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In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-1138V

Filed: March 14, 2017

* * * * * * * * * * * * *

WALESKA AUGUSTIN as personal *

representative of the Estate of MARLIE *

EDDIA DULAURIER, *

* UNPUBLISHED

Petitioner, *

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs 

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * *

Timothy M. Mahler, Rourke & Blumenthal, LLP, Columbus, OH, for petitioner. 

Glenn A. MacLeod, United States Department of Justice, Washington, DC, for respondent. 

DECISION ON ATTORNEYS' FEES AND COSTS1

On November 24, 2014, Marlie Eddia Dulaurier (“Dr. Dulaurier”) filed a petition 

pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 

(2012). Following Dr. Dulaurier’s death on December 26, 2015, Waleska Augustin 

(“petitioner”) filed an amended petition as personal representative of Dr. Dulaurier’s estate. See

Amended Petition, filed Feb. 15. 2016. Petitioner alleged that as the result of the administration 

of an influenza (“flu”) vaccine on December 11, 2012, Dr. Dulaurier suffered anaphylaxis with 

vocal cord paralysis, Guillain Barré Syndrome (“GBS”) and/or Transverse Myelitis (“TM”), 

gastroparesis, and death. Id. at 1-2. On January 30, 2017, the parties filed a stipulation stating 

that a decision should be entered awarding compensation. A decision awarding petitioner

compensation pursuant to the terms of the stipulation was issued that same day.

 

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the 

undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in 

accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and 

Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14 

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).
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 On February 24, 2017, petitioner filed a motion for attorneys’ fees and costs, requesting

$75,239.50 in attorneys’ fees and $15,715.14 in attorneys’ costs, for a total of $90,954.64 in 

attorneys’ fees and costs. Petitioner’s (“Pet.”) Application (“App.”) at 4. In accordance with 

General Order #9, petitioner states that she did not incur any costs related to the prosecution of 

this petition. See Statement from Petitioner, filed Feb. 28, 2017. Petitioner filed additional 

documentation in support of her requested costs on March 10, 2017. See Pet. Exs. A-I. 

Respondent filed a response to petitioners’ application on March 13, 2017, stating that 

respondent “recommends that the special master exercise his discretion and determine a 

reasonable award for attorneys’ fees and costs.” Respondent’s Response at 3.

I. Reasonable Attorneys’ Fees and Costs

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and 

costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). In 

the present case, petitioner was awarded compensation pursuant to the terms of a joint 

stipulation. Therefore, petitioner is entitled to an award of reasonable attorneys’ fees and costs.

The Federal Circuit has approved use of the lodestar approach to determine reasonable 

attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d 1343, 1349 (Fed. Cir. 2008). 

Using the lodestar approach, a court first determines “an initial estimate of a reasonable 

attorneys’ fee by ‘multiplying the number of hours reasonably expended on the litigation times a 

reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

Then, the court may make an upward or downward departure from the initial calculation of the 

fee award based on other specific findings. Id. at 1348. The determination of reasonable 

attorneys’ fees and costs is within the special master's discretion. Saxton v. Sec’y of Health & 

Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters may rely on their prior 

experience in reviewing fee applications. See id., 3 F.3d at 1521 (citing Farrar v. Sec’y of Health 

& Human Servs., No. 90-1167V, 1992 WL 336502 at *2-3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992)).

Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate defined as 

the rate prevailing in the community for similar services by lawyers of reasonably comparable 

skill, experience, and reputation.” Avera, 515 F.3d at 1347-48 (internal quotations omitted). In 

determining an award of attorneys’ fees, a court should generally use the forum rate, i.e., the 

District of Columbia rate unless the bulk of an attorney’s work is performed outside of the 

forum, and where there is a “very significant” difference in compensation rates between the 

place where the work was performed and the forum. Id. at 1348-49 (citing Davis County Solid 

Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169 

F.3d 755, 758 (D.C. Cir. 1999)).

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., 85 

Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 434 (1983)). The requirement that attorneys’ fees be reasonable also 

applies to costs. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 
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5634323, *5 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (citing Perreira v. Sec’y of Health & Human 

Servs., 27 Fed. Cl. 29, 34 (1992).

i. Hourly Rates

Petitioner requests the following hourly rates: 

Timothy Mahler: 

2013: $275

2014: $285

2015: $300

2016-2017: $310 

Michelle Lanham (associate):

2014-2015: $150

Kimberly Cecil (paralegal):

2013-2017: $125

See generally Pet. App., Ex. 3. 

Reasonable 2014-2015 forum rate ranges were recently set by the undersigned in 

McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. 

Spec. Mstr. Sept. 1, 2015). In support of the requested rates, petitioner’s counsel cites 

McCulloch forum rates. Counsel did not address the question of whether he is entitled to forum 

rates and did not submit evidence regarding prevailing rates in Columbus, Ohio, where his office 

is located. However, in Forde v. Sec’y of Health & Human Servs., No. 15-185V, 2016 WL 

7670920 (Fed. Cl. Spec. Mstr. Dec. 16, 2016), the undersigned awarded forum rates to Simina 

Vourlis, a Columbus, Ohio, attorney, after determining that local Columbus rates were not very 

significantly different than local rates. 2016 WL 7670920, at *3 (“local rates in the Southern 

District of Ohio are well within the forum rate categories that were found reasonable in 

McCulloch”)(citing Jones v. Sec’y of Health & Human Servs., No. 13-279V, 2016 WL 7233938 

(Fed. Cl. Spec. Mstr. Nov. 18, 2016)). Accordingly, Mr. Mahler will be awarded forum rates. 

Pursuant to McCulloch, the following ranges of forum rates are appropriate depending on 

an attorney's years of experience: $350 to $425 per hour for attorneys with more than 20 years of 

experience, $300 to $375 for attorneys with 11 to 19 years of experience, $275 to $350 per hour 

for attorneys with 8 to 10 years of experience, $225 to $300 per hour for attorneys with 4 to 7 

years of experience, and $150 to $225 per hour for attorneys with less than 4 years of experience. 

McCulloch, 2015 WL 5634323, at *19. Paralegals were awarded $135 per hour. Id. at *21. Mr. 

Mahler has been licensed to practice law since 2005. Pet. App. at 7; Pet. App., Ex. 1. 

Accordingly, he currently has 12 years of experience. Prior to 2015, however, he had less than 

10 years of experience. The rates billed by Mr. Mahler are on the low end of the appropriate 

McCulloch ranges for an attorney of his experience, and the undersigned finds them reasonable. 

Ms. Lanham was licensed to practice law in 2014 and has billed at the lowest McCulloch

attorney rate, which the undersigned finds reasonable. Finally, the $125 per hour requested for 
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Ms. Cecil, who has been a certified paralegal since 1990, is also reasonable. See Pet. App. at 9; 

Pet. App., Ex. 2. The undersigned will award attorneys’ fees at the requested rates.

ii. Hours Expended

Petitioner requests compensation for 311.30 hours of time. Pet. App. at 5; Pet. App., Ex. 

3. As petitioner notes in her fee application, this case involved complex and unusual medical 

conditions and voluminous medical records. Pet. App. at 5. Petitioner has submitted a billing 

record describing the services performed, dates of service, and naming of the person providing 

the service and on review of petitioner’s billing record, the undersigned finds the number of 

hours expended reasonable. 

iii. Costs

Petitioner request $15,715.14 in attorneys’ costs. Pet. App., Ex. 4 at 4. The requested 

costs consist primarily of the filing fee, the cost of medical records, expert costs, postage, and 

copying. See generally, Pet. App., Ex. 4; Pet. Exs. A-I (receipts and invoices for requested 

costs). The undersigned finds the requested costs reasonable, with the exception of the 

$2,062.50 in expert fees requested for Dr. Kenneth Gorson. Dr. Gorson’s invoice shows that he 

billed a total of 2.75 hours for medical record review, literature review, and a phone consultation, 

at a rate of $750 per hour. Pet. Ex. E. To the undersigned’s knowledge, no expert in the 

Program has been awarded more than $500 per hour to date. As no expert report from Dr. 

Gorson was filed in this case, the undersigned is unable to make any determination about the 

work performed by Dr. Gorson other than that he submitted an invoice for 2.75 hours. 

Accordingly, and recognizing the complexity of the case, Dr. Gorson’s work will be 

compensated at a rate of $500 per hour. Thus, $687.50 will be deducted from petitioner’s 

requested costs.

II. Conclusion

Upon review of the documentation of the requested attorneys’ fees and costs, and based 

on his experience with the Vaccine Act and its attorneys, the undersigned finds a total attorneys’ 

fees and costs award of $90,267.14 reasonable.

Pursuant to 42 U.S.C. § 300aa-15(e), the undersigned awards attorneys’ fees and costs as 

follows:

(1) A lump sum of $90,267.14 in the form of a check payable jointly to petitioner

and petitioner’s attorney, Timothy M. Mahler, of Rourke & Blumenthal, 

LLP, for attorneys’ fees and costs.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of 

the Court is directed to enter judgment forthwith.2

 

2 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice 

renouncing the right to seek review.
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IT IS SO ORDERED. 

 

s/ Thomas L. Gowen

 Thomas L. Gowen

Special Master