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

******************** *
DAVID HELTON,                        *
                                     *      No. 15-1105V
                  Petitioner,        *      Special Master Christian J. Moran
                                     *
v.                                   *      Filed: October 23, 2018
                                     *
SECRETARY OF HEALTH                  *      Attorneys’ Fees and Costs.
AND HUMAN SERVICES,                  *
                                     *
                                     *
                  Respondent.        *
******************** *
Randal G. Mathis, Mathis, Donheiser & Jeter, Dallas, TX, for Petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.

                         UNPUBLISHED DECISION AWARDING
                           ATTORNEYS’ FEES AND COSTS1


       David Helton brought a successful petition for compensation from the
National Childhood Vaccine Compensation Program. He now seeks an award for
attorneys’ fees and costs. He is awarded $29,104.49.

                                        *      *       *

      Represented by Randal G. Mathis, Mr. Helton filed his petition for
compensation on October 1, 2015. Mr. Helton claimed that the influenza (“flu”)
vaccine, which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), and
which he received on October 3, 2012, caused him to suffer from Guillain-Barre

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.
Syndrome. The parties were able to informally resolve the case, entering a joint
stipulation that was then adopted. Decision, issued Mar. 30, 2018, 2018 WL
5260247.

      This matter is now ripe for adjudication.

                                       *       *    *

       Because Mr. Helton received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether Mr. Helton’s requested amount is reasonable. Mr. Helton’s fees
and costs are addressed in turn.

      I.     Attorney and Paralegal 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.

      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 local rates are substantially lower than the forum rates. Id. at 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 in Dallas, TX. Special masters have found that Dallas,
TX rates are not substantially lower than the forum rates and that the forum
attorney rates shall apply for work performed in Dallas, TX. See, e.g., Stewart v.
Sec'y of Health & Human Servs., No. 16-1486V, 2017 WL 5398405, at *1 (Fed.
Cl. Spec. Mstr. Oct. 18, 2017) (citing three other cases to conclude that Dallas
attorneys should be paid forum rates).

     Two attorneys, Mr. Mathis and Ms. Anh Tran, worked on Mr. Helton’s case.
Mr. Mathis charged $435 an hour. Ms. Tran charged $190 per hour for the period
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prior to September 8, 2016, and $230 per hour for the period subsequent. A
paralegal was also used in this case, Mrs. Julie Bayless, who requested an hourly
rate of $160.

        To support his requested rates, Mr. Mathis filed an affidavit stating that $435
is his normal hourly rate during the time period associated with Mr. Helton’s case.
Pet’r’s Fees Mot. at PDF 24. He also notes that he has been practicing law since
1980. Id. at PDF 23. No details are provided about Ms. Tran or Mrs. Bayless’s
rate, though in a different case another special master noted that Ms. Tran had been
practicing law since 2014. Foxx v. Sec'y of Health & Human Servs., No. 15-670V,
2016 WL 7785861, at *7 (Fed. Cl. Dec. 21, 2016).

       Mr. Mathis, Ms. Tran, and Mrs. Bayless’s rates were analyzed by Special
Master Roth in Foxx. The undersigned agrees with the conclusions of Special
Master Roth and adopts those rates here. Accordingly, Mr. Mathis’s rate is set at
$385 for 2015, Ms. Tran’s rate is set at $150 for 2015, and Mrs. Bayless’s rate is
set at $125. These rates are adjusted for 2016 and 2017 using the Producer Price
Index – Office of Lawyers (“PPI-OL”) measure of inflation. Because the invoice
provided does not provide a breakdown of the hours billed based on the year, the
undersigned has evaluated the rate differences and finds that a 16% deduction
approximately effectuates the rate reductions adopted above.

      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 did not challenge any of the requested hours as unreasonable.

       To facilitate the process of evaluating the reasonableness of an attorney’s
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner’s
responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys’ fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).

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       The billing entries provided by the attorneys in this case stand in direct
contrast to the guidance given in the Guidelines and Avgoustis. Mr. Mathis and
Ms. Tran’s billing descriptions averaged approximately 3-4 words and almost
universally provided little useful information that would allow the undersigned to
evaluate the entry for reasonableness. A representative sample of the attorneys’
entries is provided below:




Pet’r’s Fees Mot. at PDF 18. In contrast, Mrs. Bayless’s entries complied with the
instruction that billing entries be sufficiently detailed to allow for effective review.
In fact, Mrs. Bayless’s entries can serve as an example for others in this program
and, partly for this reason and partly to demonstrate the contrast with the attorneys’
records, a sample of these entries is included below:




                                           4
Id. at PDF 11.

       Accordingly, while the undersigned was easily able to examine Mrs.
Bayless’s entries and conclude that the amounts billed were reasonable, this task is
much more difficult for the records provided by Mr. Mathis and Ms. Tran. The
undersigned struggles to evaluate, for instance, whether 0.2 hours for “Damage
Evidence” is a reasonable expense for Mr. Helton’s petition. As a result, the
undersigned has examined the total number of hours expended by the attorneys in
this case and has compared that to the number of hours billed in cases of similar
complexity during the undersigned’s experience in the Vaccine Program. Based
on this analysis, the total number of hours appears to be approximately reasonable,
though a little high. Accordingly, the undersigned reduces the number of hours
billed by 5% in order to arrive at a reasonable figure. Mr. Mathis and Ms. Tran are
advised to provide more complete billing entries in future cases and are warned
that a failure to do so can result in penalties. See Valdes v. Sec’y of Health &
Human Servs., No. 99-310V, 2009 WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr.
30, 2009) (noting that penalties may be necessary to motivate an attorney to submit
requests for fees that do not contain “erroneous, duplicative, or unreasonable
entries”), mot. for rev. granted in non-relevant part and denied in non-relevant part,
89 Fed. Cl. 415 (2009).


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      II.   Costs

       Mr. Helton also moves for reimbursement of $1,691.48 in costs. This
amount includes routine costs associated with obtaining medical records, the filing
fee, and shipping. These costs are reasonable and awarded in full.

                                  *      *     *

      Accordingly, petitioner is awarded:

      A lump sum of $29,104.49 in the form of a check made payable to
      petitioner and petitioner’s attorney, Randal G. Mathis.

       These amounts represents reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith.

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




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