In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

DAVID HELTON, *

* No. 15-1105V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: October 23, 2018

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs. 

AND HUMAN SERVICES, *

*

*

Respondent. *

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

Randal G. Mathis, Mathis, Donheiser & Jeter, Dallas, TX, for Petitioner;

Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for 

Respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS1

David Helton brought a successful petition for compensation from the 

National Childhood Vaccine Compensation Program. He now seeks an award for 

attorneys’ fees and costs. He is awarded $29,104.49.

* * *

Represented by Randal G. Mathis, Mr. Helton filed his petition for 

compensation on October 1, 2015. Mr. Helton claimed that the influenza (“flu”) 

vaccine, which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), and 

which he received on October 3, 2012, caused him to suffer from Guillain-Barre 

 

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

Syndrome. The parties were able to informally resolve the case, entering a joint 

stipulation that was then adopted. Decision, issued Mar. 30, 2018, 2018 WL

5260247.

This matter is now ripe for adjudication.

* * *

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

reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question 

at bar is whether Mr. Helton’s requested amount is reasonable. Mr. Helton’s fees 

and costs are addressed in turn.

I. Attorney and Paralegal Fees

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. 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. 

A. Reasonable Hourly Rate

Under the Vaccine Act, special masters, in general, should use the forum 

(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. 

There is, however, an exception (the so-called Davis County exception) to this 

general rule when the bulk of the work is done outside the District of Columbia 

and the local rates are substantially lower than the forum rates. Id. at 1349 (citing 

Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. 

Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the 

attorneys’ work was done in Dallas, TX. Special masters have found that Dallas, 

TX rates are not substantially lower than the forum rates and that the forum 

attorney rates shall apply for work performed in Dallas, TX. See, e.g., Stewart v. 

Sec'y of Health & Human Servs., No. 16-1486V, 2017 WL 5398405, at *1 (Fed. 

Cl. Spec. Mstr. Oct. 18, 2017) (citing three other cases to conclude that Dallas 

attorneys should be paid forum rates).

Two attorneys, Mr. Mathis and Ms. Anh Tran, worked on Mr. Helton’s case. 

Mr. Mathis charged $435 an hour. Ms. Tran charged $190 per hour for the period 
3

prior to September 8, 2016, and $230 per hour for the period subsequent. A 

paralegal was also used in this case, Mrs. Julie Bayless, who requested an hourly 

rate of $160. 

To support his requested rates, Mr. Mathis filed an affidavit stating that $435 

is his normal hourly rate during the time period associated with Mr. Helton’s case. 

Pet’r’s Fees Mot. at PDF 24. He also notes that he has been practicing law since 

1980. Id. at PDF 23. No details are provided about Ms. Tran or Mrs. Bayless’s

rate, though in a different case another special master noted that Ms. Tran had been 

practicing law since 2014. Foxx v. Sec'y of Health & Human Servs., No. 15-670V, 

2016 WL 7785861, at *7 (Fed. Cl. Dec. 21, 2016).

Mr. Mathis, Ms. Tran, and Mrs. Bayless’s rates were analyzed by Special 

Master Roth in Foxx. The undersigned agrees with the conclusions of Special 

Master Roth and adopts those rates here. Accordingly, Mr. Mathis’s rate is set at 

$385 for 2015, Ms. Tran’s rate is set at $150 for 2015, and Mrs. Bayless’s rate is 

set at $125. These rates are adjusted for 2016 and 2017 using the Producer Price 

Index – Office of Lawyers (“PPI-OL”) measure of inflation. Because the invoice

provided does not provide a breakdown of the hours billed based on the year, the 

undersigned has evaluated the rate differences and finds that a 16% deduction

approximately effectuates the rate reductions adopted above.

B. Reasonable Number of Hours

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 did not challenge any of the requested hours as unreasonable. 

To facilitate the process of evaluating the reasonableness of an attorney’s 

activities, in November 2004, the Office of Special Masters issued revised 

Guidelines for attorneys. The Guidelines state “counsel are advised to maintain 

detailed contemporaneous records of time and funds expended under the Program.” 

Office of Special Masters, Guidelines for Practice under the National Vaccine 

Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated 

another way, non-vague) contemporaneous records are the petitioner’s 

responsibility and allow the Office of Special Masters to determine the 

reasonableness of attorneys’ fees requests. See Avgoustis v. Shinseki, 639 F.3d 

1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit 

effective review of the fees is in accord with cases from the Federal Circuit and the 

Supreme Court). 
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The billing entries provided by the attorneys in this case stand in direct 

contrast to the guidance given in the Guidelines and Avgoustis. Mr. Mathis and 

Ms. Tran’s billing descriptions averaged approximately 3-4 words and almost 

universally provided little useful information that would allow the undersigned to 

evaluate the entry for reasonableness. A representative sample of the attorneys’ 

entries is provided below:

Pet’r’s Fees Mot. at PDF 18. In contrast, Mrs. Bayless’s entries complied with the 

instruction that billing entries be sufficiently detailed to allow for effective review. 

In fact, Mrs. Bayless’s entries can serve as an example for others in this program 

and, partly for this reason and partly to demonstrate the contrast with the attorneys’ 

records, a sample of these entries is included below:
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Id. at PDF 11.

Accordingly, while the undersigned was easily able to examine Mrs. 

Bayless’s entries and conclude that the amounts billed were reasonable, this task is 

much more difficult for the records provided by Mr. Mathis and Ms. Tran. The 

undersigned struggles to evaluate, for instance, whether 0.2 hours for “Damage 

Evidence” is a reasonable expense for Mr. Helton’s petition. As a result, the 

undersigned has examined the total number of hours expended by the attorneys in 

this case and has compared that to the number of hours billed in cases of similar 

complexity during the undersigned’s experience in the Vaccine Program. Based 

on this analysis, the total number of hours appears to be approximately reasonable, 

though a little high. Accordingly, the undersigned reduces the number of hours

billed by 5% in order to arrive at a reasonable figure. Mr. Mathis and Ms. Tran are 

advised to provide more complete billing entries in future cases and are warned 

that a failure to do so can result in penalties. See Valdes v. Sec’y of Health & 

Human Servs., No. 99-310V, 2009 WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 

30, 2009) (noting that penalties may be necessary to motivate an attorney to submit 

requests for fees that do not contain “erroneous, duplicative, or unreasonable 

entries”), mot. for rev. granted in non-relevant part and denied in non-relevant part, 

89 Fed. Cl. 415 (2009). 
6

II. Costs

Mr. Helton also moves for reimbursement of $1,691.48 in costs. This 

amount includes routine costs associated with obtaining medical records, the filing 

fee, and shipping. These costs are reasonable and awarded in full. 

* * *

Accordingly, petitioner is awarded:

A lump sum of $29,104.49 in the form of a check made payable to 

petitioner and petitioner’s attorney, Randal G. Mathis.

These amounts represents reimbursement 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. 

s/Christian J. Moran

Christian J. Moran

Special Master