    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                         No. 11-117V
                                      Filed: May 10, 2016

* * * * * * * *                  *   *   *  **           UNPUBLISHED
BEDFORD BOYLSTON,                           *
                                            *            Special Master Gowen
              Petitioner,                   *
                                            *            Attorneys’ Fees and Costs
v.                                          *
                                            *
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
              Respondent.                   *
                                            *
* * * * * * * * * * * * *
Renee J. Gentry, Vaccine Injury Clinic, George Washington University Law School,
Washington, D.C., for petitioner.
Ann D. Martin, United States Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS' FEES AND COSTS1

        On February 25, 2011, Bedford Boylston (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-1 to 34 (2012). Petitioner
alleged that as a result of receiving influenza (“flu”) vaccinations on December 15, 2008, and
September 25, 2009, he suffered encephalitis and/or the significant aggravation of encephalitis.
See Decision, filed Feb. 2, 2016. Further, petitioner alleged that he experienced residual effects
of his injury for more than six months. Id. On February 1, 2016, the parties filed a stipulation
stating that a decision should be entered awarding compensation. A Decision pursuant to the
terms of the parties’ stipulation was issued February 2, 2016.




1
 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).
       On April 11, 2016, petitioner filed an application for attorneys’ fees and costs, requesting
$92,441.35 in attorneys’ fees and costs, and $4,378.03 in petitioner’s costs,2 for a total fees and
costs award of $96,819.38. Petitioner’s (“Pet’r’s”) Application (“App.”) at 1. Respondent filed
a response to petitioner’s application on April 27, 2016, stating:

         Based on a survey of fee awards in similar cases and her experience litigating
         Vaccine Act claims, respondent asserts that a reasonable amount for fees and costs
         in the present case would fall between $62,000.00 to $79,000.00 . . . . Respondent
         therefore respectfully recommends that the special master exercise his discretion
         and determine a reasonable award for attorneys’ fees and costs within that range.

        Resp’s Resp. at 3 (footnote omitted). Petitioner filed a reply on May 9, 2011. This
matter is now ripe for adjudication.

       For the reasons set forth below, the undersigned awards petitioner a total of $74,343.13 in
attorneys’ fees and costs.

    I.   Discussion

        Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(3)(1). In
the present case, petitioner was awarded compensation pursuant to a joint stipulation agreement.
Therefore, petitioner is entitled to an award of reasonable attorneys’ fees and costs.

      a. Reasonable Attorneys’ Fees

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.



2
  Counsel submitted a statement, signed by petitioner, which states that no retainer was paid to counsel,
and that “[a]ny other retainers or expenses incurred by Petitioner in bringing this action are listed in the
attached table.” Pet’r’s App., Att. 1 at 1. Counsel also submitted a list of expenses totaling $18,894.88,
which does not indicate which expenses were incurred by petitioner himself. Pet’r’s App., Att. 1, Ex. 5.
From the receipts submitted, it appears that petitioner paid for the filing fee, economic loss report, and
postage. See generally id. Although this information cumulatively provides the information required by
General Order #9, that order requires that petitioners submit a statement signed by petitioner and counsel
which clearly delineates which costs were borne by counsel and which costs were borne by petitioners,
including the amount of any retainer that has been paid. See General Order #9. In the future, counsel
should consolidate the information into one statement to be in compliance with the letter of General Order
#9.
         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 or Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cl. 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.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 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 (Fed. Cl. 2011).

              i.    Hourly Rates

           Petitioner requests the following hourly rates for the attorneys who worked on this
matter:

                    Peter Meyers:3
                           2011 – $355
                           2012 – $370
                           2013 – $385

                    Clifford Shoemaker:4
                            2014 – $430
                            2015 – $430
                            2016 – $430

                    Renee Gentry:5
                          2014 – $415
                          2015 – $415
                          2016 – $415




3
 Pet’r’s Motion, Att. 1, Ex. 2 at 7. (Attachment 1 contains exhibits labeled 1-5. Some are independently
paginated and others are not. For consistency, the exhibits are therefore all cited by reference to the
CM/ECF-generated pdf pagination).
4
    Pet’r’s Motion, Att. 1, Ex. 3 at 9-12.

5
    Id. at 12-18.
                   SSK:6
                            2015 – $415
                            2016 – $415


                   Law Students:7
                         2011 through 2016 – $150

       The issue of an appropriate hourly forum rates was recently ruled upon by the
undersigned in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). Pursuant to McCulloch, the following ranges of rates are
appropriate depending on an attorneys’ years of experience:

                  $350 to $425 per hour for attorneys with more than 20 years of experience
                  $300 to $375 per hour for attorneys with 11 to 19 years of experience
                  $275 to $350 per hour for attorneys with 8 to 10 years of experience
                  $225 to $300 per hour for attorneys with 4 to 7 years of experience
                  $150 to $225 per hour for attorneys with less than 4 years of experience
                  $145 per hour for law clerks

           McCulloch, 2015 WL 5634323, at *19, *21.

        In addition, Chief Special Master Dorsey recently issued a Decision determining
reasonable hourly forum rates for Mr. Meyers, Mr. Shoemaker, Ms. Gentry, and the law students
in the George Washington Law School Vaccine Injury Clinic. See Miller v. Sec’y of Health &
Human Servs., No. 13-914V (Fed. Cl. Spec. Mstr. Apri. 12, 2016). Petitioner states that the
requested rates are based on McCulloch rates, however, a few of the requested rates are not in
line with the McCulloch rates set forth above and/or the rates awarded in Miller, and will be
adjusted accordingly.

                   Mr. Meyers

         Petitioner requests $355 per hour for work performed by Mr. Meyers in 2011, $370 per
hour for work performed in 2012, and $385 per hour for work performed in 2013. These rates
are consistent with the range of rates approved in McCulloch for attorneys with more than 20
years of experience, and are consistent with the rates awarded to Mr. Meyers in Miller. See
Miller, No. 13-914V (Fed. Cl. Spec. Mstr. Apr. 12, 2016). The undersigned finds the requested
rates reasonable based on Mr. Meyers’ thirty years of legal experience, extensive vaccine
litigation experience, and high quality work in Vaccine Cases. As requested, the undersigned



6
 Id. at 18. The undersigned notes that “SSK” appears to be Sabrina Knickelbein, an attorney at
Shoemaker & Associates. See
http://www.shoemakerassociates.com/index.php?option=com_content&view=article&id=50&Itemid=68.

7
    Pet’r’s Motion, Att. 1, Ex. 4, at 26.
will award Mr. Meyers $355 per hour for work performed in 2011, $370 per hour for work
performed in 2012, and $385 per hour for work performed in 2013.

               Mr. Shoemaker

       Petitioner requests $430 per hour for work performed by Mr. Shoemaker in 2014, 2015,
and 2016. This rate is higher than the 2014 and 2015 rates approved in McCulloch for attorneys
with more than 20 years of experience. In Miller, Mr. Shoemaker was awarded $400 per hour
for work performed in 2014 and $415 per hour for work performed in 2015. The Chief Special
master noted that Mr. Shoemaker has more than 20 years of experience and has been practicing
vaccine litigation since 1978. He has been involved with the Vaccine Injury Clinic at George
Washington University Law School since 2007 and recently became co-director of the clinic. Id.
The undersigned will award Mr. Shoemaker $400 per hour for work performed in 2014,
$415 per hour for work performed in 2015, and $430 per hour for work performed in
2016.8

               Ms. Gentry

       Petitioner requests $415 per hour for work performed by Ms. Gentry in 2014, 2015, and
2016. Ms. Gentry has 20 years of litigation experience, and has practiced vaccine litigation since
2001. Pet’r’s App., Att. 1, Ex. 1, ¶ IC. She has been a co-director of the Vaccine Clinic since
2015. Id. at ¶ IA. In Miller, Ms. Gentry was awarded $375 per hour for work performed in
2014, and $400 per hour for work performed in 2015. These rates reflect the fact that Ms.
Gentry only had 19 years of experience in 2014, and thus her 2014 rate should be determined
based on the McCulloch category of attorneys with 11 to 19 years of experience. Beginning in
2015, Ms. Gentry falls into the category of attorneys with more than 20 years of experience. The
undersigned will award Ms. Gentry $375 per hour for work performed in 2014, $400 per
hour for work performed in 2015, and $415 per hour for work performed in 2016.

               Ms. Knickelbein

       Petitioner requests $415 per hour for work performed by Ms. Knickelbein in 2015 and
2016. Ms. Knickelbein appears to have approximately 14 years of experience.9 Under
McCulloch, she would therefore fall into the category of attorneys with 11 to 19 years of
experience for whom a reasonable 2014-2015 rate is between $300 and $375 per hour. A recent
decision by another special master following McCulloch awarded Ms. Knickelbein a rate of $350
for work performed in 2015. L.A. v. Sec’y of Health & Human Servs., No. 12-629V, 2016 WL
1104860, at *5 (Fed. Cl. Spec. Mstr. Feb. 29 2016). The undersigned will award Ms.


8
 The awarded rate for 2016 is based on an upward adjustment of 3.7% from the 2015 rate. 3.7% is the
yearly adjustment based on attorney fee inflation applied in McCulloch. See McCulloch, 2015 WL
5634323, at *16. The same is true for the 2016 rates awarded to Ms. Gentry and Ms. Knickelbein.

9
  See Ms. Knickelbein’s firm biography at
http://www.shoemakerassociates.com/index.php?option=com content&view=article&id=50&Itemid=68
(stating that she received her J.D. in 2002).
Knickelbein $350 per hour for work performed in 2015 and $365 per hour for work
performed in 2016.

               Law Students

        Petitioner requests an hourly rate of $150 for the law students who worked on this matter.
Although the students are certified under the Rules of the United States Court of Federal Claims,
the students are not licensed to practice law as attorneys and therefore do not fall into the
McCulloch category of attorneys with less than four years of experience. See Pet’r’s App., Att.
1, Ex. 1, ¶IIA. Like the students in the present case, the “law clerks” awarded $145 per hour in
McCulloch were law students who worked at the firm under supervision of the firm attorneys.
McCulloch, 2015 WL 5634323, at *21. The undersigned will compensate law student time at
a rate of $145 per hour.

         ii.   Hours Expended

        Petitioner requests compensation for 30.9 hours of work expended by Mr. Meyers, 17.7
hours expended by Mr. Shoemaker, 42 hours expended by Ms. Gentry, and .7 hours expended by
Ms. Knickelbein. See generally, Pet’r’s App., Att. 1. On review of petitioner’s billing record,
the undersigned finds the number of attorney hours expended reasonable. Petitioner’s fee
application includes an adequate log of the hours expended and dates of services performed on
this case, and the names of the person providing the services. See generally, id. The number of
hours claimed is justified by the complexity of the case, which involved significant issues of fact
and causation, was settled following mediation, and involved an economist and life care planner.
See Pet’r’s Reply at 1-2.

        Petitioner also requests compensation for 274.9 hours of law student time, which the
undersigned finds excessive. Pet’r’s App., Att. 1, Ex. 4 at 26. It appears that there is yearly
turnover of the law students, which requires significant learning and re-learning of the file in
cases such as this one that go on for years. A total of 10 different students worked on this case,
in 5 different teams. See generally, Pet’r’s App., Att. 1, Ex. 4. Indeed, petitioner states that “the
change-over from year to year and thus student-team to student-team did result in a certain
amount of coming up to speed on the part of petitioner’s counsel.” Pet’r’s Reply at 2. Petitioner
asserts that the change-over is accounted for by “the fact that the student-attorneys are effectively
billed at paralegal/clerk rates.” Id. In this case, however, the fact that the students billed 274.9
hours in addition to 91.3 hours billed by licensed and experienced attorneys reflects a primary
purpose of educating students rather than efficiently performing case work. A $145 per hour rate
for law student interns may be reasonable if the students are essentially providing support for
attorneys, such as legal or medical research, with a modest time commitment. But billing 274.9
hours suggests a relearning of the case by multiple teams of students over the five year span of
the case. This type of educational experience is appropriately billed at a substantially lower rate
or substantially reduced hours. The undersigned finds it reasonable to compensate the students
for time spent moving the case forward, such as drafting case documents and corresponding with
or meeting the client. However, a significant amount of time was billed for tasks such as team
meetings with the professors to discuss the case and for reviewing the file. See id. Accordingly,
the undersigned will compensate 137.45 hours of work performed by law students in this
case.

    b. Costs

        Petitioner requests a total of $18,894.88 in costs. Pet’r’s App., Att. 1, Ex. 5. The
requested costs are primarily composed of the costs for obtaining a life care plan, economic loss
report, and mediation services. Upon review, the undersigned finds the requested costs
associated with the litigation of this claim reasonable. Accordingly, as requested, the
undersigned awards $18,894.88 in attorneys’ fees and costs. This amount represents
$14,516.85 in attorneys’ costs and $4,378.03 in petitioner’s costs.

 II.   Conclusion

       The undersigned finds a total attorneys’ fees and costs award of $74,343.13 reasonable.
This amount represents the following:

       Attorneys’ Fees:                                             $55,448.25
              Mr. Meyers: $11,358.00
              Mr. Shoemaker: $7,308.00
              Ms. Gentry: $16,599.50
              Ms. Knickelbein: $252.50
              Law Students: $19,930.25

       Costs:                                                       $18,894.88
                Attorneys’ Costs: $14,516.85
                Petitioner’s Costs: $4,378.03

       Total Fees and Costs:                                        $74,343.13

          Respondent makes a general suggestion that “[b]ased on a survey of fee awards in
similar cases and her experience litigating Vaccine Act claims. . . a reasonable amount for fees
and costs in the present case would fall between $62,000.00 to $79,000.00.” Resp’s Resp. at 3.
In support of this contention, respondent cites Scharfenberger and Jones, cases in which the
special masters awarded $79,213.71 and $62,428.64, respectively. Id. (citing Scharfenberger,
2015 WL 3526559; Jones, 2014 WL 7508006). Respondent describes Scharfenberger as a case
that “settled three years after filing, following a mediation, where petitioner retained an
economist to prepare a lost earnings analysis,” and Jones as a case that “settled following a
mediation” and “included a life care plan.” Id. The undersigned is impressed, however, that the
number of hours expended by counsel in preparing a given case has greater reference to
individual complexities of the case, rather than to general similarities of procedural history or
other general categories of cases. The time records of counsel provide the best evidence of hours
expended. As respondent states, special masters are accorded “wide discretion in determining
the reasonableness of a petitioner’s request for reasonable attorneys’ fees and costs,” and “may
rely on their prior experience in making reasonable fee determinations.” Id. at 2 (internal
quotations omitted). Upon review of the documentation of the requested attorneys’ fees and
costs, and based on his experience with the Vaccine Act and its attorneys, the undersigned finds
a total of $74,343.13 reasonable.

        The undersigned awards attorneys’ fees and costs as follows:

            (1) A lump sum of $69,965.10 in the form of a check payable jointly to petitioner
                and petitioner’s counsel of record, Renee J. Gentry, for attorneys’ fees and
                costs.

            (2) A lump sum of $4,378.03 in the form of a check payable to petitioner, for
                petitioner’s costs.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.10

     IT IS SO ORDERED.

                                                          s/Thomas L. Gowen
                                                          Thomas L. Gowen
                                                          Special Master




10
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
