         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-1670V
                                      (not to be published)



    JENNIFER REED,
                                                             Chief Special Master Corcoran
                        Petitioner,
    v.                                                       Filed: October 31, 2019


    SECRETARY OF HEALTH AND                                  Special Processing Unit               (SPU);
    HUMAN SERVICES,                                          Attorney’s Fees and Costs


                        Respondent.


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEY’S FEES AND COSTS1

        On December 20, 2016, Jennifer Reed (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder
injury related to vaccine administration (“SIRVA”) as a result of a Tetanus Diphtheria
acellular Pertussis (“Tdap”) she received on March 28, 2016. (Petition at 1). On February



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 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, 2019, then-Chief Special Master Dorsey issued a decision awarding compensation to
Petitioner in the amount of $164,931.06. (ECF No. 64).

       Petitioner has now filed a motion for attorney’s fees dated September 3, 2019,
requesting a total award of $90,107.06, consisting of $84,192.50 in fees and $5,794.55
in costs (ECF No. 68) and $120.01 in out-of-pocket expenses incurred by Petitioner as
stated in the signed General Order #9 (Id. at 2). Respondent reacted to the motion on
September 4, 2019, indicating he is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case and defers to the Court’s discretion to
determine a reasonable award of attorneys’ fees and costs in this case. (ECF No. 69).
Petitioner filed a reply on September 5, 2019 in which she requests the Court grant all
requested fees and costs in her application. (ECF No. 70).

      For the reasons set forth below, I hereby GRANT Petitioner’s motion in part,
awarding final attorney’s fees in the amount of $80,620.23.

                                        ANALYSIS

        The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). 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 his experience and judgment, [is] reasonable for
the work done.” Saxton at 1521-22. Furthermore, the special master may reduce a fee
request sua sponte, apart from objections raised by respondent and without providing a
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 (2011).

       The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees and
costs sought] at the time of the submission.” (Id. at 484 n.1). Petitioner’s counsel “should
make a good faith effort to exclude from a fee request hours that are excessive,
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redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.

                                        ATTORNEY FEES

       Petitioner requests fees in the amount of $84,192.50. This includes time billed by
both attorney Leah Durant and attorney Mike Milmoe to attend and participate in a hearing
that took place in Boston, Massachusetts in August 2018 before then-Chief Special
Master Dorsey. In the affidavit filed with Petitioner’s motion for attorney’s fees, Mr. Milmoe
states that this hearing was the “first Vaccine Program surgical SIRVA case ever tried by
this law firm.” (ECF No. 68-3 at 3). Mr. Milmoe also states that it was determined that
although Ms. Durant is the attorney of record “it would be wise for me to serve as lead
counsel.” (Id).

        Petitioner has not established why two very skilled and experienced attorneys were
required to travel for a one-day hearing in a SIRVA case. Either attorney could have
handled the matter alone. Mr. Milmoe also states in his affidavit that they prepared
different witnesses for trial and this “prevented duplication of effort and prevented
redundancy between the tasks performed by each attorney.” Id. Upon review of the time
sheets, however, it appears that Ms. Durant and Mr. Milmoe billed duplicate time for
attending the hearing, preparing Petitioner for hearing, reviewing evidence as well as
travel to and from the hearing.3

       However, the rates requested for Ms. Durant and Mr. Milmoe’s time are reasonable
and in accordance with what has been awarded to them on the past. Based on my
experience in reviewing requests for attorney’s fees, the overall amount requested is
extraordinarily high, even considering that a hearing was held. I find a reduction of the
overall request for attorneys’ fees by 10 percent to be appropriate. This results in a
reduction of $8,419.25.

                                       ATTORNEY COSTS

       Petitioner requests reimbursement for attorney costs in the amount of $5,794.55
which include costs for medical records, filing fees, travel, and hearing transcripts. (ECF

3 These examples include: August 21, 2018 (3 hrs) “Evaluate evidence. Participate in meetings with
petitioner and fact witnesses. Prepare witnesses for hearing.”, August 22, 2018 (3 hrs) “Review witness
statements. Review of all charts, notes and medical records. Review of all Exhibits. Review medical
chronology and medical consultant report. Prepare for fact hearing.”, August 23, 2018 (4 hrs) “Review
medical chronology. Prepare and participate in Damages Hearing.” (ECF No 68-1 at 14 – 15).

                                                  3
No. 68-2). I find most of the costs to be reasonable, but, the cost for airfare and hotel to
attend the damages hearing held on August 23, 2018, are excessive. Both attended and
participated in the hearing. Ms. Durant submitted reimbursement for two first-class airline
tickets from Washington, D.C to Boston, Massachusetts for the damages hearing. (Id. at
11). It is well established that the Vaccine Program does not compensate for upgraded
methods of travel such as first-class airfare. Kreten v. Sec'y of Health & Human Servs.,
No. 15-504V, 2018 WL 6819553 (Fed. Cl. Spec. Mstr. Nov. 30, 2018); Sharpe v. Sec'y of
Health & Human Servs., No. 14-065V, 2018 WL 3990867 (Fed. Cl. Spec. Mstr. July 6,
2018); McCulloch, 2015 WL 5634323.

          However, I will make an exception regarding the airline ticket for Mr. Milmoe. In
an affidavit, Mr. Milmoe explains that he has a medical condition which requires that he
fly in a larger seat. (ECF No. 68-3 at 4). In support of his claim, Mr. Milmoe filed a letter
from his physician who diagnosed his condition. (Id. at 5 – 6). Regarding the first-class
airfare for Ms. Durant, there is no reasoning to support her purchase of a first-class ticket,
but Mr. Milmoe’s has been substantiated. I will reduce the request for attorney costs by
$406.39, the cost for Ms. Durant’s first-class ticket.4

         Petitioner also requests reimbursement for a hotel stay at Boston’s Park Plaza
Hotel for her attorneys from August 21 – 24, 2018, for a total of $1,509.03. (ECF No. 71-
1 at 22). This total includes nightly hotel charges, tax, and room service charges. Neither
Petitioner’s motion or the affidavit filed by Mr. Milmoe however, provide an explanation
for aspect of these costs and it is unclear to me why counsel arrived on August 21, two
full days before the hearing. The billing records show that three hours of time were billed
on both August 21 and 22, and the minimal hours billed do not justify the need to arrive
two days prior to the hearing incurring such a large expense for the hotel. I find the overall
bill for the hotel stay excessive, and the request for costs incurred on August 21, 2018 is
denied. Petitioner’s request for attorneys’ costs is reduced by $661.19.5




4
 Ms. Durant has previously had her request for attorney costs reduced for purchasing first class airfare.
Kreten, 2018 WL 6819553 *3.

5 This amount includes $521.55 room charge, $75.36 room tax, $44.28 room service dinner, $17.47 facility
fee, $1.35 facility fee state tax, $1.18 facility fee city tax for a total of $661.19.

                                                   4
                                            CONCLUSION

       Accordingly, I GRANT IN PART Petitioner’s motion for attorney fees and costs and
award the total of $80,620.236 representing $80,500.22 in fees and costs, in the form of
a check jointly payable to Petitioner and her counsel Leah VaSahnja Durant, and a lump
sum of $120.01 representing reimbursement for Petitioner’s out of pocket costs in the
form of a check payable to Petitioner.

        The clerk of the court shall enter judgment in accordance herewith.7

IT IS SO ORDERED.

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




6This 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” as well as fees for legal services rendered.
Furthermore, § 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).

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