Mooney v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 05-266V
Filed: December 29, 2014
To Be Published

****************************
BOB and CARMEL MOONEY, parents *
of E.L.M., a minor child, * Autism; Attorney Fees and Costs;
Petitioners, * Excessive and Unreasonable Fees;
v. * Excessive Costs; Hourly Rate
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
Respondent. *
****************************

Michael Cave, Esq., Cave Law Firm, Baton Rouge, LA, for petitioners.
Alexis Babcock, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

DECISION AWARDING ATTORNEY’S FEES AND COSTS1

Vowell, Chief Special Master:

In response to petitioners’ motion for a decision on the record in this case, I
issued a decision dismissing their claim on December 19, 2013. On April 23, 2014,
petitioners filed an application for final attorney’s fees and costs. I find that the claim
was brought in good faith and upon a reasonable basis and, for the reasons set forth
below, that an award of fees and costs in the amount of $44,089.37 is appropriate.

I. Procedural History.

On February 28, 2005, Mr. and Mrs. Mooney filed a short-form petition,
authorized by Autism General Order #1,2 for compensation under the National Vaccine

1
Because this published decision contains a reasoned explanation for the action in this case, it will be
posted on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
delete medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will delete such
material from public access.
2
Autism General Order #1 is published at 2002 WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002).
Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.3 [the “Vaccine Act” or
“Program”], on behalf of their minor daughter, E.L.M. By filing a short-form petition,
petitioners joined the Omnibus Autism Program [“OAP”],4 thereby asserting that E.L.M.
had an autism spectrum disorder [“ASD”] and that one or more vaccines listed on the
Vaccine Injury Table5 were causal of this condition.

After the conclusion of the OAP test cases, petitioners were ordered to inform the
court if they intended to continue to pursue their claim. Order, issued April 29, 2011.
On May 23, 2011, petitioners requested an extension of time to amend their petition,
which was granted (Order, issued May 27, 2011), and on July 18, 2011, petitioners filed
an amended petition that alleged a Table encephalopathy. During an August 17, 2011
status conference, I noted that the filed records did not appear to support a Table
encephalopathy claim. See Order, issued August 18, 2011. Petitioners filed a second
amended petition on April 13, 2012, one virtually identical to the first amended petition.
Amended Petition II.

Petitioners requested a hearing to establish the factual predicate for their Table
claim, which was conducted in Sacramento, California, on July 26, 2012. On July 3,
2013, I issued a combined Ruling on Facts and Order to Show Cause, in which I
determined that the evidence failed to establish that E.L.M. suffered a Table
encephalopathy and ordered petitioners to show cause by August 2, 2013, why I should
not dismiss this case for a failure to establish entitlement to compensation.

Petitioners filed a response requesting that the “Court enter what is necessary in
order for petitioners to exercise their right to appeal.” Petitioners’ Response to Order to
Show Cause at 1, filed Jul. 22, 2013. Noting that factual findings do not constitute an
appealable decision, respondent suggested in her response that I issue a renewed
show cause order or dismiss the case for failure to prosecute. See Respondent’s
Response, filed Aug. 12, 2013. After I issued a renewed show cause order, petitioners
filed a motion for a decision on the record. Motion, filed August 29, 2013.

On December 19, 2013, I dismissed petitioners’ case for failure to establish
entitlement to an award. Petitioners did not file a motion for review.

Petitioners applied for final attorney’s fees and costs on April 23, 2014. [“Fee
App.”] Respondent filed her response on May 9, 2014 [“Response”], and petitioners filed
a reply brief [“Reply”] on May 19, 2014.

3
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2006).
4
The OAP is discussed in detail in Dwyer v. Sec’y, HHS, No. 03-1202V, 2010 WL 892250, at *3 (Fed. Cl.
Spec. Mstr. Mar. 12, 2010).
5
42 C.F.R. § 100.3 (2011).

2
 II. Applicable Law.

The Vaccine Act is extraordinarily generous in its provisions for payment of fees
and costs. Motivated by a desire to ensure that petitioners have adequate assistance
from counsel when pursuing their claims, Congress permitted the special masters to
award attorneys’ fees and costs even in unsuccessful vaccine claims. H.R. REP. No.
99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Cloer v. Sec’y, HHS,
133 S.Ct. 1886, 1895 (2013); Saunders v. Sec’y, HHS, 25 F.3d 1031, 1036 (Fed. Cir.
1994).

As Judge Lettow has noted, “the Vaccine Program employs a liberal fee-shifting
scheme.” Davis v. Sec’y, HHS, 105 Fed. Cl. 627, 634 (2012). It may be the only
federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs.
In more than 25 years of Vaccine Act litigation, very few unsuccessful litigants have
been denied fees and costs awards, so long as jurisdictional requirements for payment
were met. See Jessen v. Sec’y, HHS, No. 94-1029V, 1997 WL 48940, at *4-5 (Fed. Cl.
Spec. Mstr. Jan. 17, 1997) (providing a detailed discussion of the fee structure under
the Vaccine Act and its effect on the behavior and motivation of attorneys practicing in
the Vaccine Program). Fees and costs may now be awarded even in untimely-filed
cases. Cloer, 133 S.Ct. at 1895.

However, the Act limits payment to “reasonable attorneys’ fees and other costs.”
42 U.S.C. § 300aa-15(e)(1). The initial determination of reasonable fees is made using
the lodestar method, in which a reasonable hourly rate is multiplied by the reasonable
number of hours, to determine the amount of attorneys’ fees to be awarded. Blanchard
v. Bergeron, 489 U.S. 87, 94 (1989) ("The initial estimate of a reasonable attorney's fee
is properly calculated by multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate" (quoting Blum v. Stenson, 465 U.S. 886, 888
(1984)); see also Avera v. Sec’y, HHS, 515 F.3d 1343, 1347-48 (Fed. Cir. 2008). The
lodestar calculation may be adjusted upward or downward, “based on other specific
findings.” Avera, 515 F.3d at 1343 (citing Blum, 465 U.S. at 888). This standard for
calculating attorneys’ fees “is generally applicable in all cases in which Congress has
authorized an award of fees.” Hensley v. Eckerhart, 461 U.S. 424, 433, n.7 (1983).

In Avera, the Federal Circuit held that an attorney’s reasonable hourly rate is "the
prevailing market rate," which is defined as the rate "prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation."
515 F.3d at 1348 (quoting Blum, 465 U.S. at 895, n.11). The "prevailing market rate" is
determined using the "forum rule." Avera, 515 F.3d at 1349 ("to determine an award of
attorneys' fees, a court in general should use the forum rate in the lodestar calculation").
The forum rule dictates that the reasonable hourly rate be based on the rates paid to
similarly qualified attorneys where the court sits, which in Vaccine Act litigation is

3
Washington, DC. Avera, 515 F.3d at 1348; see also Sabella v. Sec’y, HHS, 86 Fed. Cl.
201, 205 (2009).6

In adopting the forum rule, the Federal Circuit also held that the Davis7 exception
to the forum rule applied in cases where the majority of an attorney’s work is completed
outside of the District of Columbia in a legal market where the prevailing attorneys’ rates
are “substantially lower.” Avera, 515 F.3d at 1349. In Davis-exception cases, the
appropriate rate of compensation is determined by using the prevailing market rate from
the attorney’s geographic location in the lodestar calculation. Id.

In the instant case, all of the legal services were provided outside of Washington,
DC. Ordinarily, this would trigger the requirement to determine both the forum and local
rates and to compare the two rates to determine whether the Davis exception to the
forum rule applies.8 Here, however, respondent has asserted Baton Rouge rates
should apply because “the rates charged in this legal market appear to be significantly
lower” than those of the forum, Washington, DC. Response at 4. In their reply brief,
petitioners did not challenge this assertion. Moreover, the only evidence either party
produced regarding hourly rates was focused exclusively on various legal services
rendered in the Baton Rouge area.9 I conclude that the parties have therefore
conceded that the Davis exception to Avera applies in this case.

6
Prior to the Avera decision, special masters generally used the “local rate” to determine a reasonable
hourly rate to award. The “local rate” was determined based on the attorney’s location and his or her
billing rate there for similar services. See Avera v. Sec'y, HHS, 75 Fed. Cl. 400, 405-06 (2007).
7
Davis County Solid Waste Management and Energy Recovery Special Service District v. United States
Environmental Protection Agency, 169 F.3d 755, 758 (D.C.Cir. 1999).
8
Services in most Vaccine Act cases are rendered outside the forum, which the Federal Circuit has
determined to be the District of Columbia. Avera, 515 F.3d at 1348. Although 400-650 claims have been
filed annually since 2010, only a small number of cases involve hearings or other extensive proceedings
and only about half of these hearings occur within the District of Columbia. For this reason, the Federal
Circuit’s adoption of the Davis exception considerably complicates the determination of the correct hourly
rate in fees cases in the Vaccine Program. Thus, in most fees disputes over the hourly rate, the Avera
methodology requires the special master to determine both the forum rate and the prevailing local rate.
The special master must then compare the two rates to decide whether there is a “very significant
difference in compensation” favoring the forum (the language used in Davis (169 F.3d at 758) or whether
the local rate is “substantially lower” (the language used in Avera, 515 F.3d at 1349). In a compensation
program involving all vaccine injury claims filed nationwide, and where very few petitioners’ counsel are
located in the forum, this three-step evaluation process can be difficult and cumbersome to perform.
9
In support of their fee application, petitioners filed an affidavit from Michael L. Cave, an affidavit from
another Louisiana attorney, Robert W. Barton, and a report detailing the hours and costs of Mr. Cave’s
legal representation. Both of petitioners’ affidavits focused exclusively on fees in the Baton Rouge area.
In their reply brief, petitioners also attached a United States Consumer Law Attorney Fee Survey Report
(2010-2011) (“Attorney Fee Survey”), which listed average hourly rates for attorneys with various years of
experience practicing consumer law. Petitioners’ Exhibit [“Pet. Ex.”]. A at 26. Petitioners only included
information on the “South Region,” which the index of regions indicated included Alabama, Arkansas,
Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, and Tennessee. The “Atlantic
Region,” which included the District of Columbia, was omitted. Pet. Ex. A at 6. Respondent submitted an
affidavit from Catherine Maraist, the Chief of the Civil Division, U.S. Attorney’s Office, Middle District of

4
 In determining the number of hours reasonably expended, a court must exclude
hours that are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at
434; see also Carrington v. Sec’y, HHS, 85 Fed. Cl. 319, 323 (2008) (noting that
excessive hours should be excluded from an award). However, special masters are not
required to perform a line-by-line analysis of the billing records. Broekelschen v. Sec’y,
HHS, 102 Fed. Cl. 719, 729 (2011).

A special master has broad discretion in determining the reasonableness of a
request for attorneys’ fees. See Avera, 515 F.3d at 1347. Petitioners have the burden
to demonstrate that the hourly rate requested is reasonable. See Blum, 465 U.S. at 895
n.11 (“the burden is on the fee applicant to produce satisfactory evidence—in addition to
the attorney's own affidavits—that the requested rates are in line with those prevailing in
the community for similar services by lawyers of reasonably comparable skill,
experience and reputation”).

III. Discussion.

Petitioners requested a total award of $53,050.00 in attorneys’ fees and
$4,072.27 in costs for work performed by petitioners’ counsel, Michael Cave. Pet. Ex. C
at 1, 7. Respondent asserted that petitioners’ request is “excessive and unreasonable”
(Response at 2), because the requested hourly rate is not reasonable, the billing for
time spent on some tasks should be reduced, and some of petitioners’ requested costs
are excessive. See Response. Respondent urges me to use my discretion and
experience to reduce petitioners’ request to a reasonable amount. Id.

To resolve this dispute, I must first determine a reasonable hourly rate for Mr.
Cave. I must then determine the number of hours reasonably expended on tasks
requiring a lawyer’s skill and expertise and the number of hours to which a paralegal
rate should apply. Finally, I must decide whether the costs claimed are reasonable and
compensable.

A. Reasonable Hourly Rate.

The hourly rate to be awarded is the primary issue in this dispute. Petitioners
initially requested an hourly rate of $300.00 for all the work performed by Mr. Cave in
this case. Affidavit [“Aff.”] of Michael L. Cave at ¶ 7. Respondent requested that I
award an hourly rate in the range of $175.00 to $225.00. Response at 5. In their reply

Louisiana, addressing her knowledge of the local market rates in the area in which petitioners’ counsel
practices. In addition, respondent cited recent federal court decisions addressing hourly rates for tort
litigation in the Baton Rouge area. Stogner v. Sturdivant, No. CIV.A. 10-125-JJB-CN, 2011 WL 6140670
at *2 (M.D. La. Dec. 9, 2011); Kador v. City of New Roads, No. CIV.A. 07-682-DM2, 2010 WL 4638429 at
*1 (M.D. La. Nov. 9, 2010); Monaghan v. United Rentals, No. 3:09-627, 2012 WL 832284 at *3 (M.D. La.
March 9, 2012).

5
brief, petitioners reduced their requested hourly rate to $275.00 for work performed
between 2005 and 2010. Reply at 5.

Mr. Cave is a principal in the law firm of Cave Law Firm, L.L.C., in Baton Rouge,
LA. Aff. of Michael L. Cave at ¶ 1. He has been practicing law for 15 years, since 1999.
Id. at ¶ 3. Based on data from the court’s case management and electronic filing
system [“CM/ECF”], he was admitted to the bar of the Court of Federal Claims on
January 2, 2003. He filed his first cases in the Vaccine Program in late 2002,10 when he
had been in practice for three years. Between 2002 and 2008, he filed 35 cases, 11 12 of
which were consolidated and dismissed in 2005 as filed outside the statute of
limitations. See Herbert v. Sec’y, HHS, 66 Fed. Cl. 43 (2005) (lead case). Since 2006,
he has filed six non-OAP cases.

Outside the Vaccine Program, Mr. Cave primarily practices in the fields of
“complex drug and product liability, medical negligence, railroad negligence, admiralty,
and personal injury litigation.” Aff. of Michael L. Cave at ¶ 4. He seems to be in a small
family practice with one other attorney, who appears to be a relative, possibly his father.
See http://www.legaldirectories.com/Cave-Law-Firm-A-PLC-28039-Frm.aspx.

The “local rate,” which is “the prevailing market rate” for Mr. Cave’s geographic
location, Baton Rouge, LA, is determined by comparing Mr. Cave’s requested rates to
“similar services by lawyers of reasonably comparable skill, experience, and reputation."
Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 895, n.11). Unfortunately, there is
relatively little guidance about how to determine “the prevailing market rate” for “similar
services.” See Information Sciences Corp. v. United States, 86 Fed. Cl. 269, 291
(2009) (noting that although the Supreme Court held that paralegal fees are to be
awarded at “prevailing market rates,” Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571,
590 (2007), the Court “did not provide trial courts with guidance in how to determine ‘the
prevailing market rate’”). To determine the local rate, I first must determine what
constitutes “similar services” before determining the “prevailing market rate” for those
services.

The parties’ disagreement over the prevailing market rate in Baton Rouge
centers on whether Vaccine Act work is similar to pharmaceutical, products, and
medical device litigation or more analogous to medical malpractice, tort litigation, and
Equal Access to Justice Act [“EAJA”] cases. Neither party provided clear analysis

10
He filed about 15 of these cases prior to being admitted to the bar of the court. See, e.g., No. 02-2050
(one of many cases showing a filing date of December 30, 2002).
11
These were all OAP cases. One of these 35 cases was a duplicate filing. See No. 02-235V and No.
02-2051V. With very few exceptions (primarily those petitions that appeared on their face to be untimely
filed and the test cases themselves), all of the OAP cases, including Mr. Cave’s, were stayed until
litigation of the test cases began. Dwyer, 2010 WL 892250, at *3. Very little work was performed on any
of Mr. Cave’s OAP cases until after 2010, with the exception of the 12 cases dismissed in 2004. I note
that co-counsel, rather than Mr. Cave, argued the statute of limitations issue in these cases on the motion
for review decided in 2005.

6
explaining how attorneys representing clients in the Vaccine Program perform services
similar to those practicing pharmaceutical, products and medical device litigation or
medical malpractice, tort litigation, and EAJA cases. They merely asserted that their
comparison fields of litigation involved “similar services.”

Petitioners base their argument about similar services on the affidavit from Mr.
Barton, a partner at a large Baton Rouge firm. Mr. Barton asserts that his own usual
hourly rate is $315.00 per hour for pharmaceutical, products, and medical device
litigation, and that $300.00 per hour is a reasonable hourly rate for Mr. Cave’s services.
Id. at 5. Mr. Cave argues that the burden of proof for an off-Table claim under Althen “is
basically the same required burden of proof in pharmaceutical, product, and medical
device litigation.” Reply at 3. While it is true that both vaccine cases and
pharmaceutical, products, and medical device cases require preponderant evidence, so
do medical malpractice, tort, and EAJA cases. Thus the “burden of proof” analogy is
not helpful.

With their Reply, petitioners also provided an Attorney Fee Survey, reflecting a
rate of $295.00 for consumer law attorneys in the “South Region” of the United States
with eleven to fifteen years of experience at law firms typically comprised of four people
or less. Reply at 5; Reply Ex. at 26. Once again, Mr. Cave did not explain why
“consumer law” constitutes an apt comparison for fees purposes to Vaccine Act
litigation.

Respondent relied on the affidavit of Ms. Maraist.12 Ms. Maraist stated that,
based on her knowledge of the local market, the average rate charged by local medical
malpractice attorneys ranges from $150.00 to $200.00 per hour. Aff. of Catherine
Maraist, ¶ 3. She also referenced a recent decision concerning EAJA fees where a rate
of $150.00 per hour was awarded to an attorney instead of the requested $171.00. Id.
at ¶ 5. In addition, respondent cited recent federal court decisions addressing hourly
rates in Baton Rouge tort litigation where courts awarded rates in the range of $155.00
to $220.00 per hour. See n.9, supra.

Neither party explained why the types of cases they referenced are similar to
Vaccine Act litigation. Like petitioners, respondent merely asserted that “[she] believes
that comparison to medical malpractice defense, tort litigation, and EAJA would all be

12
I note that petitioners dispute Ms. Maraist’s “familiarity with the local rates” because she is not in private
practice, but instead employed by the U.S. Department of Justice. Reply at 2. While I do not rely heavily
on affidavits of local attorneys such as Ms. Maraist or petitioners’ affidavit from Mr. Barton, it would be
unfair to attribute greater bias to Ms. Maraist’s affidavit simply because of her employer. She is not
associated with the U.S. Department of Justice’s Vaccine/Torts Branch, Civil Division. Rather, as Civil
Chief for the U.S. Attorney’s Office in the Middle District of Louisiana, Ms. Maraist would likely be familiar
with hourly fees charged by attorneys in the Baton Rouge market. I can appreciate that such information
might derive from her interaction with other parties rather than her personal experience in billing clients.
However, I fail to follow petitioners’ logic in arguing I should give little weight to her affidavit because of
the nature of her employment with the government. Her employment does not make her any more biased
or less reliable than Mr. Barton’s employment as a plaintiff’s attorney makes him.

7
appropriate” as a comparison to Vaccine Act practice. Response at 6. Telling me why
such comparisons are apt would be far more helpful than simply asserting that they are.

In Rodriguez, the Federal Circuit noted that proceedings under the Vaccine Act
“involve no discovery disputes, do not apply the rules of evidence, and are tried in
informal, streamlined proceedings before special masters well-versed in the issues
commonly repeated in Vaccine Act cases.” Rodriguez v. Sec’y, HHS, 632 F.3d 1381,
1385 (Fed. Cir. 2011). The Federal Circuit noted the relatively “relaxed legal standards
of causation” and “eased procedural rules compared to other federal civil litigation.” Id.
Likewise, “a party need not ‘prevail’ under the Vaccine Act in order to receive an award
of attorneys' fees.” Id.

In the absence of analysis by the parties, I will rely on my own experience in and
outside the Vaccine Program. Having performed tort, personal injury, and medical
malpractice defense work myself, I have a basis for comparison, and I find that Vaccine
Act work is more analogous to tort, personal injury, and medical malpractice litigation
than consumer law or medical products liability cases. This is particularly true in claims
brought under the Federal Tort Claims Act [“FTCA”], 28 U.S.C. §1346(b), §1402(b),
§2401(b), and §§2671-2680.13

FTCA cases, like Vaccine Act cases, are heard in bench trials. Although the
analogy between the two types of litigation is not perfect, there are distinct similarities.
Both medical malpractice and Vaccine Act cases rely heavily on medical records. Both
types of cases often turn on factual disputes regarding what happened and when it
occurred. Expert opinions often address the correct diagnosis, identify pre-existing
conditions, and offer opinions regarding how the injury occurred. Procedurally, FTCA
work is more difficult, in that the Federal Rules of Evidence apply and discovery is much
more extensive. Vaccine Act work can be more difficult medically and scientifically,
given that the focus is on causation in cutting edge areas of science and medicine,
rather than the focus in many medical malpractice cases on what constitutes the
standard of care and whether it was breached.

Pharmaceutical, products, and medical device litigation all have some parallels to
Vaccine Act work, but the focus in such litigation is often on the product manufacturing
and testing process in an effort to show that the products were defectively designed or
manufactured. In contrast, the Vaccine Act itself acknowledges, via the Vaccine Injury
Table,14 that vaccines can cause injuries. When cases involve off-Table claims, the
litigation focus is on causation, not the design, testing, and manufacturing process and,
particularly, not on fault.
13
Contra Rupert v. Sec’y, HHS, 55 Fed. Cl. 293, 304 (2003) (finding that insurance medical malpractice
defense was not an apt comparison to representing petitioners in Vaccine Act case); but see Barber v.
Sec’y, HHS, No. 99-434V, 2008 WL 4145653, at *8, *12 (Fed. Cl. Spec. Mstr. Aug. 21, 2008) (finding
medical malpractice defense work by attorneys retained by individual physicians an appropriate
comparison to Vaccine Act work, noting that both types of cases require similar skills).
14
See 42 C.F.R. § 100.3(a).

8
 I will attribute greater weight to the evidence related to hourly rates claimed by
attorneys in medical malpractice and other tort cases in determining the prevailing
market rate for services similar to Vaccine Act work in Baton Rouge, LA. Unfortunately,
the only evidence filed by a party pertaining to medical malpractice work is Ms.
Maraist’s affidavit. Ms. Maraist stated that, based on her knowledge of the local market,
the average rate charged by local medical malpractice attorneys ranges from $150.00 to
$200.00 per hour. Although this information is useful, it is anecdotal, rather than
supported by references to such cases. Respondent also cited to several federal court
decisions dealing with hourly rates in other types of tort litigation in the Baton Rouge
area.15

A special master may look to other evidence in establishing a reasonable hourly
rate. Rupert v. Sec’y, HHS, 52 Fed. Cl. 684, 688 (2002). By applying the Blum
requirement that fees should be based on those that are paid to “lawyers of reasonably
comparable skill, experience, and reputation” (465 U.S. at 895, n.11), I found some
relevance in comparing Mr. Cave to another Louisiana-based attorney practicing in the
Vaccine Program, Ms. Jessica W. Hayes.

Ms. Hayes is employed by the Murray Law Firm, located in New Orleans, LA.
This firm is larger than Mr. Cave’s small family practice,16 but the Murray Law Firm also
appears to have originated as a family firm. According to her firm’s website
(http://www.murray-lawfirm.com/attorneys/), the firm has fewer than ten lawyers. Ms.
Hayes joined the firm in 2004, having been admitted to the bar in that same year. She
lists her practice areas (in addition to vaccine work) as environmental, products liability,
and personal injury law, and claims extensive experience in complex litigation. See
http://www.murray-lawfirm.com/attorneys/jessica-w-hayes/.

Court records indicate that Ms. Hayes was admitted to practice before the U.S.
Court of Federal Claims in February 2008, five years after Mr. Cave was admitted in
2003. However, it does not appear that anything substantive was done in any of Mr.
Cave’s OAP cases until 2004, when he responded to the motions to dismiss in 12 of his
cases. Mr. Cave was not required to file anything of substance in the remaining cases
until 2008. See, e.g., docket sheets in Marks v. Sec’y, HHS, No. 02-2068; Pincus v.
Sec’y, HHS, No. 04-243.17 He filed his first non-OAP case in 2006, and was required to

15
These recent federal court decisions awarded hourly rates for tort litigation in the Baton Rouge area
ranging from $155.00 to $255.00 per hour. Resp. at 6; see n.9, supra.
16
At some point during the pendency of this litigation, the firm had other attorney employees and
associates. See Cave v. Comm’r, 476 Fed.Appx. 424, 428 (5th Cir. 2012). Unfortunately, this decision
does not address the hourly rates of the firm’s other employees.
17
During the period between the OAP test case hearings, and the final appellate review of the test case
decisions, petitioners in most of the remaining OAP test cases were ordered to file some medical records
and a statement regarding onset in order to position those cases for resolution, once appellate review
was completed. Mr. Cave’s clients received such orders primarily in 2008.

9
begin perfecting it almost immediately thereafter.18 Like Mr. Cave, Ms. Hayes’ first
Vaccine Act work involved OAP cases. See White v. Sec’y, HHS, No.04-337V, 2011
WL 6176064 (Fed. Cl. Spec. Mstr. Nov. 22, 2011); Smith v. Sec’y, HHS, No. 04-338V,
2011 WL 1467933 (Fed. Cl. Spec. Mstr. Mar. 28, 2011). More recently, she has filed
petitions on behalf of individuals with injuries other than autism spectrum disorders.
See Abdulrahman v. Sec’y, HHS, No. 12-391V, 2014 WL 6660721, at *1 (Fed. Cl. Spec.
Mstr. Nov. 3, 2014).

Based on my experience with both attorneys, in and out of the OAP, I find that
they exhibit similar legal skills in status conferences, filings, and docket management. I
have observed Mr. Cave in two hearings, but have not had the opportunity to observe
Ms. Hayes. Mr. Cave has an edge in experience, both in and out of the Vaccine
Program, but the difference in experience is not great. Both attorneys practice in similar
legal markets,19 and have handled comparable Vaccine Act cases consisting primarily
of OAP cases initially and later branching out to represent petitioners in other Vaccine
Act cases. They claim similar areas of expertise. Mr. Cave is a principal in his very
small law practice and has been in practice about five years longer than Ms. Hayes. On
the other hand, Ms. Hayes has been recognized as a Louisiana Rising Star by Super
Lawyers and Mr. Cave does not have a similar accolade. Compare http://www.murray-
lawfirm.com/attorneys/jessica-w-hayes, with Pet. Ex. A at 1-2. Considering these
factors, I find Ms. Hayes’ practice in the Vaccine Program an appropriate starting point
in determining “reasonable attorneys’ fees” for Mr. Cave using “the prevailing market
rate” for Baton Rouge, LA from 2005 to 2014.

In most of Ms. Hayes’s OAP cases, she requested and was awarded an hourly
rate of $150.00 for her efforts throughout all years of the litigation. An example of one
such case is Rice v. Sec’y, HHS, No. 07-63V. However, in the 2012 fees application in
Rice, Ms. Hayes presented a well-documented argument that the appropriate market
rate for her services at that time was $250.00 per hour. Nevertheless, in recognition
that much of the work she performed in her OAP cases occurred several years prior,
including her work in Rice, she requested only $150.00 per hour.20 I am aware that in
recently filed cases, Ms. Hayes has requested and received the $250.00 per hour rate.

Mr. Cave points to the hourly rate of $275.00 that he claims I awarded him in
Hayes v. Sec’y, HHS, No. 06-738 (2010) as evidence that an hourly rate of $275.00 is

18
Hayes v. Sec’y, HHS, No. 06-738 (2010) is discussed below.
19
The cases cited by respondent aided me in determining that “the prevailing market rate” in New
Orleans, after the devastation of Hurricane Katrina, should be considered parallel to that of Baton Rouge.
Stogner, 2011 WL 6140670, at *2, n.4. Since Hurricane Katrina struck New Orleans on August 29, 2005,
the two cities have constituted a similar legal market throughout most of the period of Mr. Cave’s
representation of petitioners.
20
The parties’ stipulation appears to reflect the $150.00 per hour rate. Rice, Decision Awarding
Attorneys’ Fees and Costs at 2 (dividing the fee awarded by the hours requested yields an hourly rate of
approximately $150.00).

10
appropriate. Reply at 5. Although this case provides some evidence of Mr. Cave’s
billing rate, I did not approve any specific hourly rate because the decision awarding
fees and costs was based on a stipulation. Mr. Cave claims that “[u]sing the rate of
$275.00 per hour, a stipulation was reached between the parties” in the Hayes case.
Reply at 5. A closer examination of the facts and procedural history indicates that my
award of fees and costs could as easily be read to support a lower hourly rate.21

Even if I accept petitioners’ claim that Mr. Cave’s hourly rate in Hayes was set at
$275.00, that rate was the result of an agreement between petitioners and respondent.
In this case, respondent disagrees with petitioners’ requested hourly rate. Response at
4, 6. Nevertheless, I have considered the award in Hayes and the requested hourly rate
as some evidence in this case of what a willing buyer would pay a willing seller for legal
services performed by Mr. Cave.22

Petitioners bear the burden of demonstrating that petitioners’ requested hourly
rate is reasonable. See Blum, 465 U.S. at 895, n.11. In the absence of sufficient
reliable evidence submitted by petitioners, I have used my experience in the Vaccine
Program and the Consumer Price Index to arrive at reasonable hourly rates for an
attorney of Mr. Cave’s competence and experience performing services in the Vaccine
Program. See Hensley, 461 U.S. at 434.

I conclude that, for Vaccine Program work, the 2005 “local rate” in Baton Rouge,
LA, for attorneys with five or more years of experience was $175.00 per hour. In 2014,
the rate for attorneys with ten or more years of experience is $275.00 per hour.

Extrapolating from these points of reference, and considering both the Consumer
Price Index for cost of living and the increase in Mr. Cave’s experience over this range; I
award Mr. Cave a rate of $175.00 per hour for 2006, $181.00 per hour for 2007, and
$186.00 per hour for 2008. Mr. Cave had more than 10 years of experience as an
attorney in 2009. Therefore, extrapolation from the $275.00 per hour rate for 2014 by
applying the Consumer Price Index results in hourly rates of $248.00 per hour for 2009,
$253.00 per hour for 2010, $261.00 per hour for 2011, $266.00 per hour for 2012, and

21
Petitioners prevailed on their entitlement claim in Hayes. Because the fees decision was based on an
agreement of the parties, I did not approve any specific hourly rate. A total of $67,333.75 in fees and
$16,031.07 in costs was requested in Hayes. Pet. Mot. at 13, ECF No. 81. Mr. Cave sought
compensation for 244.85 hours, which if awarded at $275 per hour would total the amount requested for
fees, $67,333.75. However, the stipulation filed in Hayes provided only $62,500.00 for attorneys' fees
and $15,531.07 in attorney’s costs. Stipulation at ¶ 3, ECF No. 82. By comparison, if 244.85 hours were
billed at $250.00 per hour the result would be an award totaling $61,212.50, an amount very close to the
stipulation’s total award for fees. However, as respondent in Hayes may have negotiated a reduction in
hours rather than a reduction in Mr. Cave’s hourly billing rate, the Hayes stipulation and Decision on
Attorney Fees and Costs, filed on July 19, 2011, is not dispositive in verifying Mr. Cave’s assertion that a
rate of $275.00 was used in reaching the stipulation in Hayes.
22
See Rodriguez, 2009 WL 2568468, at *14 (stating that rates negotiated between Vaccine Act
petitioners' counsel and the Department of Justice were informative, but not dispositive, in determining a
“forum rate”).

11
$270.00 per hour for 2013. These rates are used in Table 1 in Part B,4, Fee Amounts
Based on Adjusted Hourly Rates, to calculate the fee award.

B. Hours Billed.

Mr. Cave seeks reimbursement for a total of 176.823 hours spent working on the
case. Pet. Ex. C at 7. Respondent objected to counsel’s accounting of time, and
argued that travel time should be billed at half rate, that attorney time spent on paralegal
or secretarial tasks should be disallowed or adjusted to a lower hourly rate, and that
hours based on entries “too vague to permit review as to reasonableness” and hours
that are “excessive” should be reduced. Response at 7-11.

1. Travel Time.

In entries on July 25, 2012 and July 26, 2012, Mr. Cave billed a total of 22.75
hours for travel related to the fact hearing in Sacramento, California. See Pet. Ex. C at
6. Respondent objected to reimbursing Mr. Cave’s travel time at the full hourly rate
claimed, pointing out that travel time has historically been reimbursed at one-half the
hourly rate24 claimed. She argued that there was no evidence that work on petitioners’
case was performed during travel time. Response at 9.

Respondent’s representations regarding the historical treatment of travel time for
billing purposes are correct. See Rodriguez, 2009 WL 2568468, at *21 (citing Carter v.
Sec'y, HHS, No. 04–1500V, 2007 WL 2241877 (Fed. Cl. Spec. Mstr. July 13, 2007);
Scoutto v. Sec'y, HHS, No. 90–3576V, 1997 WL 588954 (Fed. Cl. Spec. Mstr. Sep. 5,
1997)).

Mr. Cave replied that he did in fact perform work during some parts of the
recorded travel time, including that “counsel brought his laptop and binders on the plane
for review, and did in fact review them in preparation for the hearing.” Reply at 5. Mr.

23
Mr. Cave’s billing records reflect time accounting in hours and minutes. However, his total fee request
was for 10,610 minutes or 176.8 hours. Because this billing method makes calculation of awards more
difficult, I have converted time periods billed in minutes to tenths of an hour.
24
Historically, attorneys in the Vaccine Program have been compensated for all their travel time at half
their hourly rate. This approach recognizes the difficulty of making contemporaneous billing entries for
time spent working on the case while traveling, the lack of efficiency in attempting to work on an airplane
or other public transportation, and the recognition that no meaningful work can be performed during
ticketing, security screening, boarding and exiting an aircraft, recovering checked luggage, and in picking
up a rental car. Compensating attorneys at a full hourly rate for work performed during travel is possible
only when the attorney provides sufficient billing records to substantiate that the attorney actually
performed case related work during travel. Like counsel, the special masters frequently travel to hearings
and are aware that, even with the best of intentions, working on a case during travel is difficult and only
rarely as productive as time in the office in terms of both quantity and quality of work. Compensating all
travel at one-half the hourly rate represents a compromise, recognizing that travel represents some lost
opportunity cost for an attorney and that the attorney is less efficient when working on a case during
travel.

12
Cave also included “time spent with petitioners while eating and being transported [by
the petitioners],” as it “was spent in reviewing the case and preparing for trial.” Id. at 6.

Petitioners apologized for their counsel’s lack of detailed records to account for
his work completed during the 22.75 hours billed for travel. Id. They proposed reducing
14.75 hours of time billed during travel to half Mr. Cave’s hourly rate, while awarding his
full hourly rate for the remaining 8 hours, to account for “one hour each day for lunch
with clients,25 one hour each day for transport to and from Sacramento airport, three
hours of case review on [the] plane to Sacramento, and one hour writing notes of court
questions and other thoughts post-trial on [the] plane.” Id.

Although a petitioner’s attorney may be able to present sufficient documentation
for an award of full hourly rates for travel time, each case should be assessed on its
own merits. Gruber v. Sec’y, HHS, 91 Fed. Cl. 773, 791 (2010). As with other fees,
“the underlying guidance for Vaccine Program Special Masters when determining
appropriate fee awards is articulated in the Vaccine Act at 42 U.S.C. § 300aa-15(e)(1)
and requires that the fees be ‘reasonable,’” and the burden is on the fee applicant “to
document the fees claim submitted in a manner that will enable the Special Master to
reach a reasoned decision.” Id.

Mr. Cave did not prepare contemporaneous billing records. The practice of
compensating attorney travel time at half rate reflects that even if an attorney is
performing case-related work, the vicissitudes of travel are such that no attorney is
operating at peak efficiency on an airplane or a train, much less while traveling to or
from an airport, undergoing security screening, or boarding or exiting an aircraft. The
half-rate awarded for all travel time in this case reflects both the lack of
contemporaneous billing for case-related work and the lost opportunity costs case-
related travel entails.

I will compensate Mr. Cave for all of the time spent in travel (22.8 hours), but at a
rate of $133.00 per hour, which is one-half the hourly rate, $266.00, for work in 2012,
when the travel was performed. See Pet. Ex. C at 6. I therefore reduce Mr. Cave’s
attorney fees total by $3,032.40. This amount is reflected below in Table 2: Deductions
from Total Fee Amount, Section B,5.

2. Secretarial and Paralegal Tasks.

Respondent asserted that some tasks performed by Mr. Cave were secretarial or
paralegal in nature and that billing for them should be disallowed or reduced. Response
at 9. Petitioners dismissed respondent’s objection as “without merit as the tasks were
performed by undersigned counsel,” arguing that respondent “ignores the fact that
technology allows lawyers. . . to perform tasks more efficiently, and not rely on the
arcane ways of performing tasks such as dictating a secretary’s or paralegal’s work,
reviewing it, correcting/editing it, etc. Email, for example, is a much more efficient mode

25
The hearing took less than three hours. Tr. at 111.

13
of communication between a lawyer and client, than dictating a letter, reviewing it for
correctness, signing it, etc.” Reply at 6-7.

Both arguments have some merit. Mr. Cave is compensated for all client
contact, regardless of the methods he employed in such contact.

I agree with respondent that tasks which are secretarial in nature represent
overhead expenses and are thus not compensable. See Response at 9 (citing Johnson
v. Sec’y, HHS, No. 90-645V, 1992 WL 247565, (Fed. Cl. Spec. Mstr. Sept. 14, 1992);
Cowan v. Sec’y, HHS, No. 90-1189, 1993 WL 410090 (Fed. Cl. Spec. Mstr. Sept. 30,
1993). Respondent is correct that, to the extent that tasks are properly characterized as
secretarial or administrative, time spent on them is not compensable, regardless of
whether the task was performed by counsel or delegated to a secretary.

However, as respondent has not identified any specific tasks as administrative or
secretarial and has not asked that I disallow times associated with any specific tasks, I
will consider all of the tasks performed in this case that did not require an attorney’s skill
and expertise to be paralegal in nature.

I also agree with respondent that compensation for paralegal tasks performed by
an attorney should be compensated at a paralegal rate. Ordinarily, an attorney should
not bill for attorney time for tasks that a paralegal should perform, nor should he bill for
paralegal time when the tasks involved are of a secretarial nature. See, e.g., Plott v.
Sec’y, HHS, No. 92-633V, 1997 WL 842543, at *4-5 (Fed. Cl. Spec. Mstr. April 23,
1997). Respondent correctly noted that attorney work more appropriately performed by
a paralegal is compensable, but may be subject to a reduced billing rate. Response at
9-10 (citing Savin v. Sec’y, HHS, 85 Fed. Cl. 313 (2008); Barnes v. Sec’y, HHS, No. 90-
1101V, 1999 WL 797468, at *4 (Fed. Cl. Spec. Mstr. Sept. 17, 1999)). A special master
may rely on his or her “experience with the Vaccine Program” to determine that certain
tasks are “more consistent with paralegal duties.” Valdes v. Sec’y, HHS, 89 Fed. Cl.
415, 425 (2009). In the absence of any evidence by either party of an appropriate
hourly rate for a paralegal in the Baton Rouge area, I will rely on my experience in the
Vaccine Program and compensate paralegal tasks at a rate of $110.00 per hour.

In reviewing Mr. Cave’s billing records, I have identified a number of tasks he
performed for petitioners which do not require an attorney’s skill and expertise, and
would more appropriately be performed by a paralegal. Such tasks include preparing
exhibit books, filing medical records, labeling and printing photographs, and preparing
notices of filings or letters to the “Clerk.”

Rather than conduct a line-by-line analysis of Mr. Cave’s bill and make specific
deductions in specific years, I have approximated the paralegal tasks performed
between 2005 and 2014 to constitute 4.3 hours of the total attorney time billed. Using

14
an average hourly rate of $257.00 for work performed by Mr. Cave from 2005-2014,26
multiplied times the 4.3 hours, I have deducted $1105.10 from Mr. Cave’s total
attorney’s fees claim for tasks more appropriately performed by a paralegal. I then
award 4.3 hours at the paralegal hourly rate of $110.00 per hour to Mr. Cave’s total
attorney’s fees award, which results in an increase of $473.00. The net reduction of
$632.10 is reflected below in Table 2: Deductions from Total Fee Amount.

3. Vague Entries and Unnecessary Hours.

Respondent asserted that some entries (such as those for emails, letters, and
phone calls to and from petitioners, time spent reviewing the case file, and time spent
on research), are too vague to permit review of reasonableness, and should be
disallowed. Response at 11. In addition, respondent called the time billed for some
specified tasks “excessive.” Id. Petitioners replied simply that the level of detail
respondent requests is “absurd,” and that the record contains a full explanation made
contemporaneously with the tasks performed. Reply at 7.

I reject respondent’s “vagueness” argument here, but note that explaining what
exhibits were reviewed, for example, would obviate the need to respond to such
objections. However, my review of Mr. Cave’s billing records does disclose some
excessive periods billed for performing relatively simple tasks. Non-exhaustive
examples of this overbilling include 20 minutes on April 26, 2006 to review a standard
order filled in virtually all Vaccine Act cases and billing 30 minutes on May 18, 2011 for
filing a short motion for extension of time. Pet. Ex. C at 3. Mr. Cave’s records reflect
many similar examples of billing excessive time for tasks that should have taken very
little time. Such entries are simply unreasonable amounts of time to spend on tasks for
attorneys with Mr. Cave’s level of experience, in and out of the Vaccine Program. I
therefore reduce the total hours claimed by two hours for this overbilling at a rate of
$257.00, the same hourly average used in subsection III.B.2, above.

4. Summary for Attorneys' Fees

Based on the hourly rates awarded and the hours requested by petitioners, the
following table represents the starting point for fees, prior to any of the deductions for
travel, overbilling, or the performance of paralegal tasks.

26
Based on the hourly rates set in Section III A, above, I computed the total fees awarded to Mr. Cave,
$45,486.70 as set forth in Table 1, and divided that amount by the total hours originally claimed, 176.8.
This resulted in an average hourly billing rate of $257.00 for this case.

15
 Table 1: Fee Amounts Based on Adjusted Hourly Rates:

Year Hours Billed27 Hourly Rate Total
2005 10.9 $175.00 $1,907.50
2006 0.9 $181.00 $162.90
2007 1.0 $186.00 $186.00
2008 1.1 $193.00 $212.30
2009 4.9 $248.00 $1,215.20
2010 4.5 $253.00 $1,138.50
2011 55.2 $261.00 $14,407.20
2012 75.1 $266.00 $19,976.60
2013 19.9 $270.00 $5,373.00
2014 3.3 $275.00 $907.50
Totals 176.8 $45,486.70

5. Deductions from Mr. Cave’s Fees.

The total fees calculated using the adjusted hourly rates, $45,486.70, are
reduced by the deductions listed below in Table 2, $4,178.50, resulting in a fees award
of $41,308.29.

Table 2: Deductions from Total Fee Amount:

Reason for Deduction Discussed Amount
Travel Time Section III.B.1 ($3,032.40)
Paralegal Tasks Section III.B.2 ($632.10)
Overbilling Section III.B.3 ($514.00)
Total Deductions to Fees ($4,178.50)

C. Costs.

The special master is charged with determining what fees and costs are
reasonable. See Wasson v. Sec'y, HHS, 24 Cl.Ct. 482, 486 (1991), aff'd, 988 F.2d 131
(Fed. Cir. 1993). Costs that are not adequately documented may be disallowed.
Sabella, 86 Fed. Cl. at 209; Ceballos v. Sec’y, HHS, No. 99-97V, 2004 WL 784910, at
*13 (Fed. Cl. Spec. Mstr. Mar. 25, 2004).

Petitioners requested a total of $4,072.27 in attorney costs. Pet. Ex. C at 1.
Respondent objected to some of petitioners’ travel and expert consultation costs as
excessive, noting that petitioners did not submit receipts or documentation of any of
their costs. Response at 12, n.9. Specifically, respondent objected to petitioners’

27
In the future, Mr. Cave should convert any fees application involving periods of less than an hour into
tenths of an hour increments, rather than billing by minutes.

16
request for $108.00 billed by counsel to sit in a higher class of seating during his travel.
Id. at 12. I agree with respondent that the extra expense is one for comfort rather than
necessary for health, and thus represents an expense which would not be reimbursable
for either respondent’s counsel or the special master. This extra cost must be borne by
Mr. Cave and not the Vaccine Trust Fund. This $108.00 cost will be deducted from
petitioners’ total fee amount, which is illustrated in Table 3: Disallowed Attorney’s
Costs.

Respondent also objected to the $2,333.10 invoice submitted by Dr. Stephanie
Cave for an “Expert Consultation,” citing a global objection to her involvement in the
case as unreasonable, and a specific objection to her hourly rate of $350.00 as
excessive.28 Response at 12. Respondent notes that Dr. Cave billed two hours for
drafting a report that was never filed, and that her work appears to primarily have been
in the capacity of a consultant, which is normally billed at a lower rate than a medical
expert opinion. Id.

I agree with respondent’s characterization of Dr. Cave’s role as a consultant in
this case rather than a medical expert. Petitioners did not provide any evidence of her
qualifications for expert fees. She was one of E.L.M.’s treating physicians, beginning
her treatment on January 27, 2005, just five days prior to petitioners’ initial client call
with Mr. Cave and just one month before the claim was filed on February 28, 2005. Pet.
Ex. 11, p. 9; Pet. Ex. C at 3; see also Mooney v. Sec'y, HHS, No. 05–266V, 2013 WL
3874444, at *3 nn.13-14 (Fed. Cl. Spec. Mstr. July 3, 2013). As noted in my fact ruling,
Dr. Cave is also the mother of petitioners’ counsel, Mr. Cave. Id. at *3. This familial
relationship with Mr. Cave would severely undercut the weight afforded to any expert
opinion Dr. Cave might have rendered.

None of Dr. Cave’s work product was filed, so I am unable to assess the nature
of her contributions directly. However, the quality of any opinion that this case could or
should proceed on a Table injury theory is highly questionable. As noted in my fact
ruling, even accepting the testimony and joint affidavit of petitioners at face value, the
symptoms described did not rise to the level of a Table encephalopathy, and both Mrs.
Mooney’s journal and the video records rebutted the existence of a chronic
encephalopathy persisting for the required six months. Id. at *8-11, 14-15.

Nevertheless, even experts with questionable qualifications have been used as
consultants in Vaccine Act cases,29 and their time and efforts have been compensated

28
Doctor Cave’s bill indicated an hourly rate of $350 per hour. However, multiplying the hours billed
times that rate, her bill should have been $2,240.00 rather than $2,333.10, the amount actually billed.
29
For example, despite concerns expressed by both special masters and judges about the qualifications
of Dr. Mark Geier as an expert in Vaccine Act cases, his use as a consultant has been approved.
Decisions about his lack of qualifications to offer expert opinions include: Piscopo v. Sec'y, HHS, No. 01–
234V, 66 Fed. Cl. 49 (2005) (approving a determination that Dr. Geier did not have the education,
training or experience to proffer a reliable opinion on autoimmune disorder); Ormechea v. Sec'y, HHS,
No. 90–1683V, 1992 WL 151816 at *7 (Cl.Ct. Spec. Mstr. June 10, 1992) (“Because Dr. Geier has made
a profession of testifying in matters to which his professional background (obstetrics, genetics) is

17
at a consultant rate. In Vaccine Act litigation, expert consultants research medical
literature and assist in reviewing and assessing the merits of a petition. See Ray v.
Sec'y, HHS, 04–184V, 2006 WL 1006587 (Fed. Cl. Spec. Mstr. Mar. 29, 2006). Expert
consultants play an important role in aiding counsel to understand complex scientific
and medical questions even if they may not be qualified to offer an expert opinion or if
other factors make appearance as a witness problematic.

However, an attorney does not have a blank check to hire anyone as a
consultant at any rate to perform any type of service. Without the check on consultant
fees imposed by a private client's concern for his or her bank balance, oversight of
counsel's professional obligation to keep consultant fees reasonable is provided by both
respondent and the court. See, e.g., Kuperus v. Sec'y, HHS, 01–60V, 2006 WL
3499516 (Fed. Cl. Spec. Mstr. Nov. 17, 2006) (a special master has discretion to review
costs charged for experts). When an expert is retained and files an expert report, the
complexity of the issues and the medical records in the case, the nature of research
conducted and filed, the expert's qualifications, the quality of the report, and many other
factors can be used to assess the reasonableness of the hours claimed. When no work
product is provided to the court by a consultant, the assessment of the reasonableness
of the hours and fees claimed becomes far more difficult.

Although I have deep concerns about the potential for bias that arises in cases
where the attorney and his expert share a close familial relationship, particularly since
they may refer cases to one another, Dr. Cave did not file an expert report or testify.
Moreover, as a treating physician, she may have had insights into this case not readily
available to an outside consultant. Since she served as a consultant, the only work
product available is her bill. See Carrington, 2008 WL 2683632, at *10. Doctor Cave’s
bill details the time spent on various activities related to the case. While my experience
permits me to appreciate why Mr. Cave sought expert assistance, neither Dr. Cave’s
hourly billing rate nor the total number of hours is adequately justified.

Petitioners assert that “the first two hours billed by Dr. Cave were as a result of
the Court asking counsel to review his files to see what files needed to go forward and
what files needed to be dismissed following the conclusion of the Omnibus Autism
Proceeding.” Reply at 7. More specifically, Dr. Cave was asked to review this case and
other of Mr. Cave’s OAP cases to see “if there were any encephalopathy cases and/or
any mitochondrial disorder cases, as opposed to strictly autism cases.” Id. She then
was further consulted for trial preparation, in which she reportedly reviewed the medical
records, pictures, videos, and journals/records. Id. at 8.

unrelated, his testimony is of limited value to the court.”); Daly v.Sec'y, HHS, No. 90–590V, 1991 WL
154573, at *7 (Cl.Ct. Spec. Mstr. July 26, 1991) (“Dr. Geier clearly lacks the expertise to evaluate the
symptomatology of the Table injuries and render an opinion thereon.”). Nevertheless, I authorized the
payment of consultant fees to him in Lamar v. Sec'y, HHS, No. 99–584V, 2008 WL 3845157, at *15 (Fed.
Cl. Spec. Mstr. Jul. 30, 2008).

18
 Of the six hours and forty minutes billed by Dr. Cave, I find that two hours she
spent on reviewing the medical records to determine if the case presented a colorable
Table claim or another theory of causation after the collapse of the OAP test case
theories are reasonable. These hours are consistent with prior awards made to other
consultants performing similar reviews in other OAP cases. See Whiffen v. Sec’y, HHS,
No. 03–1223V, Order of Dec. 15, 2010 at 14-15 (recognizing the reasonableness of
awarding fees for a physician’s review of clients’ medical records).

Additionally, it may be appropriate for a medical consultant to assist counsel in
preparing for a hearing. However, I question both the need for Dr. Cave’s services in
preparing counsel for what was a fairly straightforward fact hearing, and the conclusions
drawn regarding the viability of a Table claim based on petitioners’ own assertions and
the other evidence presented. In this regard, I note that both Dr. and Mr. Cave have
advanced a somewhat unusual view of what constitutes a Table encephalopathy, a view
I rejected in this case. Mooney, 2013 WL 3874444, at *1-2. Both the former Chief
Special Master and I similarly rejected this view in Blake v. Sec’y, HHS, No. 03-31V,
2014 WL 2769979, at *11-12 (Fed. Cl. Spec. Mstr. June 18, 2008). However, this was
the first case of Mr. Cave’s in which I ruled on the factual predicate necessary for such a
Table injury. Under these circumstances, I approve two additional hours of Dr. Cave’s
services for hearing preparation. I do note that a review of the medical records, Mrs.
Mooney’s journals, and the video records would render it virtually impossible to
conclude that the minor child sustained an acute or chronic encephalopathy as defined
in the Vaccine Injury Table, and I am unlikely to authorize Dr. Cave’s consultant fees for
hearing preparation in any similar cases filed by Mr. Cave.

I have previously awarded medical consultants a rate of $250.00 per hour based
on their limited role in medical records review. Lamar v. Sec’y, HHS, No. 99-584V,
2008 WL 3845157, at *15 (Fed. Cl. Spec. Mstr. July 30, 2008) (awarding Dr. Geier
$250.00 per hour for his consultant work); see also Ray v. Sec'y, HHS, No. 04–184V,
2006 WL 1006587, at *12 (Fed. Cl. Spec. Mstr. Mar. 30, 2006) (awarding Dr. Geier
$250.00 per hour for his consultant work). In the absence of any evidence warranting a
higher rate, I will award her the same hourly rate. A total cost of $1,000.00 is thus
authorized for Dr. Cave’s services in this case.

Petitioners’ fee application included a statement pursuant to General Order #9
setting forth petitioners’ personal litigation costs, representing that they incurred
$150.00 in personal litigation costs. Pet. Ex. C at 1. Although petitioners did not
document this cost, I will presume it represents the filing fee, and thus find it
compensable.

The following table provides a summary of disallowed costs:

19
 Table 3: Disallowed Costs:

Cost Amount
Airline Upgrade ($108.00)
Consultant Fee for Dr. Cave ($1,333.10)
Total Deductions to Costs ($1,441.10)

The total attorney’s costs requested, $4,072.27, is reduced by the disallowed
costs listed above in Table 3, ($1,441.10), for a total award of attorney’s costs in the
amount of $2,631.17.30

IV. Total Award Summary.

Table 4 reflects the total award calculations in this case.

Table 4: Total Amount Awarded:

Description Amount
Attorney’s Fees $41,308.20
Attorney’s Costs $2,631.17
Subtotal $43,939.37
Petitioner’s Costs $150.00
Total Award $44,089.37

I hold petitioners are entitled to reasonable attorneys’ fees and costs pursuant to
§ 15(e)(1). For the reasons contained herein, I find the amount of $43,939.3731 in the
form of a check payable jointly to petitioners, Bob and Carmel Mooney, and
petitioners’ counsel of record, Michael Cave, Esq., for petitioners’ attorney’s fees
and costs. I also find the amount of $150.00 in the form of a check payable solely
to petitioners, Bob and Carmel Mooney, for petitioners’ personal litigation costs.

30
See Table 4.
31
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses
all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir. 1991).

20
The clerk of the court shall enter judgment in accordance herewith.32

IT IS SO ORDERED.

s/Denise K. Vowell
Denise K. Vowell
Chief Special Master

32
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. See Vaccine Rule 11(a).

21