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

******************** *
RICHARD T. DAHL, by his legal  *
guardian, CARRIE BARTH, mother *                   No. 13-98V
                               *
                Petitioner,    *                   Special Master Christian J. Moran
                               *
v.                             *                   Filed: November 30, 2018
                               *
SECRETARY OF HEALTH            *                   Attorneys’ fees and costs; attorney
AND HUMAN SERVICES,            *                   hourly rate
                               *
                Respondent.    *
******************** *

Kate G. Westad, Larkin Hoffman, et al. Ltd., Minneapolis, MN, for Petitioner;
Linda S. Renzi, U.S. Dep’t of Justice, Washington, DC, for Respondent.

PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

       Carrie Barth, as mother and legal guardian of Richard T. Dahl, alleged that
an influenza vaccine harmed Mr. Dahl. She received compensation. Decision,
2017 WL 1410779 (Fed. Cl. Spec. Mstr. Mar. 24, 2017).

      Ms. Barth filed a motion for an award of attorneys’ fees and costs. The
Secretary did not interpose any objection to the amount requested. Ms. Barth is
awarded $144,299.92.

                                       *       *      *



       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.
       Originally represented by attorney Sheila Bjorklund, Ms. Barth filed her
petition on February 5, 2013, alleging that an influenza vaccination caused Mr.
Dahl to suffer from Guillain-Barré syndrome.2 In 2013, Ms. Bjorklund was
working at a law firm known as Lommen Abdo P.A., and after Ms. Bjorklund’s
retirement, Ms. Barth’s current counsel of record, Kate Westad, succeeded her.

       Initially, Ms. Barth presented a report from one of Mr. Dahl’s treating
doctors, Susan Evans. Exhibit 21. Later, Dr. Evans withdrew from participating in
the case, and Ms. Barth retained a second expert, Justin Willer, who wrote two
reports. Exhibits 25 and 34. By the time Ms. Barth was retaining Dr. Willer, Ms.
Westad had changed law firms and had begun working at a different law firm,
Larkin Hoffman.

       When the process for submitting expert reports concluded, the parties
proposed dates for a hearing. But, before the hearing, the parties retained an
outside mediator who assisted with reaching a tentative agreement. The process
for going from tentative agreement to stipulation, however, took longer than
typical as the parties needed to investigate to whom a settlement check could be
written. Eventually, the parties submitted a stipulation that was incorporated by a
decision. Decision, 2017 WL 1410779 (March 24, 2017).

       After receiving additional time to file her motion, on January 26, 2018, Ms.
Barth filed a motion for an award of attorneys’ fees and costs. The motion seeks a
total of $163,738.42. Components of this request include:


 Lommen
       Attorneys’ Fees                                  $76,932.50
       Attorneys’ Costs                                 $30,666.01
 Larkin
       Attorneys’ Fees                                  $42,341.00
       Attorneys’ Cost                                   $7,539.13
 Larkin – Conservatorship
       Attorneys’ Fees                                   $4,732.00


      2
        Technically, the original petitioner was Mr. Dahl. However, later events
revealed that this designation was not correct as Ms. Barth was Mr. Dahl’s
guardian when the petition was filed.

                                             2
            Attorneys’ Costs                                  $5.00
     Petitioner’s Costs                                   $1,522.78

       The Secretary filed a response to Ms. Barth’s motion. The Secretary
represented that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed Jan. 31, 2018,
at 2. With respect to amount, the Secretary recommended “that the special master
exercise his discretion” when determining a reasonable award for attorneys’ fees
and costs. Id. at 3.

      After the undersigned began reviewing Ms. Barth’s submissions consistent
with McIntosh v. Secʼy of Health & Human Servs., 139 Fed. Cl. 238 (2018), the
undersigned ordered Ms. Barth to justify the proposed hourly rates. Order, issued
June 25, 2018. Ms. Barth did so on August 22, 2018, by submitting her affidavit
and affidavits from three other attorneys. The Secretary did not address Ms.
Barth’s submission of new material.

         This matter is now ripe for adjudication.

                                     *      *        *

      Because Ms. Barth received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the
unresolved question is what is a reasonable amount of attorneys’ fees and costs?

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
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.


                                                3
      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.

       Thus, under Avera, the determination of an attorney’s hourly rate is a three-
step process. “First, the hourly rate in the attorneys’ local area must be established.
Second, the hourly rate for attorneys in Washington, DC must be established.
Third, these two rates must be compared to determine whether there is a very
significant difference in compensation.” Masias v. Sec’y of Health & Human
Servs., No. 99-697V, 2009 WL 1838979, at *4 (Fed. Cl. Spec. Mstr. June 12,
2009) (citing Avera, 515.3d at 1353 (Rader, J. concurring)), mot. for rev. den’d,
(slip op. Dec. 10, 2009), aff’d, 634 F.3d 1283 (Fed. Cir. 2011), corrected, 2013
WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30, 2013).

      The two firms that represented Ms. Barth are analyzed separately.

             1.     Lommen Abdo
      For Lommen Abdo, Ms. Barth requests compensation for the following
professionals.

                    Person                        Requested Rate      Awarded Rate

 Sheila Bjorklund 2012 through March 2014               $350               $320

        Karen A. Schlotthauer (KAS)                     $300               $275

   Kate Westad from April 2014 through                  $275               $250
                June 2015

    Kate Westad from July 2015 through                  $350               $260
               March 2016



                                              4
    Paralegals (six identified by initials)            $125                $125



Ms. Bjorklund

       Ms. Barth provided relatively little information to justify the proposed rate
($350 per hour) for Ms. Bjorklund’s work performed from 2012 to 2014. Based
upon an affidavit Ms. Bjorklund provided in 2009, a special master previously
determined that $275 per hour was a reasonable hourly rate of compensation for
Ms. Bjorklund’s work performed in 2007. Cedillo v. Sec'y of Health & Human
Servs., No. 98-916V, 2010 WL 4853342, at *5 (Fed. Cl. Nov. 8, 2010). The
inflation calculator from the Bureau of Labor Statistics indicates that $275 in
January 2007 is approximately $320 in June 2013.3 The rate awarded ($320 per
hour) is approximately 86 percent of the rate requested ($350 per hour).

Karen A. Schlotthauer (KAS)4

     To maintain parity with Ms. Bjorklund’s rate, Ms. Schlotthauer will be
compensated at a rate of $275 per hour.

Ms. Westad

       Ms. Westad was admitted to the bar in May 2003. She began working on
cases in the Vaccine Program in 2012. When she started working on this case in
April 2014, she had nearly 11 years of general experience, and two years of
experience specifically in the Vaccine Program.

      For work performed at Lommen Abdo, Ms. Westad seeks compensation at
two different rates. From April 2014 through June 2015, the proposed rate is $275


      3
         The calculator is available at
https://www.bls.gov/data/inflation_calculator.htm
      4
         KAS appears to be Karen A. Schlotthauer (http://www.fmjlaw.com/trusts-
estates-karen-schlotthauer/). Ms. Barth did not submit any evidence in support of
Ms. Schlotthauer’s hourly rate. However, Ms. Schlotthauer performed relatively
few hours. Thus, any changes to Ms. Schlotthauer’s hourly rate are unlikely to
affect the outcome significantly.

                                              5
per hour. From July 2015 through March 2016, however, the proposed rate is $350
per hour. Ms. Westad did not explain why her rate increased by slightly more than
25 percent, an amount that considerably exceeds the rate of inflation.

       To support the proposed rate increase, Ms. Barth cited a few vaccine cases
where Ms. Westad was awarded a $350 per hour rate. Westad’s Aff., filed Aug.
22, 2018, at 4. As noted in the June 25, 2018 order, however, the undersigned does
not find these cases useful in establishing Ms. Westad’s rate. Specifically, these
cases are not useful because in Fontana, No. 16-1290V, the special master found
Ms. Westad’s rate to be reasonable only by citing Rus, No. 12-631V. Rus, in turn,
cited Marsyla, No. 15-1172V, and Larson, No. 15-1077V. Marsyla and Larson did
not analyze Ms. Westad’s hourly rate explicitly. Ms. Barth cited one other vaccine
case, Bakken, No. 16-1283V, but this case did not analyze Ms. Westad’s hourly
rate explicitly either.

       Ms. Barth also cited (but did not provide) a “straight forward underinsured
motorist case” in Minnesota where the plaintiff attorneys were awarded $400 per
hour. Westad Aff., filed. Aug. 22, 2018, at 5-6 (citing Wilbur v. State Farm Mut.
Auto. Ins. Co., 880 N.W.2d 874 (Minn. Ct. App. 2016). While the undersigned
was unable to access the fees decision cited by Ms. Barth, the merits of the Wilbur
case seem complex in that a jury trial was conducted on the personal injury
damages and then a separate bench trial was conducted on a statutory interpretation
question, a matter of first impression, that was ultimately decided by the Minnesota
Supreme Court. Wilbur v. State Farm Mut. Auto. Ins. Co., 892 N.W.2d 521, 523
(Minn. 2017). Suffice to say that the merits of the Wilber case do not appear to be
straight forward and, thus, do not appear to be a good comparative case for vaccine
cases.

       In light of the sparse information Ms. Barth has presented, the undersigned
will attempt to fashion a reasonable rate for Ms. Westad. A foundation is Ms.
Bjorklund’s hourly rate. To maintain rough parity with Ms. Bjorklund, Ms.
Westad’s work from April 2014 through June 2015 will be compensated at $250
per hour.

       For the next period, July 2015 through March 2016, Ms. Westad maintains
that her hourly rate should rise by approximately 25 percent. The inflation
calculator indicates that from April 2014 (the earliest date) to March 2016 (the
latest date) $250 grows to $251.12. This is essentially no change.


                                            6
       Special masters recognize that with the passage of time, an attorney may
increase in experience, and this advanced experience leads to improved efficiency,
and this heightened efficiency warrants a higher hourly rate. Broekelschen v.
Secʼy of Health & Human Servs., 102 Fed. Cl. 719, 733 (2011) (noting that an
experienced attorney who charges a relatively high hourly rate may be expected to
perform some tasks in less time than inexperienced attorneys with lower hourly
rates). However, Ms. Westad’s time entries do not suggest that her efficiency
increased as the amount of time she spent on tasks appears to be toward the high
end of reasonable.5 Without some basis for finding that the passage of time
correlates to more advanced skills from the attorney, there is no reason to raise an
attorney’s hourly rate significantly. Moreover, while Ms. Westad represents her
clients well, her work did not display an exceptional level of skill such that an
improved performance should be presumed. Consequently, the undersigned finds
that a reasonable hourly rate for work Ms. Westad performed from July 2015
through March 2016 is $260 per hour.

Paralegals

        Although the timesheets from Lommen Abdo identify the paralegals by
initial, Ms. Barth did not further provide any information about them. For
example, Ms. Barth did not communicate how many years of experience the
paralegals have.


      5
         Ms. Westad’s time entries do not contain sufficient information to
demonstrate that she worked more efficiently (quickly). For example, on April 24,
2015, the entry indicates that Ms. Westad spent 3.8 hours (nearly a half day) on
this task: “receive and review information from expert; medical literature
research.”
       The brevity of Ms. Westad’s entry raises multiple questions. What material
did the expert send to Ms. Westad? How many pages was this material? How
long did Ms. Westad take to review the material from the expert? What research
did Ms. Westad perform? What sources did Ms. Westad consult? What topic was
Ms. Westad researching? Why was Ms. Westad --- and not the expert ---
performing medical literature research? While, under some circumstances,
attorneys might research medical topics more efficiently than doctors, Ms.
Westad’s invoice does not provide sufficient information to determine that those
circumstances are present here.

                                             7
      The undersigned will extend the benefit of the doubt to Ms. Barth and find,
based upon experience in evaluating requests for attorneys’ fees and costs, that the
proposed rates for the paralegals are reasonable. Nevertheless, counsel is
encouraged to make a more detailed presentation for a special master to assess the
proposed rates with a meaningful amount of review. See Floyd v. Secʼy of Health
& Human Servs., No. 13-556V, 2017 WL 1344623, at *3-4 (Fed. Cl. Spec. Mstr.
Mar. 2, 2017).

       Overall, the reductions to the hourly rates for the attorneys employed at
Lommen Abdo result in a parallel reduction to the overall amount requested in
attorneys’ fees equaling $8,452.60.6

             2.    Larkin Hoffman
                   a)     Step 1: Determining a Reasonable Local Hourly Rate

      Having found a reasonable hourly rate for Ms. Westad’s tenure at Lommen
Abdo, the undersigned next considers what is a reasonable hourly rate for Ms.
Westad’s work at Larkin Hoffman. Ms. Westad changed firms between March and
April 2016.

       Ms. Barth has proposed that Ms. Westad be compensated at the same rate at
both firms – $350 per hour, although the rate Ms. Barth proposes is higher than the
rate the undersigned has found for Lommen Abdo. Retaining the same hourly rate
seems justified as the simple act of changing law firms would not necessarily mean
that the attorney warrants an increased hourly rate. If this logic were followed,
then a reasonable hourly rate for Ms. Westad’s work at Larkin Hoffman would
remain at $260 per hour with some adjustments for inflation.

      However, unlike the situation with the foundational determination of Ms.
Bjorklund’s hourly rate for which Ms. Barth provided no direct support, for Ms.
Westad’s hourly rate at Larkin Hoffman, Ms. Barth submitted some evidence to
support an hourly rate of $350 per hour. Some evidence regarding hourly rates

      6
        Because Ms. Barth did not submit any significant evidence regarding the
reasonableness of proposed hourly rates at Lommen Abdo and because Ms. Barth
did not present any argument that the attorneys at Lommen Abdo are entitled to be
compensated at forum rates, the undersigned declines to conduct the more
complicated Avera analysis. See Vaccine Rule 8(f).

                                             8
previously awarded to Ms. Westad have been addressed above. Other evidence
consists of Ms. Westad’s affidavit plus affidavits from three other attorneys, each
of whom assert that $350 per hour is a reasonable rate of compensation for an
attorney with Ms. Westad’s experience in personal injury law.

       Although somewhat helpful, these affidavits ultimately cannot be accepted
in whole. The affiants state that they represented people who seek compensation
for injuries, and that their usual rate of compensation is a particular dollar per hour.
However, the affiants do not explain how their rate of compensation is determined.
Personal injury attorneys typically represent people on a contingent basis, and the
affidavits do not explain how the hourly rate has been set. The contingent nature
of personal injury litigation may create situations in which one case leads to a large
recovery for the plaintiff with a correspondingly large fee for the attorney. But, on
another case, the attorney may spend many hours on a case in which the attorney
and the plaintiff receive no compensation. In professing what their hourly rate is,
the affiants do not explain the methodology that they used. The discrepancies
between contingent fee billing and hourly billing appears to be one reason a judge
from the Court of Federal Claims rejected personal injury as a suitable comparator
for setting an hourly rate for attorneys in the Vaccine Program. Rupert v. Sec’y of
Health & Human Servs., 55 Fed. Cl. 293, 304-05 (2003).

        Furthermore, the affiants – except for Ms. Westad herself – seem to have
little familiarity with the Vaccine Program. Some experience with the Vaccine
Program would ground the affiant’s opinions as to the reasonableness of proposed
rates. Knowledgeable attorneys would begin their opinions about reasonable rates
with the Federal Circuit’s statement that litigation in the Vaccine Program is not
complex. Rodriguez v. Secʼy of Health & Human Servs., 632 F.3d 1381, 1385
(Fed. Cir. 2011). A primary reason for the relative simplicity of the Vaccine
Program is the role of special masters. Special masters simplify an attorney’s work
in multiple ways. The Office of Special Masters has issued a detailed set of
Guidelines that explain basic procedure for each step in a case in the Vaccine
Program. Unlike judges in traditional litigation, special masters play an
inquisitorial role, assisting the parties in developing their cases. Also, special
masters have accumulated expertise, making presentations to them as finders of
fact less complicated than a presentation to a juror. Other factors that contribute to
the lack of complexity for legal skills include the no-fault nature of the Vaccine
Program in which petitioners are not required to establish negligence, and the lack
of adversarial discovery. The affiants have not indicated that they considered the

                                              9
differences between litigation of traditional personal injury cases and litigation in
the Vaccine Program.7

      However, as suggested previously, the affidavits carry some value. The
affidavits provide some evidentiary basis for increasing Ms. Westad’s hourly rate
to $300 per hour, starting when she changed firms.8 The increase from $260 per
hour to $300 constitutes an increase of slightly more than 15 percent.

       The undersigned recognizes that the findings regarding a reasonable hourly
rate at both Lommen Abdo and Larkin Hoffman are approximations. The need for
estimates derives, initially, from the lack of persuasive evidence concerning the
reasonableness of the proposed rates for the attorneys from Lommen Abdo. The
Secretary’s lack of participation in the process of determining attorneys’ fees is a
problem, too. But, the Secretary is not responsible for gaps in Ms. Barth’s
presentation. The fee applicant bears the burden of producing satisfactory
evidence. Raney v. Federal Bureau of Prisons, 222 F.3d 927, 938 (Fed. Cir. 2000).

      The undersigned further recognizes that the process of estimating could have
produced other reasonable results. For example, a different index for inflation
could have produced a higher or a lower hourly rate. But, the selection of one
reputable index does not make the choice arbitrary. As the Supreme Court has
explained, trial courts do not have to achieve “auditing perfection.” Fox v. Vice,
563 U.S. 836, 838 (2011) (indicating that trial courts may use “rough justice” in
awarding attorneys’ fees).

             3.     Step 2: Determining a Reasonable Hourly Rate for Forum
      Compared to the process of finding a reasonable hourly rate for the location
(Minneapolis), where Ms. Barth’s attorneys practice, the process for finding a
reasonable hourly rate for the forum of this litigation (Washington, DC) has a more




      7
         While the litigation in the Vaccine Program is not as complex as in
traditional litigation, the underlying medicine is complicated.
      8
         The change in firms seems to be a reasonable point of differentiation as the
affiants do not particularly state that their assessment of a reasonable hourly rate
extends to her former firm.

                                             10
firm starting point.9 After the Federal Circuit directed the special masters to
compensate attorneys at rates prevailing in the forum (except for the Davis County
rule, which is discussed below), special masters established reasonable hourly rates
for Vaccine Program work in Washington, D.C. See Masias, 2009 WL 1838979,
at *24–25; Rodriguez v. Secʼy of Health & Human Servs., No. 06-559V, 2009 WL
2568468, at *15 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed.
Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011).

       After these decisions had aged, a special master used them as one factor in
finding updated hourly rates for Washington, D.C. McCulloch v. Secʼy of Health
& Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). McCulloch innovated an approach of grouping attorneys into tiers based
upon years of experience and found reasonable rates for attorneys within particular
tiers. For example, the special master found, in 2015, that an attorney with 11 to
19 years of experience could reasonably charge $300 to $375 per hour. Id. at *19.
Other special masters have followed McCulloch.

       In 2016, Ms. Westad, who was admitted to the bar in 2003, had 13 years of
experience as an attorney and approximately four years of experience in the
Vaccine Program. Thus, a reasonable hourly rate for a Washington, D.C.-based
Vaccine Program attorney with Ms. Westad’s experience and skills is $325 per
hour.10



      9
         The undersigned recognizes that the analysis of forum rate for Larkin
Hoffman is not present in the determination of hourly rates for Lommen Abdo.
Part of the reason for including the forum rate for Larkin Hoffman here stems from
the more robust evidence that Ms. Barth filed. While Ms. Barth did not make any
arguments that Ms. Westad should be compensated at a rate prevailing in the
forum — an omission that could constitute a waiver of this argument, the
undersigned is also aware that Ms. Westad continues to work at Larkin Hoffman.
Thus, this decision may have persuasive value for her work in future cases.
      10
          In requesting $350 per hour, Ms. Westad is implicitly suggesting that her
rate of compensation should be within 10 percent of the upper bound to the range
of attorneys with 11 to 19 years of experience. However, in 2016, Ms. Westad was
much closer in years of experience to the lower bound, and she also did not display
the skills or acumen that suggests she should jump to close to the top of the range.

                                            11
             4.    Step 3: Determining Whether the Rates Are Significantly
             Different
       The final step is comparing Ms. Westad’s local rate for 2016 ($300 per hour)
to a reasonable forum rate for 2016 ($325 per hour). To calculate the difference
between the forum rate and the local rate, special masters have used this formula:

      ((forum rate / local rate) – 1) * 100.

Here, the result of this formula is 8.3 percent.

       Whether a particular difference is “significant” is a matter of discretion for
special masters. Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1356-57
(Fed. Cir. 2011). Neither party presented arguments about the substantiality of a
difference of 8.3 percent. In the absence of informative briefing and in the context
of setting an hourly rate for an attorney pursuant to a fee-shifting statute, the
undersigned finds that 8.3 percent is not a very significant difference.

       Accordingly, for the years beginning in 2016, Ms. Westad is compensated at
a rate prevailing in the forum, which is $325 per hour.11

      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. See McIntosh, 139 Fed. Cl.
238.




      11
         If the forum rate were the rate Ms. Westad proposed ($350 per hour), then
the difference between the forum rate and the local rate would be 16.7 percent.
The undersigned probably would have found this difference to be significant, and
compensated Ms. Westad at her local rate, $300 per hour. So, the finding that Ms.
Westad’s forum rate is $325 per hour actually increases the rate at which Ms.
Westad is compensated.

                                               12
Lommen Abdo

      The entries from the attorneys and paralegal generally describe the activities
with sufficient detail that the reasonableness of the work may be assessed.12 Most,
but not all, activities were reasonable.

      For attorneys, excessive and/or poorly defined entries include: conducting
medical research, and spending one hour in reviewing a single article on diabetic
neuropathies. In addition, attorney Schlotthauer spent most time addressing
guardianship issues, such as preparing a power of attorney. Because Mr. Dahl was
disabled before he was vaccinated, this type of work appears separate from the
work on the petition in the Vaccine Program. Thus, this work is not compensated
here.

      Paralegals sometimes performed work that is secretarial in nature and should
not be billed at all. Examples include: organizing records into binders, updating
indices, preparing compact discs for mailing, creating an exhibit list, preparing
routine notices of filing, and calendaring deadlines.

      In total, approximately $3,000 was excessive, not fully explained, and/or
unreasonable. Thus, this much is reduced from the charges sought by Lommen
Abdo.

Larkin Hoffman

    The entries for professionals at Larkin Hoffman are similar to those from
Lommen Abdo. Again, most, but not all, of the activities are reasonable.

       The tasks for which the billing is not appropriate are primarily clerical duties
for which a paralegal has performed. Examples include filing documents and
printing documents. An estimate to account for these types of improperly billed
activities is $2,000.




      12
         The paralegals sometimes combined requests for medical records from
multiple providers into one entry with a great amount of detail and sometimes the
one entry lacked detail. Compare entry for Feb. 5, 2013 with entry for Jan. 22,
2014.

                                             13
Larkin Hoffman – Conservatorship

      Ms. Barth separately requests reimbursement for work a different attorney
from Larkin Hoffman, M. L. Hagstrum Bayne, for work in establishing her as
conservator for Mr. Dahl. Although Ms. Barth had explored alternatives to being
the conservator, the parties ultimately determined that Ms. Barth needed to be the
conservator to receive the settlement funds. Ms. Hagstrum Bayne’s invoices are
well-explained and her activities are reasonable. Ms. Barth is awarded the full
amount requested, $4,737.00, which includes $5.00 in costs.

Larkin Hoffman – Fees for Fees

       On October 16, 2018, Ms. Barth amended her motion for fees to add
additional charges for developing the evidence for Ms. Westad’s hourly rate. The
amount requested is $4,840.00.

      A reasonable amount is $4,355.00. The decrease stems from the change in
the hourly rate for Ms. Westad to $325 per hour (not $350 per hour), and a
deduction because the paralegal performed secretarial work.

Summary for Attorneys’ Fees

      The following amounts are reasonable attorneys’ fees:

      For Lommen Abdo:                              $65,480.00

      For Larkin Hoffman:                           $40,341.00

      For Larkin Hoffman conservatorship:           $4,732.00

      For Larkin Hoffman fees for fees:             $4,355.00.

II.   Costs

       In addition to seeking an award for attorneys’ fees, Ms. Barth seeks
compensation for costs expended. Again, the analysis is separated for the two
different firms.

      Lommen Abdo

      For costs Lommen Abdo incurred, Ms. Barth seeks a total of $30,666.01.
The costs of $7,325.01, for routine items such as medical records, the filing fee,
                                            14
and medical articles are reasonable and adequately documented. Ms. Barth is
awarded them in full.

      The balance ($23,341.00) is for the work of two experts, Dr. Susan Evans
($3,086.00) and Dr. Willer ($20,255.00).

      For Dr. Evans, the documentation is not sufficient to award the amount
requested. The invoices do not directly supply an hourly rate but the implied rate
(see Pet’r’s Mot., exhibit B at 38, found at pdf 63) exceeds what is usually paid for
the experts with the strongest credentials and the most experience in the Vaccine
Program. Other invoices do not include the amount of time spent. For these
reasons, the amount awarded to Dr. Evans is reduced to $2,000.00.

       For Dr. Willer, the documentation is also not sufficient.13 First, Dr. Willer
requests compensation at a rate of $500 per hour. Although Dr. Willer has good
qualifications (see exhibit 25), he lacks some qualifications, such as an academic
appointment to a premier medical school, that distinguishes the highest paid
experts. In addition, Dr. Willer does not have experience testifying in the Vaccine
Program. Thus, Ms. Barth has not demonstrated that Dr. Willer deserves
compensation at the highest tier for experts.

        More importantly, there is a significant problem with the invoices that Dr.
Willer prepared. The problems begin at the onset as the law firm wrote a check as
a retainer fee (see Pet’r’s Mot., exhibit B at 87-88, found at pdf 112-13) but Dr.
Willer’s invoice for the work is not readily apparent. It appears that $5,000 is paid
but not accounted for. The next two invoices are for successive dates (see Pet’r’s
Mot., exhibit B at 90, 97, found at pdf 115, 122), but the work is so vaguely
described, it is difficult to tell if different work was performed. The fourth invoice
(see Pet’r’s Mot., exhibit B at 96, found at pdf 121), contains a single line entry for
15 hours. This generalized billing is not appropriate as experts are expected to list
the amount of time they spent on particular activities. See Caves v. Sec’y of
Health & Human Servs., 111 Fed. Cl. 774, 781-83 (2013); Morse v. Sec’y of
Health & Human Servs., 89 Fed. Cl. 683 (2009). The lack of detail in the fourth
invoice is more glaring because the fifth invoice contains much better, although
still lacking some detailed, information. Pet’r’s Mot., exhibit B at 98, found at pdf


      13
        Given that Ms. Barth retained Dr. Willer through National Medical
Consultants, P.C., the lack of supporting information is surprising.

                                             15
123. To account for the reduction of Dr. Willer’s hourly rate and these billing
problems, Ms. Barth is awarded $12,000.00 for work Dr. Willer performed.

      For these reasons, Ms. Barth is awarded $21,325.01 in costs Lommen
incurred.

      Larkin Hoffman

      At Larkin Hoffman, Ms. Barth continued to incur expenses. She requests
reimbursement of $7,539.13. The most significant item is a fee for a mediation,
$5,035.65, which is reasonable.

       The remaining items are primarily associated with Ms. Westad’s travel for
the mediation. Most of these expenses are reasonable. Two items not reasonable
are the flight at discounted first class and the hotel. Exhibit D at 13, 15. The sum
of $500 is removed to account for these items. The remaining items are
acceptable. A reasonable amount of costs for Larkin Hoffman is $7,039.13.

      Ms. Barth’s costs

       Ms. Barth requests reimbursement for personally incurred costs of
$1,522.78. Pet’r’s Mot., exhibit G, found at pdf 169-70. Like Ms. Westad’s travel
for the mediation, a portion of the costs of travel is not reasonable and the airfare is
not well documented. The sum of $500 is removed to account for these items.

                                        *     *      *

       The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $144,299.92 ($114,908.00 in fees and $29,391.92
in costs) to be a reasonable amount for all attorneys’ fees and costs incurred. The
undersigned GRANTS the petitioner’s motion and awards $144,299.92 in
attorneys’ fees and costs. This shall be paid as follows:

       A lump sum of $86,805.01 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);

       A lump sum of $56,472.13 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); and

                                              16
       A lump sum of $1,022.78 in the form of a check made payable to
petitioner.

       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.14

      IT IS SO ORDERED.

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




      14
          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.

                                           17
