    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                  Filed: March 25, 2019

* * * * * * * * * * * * *  *
LARRY THOMPSON,            *
                           *
     Petitioner,           *                         No. 17-326V
                           *                         Special Master Oler
v.                         *
                           *                         Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Lawrence G. Michel, Kennedy, Berkley, et al., Salina, KS, for Petitioner.
Amy P. Kokot, United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On March 9, 2017, Larry Thompson (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that he suffered idiopathic thrombocytopenia purpura (“ITP”) as a result
of receiving the diphtheria tetanus acellular pertussis (“DTaP”) vaccine on April 18, 2016. See
Petition, ECF No. 1, at 1. On October 25, 2018, petitioner filed a motion for a decision dismissing
his petition. ECF No. 27. On November 2, 2018, the undersigned issued her Decision dismissing
the petitioner for insufficient proof. ECF No. 28.

         On December 13, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF

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 Because this unpublished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
    National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
No. 31 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$12,628.08, representing $8,848.00 in attorneys’ fees, $3,780.08 in attorneys’ costs. Fees App at
2. Pursuant to General Order No. 9, Petitioner has indicated that he has not personally incurred
any costs in pursuit of this litigation. Fees App. Ex. D. Respondent responded to the motion on
December 16, 2018, indicating that “Respondent is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case” and requesting that the undersigned
“exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s
Resp. at 2-3. ECF No. 32. Petitioner did not file a reply thereafter.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

         The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although petitioner
was not successful in pursuing his claim, the undersigned finds that both elements have been met.
First, the undersigned does not doubt that petitioner brought his claim in a good-faith belief that
his vaccination played a causal role in his injury. Additionally, the claim possessed sufficient
objective support to meet the second half of the reasonable basis test, and Respondent has not
challenged the reasonable basis of the claim. Accordingly, a final award of attorneys’ fees and
costs is proper.

        It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.

       a. Reasonable Hourly Rates

        Petitioner requests that his attorney, Mr. Lawrence Michel, be compensated at $300.00 per
hour for all work performed in this case from 2016 to 2018. Fees App. at 2. However, this exceeds
what has previously been awarded to Mr. Michel for work performed in 2016-2017. See Zahringer
v. Sec’y of Health & Human Servs., No. 15-1057V, 2017 WL 1435884 (Fed. Cl. Spec. Mstr. Mar.
30, 2017). In Zahringer, the presiding special master noted that she had discussed with Mr. Michel


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what would be required if he sought forum rates, after which he advised that he would accept
compensation at $260.00 per hour for his work from 2015-2017, a rate which he had previously
been awarded. Id. at *2. Accordingly, the undersigned will also compensate Mr. Michel at $260.00
per hour for his work in this case in 2016 and 2017.

        The undersigned will now turn to establishing a reasonable rate for Mr. Michel’s work in
2018. Although the undersigned does not doubt that an increase from his 2017 rate is reasonable,
awarding the requested rate of $300.00 per hour is excessive. Here, petitioner does not request
compensation at forum rates for Mr. Michel (nor has petitioner submitted evidence which would
permit the undersigned to make a reasoned determination as to whether Mr. Michel’s locale of
Salina, Kansas would bear similar rates as the forum of Washington, DC).

       Special masters have traditionally turned to Producer Price Index for the Office of Lawyers
(“PPI-OL”) when determining an appropriate increase in yearly rate.3 See, e.g., Hubbell v. Sec’y
of Health & Human Servs., No. 17-272V, 2019 WL 978815, at *2 (Fed. Cl. Spec. Mstr. Jan 17,
2019); Pember v. Sec’y of Health & Human Servs., No. 15-1005V, 2018 WL 3989514, at *1 n.2
(Fed. Cl. Spec. Mstr. Jun. 28, 2018); Hanson v. Sec’y of Health & Human Servs., No. 16-977V,
2018 WL 2772519, at *2 (Fed. Cl. Spec. Mstr. Mar. 9, 2018).

         Based upon Mr. Michel’s 2017 rate of $260.00 per hour, his increase for 2018 based on
the PPI-OL (rounded up to the nearest dollar) would result in a rate of $269.00 per hour.
Nonetheless, given Mr. Michel’s overall legal experience and continuing accrual of relevant
vaccine litigation experience, and the fact that his rate has remained unchanged since 2015, the
undersigned will award Mr. Michel a rate of $275.00 per hour for 2018, which is a more reasonable
rate in the undersigned’s experience. Accordingly, applying the aforementioned rates to the hours
billed in this case results in a reduction of $901.00.4

       b. Reasonable Hours Expended

        Petitioner requests compensation for 40.2 total hours billed by Mr. Michel and a legal
assistant. Fees App. Ex. A. Petitioner has submitted adequate billing logs listing the date, amount
of time, individual, and the nature of each task. The undersigned has reviewed the billing records
and does not find any entries to be objectionable, and Respondent has not objected to any particular
entry either. Accordingly, the undersigned finds the hours expended on this matter to be
reasonable. Petitioner is therefore entitled to a final award of attorneys’ fees in the amount of
$7,947.00.

       c. Attorneys’ Costs
3
  The PPI-OL index is provided by the Department of Labor, Bureau of Labor Statistics, and has
widely been adopted by special masters for the purposes of increasing yearly rates for practicing
attorneys in the Vaccine Program.
4
  The billing records indicate that Mr. Michel billed 25.6 hours in this case, of which 17.4 were
billed in 2016-2017, and 8.2 in 2018. Fees App. Ex. A. Applying the rate of $260.00 per hour to
the 2016-2017 hours results in a reduction of $696.00 and applying the rate of $275.00 per hour to
the 2018 hours results in a reduction of $205.00.
                                                 3
        Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $3,780.08 in attorneys’ costs. This amount consists of acquiring medical records, the
Court’s filing fee, and the work of an expert, Dr. Brian Geisbrecht. Petitioner has provided
adequate documentation of all these expenses and all are reasonable in the undersigned’s
experience.5 Accordingly, the requested costs shall be awarded in full.

II.      Conclusion

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate petitioner and his counsel as follows:

    Attorneys’ Fees Requested                                         $8,848.00
    (Reduction to Total Hours)                                       - ($901.00)
    Total Attorneys’ Fees Awarded                                     $7,947.00

    Attorneys’ Costs Requested                                       $3,780.08
    (Reduction of Costs)                                                 -
    Total Attorneys’ Costs Awarded                                   $3,780.08

    Total Amount Awarded                                             $11,727.08

       Accordingly, the undersigned awards a lump sum in the amount of $11,727.08,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to petitioner and petitioner’s counsel of record, Mr. Lawrence G. Michel.

        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.6

         IT IS SO ORDERED.

                                              s/Katherine E. Oler
                                              Katherine E. Oler
                                              Special Master


5
  Concerning the work done by Dr. Geisbrecht, the undersigned finds the total amount reasonable
in light of the work performed in this particular case. The undersigned is not making a
determination concerning the reasonableness Dr. Geisbrecht’s hourly rate at this time and reserves
the right to examine Dr. Geisbrecht’s compensation in light of the work performed in future cases.
6
  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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