In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: September 21, 2020

* * * * * * * * * * * * * * UNPUBLISHED

DOUG AHLUM and KARI AHLUM *

Parents and Next of Kin to T.A., * No. 12-763V

* Special Master Horner

Petitioners, *

*

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioners.

Debra A. Filteau Begley, United States Department of Justice, Washington, D.C., for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On November 9, 2012, Doug and Kari Ahlum filed a petition for compensation pursuant 

to the National Vaccine Injury Compensation Program on behalf of their minor child, T.A.

2

42 

U.S.C. §§ 300aa-10 to 34 (2012). The petition alleged that the measles mumps rubella vaccine 

caused a Table encephalopathic event, resulting in permanent injuries including the amputation of 

both of T.A.’s legs. (ECF No. 1). On January 24, 2020, the parties filed a proffer, which I adopted 

as my decision awarding compensation on January 27, 2020. (ECF No. 149).

On April 23, 2020, petitioners filed an application for attorneys’ fees and costs. (ECF No. 

155) (“Fees App.”). Petitioners request total attorneys’ fees and costs in the amount of 

1

I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling 

will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner 

has 14 days to identify and move to redact medical or other information, the disclosure of which would 

constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits 

within this definition, I will redact such material from public access. Because this unpublished ruling 

contains a reasoned explanation for the action in this case, I am required to post it 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).

2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease 

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012).
2

$146,303.09 (representing $99,728.50 in fees and $46,574.59 in costs). Fees App. at 1.

3 Pursuant 

to General Order No. 9, petitioners state that they did not personally incur any expenses associated 

with this claim. Respondent responded to the motion on May 7, 2020, indicating that he “is 

satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” 

and requests that I exercise my discretion and determine a reasonable award for attorneys’ fees 

and costs. Resp. at 2–3 (ECF No. 156). Petitioners did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The 

Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and 

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. 

Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate 

. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable 

hourly rate.’” Id. (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.

It is “well within the special master’s discretion” to determine the reasonableness of fees.

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines 

v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant 

the special master wide latitude in determining the reasonableness of both attorneys’ fees and 

costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing 

records that indicate the work performed and the number of hours spent on said work. See Savin 

v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, 

should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate 

“in the community for similar services by lawyers of reasonably comparable skill, experience and 

reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove 

that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte, without providing petitioners notice 

and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 

(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in 

a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human 

Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the 

Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t 

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). Just as “[t]rial courts routinely use their prior experience to 

reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program 

3 Petitioners were previously awarded interim attorneys’ fees on July 31, 2014, and on May 26, 2016.
3

special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 

3 F.3d at 1521.

a. Hourly Rates

The decision in McCulloch provides a framework for consideration of appropriate ranges 

for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of 

Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 

2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The 

Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee 

Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.4

Petitioners request compensation for their counsel at the following rates: for Mr. Andrew 

Downing, $350.00 per hour for work performed in 2016, $375.00 per hour for work performed in 

2017, and $385.00 per hour for all work performed thereafter, and for Ms. Courtney Van Cott, 

$195.00 per hour for work performed in 2016 and 2017 and $205.00 per hour for work performed 

in 2018 and 2019. These rates are consistent with what Mr. Downing and Ms. Van Cott have 

previously been awarded for their Vaccine Program work, and I find them to be reasonable for the 

instant case.

b. Hours Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the 

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be 

compensated for non-attorney-level work, the rate must be comparable to what would be paid for 

a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 

2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be 

billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

Upon review, I find that the overall hours spent on this matter appear to be largely 

reasonable. The entries are reasonable and accurately describe the work being performed and the 

length of time it took to perform each task. However, a small amount must be reduced for 

overbilling by firm paralegals. In the instant case, the overbilling incudes time expended on 

clerical/administrative tasks such as receiving and paying invoices and a general excessive amount 

of time billed to complete various tasks such as preparing and filing documents and reviewing 

filings from the Court and Respondent. These issues have all been previously noted concerning 

the work of Van Cott & Talamante paralegals. See, e.g., Sheridan v. Sec’y of Health & Human 

Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. 

Sec’y of Health & Human Servs., No. 16-538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. 

Jan. 23, 2019). A reasonable reduction for these issues is $1,157.40.

Accordingly, petitioners are awarded final attorneys’ fees of $98,571.10.

4 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. 
4

c. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests

a total of $46,574.59 in attorneys’ costs. Fees App. Ex. 1 at 54. This amount includes the cost of 

petitioners’ medical experts (Dr. Michael Katze, Dr. Harry Hull, and Dr. David Siegler), 

petitioners’ life care planner, Ms. Roberta Hurley, and work performed by petitioners’ 

guardianship attorney, as well as costs associated with travel to visit with petitioners, the 

acquisition of medical records, and postage. Petitioners have provided adequate documentation 

supporting the requested costs and they mostly appear reasonable in my experience. However, in 

his response, respondent questions the reasonableness of the costs associated with the expert work 

of Dr. Katze and Dr. Hull because “no reports from either expert were filed making it difficult to 

assess the reasonableness of the requested costs”. Response at 1, n.1. 

First, petitioners request $2,500.00 for the work of Dr. Katze, representing a retainer paid 

by counsel. However, Dr. Katze was fired from the University of Washington for sexually 

harassing his employees and misusing research funds before he was able to perform any 

substantive casework. Special Master Millman addressed this issue during a status conference held 

July 13, 2016, approximately one month after petitioners first paid a retainer to Dr. Katze. ECF 

No. 84; ECF No. 155-1, p. 55. At that time Special Master Millman cited a news report dated July 

4, 2016. ECF No. 84. Although that report indicates that Dr. Katze’s alleged misconduct pre-dated 

his retention in this case, it also confirms that he had not as of that date been removed from his 

position, and it is not clear what, if any, information regarding the allegations would have been 

publicly available at the time Dr. Katze was retained. Petitioners did not incur any expenses 

relative to Dr. Katze’s retention after Special Master Millman’s July 13, 2016 status conference

discussing this issue. Moreover, Dr. Katze otherwise had the qualifications necessary to offer the 

type of opinion he was retained to provide. I also note that in my experience, a $2,500.00 expert 

retainer is not atypical. Accordingly, the expenditure itself was incurred reasonably. That this 

payment yielded no work for petitioners appears likely to have been unforeseeable and out of 

petitioners’ control.

Concerning the work of Dr. Hull, his billing records indicate that he spent approximately 

30 hours reviewing the medical records and researching medical literature in anticipation of 

preparing a report, for a total of $14,883.90 billed. Dr. Hull’s opinion was pursued in response to 

the suggestion of an alternative theory of causation whereby the MMR vaccine caused an 

immunosuppression that allowed the child to become infected with Neisseria Meningitidis. ECF 

No. 76; ECF No. 155, p. 3. Ultimately, Dr. Hull advised petitioners that he could not so opine and 

therefore would not be able to produce a supportive expert report. ECF No. 155, p. 1. The fact that 

Dr. Hull was unable to provide a supporting opinion does not in itself render his billing noncompensable. However, given that he was ultimately unwilling to opine, his billing records do 

raise a concern regarding the amount of time he spent working on this case. See ECF No. 155-1, 

p. 64. Specifically, his invoice reflects that he first spent approximately ten hours conducting a 

general literature review before spending a further ten hours (approximately) reviewing T.A.’s 

medical records and other court documents. Once he began reviewing the medical records in this 

case, he billed a further five and a half hours on research. Id. The exact reason Dr. Hull declined 

to opine has not been disclosed, but upon my review of the billing records, I do not see how the 
5

entirety of his hours billed could be reasonable. If Dr. Hull’s extensive initial research confirmed 

that he could not support petitioner’s claim as a matter of general causation, he should not have 

subsequently billed more than ten hours to review the complete medical records. Alternatively, if

Dr. Hull was ultimately unable to opine due to concern regarding specific causation based on the 

facts of this case, it seems that his preliminary discussions with counsel coupled with his own

expertise should have been sufficient to guide him toward reviewing the complete medical history 

of the case before conducting substantial preliminary research into the general medicine. 

Accordingly, I find that Dr. Hull’s billing should be reduced by one-third, resulting in a reduction 

of $4,911.69.

II. Conclusion

Based on all the above, I find that petitioner is entitled to the following award of reasonable 

attorneys’ fees and costs:

Attorneys’ Fees Requested $99,728.50

(Reduction to Fees) - ($1,157.40)

Total Attorneys’ Fees Awarded $98,571.10

Attorneys’ Costs Requested $46,574.59

(Reduction of Costs) -($4,911.69)

Total Attorneys’ Costs Awarded $41,662.90

Total Attorneys’ Fees and Costs $140,234.00

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the 

billing records and costs in this case and finds that petitioners’ request for fees and costs, other 

than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the 

amount of $140,234.00, representing reimbursement for petitioner’s attorneys’ fees and 

costs, in the form of a check payable to petitioners and their attorney, Mr. Andrew Downing.

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

Court shall enter judgment in accordance herewith.5

IT IS SO ORDERED.

s/Daniel T. Horner

 Daniel T. Horner

Special Master

5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek 

review. Vaccine Rule 11(a).