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

* * * * * * * * * * * * * * * * * * * ** *
WILLIAM R. CHOINIERE,                    *
                                         *         No. 16-1286V
                    Petitioner,          *         Special Master Christian J. Moran
                                         *
v.                                       *         Filed: January 11, 2019
                                         *
SECRETARY OF HEALTH                      *         Attorneys’ fees and costs
AND HUMAN SERVICES,                      *
                                         *
                    Respondent.          *
* * * * * * * * * * * * * * * * * * * ** *
Kate G. Westad, Larkin Hoffman, et al., Ltd., for Petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for
Respondent.
                     UNPUBLISHED DECISION AWARDING
                       ATTORNEYS’ FEES AND COSTS1

      William Choiniere prevailed in his claim brought in the National Childhood
Vaccine Compensation Program. He is now seeking an award for attorneys’ fees
and costs. He is awarded $22,427.10.
                                       *       *      *
       On September 15, 2017, Mr. Choiniere filed for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10–34, for
injuries sustained from an influenza vaccination administered on October 22, 2013.
The parties submitted a joint stipulation that was incorporated by a decision


       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 (https://www.uscfc.uscourts.gov/aggregator/sources/7). The decision will be available to
anyone with access to the internet. 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.


                                               1
awarding petitioner compensation in the amount of $148,000.00. Decision, 2017
WL 4510739 (Sept. 15, 2017).

       Following the entry of judgment, petitioner filed an amended motion2 for an
award of attorneys’ fees and costs. Pet’r’s Am. Mot., filed Apr. 13, 2018.
Petitioner’s counsel, Kate Westad, worked at two law firms during the pendency of
this case, Lommen Abdo P.A. and Larkin Hoffman. The motion seeks a total of
$26,277.10, comprised of $6,705.00 in attorneys’ fees and $4,941.74 in attorneys’
costs for Lommen with $14,206.50 00 in attorneys’ fees and $423.86 in attorneys’
costs for Larkin. Id. at 1-2. In compliance with General Order No. 9, petitioner
stated that he did not incur any costs personally. Gen. Order No. 9 Stat., filed Jan.
10, 2019.

       Respondent then filed a response to petitioner’s motion. Resp’t’s Resp.,
filed May 1, 2018. Respondent stated that he is “satisfied that the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Id at
2. Respondent did not specifically object to the amounts requested by petitioner
and “recommends that the Special Master exercise his discretion.” Id at 3.

       Petitioner did not file a reply to respondent’s response. This matter is now
ripe for adjudication.

                                         *      *       *

       Because Mr. Choiniere received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). An evaluation of
the reasonableness of the requested attorneys’ fees and costs follows.

       I.      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)).
Second, the court may make an upward or downward departure from the initial

       2
         Earlier on the same day, petitioner had filed his original motion for attorneys’ fees and
costs. Petitioner stated that the original motion was missing certain time entries to document the
requested fees. The amended motion contains corrected documentation.


                                                2
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.

       A. Reasonable Hourly Rate

       Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.

      Because the respondent did not object to any of the proposed hourly rates as
unreasonable, the undersigned proceeds to evaluate the hourly rates. McIntosh v.
Secʼy of Health & Human Servs., 139 Fed. Cl. 238 (2018).

        For the Lommen firm, petitioner requests compensation for attorney Kate
Westad and various law clerks.3 For Ms. Westad, petitioner requests the rate of
$275/hour for work done in 2014 and 2015. For the law clerks, petitioner requests
the rate of $125/hour for work done in 2014 and 2015.

      A thorough analysis of Ms. Westad’s rates at the Lommen firm was
conducted in Dahl v. Sec’y of Health & Human Servs., No. 13-98V, 2018 WL
6818741, at *2-4 (Fed. Cl. Spec. Mstr. Nov. 30, 2018). The rate determined in
Dahl for Ms. Westad’s work at the Lommen firm in 2014/2015, $250/hour,
remains reasonable. The law clerk rate determined in Dahl for 2014/15,
$125/hour, also remains reasonable.

      For the Larkin firm, petitioner requests compensation for attorney Kate
Westad, a technical litigation assistant, and a paralegal. For Ms. Westad, petitioner
requests the rate of $350/hour for work done from 2016-2018. During the same



       3
          Based on the hourly rates, the undersigned presumes that the individuals with time
entries other than Ms. Westad, solely identified by their initials (CLH, TL, TLH), are law clerks
or a similar position.


                                                3
time period, petitioner requested $160/hour for the technical litigation assistant and
$125/hour for the paralegal.

       A thorough analysis of Ms. Westad’s rates at the Larkin firm was conducted
in Dahl, 2018 WL 6818741, at *4-6. The rate determined in Dahl for Ms.
Westad’s work at the Lommen firm in 2014/2015, $325/hour, remains reasonable.
The paralegal rate determined in Dahl, $125/hour, also remains reasonable. While
the rate for a technical litigation assistant was not addressed in Dahl, given the de
minimus number of hours requested for this individual (0.4 hours), the undersigned
finds the amount requested to be reasonable.

      B. Reasonable 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).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.

       In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. McIntosh, 139 Fed. Cl. 238.

       Ms. Westad has provided sufficiently detailed descriptions of her time
entries and her staff’s entries to evaluate their reasonableness. For the Lommen
time entries, the undersigned finds the hours to be reasonable and awards them in
full.

       For the Larkin times entries, some of hours entered by Ms. Westad and her
staff were for clerical tasks that are not compensable or were excessively billed,
such as review of routine court filings (notices of assignment and appearance),
electronic filing, and, somewhat curiously, downloading and printing filings from
CM/ECF that petitioner himself had filed. Due to this billing for clerical tasks and
excessive billing, a fees reduction of $800 is appropriate.

      II.    Costs

      Petitioner requests a total of $5,365.60 in attorney’s costs, $4,941.74 for
Lommen and $423.86 for Larkin. The costs include expenses for the filing fee,
medical records, mailings, and expert witness. Respondent has not objected to the
amounts requested for attorneys’ costs. The costs for routine items for both firms,
such as the filing fee, medical records, and postage, are adequately documented
and are awarded in full.

                                          4
       The majority of the attorneys’ costs for Lommen are for an expert review fee
by Praful Kelkar, MD ($4,000.00). Dr. Kelkar’s invoice did not describe any of
the tasks that he performed but merely stated that he worked for five hours at a rate
of $800/hour. Pet’r’s Am. Mot., exhibit B, at pdf 14. Petitioner has not provided
any biographical information regarding Dr. Kelkar, let alone his specialty, to
support his requested rate. A quick internet search4 reveals that Dr. Kelkar
specializes in treating neuromuscular diseases and multiple sclerosis at the
Minneapolis Clinic of Neurology. To bring his hourly rate in line with most other
experts in the Vaccine Program, Dr. Kelkar’s hourly rate was previously reduced
to $400/hour. Miron v. Sec'y of Health & Human Servs., No. 16-762V, 2017 WL
5386607, at *2 (Fed. Cl. Spec. Mstr. Oct. 30, 2017). For this case, the undersigned
finds a rate of $400/hour for Dr. Kelkar to be reasonable. Therefore, a reasonable
cost for Dr. Kelkar is $2,000.

       III.     Conclusion

       The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The undersigned GRANTS the petitioner’s motion and finds $22,427.10
($19,061.50 in fees and $3,365.60 in costs) to be a reasonable amount for all
attorneys’ fees and costs incurred. This shall be paid as follows:

       A lump sum of $9,454.24 in the form of a check made payable to
petitioner and Lommen, Abdo, P.A. for a portion of attorneys’ fees and costs
available under 42 U.S.C. § 300aa-15(e); and

       A lump sum of $12,972.86 in the form of a check made payable to
petitioner and Larkin Hoffman for a portion of attorneys’ fees and costs
available under 42 U.S.C. § 300aa-15(e).

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

       IT IS SO ORDERED.
                                                             s/Christian J. Moran
                                                             Christian J. Moran
                                                             Special Master

       4
           https://minneapolisclinic.com/physicians-providers/praful-kelkar-m-d/.
       5
          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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