    In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                      Filed: February 6, 2019

* * * * * * * * * * * * * *
JESSICA NIXON, Administrator of the *
Estate of RHONDA NIXON,             *                           UNPUBLISHED
                                    *
             Petitioner,            *                           No. 13-738V
                                    *                           Special Master Gowen
v.                                  *
                                    *                           Attorneys’ Fees and Costs
SECRETARY OF HEALTH                 *
AND HUMAN SERVICES,                 *
                                    *
             Respondent.            *
* * * * * * * * * * * * * *
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioner.
Voris E. Johnson, United States Department of Justice, Washington, DC, for Respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

        On October 26, 2018, Jessica Nixon (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 121). For the reasons
discussed below, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs and
awards a total of $67,789.48.

    I.        Procedural History

       On September 25, 2013, Rhonda Nixon filed a petition in the National Vaccine Injury
Compensation Program.2 Ms. Nixon filed an amended petition on October 15, 2013, alleging that
she suffered from Guillain-Barré Syndrome (“GBS”) or acute disseminated encephalomyelitis

1
  The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the
ruling 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. Because this unpublished ruling contains a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).
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-1 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.
(“ADEM”) as a result of receiving an influenza (“flu”) vaccination on October 29, 2010. On
October 27, 2017, the case caption was amended to reflect that Ms. Rhonda Nixon had passed
away, and her daughter, Ms. Jessica Nixon, was appointed administrator of her estate. Order
Granting Motion to Amend Case Caption, ECF No. 99. On August 21, 2018, the parties filed a
joint stipulation which I adopted as my Decision awarding damages on the same day. Decision,
ECF No. 116.

       On October 26, 2018, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for her attorney, Mr. Clifford Shoemaker, in the total amount of
$75,955.38, representing $54,632.70 in attorneys’ fees and $21,322.68 in costs. Fees App. at 1.
Pursuant to General Order No. 9, Petitioner indicates that she has not personally incurred any
expenses in pursuit of this litigation. Id. at 2.

         Respondent reacted to the fees motion on November 2, 2018, indicating that “Respondent
is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case”
and recommending that “the special master exercise his discretion and determine a reasonable
award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 122). Petitioner did not file a reply.
The matter is now ripe for adjudication.

   II.     Analysis

        Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation, but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). In this case, Petitioner was awarded
compensation pursuant to a stipulation, and therefore she is entitled to an award of reasonable
attorneys’ fees and costs.

        Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct.
482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the
motion is filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte,
independent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human
Servs., 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85
Fed. Cl. 313 (Fed. Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr.
22, 2008).

               a. Attorneys’ Fees

       Petitioner requests the following rates of compensation for work performed by his
attorneys: for Mr. Clifford Shoemaker, Petitioner requests $415.00 per hour for work performed
in 2015, $430.00 for work performed in 2016, $440.00 for work performed in 2017, and $450.00
for work performed in 2018; for Ms. Renee Gentry, Petitioner requests $400.00 per hour for work
performed in 2015, $415.00 per hour for work performed in 2016, $424.00 for work performed in
2017, and $435.00 for work performed in 2018; and for Ms. Sabrina Knickelbein, Petitioner
requests $350.00 per hour for work performed in 2015, $365.00 for work performed in 2016,
$378.00 for work performed in 2017, and $391.00 for work performed in 2018. Fees App. at 26-


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27.

       The rates requested herein are in conformance with what myself and other special masters
have consistently awarded Shoemaker, Gentry & Knickelbein attorneys. See Cianni v. Sec’y of
Health & Human Servs., No. 16-1052V, slip op. at 2-3 (Fed. Cl. Spec. Mstr. Sept. 21, 2018).
Accordingly, no adjustment to the requested rates is required.3

        I also find that a reduction of overall hours expended on this case (130.4) must be made.
As has previously been noted on several occasions, Mr. Shoemaker’s billing records suffer from
vagueness. See Cianni, slip op. at 3; Dominguez v. Sec’y of Health & Human Servs., No. 12-378V,
2018 WL 3028975, at *3 (Fed. Cl. Spec. Mstr. May 25, 2018); Brodie v. Sec’y of Health & Human
Servs., No. 17-437V, 2018 WL 3991233, at *3 (Fed. Cl. Spec. Mstr. June 26, 2018); Eworonsky
v. Sec’y of Health & Human Servs., No. 04-992V, 2018 WL 2225379, at *4 (Fed. Cl. Spec. Mstr.
Apr. 20, 2018). As I noted in Cianni, the instant fees application contains many of the same issues
as have previously been mentioned such as vague descriptions of work performed.

        Notably in this case, the amount of hours billed appears to be high, considering an award
of interim fees was already made earlier in this case when Petitioner changed her counsel. See
Decision on Interim Fees, filed on May 9, 2016 (ECF No. 57). Upon review of the submitted
billing statement, roughly half of the billing entries for Mr. Shoemaker are for sending and
receiving e-mails. Some of these entries describe the nature of the e-mail, but most do not. This is
especially problematic in this particular instance, where I must weigh the fact that the case was
complex against what appears to be a somewhat excessive amount of hours billed. A more detailed
description of the work performed would permit me to better ascertain the reasonableness of the
work and the necessity of the sheer quantity of e-mails, the majority of which were interoffice
communication. Particularly troubling are series of entries on 10/1/15, in which Mr. Shoemaker
billed a total of 2.2 hours on “Emails to and from Sabrina,” an amount of time which appears
excessive absent any further information. Fees App. at 4.

        Other factors also support an overall reduction in hours. Some of the tasks billed, such as
time spent preparing an online folder of medical records for access by Petitioner’s expert, Dr. Carlo
Tornatore, and time spent delivering records to Dr. Tornatore personally are administrative in
nature and are not compensable. Additionally, the record reflects that all filings by the Court and
Respondent were reviewed by both Mr. Shoemaker and Ms. Knickelbein (who appeared to work
on this case in a predominately paralegal context), resulting in double billing for these entries.
Given that each attorney billed for review of even the most routine filings and the overall amount
of interoffice communication between the two attorneys reflected in the billing records, I find that
it was likely unnecessary for both attorneys to bill time for review.

        Accordingly, I find that a 10% reduction of Mr. Shoemaker’s hours is appropriate. The
billing records indicate that Mr. Shoemaker billed 93.4 hours for a total amount of $40,159.00.
Fees App. at 28. Accordingly, I shall reduce the amount awarded for attorneys’ fees by $4,015.90.

3
 I note that two entries from Mr. Shoemaker reflect an incorrect rate – on 11/30/16 and 12/9/16, Mr. Shoemaker
billed two entries at $446.00 per hour, deviating from his established rate of $430.00 per hour. Fees App. at 12.
Because each of these entries was only 0.1 hours, the amount overbilled is relatively small, and the reduction for this
mistake is included in the overall reduction of hours made.

                                                          3
                   b. Attorneys’ Costs

       Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $21,322.68. The vast majority of these costs is attributable to the
expert work performed by Dr. Carlo Tornatore ($20,750), with the remaining balance attributable
to acquiring medical records. Fees App. at 30.

        The undersigned finds it necessary to reduce the amount awarded for Dr. Tornatore’s work.
The billing records indicate that Dr. Tornatore billed at $500.00 per hour and performed a total of
41.5 hours of work on this matter. However, Dr. Tornatore has consistently been awarded $400.00
per hour for his work. See Averitt v. Sec’y of Health & Human Servs., No. 16-938V, 2018 WL
4907991, at *3 (Fed. Cl. Spec. Mstr. Sept. 4, 2018); Morgan v. Sec'y of Health and Human Servs.,
No. 15–1137V, 2017 WL 1034399 (Fed. Cl. Spec. Mstr. Jan. 23, 2017); Jaffri v. Sec'y of Health
& Human Servs., No. 13–484V, 2017 WL 7319407 (Fed. Cl. Spec. Mstr. Sept. 30, 2016); L.A. v.
Sec'y of Health & Human Servs., No. 12–629V, 2016 WL 1104860 (Fed. Cl. Spec. Mstr. Feb. 29,
2016). I too shall compensate Dr. Tornatore for his work at $400.00 per hour – this results in a
total reduction of $4,150.00.4

       I have reviewed the remainder of the costs and find them to be reasonable. Petitioner has
provided adequate documentation for these costs, and they shall be reimbursed in full.
Accordingly, Petitioner is awarded $17,172.68 in costs.

      III.      Conclusion

       In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:

    Attorneys’ Fees Requested                                                   $54,632.70
    (Total Reduction from Billing Hours)                                        - $4,015.90
    Total Attorneys’ Fees Awarded                                               $50,616.80

    Attorneys’ Costs Requested                                                  $21,322.68
    (Reduction of Costs)                                                        - $4,150.00
    Total Attorneys’ Costs Awarded                                              $17,172.68

    Total Amount of Attorneys’ Fees and Costs                                   $67,789.48

             Accordingly, I award the following:


4
  I note that given Dr. Tornatore’s impressive credentials and overall experience in the Vaccine Program, I would be
open in future cases to awarding him an increased hourly rate. However, because almost all of the work billed for in
this case was performed in 2015 and 2016, $400.00 per hour is a fair rate of compensation for work performed in
this case.

                                                         4
    1) A lump sum in the amount of $67,789.48, representing reimbursement for petitioner’s
       attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney,
       Mr. Clifford Shoemaker of Shoemaker, Gentry & Knickelbein.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.5

        IT IS SO ORDERED.


                                                     s/Thomas L. Gowen
                                                     Thomas L. Gowen
                                                     Special Master




5
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).

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