Dempsey v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 16, 2017

* * * * * * * * * * * * * * * UNPUBLISHED
BRIAN DEMPSEY and *
CLAIRE DEMPSEY, parents of *
K.J.D., a minor, *
*
* No. 04-394V
Petitioners, *
*
v. * Chief Special Master Dorsey
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Vague;
AND HUMAN SERVICES, * Block Billing; Unnecessary
* Entries; Administrative Tasks; Improper
Respondent. * Documentation of Costs; Autism.
*
* * * * * * * * * * * * * *
Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for petitioners.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On March 12, 2004, Brian and Claire Dempsey (“petitioners”) initially filed a “Short Form
Autism” petition for compensation under the National Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-10 et seq. (2012) (“Vaccine Act”), on behalf of their son, K.J.D., a minor. See Short Form
Autism Petition For Vaccine Compensation dated Mar. 12, 2004 (ECF No. 1) at 1. By filing that
“Short Form Autism” petition, petitioners in effect alleged that K.J.D. suffered from autism, and
that his autism was caused by either or both (1) the MMR (measles, mumps, rubella) vaccine, and
(2) vaccines containing thimerosal, a mercury-based preservative contained in a number of
childhood vaccines until about 1999. See Autism General Order #1, Exhibit A, Master Autism
Petition for Vaccine Compensation, 2002 WL 31696785, at *8 (Fed. Cl. Spec. Mstr. July 3, 2002).

1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the United States Court of Federal Claims' website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to delete medical or other information, that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion
for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees
that the identified material fits within the requirements of that provision, she will delete such
material from public access.

1
 On December 30, 2014, petitioners filed an amended petition,2 alleging that the MMR, oral polio
virus (OPV), and/or varicella vaccinations administered on October 25, 1999, caused various
neurological injuries, including complex epilepsy, epileptic encephalopathy, and developmental
regressions. See Amended Petition dated Dec. 30, 2014 (ECF No. 59) at 3.

A fact hearing was held in Pittsburgh, Pennsylvania on October 28, 2015, followed by an
entitlement hearing held in Washington, D.C. on January 14, 2016. Thereafter, on February 23,
2017, then-Special Master Hastings issued an Entitlement Decision concluding that petitioners are
not entitled to compensation. Dempsey v. Sec’y of Health & Human Servs., 04-394V, 2017 WL
1058480 (Fed. Cl. Feb. 23, 2017). The parties filed a joint notice not to seek review of the special
masters’ Entitlement Decision on March 9, 2017. See Joint Notice Not To Seek Review of
Decision dated March 9, 2017 (ECF No. 103). Judgment entered in this case on March 13, 2017.
See Judgment dated March 13, 2017 (ECF No. 105). Petitioners now request an award of
attorneys’ fees and costs.3

I. The Instant Motion

On September 1, 2017, petitioners filed an application for attorneys’ fees and costs,
requesting $126,540.50 in attorneys’ fees for their counsel, Michael G. McLaren of Black McLaren
Jones Ryland & Griffee (“McLaren Firm”), and $37,215.14 in attorneys’ costs, for a total of
$163,755.64. Petitioners (“Pet’rs’”) Application (“App.”) dated September 1, 2017 (ECF No. 108)
at 1, 11. In accordance with General Order #9, petitioners have filed a signed statement indicating
that they incurred out-of-pocket expenses in the amount of $120.00. Id. at 3-4; See Pet’rs’ App.,
Ex. 3. They additionally seek reimbursement of those out-of-pocket expenses. Id. at 11.

Respondent filed a response to petitioners’ application on September 5, 2017. Respondent’s
Response (“Resp’t’s Resp.”) dated September 5, 2017 (ECF No. 109). Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the
resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1.
Respondent adds, however, that he is “satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Id. at 2. Additionally, he “respectfully recommends
that the [undersigned] exercise [her] discretion and determine a reasonable award for attorneys’
fees and costs.” Id. at 3.

2
Petitioners filed their amended petition as a “Motion to Amend Petition For Vaccine
Compensation,” attaching “Exhibit 1” labeled as “[Proposed] Amended Petition For Vaccine
Compensation.” See Amended Petition dated Dec. 30, 2014 (ECF No. 59). This document was
referenced by then-Special Master Hastings, the special master who issued the Entitlement
Decision in this case, as the “Amended Petition.” Dempsey v. Sec’y of Health & Human Servs.,
04-394V, 2017 WL 1058480, at *6, n. 6 (Fed. Cl. Feb. 23, 2017). Thus, the undersigned will also
follow this same naming convention.
3
Petitioners seek attorneys’ fees and costs on behalf of their current counsel of record, Michael G.
McLaren, who became the current counsel of record on March 12, 2014. See ECF entry of March
12, 2014 (granting a motion to substitute attorney for Mr. McLaren).

2
 The case was reassigned to the undersigned’s docket on September 12, 2017. See Notice of
Reassignment dated Sept. 12, 2017 (ECF No. 111). For the reasons discussed below, the
undersigned awards petitioners a total of $123,369.10 in attorneys’ fees and costs to Mr. Michael
G. McLaren, and $120.00 for petitioners’ out-of-pocket costs.

II. Reasonable Attorneys’ Fees
Under the Vaccine Act, petitioners are able to recover “reasonable attorneys’ fees” and
other costs. 42 U.S.C. §§ 300aa-15(e)(1) (2012). Even if petitioners are not awarded compensation
for their claim, they are still permitted to collect attorneys’ fees and costs if “the petition was
brought in good faith and there was a reasonable basis.” Id. Respondent does not argue that the
case lacks good faith or a reasonable basis, and the undersigned likewise agrees that the case was
brought in good faith and that a reasonable basis existed.

While respondent did not contest the billing rate or specific entries, the undersigned has the
discretion to reduce awards sua sponte, independent of enumerated objections. Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’g, No. 99-537V, 2008 WL 2066611 (Fed. Cl.
Spec. Mstr. Apr. 22, 2008).

a. Requested Hourly Rates

i. Hourly Rates In General

Petitioners request compensation for their attorneys, Mr. Michael G. McLaren, Mr. William
E. Cochran, Jr., and Mr. Chris Webb.4 Mr. McLaren requests a rate of $395.00 per hour for work
performed in 2014, $410.00 per hour for work performed in 2015, $425.00 per hour for work
performed in 2016, and $440.00 per hour for work performed in 2017. See Pet’rs’ App. at 9; See
generally Pet’rs’ App., Ex. 2. Mr. Cochran requests a rate of $335.00 per hour for work performed
in 2014, $345.00 per hour for work performed in 2015, $355.00 per hour for work performed in
2016, and $365.00 per hour for work performed in 2017. Id. Mr. Webb requests a rate of $285.00
per hour for work performed in 2014, $295.00 per hour for work performed in 2015, $305.00 per
hour for work performed in 2016, and $315.00 per hour for work performed in 2017. Id.

In addition to their attorneys, petitioners also seek compensation for paralegals5 and law

4
Petitioners’ application for attorneys’ fees and costs references Mr. McLaren as “MGM”, Mr.
Cochran as “WEC,” and Mr. Webb as “CJW.” See Pet’rs’ App. at 5-7; See generally Pet’rs’ App.,
Ex. 2.
5
Petitioners’ application for attorneys’ fees and costs identify the following four paralegals as
having worked on the case: Ms. Shelly Bloor (“SB”), Ms. Kim Helms (“KH”), Ms. Laura Leigh
Holdford (“LLH”), and Vickie A. Caudle (“VAC”). See Pet’rs’ App. at 11, n. 2.; See generally
Pet’rs’ App., Ex. 2.

3
clerks6 of the McLaren Firm who worked on the case. Petitioners request a paralegal rate of $130.00
per hour for work performed in 2014, $135.00 per hour for work performed in 2015, $140.00 per
hour for work performed in 2016, and $145.00 per hour for work performed in 2017. Pet’rs’ App. at
9, 11; See generally Pet’rs’ App., Ex. 2. Furthermore, petitioners request a law clerk rate of $145.00
per hour for 2015, $150.00 per hour for 2016, and $155.00 per hour for 2017.7 Id.

On November 4, 2016, the undersigned issued a reasoned decision in Henry v. Sec’y of
Health & Human Servs., No. 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov. 4, 2016),
addressing hourly rates for the McLaren firm. The undersigned concluded the McLaren firm may
be compensated at forum rates8 consistent with McCulloch v. Sec’y of Health & Human Servs.,
No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).9 The undersigned adopts the

6
Petitioners’ application for attorneys’ fees and costs identifies Ms. Samantha Ward (“SRW”) and
Ms. Carmen Garcia (“CMG”) as the law clerks that worked on the case. See Pet’rs’ App. at 9; See
generally Pet’rs’ App., Ex. 2. However, in a chart incorporated within the petitioners’ application
for attorneys’ fees and costs that summarizes the total attorneys’ fees request in the case, petitioners
mistakenly list Ms. Ward and Ms. Garcia as “paralegals,” rather than as law clerks. Id. at 11, n. 2.
7
Petitioners’ application for attorneys’ fees and costs also requests a law clerk rate of $140.00 per
hour for 2014. Pet’rs’ App. at 9. However, a close examination of the billing entries reveals that
the only law clerk who performed work on the case in 2014, was Ms. Garcia (“CMG”), whose
services were billed at a rate of $130.00 per hour. Pet’rs’ App., Ex. 2 at 13. As Ms. Garcia’s
requested law clerk rate for 2014 is the same rate requested for work done by McLaren firm
paralegals in 2014, the undersigned finds that petitioners’ request for a 2014 law clerk rate of
$140.00 per hour to be in error.
8
The undersigned granted the following hourly rates in Henry for the McLaren firm, for the years
2014 through 2016:

2014 2015 2016
Mr. McLaren (“MGM”) $395.00 $410.00 $425.00
Mr. Cochran (“WEC”) --- $345.00 $355.00
Mr. Webb (“CJW”) $285.00 $295.00 $305.00
Paralegals/ Law clerks (“SAB”; $130.00 $135.00-$145.00 $145.00
“LLH”; “VAC”; “CMG”; and
“SRW”)

See Henry v. Sec'y of Health & Human Servs., No. 15-545V, 2016 WL 7189925, at *1, 10 (Fed.
Cl. Nov. 4, 2016). Specifically relevant to the instant application, for the year 2016, the
undersigned in Henry set the upper limit of the hourly rate for the McLaren Firm paralegals and
law clerks at $145.00 per hour. Id. at *10.
9
Specifically, McCulloch outlined the ranges of hourly rates for attorneys and paralegals of
varying experience considered to be “in forum.” McCulloch, at *21. As of October 24, 2016, all
sitting special masters adopted the ranges set forth in McCulloch, subsequently posting, on the
Court’s website, fee schedules setting the Office of Special Masters’ “Attorneys’ Forum Hourly
4
reasoning in Henry for the instant analysis. In this regard, the undersigned acknowledges that
Henry did not specifically set an hourly rate for Mr. Cochran for the year 2014. See generally
Henry. However, the undersigned finds the petitioners’ request in the instant application, for Mr.
Cochran’s 2014 hourly rate, to be reasonable, and in keeping with the undersigned’s overall
reasoning and analysis in Henry. Id. Thus, the undersigned awards petitioners’ requested hourly
rate of $335.00 per hour for work performed by Mr. Cochran in 2014.

In setting 2017 rates for the McLaren Firm, the undersigned issued two recent decisions in
special processing unit (“SPU”) cases, finding the 2017 Fee Schedule10 posted on the Court’s
website to be persuasive in specifically resolving the McLaren firm’s requested hourly rates for
2017. See Day v. Sec’y of Health & Human Servs., No. 16-888V, 2017 WL --- (Fed. Cl. Spec.
Mstr. July 21, 2017); Bartholomew v. Sec’y of Health & Human Servs., No. 16-164V, 2017 WL ---
(Fed. Cl. Spec. Mstr. Aug. 3, 2017). Notably, the undersigned in Day and Bartholomew set the
upper limit of the 2017 hourly rate awarded to law clerks and paralegals of the McLaren firm at
$148 per hour. Id. The undersigned also adopts the rates awarded in Day and Bartholomew for the
instant decision. With the exception of the law clerks who billed time in the case, all of the
McLaren firm’s 2016 and 2017 requested hourly rates fall within the 2015-2016 and 2017 Fee
Schedules, and will be awarded in full.

Petitioners request $150.00 per hour for work performed by law clerks in 2016, and $155.00
per hour for work performed in 2017. Those rates fall outside of the 2015-2016 and 2017 Fee
Schedules. Thus, in following Henry, Day, and Bartholomew, the undersigned awards $145.00 per
hour for law clerk work in 2016, and $148.00 per hour for law clerk work in 2017.

In light of the above, the hourly rates to be awarded in this instant application are as
follows:

2014 2015 2016 2017
Mr. McLaren $395.00 $410.00 $425.00 $440.00
(“MGM”)
Mr. Cochran $335.00 $345.00 $355.00 $365.00
(“WEC”)
Mr. Webb $285.00 $295.00 $305.00 $315.00
(“CJW”)
Law clerks $130.00 $145.00 $145.00 $148.00
Paralegal $130.00 $135.00 $140.00 $145.00

Rate Fee Schedule” for the year 2015-2016. See generally OSM Attorneys’ Forum Hourly Rate
Fee Schedules, United States Court of Federal Claims Website,
http://www.uscfc.uscourts.gov/node/2914 (last visited Nov. 13, 2017.)
10
The 2017 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.

5
 ii. Hourly Rates For Travel Time

Petitioners request that Mr. McLaren should be awarded his full hourly rate for time spent
traveling in the case. Pet’rs’ App. at 10. However, consistent with Henry, supra, the undersigned
reduces the hourly rates billed for attorney travel time by 50 percent.11 Henry at *11. The
undersigned reaches this conclusion notwithstanding the fact that Mr. McLaren was noted to be
working during a portion of that time on the case en route. See, e.g., Hocraffer v. Sec’y of Health
& Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (noting that “Special Masters
consistently award compensation for travel time at 50% of the billing rate in the Vaccine
Program.”). See also Carlson v. Sec’y of Health & Human Servs., No. 15-909V, 2016 WL
8461183, at *2 (reducing the McLaren Firm’s hourly rate for travel by 50% notwithstanding the
fact that Mr. Webb was noted to be working during a portion of that time on case review en route).

The undersigned also notes that several billing entries submitted with petitioners’ request
constitute block-billing of travel-time, wherein Mr. McLaren billed travel time with other
compensable tasks that could be compensable at a full hourly rate. See e.g., Pet’rs’ App., Ex. 2 at
11, 12, 25. For such entries, however, it is impossible to determine the precise portion of the time
billed that should be compensated at a full hourly rate versus that which should be reduced by 50
percent. Because it is counsel’s burden to document the fees claimed, the undersigned will reduce
the hourly rate by 50% for the entirety of such block entries. See Rodriguez v. Sec’y of Health &
Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 29, 2009), at *8. See
also Broekelschen v. Sec’y of Health & Human Servs., 2008 U.S. Claims LEXIS 399, at **13-14
(Fed. Cl. Spec. Mstr. Dec. 17, 2008) (reducing petitioner’s attorneys’ fees and criticizing her for
block billing). Indeed, the Vaccine Program’s Guidelines for Practice state, “Each task should have
its own line entry indicating the amount of time spent on that task. Lumping together several
unrelated tasks in the same time entry frustrates the court’s ability to assess the reasonableness of
the request.”12

Accordingly, the undersigned will reduce the hourly rates billed for travel time by Mr.
McLaren, for the years 2014 through 2016, as follows:

11
The billing entries submitted with petitioners’ fees request reflect that, for one particular trip,
travel time was split by Mr. McLaren between the present case and an unidentified case. See,
Pet’rs’ App., Ex. 2 at 21-22. Thus, the undersigned will reduce the hourly rate for those billing
entries only for the hours claimed in the present case.
12
Guidelines for Practice Under the National Vaccine Injury Compensation Program ("Guidelines
for Practice") at 68 (revised April 21, 2016) found at
http://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-4212016.pdf
(last visited on Nov. 13, 2017) (Section X, Chapter 3, Part B(1)(b)).

6
 Total Time For Reduced Hourly Total Amount
Travel Entries Rate After 50% Reduced Per Year
Reduction
2014 20 hours13 $197.50 $3,950.00
2015 25.9 hours14 $205.00 $5,309.50
2016 14.8 hours15 $212.50 $3,145.00

Total Amount Reduced For Travel Time $12,404.50

b. Reduction of Billable Hours
The undersigned has reviewed the billing records submitted with petitioners’ request and
finds a reduction in the number of hours billed by the McLaren Firm is appropriate for three
reasons. First, the McLaren Firm’s billing entries contain numerous entries by attorneys,
paralegals, and law clerks for administrative work, including for booking hotel accommodations,
filing documents on CM/ECF, updating calendar deadlines, scheduling appointments, and emailing
support staff. Second, several of counsel’s billing entries are vague, making it difficult for the
undersigned to determine whether the task billed is reasonable. Third, counsel’s billing records
contain numerous entries which are duplicative and unnecessary.16

13
See Pet’rs’ App., Ex. 2 at 11-12.
14
See Pet’rs’ App., Ex. 2 at 21-22, 25.
15
See Pet’rs’ App., Ex. 2 at 31.
16
The undersigned finds that several of the entries constitute block billing, wherein the McLaren
Firm staff billed for multiple tasks in a single entry. Some of the blocks contain time that is
predominantly not compensable, for one of the above-listed reasons, along with time that is
compensable. For such entries, it is impossible to determine the precise portion of the time billed
that should be compensated. Because it is counsel’s burden to document the fees claimed, the
undersigned will not compensate the time billed for the entire billing entry. See Rodriguez at *8.

The undersigned notes that these reductions are also offset by the fact that many other entries,
although comprised primarily of compensable time, also include some non-compensable time that
has not been considered for reduction because of the inability to further itemize the billing record.
See e.g., Pet’rs’ App., Ex. 2 at 2, paralegal billing entry of March 7, 2014 (billing entry not
considered for reduction even though paralegal billed to “go online to Court’s website and pull
recent docket sheet for informational purposes,” as the majority of the other tasks billed in that block
entry were deemed to be compensable); Id. at 20, law clerk billing entry of July 27, 2015 (entry not
considered for reduction even though paralegal listed billing for “fil[ing] with court” because the
majority of the other tasks billed in that block were compensable); Id. at 22, law clerk billing entry
of September 9, 2015 (entry not considered for reduction even though law clerk billed to “file with
court” because other tasks in that block entry were deemed to be compensable.).

7
 i. Administrative Time

It is well established that billing for clerical and other secretarial work is not permitted in
the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (denying an award
of fees for time billed by a secretary and finding that “[these] services … should be considered as
normal overhead office costs included within the attorneys’ fees rates”); Mostovoy v. Sec’y of
Health & Human Servs., 2016 WL 720969, *5 (Fed. Cl. Spec.Mstr. Feb. 4, 2016).
The McLaren Firm’s time sheets contain numerous entries that are best characterized as
administrative work. For example, Mr. McLaren billed time for making travel plans for the case,
overseeing the re-organization of the case file, finding specific documents within his case files,
exchanging emails regarding the calendaring of deadlines, and putting files away after the hearing
in the case.17 Similarly, Mr. Webb billed time for reviewing the case file for the purpose of
confirming upcoming deadlines, and for reviewing and saving invoices from service
professionals employed in the case. 18

The law clerks that worked on the case also billed for a plethora of administrative tasks.
Ms. Ward’s time entries reflect numerous instances where time was billed for administrative
tasks such as: saving photographs to the case file; making phone calls to service providers
specializing in procuring copies of case-related DVDs; acknowledging receipt of scheduling
orders and calendaring deadlines; filing exhibits; scanning and saving exhibits to file;
answering phone calls from petitioners to relay the address of the Court prior to the evidentiary
hearing held in the case; receiving and saving invoices to the case file from petitioners’ expert
witness; and transcribing telephone messages from petitioners for their attorneys. 19 Similarly,
Ms. Garcia billed time for such tasks as scanning and saving documents to the case file. 20

Moreover, the billing entries of the paralegals that worked on the case also reflect
numerous instances where time was billed for administrative work such as: saving medical
records to the firm’s internal systems; filing documents; downloading docket sheets for the
case; creating sub files for various documents generated throughout the litigation; setting up
travel arrangements for Mr. McLaren; preparing materials for meetings; and calendaring
deadlines.21

These types of entries highlighted above do not constitute billable time, and the
undersigned thus reduces petitioners’ fee award for them.22
17
See e.g., Pet’rs’ App., Ex. 2 at 18-19, 25-26, 28.
18
See e.g., Pet’rs’ App., Ex. 2 at 15, 18, 31.
19
See e.g., Pet’rs’ App., Ex. 2 at 20-21, 23-25, 28, 30-31, 35.
20
See e.g., Pet’rs’ App., Ex. 2 at 17, 21.
21
See e.g., Pet’rs’ App., Ex. 2 at 2, 5, 10-12, 14-15, 21, 24.
22
The entries listed above do not constitute an exhaustive list of administrative entries in
8
 ii. Vague Entries By Attorneys Of The McLaren Firm

The undersigned has previously found it reasonable to decrease an award of attorneys’
fees for vagueness. Mostovoy v. Sec’y of Health and Human Servs, No. 02-10V, 2016 WL
720969 (Fed. Cl. Feb. 4, 2016); Barry v. Sec’y of Health and Human Servs., No. 12-39V, 2016
WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reducing a fee award by ten percent due to
vague billing entries); Davis v. Sec’y of Health and Human Servs., No. 15-159V, 2017 WL
877277, at *4 (Fed. Cl. Feb. 7, 2017) (reducing a fee award for vague entries). It is well
established that an application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file, whether
the amount requested is reasonable. Bell v. Sec’y of Health & Human Servs., 18 Cl. Ct. 751,
760 (1989); Rodriguez v. Sec’y of Health & Human Servs., 2009 WL 2568468 (Fed. Cl. Spec.
Mast. June 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed.
Id. at *8.

The undersigned finds several vague billing entries in this case. For instance, Mr. Webb’s
November 15, 2016 billing entry of “review file for status” represents one such vague entry.
Pet’rs’ App., Ex. 2 at 36. Time records should be sufficiently detailed so that the undersigned
may understand the amount of time being spent and the work being performed. These types of
entries do not include sufficient detail about what tasks were being performed and/or why. The
undersigned thus reduces petitioners’ fee award for such vague entries.23

iii. Unnecessary and Redundant Billing Entries
It is well established that “[c]ounsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.”” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is
“well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at *1521. After a careful review
of the billing records in this case, undersigned finds several of the McLaren Firm’s billing entries
unnecessary, duplicative, or both.

For instance, Mr. Webb periodically listed entries throughout the billing records for tasks
that the undersigned deems to be unnecessary, including for tasks such as: “review docket for new
information”24; “review file for status”25; “review ECF docket to make sure nothing new has been

petitioners’ attorneys’ billing records but rather are intended to serve as an example of those
types of entries.
23
The entry listed does not constitute an exhaustive list of vague entries in the McLaren Firm’s
billing records but rather is intended to serve as an example of those types of entries.
24
Mr. Webb’s November 10, 2016 billing entry. Pet’rs’ App., Ex. 2 at 36.
25
Mr. Webb’s December 15, 2016 billing entry. Id.

9
 entered”26; “conduct full periodic status review of entire file to update staff and other attorneys on
where we are and what is coming up”27; “review file and note length of time between hearing and
decision…note file for follow up.”28 The undersigned further notes that the unnecessary entries
listed here were taken only from a single page of petitioners’ billing, and thereby do not constitute
an exhaustive list of all of the unnecessary billing entries entered by Mr. Webb throughout the
billing records.

Similarly, Mr. McLaren also listed billing entries that the undersigned found to be
unnecessary and redundant, including entries for tasks such as: “see to substitution of counsel,”29
and to “go over minute entry for proceedings,”30 a billing entry that was redundant as Mr. Webb
also billed for that same exact task.31

iv. Reduction of Billable Hours Summary

For these reasons, and after carefully reviewing petitioners’ application, the undersigned
reduces petitioners’ attorneys’ fees award. In making reductions, a line-by-line evaluation of the
fee application is not required. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484
(1991), rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993).
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 attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).

Therefore, the undersigned further reduces petitioners’ fee request by 10 percent. This 10
percent reduction is in addition to the law clerk hourly rate reductions for 2016 and 2017, and to the
reduction for the full hourly rates billed for travel time by Mr. McLaren.

26
Mr. Webb’s January 5, 2017 billing entry. Id.
27
Mr. Webb’s January 13, 2017 billing entry. Id.
28
Mr. Webb’s January 27, 2017 billing entry. Id.
29
Mr. McLaren’s March 11, 2014 billing entry. Id. at 3.
30
Mr. McLaren’s November 4, 2015 billing entry. Id. at 26.
31
Mr. Webb’s November 4, 2015 billing entry. Id. at 25.

10
 c. Total Reduction of Requested Fees

Reducing for Mr. McLaren’s billed travel time rate by 50%, in addition to reducing the
2016-2017 law clerk rates to those above, results in the following adjustments:

Year Person Billed Travel Requested Adjusted Billed Adjusted
Time Time, If Hourly Rate, If Amount Amount
Applicable Rate Applicable

2014 McLaren 13.80 --- $395.00 --- $5,451.00 $5,451.00
2014 McLaren --- 20.00 $395.00 $197.50 $7,900.00 $3,950.00
2015 McLaren 51.80 --- $410.00 --- $21,238.00 $21,238.00
2015 McLaren --- 25.90 $410.00 $205.00 $10,619.00 $5,309.50
2016 McLaren 24.80 --- $425.00 --- $10,540.00 $10,540.00
2016 McLaren --- 14.80 $425.00 $212.50 $6,290.00 $3,145.00
2017 McLaren 4.30 --- $440.00 --- $1,892.00 $1,892.00
2014 Cochran 9.60 --- $335.00 --- $3,216.00 $3,216.00
2015 Cochran 1.40 --- $345.00 --- $483.00 $483.00
2016 Cochran 0.40 --- $355.00 --- $142.00 $142.00
2017 Cochran 2.10 --- $365.00 --- $766.50 $766.50
2014 Webb 61.80 --- $285.00 --- $17,613.00 $17,613.00
2015 Webb 64.20 --- $295.00 --- $18,939.00 $18,939.00
2016 Webb 23.30 --- $305.00 --- $7,106.50 $7,106.50
2017 Webb 17.40 --- $315.00 --- $5,481.00 $5,481.00
2014 Bloor 21.80 --- $130.00 --- $2,834.00 $2,834.00
2015 Bloor 10.60 --- $135.00 --- $1,431.00 $1,431.00
2016 Bloor 3.60 --- $140.00 --- $504.00 $504.00
2014 Helms 3.90 --- $130.00 --- $507.00 $507.00
2015 Holdford 2.00 --- $130.00 --- $260.00 $260.00
2014 Caudle 1.80 --- $130.00 --- $234.00 $234.00
2015 Caudle 0.50 --- $135.00 --- $67.50 $67.50
2014 Garcia 0.60 --- $130.00 --- $78.00 $78.00
2015 Garcia 0.50 --- $145.00 --- $72.50 $72.50
2016 Garcia 0.10 --- $150.00 $145.00 $15.00 $14.50
2015 Ward 6.20 --- $145.00 --- $899.00 $899.00
2016 Ward 7.60 --- $150.00 $145.00 $1,140.00 $1,102.00
2017 Ward 5.30 --- $155.00 $148.00 $821.50 $784.40

Billed Amount Total: $126,540.50

Adjusted Amount Total: $114,060.40

11
 The rate adjustments shown above reduce the billed amount to $114,060.40, a reduction of
$12,480.10. As also discussed, the undersigned makes a further reduction of 10 percent
($11,406.0432) to address the deficient billing practices mentioned above. Thus, petitioners are
awarded a total of $102,654.36 in attorneys’ fees.

III. Reasonable Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioners request
$37,215.14 in attorneys’ costs. Pet’rs’ App. at 11. For the reasons set forth below, the
undersigned awards petitioners $20,714.74 in attorneys’ costs.

a. Expert costs – Dr. Richard Boles

Petitioners request a total of $30,000.00 in expert fees for Dr. Boles. The request is
supported, in part, by invoices from Dr. Boles detailing the hours expended, hourly rate charged,
and providing some information about the services performed.33 See generally Pet’rs’ App., Ex. 2
at 103-106. Dr. Boles prepared expert reports in this case and testified at the hearing. He
performed work on the case from 2014 through 2016. Dr. Boles billed most of his time at a rate of
$500.00 per hour, with the exception of courtroom time, which he billed at $800.00 per hour. Id.;
see also Pet’rs’ App. at 10.

As an initial matter, Dr. Boles’s requested rates of $500.00 to $800.00 per hour are clearly
excessive. Generally, the highest hourly rate awarded to any expert in the Program is $500 per
hour. The undersigned typically reserves that rate for highly-credentialed, experienced, and
competent Vaccine Act expert witnesses. In this case, the record clearly goes against such high
hourly rates for Dr. Boles. Throughout his Entitlement Decision, then-Special Master Hastings
extensively highlighted reasons34 that he found Dr. Boles to be a questionable expert witness, even
concluding his lengthy Entitlement Decision with an explicit warning to future Vaccine Act
counsel against the use of Dr. Boles in future cases. Specifically, then-Special Master Hastings
concluded as follows:

For the reasons described in detail [in the Entitlement Decision] above, I found Dr. Boles’

32
$114,060.40 x 0.10 = $11,406.04.
33
The undersigned notes, however, that several of Dr. Boles’s billing entries constitute block
billing.
34
Dempsey v. Sec'y of Health & Human Servs., No. 04-394V, 2017 WL 1058480, at *16 (Fed. Cl.
Feb. 23, 2017) (“The causation opinion of Petitioners’ expert, Dr. Boles, was premised upon factual
assumptions that run contrary to the clinical history presented by the medical records.”); Id. at *22
(“Dr. Boles’ willingness to suddenly, with virtually no explanation, [change his opinion at the
evidentiary hearing], made me question whether any assumption of fact would change Dr. Boles’
opinion that the MMR vaccine harmed K.J.D.’s brain. This, in my view, made Dr. Boles appear to
be an inconsistent witness.”).

12
 presentation in this case to be extremely poorly explained, inconsistent, and totally
unpersuasive. Therefore, I also warn Vaccine Act counsel of the possibility that, despite Dr.
Boles’ credentials in the area of mitochondrial disorders, use of Dr. Boles as an expert
witness in the future may not be considered reasonable.

Dempsey, at *35. In light of the above, the undersigned finds that a reasonable hourly rate for Dr.
Boles in this case is $300.

Dr. Boles expended 57 hours on this case, 20 hours of which were for travel. Pet’rs’ App.,
Ex. 2 at 103-104. For the same reasons discussed above with regard to counsel’s hours, travel will
be compensated at a 50% rate. Rodriguez, 2009 WL 2568468, at *21. In examining Dr. Boles’s
remaining billing entries, the undersigned reduces 0.5 hours for time Dr. Boles billed for
administrative tasks of “[a]rranging flights and correspondence with legal office.” Pet’rs’ App., Ex.
2 at 103. Although the remainder of the billing entries will be awarded in the present case, the
undersigned emphasizes that billing time in large blocks, including for expert witness billing
invoices, prevents a detailed review, and “frustrates the court’s ability to assess the reasonableness
of the request.” Valdes v. Sec'y of Health & Human Servs., 89 Fed. Cl. 415, 424 (2009) (upholding
the special master’s reduction of costs for expert where expert billed his time in two large blocks)
(quoting Broekelschen, 2008 WL 5456319, at *4-5.

In light of the discussion above, Dr. Boles’s adjusted hours and billing rate are as follows:

Adjusted Adjusted Hourly Adjusted Amount
Number of Rate
Hours
Non-Travel 36.50 $300.00 $10,950.00
Time
Travel Time 20.00 $150.00 $3,000.00

Adjusted Amount Total: $13,950.00

Accordingly, the undersigned will award a total of $13,950.00 in expert fees for Dr. Boles.
This amount represents 36.50 hours compensated at $300 per hour, and 20.00 hours of travel
compensated at $150.00 per hour. This results in a reduction of $16,050.00 for expert fees.

b. Travel Expenses

Upon a close examination of the travel expenses incurred by counsel, the undersigned
reduces several of the claimed expenses.

Mr. McLaren requested $115.28 (including $100.20 for dinner and $15.08 for another meal
in Pasadena, California) for food expenses on September 4, 2015. Pet’rs’ App., Ex. 2 at 42. The
undersigned finds the requested amount to be unreasonable, especially since counsel did not submit
a receipt of the incurred dinner expenses. See generally Id. Thus, the undersigned reduces the total
food expenses to $71, an amount reflective of 2015 federal per diem rates for meals and incidental

13
 expenses for Pasadena, California.35 This results in a reduction of $44.28.

Mr. McLaren also requests $80.04 (including $62.00 for dinner in Pittsburgh, PA and
$18.04 for another meal en route to Pittsburgh) for food expenses on October 27, 2015. Pet’rs’
App., Ex. 2 at 42. The undersigned finds the requested amount to be unreasonable, especially since
counsel did not submit a receipt of the incurred meal expenses. See generally Id. Thus, the
undersigned reduces the total food expenses to $71, an amount reflective of 2015 federal per diem
rates for meals and incidental expenses for Pittsburgh, Pennsylvania.36 This results in a reduction
of $9.04.

Mr. McLaren submits an invoice from his hotel accommodations in Washington, D.C.
during his stay on January 13 and 14, 2016 for the evidentiary hearing in the case. Pet’rs’ App.,
Ex. 2 at 43, 88. He requests a total of $805.76 for his hotel accommodations, the bulk of which the
undersigned finds reasonable. Id. However, this hotel accommodation invoice also includes
several unreasonable meal charges for a room-service dinner on January 13, 2016 (totaling $95.36),
a room-service breakfast on January 14, 2016 (totaling $32.48), and mini-bar expenses from
January 14, 2016 for potato chips and candy (totaling $22.00). Id. at 88. As an initial matter, the
undersigned notes that these meal expenses, itemized as part of counsel’s hotel receipt for January
13 and 14, 2016, are in addition to other meal expenses claimed by counsel for those two dates.
For instance, Mr. McLaren requests an additional $36.81 (including $23.91 for lunch and $12.90
for a snack) for food expenses on January 13, 2016. Id. at 42-43. Similarly, he requests an
additional $142.26 (including $22.80 for a snack and $119.46 for dinner) for food expenses on
January 14, 2016. Id. at 43. Thus, in total, Mr. McLaren requests $132.17 for meals expenses on
January 13, 2016, and requests $196.74 for meal expenses on January 14, 2016. The undersigned
finds the total requested amount to be unreasonable and reduces it to $69.00 per day, an amount
reflective of 2016 federal per diem rates for meals and incidental expenses for Washington, D.C.37
This results in a reduction of the claimed meal expenses of $190.91.

Mr. McLaren additionally requests $31.09 in cab fare and tips, for transportation to and from
Best Buy to fix his computer on January 13, 2016. Pet’rs’ App., Ex. 2 at 42-43, 97. In the
undersigned’s view, this expense is better classified as an expense generally incurred as part of
equipment maintenance overhead expenses operating the McLaren Firm. Thus, the undersigned
rejects this entire expense amount.

35
See GSA FY 2015 Per Diem Rates for Pasadena, California, at https://www.gsa.gov/travel/plan-
book/per-diem-rates/per-diem-rates-lookup.
36
See GSA FY 2015 Per Diem Rates for Pittsburgh, PA, at https://www.gsa.gov/travel/plan-
book/per-diem-rates/per-diem-rates-lookup.
37
See GSA FY 2016 Per Diem Rates for Washington, D.C., at https://www.gsa.gov/travel/plan-
book/per-diem-rates/per-diem-rates-lookup.

14
 c. Other Expenses

The undersigned has reviewed all other expenses incurred by the McLaren Firm in the case,
such as expenses for photocopying, record duplication, and postage, and finds a majority of such
expenses to be reasonable. However, the undersigned reduces several requested expenses for lack
of sufficient documentation. 38 These requested expenses include costs for “long distance
telephone,” “computer assisted research,” and “PACER service fees.” Pet’rs’ App., Ex. 2 at 41. In
the undersigned’s view, these claimed costs by the McLaren Firm are better categorized as
overheard expenses inherent in operating a law firm, and thus rejects those expenses in its’
entirety. This results in a reduction amount of $172.28.

Similarly, the undersigned rejects the mileage expense of $2.80 claimed by Ms. Garcia for
unexplained case-related travel. Id. This results in a reduction of $2.80.

d. Reduction of Attorneys’ Costs Summary

Based upon the above analysis, calculating the reductions for attorneys’ costs results in the
following adjustments:

Attorneys’ costs requested: $37,215.14
Reductions for expert costs: ($16,050.00)
Reductions for travel costs: ($275.32)39
Reductions for other costs: ($175.08)40
_______________________________________
Total Attorneys’ costs awarded: $20,714.74

These adjustments results in a total reduction of $16,500.40.

IV. Petitioners’ Costs

Petitioners request a total of $120.00 in out-of-pocket costs. Pet’rs’ App. at 3-4; see also
Pet’rs’ App., Ex. 3 at 1-2. These incurred costs are from expenses for a home health nurse to care
for K.J.D. while petitioners testified at the fact hearing in this case. Id. The undersigned finds
these costs reasonable and will reimburse them in full.

38
See Guidelines for Practice, supra at 69 (Section X, Chapter 3, Part (B)(2).
39
Represents the total reductions in the “travel costs” reduced above: $44.28 + $9.04 + $190.91 +
$31.09 = $275.32.
40
Represents the total reductions in the “other costs” reduced above: $172.28 + $2.80 = $175.08.
15
 V. Conclusion

The undersigned awards petitioners the following for attorneys’ fees and costs:

Attorneys’ Fees
Requested attorneys’ fees: $126,540.50
Reductions (attorney travel and paralegal rates): ($12,480.10)
Reductions (10% for billing issues): ($11,406.04)
Adjusted Total Fees Awarded: $102,654.36

Attorneys’ Costs
Requested attorneys’ costs: $37,215.14
Total Reductions: (16,500.40)
Adjusted Total Costs Awarded: $20,714.74

Total Attorneys’ Fees and Costs Awarded: $123,369.10

The undersigned awards petitioners the following for their out-of-pocket costs:

Petitioners’ Costs
Requested petitioners’ costs: $120.00
Reductions: ($0.00)

Total Petitioners’ Costs Awarded: $120.00

Accordingly, the undersigned awards:

(1) A lump sum in the amount of $120.00, representing reimbursement for petitioners’
costs, in the form of a check payable to petitioners, Mr. Brian Dempsey and Mrs.
Claire Dempsey; and

(2) A lump sum in the amount of $123,369.10, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to petitioners, Mr.
Brian Dempsey and Mrs. Claire Dempsey, and their counsel, Michael G. McLaren.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.41
IT IS SO ORDERED.

s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master

41
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
16