In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                              No. 13-591V
                                          (not to be published)

*************************
GREG PALATTAO and ANGELA          *
PALATTAO, as Parents and Natural  *
Guardians of minor, R.P.,         *
                                  *
                     Petitioners, *                                       Filed: September Sept. 20, 2019
                                  *
              v.                  *
                                  *                                       Attorney’s Fees and Costs.
SECRETARY OF HEALTH               *
AND HUMAN SERVICES,               *
                                  *
                     Respondent.  *
                                  *
*************************

Kate Gerayne Westad, Larkin Hoffman, et al., Ltd., Minneapolis, MN, for Petitioners.

Mollie D. Gorney, U.S. Dep’t of Justice, Washington, DC, for Respondent.


    DECISION GRANTING IN PART FINAL AWARD OF ATTORNEY’S FEES AND
                                COSTS1

        On August 20, 2013, Greg and Angela Palattao filed a petition on behalf of their minor
child, R.P., seeking compensation under the National Vaccine Injury Compensation Program (the
“Vaccine Program”).2 In it, Petitioners alleged that R.P. suffered from transverse myelitis as a

1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public.

Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act.
result of receiving his third round of childhood vaccinations (including diphtheria-tetanus-acellular
pertussis, haemophilus influenza B, inactivate polio virus, pneumococcal conjugate, and his first
dose of the influenza vaccine) on January 7, 2013. Petition (“Pet.”) (ECF No. 1). An entitlement
hearing was held, followed by a half-day rebuttal hearing, and the parties submitted post-hearing
briefs. On February 4, 2019, I issued a Decision denying entitlement and dismissing the Petition.
Decision (ECF No. 92). That Decision was not appealed.

         Before me now is Petitioners’ sole, final application for attorney’s fees and costs. (ECF
No. 96) (“Fees App.”). Petitioners request a total of $256,387.59 in compensation for the work of
their counsel, Ms. Kate G. Westad, other attorneys no longer appearing in this matter, paralegals,
and costs. Fees App. at 2. Pursuant to General Order No. 9, Petitioners also indicate that they have
not incurred any personal costs in furtherance of this litigation. 

counsel
has changed law firms twice during this proceeding. 

this, Petitioners ask this court
to split the awarded costs and fees between the firms as follows:3

                                Lommen Abdo,      Larkin Hoffman     SiebenCarey, P.A.
                                P.A.              Law Firm
    Costs                              $11,512.50         $56,112.59                              $0

    Fees                                    $41,563.00                  $144,642.00       $2,557.50
    Total                                   $53,075.50                  $200,754.59       $2,557.50

See 

       Respondent reacted to the motion on September 9, 2019, deferring to my discretion as to
whether Petitioner has met the legal standards for a final award of fees and costs. See (ECF No.
98) (“Fees App. Resp.”) at 3. Respondent is otherwise satisfied that the statutory requirements for
an award of attorney’s fees and costs are met and asks that I determine a reasonable award. 

       For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding
attorney’s fees and costs in the total amount of $247,949.59.



3
    The three law firms were involved in this case during the following periods:
      (1) Lommen Abdo, P.A.:                    05/07/2013–03/30/2016
      (2) Larkin Hoffman Law Firm:              05/20/2016–03/28/2019
      (3) SiebenCarey, P.A.:                    05/14/2019–08/30/2019

The following attorneys were involved in this case during the following periods:
    (1) Kate Westad                         05/13/2014–present
    (2) Sheila Bjorklund                    05/07/2013–04/10/2014

                                                            2
                                                    ANALYSIS

      I.      A Final Award of Fees and Costs is Appropriate

        I have in prior decisions set forth at length the criteria to be applied when determining if
fees should be awarded for an unsuccessful claim. See, e.g., Allicock v. Sec’y of Health & Human
Servs., No. 15-485V, 

, at *4–5 (Fed. Cl. Spec. Mstr. May 26, 2016), aff’d on
other grounds, 

(2016); Gonzalez v. Sec’y of Health & Human Servs., No. 14-
1072V, 

, at *5–6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short, a petitioner
can receive a fees award even if his claim fails, but to do so he must demonstrate the claim’s
reasonable basis4 through some objective evidentiary showing and in light of the “totality of the
circumstances.” The nature and extent of an attorney’s investigation into the claim’s
underpinnings, both before and after filing, is a relevant consideration. Cortez v. Sec’y of Health
& Human Servs., No. 09-176V, 

, at *6 (Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di
Roma v. Sec’y of Health & Human Servs., No. 90–3277V, 

, at *2 (Fed. Cl. Spec.
Mstr. Nov. 18, 1993) (citing Lamb v. Sec'y of Health & Human Servs., 

, 258–59
(1991)).

        Although Petitioners were not successful in pursuing their claim, I find that the matter had
sufficient reasonable basis to justify a final award of fees. I do not doubt that Mr. and Mrs. Palattao
brought their claim in a good-faith belief that vaccinations played a causal role in R.P.’s injuries.
In addition, I find that the claim possessed more than sufficient objective support to meet the
second half of the reasonable basis test, and Respondent has not otherwise offered any argument
that the claim lacked reasonable basis. Accordingly, an award of attorney’s fees and costs is proper.

II.        Calculating Amount of Final Award

        I must now evaluate what amount of award is proper. In any Vaccine Program case in
which fees are sought, the requested sum must be “reasonable.” Section 15(e)(1). Special masters
may in their discretion reduce attorney hours sua sponte, apart from objections raised by
Respondent and without providing a petitioner notice and opportunity to respond. See Sabella v.
Sec’y of Health & Human Servs., 

, 208–09 (2009); Perreira v. Sec’y of Health &
Human Servs., 

, 34 (Fed. Cl. 1992) (explaining that special masters have “wide
discretion in determining the reasonableness” of attorney’s fees and costs).




4
 Although good faith is one of the two criteria that an unsuccessful petitioner requesting a fees award must satisfy, it
is an easily-met one—and Respondent does not appear to question it in this case. Grice v. Sec’y of Health & Human
Servs., 

, 121 (1996) (in the absence of evidence of bad faith, special master was justified in presuming
the existence of good faith).


                                                           3
         A. Reasonable Attorney’s Fees

        Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part
process. The first part involves application of the lodestar method—“multiplying the number of
hours reasonably expended5 on the litigation times a reasonable hourly rate.” Avera v. Sec’y of
Health & Human Servs., 

, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 

, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to
take relevant factors into consideration. 

This standard for calculating a fee award is
considered applicable in most cases where a fee award is authorized by federal statute. Hensley v.
Eckerhart, 

, 429–37 (1983).

                  1. Reasonable Hourly Rates

        Petitioners asks that I compensate Ms. Kate Westad and Ms. Sheila Bjorklund at rates
varying from $275 per hour for work to $350 per hour for work. See Fees App. Petitioners also
ask that I compensate professionals from the three law firms at varying rates. See 

hourly rates are broken down as follows:

                    2013           2014           2015          2016           2017           2018          2019
    Kate            $275           $275           $275          $350           $350           $350          $350
    Westad                         $350           $350
    Sheila          $315           $315            --             --             --             --            --
    Bjorklund
    Paralegals      $125           $125           $125          $125           $125           $125          $125
    Technical        --             --             --           $165           $165           $165          $165
    Paralegals

5
  An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera v. Sec’y of Health & Human Servs., 

, 1349 (Fed. Cir. 2008); Rodriguez v. Sec’y of Health
& Human Servs., No. 06-559V, 

, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied,

(2010), aff’d, 

(Fed. Cir. 2011). That rate is in turn determined by the “forum rule,”
which bases the award rate on rates paid to similarly qualified attorneys in the forum where the relevant court sits
(Washington, D.C., for Vaccine Program cases). 

. After the hourly rate is determined, the
reasonableness of the total hours expended is considered. 

–06. This reasonableness inquiry
involves consideration of the work performed on the matter, the skill and experience of the attorneys involved, and
whether any waste or duplication of effort is evident. Hensley v. Eckerhart, 

, 434–37 (1983).

In some cases, determining the proper hourly rate for an attorney requires consideration of whether there is a
significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum in
which the attorney practices, in order to adjust the rate used for the lodestar calculation. 

(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 

, 758 (D.C. Cir.
1999)). This “Davis” exception is inapplicable here, however, because I have previously found the attorneys in the
same area should receive forum rates. See Miron v. Sec'y of Health & Human Servs., No. 16-762V, 

(Fed. Cl. Spec. Mstr. Oct. 30, 2017) (awarding similar attorney fees and involving one of the same law firms in this
case).


                                                          4
        Petitioners’ counsel has not previously appeared before me. But other special masters have
found their rates reasonable. See, e.g., Rus v. Sec’y of Health & Human Servs., No. 12-631V, 

(Fed. Cl. Spec. Mstr. Dec. 22, 2017) (special master Gowen) (finding rates of Ms.
Westad, Ms. Bjorklund, and other paralegals reasonable); Marsyla v. Sec'y of Health & Human
Servs., No. 15–1172V, 

(Fed. Cl. Spec. Mstr. Oct. 25, 2016) (special master
Dorsey) (finding rates of Ms. Westad and other paralegals reasonable); Larson v. Sec'y of Health
& Human Servs., No. 15–1077V, 

(Fed. Cl. Spec. Mstr. Jul. 15, 2016) (special
master Dorsey) (finding rates of Ms. Westad and other paralegals reasonable).6 I shall do the
same—with two exceptions.7

       The first exception relates to two hours of work performed by Ms. Westad on April 23,
2014. Ms. Westad billed at a rate of $350 per hour for two hours of work performed on April 23.
See (ECF No. 96-1) (“Fees App. Ex. A”) at 7. But she billed at a rate of $275 per hour for work
performed both before and after April 23. See 

No explanation is given for this
discrepancy. Accordingly, I will reduce Ms. Westad’s rate for work performed on April 23, 2014
from $350 per hour to $275. This results in a reduction of $150.00 attributable to bills from
Lommen Abdo P.A.

        The second exception relates to the rate at which travel time was billed. Petitioners' counsel
specifically billed 20.50 hours for traveling at the full hourly rate. The Vaccine Program, however,
routinely compensates at half a normal rate for time spent traveling. See Rus, 

,
at *5. This is not the first time that Petitioners’ counsel has billed at a full hourly rate while
traveling. See 

special masters have reduced hourly rates while traveling, I will
do the same. Accordingly, I reduce counsel's rate by half for the time she spent traveling, resulting
in a reduction of $3,587.50 attributable to bills from the Larkin Hoffman Law Firm.

                  2. Reasonable Hours Expended

        Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Shorkey v.
Sec'y of Health & Human Servs., No. 15–768V, 

(Fed. Cl. Spec. Mstr. April 21,


6
 In addition, the rates requested for attorneys of comparable skills and experience levels are consistent with the Office
of Special Masters' Rate Schedule. See OSM Attorney’s Forum Hourly Rate Fee Schedules found at
https://www.uscfc.uscourts.gov/node/2914.
7
  Although I have granted Petitioner’s counsel’s rates, I remind her, as my colleagues have previously, that the Vaccine
Guidelines direct attorneys to include with fees motions an affidavit that includes the appropriate information about
the relevant attorney’s expertise. See Guidelines for Practice Under the National Vaccine Injury Compensation
Program      ("Guidelines     for    Practice")     at     70–71    (revised     August    22,    2019)      found    at
https://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES%20FOR%20PRACTICE%20-%208.22.2019.pdf
(Section X, Chapter 3, Part B(1)(a)).


                                                           5
2017); Saxton v. Sec'y of Health & Human Servs., 

, 1521 (Fed. Cir. 1993). Counsel
must submit fee requests that include contemporaneous and specific billing records indicating the
service performed, the number of hours expended on the service, and the name of the person
performing the service. See Savin v. Sec'y of Health & Human Servs., 

, 316–18
(Fed. Cl. 2008).

         The overall hours spent on this matter (659.70) appear to be reasonable. Despite the length
of time this case was pending (2013–2019) this is the first application for attorney’s fees.
Additionally, Petitioners proffered two expert witnesses, a total of four expert reports, and two and
a half days for the entitlement hearing and follow-up. Thus, although the number of hours billed
is large, I find it to be a reasonable amount overall. I have reviewed the submitted documentation
and do not find any entries to be objectionable, and Respondent also has not objected to any
particular entry. Accordingly, based on the rates previously determined, I will award Petitioner a
total of $185,025.00 attorney and paralegal fees.8

        B. Reasonable Costs

       Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. 

; Presault
v. United States, 

, 670 (Fed. Cl. 2002). Reasonable costs include the costs of
obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of
Health & Human Servs., No. 10-243V, 

, at *16 (Fed. Cl. Spec. Mstr. Aug. 27,
2013). When petitioners fail to carry their burden, such as by not providing appropriate
documentation to substantiate a requested cost, special masters have refrained from awarding
compensation. See, e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 

, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

        Petitioners hired two experts in this matter, Dr. Marcel Kinsbourne and Dr. Ralph Shapiro.
Petitioners request that Dr. Kinsbourne be paid $500.00 per hour for his time spent conducting
research, preparing expert reports, and testifying at the entitlement hearing. Likewise, Petitioners
request that Dr. Shapiro be paid at a rate of $550–650 per hour for conducting similar tasks.

                1. Dr. Kinsbourne’s Fees

       Dr. Kinsboure has testified in this program many times. (ECF No. 84) (“Hr’g Tr.”) at
125:11–13. Although Dr. Kinsbourne requests $500 per hour for work performed on this matter, I
have in other instances awarded him a lesser sum of $400 per hour. See, e.g., L.M. v. Sec’y of


8
  $188,762.50 requested attorney’s fees and paralegal costs, minus the $3737.50 discussed above, resulting in
$185,025.00.


                                                     6
Health & Human Servs., No. 14-714, 

, at *4 (Fed. Cl. Spec. Mstr. Sept. 29,
2017) (following rate set by other special masters) (citing Faoro v. Sec’y of Health & Human
Servs., No. 10-704V, 

, at *3 (Fed. Cl. Spec. Mstr. Oct. 15, 2014)). Dr.
Kinsbourne has, however, been awarded $500 hourly rates in other cases. See, e.g., Simon v. Sec'y
of Health & Human Servs., No. 05–941V, 

, at *6 (Fed. Cl. Spec. Mstr. Feb. 21,
2008); Adams v. Sec'y of Health & Human Servs., No. 01–267V, 

, at *2 (Fed.
Cl. Spec. Mstr. Apr. 30, 2008). Dr. Kinsbourne has usually been awarded higher rates when the
case concerns one of his specific areas of expertise—namely, encephalopathy and seizures. See
Faoro, 

, at *4 (explaining that the record must reflect “’specialized knowledge
and experience’ [that] justifies” the requested hourly rate).

        Here, the record reflects that Dr. Kinsbourne’s higher requested hourly rate is justified
because of his specialized knowledge and experience in the Program. Dr. Kinsbourne has
significant experience testifying in cases of this type. Hr’g Tr. at 63:1–65:21. Further, the number
of hours that he spent on this case (62.95 since December 2013), compared with the amount of
expert reports he filed (three), and the length of this litigation, shows that Dr. Kinsbourne was
mostly efficient with his time. Compare Faoro, 

, at *3–4 (billing over 60 hours
over the course of four years was not reasonable), with Simon, 

, at *6 (billing
31.75 hours over the course of three years was reasonable). Accordingly, I find Dr. Kinsbourne’s
rate of $500.00—while not reasonable in all cases—reasonable in this one.

               2. Dr. Shapiro’s Fees

       I have not previously considered the proper hourly rate for Dr. Shapiro. When considering
if an expert’s hourly rate is reasonable, his professional qualifications and experience in the
Program are to be considered. See Anderson v. Sec'y of Health & Human Servs., No. 02-1314V,

, at *3 (Fed. Cl. Spec. Mstr. May 24, 2017).

        There is no doubt that Dr. Shapiro has significant professional and educational
qualifications. See Hr’g Tr. at 119:11–125:15. Further, Dr. Shapiro’s testimony and report greatly
aided my resolution of this matter. Yet, despite his education and expertise, the rates Dr. Shapiro
requested are excessive.

        Lowering Dr. Shapiro’s hourly rate is supported by my recent decisions. Typically, I have
reserved hourly rates of $500 or more for only the most qualified experts with significant
experience testifying in the Program. See, e.g., Anderson, 

, at *3 (lowering
hourly rate from $500 to $400 when expert did not have significant experience in program);
Lozano, 

, at *3 (stating that $500 per hour is “at the high end of the rate range
paid to experts.”). But, Dr. Shapiro does not have significant experience testifying in the Program.
Hr’g Tr. at 125:11–13. Recently, in a similar situation, I found a $600 hourly rate too high for “an
expert who does not significant experience with the program.” Schultz v. Sec'y of Health & Human

                                                 7
Servs., No. 02-1314V, 

, at *3–4 (Fed. Cl. Spec. Mstr. May 24, 2017) (noting
that “no other expert in the Program has been awarded such a rate”).9

        Additionally, Dr. Shapiro’s hourly rate for his time has varied sharply. In 2017, he sent Ms.
Westad a bill requesting $425 per hour for time spent on the case outside of hearings. Fees App.
Ex. D at 4. In 2019, by contrast, he sent Ms. Westad a bill requesting $550 per hour for time he
spent on the case outside of the hearing, and $650 per hour for time he spent on the case during
the hearing. 

The later bill is a cumulative bill that encompasses the hour entries in the
earlier bill. Compare 

with 

No explanation is given for this sharp increase.

         Consequently, I will reduce Dr. Shapiro’s hourly rate from $550 to $650 per hour to $450
per hour for all work he performed in this action. This is higher than his earlier requested rate, but
fairly reflects how this court has treated similarly situated experts. This results in a total deduction
of $4,700.00.

                  3. Other Costs

       Concerning non-expert costs, Petitioner has provided ample documentation of these costs
and a quick review does not reveal any of them to be unreasonable. Therefore, the remaining costs,
incurred as a result of medical record collection and travel, will be awarded in full.

                                                CONCLUSION

       The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C.
§ 300aa-15(e). I award a total of $247,949.09 (representing $185,025.00 in attorney’s fees and
$62,925.59 in costs). Recognizing that fees and costs were split between three different law firms,




9
 The Office of Special Masters is in the process of evaluating whether prevailing rate "ceilings" for the highest-paid
experts should not be raised, to take into account what certain experts—even those who are inexperienced in Program
matters—might command in the market, to ensure that what is received for Vaccine Act work is commensurate. See
Nwala v. Sec'y of Health & Human Servs., No. 16-923V, 

, at *3–4 (Fed. Cl. Spec. Mstr. April 12,
2019) (discussing the need to pay greater amounts than traditional in the Vaccine Program). Although I independently
am determining for present purposes that the work Dr. Shapiro performed on this matter (in 2018 and then before)
should not exceed the highest sums paid to that time to experts, I do not foreclose the possibility that Dr. Shapiro
would not be entitled to a higher rate for any future work he performs for Vaccine Act claimants.




                                                          8
at which Petitioners’ counsel worked during the pendency of this case, and pursuant to Petitioners’
request, I divide the fees and costs as follows:10

       1) A lump sum in the amount of $52,925.00, representing $41,413.00 as reimbursement for
          attorney’s fees, and $11,512.00 as reimbursement for costs, in the form of a check payable
          to Petitioners and Petitioners’ counsel’s former law firm, Lommen Abdo, P.A.;

       2) A lump sum in the amount of $192,467.09, representing $141,054.50 as reimbursement for
          attorney’s fees, and $51,412.59 as reimbursement for costs, in the form of a check payable
          to Petitioners and Petitioners’ counsel’s former law firm, Larkin Hoffman Law Firm; and

       3) A lump sum in the amount of $2,557.50, representing $2,557.50 as reimbursement for
          attorney’s fees, and $00.00 as reimbursement for costs, in the form of a check payable to
          Petitioners and Petitioners’ counsel’s law firm, SiebenCarey, P.A.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the
Clerk shall enter judgment in accordance with this decision.11


IT IS SO ORDERED.


                                                                         /s/ Brian H. Corcoran
                                                                         Brian H. Corcoran
                                                                         Special Master


10
     Final fees and deductions calculated as follows:

                                                                                                            Total
                                                                                                            Amount
                                                                                                            Awarded
                     Fees           Deductions     Fees         Costs          Deductions     Costs         (Fees     +
                     Requested      From Fees      Awarded      Requested      From Costs     Awarded       Costs)
 Lommen               $              $              $            $              $              $             $
 Abdo, P.A.          41,563.00      150.00         41,413.00    11,512.50      -              11,512.00     52,925.00
 Larkin
 Hoffman              $              $              $            $              $              $             $
 Law Firm            144,642.00     3,587.50       141,054.50   56,112.59      4,700.00       51,412.59     192,467.09
 SiebenCarey,         $              $              $            $              $              $             $
 P.A.                2,557.50       -              2,557.50     -              -              -             2,557.50
                      $              $              $            $              $              $             $
 Total               188,762.50     3,737.50       185,025.00   67,625.09      4,700.00       62,924.59     247,949.59

11
   Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.

                                                           9