                 In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                     Filed: December 10, 2018

* * * * * * * * * * * *                          *
MARY KATE WRIGHT AND GARRY                       *       UNPUBLISHED
WRIGHT, as legal representatives of a            *
minor child, M.W.,                               *
                                                 *       Case 12-423V
                          Petitioners,           *
                                                 *       Chief Special Master Dorsey
        v.                                       *
                                                 *       Reasonable Attorneys’ Fees and Costs;
SECRETARY OF HEALTH                              *       Travel Costs.
AND HUMAN SERVICES,                              *
                                                 *
                          Respondent.            *
*   *   *    *    *   *   * * * *        *   *   *

Michael G. McLaren, Black McLaren Jones Ryland & Griffee, PC, Memphis, TN for petitioners.
Lara A. Englund, United States Department of Justice, Washington, DC, for respondent.

                  DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

      On June 28, 2012, Mary Kate Wright and Garry Wright (“petitioners”) filed a petition for
compensation under the National Vaccine Injury Compensation Program2 (“the Program”) as the




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unpublished ruling contains a reasoned explanation for the action in this case, undersigned is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
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1-34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.

                                                     1
legal representatives of their minor son, M.W. Petitioners alleged that the Pentacel3 vaccine that
M.W. received on July 6, 2009, caused encephalopathy. Petitioner at ¶73-74. On September 21,
2015, Special Master Denise Vowell issued a decision finding that petitioners were entitled to
compensation. On May 29, 2018, respondent filed a Proffer on Award of Compensation, in
which respondent represented that petitioners agreed with the proffered award. On the same day,
the undersigned adopted the proffer as her Decision Awarding Damages. ECF No. 137.

         On October 1, 2018, petitioners filed a motion for attorneys’ fees and costs, requesting
compensation for the attorneys and law clerks who worked on their case. Motion for Attorney
Fees and Expenses (“Fees App.”) (ECF No. 141). Specifically, petitioners requested
$124,532.60 in attorneys’ fees to compensate their attorney of record, Mr. Michael McLaren, and
others at Mr. McLaren’s firm. Fees App. at 11. Petitioners also requested $26,454.43 in
attorneys’ costs and $7,257.77 in petitioners’ costs. Fees App. at 12. Thus, petitioners request a
total of $158,244.80. Respondent filed his response on October 5, 2018, indicating that he did
not oppose petitioners’ motion because he believed the statutory requirement for attorneys’ fees
had been met in the instant case.

      For the reasons discussed below, the undersigned GRANTS petitioners’ motion in part
and awards $149,658.36 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(e)(1).
    When compensation is not awarded, the special master “may” award reasonable attorneys’
    fees and costs “if the special master or court determines that the petition was brought in good
    faith and there was a reasonable basis for the claim for which the petition was brought.” Id.
    at §15(e)(1). Because compensation was awarded to petitioners, the undersigned finds that
    they are 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 1347-48 (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.




3
 Pentacel is the trade name for a vaccination consisting of combined diphtheria, tetanus, and
acellular pertussis (“DTaP”); inactivated polio virus (“IPV”); and Haemophilus influenzae type
B (“Hib”) vaccines.
                                                   2
        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 of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 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 [her]
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 the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

        A special master need not engage in a line-by-line analysis of petitioners’ fee application
when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d
in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.

                     i. Reasonable Hourly Rates

        Petitioners request the following rates of compensation for their attorneys: for Mr.
Michael McLaren, $410.00 per hour for work performed in 2015, $425.00 per hour for work
performed in 2016, $440.00 per hour for work performed in 2017, and $456.00 per hour for work
performed in 2018; for Mr. Chris Webb, $295.00 per hour for work performed in 2015, $305.00
per hour for work performed in 2016, $315.00 per hour for work performed in 2017, and $340.00
per hour for work performed in 2018; and for Mr. William Cochran, Jr., $345.00 per hour for
work performed in 2015, $355.00 per hour for work performed in 2016, and $365.00 per hour for
work performed in 2017. Fees App. at 11. Petitioners also request that paralegals and law clerks
be compensated at rates ranging from $135.00 per hour to $153.00 per hour. Id. Attorneys at
Black McLaren Jones Ryand & Griffee, PC (“BMJRG”) have consistently been found to be
entitled to in-forum rates. Reichert v. Sec’y of Health & Human Servs., No. 16-697V, 2018 WL
3989429, at *2 (Fed. Cl. Spec. Mstr. June 20, 2018); Henry v. Sec’y of Health & Human Servs.,
No. 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov. 4, 2016).

         As the undersigned has noted in the past, Ms. Webb may only be awarded up to $326.00
for work performed in 2018. See Booth v. Sec’y of Health & Human Servs., No. 17-246V, 2018
WL 2772540, at *1 (Fed. Cl. Spec. Mstr. Mar. 7, 2018). Because Mr. Webb billed 61.40 hours
at a rate of $340.00 in 2018, this adjustment results in a reduction of $859.60.4 The undersigned
finds that the other requested rates are reasonable and in accordance with the rates set forth in



4
    This reduction is calculated as follows: 61.4 hours x $14 = $859.60.
                                                  3
McCulloch v. Sec’y of Health & Human Servs., No. 09-293, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015).

                   ii. Reduction of Billable Hours

        While petitioners are entitled to an award of attorneys’ fees and costs, the undersigned
finds that a reduction in the number of hours billed by petitioners’ counsel is appropriate. For
reasons explored more thoroughly below, the undersigned reduces the requested fees by 5%,
resulting in a further deduction of $6,183.65. 5

                           1. Excessive and Block Billing

       Block billing, or billing large amounts of time without sufficient detail as to what tasks
were performed, is clearly disfavored. Broekelschen v. Sec'y of Health & Human Servs., 07–
137V, 2008 WL 5456319 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (reducing petitioner's attorneys'
fees and criticizing her for block billing); see also Jeffries v. Sec'y of Health & Human Servs.,
99–670V, 2006 WL 3903710 (Fed Cl. Spec. Mstr. Dec. 15, 2006); Plott v. Sec'y of Health &
Human Servs., 99–670V, 2006 WL 3903710 (Fed. Cl. Spec. Mstr. Dec. 15, 2006).

         In the present case, there are several examples of billing entries which constitute block
billing. For example, one entry on February 9, 2016, billed for 2.3 hours, reads “Go back and
read over old records, make travel arrangements, confer with Ginger Walton, confer with the
Wrights, letter to the Wrights; Letter to life care planners; confer with clients again.” Fees App.
Ex. 2 at 6. Another entry on February 22, 2016, combines 10 hours of travel along with 5 hours
of work into a single entry. Id. at 7. Such entries do not allow the undersigned to assess the
reasonableness of the time spent on individual tasks.

        Additionally, the undersigned has noted numerous examples of excessive billing. Orders
from the court, such as status conference orders, were routinely reviewed by both a paralegal and
an attorney, with both billing time to review and update the case file.6 One law clerk, CMG, also
billed an excessive amount of time in preparing petitioners’ out of pocket expense spreadsheet –
from 3/9/17 to 4/27/17, the law clerk billed over 30 hours on this one task. Fees App. Ex. 2 at 20-
27.

                           2. Administrative/Paralegal Work

       It is well established that attorneys who bill for paralegal-level work must appropriately
reduce their fee. Mostovoy, 2016 WL 720969, at *5. Moreover, the Vaccine Program does not
permit billing at any rate for clerical or administrative work, since such tasks “should be


5
  The reduction is calculated as follows: (Requested fees of $124,532.60 - $859.60 reduction for
attorney rate adjustment) * 0.05 = $6,183.65.
6
  Examples of this can be found on 1/28/16, 4/18/16, 4/27/17, 4/28/17, 10/23/17, 10/27/17, and
12/14/17. Such examples are only illustrative and are not meant to represent the totality of
instances of double billing.
                                                 4
considered as normal overhead office costs included in the attorneys’ fees rate.” Rochester v.
United States, 18 Cl. Ct. 379, 387 (1989). In the Vaccine Program, administrative work includes
such tasks as making travel arrangements, setting up meetings, reviewing invoices, and filing
exhibits. Hoskins v. Sec’y of Health & Human Servs., No. 15-071, 2017 U.S. Claims LEXIS
934, at *6-7 (Fed. Cl. Spec. Mstr. July 12, 2017) (“Almost all of the paralegal’s time was spent
on scanning, paginating, and filing records—clerical activities for which neither an attorney nor
a paralegal should charge.”); Floyd v. Sec’y of Health & Human Servs., No. 13-556, 2017 U.S.
Claims LEXIS 300, at *13-14 (Fed. Cl. Spec. Mstr. Mar. 2, 2017) (“[S]ome of the tasks
performed by paralegals were clerical/secretarial in nature. Examples include . . . filing
documents through the CM/ECF system.”); Mostovoy, 2016 WL 720969, at *12.

        There are many examples of paralegals/law clerks billing for administrative/clerical
tasks, such as filing documents, forwarding e-mails or documents to attorneys, and calendaring
deadlines. The undersigned thus finds it reasonable to reduce petitioners’ fees award due to the
excessive amount of administrative work billed.

           b. Attorneys’ Costs

       Petitioner requests a total of $26,454.43 in attorneys’ costs. This amount includes
$19,995.79 for expert work done of the case by two life care planners, an economic consultant,
and a vocational assessment, and $6,458.64 for travel costs and other miscellaneous expenses.

                   i. Costs for Professional Services

        Petitioners retained three experts to perform professional services on this case: economic
consultant Dr. Parker Cashdollar and life care planning services from Ms. Roberta Hurley and
Life Care Consultants, Inc. Starting with Dr. Cashdollar, he billed 15.5 hours at a rate of
$200.00 per hour. Fees App. Ex. 2 at 94. The undersigned and other special masters have
previously found Dr. Cashdollar’s rate to be reasonable. I.H. v. Sec’y of Health & Human Servs.,
No. 13-766V, 2016 WL 7666536, at *2 (Fed. Cl. Spec. Mstr. Dec. 16, 2016); Weir v. Sec’y of
Health & Human Servs., No. 15-1491V, 2018 WL 5095156, at *4 n. 4 (Fed. Cl. Spec. Mstr.
Sept. 11, 2018). The undersigned has reviewed Dr. Cashdollar’s billing statement and finds all of
the entries to be reasonable. Accordingly, this cost shall be reimbursed in full.

       Next, petitioners request $1,400.00 in compensation for the work of Dr. C. Greg Cates.
Dr. Cates has a doctorate in education, and performed a vocational assessment in this case. Dr.
Cates billed 5.60 hours of work at $250.00 per hour. Fees App. Ex. 2 at 106. The undersigned
has reviewed Dr. Cates’ billing records and finds the hours worked and the rate charged to be
reasonable and shall award the full amount requested.

        Petitioners next request $5,432.75 for the services of Life Care Consultants, Inc. in
preparing a life care plan for M.W. The billing records indicate that a total of 40.15 hours were
billed on this matter by three individuals, “TKA” who billed $185.00 per hour and “AS” and
“KH” who billed $85.00 per hour. The undersigned has reviewed the billing records and finds
the work performed to be reasonable. This cost will also be reimbursed in full.



                                                 5
        Finally, petitioners seek $10,063.04 for the services of another life care planner, Ms.
Roberta Hurley. Ms. Hurley billed approximately 80 hours at $125.00 per hour. The undersigned
has reviewed Ms. Hurley’s billing records, and finds the work performed to be reasonable.
Petitioners will thus be awarded the full amount for Ms. Hurley’s work.

                      ii. Other Costs

       Petitioners seek $5,903.23 for travel expenses such as airfare, hotel, and food, and for
other miscellaneous expenses such as postage. Upon review, the undersigned as noticed several
issues which warrant reducing petitioners’ award of costs.

        Turning first to expenses billed by Mr. McLaren, the record indicates that Mr. McLaren
charged $1,309.70 on first class roundtrip airfare on February 10, 2016. Fees App. Ex. 2 at 65.
Mr. McLaren then again billed $924.70 on Delta Comfort + airfare on September 14, 2016. Id. at
82.7 As Mr. McLaren, a longtime practitioner in the Vaccine Program, is undoubtedly aware, the
Vaccine Program does not compensate for upgraded methods of travel such as first class airfare
and business class and Acela train fare. See Tetlock v. Sec’y of Health & Human Servs., No. 10-
56V, 2017 WL 5664257, at *6 (Fed. Cl. Spec. Mstr. Nov. 1, 2017); Reichert, 2018 WL 3989429,
at *4; McCulloch, 2015 WL 5634323, at *22.8 Mr. McLaren has offered no reason as to why it
was necessary for him to book first class airfare, nor has he attempted to make any showing that
he mitigated the cost in some manner, such as billing a reduced amount. The undersigned will
therefore reduce first class ticket by 50% and the Comfort + ticket by 33% - this results in a total
reduction of $963.08.

         Turning next to expenses billed by Mr. Webb, it appears that Mr. Webb has also billed
for first class airfare. Unlike his colleague, however, Mr. Webb has attempted to justify his
purchase by noting that the first class ticket he purchased was actually slightly less money than a
coach ticket at more desirable times would have been. Fees App. Ex. 2 at 113-115. The
undersigned notes that airfare is subject to wide-ranging price differentials based upon, among
other factors, the date on which the flight is booked, and that one curated data point cannot be
extrapolated to show that a first class flight was the most reasonable option of travel. Because the
Vaccine Program does not compensate for first class airfare, the undersigned shall reduce the
amount of the ticket by half, resulting in a reduction of $473.25.

       Also requiring reduction is a charge of $213.73 for Uber Black service from LaGuardia
Airport to Manhattan and back. Fees App. Ex. 2 at 110-111. While Uber is certainly a
compensable method of transportation, Uber Black is essentially a black car service provided by
Uber and is therefore more luxurious and more expensive than traditional Uber service. The
undersigned will also reduce this cost by half, resulting in a reduction of $106.86.



7
 The submitted travel itinerary indicates Mr. McLaren’s ticket as “W” class, which is indicative of Delta Airlines’
Comfort + tickets. https://pro.delta.com/content/agency/gb/en/products-and-services/in-flight/delta-comfort-
plus html.
8
 The undersigned notes that Mr. McLaren was counsel of record in Reichert, thus eliminating any possibility that he
was unaware of the Court’s longstanding rule in not compensating upgraded travel methods.

                                                         6
        The undersigned finds the rest of the billed costs, which include other travel expenses,
photocopies, and postage, to be reasonable. Accordingly, the total amount reduced from
petitioners’ award of attorneys’ costs is $1,543.19.

            c. Petitioners’ Costs

        Petitioners also request $7,257.77 in petitioners’ costs. The majority of this amount
($6,082.77) is for the legal services of Mr. George Holland, Esq., in establishing a guardianship
for petitioners. Ex. 106 at 3. The billing records indicate that Mr. Holland billed 16.8 hours in
this matter at a rate of $350.00 per hour and incurred $202.77 in expenses for the filing fee and
postage. Mr. Holland is an experienced attorney in disability law and has been barred since
1996. Upon review, the undersigned finds Mr. Holland’s requested rate and hours billed to be
reasonable in light of his overall experience and the work he performed on this case. The
undersigned will therefore compensate petitioners fully for this cost.

       The remaining costs, which are for medical visits with a psychologist to prepare a
psychological report for M.W., have been fully documented and appear to be reasonable.
Accordingly, petitioners are awarded the full amount of their requested costs, $7,257.77.

   II.      Conclusion

        Based on the above analysis, the undersigned finds that it is reasonable to compensate
petitioners and their counsel as follows:

         Requested attorneys’ fees:                                         $ 124,532.60
         Reduction in hourly rate:                                          $ (859.60)
         Reduction in attorneys’ fees:                                      $ (6,183.65)
         Total fees for Clifford J. Shoemaker:                              $ 117,489.35

         Requested attorneys’ costs:                                        $ 26,454.43
         Reduction in attorneys’ costs:                                     $ (1,543.19)
         Total attorneys’ costs:                                            $ 24,911.24

         Total Attorneys’ Fees and Costs:                                   $ 142,400.59

         Requested petitioners’ costs:                                      $ 7,257.77
         Reductions:                                                        $ (0.00)
         Total petitioners’ costs:                                          $ 7,257.77

         Total Fees and Costs Awarded:                                      $ 149,658.36

         Accordingly, the undersigned awards:

   1) $142,400.59 in attorneys’ fees and costs, in the form of a check payable jointly to
      petitioners and petitioners’ counsel, Michael G. McLaren.



                                                 7
    2) $7,257.77 in petitioners’ costs, in the form of a check payable to petitioners.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.9

       IT IS SO ORDERED.

                                                   s/Nora B. Dorsey
                                                   Nora B. Dorsey
                                                   Chief Special Master




9
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
                                               8
