In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

JASON CHEVALIER, * No. 15-001V 

 * Special Master Christian J. Moran 

 Petitioner, * 

 * 

v. * Filed: January 11, 2017 

 * 

SECRETARY OF HEALTH * Attorneys’ fees and costs

AND HUMAN SERVICES, * 

 * 

 Respondent. * 

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

Ronald C. Homer and Meredith Daniels, Conway, Homer, P.C., Boston, MA, for 

Petitioner;

Christine M. Becer, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

UNPUBLISHED DECISION ON FEES AND COSTS1

After receiving compensation through the Vaccine Program, Jason Chevalier

filed a motion for attorneys’ fees and costs. Mr. Chevalier is awarded 

$41,007.97. 

* * * 

 Mr. Chevalier alleged that the tetanus-diphtheria-pertussis (“Tdap”) vaccine

caused him to suffer Guillain-Barré syndrome. Mr. Chevalier was awarded 

compensation based on the parties’ stipulation. Decision, filed March 25, 2016, 

2016 WL 1567116. 

 1 The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of 

Electronic Government Services), requires that the Court post this decision on its website. 

Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of 

medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any 

redactions ordered by the special master will appear in the document posted on the website. 
2 

On July 11, 2016, Mr. Chevalier filed the pending motion for attorneys’ fees 

and costs. Mr. Chevalier requested $27,866.10 in attorneys’ fees and $16,268.67

in attorneys’ costs. On July 28, 2016, the Secretary filed a response. The 

Secretary did not identify any specific problems but asserted that, based upon 

similar cases and her experience, a reasonable range for attorneys’ fees and costs 

would fall between $15,000.00 and $25,000.00. Resp’t’s Resp., filed July 28, 

2016, at 3. The Secretary cited two cases in support of her proposed range. The 

Secretary further suggested that the undersigned exercise his discretion in

determining a reasonable award of attorneys’ fees and costs within the range she 

provided. Id. 

 

 Mr. Chevalier filed a reply, similar to ones filed in other cases before the 

undersigned, disagreeing with the Secretary’s proposed range. He argues that the 

Secretary provides no supporting information, such as number of medical records, 

whether the cases were contested or conceded, the extent and nature of the 

damages, or the hourly rate billed by petitioners’ counsel, to support the assertion 

that the cases cited are indeed similar to the case at hand. Pet’r’s Reply, filed Aug. 

8, 2016, at 3. Furthermore, Mr. Chevalier states that the Secretary’s range 

proposal, as opposed to negotiated settlements, has increased litigation for fees. Id. 

9-10.

 Mr. Chevalier then filed a supplemental motion for fees requesting an 

additional $604.00 bringing the total request for attorneys’ fees and costs to 

$44,738.77. 

The Secretary filed a sur-reply. Resp’t’s Sur-Reply, filed Sept. 8, 2016. She 

presented three main arguments. First, the Secretary asserts that the law firm 

representing Mr. Chevalier, Homer, Conway, P.C., was one of the precipitating 

factors in the conclusion of negotiated settlements when the firm “unilaterally 

withdrew” from an agreement regarding hourly rates which allowed for the 

resolution of fee applications. Without an agreement, the Secretary states that she

“cannot stipulate to the reasonableness of a fee award that is based on hourly rates 

that [the Secretary] believes lack reliable evidentiary support.” Id. at 2. Second, 

the Secretary argues that detailed objections to aspects of the law firm’s billing 

practices have been made in the past which has led to more fee litigation. The 

Secretary states that this has not led to a change by the law firm and thus providing 

detailed objections were ineffective. Id. at 3. Lastly, the Secretary asserts that the 

approach of proposing a range and providing comparable cases is an attempt to 

assist special masters. Id. at 6.
3 

The matter is now ripe for adjudication.

* * * 

 

Because Mr. Chevalier received compensation, he is entitled to an award of 

reasonable attorneys’ fees by right. 42 U.S.C. § 300aa−15(e). 

 

As Mr. Chevalier noted, the Federal Circuit has approved the lodestar 

approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. 

This is a two-step process. Pet’r’s Reply at 8-9, Avera v. Sec’y of Health & 

Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, a court determines an 

“initial estimate . . . by ‘multiplying the number of hours reasonably expended on 

the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. 

Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or 

downward departure from the initial calculation of the fee award based on specific 

findings. Id. at 1348.

 

* * *

 

The Secretary did not directly challenge any of the requested rates as 

unreasonable. McCulloch v. Secʼy of Health & Human Servs., No. 09-293V, 2015 

WL 563423 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), found reasonable hourly rates for 

attorneys in this law firm. Special Masters, including the undersigned, have

followed McCulloch. See Avchen v. Secʼy of Health & Human Servs., No. 14- 

279V, 2015 WL 9595415 (Fed. Cl. Spec. Mstr. Dec. 4, 2015). Mr. Chevalier’s 

attorneys have billed in accord with the McCulloch rates and the Secretary did not 

impose any specific objection in her initial response. See Resp’t’s Resp.2 The 

undersigned finds the requested hourly rates reasonable. 

 2 In the Secretary’s sur-reply, she stated that in “McCulloch, the special master awarded 

hourly rates to the CHCC firm that are contrary to the evidence respondent presented in that 

case. . . . Simply put, respondent cannot stipulate to the reasonableness of a fee award that is 

based on hourly rates that respondent believes lack reliable evidentiary support.” Resp’t’s SurReply, filed Sept. 8, 2016, at 2. 

If the Secretary believed that the special master in McCulloch erred, then the Secretary 

could have exercised her right to file a motion for review. Since the Secretary did not file a 

motion for review, the McCulloch analysis remains intact. The Secretary’s unwillingness to 

accept — even reluctantly — the outcome of a case that it did not challenge through the 

appellate process is not consistent with the better aspects of the Vaccine Program. 
4 

* * * 

The second factor in the lodestar formula is a reasonable number of hours. 

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). 

The Secretary also did not directly challenge any of the requested hours as 

unreasonable.

In light of the Secretary’s lack of objection, the undersigned has reviewed 

the fee application for its reasonableness. See Shea v. Secʼy of Health & Human 

Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10, 

2015) (“special masters are not obligated to evaluate an attorney’s billing records 

on a line-by-line basis in making the reasonableness determination . . . and 

certainly need not do so when Respondent has not attempted to highlight any 

specific alleged inefficiencies”). The issue of multiple attorney work on one case 

has been discussed extensively in previous cases. Pernal v. Sec’y of Health & 

Human Servs. No. 12-667V, 2016 WL 3101820 (Fed. Cl. Spec. Mstr. May 12, 

2016); Whitney v. Sec’y of Health & Human Servs., No. 10-809V, 2016 WL 

4491499 (Fed. Cl. Spec. Mstr. July 27, 2016). Here, the primary associate was Ms. 

Meredith Daniels. The work of Ms. Daniels is credited in full. 

However, other attorneys, including Mr. Ronald Homer, performed tasks 

that Ms. Daniels could efficiently perform. For these reasons, the attorneys’ fees 

are reduced by five percent. This is a reduction of $1,393.31. 

 

While the foregoing analysis is the basis for this decision, the undersigned 

has also considered the cases the Secretary offered as relevant comparisons. The 

Secretary has identified two cases involving the Tdap vaccine and GBS. Resp’t’s 

Resp. at 3. However, the Secretary provided no basis for how she determined why 

these two cases, of the numerous cases involving Tdap and GBS, should be the 

basis for comparison.3

 This lack of analysis was not helpful. See Dorego v. Secʼy 

of Health & Human Servs., No. 14-337V, 2016 WL 1635826 (Fed. Cl. Spec. Mstr. 

April 4, 2016). 

Lastly, in addition to seeking attorneys’ fees, Mr. Chevalier also seeks an 

award of costs. Most of the costs are relatively routine, such as costs for obtaining 

 3 One of the two cases is easily distinguishable as the petitioner in that case, by the 

Secretary’s characterization, did not obtain an expert. See Keller v. Secʼy of Health & Human 

Servs., No. 13-250V, 2014 WL 5358758 (Fed. Cl. Spec. Mstr. Oct. 1, 2014). 
5 

medical records, mailings, photocopies, telephone, and the transcript from the 

hearing. Another set of expenses relate to travel for the hearings. All of these 

costs are reasonable and documented, and are awarded in full. 

The remainder, and bulk, of the costs concern time billed by Dr. Nizar 

Souayah. Like attorneys’ fees, reasonable expert fees are determined using the 

lodestar method in which a reasonable hourly rate is multiplied by a reasonable

number of hours. Dr. Souayah seeks a total of $15,087.50. This figure represents 

35.5 hours at $425 per hour. The rate is consistent with rates special masters have 

credited for neurologists. See Brown v. Sec’y of Health & Human Servs., No. 09–

426V, 2012 WL 952268, at *11 (Fed. Cl. Spec. Mstr. Feb. 29, 2012) (awarding Dr. 

Lawrence Steinman, a neurologist based in Stanford, California, $450-$500 per 

hour). 

After a determination about a reasonable hourly rate, the next factor to 

consider is a reasonable number of hours. Experts, like attorneys, should 

avoid block billing. Caves v. Sec’y of Health & Human Servs., 111 Fed. Cl. 

774, 781 (2013). 

 

Here, Dr. Souayah seeks compensation for 35.5 hours. It appears that 

Dr. Souayah has reviewed Mr. Chevalier’s case file, reviewed medical 

literature, and drafted and revised his expert report. Pet’r’s Mot., filed July 

11, 2016, tab B at 21. However, Dr. Souayah has not described his activities 

adequately. Four time entries spanning over a month is insufficient. This 

brevity does not provide sufficient detail to assess the reasonableness of his

work. Dr. Souayah should have described his activities in more detail. See

Caves, 111 Fed. Cl. at 780-83 (denying motion for review and rejecting the 

petitioner’s argument that the special master was arbitrary in requiring 

detailed invoices from an expert). In the undersigned’s experience, a 

reasonable amount of time is 30 hours. 

Consequently, Mr. Chevalier is awarded $12,750.00 in compensation for Dr. 

Souayah’s services. This is a reduction of $2,337.50. Therefore, the amount 

awarded in costs is $13,931.17. 

* * * 

 

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 

§15(e). The undersigned finds $41,007.97 ($27,076.80 in fees and $13,931.17in 

costs) to be a reasonable amount for all attorneys’ fees and costs incurred. 
6 

Pursuant to General Order No. 9, Mr. Chevalier states that he personally incurred 

no costs while pursuing this litigation. The undersigned GRANTS the petitioner’s 

motion and awards $41,007.97 in attorneys’ fees and costs. This shall be paid as 

follows: 

A lump sum of $41,007.97, in the form of a check made payable to 

petitioner and petitioner’s attorney, Ronald C. Homer, of Conway, 

Homer, P.C., for attorneys’ fees and other litigation costs available 

under 42 U.S.C. § 300aa-15(e).

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

clerk of the court is directed to enter judgment herewith.4

 

IT IS SO ORDERED. 

 

 s/Christian J. Moran

Christian J. Moran

 Special Master

 4

 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint 

filing of notice renouncing the right to seek review.