In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

KOREY FLOYD, * 

 * No. 13-556V

 Petitioner, * Special Master Christian J. Moran

 * 

v. * Filed: March 2, 2017 

 * 

SECRETARY OF HEALTH * Attorneys’ fees, paralegal billing, 

AND HUMAN SERVICES, * expert invoice, hours for life care

 * planner. 

 Respondent. * 

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

Ronald Homer and Joseph Pepper, Conway & Homer, P.C., Boston, MA, for 

Petitioner;

Alexis Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.

PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

After receiving compensation, Mr. Floyd requests attorneys’ fees and costs 

in the amount of $128,664.74. Mr. Floyd is awarded$126,664.74. The reasons 

for the award and the reasons for the reductions are given below. In addition, 

expectations for this firm’s invoicing with respect to paralegals are also set forth. 

Background

Mr. Floyd was born in 1971. Before the vaccinations at issue, Mr. Floyd

had a relatively complicated medical history. See, e.g., exhibits 5, 17, 20; Am. 

Pet., filed July 2, 2014, at 2 n.4. In 2012, Mr. Floyd was receiving Medicaid and 

 

1 The E-Government Act, 44 U.S.C. § 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 

earning a relatively modest income from working at a fast food restaurant. Exhibit 

37 (damages affidavit). In October 2012, when he was nearly 41, Mr. Floyd

received the flu vaccine. 

Approximately one month after the vaccination, Mr. Floyd started to 

experience weakness as well as bowel and bladder problems. Exhibit 5 at 1-3. He 

remained at a university hospital for 19 days when he was discharged to a 

rehabilitation facility. Exhibit 12. 

While in rehabilitation, Mr. Floyd called the law firm he eventually retained. 

This call initiated a paralegal’s gathering of medical records. Timesheets, filed 

May 20, 2016. The paralegals, whom the timesheets do not identify, were doing 

almost all the work with the attorney the law firm assigned to represent Mr. Floyd, 

Joseph Pepper, responding to occasional questions from Mr. Floyd. The paralegals 

also took the lead on drafting a skeletal petition. Timesheets (Aug. 2, 2013). 

Before the petition was filed, Mr. Pepper appears not to have reviewed any medical 

records. 

The law firm submitted the petition on August 8, 2012, and also filed a 

motion for a subpoena. Coincidentally, the next day, Mr. Floyd, having problems 

with his kidneys, was discharged from a nursing home. Exhibit 6 and 13. 

On September 4, 2013, an initial status conference was held. The primary 

purpose was to discuss the motion for subpoena because it had not explained why 

efforts to obtain medical records informally were not successful. On September 

27, 2013, Mr. Floyd filed an amended motion. On October 1, 2013, an order 

authorized subpoenas. 

With subpoenas in hand, Mr. Floyd’s law firm (more particularly paralegals) 

obtained more medical records. Mr. Floyd filed a statement of completion on 

April 9, 2014. Around this time, Mr. Pepper began drafting an amended petition 

based upon summaries of medical records paralegals created. Timesheets. In a 

June 2, 2014 status conference, Mr. Pepper confirmed that he was working on an 

amended petition. He also stated his client would complete a damages affidavit. 

In this status conference, the Secretary raised the issue of diagnosis, noting 

whether Mr. Floyd suffered from transverse myelitis or neuromyelitis optica was 

not clear. 

In his report, the Secretary presented his concerns about diagnosis more 

formally. The Secretary also noted that no treating doctor had connected the flu 
3 

vaccination to Mr. Floyd’s neurologic problems and Mr. Floyd had not retained an 

expert. Resp’t’s Rep., filed Aug. 8, 2014. In the ensuing status conference, the 

Secretary reiterated that diagnosis mattered. Consequently, Mr. Floyd was ordered 

to obtain a report from an expert that addressed diagnosis. Order, filed August 27, 

2014. 

The law firm consulted Norman Latov, a neurologist. See Timesheets. Mr. 

Pepper reviewed the report before it was filed on October 22, 2014. See

Timesheets. Dr. Latov opined that the flu vaccine caused Mr. Floyd to suffer 

transverse myelitis. Exhibit 38. 

After Mr. Floyd filed Dr. Latov’s report, a status conference was held. In 

the status conference, the Secretary stated that he was unsure about whether to 

pursue a resolution based upon the costs and risks to continued litigation. 

However, the Secretary ultimately chose to explore settlement. 

To facilitate assessing Mr. Floyd’s damages, the law firm retained a life care 

planner, Maureen Clancy. The Secretary retained Linda Curtis. Both Ms. Clancy 

and Ms. Curtis are experienced in the Vaccine Program. The life care planners and 

the attorneys visited Mr. Floyd’s home in May 2015. For Mr. Floyd, Mr. Pepper 

did not attend; Mr. Ronald Homer did. Timesheets. In the ensuing status 

conference, the Secretary said that Mr. Floyd’s case was not simple. 

The complexity of Mr. Floyd’s case is reflected in the extensive amount of 

time paralegals spent in summarizing medical records in April 2015. These 

medical records from various medical facilities run more than 10,000 pages. 

Exhibits 42-44. Based upon the information available to him, Mr. Pepper 

communicated a demand on Mr. Floyd’s behalf on May 11, 2015. 

The parties spent a few months negotiating. During this time, the Secretary 

requested updated medical records. Order, filed Aug. 13, 2015. The parties came 

to an agreement, which they memorialized in a stipulation. The stipulation was 

incorporated into a decision. Decision, filed May 2, 2016. 

On May 20, 2016, Mr. Floyd filed the pending motion for attorneys’ fees 

and costs. Mr. Floyd requested a total of $126,630.98. The components were 

$92,189.30 in attorneys’ fees (including $54,168.40 in paralegal fees) and 

$34,441.68 in attorneys’ costs. Mr. Floyd did not incur any costs personally. 
4 

The Secretary filed a responsewithout presenting any specific objection. 

Citing three cases, the Secretary proposed a reasonable amount for “similar cases” 

would be $75,000 to $100,000. Resp’t’s Resp., filed June 6, 2016. 

To the Secretary’s relatively boilerplate response, Mr. Floyd filed a 

relatively boilerplate reply. Mr. Floyd specifically noted that the Secretary’s 

proposed range would reduce the attorneys’ fees and costs by 21-41 percent. 

Pet’r’s Reply, filed June 17, 2016, at 6. With his reply, Mr. Floyd also filed a 

motion for supplemental fees, requesting an additional $2,002.50 in fees and 

$31.26 in costs. The tasks listed were performed between June 1, 2016 and June 

17, 2016. They primarily concern steps with processing the judgment. Relatively 

little time was spent responding to the fee response.2 

After reviewing the nature of the parties’ dispute, the undersigned had 

questions. These were discussed in a substantive status conference held on January 

25, 2017. The views of the Secretary as expressed in this status conference helped 

narrow the issues in dispute. 

Standards for Adjudication

To determine a reasonable amount of attorneys’ fees and costs under the 

Vaccine Act, special masters follow the lodestar approach, which involves a twostep process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-48

(Fed. Cir. 2008). The first step involves two elements. The judicial officer

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)). Therefore, a special master 

must determine both reasonable hourly rates for attorneys, and reasonable hours 

for tasks. Second, the judicial officer may make an upward or downward departure 

from the initial calculation of the fee award based on specific findings. Id. at 1348. 

Here, because a special adjustment is not needed, the analysis focuses on the 

lodestar factors: a reasonable hourly rate and a reasonable number of hours. 

 

2 Because the attorneys could anticipate performing steps like sending letters and checks 

for the Medicaid liens, the attorneys could have (and probably should have) waited to file the 

motion for attorneys’ fees and costs until they accomplished these routine steps. 
5 

Analysis

The analysis is primarily contained in two sections: a section on attorneys’ 

fees and a section on attorneys’ costs. A third section, which is tangential to the 

lodestar analysis, discusses the Secretary’s proffer of a range based upon similar 

cases. 

I. Attorneys’ Fees

As set forth in Avera, the factors for determining the lodestar value for an 

attorneys’ work are a reasonable hourly rate and a reasonable number of hours. 

These are set forth below for both attorneys and paralegals. 

A. Reasonable Hourly Rates 

Broadly, people in two occupations worked on this case --- attorneys and 

paralegals. The group of attorneys included five people, all frequent participants in 

the Vaccine Program and well-known to special masters. They have billed at 

different rates for work in different years. 

The billing rates for these attorneys were found in McCulloch v. Sec’y of 

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

Mstr. Sept. 1, 2015) (outlining forum rate ranges based on experience), 

reconsideration denied, No. 09-293V, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. 

Sept. 21, 2015). The undersigned followed McCulloch. Dorego v. Sec’y of Health 

& Human Servs., No. 14-337V, 2016 WL 1635826, at *3 (Fed. Cl. Spec. Mstr. 

Apr. 4, 2016). The proposed hourly rates remain reasonable. 

However, the hourly rates for paralegals stand on a less firm foundation. 

The law firm’s invoice requests that paralegal time be compensated at a rate of 

$135 per hour for all work performed after McCulloch. The undersigned lacks 

sufficient information to evaluate the reasonableness of this request. 

The basic flaw in the foundation comes from the law firm’s failure to 

identify the paralegal by name. In omitting the paralegal’s name (or names), the 

law firm has not complied with the Guidelines. The Guidelines state: “With 

regard to attorneys’ fees, . . . the person who performed the task . . . must be 

identified in contemporaneous, dated records.” Office of Special Masters, 

Guidelines for Practice under the National Vaccine Injury Compensation Program

(Rev. Ed. 2014) Section X, Chap. 3, ¶ A. 
6 

When asked about this point in the January 25, 2017 status conference, Mr. 

Pepper distinguished Guidelines from Rules, intimating that the law firm did not 

have to comply with the Guidelines. However, the Guidelines “reflect the 

accumulated wisdom of numerous decisions emphasizing that fee records must be 

specific.” Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316 (2008). 

More substantively, Mr. Floyd’s attorneys argued that special masters do not need 

to know the identity of a paralegal because the task descriptions allow an 

assessment of duplicate work and because the paralegals charge the same rate, 

which was set in McCulloch. 

McCulloch provides only limited support. There, the primary dispute was a 

reasonable hourly rate for seven attorneys. The special master extensively 

analyzed the evidence and made specific findings for each of the seven. However, 

the question about paralegal rate was a less prominent aspect of the dispute and, 

consequently, received proportionately less attention. The special master simply 

accepted the firm’s representations about the firm’s paralegals’ education, training 

and experience. 

While these representations may be accurate, special masters have no way of 

confirming their accuracy. Further, transferring the analysis from McCulloch is 

difficult. McCulloch did not identify the paralegals who worked on that case. Did 

these unnamed paralegals work on Mr. Floyd’s case? The answer is not apparent 

because the timesheets do not identify the paralegal. Without some basic 

information, starting with the person’s name, special masters cannot easily assess 

the reasonableness of any proposed rates. For example, what happens when a 

paralegal joins the firm? Is this less experienced person billed at the same rate? 

Conversely, what if a paralegal receives advanced training? Should the more 

accomplished person charge a higher rate? Cf. Guidelines, Section X, Chap. 3 

¶ B.1.a (“The affidavit should include information about the petitioning attorney 

(e.g. the year of graduation from law school, length of practice, specialties of 

practice, customary billing practices, and history of hourly rates charged). . . . 

Similar information concerning other persons whose time is being billed should be 

provided”). 

In the January 25, 2017 status conference, Mr. Floyd’s attorneys noted that 

the law firm has not listed paralegal’s names for many years and not had any 

significant problem. This is true. However, for better or worse, special masters 

are now being forced to resolve more motions regarding attorneys’ fees and costs, 

which include, but are not limited to, requests for paralegal compensation. Thus, 
7 

the undersigned expects that on a going forward basis, the law firm will identify 

paralegals by name and provide some information about the qualifications and 

experience of the paralegal. 

It bears emphasis that this expectation will be enforced for future activities. 

The law firm will not be penalized in Mr. Floyd’s case. For the present case and 

for cases in which the paralegal worked before the date of this decision (and a 

reasonable time thereafter), the undersigned will use the generic paralegal rates 

found in McCulloch. However, this decision informs the law firm to revise its 

billing practice to conform to the Guidelines.3

B. Reasonable Number of Hours

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

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

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

The undersigned conducted a line-by-line analysis of all the entries 

documented in the timesheets, despite the fact that when making reductions, a lineby-line evaluation of the fee application is not required. McCulloch, 2015 WL 

5634323, at *5 (quoting Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 

482 (1991)). 

Site visit. Mr. Homer, who charges approximately $100 more per hour than 

Mr. Pepper, traveled to and attended the site visit. Arguably, assigning this task to 

a partner who was less familiar with Mr. Floyd’s casewas inefficient. 

However, in the January 25, 2017 status conference, Mr. Homer and Mr. 

Pepper explained Mr. Homer’s schedule grants him more flexibility. Mr. Pepper’s 

participation would have delayed the site visit and delayed the resolution of the 

case. In addition, the Secretary’s attorney represented that her office sometimes 

sends different attorneys for visits based upon availability. This explanation is 

reasonable. All time is credited in full. 

 

3 The requirement to identify a paralegal by his or her name is not burdensome. Other 

law firms that routinely represent petitioners in the Vaccine Program routinely provide this basic 

information. 
8 

Participation of Multiple Attorneys. In addition to the site visit, Mr. Homer 

charged for performing other tasks that Mr. Pepper could have performed, such as 

reviewing short orders from status conferences that Mr. Pepper attended. Mr. 

Floyd does not need Mr. Homer to review these orders , however, as Mr. Pepper 

manages his docket capably. Besides Mr. Homer, other associate attorneys 

duplicated work that Mr. Pepper had performed or was capable of performing. The 

tasks, which do not include the site visit, total approximately 4 hours. Therefore, 

$1,000 is deducted to account for inefficiencies and duplication of work. 

Paralegal Review of Medical Records. Around the time of the site visit and 

in conjunction with the preparation of a demand, paralegals (again unnamed) spent 

more than 100 hours summarizing medical records. Given the status of litigation, 

an investment of this much time appeared questionable. 

Again, in the January 25, 2017 status conference, Mr. Floyd’s attorney 

persuasively explained the usefulness of this time. Mr. Floyd noted that a 

paralegal, who charges a lower rate than an attorney, summarized the records. The 

updated records could provide information about whether Mr. Floyd suffered from 

TM or NMO and this diagnosis, in turn, could affect the parties’ assessment of the 

risk of continued litigation.4 Moreover, before the vaccination, Mr. Floyd was 

receiving Medicaid benefits. The parties had to address this aspect in their 

resolution. Importantly, when the Secretary was asked to provide his views, he did 

not contest the reasonableness of efforts associated with updated medical records 

in this case. Thus, all time devoted to this task is credited in full. 

Secretarial tasks. Activities that are “purely clerical or secretarial tasks 

should not be billed at a paralegal rate, regardless of who performs them.” 

Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Attorneys, thus, may not 

separately charge for clerical or secretarial work because those charges are 

overhead for which the hourly rate accounts. See Bennett v. Dep’t of Navy, 699 

F.2d 1140, 1145 n.5 (Fed. Cir. 1983). 

Here, some tasks performed by paralegals were clerical / secretarial in 

nature. Examples include scheduling status conferences, organizing exhibits, 

preparing compact discs, revising a short motion after an attorney’s review, and 

 

4 The link between vaccination and transverse myelitis has a greater degree of support 

than the link between vaccination and NMO. 
9 

filing documents through the CM/ECF system. The law firm has charged 

approximately $500 for these tasks. This much is deducted. 

C. Summary for Attorneys’ Fees

For attorneys’ fees, a reasonable amount of compensation is $92,691.80

($92,189.30 + $2,002.50 - $1,000.00 - $500.00). 

II. Costs

For attorneys’ costs, Mr. Floyd originally sought $34,441.68. Mr. Floyd

added $31.26 in the motion for supplemental attorneys’ fees. Many costs are 

routine, such as those associated with obtaining medical records. These are 

documented, are reasonable, and are awarded in full. The two most expensive 

items are charges for Dr. Latov and Ms. Clancy. 

The process for determining a reasonable amount of compensation for 

retained professionals such as neurologists and life care planners follows the same 

lodestar method. Experts should present detailed invoices that are created 

contemporaneously with the hours worked. 

Dr. Latov’s invoice falls short of the standards for a good invoice. Dr. 

Latov’s invoice contains only three lines. The invoice does not specify when any 

work was done, only that Dr. Latov must have worked before October 20, 2014, 

the date of the invoice. 

On two occasions, the undersigned has found that an invoice prepared by an 

expert whom this law firm retained was deficient. On both occasions, the 

undersigned reduced the hours and in both cases, the petitioner, represented by this 

law firm, filed a motion for review. In both cases, the Court of Federal Claims 

denied the motion for review. Caves v. Sec’y of Health & Human Servs., 111 Fed. 

Cl. 774, 781-83 (2013); Morse v. Sec’y of Health & Human Servs., 89 Fed. Cl. 

683 (2009). 

Given the outcome in these cases, the law firm’s submission of another 

invoice containing only three lines is bewildering. By not creating an invoice that 

provides specific information such as dates tasks were performed, Dr. Latov risks

having hours deducted. The law firm, too, shares some responsibility for educating 

Dr. Latov about expectations for invoices and for checking to see if Dr. Latov’s 

invoice complies. 
10

Although the brevity of Dr. Latov’s invoice is troubling, his invoice is 

accepted. Mr. Pepper pointed out that the law firm retained Dr. Latov in 

September 2014. Timesheets p. 50. Thus, even if Dr. Latov did not record his time 

when he performed the work, his invoice was no more than one month old. 

Therefore, Dr. Latov is unlike experts who created invoices years after working. 

In addition, the undersigned’s assessment of the time Dr. Latov listed on the 

invoice is reasonable. Thus, Dr. Latov’s time is accepted in full. 

This acceptance of Dr. Latov’sinvoice should not be viewed as a relaxing of 

an expert’s obligation to create reasonably detailed invoices. Experts should list 

the date they perform tasks. Experts should describe what they are doing with 

specificity. For example a notation that the expert “reviewed exhibits 1-6” 

communicates more information than a notation “reviewed medical records.” To 

ensure that Dr. Latov is aware of this order, Mr. Floyd’s law firm IS ORDERED to 

send a copy of this decision to Dr. Latov. 

In addition to Dr. Latov, the law firm retained Ms. Clancy. Her 

responsibility was to prepare a life care plan. 

Ms. Clancy has submitted an invoice for $10,102.50. This represents 60.6 

hours at $150 per hour plus 13.5 hours spent traveling billed at $75 per hour. The 

hourly rates are reasonable. 

For the number of hours, a question arises. Ms. Clancy’s invoice shows that 

she worked 3,853 minutes. This many minutes is the equivalent of 64.2 hours 

(3,853 ÷ 60 = 64.2). However, Ms. Clancy has actually billed for 74.1 hours. How 

did she do that? 

Ms. Clancy’s practice of always billing 0.1 hours for any task explains the 

discrepancy. The first three lines illustrate this problem. On January 9, 2015, she 

spent 1 minute looking at an email from Mr. Pepper. Ms. Clancy charged 0.1 hour 

for this task. About three hours later on the same day, she spent 1 minute sending 

Mr. Pepper an email, yet charged 0.1 hour for this task. About two hours later still 

on the same day, Ms. Clancy spent 1 minute reading an email from Mr. Pepper, 

saying that he will send information, and again charged 0.1 hours for this task. So, 

for this three-minute exchange of emails, Ms. Clancy has charged 0.3 hours (18 

minutes). Is this reasonable? 
11

Billing judgment of professionals suggests that these tasks could have been 

combined into one entry. Guerrero v. Sec’y of Health & Human Servs., 124 Fed. 

Cl. 153, 159 (2015). 

Other than this issue with how Ms. Clancy tracks and bills her time, the 

remaining entries are reasonable. In the January 25, 2017 status conference, the 

Secretary represented that after consulting with his life care planner, Ms. Curtis, he 

believed that the hours Ms. Clancy spent were reasonable. The Secretary noted 

that Ms. Clancy actively participated in the planning process and the time seemed 

justified. 

To account for Ms. Clancy’s overcharging of approximately 10 hours, $500 

is deducted. This reduction accomplishes “rough justice.” See Fox v. Vice, 563 

U.S. 826, 838 (2011). 

Consequently, for attorneys’ costs, Mr. Floyd is awarded$33,972.94

($34,441.68 + $31.26 - $500.00). 

III. Secretary’s Proposed Range

The foregoing analysis completes the lodestar process, as no adjustment to 

the lodestar calculation is needed. However, in addition to looking at the 

information Mr. Floyd has presented, the undersigned has also considered the three 

cases that the Secretary cited. 

Here, the Secretary did not furnish any basis for limiting the award of 

attorneys’ fees and costs to $100,000, much less $75,000. As discussed in the 

Background section of this decision, Mr. Floyd’s case presented issues that 

necessarily take time to resolve, such as a dispute over the proper diagnosis, the 

consequential need for updated medical records that were unusually lengthy, and 

the resolution of a Medicaid lien. Furthermore, when the Secretary was called to 

provide his opinion about some items that contributed to the relatively high amount 

of attorneys’ fees and costs, such as the amount of time the paralegal spent 

reviewing medical records and the amount of time Ms. Clancy spent, the Secretary 

acknowledged the reasonableness of the time spent on those activities. 

Although the Secretary’s offer of a range was not helpful in determining a 

reasonable amount of attorneys’ fees and costs in Mr. Floyd’s case, providing 

information about the awards of attorneys’ fees and costs in similar cases can be 

helpful. The important qualification is that other cases be “similar.” When the 
12

Secretary provides ranges, he is encouraged to explain how he has selected cases to 

present as similar. For example, how did the Secretary narrow the group of cases 

alleging a flu vaccine caused transverse myelitis to the three cases the Secretary 

presented? What factors did the Secretary consider in determining whether a case 

was similar? This information would make the Secretary’s position more 

transparent and, possibly, more persuasive. See Florence v. Sec’y of Health & 

Human Servs., No. 15-255V, 2016 WL 6459592 (Fed. Cl. Spec. Mstr. Oct. 6, 

2016); Kirdzik v. Sec’y of Health & Human Servs., No. 15-98V, 2016 WL 

4608171 (Fed. Cl. Spec. Mstr. Aug. 10, 2016). 

Conclusion

Mr. Floyd is entitled to a reasonable amount of attorneys’ fees and costs. 

For the reasons explained above, a reasonable amount is $126,664.74. This shall 

be paid as follows:

A lump sum payment of $126,664.74, in the form of a check made 

payable jointly to the petitioner and the petitioner’s attorney, 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, the clerk of the court is directed to 

enter judgment herewith.

IT IS SO ORDERED. 

 

 S/Christian J. Moran

Christian J. Moran

 Special Master