    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                        Filed: July 16, 2020

* * * * * * * * * * * * *  *
ELIZABETH LAMPMAN,         *                                     UNPUBLISHED
                           *
         Petitioner,       *                                     No. 18-1759V
                           *                                     Special Master Gowen
v.                         *
                           *                                     Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner.
Julia M. Collison, United States Department of Justice, Washington, DC, for Respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On March 10, 2020, Elizabeth Lampman (“Petitioner”) filed a motion for attorneys’ fees
and costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 38). For the reasons
discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of
$44,974.29.

    I.        Procedural History

       On November 15, 2018, Petitioner filed a petition in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that as a result of receiving an influenza (“flu”) vaccine
on September 11, 2017, she suffered a shoulder injury related to vaccine administration (“SIRVA”)
and gastroparesis. On November 25, 2019, the parties filed a stipulation, which I adopted as my

1
  I intend 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, I agree that the identified material fits within this definition, I will redact such
material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, I am 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.
decision awarding compensation on the same day. (ECF No. 33).

       On March 10, 2020, Petitioner filed a motion for final attorneys’ fees and costs. Petitioner
requests compensation in the total amount of $48,080.04, representing $39,323.20 in attorneys’
fees and $8,547.19 in costs. Fees App. at 7. Pursuant to General Order No. 9, Petitioner warrants
she has not personally incurred any costs in pursuit of her claim. Fees App. Ex. 3. Respondent
reacted to the fees motion on March 11, 2020, stating that “Respondent is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF
No. 101). Petitioner did not file a reply thereafter.

            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). Here, because Petitioner was awarded
compensation pursuant to a stipulation, she is entitled to a reasonable award of final 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 hourly rates for the work of her counsel at Black
McLaren: for Mr. Michael McLaren, $456.00 per hour for work performed in 2018 and $464.00
per hour for work performed in 2019; for Mr. William Cochran, Jr., $377.00 per hour for work
performed in 2018 and $391.00 per hour for work performed in 2019; and for Mr. Chris Webb,
$326.00 per hour for work performed in 2018, $338.00 per hour for work performed in 2019, and
$351.00 per hour for work performed in 2020. Fees App. at 8. Mr. McLaren’s 2018 rate exceeds
the maximum amount prescribed by the OSM Fee Schedule for 2018, and shall therefore be
reduced to $455.00 per hour, resulting in a reduction of $1.00.3 The rest of the requested rates are
reasonable and consistent with what counsel has previously been awarded for Vaccine Program
work.

        Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter require reduction. There are several minor issues throughout the billing records,
such as paralegals billing time for handling the payment of records and duplicative time billed by
attorneys and paralegals in reviewing case filings. These issues have previously been noted in other
3
    The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.

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cases awarding fees to Black, McLaren attorneys. See, e.g., Montgomery v. Sec’y of Health &
Human Servs., No. 15-1037V, 2020 WL 2510442, at *4 (Fed. Cl. Spec. Mstr. Apr. 29, 2020).
However, because these issues are relatively minor in the instant case compared to other cases
such as Montgomery, the undersigned shall reduce the final award of attorneys’ fees by $1,000.00
to account these issues. Accordingly, Petitioner is awarded final attorneys’ fees of $38,322.20.

               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 $8,547.19. This amount is comprised of acquiring medical
records, postage, the Court’s filing fee, travel costs associated with a client meeting, and expert
work performed by Dr. M. Eric Gershwin. Among the travel costs is a charge of $1,895.10 for first
class airfare. Fees App. Ex. 2 at 41.

        Counsel in this case has been repeatedly warned not to bill the Vaccine Program for first
class travel but continues to do so. See, e.g., Spivey v. Sec’y of Health & Human Servs., No. 18-
0959V, 2019 WL 7580151 (Fed. Cl. Spec. Mstr. Dec. 12, 2019); Lepper v. Sec’y of Health &
Human Servs., No. 18-0984V, 2019 WL 7580152 (Fed. Cl. Spec. Mstr. Dec. 12, 2019);
Digerolamo v. Sec’y of Health & Human Servs., No. 16-0920V, 2019 WL 4305792 (Fed. Cl. Spec.
Mstr. Jun. 28, 2019); Wright v. Sec’y of Health & Human Servs., No. 12-0423V, 2018 WL 7051676
(Fed. Cl. Spec. Mstr. Dec. 10, 2018). Counsel has also been previously informed that if first-class
travel costs continued to be submitted for reimbursement, they would be denied in their entirety.
See Robinson v. Sec’y of Health & Human Servs., No. 18-1134V, Slip. Op. 46 (Fed. Cl. Spec.
Mstr. May 8, 2020); Montgomery, 2020 WL 2510442 at *6 n. 6. Accordingly, I will not reimburse
Petitioner for this cost.

      The rest of the requested costs appear reasonable and are supported by adequate
documentation. Petitioner is therefore awarded final attorneys’ costs of $6,652.09.

   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                                          $39,323.20
 (Reduction of Fees)                                               - ($1,001.00)
 Total Attorneys’ Fees Awarded                                      $38,322.20

 Attorneys’ Costs Requested                                          $8,547.19
 (Reduction of Costs)                                              - ($1,895.10)
 Total Attorneys’ Costs Awarded                                      $6,652.09

 Total Attorneys’ Fees and Costs                                    $44,974.29


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       Accordingly, I award a lump sum in the amount of $44,974.29, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and her attorney, Mr. Michael McLaren.4

        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




4
  This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
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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