In the United States Court of Federal Claims
                          OFFICE OF SPECIAL MASTERS

**********************
MARI BOURCHE,                        *
As Personal Representative of the    *      No. 15-232V
Estate of JOSEPH BOURCHE,            *      Special Master Christian J. Moran
                                     *
                  Petitioner,        *      Filed: May 11, 2017
                                     *
v.                                   *      Attorneys’ fees; interim award
                                     *      appropriate; inflation rate;
SECRETARY OF HEALTH                  *      reasonable cost for expert
AND HUMAN SERVICES,                  *
                                     *
                  Respondent.        *
**********************
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Sarah C. Duncan, United States Dep’t of Justice, Washington, DC, for respondent.

                     PUBLISHED DECISION AWARDING
                  INTERIM ATTORNEYS’ FEES AND COSTS1

      In a petition filed on March 6, 2015, Joseph Bourche alleged that a dose of
the hepatitis B vaccination harmed him. Mr. Bourche sought compensation from
the National Childhood Vaccine Injury Compensation Program, found at 42 U.S.C.
§ 300aa−10 through 34 (2012).

       While the question of whether the vaccination harmed Mr. Bourche remains
pending, the petitioner filed a renewed motion requesting an award of attorneys’
fees and costs on an interim basis. Pet’r’s Renewed Fee Appl’n, filed Jan. 31,



       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
2017. The Secretary filed a weak response, deferring to the special master’s
discretion as to the appropriateness of an interim award and to the amount of any
interim award. Resp’t’s Resp., filed Feb. 17, 2017. For the reasons explained
below, the petitioner is awarded $99,934.45.

                       I.   Brief Factual and Procedural History

       In early 2014, Mr. Bourche was 55 years old and owned an automobile
repair shop. Exhibit 1 (affidavit of Mr. Bourche).2 He had suffered from kidney
disease and, by 2014, was receiving hemodialysis. Mr. Bourche also suffered from
cardiomyopathy and advanced congestive heart failure. The implantation of a
pacemaker in October 2013 had improved Mr. Bourche’s cardiac symptoms.
       On April 23, 2014, Mr. Bourche received the hepatitis B vaccine. In his
affidavit, Mr. Bourche asserted that on the day of the vaccination, he became very
itchy all over his body. Following the vaccination, Mr. Bourche developed blisters
in his mouth for which he was treated in a hospital.

       According to timesheets submitted by Mr. Bourche’s attorney, Andrew
Downing, Mr. Bourche first contacted Mr. Downing on August 26, 2014. 3 Mr.
Downing’s office collected medical records, drafted an affidavit, and prepared a
petition, which the Clerk’s Office filed on March 6, 2015. The petition was filed
317 days after vaccination. On behalf of Mr. Bourche, Mr. Downing filed medical
records.

      On June 25, 2015, the Secretary filed her report in which she assessed those
records. The Secretary’s opinion was that Mr. Bourche had not established that the
hepatitis B vaccination harmed him. The Secretary noted that Mr. Bourche had not
submitted an expert report supporting his allegations.



       2
         Mr. Bourche’s affidavit is consistent with the medical records created
contemporaneously with the events they describe. Because of the affidavit’s succinctness, and
because the outcome of the pending motion does not depend upon any details of Mr. Bourche’s
medical history, this decision cites primarily to Mr. Bourche’s affidavit.
       3
         The timesheets are found as exhibit A to the petitioner’s January 31, 2017 renewed fee
application.
                                               2
      Mr. Downing engaged a rheumatologist, Thomas Zizic, to assist with Mr.
Bourche’s claim on July 13, 2015. Timesheets at 50. Dr. Zizic reviewed Mr.
Bourche’s medical records, read medical articles, and drafted a report. Dr. Zizic’s
invoice shows that he spent 119.5 hours in this process. Timesheets at 54-57. Mr.
Bourche filed Dr. Zizic’s report as exhibit 15 on October 9, 2015. Dr. Zizic was
ordered to clarify certain aspects of his opinions. Order, issued Oct. 19, 2015.

       While Dr. Zizic was preparing his first supplemental report, Mr. Bourche
filed a motion requesting an award of attorneys’ fees and costs on an interim basis.
Mr. Bourche sought compensation for Mr. Downing’s work, work other people in
Mr. Downing’s law firm performed, and for Dr. Zizic’s work. Mr. Bourche argued
that he was eligible for an award of attorneys’ fees and costs on an interim basis
because he satisfied the factors listed in Avera v. Sec’y of Health & Human Servs.,
515 F.3d 1343, 1352 (Fed. Cir. 2008). Pet’r’s Fee Appl’n, filed November 13,
2015, at 4.

      The Secretary opposed the request for an award on an interim basis because
Mr. Bourche did not meet the Avera factors. The Secretary also argued that the
amount sought in attorneys’ fees and costs was excessive. Resp’t’s Resp., filed
Dec. 3, 2015.

       Mr. Bourche filed a reply addressing the Secretary’s arguments. Mr.
Bourche maintained that an interim award remained appropriate. Mr. Bourche also
generally defended the amounts the different people had requested as reasonable.
Pet’r’s Reply, filed Dec. 14, 2015.

       A June 3, 2016 decision denied the November 13, 2015 motion for an award
of attorneys’ fees and costs on an interim basis. This decision found that the
petitioner did not meet the circumstances favoring an interim award in that the case
had not been pending for a lengthy time. 2016 WL 3545769.

       Apart from the activity concerning the motion for an award of attorneys’
fees and costs on an interim basis, the case continued to develop. Mr. Bourche
filed the first supplemental report from Dr. Zizic. Exhibit 44.

        Unfortunately, Mr. Bourche died on January 16, 2016, due to complications
of his congestive heart failure. Exhibit 45 (death certificate). The representative of
his estate, Mari Bourche, continued the litigation. Ms. Bourche filed an amended

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petition on June 14, 2016, alleging that the hepatitis B vaccination contributed to
Mr. Bourche’s death. She supported this allegation with another report from Dr.
Zizic. Exhibit 48. She also presented a report from one of Mr. Bourche’s treating
doctors. Exhibit 52.

      The Secretary responded to the petitioner’s presentation of several reports
with a report from the expert he retained, Mehrdad Matloubian. Exhibit A. Dr.
Matloubian concluded that Mr. Bourche’s development of IgA mediated vasculitis
was not due to the hepatitis B vaccine Mr. Bourche received and that Mr.
Bourche’s death was due to progressive heart failure. Exhibit A at 17.

       On January 30, 2017, the petitioner addressed Dr. Matloubian’s opinion with
another report from Dr. Zizic. Exhibit 53. On the following day, the petitioner
filed a renewed motion for an award of attorneys’ fees and costs on an interim
basis. This January 31, 2017 motion is ready for adjudication.

                                       Analysis

       Broadly speaking, resolving the pending motion for an award of attorneys’
fees and costs on an interim basis requires consideration of three issues. The first
is whether the petitioner is eligible for attorneys’ fees and costs. If the petitioner is
eligible, then the second issue is whether the petitioner should receive any
attorneys’ fees and costs at this time. The third question is, assuming that some
award is appropriate, what constitutes a reasonable amount in this case.

I.    Whether the Petitioner’s Case Satisfies the Requirements for an Award
      of Attorneys’ Fees and Costs

      Petitioners who have not yet been awarded compensation are eligible for an
award of attorneys’ fees and costs when “the petition was brought in good faith
and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa—15(e)(1).
Here, the reports from Dr. Zizic satisfy the reasonable basis standard. In addition,
Mr. Bourche brought his petition in good faith.

II.   Whether the Petitioner Should be Awarded Attorneys’ Fees and Costs
      on an Interim Basis as a Matter of Discretion
      After a finding of good faith and reasonable basis, the special master may
exercise discretion in awarding attorneys’ fees and costs on an interim basis. Rehn
                                          4
v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 91 (2016) (citing Cloer v.
Sec’y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012) (en banc),
aff’d, 133 S.Ct. 1886 (2012)); Friedman v. Sec’y of Health & Human Servs., 94
Fed. Cl. 323, 334 (2010) (ruling that special master acted within discretion in
denying an award of attorneys’ fees and costs on an interim basis). The Federal
Circuit identified some factors for a special master to consider before awarding
attorneys’ fees and costs on an interim basis. These include: “protracted
proceedings,” “costly experts,” and “undue hardship.” Avera, 515 F.3d at 1352.
This list is illustrative, not exhaustive.

       In the renewed motion, the petitioner has established that an award of
attorneys’ fees and costs on an interim basis is appropriate. After June 3, 2016, the
date the initial motion for an award of attorneys’ fees and costs on an interim basis
was denied, the case has changed. The most obvious change is that more time has
passed. As of the date of this decision, the case has been pending for more than
two years. The duration of this case will lengthen. The hearing is not scheduled
until April 23, 2018, approximately one year from now. This hearing appears
likely to happen as the Secretary has determined that settlement discussions are not
appropriate at this time. Resp’t’s Status Rep., filed April 10, 2017.

       In addition, after filing the November 13, 2015 motion for an award of
attorneys’ fees and costs on an interim basis, the petitioner’s attorney (Mr.
Downing) and the petitioner’s expert (Dr. Zizic) have incurred additional fees.
Thus, the amount of money already incurred is sufficient to justify an award on an
interim basis.

III.     What is a Reasonable Amount of Attorneys’ Fees and Costs

         The final issue is quantifying a reasonable amount for attorneys’ fees and
costs.

         A.    Attorneys’ Fees

       The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … 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)).
                                          5
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, the
lodestar yields a reasonable amount of attorneys’ fees. Thus, the analysis below
centers on the two components of the lodestar formula — a reasonable hourly rate
and a reasonable number of hours.

            1.     Reasonable Hourly Rates
      The petitioner seeks attorneys’ fees for work five professionals performed.
These are Mr. Downing, an associate attorney Justin N. Redman, attorney
Courtney Van Cott, paralegal Robert W. Cain, and paralegal Danielle P. Avery.
The majority of the requested fees derive from Mr. Downing’s work.

       Mr. Downing has charged two different rates. From the inception of the
case in 2014 through the end of 2016, Mr. Downing has charged $350 per hour.
For his work starting in 2017, Mr. Downing has charged $375 per hour.

      Despite objection from the Secretary, Mr. Downing’s rate of $350 per hour
for work performed through 2016 has been accepted. See Abbott v. Secʼy of
Health & Human Servs., No. 14-907V, 2016 WL 4151689, at *5 (Fed. Cl. Spec.
Mstr. July 15, 2016). This rate remains reasonable.

        The 2016 rate of $350 per hour serves as a foundation for examining the
proposal to raise Mr. Downing’s rate to $375 per hour, which is an increase of
approximately 7 percent. Some of the increase can be attributed to inflation. The
undersigned has determined that an index useful in increasing an attorney’s hourly
rate is the database the Department of Labor, Bureau of Labor Statistics maintains
as the Producer Price Index. Within the PPI, the relevant category is Office of
Lawyers, generally. See Williams v. Johnson, 174 F. Supp. 3d 336, 343 (D.D.C.
2016) (using PPI-OL to inflate Laffey matrix). For 2016, the rate of increase
(September over September) is 2.25 percent. Thus, by simple math, a reasonable
hourly rate for Mr. Downing’s work in 2017 is $357.88.

       In addition to inflation, Mr. Downing’s experience has increased and this
increased experience should translate into increased efficiency. Previously, Mr.
Downing fit into the group of attorneys with between 11 and 19 years of
experience. With the passage of time, Mr. Downing has now advanced to the
group of attorneys with between 20 and 30 years of experience. The hourly range
for these attorneys in 2017 is between $358 and $424 per hour. Under these
                                          6
circumstances, a reasonable hourly rate for Mr. Downing is $365 per hour, an
amount that anticipates that Mr. Downing’s hourly rate will continue to increase as
Mr. Downing moves to the top (30 years of experience) of this range. Because the
petitioner’s January 31, 2017 renewed motion for attorneys’ fees includes only a
small number of 2017 hours for Mr. Downing, the resulting adjustment in
attorneys’ fees is small.4

      The hourly rates for the remaining people are relatively routine. The
Secretary did not object to compensating the associate attorneys at a rate of $195
per hour and the Secretary did not object to compensating the paralegals at a rate of
$100 per hour. Resp’t’s Resp., filed Dec. 3, 2015, at 12 n.10. These rates are
reasonable.

                 2.     Number of Hours
      The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In
responding to the first motion for an interim award of attorneys’ fees and costs, the
Secretary directly challenged some of the requested hours as unreasonable.
Resp’t’s Resp., filed Dec. 3, 2015, at 17-19. The petitioner provided an answer to
some of these challenges. See Pet’r’s Reply, filed Dec. 14, 2015, at 16-17.

      The petitioner has satisfactorily explained why the time Mr. Downing
charged for communicating with Dr. Zizic does not match the time Dr. Zizic has
charged for communicating with Mr. Downing. An attorney often will spend time
preparing for conferences and will spend time memorializing the events in the
conference. In addition, an attorney may be more conscientious than a doctor
about recording time.

       However, the petitioner did not respond to the Secretary’s challenge that the
time spent in correcting a defective filing was inappropriately billed. The
petitioner also did not respond to the Secretary’s challenge that an unreasonable
amount of time was spent obtaining missing medical records. Thus, adjustments
are required for these activities.


      4
           Mr. Downing, however, is expected to adjust future invoices to reflect an hourly rate of
$365.00.
                                                  7
       Another disputed task is the time Mr. Downing spent preparing the
November 13, 2015 fee application. In the Secretary’s view, much of Mr.
Downing’s work duplicated work performed in other cases. The undersigned has
compared the November 13, 2015 fee application with a previous application and
confirmed that much of the content is duplicated. The petitioner acknowledges the
overlap but points out that the applications are not identical in that Mr. Downing
has conformed some aspects to the particular facts of Mr. Bourche’s case, such as
defending Dr. Zizic’s proposed rates. The undersigned finds that the time Mr.
Downing has charged in the present case, which is less than the time spent in the
earlier fee applications, within the zone of reasonableness. The time might be on
the high side but still within the reasonable range. Thus, no adjustment is needed.
      Finally, there is a question about delegation of work. Tasks “that a paralegal
can accomplish should be billed at a paralegal’s hourly rate.” Riggins v. Sec’y of
Health & Human Servs., 99-382V, 2009 WL 3319818, at *25 (Fed. Cl. Spec. Mstr.
June 15, 2009), mot. for rev. denied (slip. op. Dec. 10, 2009), aff’d, 406 F. Appx.
479 (Fed. Cir. 2011). Here, both Mr. Downing and Mr. Redman occasionally
performed work that paralegals could have performed less expensively.
       Overall, the timesheets from Mr. Downing and people from his law firm are
sufficiently detailed that the activity can be assessed for its reasonableness. In only
a handful of instances, the attorney or paralegal spent an excessive or unreasonable
amount of time on a given task. Consequently, to achieve “rough justice,”
$1,000.00 is deducted. Therefore, the petitioner is awarded $46,207.50 in
attorneys’ fees.
       B.     Attorneys’ Costs

       In addition to seeking an award of attorneys’ fees, the petitioner seeks an
award for her attorneys’ costs, totaling $59,068.95. The most expensive item is the
fee for Dr. Zizic’s services, which is discussed below. Other than Dr. Zizic, the
costs for routine items, such as medical records and mailing, total $5,648.95.
These items are adequately documented and are awarded in full.5


       5
         Although the petitioner is receiving complete reimbursement for the quotidian items,
the undersigned is concerned about the reasonableness of some expenses. First, Mr. Downing’s
firm has incurred more than $1,000 in photocopying charges. Presumably, Mr. Downing copied



                                              8
      The last item is the most contentious item — the reasonable compensation
for Dr. Zizic’s work. He has requested a total of $53,420.00.
       Reasonable expert fees are also determined using the lodestar method in
which a reasonable hourly rate is multiplied by a reasonable number of hours. See
Chevalier v. Sec’y of Health & Human Servs., No. 15-001V, 2017 WL 490426, at
*3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017). Throughout the litigation, Dr. Zizic billed
at a rate of $400 per hour. His first invoice is for 119.5 hours. This time includes
time spent reviewing Mr. Bourche’s medical records, reading medical literature,
and drafting his initial report. Dr. Zizic’s work on his rebuttal report is listed on
Dr. Zizic’s second invoice, which is for 14.05 hours.

       Dr. Zizic requested an hourly rate of $400. He has previously been awarded
this rate based upon his expertise. See Hales v Sec’y of Health & Human Servs.,
No. 14-552V, 2017 WL 1366069, at *2 (Fed. Cl. Spec. Mstr. Mar. 9, 2017). It is
reasonable to award him a rate of $400 for his work in this case.

      In support of the number of hours billed, Dr. Zizic submitted two detailed
invoices. These invoices document the date, Dr. Zizic’s activity, and the time
spent on each activity. For example, Dr. Zizic recorded the time he spent reading
each medical article separately.

       In her motion for interim attorneys’ fees and cost, Ms. Bourche addressed
the high number of hours Dr. Zizic recorded and noted that Dr. Zizic read 4,650
pages of medical records over 45.4 hours. Pet’r’s Renewed Fee Appl’n, filed Jan.
31, 2017, at 5. While 45.4 hours of review time appears high, it is reasonable
because Dr. Zizic was reading 102 pages of medical records per hour.

       Dr. Zizic also billed over 60 hours for researching and drafting his first
report. Although Dr. Zizic’s first report is 24 pages long, it contains only four
pages of substantive analysis. Exhibit 15. The majority of the report contains a
detailed chronology without citations to the medical records. Id. Most of the time

all the medical records for Dr. Zizic’s review because the law firm has paid a noticeable amount
to ship materials to Dr. Zizic. Given the ability to scan paper records to a compact disc, less
expensive means are available.
        Second, the law firm has also charged for incoming and outgoing faxes. The operation of
a fax machine is part of a law firm’s general overhead and, therefore, separate costs should not
be charged. However, because the amount of money is de minimis, no adjustment is made.
Nevertheless, Mr. Downing is encouraged to exercise billing judgment in the future.
                                               9
billed for creating the chronology should have been accounted for during Dr.
Zizic’s review of the medical records.

       In the hours allotted to drafting his first report, Dr. Zizic does not identify
which hours, if any, were spent drafting his credentials and experience, which
hours, if any, were spent creating the chronology, and which hours were spent on
the analysis portion of his expert report. It is unclear how many hours were spent
writing the four pages of substantive analysis, but this likely required the majority
of the more than 30 hours Dr. Zizic billed for drafting the first report.

        After the submission of Dr. Zizic’s first report, the undersigned ordered him
to explain his theory connecting the hepatitis B vaccine to the development of
endocarditis and/or leukocytoclastic vasculitis, and the appropriate temporal
interval for a vaccine to cause the injury in a supplemental report. Order, issued
Oct. 19, 2015. Dr. Zizic was also instructed to identify when Mr. Bourche first
manifested leukocytoclastic vasculitis. Id. The need for a supplemental report
illustrates that the first report was lacking crucial information, even though over 30
hours was spent drafting the report.

       Inefficiencies like those above, such as not creating the chronology
contemporaneously and not addressing all requirements in an initial report, are not
consistent with the performance of an expert who charges $400 per hour. The
inefficiencies in Dr. Zizic’s work could be accounted for by reducing Dr. Zizic’s
rate (for example, $350 per hour). The same effect, however, can be achieved by
retaining Dr. Zizic’s standard $400 per hour rate, but adjusting Dr. Zizic’s total
hours to account for the decreased efficiency.

      Therefore, Dr. Zizic’s hours will be reduced by 10 percent to account for
excessive time billed, thus resulting in a 10 percent reduction in his awarded costs.
A reasonable amount of compensation for Dr. Zizic’s work is $48,078.00.

      Ms. Bourche is awarded $53,726.95 in attorneys’ costs.

                                     Conclusion

      The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned GRANTS Ms. Bourche’s motion and awards $46,207.50


                                          10
in attorneys’ fees and $53,726.95 in attorneys’ costs for a total award of
$99,934.45. This shall be paid as follows:

       A lump sum payment of $99,934.45, in the form of a check made
       payable jointly to petitioner and petitioner’s attorney, Andrew D.
       Downing, of Van Cott & Talamante, PLLC, for attorneys’ costs on an
       interim basis available under 42 U.S.C. § 300aa-15(e).

The Clerk shall enter judgment accordingly.6

       IT IS SO ORDERED.

                                                    s/ Christian J. Moran
                                                    Christian J. Moran
                                                    Special Master




       6
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgement by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
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