 5, 2020, Mr. Murphy had a telephone call with a lawsuit funding company; on June
6, 2019, Mr. Murphy had a telephone call with Oasis Legal Financing for funds to hire an expert;
and on June 19, 2019, Mr. Murphy had telephone calls with “funding sources.” Pet. Mot., Ex. B
at 3-4, 12.
5
    See September 16 and 18, 2019 entries. Id. at 6.
                                                  4
his claim. Addendum, Ex. A. The undersigned finds these costs reasonable and well-
documented, and she will award them in full.

II.    CONCLUSION

        Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioners and their counsel as follows:

       Requested Attorneys’ Fees:                                           $ 34,982.00
       Reduction of Attorneys’ Fees                                         - ($ 928.75)
       Awarded Attorneys’ Fees:                                             $ 34,053.25

       Requested Attorneys’ Costs:                                          $ 9,250.00
       Reduction of Attorneys’ Costs:                                       - ($ 0.00)
       Awarded Attorneys’ Costs:                                            $ 9,250.00

       Total Interim Attorneys’ Fees and Costs:                             $ 43,303.25

       Accordingly, the undersigned awards:

        A lump sum in the amount of $43,303.25, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s former counsel of record, Mr. David Murphy.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this Decision.6

       IT IS SO ORDERED.


                                             /s/ Nora Beth Dorsey
                                             Nora Beth Dorsey
                                             Special Master




6
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
                                                5
