McCulloch v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 09-293V
Filed: September 1, 2015
[TO BE PUBLISHED]

* * ** * * * * * * * * * * * * * * *
RACHEL MCCULLOCH, *
as parent and legal guardian of A.M., *
*
*
Petitioner, * Interim Attorneys’ Fees and Costs;
* Forum Hourly Rate; Boston Local Rate.
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * ** ** * *

Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Debra A. Filteau Begley, United States Department of Justice, Washington, DC, for respondent.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1

Gowen, Special Master:

On May 11, 2009, Rachel McCulloch (“petitioner”) filed a petition on behalf of her minor
daughter (“A.M.” or “minor child”) for compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. § 300aa-10 – 34 (2012)2 (the “Vaccine Act” or “the Program”).
Petitioner alleged that as a result of receiving a Human Papillomavirus vaccine (“HPV” or
“Gardasil”) on August 16, 2007, her minor child developed a severe neurological injury. On
December 7, 2009, petitioner filed an Amended Petition alleging that the HPV vaccine caused the

1
Because this published ruling contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). 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, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of
42 U.S.C. § 300aa (2012).
1
minor child to develop encephalitis, intractable epilepsy, and subsequent developmental delays.
See Amended Petition at Preamble.
A ruling on entitlement was issued on May 22, 2015, after a two-day hearing and extensive
post-trial briefing by both parties. I rendered a decision finding that the petitioner was entitled to
compensation for A.M.’s injuries. No damages award has been issued yet.

On March 18, 2015, petitioner filed a Motion for Interim Attorneys’ Fees and Costs with
a supporting memorandum (“Pet. Motion”). Petitioner requests $156,343.60 for attorneys’ fees,
$75,860.52 for costs, and $250.00 in costs personally incurred by the petitioner, Rachel
McCulloch. See Pet. Motion at 1. Petitioner filed detailed time sheets and invoices in support of
her motion. See generally Pet. Motion Tab A at 4-133. Petitioner also requests that I determine
appropriate 2014 and 2015 hourly rates for Conway Homer & Chin-Caplan (“CHC”) attorneys,
law clerks, and paralegals, as petitioner and respondent are no longer operating under the fee
agreement reached in Carr v. Secy’ of HHS, No. 00-778V, 2006 WL 1073032 (Fed. Cl. Spec. Mstr.
Mar. 29, 2006). See Pet. Memorandum for Interim Attorneys’ Fees and Costs (“Pet. Memo”) at 2.
Petitioner argues that CHC is entitled to forum rates of Washington, D.C. Id.

On May 12, 2015, respondent filed a response opposing petitioner’s motion for interim
attorneys’ fees and costs, “on the grounds that (1) an award of interim attorneys’ fees and costs are
[sic] not appropriate at this time, (2) the attorneys’ hourly rates sought for the period of March 31,
2014 to the present are not reasonable, and (3) portions of the time expended by [petitioner’s]
counsel are excessive and/or unreasonable.” Respondent’s Opposition to Petitioner’s Application
for Attorneys’ Fees and Costs (“Resp. Response”) at 1. Respondent suggests that the petitioner’s
attorneys’ fees be reduced by $77,892.60, and costs reduced by $1,857.00. See Resp. Response at
40-41. Respondent does not object to awarding $250.00 for costs expended by Rachel McCulloch.

On June 5, 2015, petitioner filed a reply in further support of her interim fee and cost
requests. Petitioner argues that an award of interim attorneys’ fees and costs is appropriate under
Avera where, as in this case, the fees and costs are substantial and an award will prevent undue
hardship. See Pet. Reply at 4-5 (citing Avera, 515 F.3d 1343, 1352 (Fed. Cir. 2008)). Petitioner
further argues that the forum rates sought by counsel at CHC are reasonable as there is no
significant difference between the local Boston hourly rate and the Washington D.C. forum rate.
Id. at 7-10. With regard to the respondent’s objections to portions of time spent by CHC on this
case, petitioner argues for compensation for all their time, and further argues for compensation for
all costs.

Petitioner filed a supplemental fee request on June 5, 2015 in the amount of $16,752.00 for
preparing a reply to respondent’s response. See Pet. Supp. Motion for Interim Attorneys’ Fees and
Costs (“Pet. Supp. Motion”) at 1. On June 26, 2015, respondent filed a response to petitioner’s
supplemental fees motion and a sur-reply to petitioner’s reply. Respondent maintained her position
as indicated in her response, with the added argument that, based on recent forum rate decisions
by Special Masters, all attorneys at CHC (and not just the partners as respondent initially argued
in her response) should be awarded local rates because she contends there is a significant difference
between forum and local rates based on her suggested forum and local rates for CHC. See Sur-
Reply at 2-3. Respondent further argued that the rates under Carr are not supported by law or any
evidence, and that those rates have “provided a windfall to CHC” over the years. Id. at 4-6.

2
 During a telephonic status conference on the issue of petitioner’s interim fees and costs
request on June 17, 2015, the parties indicated that they would like a decision on the record without
a hearing or mediation. Accordingly, this matter is now ripe for a decision.

For the reasons set forth below, petitioner is awarded $165,326.60 for interim attorneys’
fees and $74,183.52 for interim costs incurred up to and including June 5, 2015. Petitioner is also
awarded $250.00 for costs personally incurred, pursuant to General Order No. 9.

I. BACKGROUND

A. Procedural History and Background of the Petition for Vaccine Program
Compensation

This case was filed on May 11, 2009, and assigned to then-Chief Special Master
Golkiewicz. In the eight months following the filing of the petition, petitioner filed extensive
medical records detailing A.M.’s diagnosis and treatment of “encephalitis of unknown origin.” See
Pet. Exhibit (“Ex.”) 1-20, 23.

Petitioner filed an Amended Petition on December 7, 2009, alleging that the HPV vaccine
caused petitioner to develop encephalitis, intractable epilepsy, and developmental delay. See
Amended Petition at Preamble. On March 9, 2010, respondent filed her Rule 4(c) Report against
compensation under the Vaccine Act asserting petitioner had not produced any medical or
scientific explanation of her claim sufficient to establish causation. Resp. Rule 4 at 10-11, docket
no. 25, filed Mar. 9, 2010. Respondent further argued that none of A.M.’s treating physicians
linked her condition to the HPV vaccination. Id. Accordingly, on April 8, 2010, petitioner was
ordered to file an expert report addressing the Althen criteria. See Althen v. Sec’y of HHS, 418 F.3d
1274, 1278 (Fed. Cir. 2005).

Petitioner filed a motion to stay the proceedings on September 7, 2010, stating that the
medical literature and scientific evidence at that time did not adequately address the safety of the
HPV vaccine, and that additional time was therefore needed “to allow the science surrounding the
[HPV vaccine] to develop.” Pet. Mot. to Stay Proceedings at 8. On October 7, 2010, respondent
filed a response to petitioner’s motion arguing against an indefinite stay of the proceedings. Resp.
Response to Motion to Stay at 4. After holding a status conference on November 23, 2010, Chief
Special Master Golkiewicz granted petitioner ninety days to file an expert report. Petitioner
subsequently filed an expert report from Dr. Svetlana Blitshteyn, along with several exhibits of
medical literature in support of the opinion on February 22, 2011. See Pet. Ex. 25-26.

The case was reassigned to Special Master Zane on March 16, 2011. Thereafter, respondent
filed a responsive expert report along with medical literature from Dr. John Sladky on April 22,
2011. See Resp. Ex. A-G. Petitioner filed a supplemental expert report from Dr. Blitshteyn on
August 16, 2011. See Pet. Ex. 27. Respondent filed a supplemental amended expert report from
Dr. Arun Venkatesan on November 21, 2011. See Resp. Ex. H. Petitioner filed a supplemental
report from Dr. Lawrence Steinman on October 10, 2012. See Pet. Ex. 34. Respondent filed a
responsive supplemental expert report from Dr. Venkatesan on March 25, 2013. See Resp. Ex.

3
Q-R.

After the parties indicated a willingness to engage in settlement discussions, Special Master
Zane ordered periodic status reports on the progress of settlement discussions beginning on July
15, 2013. Chief Special Master Vowell was assigned this case on September 6, 2013. After several
months of settlement negotiations, the parties filed a joint status report on December 20, 2013
stating settlement was not feasible. See Joint Status Report filed December 20, 2013.

Thereafter, I was assigned to this case on March 4, 2014 and an entitlement hearing was
held on April 10 and 11, 2014. After extensive post hearing briefing by both parties, a decision
finding that the petitioner was entitled to compensation for A.M.’s injury was entered on May 22,
2015.
B. Background of the Fee Dispute

Some background information is useful to the understanding of the issues presented in this
matter. The firm of CHC, located in Boston, Massachusetts, has long been one of the most active
firms in the representation of petitioners in the Vaccine Program. See Pet. Memo at 1. In fact, the
firm’s practice is limited to Vaccine Act cases. Id. at 2. Because of CHC’s significant participation
in the Program, and in order to avoid unnecessary litigation over hourly rates, the parties reached
an agreement as to rates for CHC cases in 2006. At the request of the parties, former Chief Special
Master Gary Golkiewicz entered a decision in Carr v. Sec’y of HHS, setting forth the agreement
between the parties on hourly rates for CHC attorneys and paralegals based upon prevailing rates
for the Boston area. See Carr v. Sec’y of HHS, No. 00-778V, 2006 WL10730321, at *1-*4 (Fed.
Cl. Spec. Mstr. Mar. 29, 2006). This decision was entered at the request of the parties after
extensive discussion and similar briefing of their disagreement on appropriate hourly rates. See
generally id.

Carr set forth rates in 2006 for Kevin Conway ($300), Sylvia Chin-Caplan ($270), Ronald
Homer ($260), and firm paralegals at $95 per hour. Id. at *3. The parties further agreed that the
rates in the agreement (hereinafter referred to as “Carr rates”) would increase in specific annual
increments until the remaining two partners, Sylvia Chin-Caplan and Ronald Homer were billing
at $300 an hour. Id. Thereafter rates for Sylvia Chin-Caplan and Ronald Homer would be increased
in accordance with the annual rate of increase in the Consumer Price Index (“CPI”). Id. The rates
for partner Kevin Conway and firm paralegals would also be adjusted after 2006 consistent with
the CPI. Id. The parties generally operated under that agreement through March 2014, as
petitioners represented by CHC submitted fee requests with the agreed upon hourly rates, to which
respondent generally did not object. Specifically, as to this case, CHC submitted billings under the
Carr rate for all activity prior to March 2014, and billed at their newly proposed hourly rates for
activity after March 2014 up to June 5, 2015, when their supplemental fees request was filed. See
Pet. Motion Tab A at 4-133.

As noted by former Chief Special Master Golkiewicz, the precedential value of his decision
in Carr was “restricted to the named attorneys and paralegals of CHC, and other vaccine lawyers
practicing in the relevant community of Boston.” Carr, 2006 WL 1073032 at *2. Furthermore, the
agreed upon rates and methodology for calculating those rates were to be used for the “time periods
indicated,” namely, from 2006 and thereafter, with annual CPI adjustments. Id. While the Carr

4
agreement did not have a specific expiration date, after nine years, CHC is requesting that the
agreement be reviewed in light of more recent fee decisions involving other counsel, and in light
of the Avera decision from the Federal Circuit indicating that the forum rate for Washington D.C.
should be utilized in fee decisions unless the locality where the bulk of the case work is performed
has a “very significant[ly]” lower rate than the forum rate (the “Davis exception”). Avera, 515
F.3d at 1348 (citing Davis Cnty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v.
U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). Petitioner here is seeking an upward
adjustment from the Carr rates— ranging from 20 to 45 percent— for different members of the
CHC firm. See generally Pet. Memo.

In her response, respondent initially contended that comparable attorneys’ fee rates in
Boston are 52 percent less than in Washington D.C. at the partner level and approximately 27
percent less at the associate level. Resp. Response at 12. Thus, according to respondent, the Davis
exception to the forum rule should apply to the partners, all of whom have more than 20 years of
experience as attorneys, because the partner rates in Boston are significantly less than they are in
Washington D.C. Resp. Response at 17 (citing the Davis exception as applied in Hall v. Sec’y of
HHS, No. 02-1052V, 2010 WL 1840837, at *10 (Fed. Cl. Spec. Mstr. May 5, 2010)) (internal
citations omitted). The respondent initially contended that the associates, all of whom have less
than 10 years of experience, should receive the Washington D.C. forum rate as she stated the Davis
exception does not apply when there is a 27 percent difference between the local rate and forum
rate. However, as stated in her sur-reply, respondent now contends that based on recent Vaccine
Program forum rate decisions in O’Neil,3 Barrett,4 and Scharfenberger,5 all of which awarded
higher rates for attorneys with 10 or less years of experience, the Davis exception should apply to
CHC associates as well because there is a now a “very significant difference” of 57 percent
between the forum and suggested local rates. See Sur-Reply at 2-3. The respondent also proposes
a significant downward adjustment in the Carr rates for CHC, ranging from 25 to 29 percent—
contending not only that an upward adjustment of the 2014-15 rates based on the CPI is not
justified, but also that the Carr rates over the years have provided a “windfall” for CHC. See Sur-
Reply at 4-5.

On June 17, 2015, I held a recorded status conference in which Kevin Conway, Ronald
Homer and Joseph Pepper participated for the petitioner, and Debra Begley, Catherine Reeves,
Voris Johnson, and Darryl Wishard participated on behalf of the respondent. See Transcript,
docket no. 141, June 25, 2015. During the status conference, Mr. Homer emphasized the need for
a timely decision on this issue as all the firm’s fee applications were now being litigated and thus
may potentially affect the firm’s ability to retain necessary experts for ongoing cases. Id.
Respondent’s counsel, Ms. Begley, indicated the respondent believed it had thoroughly set forth
her objections to CHC’s proposed hourly rates and fee request based on her interpretation of the
evidence to support a forum versus local rate. The parties were offered the opportunity to engage
in mediation or to have a hearing on this issue. Id. Both parties elected to proceed to a decision on
3
O’Neil v. Sec’y of HHS, No. 08-243V, 2015 WL 2399211, at *7 (Fed. Cl. Spec. Mstr. Apr. 28,
2015).
4
Barrett v. Sec’y of HHS, No. 09-389V, 2014 WL 2505689, at *13 (Fed. Cl. Spec. Mstr. May 13,
2014).
5
Scharfengerger v. Sec’y of HHS, No. 11-221V, 2015 WL 3526559, at *10 (Fed. Cl. Spec. Mstr.
May 15, 2015).
5
the record. Id.

II. ANALYSIS

A. Legal Standard

Interim fee awards are permissible under the Vaccine Act. See Avera, 515 F.3d at 1352;
see also Shaw v. Sec’y of HHS, 609 F.3d 1372 (Fed. Cir. 2010). In Avera, the Federal Circuit noted
that “interim fees are particularly appropriate in cases where proceedings are protracted and costly
experts must be retained.” Avera, 515 F.3d at 1352. The court reasoned that when the amount of
fees and costs is substantial, and/or there is a delay in an award, interim fees are appropriate to
prevent undue hardship. Id. This reasoning was extended in Shaw when the Federal Circuit held
that “where the claimant establishes that the cost of litigation has imposed an undue hardship and
there exists a good faith basis for the claim, it is proper for the special master to award interim
attorneys’ fees.” Shaw v. Sec’y of HHS, 609 F.3d 1372, 1375 (Fed. Cir. 2010).

The Federal Circuit in Avera noted, “[o]ne of the underlying purposes of the Vaccine Act
was to ensure that vaccine injury claimants have readily available a competent bar to prosecute
their claims.” Avera, 515 F.3d at 1352 (citing Saunders v. Sec’y of HHS, 25 F.3d 1031, 1035 (Fed.
Cir. 1994)). “Denying interim fee awards would clearly make it more difficult for claimants to
secure competent counsel because delaying payments decreases the effective value of awards.” Id.

Post-Avera, a number of judges and many special masters have found interim fee awards
permissible under various circumstances, including when petitioner’s counsel withdraws from the
case. See, e.g., Woods v. Sec’y of HHS, 105 Fed. Cl. 148, 154 (Fed. Cl. 2012) (Judge Williams
affirmed the special master’s award of interim fees and suggested that when counsel withdraws,
and it is unknowable how long case resolution might take, an interim award may be appropriate);
Dobrydnev v. Sec’y of HHS, 94 Fed. Cl. 134, 148 (2010) rev’d on other grounds, 98 Fed. Cl. 190
(2011) (Judge Braden held that a denial of petitioner’s request for interim fees for an expert witness
was prejudicial where the expert represented that he would not participate in further proceedings
without payment of outstanding bills petitioners could not pay); Nuttall v. Sec’y of HHS, No. 07-
810, 2011 WL 5926131, at *2 (Fed. Cl. Spec. Mstr. Nov. 4, 2011) (Special Master Moran found
that interim fees were appropriate as the case had been pending for approximately four years);
Hirmiz v. Sec’y of HHS, No. 06-371, 2011 WL 2680721, at *4 (Fed. Cl. Spec. Mstr. June 13, 2011)
(Special Master Hastings cited seventeen special master decisions granting interim fees in cases
where judgment on the merits had yet to be granted, and also found that the circumstances of the
case at hand warranted an award of fees in part because it seemed likely that it would be a long
time before a final decision would be rendered and that petitioner needed funds to obtain an expert
opinion).

Nevertheless, petitioner “bears the burden of establishing the hours expended” and the
reasonableness of the requested fee award. Wasson v. Sec’y of HHS, 24 Cl. Ct. 482, 484 (1991),
aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam). A special master has “wide
discretion in determining the reasonableness” of attorneys' fees and costs. Perreira v. Sec’y of
HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable attorneys’ fees
are determined by applying the lodestar method. Avera, 515 F.3d at 1347-48 (quoting Blum v.

6
Stenson, 465 U.S. 886, 888 (1984)). Under this method, the special master first determines an
“initial estimate [of fees] . . . by ‘multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate.’” Id. Then, the special master may make an upward or
downward departure from the initial calculation of the fee award based on specific findings. Id. at
1348. Additionally, the requirement that attorneys’ fees be reasonable also applies to costs.
Perreira, 27 Fed. Cl. at 34 (“Not only must any request for attorneys’ fees be reasonable, so must
any request for reimbursement of costs.”).

In making reductions, a line-by-line evaluation of the fee application is not required.
Wasson, 24 Cl. Ct. at 484. Special masters may rely on their experience with the Vaccine Act and
its attorneys to determine the reasonable number of hours expended. Id. Just as “[t]rial courts
routinely use their prior experience to reduce hourly rates and the number of hours claimed in
attorneys’ fee requests . . . [v]accine program special masters are also entitled to use their prior
experience in reviewing fee applications.” Saxton v. Sec’y of HHS, 3 F.3d 1517, 1521 (Fed. Cir.
1993).

B. Interim Fee and Cost Award

Interim fees may be paid at the discretion of the special master. While they are not routinely
awarded, interim fees may be awarded where the case has been proceeding for a significant amount
of time, where the fees and costs are substantial, or where a hardship would be created by not
awarding interim fees. Avera, 515 F.3d at 1352.

Petitioner argues that proceedings in the instant case “ha[ve] been extensive, costly experts
have been retained (costs are $75,860.52), and the requested fees ($156,343.60) are substantial.”
Pet. Reply at 4. Respondent argues that hardship under Avera refers specifically to a petitioner’s
hardship and not that of their counsel, and that “to the extent the circumstances of counsel are
relevant, . . . [CHC] has received over $21,500,000.00 in fees and costs paid by the Program since
2007,” and “that it would be disingenuous for [CHC] to assert that it would suffer financial
hardship if it were required to wait until this case is concluded to receive an award of fees and
costs.” Resp. Response at 4 (citing Avera, 515 F.3d at 1352 for the proposition that the “undue
hardship” requirement applies only to petitioners and not their counsel).

The respondent provided a chart showing the amount of fees earned by the CHC firm since
2007 to support her argument that CHC has no hardship and that in fact it has received a windfall
under the Carr rates. Respondent contended that CHC has handled 9.7 percent of the cases (350
cases) filed in the Program since 2007 and received 18.24 percent of the fees and costs paid. Resp.
Response at 8-9. CHC vigorously contested this argument on several grounds. First, CHC correctly
noted that all of its fees were approved by a special master, generally after input from the
respondent. Pet. Sur-Reply to Resp. Reply (“Pet. Sur-Reply”) at 21. Second, the $21.5 million
figure cited by the respondent failed to exclude costs and fees paid to persons outside the CHC
firm, such as fees paid to referring attorneys. According to petitioner’s counsel, the costs amounted
to $3.7 million and fees paid to other attorneys amounted to $1.2 million. Id. at 22-23.6 Third, and
most importantly, the fees paid to CHC reflected payment for 1100 cases handled, most of which
6
Respondent’s Response to Petitioner’s Reply at page 6 acknowledges that the data and evidence
relied upon by respondent does not makes the distinction between attorneys’ fees and costs.
7
were filed before 2007, not the 350 cases filed since that time as respondent asserts.7 Id. at 22; Pet.
Reply at 23 n. 3 (according to CHC, as of the time of filing of respondent’s objections in this
matter, no fee has been paid on 117 of the 350 cases respondent references). Petitioner submits
that it has received approximately $7.4 million in fees for cases filed since 2007, much less than
the $21.5 million suggested by respondent. Id.

In considering the parties’ arguments, I find that when the divisor is changed from 350
cases to 1100, and costs subtracted from $21.5 million, the suggested disproportion between fees
earned and cases litigated disappears. In fact, considering only the actual amount of fees CHC
received ($7.4 million), it appears CHC received 6.3 percent of the fees paid in the Program for
cases filed since 2007, not 18.24 percent. In a different view, when the total amount of attorneys’
fees and costs paid by the Program since 2007 is considered, (approximately $117.9 million), and
compared directly to the amount CHC actually received in cases filed since 2007 for attorneys’
fees for both the firm and for outside attorneys ($8.6 million) and including the amount CHC
received in costs ($3.7 million) (total $12.3 million), the percentage of total fees and costs paid to
CHC is 10.4 percent, and not 18.24 percent.8 Obviously, this number is much more in line with
the total number of cases filed since 2007.

Whether or not respondent intended to exaggerate the extent of fees received in order to
suggest a windfall, the effect of the argument was in fact misleading and needlessly so. The
argument is unpersuasive for other reasons as well. A statistic merely comparing the total amount
of fees to the number of cases handled fails to account for the complexity of the cases handled and
the extent of the defenses raised by the respondent. As the parties well know, the volume of work
required in vaccine cases varies dramatically based upon complexity. Fees for cases which are
conceded or stipulated at an early time in the litigation generate far lower fees than cases that
proceed through expert analyses, literature submissions, briefings, and hearings. Comparative
hourly rate data derived from other Vaccine Program cases, as will be discussed below, suggests
that the CHC firm has not received rates in excess of other attorneys in the Program, and that the
extent of fees earned is more reflective of the volume of work performed.

Moreover, the amount of fees and costs CHC has received in this Program since 2007 is
irrelevant to whether CHC is entitled to interim attorneys’ fees and costs in this specific matter—
a matter in which substantial costs have been incurred and considerable time expended over the
eight years since petitioner sought counsel from CHC in June 2008. CHC has been representing
petitioner in the litigation of this case since May 2009. The issues involved in the entitlement
7
Respondent’s opposition to petitioner’s application for interim attorneys’ fees and costs states:

Further, according to statistics published on HHS’s website, there were 3595
petitions filed between FY 2007 and FY 2014. According to a data search of the
court’s CM/ECF system, CHCC filed 350 cases between FY 2007 and FY 2014 or
about 9.7% of the total number of petitions filed. Thus, although CHCC filed only
about 9.7% of the Program’s petitions, CHCC was awarded about 18.24% of all
fees and costs in the program. Resp. Response at 10.
8
This number is derived by adding the total amount of fees ($8.6 million) and costs ($3.7 million)
and dividing that number ($12.3 million) by $117.9 million, equaling 10.4 percent.
8
portion of this case were complex, requiring significant medical research and expert testimony, as
well as preparation for a two-day entitlement hearing. Indeed, “protracted” litigation and “costly
experts” have been substantial in this case. The fees and costs which the firm has been carrying,
whether calculated by its formula or by the respondent’s, are substantial at $156,343.60 for fees
and $75,860.52 for costs based on petitioner’s figures, or $78,451.60 in fees and $74,003.52 in
costs based upon the respondent’s recommendations.

As to respondent’s argument that, under Avera, hardship refers to that of petitioner and not
her counsel, I find respondent’s argument lacks support in the law. Avera makes no indication,
either explicitly or implicitly, that the hardship requirement pertains only to petitioners and not
their counsel. In fact, as part of its reasoning for why interim fee awards are appropriate in the
Vaccine Program, the Federal Circuit reasoned that “denying interim fee awards would clearly
make it more difficult for claimants to secure competent counsel because delaying payments
decreases the effective value of awards.” Id. (emphasis added). Thus, the Federal Circuit clearly
considered counsel in its discussion of interim fee awards in the Vaccine Program. The value of
awards of fees and reimbursement of costs affects counsel not the individual petitioner.

Furthermore, there is little doubt that petitioner has brought this case in good faith and
established a reasonable basis for the claim as noted in Shaw. See 609 F.3d at 1375. A ruling on
entitlement in favor of the petitioner was issued on May 22, 2015.

Accordingly, petitioner is entitled to an award of interim attorneys’ fees and costs based
upon the age of the case, the extent of the work performed, and the amount of costs incurred.

C. Discussion of a Reasonable Hourly Rate

Nine years have passed since the adoption of the Carr rate agreement, and the special
masters acknowledge and appreciate that it is likely that considerable litigation, such as that
involved in this case, has been avoided by the willingness of both sides to agree to a formula for
rates. However, it is not unreasonable that the terms of such an agreement be reviewed after the
passage of this much time. The parties were strongly encouraged to engage in reasonable
discussion of rates that could form the basis of a new agreement. See Transcript dated June 17,
2015 at 4-5. But in light of the respective positions taken, an agreement was not forthcoming. Id.
at 7-8.

The petitioner’s fee request can best be summarized in table form and therein be compared
to the respondent’s proposed rate.9 The table will compare the Carr rates for 2014—which includes
a CPI adjustment of 1.5 percent, consistent with data provided by the U.S. Department of Labor
Statistics for all urban consumers10—with the rates proposed by CHC and by the respondent.

9
The information in the Table is taken from petitioner’s memorandum, filed March 18, 2015, and
respondent’s response and sur-reply, filed on May 12, 2015 and June 26, 2015 respectively.
10
The Bureau of Labor Statistics has a Consumer Price Index (“CPI”) Inflation calculator, which
uses the average CPI for a given calendar year. See US INFLATION CALCULATOR, Consumer Price
Index Data from 1913 to 2015, http://www.usinflationcalculator.com/inflation/consumer-price-
index-and-annual-percent-changes-from-1913-to-2008/ (last visited Aug. 10, 2015).
9
Attorney Carr Rate Pet. Proposed Rate Resp. Proposed Rate
Kevin Conway $358 $425 $270
Sylvia Chin-Caplan $327 $415 $250
Ronald Homer $327 $415 $230
Christine Ciampolillo $216 $310 $180
Joseph Pepper $216 $295 $170
Meredith Daniels $216 $285 $160
Paralegals $108 $135 $135
Law Clerks --- $160 $135

I will first consider the parties’ arguments in favor and against awarding a Washington
D.C. forum rate as opposed to awarding a local Boston, Massachusetts rate. Then, I will discuss
the current forum rates in Washington, D.C. generally, and forum rates specific to the Vaccine
Program. Based on the prevailing rate for legal work in Washington DC, the prevailing rate for
cases in the Vaccine Program, the experience of CHC attorneys (both in the Vaccine Program and
in the practice of law generally), the quality of work CHC performs in vaccine cases, and the
attorneys’ reputation in the legal community and community at large, I will determine reasonable
2014 and 2015 forum hourly rates for the above named CHC attorneys, paralegals and law clerks.

i. Local Rates vs. Forum Rates

At the time that the Carr rate agreement was reached and entered as a decision, Avera had
not been decided by the Federal Circuit. Most fees were determined by reference to the prevailing
rates in the locality of the petitioner’s firm. The Federal Circuit in Avera directed that fees be based
upon the “forum rate,” which in this Program would be Washington D.C., except where the work
was substantially performed in the firm’s home locale and the local rates are very significantly
less than those in Washington D.C. Avera, 515 F.3d at 1349 (emphasis added). CHC acknowledges
that nearly all of its work in vaccine cases is performed in its office in downtown Boston,
Massachusetts. Pet. Memo at 5. In this case, it appears that but for two days of an entitlement
hearing, and some preparation which took place in Washington D.C., essentially all the work was
performed in Boston, Massachusetts. Id. This pattern of work is also typical for most cases in the
Vaccine Program, where most of the work is performed in the home jurisdiction of counsel.

In support of its application for an increase in hourly rates beginning after March of 2014,
CHC has provided references to fee awards for another Massachusetts attorney in the Vaccine
Program and to several decisions of the United States District Court for the District of
Massachusetts. Petitioner cites to Oswalt v. Sec’y of HHS11 and Yang v. Sec’y of HHS12 in which
the same attorney, practicing in Marblehead, Massachusetts, was awarded $340 an hour for work
performed in 2007 in Oswalt and $370 an hour for work performed in 2009 in Yang.13 Additionally,
11
Estate of Oswalt v. Sec’y of HHS, No. 03-2153V, 2011 WL 2149932, at *3-*4 (Fed. Cl. Spec.
Mstr. May 2, 2011).
12
Yang v. Sec’y of HHS, No. 10-33V, 2013 WL 4875120, at *1 (Fed. Cl. Spec. Mstr. Aug. 22,
2013).
13
In Yang, the special master held that “the local market rate for Boston is not very significantly
below the DC forum rate, and therefore [petitioner’s attorney] receives the forum rate. See Yang,
2013 WL 4875120, at *4. Respondent contends that the special master’s conclusion in that
10
the petitioner submits references to three District Court cases in which rates of $409 to $425 were
approved for partners and $290 to $310 for associates. See Pet. Memo at 8 (citing Barbosa v.
Hyland, 2014 WL 1847211, at *3 (D. Mass. 2014) which awarded $425 for a partner with 33 years
of experience and $310 for an associate with 11 years of experience in a police misconduct, civil
rights case, Shirokov v. Dunlap et al., 2014 WL 1271557, at *2 (D. Mass. 2014) which awarded
an attorney rate of $409 in a small consumer class action case, and Rosie D. ex rel. John D. v.
Patrick, 593 F. Supp. 2d 290, 293 (D. Mass. 2009), a significant civil rights case in which the
plaintiff’s counsel reduced their hourly rate by more than a third to $290-$425 for the attorneys
and $125-$145 for paralegals).

The respondent claims that comparable attorneys’ rates are 52 percent lower in Boston than
they are in Washington, D.C. for partners and approximately 57 percent lower for associates. See
Resp. Response at 17-18; Sur-Reply at 2-3. Respondent further contends that the 52 percent rate
differential as to the partners justifies payment of the partners at a local rate, which is substantially
less than the rates paid to date under the Carr agreement, and also very substantially less than the
rate CHC proposes here. Resp. Response at 17-18. Respondent argues that the 57 percent
differential as to associates, all with less than 10 years of experience as attorneys, also justifies
payment at a local rate for their work. Sur-Reply at 2-3.

At first blush, the assertion that comparable attorneys’ fees in Boston could be 52 to 57
percent lower than those charged in Washington, D.C. seemed mildly astonishing, so I endeavored
to carefully evaluate the data supporting this claim as supplied by the respondent in exhibits
attached to her response, as well as other publicly available information which I provided to both
parties for comment. See Order, filed Aug. 10, 2015. I also reviewed decisions awarding fees in
the Vaccine Program and Massachusetts District Court as submitted by the parties.

As the primary basis for her arguments, respondent submits excerpts from the “Real Rate
Report for 2014” marked as exhibit Z. The Real Rate Report (“RRR”) is a product of
Datacert/Tymetrix. Resp. Ex. Z at 1. The RRR reports on corporate billing rates paid to small,
medium, and large law firms in different practice areas serving corporate clients. The Executive
Summary of the report states that this year’s data contains more than $16 billion in legal spending
data from corporations and law firms e-billing and time management solutions, as well as other
industry sources. Resp. Ex. Z at 5. The study reports on rates in various metropolitan areas and
defines small firms as those with fewer than 50 lawyers. Resp. Ex. Z at 11-14.

Respondent argues that the size of the firm is the primary driver of higher fees, with the
largest firms receiving the highest fees. See Resp. Response at 12. She further argues that because
CHC is a small firm with only six lawyers, it should be compensated at the lowest rate in the
proposed category. Id. Respondent submits data on the category denoted “General Liability
Litigation” in the Boston area, which respondent suggests is the most appropriate for comparative
purposes. See Resp. Ex. Z at 14. In this category, based on invoices to corporations covering 37
partners and 67 associates, hourly rates for the lowest quartile for partners in 2013 was $198.00,
for the second quartile $220.00, and for the third and highest $260.00. Id. The report also showed
the mean rates for the category of partners in the small firm general liability category as moving

decision should be disregarded as she did not have before her the respondent’s new evidence as
discussed here.
11
from $210.26 in 2011, to $221.36 in 2012, and $234.42 in 2013. Id. The mean rates for the
category of associates moved from $168.28 in 2011, to $169.44 in 2012, and to $173.14 in 2013.
The respondent compared these rates to those paid in the Vaccine Program and argued that the
Boston rate was very significantly different. See Res. Response at 17. Based primarily on this
report, the respondent argues that CHC’s proposed rate increases are not reasonable and rather the
firm’s fees should be substantially reduced from the Carr rates by approximately 24 to 29 percent.

Unfortunately, the term “General Liability Litigation” is not defined in the excerpts from
the study submitted as exhibit Z. It is difficult to tell what it includes, but I can deduce that the
category does not include plaintiff’s personal injury litigation as that is done on contingency basis,
and is not typically a service performed for corporations. It does not include insurance defense, as
that is another category explicitly noted on the page submitted. See Resp. Ex. Z at 164. It does not
include large corporate litigation, which is primarily done by the most highly paid large firms. Nor
does it include patents, or finance and securities, as these areas are also broken out on respondent’s
exhibit Z at page 14.

Most significantly, respondent did not provide RRR comparative data for general liability
litigation in Washington D.C., so that the proverbial apples to apples comparison could be made.
Instead, respondent compared general liability litigation by small firms in Boston, Massachusetts
to “forum” rates in the Vaccine Program. Petitioner argues that this comparison is inappropriate in
that the firms doing general liability litigation are not specialized in a particular area, such as
vaccine practice, those firms expect monthly payment of bills, and they do not front and carry costs
for prolonged periods of time. In particular, petitioner further argues that no firm that could have
been included among the Boston firms in the RRR study has ever done a vaccine case, nor is it
likely that they would, as the initial outlay of capital would be too great and the learning curve for
the science and medicine involved would be too steep. As it is unlikely that firms practicing in the
small general liability category, which does not include insurance defense, would have any
significant personal injury experience, much less experience with complex personal injury issues,
it would appear that this point is well taken.

Considerations of the billing and cost model of general liability practice is also significant,
as the Vaccine Program operates on a model that defers the reimbursement of fees and costs, in
most cases, to the conclusion of the case—which can vary from months to, as in this case, multiple
years. Firms practicing corporate law, whether it be litigation or transactional, virtually always
rely on a monthly billing model or at least something close to that, like a quarterly billing system.
They expect prompt reimbursement of costs, or in many instances, expect the client to pay directly
for items like expert fees. Firms carrying substantial costs, like vaccine firms or plaintiffs’ personal
injury firms, frequently finance costs through a credit line, causing them to incur interest costs
which are not reimbursed by the Program. Accordingly, the comparison of small general liability
firms in one market to vaccine specialized firms in the forum is not a comparable comparison and
is not helpful to the analysis.

The RRR does provide some information that is informative, even if it is drawn entirely
from corporate billings. The Executive Summary of the RRR states:

Lawyer rates have risen in each of the past seven years that we have analyzed

12
 lawyer invoices—even despite a significant decline in economic growth in 2008
and 2009. That said, lawyer rate increases in 2013 indicate a stabilizing post-
recession trend of approximately 3.7% (which is in line with the prior five year
average), which is a sizable decrease from pre-recession increases of closer to 7%
per year.

Resp. Ex. Z at 7.

Obviously the RRR summary indicates that lawyer fees are continuing to increase albeit at
a slower rate than they were prior to the recession. Id. However, when compared to increases in
the CPI, upon which the Carr rates were based, it is apparent that lawyer rates increased, even in
the post-recession years, at a rate well in excess of the CPI.14

Respondent also submitted exhibit AA, which is an excerpt from an analysis of the RRR
undertaken by the New England In-House magazine.15 The article reviewed the RRR data and
compared rates for lawyers in the top twelve North American cities. Based on the RRR data and
as set forth in exhibit AA, the article explained that indeed the average rate for Washington D.C.
lawyers was somewhat higher at $649.24 an hour for partners and $411.55 for associates. Id. In
Boston, the average for partners was $598.69 and for associates $388.21. Washington D.C. was
the third most expensive city for lawyer rates, behind New York and San Francisco; Boston was
the sixth most expensive in the United States. Id. Comparatively the Washington, D.C. rate was 8
percent higher for partners and 6 percent higher for associates. Exhibit AA also showed that rates
for litigation in Boston, excluding insurance, increased by 28.9 percent from 2010 to 2012.
Litigation rates for partners in Boston ranged from $325 an hour at the low end to $708 at the
highest level. See Resp. Ex. AA, chart F. Thus, the distinction between the Boston and
Washington, D.C. market exists, but is not significant.

“When the parties do not provide reliable evidence, the court can look to other evidence to
establish a reasonable hourly rate.” Dougherty v. Sec’y of HHS, 2011 WL 5357816 at *6 (Fed. Cl.
Spec. Mstr. Oct. 14, 2011) (citing to Rupert ex rel. Rupert, v. Sec’y of HHS, 52 Fed. Cl. 684, 688-
89 (2002)). To that end, additional comparative data can be found in Occupational Employment

14
According to the United States Bureau of Labor Statistics, the rate of increase in the CPI
beginning with the base year of 2009, and showing the rate of increase for each year over the prior
one, was 2010 – 1.6 percent, 2011 – 3.2 percent, 2012 – 2.1 percent, 2013 – 1.5 percent, 2014 –
1.6 percent.
15
See generally, Brandon Gee, The Going Rate(s): 2013 ‘Real Rate Report’ Reveals Who’s
Charging What in the Legal Community, NEW ENGLAND IN-HOUSE, Dec. 2013, at 1, available at
http://www.pageturnpro.com/Lawyers-Weekly/35126-New-England-In-House--June-
2013/index.html#/1. The New England In-House magazine is a publication by the Dolan
Company—a company which provides “business information and professional services to legal,
financial and real estate sectors . . . across the United States.” THE DOLAN COMPANY,
http://thedolancompany.com/ (last visited Aug. 10, 2015). It currently publishes 35 print and
online publications for clients in the legal, financial, and real estate industries. See generally, id.
13
Statistics from the U.S. Bureau of Labor Statistics.16 The hourly mean wage for lawyers in
Washington, D.C. in 2014 was $81.1317 and in Boston $71.08.18 Annual mean wage for lawyers
in Washington, D.C. was $168,74019 and in Boston $147,850.20

In reviewing the federal government’s salary and wages locality pay tables, which are used
by the federal government to equalize the rate of pay for federal employees in different
metropolitan areas, the Boston-Worcester-Manchester area rate adjustment is 24.80 percent while
Washington D.C. is 24.22 percent, 21 suggesting a slightly higher cost of living in the Boston area.
Further, using a cost of living calculator to compare the cost of living between the two metropolitan
areas, which are the 22nd and 24th largest cities in the country respectively,22 a person making
$100,000 a year in Washington D.C. could maintain the same standard of living in Boston for
$97,906.49. 23 Similarly, according to another cost of living calculator, an associate attorney
earning $100,000 a year in Washington, D.C. could maintain the same standard of living in Boston
on $98,349.00 per year.24 Not surprisingly, the cost of living in the two metropolitan areas appear
to be nearly the same by all three indexes.

Both parties provided cases of fee awards in the Boston area, supporting their respective
positions, with court-approved rates for partners ranging from $250 to $425. See, e.g., Barbosa v.
Hyland, No. 11-11997-JGD, 2014 WL 1847211, at *3-*4 (D. Mass. 2014) (allowing $425 an hour
for lead counsel with 33 years of experience and $310 to $322 for a senior associate with 11 years
of experience in a police misconduct civil rights case); Rosie D. ex rel. John D. v. Patrick, 593 F.
Supp. 2d 325, 331 (D. Mass. 2009) (awarding a large law firm, Wilmer Hale, $290 for associates

16
UNITED STATES DEP’T OF LABOR BUREAU OF LABOR STATISTICS, Occupational Employment
Statistics, http://www.bls.gov/oes/ (last visited July 13, 2015).
17
See UNITED STATES DEP’T OF LABOR BUREAU OF LABOR STATISTICS, District of Columbia –
May 2014 OES State Occupational Employment and Wage Estimates,
http://www.bls.gov/oes/current/oes_dc.htm#23-0000 (last visited July 13, 2015).
18
See UNITED STATES DEP’T OF LABOR BUREAU OF LABOR STATISTICS, Boston – Cambridge –
Quincy, MA-NH – May 2014 OES Metropolitan and Nonmetropolitan Area Occupational
Employment and Wage Estimates, http://www.bls.gov/oes/current/oes_71650.htm#23-0000 (last
visited July 13, 2015).
19
See supra n. 17.
20
See supra n. 18.
21
See OPM.GOV, General Schedule, https://www.opm.gov/policy-data-oversight/pay-
leave/salaries-wages/2015/general-schedule/ (last visited July 13, 2015). The OPM uses salary
surveys from the Bureau of Labor Statistics to set locality pay.
22
See Top 100 Largest Cities | 2015 U.S. Population Data, http://www.biggestuscities.com/ (last
visited Aug. 31, 2015) (stating Washington D.C. had a population of 658,893 in 2014, and
Boston, Massachusetts had 655,884 in 2014).
23
Cost of Living Calculator | Comparison Tool,
http://www.bankrate.com/calculators/savings/moving-cost-of-living-calculator.aspx (last visited
July 13, 2015).
24
PAYSCALE, Cost of Living Cities- Washington District of Columbia and Boston Massachusetts
for Associate Attorney, http://www.payscale.com/cost-of-living-calculator/Massachusetts-
Boston/District-of-Columbia-Washington/Associate-Attorney (last visited July 13, 2015).
14
and $425 an hour for partners based on the firm’s own reduction to 62 percent of its normal hourly
rates. Significantly, the court also found that the reduced Wilmer Hale rates were appropriate for
the public interest lawyers outside the firm who worked on the case as well). All cases cited by the
parties provided imperfect comparisons, either because the case was not analogous to vaccine
litigation, or the rate decision was prompted by extraneous factors not relevant to the instant case.
See e.g., Shirokov v. Dunlap, Grubb & Weaver PLLC, No. 10-12043-GAO, 2014 WL 1271557, at
*1-*2 (D. Mass. 2014) (allowing $409 per hour in a small consumer class action); McDermott v.
Marcus, Errico, Emmer & Brooks, P.C., 53 F. Supp. 3d 312, 322 (D. Mass. 2014) (allowing $250
an hour for an attorney from Lynn, Massachusetts in a Fair Debt Collection Practices Act case.
Petitioner in this matter (McCulloch) contends Lynn is a considerably less expensive market than
Boston); Gardner v. Simpson Financing, et al., 963 F. Supp. 2d 89, 93-94 (D. Mass. 2013) (holding
that the grossly inflated and insufficient billing records justified a substantial reduction of fees in
a relatively simple case involving a covenant of quiet enjoyment and an apartment house fire. The
court reduced the hourly rate to $250 for a Boston law firm partner with 29 years of experience);
Aly v. Mohegan Council, Boy Scouts of America, 871 F. Supp. 2d 19, 28 (D. Mass. 2012) (awarding
the requested amount of $250 an hour in a civil rights case to an attorney newly admitted to the
Massachusetts District Court).

Petitioner has also cited two cases in which fees were awarded to the only other
Massachusetts practitioner in the Vaccine Program with a published fee decision on her hourly
rate.25 Elaine Sharp (practicing in the nearby community of Marblehead, Massachusetts), who was
admitted to law practice in 1987 and to the Court of Federal Claims in 2003,26 was awarded $340
an hour for her work in 2007 in Estate of Oswalt. See No. 03-2153V, 2011 WL 2149932, at *3-*4
(Fed. Cl. Spec. Mstr. May 2, 2011). A review of the court’s electronic filing system reveals that
Ms. Sharp filed her first case in the Program in 2003. She was awarded $370 an hour in Yang for
work done in 2013, by which time she had 26 years of legal experience and about 10 years of
experience litigating cases in the Vaccine Program. See No. 10-33V, 2013 WL 4875120, at *1
(Fed. Cl. Spec. Mstr. Aug. 22, 2013). This determination of a reasonable fee is higher than has
been awarded under the Carr agreement to even the most senior CHC partners. Furthermore, in
Yang, Special Master Millman found that Boston rates were not much different than Washington
D.C. rates. Id. at *3.

In deciding attorneys’ fees and costs in the Vaccine Program, special masters have
reviewed evidence, affidavits, and testimony from various practitioners in the localities of the
petitioning attorney to establish a prevailing rate. See, e.g., Mooney v. Sec’y of HHS, No. 05-266V,
2014 WL 7715158, at *4-*5 (Fed. Cl. Spec. Mstr. Dec. 29, 2014); Masias v. Sec’y of HHS, No.
99-697V, 2009 WL 1838979, at *5-*6 (Fed. Cl. Spec. Mstr. June 12, 2009) (clerical errors in fees
judgment corrected pursuant to R.C.F.C. 60(a) in 2013 WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30,
2013). Generally, the fee comparisons from other practice areas were found unsatisfactory in
various respects. Corporate billings are not comparable to fees paid by individuals. Plaintiffs’
25
A review of the list of vaccine attorneys maintained by this court indicates that only three other
attorneys from Massachusetts, beside those in the CHC firm and attorney Elaine Sharp, litigate
vaccine cases. Two of the other three have handled fewer than five cases each. No other attorneys,
besides those in the CHC firm, have offices in Boston, Massachusetts.
26
The source of dates of admission are Martindale Hubbell as to law practice and the U.S. Court
of Federal Claims as to this court.
15
personal injury cases are done on a contingency basis. Insurance companies can dictate low rates
because they can promise a significant volume of business to an insurance defense firm.27
Respondent here is correct in that the bigger law firms command very high hourly rates mostly
because they are representing the largest corporations or wealthy individuals in high value
litigation or transactions where the market will bear high fees for representation by prestigious
firms. See Resp. Response at 11 n. 20, 11-13. However, the size of the firm is hardly the relevant
consideration in determining a reasonable rate for vaccine cases. It seems unlikely that, if a lawyer
from a large corporate firm decided to handle a vaccine case, the respondent would readily agree
to pay his or her usual $700 hourly rate to do so. In fact, in the Vaccine Program, the fees of a
large Washington D.C. firm were reduced consistent with respondent’s objection from a $480 rate
for associates and as much as $710 for a partner. See Hasson v. Sec’y of HHS, No. 04-03V, 2014
WL 5466609, at *11 (Fed. Cl. Spec. Mstr. Oct. 7, 2014). In that case, the Program awarded $340
to $360 an hour for work done between 2006 and 2010. Id. at *14.

I find the greatest similarities between vaccine practice and other practice areas is in the
comparison to plaintiffs’ personal injury work. In both types of cases, the lawyers are representing
injured individuals, who are not expecting to receive a monthly bill. In most instances, the firms
are relatively small. In the case of personal injury work, the fee is paid from a recovery, with most
firms charging between 33.3 percent and 40 percent. In the vaccine cases, the Program pays the
fee. See 42 U.S.C. § 300aa-15(e) (2012). In both types of practice, the fees are not recovered until
the end of the case, and the firms expend the money to pay for experts, medical records, exhibits,
travel and other costs. In most instances, these costs are not recovered until the end of the case. In
both types of cases, the plaintiff or petitioner has the burden of proof and must build the entire
case, finding appropriate experts to address the issues raised. As is often argued in respondent’s
briefings, the Federal Circuit has recognized that it is petitioner’s burden to do the “heavy lifting”
to meet the preponderance standard in these cases, citing to Althen, 418 F.3d at 1280 and Lampe
v. Sec’y of HHS, 219 F.3d 1357, 1360 (Fed. Cir. 2000).

Of course, there are also significant differences between these practice areas, in that in a
non-vaccine personal injury case (which can include auto accidents, medical malpractice, products
liability, toxic torts, construction accidents and others) the plaintiff must prove negligence or
product defect in addition to causation and damages. There are often anywhere from one or two to
twenty-five or thirty depositions in individual personal injury cases, and at times motion practice.
If a case comes to trial, and less than 10 percent do, there is the added complexity of a jury trial
with the presentation of evidence adhering strictly to the rules of evidence. The value of the fees
in those cases, if converted to an hourly rate, varies greatly. The occasional multi-million dollar
case will usually generate a high hourly rate, but so would the $30,000 auto accident case which
requires 8 to10 hours to prepare the evidence and present a demand. The efficient handling of this
type of case results in a fee of a little over $1000 an hour at a one-third contingency. Cases that
are heavily litigated and resolve for less than major dollars generate lower fees. There is also the
occasional case that is lost and results in a write off of time and expenses. Firms that have
maintained longevity in practice tend to minimize their exposure to losing cases by rejecting them

27
For further discussion on the insurance defense firm model, see Special Master Edward’s
decision on remand in Rupert v. Sec’y of HHS, No. 99-774V, 2002 WL 31441211, at *2-*3 (Fed.
Cl. Spec. Mstr. Aug. 26, 2002), remanded by 55 Fed. Cl. 293 (2003).
16
at the outset.28

In Rupert IV, Judge Christine Miller held that the skill set of vaccine attorneys was most
equivalent to personal injury, medical malpractice, and products liability litigators, but because the
testimony of attorneys in that case reflected upon rates for complex commercial matters as a proxy,
the court needed to consider fees in a broader range of complex civil matters. Rupert v. Sec’y of
HHS, 55 Fed Cl. 293, 306 (2003). The special master in Masias observed the difficulty in following
that ruling, in that it gave little guidance as to the meaning of the term “complex civil matters.”
Masias v. Sec’y of HHS, No 99-697V, 2009 WL 1838979, at *16 (Fed. Cl. Spec. Mstr. June 12,
2009). As also noted in Masias, the special master observed that the witnesses whose testimony
was heard in Rupert practiced in the fields of civil rights, commercial litigation, and shareholder
derivative actions. Id.

In the Vaccine Program, in most instances, the petitioner’s counsel will be paid even if
petitioner loses, as long as the case is brought in good faith and with a reasonable basis. Negligence
does not have to be proven against the defense of a potentially culpable tortfeasor, but causation
does.29 In Vaccine Program cases, as in a great many tort cases that would fit into the complex
category, the most difficult issue is causation. It is usually not the procedure or the rules of
evidence that make personal injury or civil rights cases complex and difficult, but the substance of
the case. The most difficult substantive issue is often the same one that bedevils vaccine
litigation— causation. In fact, in vaccine cases the interplay between the immune system and the
nervous system, or other bodily systems, presents substantive complexity that often exceeds the
level of difficulty in complex tort cases, requiring the attorney to develop some command of
difficult scientific concepts and language to capably handle the case.

Whatever constitutes the category of general liability litigation done by small firms, (most
likely including smaller contract claims, employment discrimination defense, defense of uninsured
clients, bill collection or possibly landlord and tenant issues) the cases are litigated in the
nomenclature of everyday life. They do not involve concepts of medical diagnosis and complex
theories in molecular biology as must be presented by petitioner’s counsel in vaccine cases. See
Mooney v. Sec’s of HHS, No. 05-266V, 2014 WL 7715158, at *6 (Fed. Cl. Spec. Mstr. Dec. 29,
2014) (finding vaccine cases more analogous to tort, personal injury, medical malpractice, or
medical products liability cases under the Federal Tort Claims Act). Several Vaccine Program
cases have noted the greater procedural complexity of civil personal injury cases, noting that
discovery and motion practice are often involved, as well as jury trials and the strict use of the
rules of evidence. See, e.g., Masias, 2009 WL 1838979, at *20-*22; Scharfenberger, 2015 WL
3526559, at *7. While it is certainly true that vaccine cases have limited discovery and motions,
28
Civil rights cases also bear similarities in that they often involve issues of personal injury with
the additional feature that the attorneys are eligible for fees under fee-shifting statutes when
liability, causation, and damages are successfully proved. In that event, in the Washington D.C.
forum, the Laffey Matrix may then apply.
29
Causation has to be proven in a vaccine case, unless a petitioner is alleging a Table claim, in
which case the petitioner must put forth preponderant evidence that he or she has met the
requirements as established by the Vaccine Injury Table. See ' 300aa-14; see also 42 C.F.R. '
100.3. Vaccine causation is presumed in a successful Table case. Id. However, for roughly more
than the past two decades, the vast majority of cases in the Program are non-Table claims.
17
and have no jury trials, the added time involved in handling those functions of a civil case would
be reflected in increased fees based upon the number of hours expended, at least in the case of
hourly billers receiving fees under fee-shifting statutes in which the lodestar method is used to
calculate awards, as well as in commercial litigation. Thus, it is not clear that the absence of
discovery and motions should justify a substantially lower hourly rate, as that difference is
reflected in fewer hours billed.

Respondent argues, in quoting Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1385-86 (Fed.
Cir. 2011), that because Vaccine Program attorneys are “practically assured of compensation in
every case, regardless of whether they win or lose,” the Program risks overcompensating vaccine
attorneys relative to attorneys in other fee shifting cases where they must succeed on those claims
in order to receive fees. Sur-Reply at 7. This is certainly a valid argument, even though respondent
periodically raises a reasonable basis objection to attorneys’ fees in unsuccessful cases and does
not account for time spent in reviewing and rejecting non-meritorious vaccine cases for which
potential clients sought representation. Nevertheless, Vaccine Act fees and those sought by CHC
in this case are generally significantly less than the Laffey Matrix fees, which are used in other
fee-shifting cases in Washington D.C., so as to provide a risk premium to non-vaccine attorneys.

Despite the many similarities between vaccine practice and plaintiff’s personal injury
work, the comparison also has many dissimilarities and suffers from the same lack of
comparability as most other areas of practice. For purposes of lodestar fee analysis, the relationship
of the fee to the outcome, rather than to the volume of work, makes the comparison quite difficult.
Therefore, I have concluded that for purposes of comparing the Washington D.C. forum rate to the
Boston rate for attorneys’ fees, the overall comparability of attorneys’ fees in those communities
is the most relevant and demonstrable consideration. Respondent’s evidence for average attorneys’
fees and for litigation fees in general demonstrates a small differential. Similarly, contingent fee
percentage rates for personal injury are similar throughout the country and certainly are not
significantly less in Boston than they are in Washington D.C.30

After review of the study provided by the respondent and other generally available data
regarding attorneys’ fees in the comparative metropolitan areas, as well as cost of living data, I
can find no persuasive support for the argument that average attorneys’ fees in Boston are “very
significantly” lower than they are in Washington D.C. While the prevailing rates in Washington
D.C. appear to be somewhat higher than Boston rates, they are not significantly so. In addition,
the RRR study does not account for “skill, experience, and reputation” in the relevant community
or complexity of the subject matter of the practice, all of which should be relevant considerations
in arriving at a reasonable attorneys’ fee. As stated in Avera, regarding local rate analysis,
comparisons must be to attorneys of reasonably comparable skill, experience, and reputation. 515
F.3d at 1348 (quoting Blum, 465 U.S. at 895, n.11); see Hensley v. Eckerhart, 461 U.S. 424, 429-
30
Most contingent fees range from 33.3 percent to 40 percent. Sixteen states have enacted
statutory limitations on medical malpractice fees. Massachusetts limits fees in malpractice cases
(but not others) to 40 percent of the first $150,000, 33.3 percent of the next $150,000, 30 percent
of the next $200,000, and 25 percent of damages that exceed $500,000. See OLR RESEARCH
REPORT, Medical Malpractice—Attorneys’ Fees,
http://www.cga.ct.gov/2003/olrdata/jud/rpt/2003-r-0664.htm; see also Mass. Ann. Laws ch. 231,
§ 60I.
18
37 (1983).

Accordingly, I find that pursuant to Avera, the appropriate rate for CHC attorneys will be
determined by consideration of the forum rate. Avera, 515 F.3d at 1349; see Rodriguez, 632 F.3d
at 1382; see also Sabella v. Sec’y of HHS, 86 Fed. Cl. 201, 205 (2009).

ii. The Forum Rate

The Federal Circuit in Avera held that unless there is a very significant difference favoring
Washington D.C. the forum rate should apply, and the forum is Washington D.C. where the U.S.
Court of Federal Claims is located. Avera, 515 F.3d at 1349. As previously noted, CHC
acknowledges that almost all of its work on vaccine cases is done at its office in Boston, See Pet.
Memo at 5. However, as explained above, I have concluded that the difference in lawyer rates
between the Boston, Massachusetts and Washington D.C. markets, as well as cost of living, is
minimal and thus the forum rates will apply.

Determining the prevailing rates “for similar services by lawyers of reasonably comparable
skill, experience and reputation,” and the appropriate practice model for fees in the Vaccine
Program, is a challenge that can be approached in different ways. Blum, 465 U.S. at 897 n. 11; see
generally, Barrett v. Sec’y of HHS, 09-389V, 2014 WL 2505689, at *12 (Fed. Cl. Spec. Mstr. May
13, 2014) (commenting that determining reasonable hourly rates can be difficult because there is
relatively little guidance about how to determine the prevailing market rate for similar services);
see also Information Sciences Corp. v. United States, 86 Fed. Cl. 269, 291 (2009) (stating that
although “[t]he United States Supreme Court recently held that a ‘prevailing party that satisfies
EAJA's other requirements may recover . . . paralegal fees from the Government at prevailing
market rates,’” the Court “did not provide trial courts with guidance in how to determine ‘the
prevailing market rate.’” (internal citations omitted)).

Decisions on Vaccine Program rates often considered affidavits and other evidence from
attorneys practicing primarily in the locality of the petitioner’s counsel. Special masters have
expressed frustration with the inaptness of most of the evidence presented, because most of it did
not reflect knowledge of the practice in the Vaccine Program or have sufficient similarity to
Vaccine Program cases to intelligently inform the decisions. See, e.g., Masias, 2009 WL 1838979,
at *20 (commenting that “[t]he various affiants provided little, if any, reasoning that underlies their
conclusion that the Vaccine Program is complex”); Mooney, 2014 WL 7715158, at *6
(commenting that “unfortunately, there is relatively little guidance about how to determine the
‘prevailing market rate’ for ‘similar services’”). Petitioner’s counsel were criticized for presenting
expert testimony from local attorneys or consultants to establish prevailing rates in the forum as
an excessive expenditure of costs. See, e.g., Scharfenberger, 2015 WL 3526559, at *14; O’Neil,
2015 WL 2399211, at *12.

Since Avera, special masters have built upon cases such as Masias, Mooney and Rodriguez.
The forum rates in Mooney and Rodriguez were largely based upon comparisons to rates charged
by attorneys in the vaccine attorney’s local area. See Rodriguez, 632 F.3d at 1387; Mooney, 2014
WL 7715158, at *40. In Masias, the special master determined a Washington D.C. forum rate of
$250 to $375 an hour based on a comparison to rates awarded to two Virginia attorneys in vaccine

19
cases, and an attorney in a fee shifting case. Masias, 2009 WL 1838979, at *24-*25. In subsequent
cases, special masters utilized the rates in those cases and applied an inflation factor to bring the
rates to current market rates. Special masters in multiple cases have determined that the most
reasonable forum is the Vaccine Program itself. See e.g., Guerrero v. Sec’y of HHS, 12-689V,
2014 WL 5335301, at *5 (Fed. Cl. Spec. Mstr. May 22, 2015); Scharfenberger, 2015 WL 3526559,
at *6; O’Neil, 2015 WL 2399211, at *8-*9; Barrett, 2014 WL 2505689, at *12; Tieu Binh Le v.
Sec’y of HHS, 07-895V, 2014 WL 4177331, at *3 (Fed. Cl. Spec. Mstr. Sept. 23, 2015). The special
masters also gave significant consideration to the years in practice of each attorney, the years in
vaccine practice in particular, and the extent of experience during that time.

Utilizing this methodology, Special Master Corcoran noted in Scharfenberger that the
Federal Circuit in Avera held that generally the forum rate in Washington D.C. should be used for
Vaccine Program attorneys and that a “‘reasonable’ hourly rate is, at bottom, defined as the rate
‘prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.’” Scharfenberger, 2015 WL 3526559, at *6 (citing Avera, 515 F.3d at
1348) (emphasis in original). He then held that the Vaccine Program itself provided the most
relevant baseline for comparing attorney billing rates because other types of practice do not provide
perfect comparisons to vaccine practice. Id. Special Master Corcoran then took the fees determined
to be reasonable as Washington D.C. forum rates for 2009 in Masias, which was in a range of $250
to $375 an hour for lawyers with more than 10 years’ experience, and in Rodriguez in which the
forum rate for attorneys with more than 20 years’ experience was held to be $275 to $360 an hour,
and then applied a CPI adjustment which brought the reasonable range to $272.66 to $413 per hour
in 2015. Id. Special Master Hamilton-Fieldman in O’Neil, using similar methodology, found a
2014 forum rate of $413. O’Neil, 2015 WL 2399211, at *6-*8.

The Laffey Matrix is often referenced as a data point in consideration of reasonable
attorneys’ fee rates in fee-shifting cases in Washington D.C. The matrix which was initially
developed to evaluate fees in a complex employment discrimination case, see Laffey v. Northwest
Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), affirmed in part, reversed in part on other grounds,
746 F.2d 4 (D.C. Cir. 1984), has since been republished annually by the U.S. Attorney’s office in
Washington D.C. for use in fee-shifting cases.31 While the Laffey Matrix has never been applied
for various reasons in vaccine cases, it provides a valuable structure for considering the prevailing
rates in Washington D.C., including the weight to be given to varying levels of experience in the
practice of law. Although the petitioner has not requested Laffey rates, and in fact her proposal is
31
The Laffey Matrix was initially approved for use by the District Court in the Laffey case for
work done in 1981-82. The rates for subsequent yearly periods were determined by adding the
change in the cost of living for the Washington, D.C. area to the applicable rate for the prior year
and then rounding to the nearest multiple of $5. The matrix which is prepared by the Civil Division
of the United States Attorney’s Office for the District of Columbia is intended to be used in cases
in which a “fee shifting” statute permits the prevailing party to recover “reasonable attorneys’
fees.” The explanatory note to the updated Laffey Matrix references Civil Rights cases, Freedom
of Information Act cases and Equal Access to Justice Act cases by way of example.
Laffey Matrix – 2014-2015 Explanatory Notes, http://www.justice.gov/sites/default/files/usao-
dc/legacy/2014/07/14/Laffey%20Matrix_2014-2015.pdf (last accessed Aug. 4, 2015); see
Covington v. District of Columbia, 57 F.3d 1101,1105 n.14 (D.C.Cir.1995), cert denied, 516 U.S.
1115 (1996).
20
generally less than the Laffey rates, the structure utilized by the U.S. Attorney’s office in
evaluating rates will be used for comparative purposes here. One of the ultimate problems with the
Carr agreement, aside from its reliance on the CPI rather than the rate of growth in attorneys’ fees,
is that it did not provide any enhancement based upon the increased experience level of the
respective attorneys. Most law firms increase the rates charged by their attorneys as they
progressively gain more experience. Certainly, all of the respondent’s exhibits support the notion
that partners are generally paid more than associates which reflects increased experience. This is
particularly important in this case, as the CHC firm concentrates its practice in the Vaccine
Program and thus benefits its clients by a vaccine-concentrated increase in experience for each of
the attorneys. Mr. Homer, Ms. Ciampolillo, Mr. Pepper and Ms. Daniels would all have moved
from lower to higher Laffey categories since the initiation of the Carr agreement while doing
exclusively vaccine work. As Laffey stops at twenty years and above, Mr. Conway and Ms. Chin-
Caplan did not advance categories but also have benefitted from eight additional years of
experience concentrated in the Program.

Based upon a review of fees decisions in the Vaccine Program, the table set forth below
was derived from attorneys’ fees awarded in vaccine cases in which the decision of the court set
forth the rates to be paid in cases decided since 2009. The table also adjusts each of the rates from
the year in which they were awarded to 2014 by applying the rate of growth in the CPI and also
by the rate of growth in attorneys’ fees as stated in the Executive Summary of the RRR, 3.7 percent.
See Resp. Ex. Z at 7. For example, if as an alternative to the CPI adjustment for the upper Masias
rate of $375 for 2009, that rate was adjusted for the 3.7 percent growth in attorneys’ fees, that rate
would be $449 in 2014, rather than $413 based on the CPI. The decisions in which fees were
awarded often used different rates for different years, such as granting a $10 per year increase for
each year in which the case continued. For purposes of this table, the last year, which most often
was the highest year, is utilized and then adjusted to show a 2014 rate. Attorneys will be listed by
the experience categories utilized in the Laffey Matrix. Every effort has been made to identify the
year in which the work was performed as opposed to the year of the decision. The Laffey Matrix
is based upon the prior year CPI and runs from June 1 to May 31.32

Laffey Category 20 years+ legal experience Laffey Rate 2013-2014 $510; 2014-2015 $520

Case Attorney Year of Work Rate Approved CPI RRR average rate
Rodriguez John McHugh 2009 $335 $369 $416
Rivard Stanley Kopps 2009 $300 $331 $373
Fragoso Jill Follows 2010 $344 $374 $412
Whitener Steve Goldston 2010 $300 $326 $360
Carcamo Dale Galipo 2010 $327 $355 $392
Kennedy Albert Brooks 2007 $325 $370 $418
Rodriguez Gilbert Gaynor 2012 $295 $305 $329
Tieu Binh Le Brian Arnold 2012 $295 $305 $329
Garrett Sean Greenwood 2013 $300 $305 $311
Hasson Paul Honigsberg 2011 $360 $380 $402
32
Laffey Matrix rates are not awarded or considered as a prima facie Vaccine Act forum rate
here, but its structure is useful for comparative purposes and its rates are considered here as one
of multiple factors in determining a reasonable rate.
21
Guerrero Lisa Roquemore 2015 $365 $365 $365
Nadar Simina Vourlis 2014 $300 $300 $300
Yang Elaine Sharp 2011 $370 $390 $413

Laffey Category 11-19 years legal experience Laffey Rate 2013-2014 $450; 2014-2015 $460

O’Neil Altom Maglio 2011-2013 $300 $305 $311
O’Neil John Caldwell 2011-2013 $300 $305 $311
Carcamo Z. Kohanim 2010 $293 $318 $351
Rowan Patricia Finn 2014 $310 $310 $310
Mooney Michael Cave 2013 $270 $274 $290

Laffey Category 8-10 years legal experience Laffey Rate 2013-2014 $360; 2014-2015 $370

O’Neil Isaiah Kalinowski 2012-13 $325 $330 $337

Laffey Category 4-7 years legal experience Laffey Rate 2013-2014 $295; 2014-2015 $300

O’Neil Danielle Strait 2012 $295 $304 $329
Rowan Jonathan Victor 2013 $220 $223 $228

It should be noted that the above data as to fee rates was derived from case reports or
stipulations in which the hourly rate was reported. Fee issues are most often resolved by stipulation
and when fees are stipulated, the hourly rate usually is not reported in the submitted stipulation. It
should also be noted that most of the decisions regarding fees reported above were at least
significantly influenced by comparisons to local attorneys.33 However, cases in which a
Washington D.C. forum rate was requested and denied based upon a finding of a very significant
difference in the rates for the local area were not included. For example, the fees awarded in Masias
and Avera are not included in the table as the attorneys practiced in Cheyenne, Wyoming where
the attorneys’ fees rates were found to be very significantly lower than Washington D.C. rates.
The special master’s determination of a forum rate of $250 to $375 in Masias is considered here
but not in the table, as the Special Master awarded local rates in that case.

It is also very important to note that none of the attorneys in the 20+ years of experience
category listed above, with the exception of Lisa Roquemore and John McHugh, have close to the
same experience in the Vaccine Program as do the three senior partners at CHC. In the second
category, Mr. Maglio and Mr. Caldwell have significant vaccine experience and in the third and
fourth categories, Mr. Kalinowski and Ms. Strait also have substantial concentrated vaccine
experience. Among the others, in all categories, the vaccine experience has ranged from a single
case in the Program to several cases per year.

33
See for example Mooney v. Sec’y of HHS, No. 05-266V, 2014 WL 7715158, at *4-*5 (Fed. Cl.
Spec. Mstr. Dec. 29, 2014) for New Orleans area attorneys. Tieu Binh Le v. Sec’y of HHS, 07-
895V, 2014 WL 4177331, at *3 (Fed. Cl. Spec. Mstr. Sept. 23, 2015) for Dallas attorneys, and
Garrett v. Sec'y of HHS, No. 14-16V, 2014 WL 6237632, at *6 (Fed. Cl. Spec. Mstr. Oct. 27,
2014) for Houston attorneys.
22
 The data are not abundant for attorneys from the District of Columbia practicing in the
Vaccine Program, as there are very few. The recent cases which decided a specific Washington
D.C. forum rate, O’Neil and Scharfenberger, awarded fees of $325 to an attorney with 8 years
overall and concentrated vaccine experience in O’Neil, and $305 to the same attorney in
Scharfenberer, and $295 to an attorney with 7 years’ experience in the relevant year. Clifford
Shoemaker, a practitioner from Vienna, Virginia, has represented numerous petitioners in the
Program and has received fee awards in many cases.34 In more recent years, he has received fees
in Andreu and Drost having requested $336 and $337 per hour in 2009 and 2010 respectively. See
Andreu v. Sec’y of HHS, No. 98-817V, Decision on Attorneys’ Fees and Costs, filed Jan. 25, 2011;
Drost v. Sec’y of HHS, No. 01-502V, Decision on Attorneys’ Fees and Costs, filed July 30, 2010.
Those rates would be the equivalent of $370 or $416 per hour in 2014, depending upon whether
the CPI or the average attorney fee inflation rate was applied.

iii. Factors in Establishing Appropriate Rates

As cited in the foregoing discussion, after reviewing cases both in and outside the Program,
I have concluded that a multifactorial approach should be used and that the following factors are
paramount in deciding the reasonable forum rate:

1. The prevailing rate for comparable legal work in the forum of Washington D.C.;
2. The prevailing rate for cases in the Vaccine Program;
3. The experience of the attorneys in the Vaccine Program;
4. The overall legal experience of the attorneys;
5. The quality of work performed in vaccine cases; and
6. Reputation in the legal community and community at large.

a. Prevailing Rate for Legal Work in Washington D.C.

Respondent’s evidence quite clearly demonstrates that Washington D.C. is one of the most
expensive legal markets in the country. Part of that is driven by the large corporate firms in practice
in this forum, and part by the relatively high cost of living in the DC area. Respondent’s exhibit
AA, which compares “average” rates for lawyers in different metropolitan areas, indicates that the
average rate for Washington D.C. is $649 for partners and $411 for associates. An average rate, of
course, includes high and low rates, as well as those in between.

The Laffey Matrix may more precisely target appropriate forum rates because it is designed
for use in fee shifting cases. The Federal Circuit in Rodriguez, 632 F.3d at1384-86 affirmed the
special master’s refusal to award Laffey Matrix rates in a vaccine case. In its analysis, the court
focused on the original Laffey case which was a complex employment discrimination case brought
on behalf of 3,300 flight attendants. Id. The case was litigated over thirteen years, involved
thousands of hours of personnel time, and raised novel issues under Title VII and the Equal Pay
Act in the early stages of the development of those bodies of law. Id. In Rodriguez, the court
distinguished the Laffey case from the more streamlined vaccine practice. Id.
34
See Masias, 2009 WL 1838979, at Appendix Table 5 for a chart of Mr. Shoemaker’s fee awards,
in which the lump sum award in approximately 20 cases from 2005-2006 is detailed but no hourly
rate is shown.
23
 In Masias, 634 F.3d at 1288 n. 6, the Federal Circuit explained its decision in Rodriguez
stating:

In Rodriguez we addressed ‘whether the reasonable hourly rate for attorneys
handling Vaccine Act cases in the District of Columbia should be determined by
applying the Laffey Matrix, or whether the rate should be determined by
considering a variety of factors, which may or may not include the Laffey Matrix.’
In Rodriguez, the special master determined that the Vaccine Act Litigation is not
analogous to ‘complex federal litigation’ as described in Laffey, so as to justify use
of the matrix rather than consideration of rates charged by skilled Vaccine Act
practitioners. The special master therefore rejected the petitioner’s claim that the
Laffey Matrix sets a prima facie forum rate schedule for Vaccine Act attorneys’
fees. Instead, to determine the forum rate for compensation of the petitioner’s
attorneys, the special master analyzed six separate pieces of evidence, including
the Laffey Matrix . . . . We affirmed the special master, concluding that she had
not applied an incorrect legal standard, that she had considered appropriate
evidence, and that she had fully explained the basis for determining the fee rates
for the petitioner’s attorneys.

Masias, 634 F.3d at 1288 n. 6 (internal citations removed) (emphasis added in bold).

It should also be noted that in the years since the original Laffey decision in 1983, the U.S.
Attorney’s Office for the District of Columbia has republished the Laffey rates, utilizing the
original structure, and applying an inflation adjustment for use in all fee-shifting cases in
Washington D.C. These include civil rights cases, employment discrimination, Freedom of
Information Act cases, and Equal Access to Justice Act cases. While the Laffey case itself was
quite complicated and heavily litigated, many of these cases are not as complex as, or no more
complex than, vaccine cases in terms of their subject matter and evidence. It is true that before fees
are awarded in fee shifting cases there is the requirement that the case be won, that negligence or
some other form of liability be proven (in addition to causation in personal injury cases), and that
those cases include the array of available discovery devices provided under the Federal Rules of
Civil Procedure. However, it should be noted that procedural tasks such as depositions and motions
result in the billing of many additional hours, and thus the ultimate compensation in those cases is
raised relative to vaccine cases by virtue of the number of hours billed rather than necessarily the
hourly rate.

As noted above, the Laffey Matrix rate for 2014-15 was $520 for lawyers with 20 years or
more experience; $460 for 11 to 19 years, $370 for 8 to 10 years in practice, $300 an hour for
lawyers having 4 to 7 years’ experience, and $255 for those with 1 to 3 years in practice. Paralegals
and law clerks are at $150 an hour. In my analysis of the appropriate rates for Vaccine Act cases,
the Laffey Matrix is utilized for its structure and as one comparative data point, but not as a prima
facie forum rate.

24
 b. Prevailing Rates in Vaccine Cases

While the obtainable data is far from comprehensive as to rates paid in vaccine cases, it
appears that after adjustment for inflation and attorney rate increases that rates paid for attorneys
with 20 or more years’ experience range from about $300 an hour to $425. For practitioners having
between 11 and 19 years’ experience the rates range from $275 to $375 an hour, and based upon
the very limited data of two practitioners with extensive vaccine experience relative to their years
in practice, $275 to $325 for attorneys having between 8 and 10 years of experience. For attorneys
having 4 to7 years’ experience, $250 to $300.35 For attorneys having fewer than four years in
practice $150 to $200.

Petitioner argues that vaccine practice is a specialty practice in which relatively few
attorneys are engaged. In fact, based upon data from the U.S. Court of Federal Claims, there were
440 lawyers from across the United States who were named as counsel in vaccine cases that have
been filed since 2010. Approximately 60 percent of the cases were handled by 30 lawyers and 80
percent were handled by just 57 attorneys.36 The cases do involve a steep learning curve as the
subject matter often involves cutting edge issues in immunology, neurology, rheumatology and
gastroenterology, as well as epidemiology, neuropsychology, psychology, and life care planning.
The alleged connection between a vaccine and a disease is often to a disease that is not fully
understood itself such as epilepsy or multiple sclerosis. In many of the cases, including the present
one, the causation case turns on contested issues in microbiology as well. Medical malpractice
litigation, brain damage, or toxic torts—which are among the most difficult areas of personal injury
practice—often require knowledge of different complex areas of medicine. However, the issues in
those subspecialties rarely involve the interplay of the immune system and the central nervous
system or other body systems with eminent researchers and scientists offering conflicting
testimony on causation, as is often the situation in vaccine cases.

Accordingly, it is reasonable to conclude that vaccine practice is a specialty area that has
attracted a fairly small number of attorneys nationwide. It does have a steep learning curve, the
need to front costs for expensive experts, and features deferred payment of fees and costs. On the
other hand, there is no need to prove negligence or product defect to succeed, and discovery is
limited to the production of medical records, expert reports, medical literature and other
information about the petitioner such as employment records.

When evaluating rates outside the Program in the Washington D.C. forum, I noted that the
average attorneys’ fees for all lawyers are substantially higher than the Laffey Matrix, and the rates
in the Laffey Matrix are higher than have generally been awarded in vaccine cases (and are higher
than what petitioner requests in this case). The higher rate for Laffey Matrix cases reflects a risk
premium that is reasonable for fee shifting cases in which the plaintiff must win before counsel is
35
For a practitioner in this category with considerably less vaccine experience who participated as
second chair, a fee of $220 was granted in 2014. See Rowan v. Sec’y of HHS, 2014 WL 3375588,
at *3 (Fed. Cl. Spec. Mstr. June 19, 2014).
36
In more detail, of 2,814 cases filed by attorneys since 2010, over 1,750 were filed or handled by
30 attorneys. About 2,200 cases were handled by 57 attorneys, while there were approximately
440 attorneys who handled at least 1 vaccine case since 2010. These figures recognize that there
are attorneys who handle cases after other attorneys have filed them.
25
entitled to fees.

For all of the reasons recited above, I therefore conclude that the range of $350 to $425 an
hour for attorneys with more than 20 years of experience is a reasonable forum rate. The higher
end of the range should be awarded to those with significant Vaccine Program experience who
perform high quality legal work in vaccine cases. Similarly, I have concluded that lawyers with 11
to 19 years of experience may reasonably charge $300 to $375 an hour, with higher rates to be
paid to those with significant vaccine experience who perform quality work in these cases.
Attorneys with 8 to 10 years’ experience may reasonably request and be paid $275 to $350 an
hour. Attorneys in practice for 4 to 7 years may reasonably charge $225 to $300, and those with
less than 4 years’ experience may receive between $150 and $225. Particularly, in the latter
category, prior clerkships or legal intern work during law school in the Vaccine Program may be
considered.

c. Vaccine Program Experience and Quality of Work

The Conway Homer and Chin-Caplan firm has concentrated its practice in the Vaccine
Program for over 20 years. It does indeed represent a sizable number of petitioners in the program,
from many different states. CHC attorneys handle both the more straight forward cases in which
early settlement is achieved and the most difficult which require complex expert testimony at a
hearing. Special masters have noted in other cases that the firm does high quality work for its
petitioners and I concur in that judgment based upon the underlying case in this matter and multiple
others which I have reviewed. If the respondent’s tabulation of the number of cases handled and
amount of fees received is relevant on any issue in this case, it speaks to the strong reputation that
the firm has built in and out of the legal community for handling these cases. Accordingly, the
firm’s attorneys should be entitled to receive fees in the higher end of the range for their specific
level of experience.

The petitioners have presented evidence of the experience of the lawyers who worked on
this case along with their requested rate. These are summarized as follows:

Kevin Conway-Requested rate of $425 an hour. Mr. Conway has over 45 years of
experience in the legal profession and 26 years in the Vaccine Program. He has represented
numerous petitioners before the Office of Special Masters (“OSM”), the Court of Federal Claims
(“CFC”), and the Federal Circuit. He serves as a member of the OSM Process Committee and
assisted in the preparation of the Vaccine Program guidelines. He is an Adjunct Professor at Boston
College.

Ronald Homer-Requested rate of $415 an hour. Mr. Homer has over 24 years of
experience as an attorney with 22 years in the Vaccine Program. He is the attorney of record in all
CHC cases filed in the Program, which is approximately 3,000 cases. He has practiced before
special masters at OSM, and judges at the Court of Federal Claims, and the Federal Circuit. He
has assisted the Chief Special Master in the orderly resolution of claims in the Omnibus Autism
Proceeding. He serves on the OSM Outreach Committee and is a member of the CFC Bar
Association. Mr. Homer plays a supervisory role in the firm as well as in this case, which is
discussed in further detail below.

26
 Sylvia Chin-Caplan-Requested rate of $415 an hour. Ms. Chin-Caplan is a partner at
CHC. She has 30 years’ experience in the practice of law and 17 years in the Vaccine Program.
She is also a registered nurse and has practiced as a civil litigator in medical malpractice and
product liability cases. She has practiced extensively at OSM, the Court of Federal Claims, and
the Federal Circuit. She serves as co-chair of the Science and Technology Subcommittee of the
Vaccine Injured Petitioner’s Bar Association. She is a member of the CFC Bar Association.
Specifically, in this case, Ms. Chin-Caplan presented the direct testimony of Dr. Lawrence
Steinman, cross-examined Dr. Arun Venkatesan, and authored parts of the briefs in this case.

Christine Ciampolillo-Requested rate of $310 an hour. Ms. Ciampolillo is a junior partner
at CHC. She has 6 years’ experience as an attorney exclusively in the Vaccine Program. She has
handled first chair in multiple vaccine cases and she did the direct examination of one of
petitioner’s experts, Dr. Svetlana Blitshteyn. She contributed to the extensive written work
product produced for this case. She serves as Secretary of the Vaccine Injured Petitioner’s Bar
Association. Ms. Ciampolillo worked at CHC during law school as a law clerk and was thus
familiar with the Program and issues in it when she began work as an attorney. See Pet. Reply at
15. Ms. Ciampolillo has represented petitioners at hearings, and along with Mr. Pepper, has been
invited to speak on the Vaccine Program at various conferences.

Amy Schwader, formerly Amy Fashano-Requested rate of $295 an hour. Ms. Schwader,
who appears on the billing records of this case as Amy Fashano, had seven years’ experience in
the Vaccine Program. She is no longer employed by the firm.

Joseph Pepper-Requested rate of $295 an hour. Mr. Pepper is an associate at CHC with
6 years’ experience as an attorney. He has 5 years’ experience in the Vaccine Program. He is lead
counsel in multiple Vaccine Program cases and serves in multiple positions in Vaccine Program
bar associations. Mr. Pepper is active in the U.S. Court of Claims Vaccine Bar Association and in
the Vaccine Litigation Group of the American Association for Justice. Id. at 14. He has practiced
before OSM, the Court of Federal Claims, and the Federal Circuit. Mr. Pepper manages 50 to 60
vaccine cases at all times, has represented petitioners at several hearings and argued appeals. Id.
at 15.

Meredith Daniels-Requested rate of $285 an hour. Ms. Daniels has 5 years’ experience
working as an attorney in the Vaccine Program. She has practiced before the OSM, the Court of
Federal Claims, and the Federal Circuit. She serves on the Board of Governors of the Newly
Admitted Lawyers Division of the CFC Bar Association and is a member of the Vaccine Injured
Petitioner’s Bar Association and the American Association for Justice. Ms. Daniels worked at
CHC during law school as a law clerk and was thus familiar with the Program and issues in it when
she began work as an attorney. Id. Ms. Daniels has represented petitioners at hearings and argued
appeals.

Law Clerks-Requested rate of $160 an hour. The law clerks are law students who work at
the firm under the supervision of CHC attorneys. Id. at 20. They perform numerous tasks at lower
rates that are often performed by attorneys at other firms.

27
 Paralegals-Requested rate of $135 an hour. The firm represents that its paralegals are
“well-qualified, carefully chosen college graduates” who also perform many tasks that are
performed by attorneys in other firms. Pet. Memo at 15. The paralegals each have several years at
the firm doing exclusively vaccine work. The firm represents that it uses law clerks and paralegals
to perform tasks whenever possible resulting in minimized fees and conservation of Program
resources. See Pet. Reply at 18-21.

The paralegal rate for CHC paralegals is supported by respondent’s exhibit BB, the
National Association of Legal Assistants and Paralegals 2014 Utilization and Compensation
Review. A survey in the exhibit indicates that the highest billing rates are earned by paralegals
with college degrees. Resp. Ex. BB at 8 (noting the 2014 average rate billed by a paralegal with a
bachelor’s degree as $134 an hour). The concentrated work by the CHC paralegals in vaccine work
also enhances their value. According to the Utilization and Compensation Review, exhibit BB,
paralegal rates range from under $30 an hour to over $200 an hour, with college graduates billing
at an average of $134 an hour. Id. at 2, 8.

Based upon all of the factors discussed above with particular emphasis on prevailing rates
relative to years of experience, concentrated work in the Vaccine Program, the responsibility
assumed in Vaccine Program cases, and the consistently high quality of work in those cases relative
to the years of experience, I have concluded that the following rates are currently reasonable for
CHC attorneys and staff:

More than 20 years’ experience
Kevin Conway $415
Ronald Homer $400
Sylvia Chin-Caplan $400

Four to Seven years’ experience
Christine Ciampolillo $300
Amy Schwader $285
Joseph Pepper $290
Meredith Daniels $280

Law Clerks $145
Paralegals $135

I anticipate utilizing these rates in all other challenges to CHC rates for work performed in
2014 and 2015 currently pending before me.

D. Discussion of Reasonable Hours Expended and Costs

Petitioner “bears the burden of establishing the hours expended” in seeking a fee award
for those hours. Wasson v. Sec’y of HHS, 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and
aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam). Reasonable attorneys’ fees are
determined by applying the lodestar method of multiplying a reasonable amount of hours
expended by a reasonable hourly rate. Avera, 515 F.3d at 1347-48 (quoting Blum, 465 U.S. at

28
888). A line-by-line evaluation of the fee application is not required and special masters may rely
on their experience with the Vaccine Program and its attorneys to determine the reasonable number
of hours expended. See Wasson, 24 Cl. Ct. at 484; see also, Saxton v. Sec’y of HHS, 3 F.3d 1517,
1521 (Fed. Cir. 1993). The requirement that attorneys’ fees be reasonable also applies to costs.
Perreira, 27 Fed. Cl. at 34.

Petitioner has submitted detailed billing to substantiate her request for attorneys’ fees and
costs. Respondent has raised numerous objections to hours expended on projects and the number
of people doing work on this case. These objections will be addressed below.

Concerning costs, respondent’s only objection is for a first class plane ticket purchased by
Dr. Steinman to testify at the entitlement hearing, which was reimbursed by the firm. The cost of
the ticket was $2,357.00. I agree that the Program should not have to pay first class airfare, and
accordingly the price of the plane ticket will be reduced to $680, the approximate cost of a daytime,
nonstop flight from San Francisco, California to Washington D.C. See Resp. Ex. CC. This
reduction amounts to $1677.00. Thus, petitioner’s costs are approved in the amount of $74,183.52,
in addition to $250 to be reimbursed to Mrs. McCulloch pursuant to General Order No. 9.

i. Summary of the Entitlement Portion37

This case was vigorously and capably defended on all fronts by respondent. The
government contested the diagnosis, the etiology of the harm, the theory of connection to the
vaccine and the logical explanation of the cause. Respondent, now somewhat disingenuously,
argues that the case was in fact simple and straight forward, and that there was not significant
medical literature submitted. Her objections to time expended by petitioner’s counsel in this case
largely flow from this proposed notion of simplicity.

At the outset, it should be clear that this was not a simple case. There were 10,438 pages
of medical records filed. Pet. Reply at 18. Petitioner filed 34 medical articles and respondent filed
13. The vaccine in question, HPV, was relatively new at the time this petition was filed and did
not have a long history of adverse effects. What is more, the underlying cause of the petitioner’s
severe epilepsy proposed by the petitioner’s experts, damage to the aquaporin-4 water channels,
was also novel. The aquaporin-4 water channels are themselves a molecular discovery of the
twenty-first century. Epilepsy is certainly not a fully understood disease and four highly qualified
experts, two on each side, disagreed as to the underlying cause of the petitioner’s daughter’s severe
epileptic disorder. Was the correct diagnosis limbic encephalopathy or febrile infection related
epilepsy syndrome—one condition rarer than the other? The causal theory was founded on
molecular mimicry and the parties, among other issues, debated the sufficiency of the homology
between the vaccine and the aquaporin-4 water channels, as well as the role of the aquaporin-4
water channels in the genesis of epilepsy. Not only were 47 articles from the medical literature
filed to address the issues in the case, but the literature involved complex issues of central nervous
system anatomy and diagnosis as well as molecular biology. This was a complex case brought on
behalf of a very severely injured and impaired minor child. It deserved the full attention of counsel.
As the U.S. Court of Federal Claims has said:

For a full discussion of petitioner’s entitlement to compensation, see McCulloch v. Sec’y of HHS,
37

No. 09-293V, 2015 WL 3640610, at *1 (Fed. Cl. Spec. Mstr. May 22, 2015).
29
 We reject unequivocally any suggestion that an attorney for a petitioner under the
vaccine program is warranted in putting out anything less than the highest effort . .
. . An attorney for a petitioner under the vaccine program must prepare his [or her]
case as if every factual and legal issue will be contested, regardless of how straight
forward or uncontested the case may appear with hindsight. Any other approach
would not serve the client’s interest.

Holton by and through Holton v. Sec’y of HHS, 24 Cl. Ct. 391, 398 (U.S.C.F.C 1991).

This case was heavily litigated and required extensive attention to detail and mastery of
complex concepts of medicine and biology. The petitioner’s firm must have discretion in the way
it builds and presents its cases. While it is certainly a difficult task for the respondent to fairly
evaluate the reasonable number of hours that are justified in preparation of the case, the analysis
should not be overly mechanical as if the tasks in question were simple, which they were not in
this case.

ii. Objection to Time Spent Preparing the Amended Petition and
Affidavit

The guiding principle in evaluating fee petitions is that the work performed and the hours
billed must be reasonable. 42 U.S.C. ' 300aa-15(e) (2012). As the United States Supreme Court
instructs, when awarding attorneys’ fees, special masters may use estimates to achieve “rough
justice.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011). “‘The [trial forum] also should exclude from
the initial fee calculation hours that were not ‘reasonably expended.’ . . . . Counsel for [petitioner]
should make a good faith effort to exclude from a fee request hours that are excessive, redundant,
or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S.
424, 433-34 (1983)).

Respondent, as she has in multiple other cases, objects to the amount of time spent in
preparing the detailed Amended Petition that the CHC firm often files and did file in this case.
Respondent objects that paralegals prepare a chronology of the medical records and therefore that
law clerks working on the amended petition are merely “transcriptionists” and attorneys should
not have spent more than 1 hour reviewing the 29 page Amended Petition. See Resp. Response at
21. Petitioner responds that the respondent misconstrues the nature of the medical chronology,
which is a summary of all 10,438 pages of the records involved in the case. Pet. Reply at 18-22.
The ultimate preparation and selection of the quotations that are used in the Amended Petition
requires considerable review of the chronology and the records as well as professional judgment
about the narrative prepared. The quotations to be used set forth a clear road map of the case. See
id.

I have previously ruled on this objection in Jones v. Sec’y of HHS in which I held:

The undersigned is inclined to agree with petitioner’s view that the preparation of
the detailed Amended Petition requires significant review, analysis, and

30
 organization of the medical records. Particularly, the undersigned finds that the
detailed and organized Amended Petition prepared by counsel in this and other
cases is helpful in coming to an efficient understanding of the issues—just as
respondent’s Rule 4(c) reports are helpful in achieving the same. These reports or
petitions require professional judgment as to the relevance of records inserted as
well as organization and analysis of the chronologies presented through both the
Amended Petition and the Rule 4(c) reports. The undersigned finds that both of
these documents were helpful in reviewing the case and finds that it is highly likely
that expert witnesses and mediators would have also found them helpful in
achieving efficiency in the expenditure of their time. The undersigned also finds
that billing seventeen hours of attorney time to prepare the Amended Petition and
Affidavit, containing considerable medical detail with direct quotations from the
medical records, in addition to approximately twenty-one hours of paralegal time
summarizing nineteen exhibits of medical records, to be reasonable in this case.

No. 11-70V, 2014 WL 7508006, at *7 (Fed. Cl. Spec. Mstr. Dec. 4, 2014).

In this case in which the petitioner had over 10,000 pages of medical records and a
considerably more complex record than in Jones, I found the Amended Petition quite helpful in
outlining the case with numerous direct quotations from the medical record. The petitioner also
indicated that the Amended Petition served as the basis of a substantial portion of the stipulated
statement of facts which the parties were ordered to file after the entitlement hearing in this matter.
Accordingly, I will deny respondent’s objection to this billing and grant the requested fee for
preparation of the Amended Petition at the rates that I have determined to be reasonable above.

Respondent also objects to 12.7 hours for preparation of the affidavit of the petitioner, who
is the mother of the injured child. As the affidavit serves as a substitute for the direct examination
of the mother, it must be prepared with considerable care and verification of memory against events
recorded in the medical records. The affidavit filed is only 5 pages long and does largely consist
of memories of the mother. Respondent requests a reduction of $924.60. I find it reasonable to
reduce the billing by $500.00.

iii. Objection to Hours Expended by Attorneys Not Primarily
Working on the Case

Respondent objects to the time spent on this file by attorneys other than Ms. Chin-Caplan
and Ms. Ciampolillo. As set forth in the respondent’s objections, over the course of the 8 year
history of this case Mr. Conway billed 18.7 hours, Mr. Homer billed 11 hours, Ms. Fashano 5
hours, Mr. Pepper .1 hours, and Ms. Daniels 7.5 hours. Resp. Response at 25. Respondent argues
that no private client would agree to pay for the time of attorneys who had “no substantive
involvement in, or knowledge of the case.” Id. A review of the billing records indicates that Mr.
Conway was involved in the case at the outset and appeared to be in charge of the firm’s initial
intake and evaluation of the case. See generally Pet. Motion Tab A. He billed 9.5 hours prior to
2014 with an additional 9.2 hours to prepare the fee petition, to which the respondent does not
object. Resp. Response at 25, 40; see Pet. Motion Tab A. After the initial period, Mr. Conway’s
involvement seems to have been primarily editing motions or correspondence with experts.

31
 Respondent requests that I use my discretion to reduce all of the time billed by Ronald
Homer, a total of 11 hours over the life of this case. Resp. Response at 24. Both Mr. Conway and
Mr. Homer are among the most experienced attorneys in the Vaccine Program. Mr. Homer is the
attorney of record on all cases at the firm. This is done so that he performs a supervisory function,
assuring that all orders are complied with, deadlines met and assignments among the firm’s
attorneys made. Most of his time entries are in very short increments of time such as .1 or .2 hours
at a time. See generally Pet. Motion Tab A. Given that the firm has been counsel of record in
approximately 350 cases since 2007, the need to perform this function and to otherwise provide a
quality control function to the work output of the firm is commendable. As attorney of record, Mr.
Homer is responsible for assuring that all deadlines are met and that the work on behalf of the
firm’s clients proceed as it should. The fact that he usually delegates more individually time
consuming projects such as petition preparation, research, brief writing, work with experts, and
trial work to attorneys with lower billing rates amounts to a savings to the Program. At least in
this case, the same is true for Mr. Conway. I will not disallow the modest billings made to this file
to perform their functions for this case.

Amy Fashano appeared to be more involved in the case at the beginning before Christine
Ciampolillo became primarily involved. Meredith Daniels did various research projects, cite
checking, and editing of briefs. All of these were reasonable functions and did not involve
duplication of work done by others, and from what I can tell from the billing records did not
involve any significant amount of time in becoming familiar with an unfamiliar case. I find that
the modest billings for Ms. Fashano and Ms. Daniels are also reasonable.

iv. Objection to Having Two Attorneys Work on the Case as
Duplicative

If the billings had not been minimal and did not involve tasks such as oversight,
management, cite checking, proof reading, and research by the other members of the firm, there
might have been some basis for the objection of duplicative work by attorneys other than trial
counsel. However, in my experience, most firms handling complicated cases for plaintiffs assign
at least two attorneys to a file. As has been recited above, the scientific and medical foundation of
this case was quite complicated and involved relatively new theories as to multiple issues in the
case. Ms. Chin-Caplan did the direct and re-direct examinations of Dr. Steinman and Ms.
Ciampolillo did the same with Dr. Blitshteyn. Ms. Chin-Caplan cross-examined Dr. Venkatesan.38
Both were involved in the preparation of the pre- and post-trial briefing of this case. There can be
no question that both played substantive roles in the case.

Once again the respondent’s objections to the time spent appear to be largely mechanical
and do not reflect the reality of the work involved in carrying the burden of proof in a complicated
medical case such as this one. Respondent suggests that the two primary attorneys should not have
interacted as to each other’s witnesses, that they should have taken less than 16.9 hours of time to
review and highlight for the court 34 medical articles on autoimmunity, molecular biology of the
38
Respondent also filed an expert report from Dr. Sladky but ultimately decided not to present his
testimony, most likely for reasons unrelated to the case. Nevertheless, petitioner’s response to his
report had to be prepared.
32
brain, epilepsy, limbic encephalopathy, febrile infection related epilepsy syndrome, molecular
mimicry, the role of the aquaporin-4 water channels in the brain, and their postulated role in the
genesis of epilepsy. Resp. Response at 26-39. Respondent objects to both attorneys reviewing the
expert reports from both sides and essentially suggests that it would be appropriate for each
attorney to be satisfied to understand half the case. Id. If it is not facially clear that both attorneys
have to be intimately familiar with all of the expert reports, and of the close interrelationship of
the subjects covered, the fact that the issues presented by all of the experts overlapped, and cross
examination of both did as well, should make it clear. It is appropriate for both lead attorneys to
know and to interact in all issues of the case.

Respondent suggests that 100 hours between the two attorneys was too much for trial
preparation and suggests that I reduce the trial preparation time to 25 hours per attorney or the
equivalent of three work days each. Resp. Response at 39. I find it difficult to place these kinds of
arbitrary limits on the competent preparation for trial as the Court of Federal Claims has rejected
the notion that petitioner’s attorneys should put forth less than their best effort on behalf of
petitioner, or that they should not prepare for all potentially contested issues. See Holton, 24 Cl.
Ct. at 398. It is easy to say, as respondent does, that no client would pay for two attorneys to work
on a case, but the reality is that clients in private practice or in the Vaccine Program want their
attorneys to do what is necessary to effectively present and win their cases. In these cases, which
require the presentation and cross-examination on complex medical and scientific concepts, the
time spent to review and digest hundreds of pages of medical articles and records that are being
submitted as evidence to the court in support of the expert testimony by both sides is time
consuming. The need for trial counsel to have reasonable command of the medical and scientific
evidence presented in the case is paramount if the petitioner is to be competently represented. The
thorough preparation of expert witnesses is as well. I find the amount of time spent in preparation
for trial on the issues actually litigated in this case to be reasonable and accordingly am allowing
the time billed for trial preparation.

v. Travel Expenses

Some of petitioner’s counsel’s travel expenses for the hearing appear to have been billed
at their full rate. Petitioner’s counsel have indicated that they worked on the way to the hearing.
It is reasonable that counsel can work while waiting at the airport and on the flight, but unlikely
that they would be able to do much work during the remainder of the transfer. Therefore, I will
allow three hours at full rate for each counsel on the pre-hearing flights, and the balance of the
travel time on the way and in return to be billed at half rate. Thus, Ms. Chin-Caplan’s travel invoice
is reduced by $2,075.00 and Ms. Ciampolillo’s by $570.00 as she had billed the return travel at
half rate originally. This calculation is based upon the rates determined to be reasonable above.

vi. Objection to Administrative and Secretarial Tasks Performed
by Paralegals

Respondent objects to paralegals billing for what she characterizes as administrative or
secretarial tasks. The objection goes to a category of billing called “prepping” of records billed
for a total of $2,220.50. Further objection is raised to burning CDs or copying records sent to
experts, creating copies of records for binders or electronic copies of documents for hearing, and

33
booking travel. Respondent states that these tasks were billed at $2,945.10 and should be entirely
deducted from any fee award. Resp. Response at 23.

CHC provides four pages of explanation in its reply. See Pet. Reply at 23-27. In essence,
CHC indicates that the paralegals who are familiar with the case review incoming medical records,
confirm that they are complete, assure that all filings with the court are correct, and completely
oversee the production of files to be sent to the experts. Id. The paralegals make sure that the
records are legible, complete, in order, and belong to the client in whose case they are being filed.
Id. at 23. The paralegal places exhibits in chronological order, scans and paginates the exhibits.
Id. at 24. The paralegal also assures that the exhibits are properly prepared for electronic filing
with the court and that they are compliant with the maximum filing requirements. Id. In this case,
the primary hospital records were filed in 9 separate volumes so as to comply with those
requirements. Respondent objects to the paralegal involvement in preparing the trial notebooks for
the hearings and suggests that this is mostly a matter of standing at a photocopy machine. Resp.
Response at 22-23. CHC attributes considerably more judgment and organizational skill to these
tasks. CHC responds that the paralegals are involved in arranging travel for the attorneys and
experts because of the need to interact with the experts, the need to find hotels near the courthouse,
and the need to assure that there is conference room space when necessary. Pet. Reply at 25-26.

It is interesting that respondent objects to attorneys not primarily working on the file being
assigned tasks, such as research or proof reading, because (as explained above) she suggests that
this involves needlessly having another person familiarize himself with the case. Yet, in the
paralegal category, respondent seems to argue that secretaries should be able to do many tasks that
are closely involved with the organized preparation of a large file, and that somehow it makes
more sense for the paralegal to spend the time explaining tasks to a secretary rather than just
completing the work him or herself. There seems to be little consideration of how much instruction
time is involved in that hand off and how much quality control oversight has to be done to assure
that all of the documents are properly prepared, managed, and filed.

Nonetheless, as some special masters have disallowed billing for photocopying and similar
tasks, I will deduct $1,000.00 from the billing for paralegal time which reflects some consideration
of time spent photocopying and other administrative tasks but allows for all the time involved in
organizational oversight and quality control functions that a paralegal performs.

vii. Fees for Preparation of Fee Application and Responses to
Respondent’s Objections

Petitioner has filed a supplemental request for $16,752.00 for attorneys’ fees necessitated
by the preparation of answers to the respondent’s objections to the firm’s fee application. See
generally Pet. Supp. Motion. Based upon the array of issues raised by the respondent, including
the extent of fees earned by CHC since 2007, the cases to which those were attributable, the local
rate versus forum rate issues, an appropriate forum rate, and objections to specific uses of time,
CHC filed three briefs in support of its fees and in opposition to the respondent’s objections. The
research and preparation of these documents, including review of all fees and costs received by
the firm since 2007, required significant input and time from Mr. Conway and Mr. Homer. The
supplemental fee application is granted as modified to reflect the rates that I have determined

34
above.

III. CONCLUSION

At page 103 of its billing statement, CHC provides a summary of each timekeeper’s billing
at the varying rates for the different years in which the work on this case was done. See Pet. Motion
Tab A at 103. The summary for each attorney and for the paralegals and law clerks is shown at
the Carr rates for all lines except one which is shown at the CHC proposed rates. While it appears
that the respondent is objecting to the Carr rates as well in her sur-reply to petitioner’s motion for
interim fees and costs, I have concluded that the objection was completely without merit and the
Carr rates to which both parties had agreed were in effect for prior years. As I have concluded that
the appropriate rates differ from the proposed rates for 2014 and 2015, I will show the calculations
below.

Interim Fees Request
Timekeeper CHC Rates x hours = Adjudicated rate x hours = Difference

Conway $425 x 9.2 = $3,910.00 $415 x 9.2 = $3,818.00 $92.00
Homer $415 x 3.3 = $1,369.50 $400 x 3.3 = $1,320.00 $49.50
Chin-Caplan $415 x 68.3 = $28,344.50 $400 x68.3 =$27,320.00 $1,024.50
Ciampolillo $310 x 115.5 = $35,805.00 $300 x 115.5 = $34,650.00 $1,155.00
Schwader no billings at proposed rate ----
Pepper $295 x 0.1 = $29.50 $290 x 0.1 = $29.00 $0.50
Daniels $285 x 2.8 = $798.00 $280 x 2.8 = $784.00 $14.00
Caplan 39 $200 x 13.8 = $2,760.00 $145 x 13.8 = $2,001.00 $759.00
Law Clerks $160 x 1.6 = $256.00 $145 x 1.6 = $232.00 $24.00
Paralegals $135 x 13.4 = $1,809.00 $135 x 13.4 = $1,809.00 $0.00
_________
Total reduction to bill based on adjudicated rates $3,118.50

Supplemental Fees Request
Timekeeper CHC Rates x hours= Adjudicated rate x hours= Difference

Conway $425 x 10.2 = $4,335.00 $415 x10.2 = $4,233.00 $102.00
Homer $415 x 22.1 = $9,171.50 $400 x22.1 = $8,840.00 $331.50
Ciampolillo $310 x 2.4 = $744.00 $300 x 2.4 = $720.00 $24.00
Pepper $295 x 6.7 = $1,976.50 $290 x 6.7 = $1,943.00 $33.50
Daniels $285 x 0.2 = $57.00 $280 x 0.2 = $56.00 $1.00
Law Clerks $160 x 0.9 = $144.00 $145 x 0.9 = $130.50 $13.50
Paralegals $135 x 2.4 = $324.00 $135 x 2.4 = $324.00 $0.00
__________
Total reduction from supplemental fee request $505.50

39
In reviewing Ms. Nicole Caplan’s resume attached as Tab A to petitioner’s reply, it appears Ms.
Caplan worked at CHC as a law clerk until May 2013. She was admitted to the Massachusetts Bar
in November 2013.
35
Total reduction of combined fees requests based on adjudicated rates $3,624.00

In addition I have deducted a total of $4,145 as set forth above. $4,145.00

Total deduction from requested fees $7,769.00

Total fees requested including supplemental $173,095.60 Total fee award $165,326.60

Total costs billed $75,860.52 Total Cost award $74,183.52

Reimbursement to Mrs. McCulloch $250.00

The above amounts reflect the total amount of interim attorneys’ fees, costs and
reimbursements approved in this case. Accordingly, an award shall be made as follows:

1) In the form of a check jointly payable to petitioner and to petitioner’s attorneys at
Conway, Homer & Chin-Caplan P.C., in the amount of $239,510.12 ($165,326.60 for
fees, $74,183.52 for costs); and

2) In the form of a check payable to petitioner, Rachel McCulloch, in the amount of
$250.00 as reimbursement of her costs.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accord with this decision.

IT IS SO ORDERED.

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

36