# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 8, 2020

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

KATHLEEN FOX

, * No. 1 7

- 1 738 V

* Special Master Sanders Petitioner, *

*

v. *

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *

* Respondent. *

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

Robert P. Goodwin

, Walsh Roberts & Grace, Buffalo, NY

, for Petitioner. Darryl R. Wishard , United States Department of Justice, Washington, D

. C

. , for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On November 6 , 2017

, Kathleen Fox (“ P etitioner ”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa

- 10 to 34 (2012). The petition al leged that the influenza (“flu”) vaccine Petitioner received on March 16, 2016, caused her to suffer from Guillain

- Barré syndrome (“GBS”)

. On September 6 , 2019, the parties filed a stipulation

, which the undersigned adopted as her decision awarding compensation

on the same day . ECF No. 34

.

On Se ptember 19 , 2019

, P etitioner filed an application for attorneys’ fees and costs. ECF

No. 3 8 (“Fees App.”). Petitioner request s total attorneys’ fees and c ost s in the amount of

1 The undersigned intends 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, the undersigned agrees that the identified material fits within this d efinition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims ’ webs ite 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

$ 21,549.93 (representi ng $ 18, 550 .00 in fees and $ 2,999.93 in costs) . Fees App

. at 2

. P ursuant to General Order No. 9, Petitioner warrant s that she has not personally incurred any costs

. Fees App.

at 2

. Respondent responded to the motion on September 23 , 2019

, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t ’s Resp. at 2

– 3 (ECF No. 3 8 ). Petitioner 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 Cir cuit 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, 1348 (Fed. Cir. 2008). This is a two

- step process. Id. First, a court determines an “in itial 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

.

It is “well within the special master ’ s discretion” to determine the r easonableness 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 de termining 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 895. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonab ly comparable skill, experience and reputation.” Id. at 895, n.11. P etitioner s bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

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). The3

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

Schedul es for 2015

– 2016, 2017, 2018, and 2019 can be accessed online. 3

Petitioner requests t hat her attorney, Mr. Robert Goodwin, be compensated at $250.00 per hour for all work performed in this case, from 2017 to 2019. Other special masters have previously

fo und this rate to be reasonable, and the undersigned finds it to be reasonable for this case as well. See Welch v. Sec’y of Health & Human Servs. , No. 18

- 494V, slip op. at 4 (Fed. Cl. Spec. Mstr. Aug. 29, 2019).

b. Hours E xpended

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.

Upon review, t he undersigned finds the billed hours to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review the undersigned does not find any of the billing entries to be unreasonable. Respondent has also not i ndicated that he finds any of the billing entries to be unreasonable. Accordingly, P etitioner is entitled to final attorneys’ fees in the amount of $ 18, 550 .00

.

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). Petitione r request s a total of $ 2,999.93 in attorneys’ costs. This amount is comprised of acquiring medical records

, postage, the Court’s filing fee , and work done by Dr. Nicholas Silvestri in preparing a narrative

report

. Fees App. at 10

- 11

. Petitioner ha s provided adequate documentation to support these costs and in the undersigned’s experience they are reasonable. Accordingly, Petitioner is entitled to t he full amount of costs sought.

II. Conclusion

Based on all the above, the undersigned finds that P etitioner is entitled to the following award of reasonable attorneys’ fees and costs:

3 The 2015

– 2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

- Rate

- Fee

- Schedule2015

- 2016.pdf. The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

Rate

- Fee

- Schedule

- 2017.pdf. The 2 018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule %202018.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov /sites/default/files/Attorneys%27%20Forum% 20Rate%20Fee%20Schedule %202019.pdf. The hourly rates contained within the schedules are updated from the decision in

McCulloch , 2015 WL 5634323.4

Attorneys’ Fees Requested $ 18, 550 .00 (Reduction to Fees )

- Total Attorneys’ Fees Awarded $ 18, 550 .00

Attorneys’ Costs Requested $ 2,999.93 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 2,999.93

Total Attorneys’ Fees and Costs $ 21,549.93

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that P etitioner ’ s request f or fees and

costs is reasonable. Accordingly, the undersigned awards the follow ing:

1) A lump sum in the amount of $ 21,549.93 , representing reimbursement for P etitioner ’ s attorneys’ fees and costs, in the form of a check payable to P etitioner and h er attorney, M r. Robert Goodwin

.

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

C ourt shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

s/ Herbrina D. Sanders

Herbrina D. Sanders Special Master

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

review. Vaccine Rule 11(a).