# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS
(Filed: September 2 3 , 2020 )

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

MELISSA FRANKLIN

, * UNPUBLISHED

* No. 1 6

- 193 V

Petitioner

, *

* Special Master Dorsey

v. * * Attorney s’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Ronald C. Homer

, Conway, Homer, P.C., Boston, MA

, for petitioner

. Adriana R. Teitel , U.S. Department of Justice, Washington, D C , for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On February 8, 2016

, Melissa Franklin (“petitioner”) filed a petition for compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq.

, 2 (“ Vaccine Act ”)

. Petitioner alleged that as a result of the Measles, Mumps, and Rubella and

Tetanus

- diphtheria

- acellular pertussis vaccinations administered on April 18, 2014

, s he suffered

from transverse myelitis

. P etition at 1 ( ECF No. 1 )

. On February 25, 2020 , the parties filed a stipulation , which the undersigned adopted as her decision award ing compensation on the same day. (ECF No. 65 ).

1 This decision will be posted on the website of the United States Court of Federal Claims' website, in accordance

with the E

- Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to anyone with access to the interne t. As provided by 44 U.S.C. § 300aa

- 12(d)(4)B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b), each party has 14 days within which to request redac tion “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id

.

2 The N ational Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755 , codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2012) (“Vaccine Act” or “the Act)

. All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.
§§ 300aa.2

On May 21 , 2020

, p etitioner filed a n application for attorneys’ fees and costs

. Motion for Attorney Fees and Costs (ECF No. 70 )

. Petitioner request s compensa tion in the amount of $ 90,989.60 , representing $ 66,291.05 i n attorneys’ fees

, $ 2 4,669.45 in attorneys’ costs, and $29.10 in costs personally incurred by petitioner . Fees App. at 2

. Respondent filed his response

on May 26, 2020 indicating that he “is satisfied the statutory requirements f or an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 71 ). Petitioner did not file a reply thereafter. The matter is now ripe for disposition.

For the reasons discussed below, the undersigned GRANTS petitione r ’ s motion and

awards a total of $ 90,989.60

.

I. Discussion

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(e)(1).

When compensation is not awarded, the special master “may” award reasonable attorneys’ fees

and costs “if the special master or court determines that the petition was brought in good faith

and there was a reasonable basis for the claim for which the petition was brought.” Id. at §15(e)(1). In this case, because petitioner was awarded compensation pursuant to a stipulation

,

s he is entitled to a final award of reasonable attorneys’ fees and costs.

a. Reasonable Attorney s’ Fees

The Federal Circuit has approved use of the lodestar approach to determine reasonable attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs

. , 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court fir st determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id

. at 1347

- 58 (quoting Blum v.

Stenson , 465 U.S. 886, 888 (1984)). Then, the co urt may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id

. at

1348.

Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service pe rformed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health and Human Servs

. , 85
Fed. Cl. 313, 316

- 18 (2008). Counsel should not include in their fee requests hours that are

“exces sive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs

. , 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id

. at 1522. Furthermore, the special master may reduce a fee req uest sua sponte , apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of

Health & Human Servs

. , 86 Fed. Cl. 201, 209 (2009).3

A special master need not engage in a line

- by

- line analysis of a petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs

. , 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health

and Human Servs ., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests ... [v]accine program special masters are also entitled to use their prior experience in reviewing fee application.” Saxton , 3 F. 3d at 1521.

i. Reasonable Hourly Rat es

The undersigned has reviewed the hourly rates requested by petitioner for the work of h er counsel at Conway, Homer, P.C. (the billing records indicate that the majority of attorney work was performed by Mr. Joseph Pepper, with supporting work done by Mr. Ronald Homer, Ms. Christina Ciampolillo, Ms. Lauren Faga, an d Ms. Meredith Daniels) and finds that the hourly rates requested are consistent wi th what these attorneys have previously been awarded for their Vaccine Program work. Accordingly, no adjustment to the hourly rates is necessary.

ii. Reasonable Hours Expended

The undersigned has reviewed the submitted billing entries and finds the total number of hours billed to be reasonable. The billing entries accurately reflect the nature of the work performed and the undersigned does not find any of the entries to be objectionable. R espondent also has not indicated that he finds any of the entr ies to be objectionable either. Accordingly, petitioner is awarded final attorneys’ fees of $ 66,291.05

b. Attorneys’ Costs

Petition er requests a total of $ 24,669.45 in attorneys’ costs. This amount is comprised of acquiring medical records, postage, the Court’s filing fee , travel costs to meet with petitioner, work performed by petitioner’s medical expert Dr. David Simpson, and life care planner . Upon review, petitioner has provided adequate documentation supporting these costs, and they all appear reasonable in the undersigned’s experience. Accordingly, petitioner is entitled to the full amount of costs sought.

c. Petitioner’s Costs

Pursuant to General Order No. 9, petitioner states that she has personally incurred costs
of $29.10 in pursuit of this litigation. These costs are for postage. Petitioner has provided adequate documentation supporting these costs and the undersigned finds them to be reasonable.

II. Conclusion4

Based on all of the above, the undersigned finds that it is reaso nable compensate petitioner and h er counsel as follows:

Attorneys’ Fees Requested $ 66,291.05 (Total Reduction from Billing Hours)

- Total Attorneys’ Fees Awarded $ 66,291.05

Attorneys’ Costs Requested $ 24,669.45
(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 24,669.45

Total Attorneys’ Fees and Costs Awarded $ 90,960.50

Petitioner’s Costs $29.10

Total Amount Awarded $90,989.60

Accordingly, the undersigned awards the following:

1) a lump sum in the amount of $ 90,960.50 , representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, M r.
Ronald Homer ; and

2) a lump sum in the amount of $29.10, representing petitioner’s costs, in the form of a check payable to petitioner.

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

Court SHALL ENTER JUDGMENT in accordance with this decision

. 3

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master

3 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.