In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 09-867V

April 30, 2013

Not To Be Published

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

CLARITZA and WILLIAM TORRES, *

as parents and natural guardians of *

W.T., *

*

 Petitioners, * Attorneys’ Fees and Costs; Guardianship 

 * Costs; Special Needs Trust Costs

v. *

* 

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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F. John Caldwell, Jr., Sarasota, FL, for petitioner.

Darryl R. Wishard, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On December 16, 2009, petitioners filed a petition under the National Childhood Vaccine 

Injury Act, 42 U.S.C. § 300aa–10-34, alleging that Menactra, DTaP, and Varivax vaccines 

caused W.T.’s Guillain-Barré syndrome (“GBS”). On June 10, 2011, the parties filed a 

stipulation, in which they agreed to settle the above-captioned case. The undersigned issued a 

damages decision on June 10, 2011 and a redacted damages decision on June 14, 2011. On 

January 9, 2012, petitioners filed an application for $25,511.97 in attorneys’ fees and costs and a

motion to stay their fee application because of an unresolved Pennsylvania state issue regarding 

the administration of the settlement funds. The undersigned issued an order granting petitioners’ 

motion for a stay of their fee application on January 12, 2012. On November 9, 2012, petitioners 

 

1 Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the 

public unless they contain trade secrets or commercial or financial information that is privileged and 

confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted 

invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact 

such information prior to the document’s disclosure. If the special master, upon review, agrees that the 

identified material fits within the banned categories listed above, the special master shall redact such 

material from public access.
2

filed an order from the Philadelphia Orphans’ Court that designates Claritza Torres as the limited 

guardian of W.T.’s estate for purposes of the above-captioned case. 

I. Procedural History of Petitioner’s Fee Application

On March 25, 2013, petitioners filed an application for attorneys’ fees and costs (“Fee 

App.”).2 On March 26, 2013, respondent filed her response to petitioners’ application for 

attorneys’ fees and costs (“Opp’n”).3 Petitioners filed a reply to respondent’s response (“Reply”)

on April 5, 2013. 

In their March 25, 2013 application for attorneys’ fees and costs, petitioners request

$26,000.00 for attorneys’ fees and costs incurred by Maglio Christopher & Toale, PA. 

Petitioners also request reimbursement of $7,379.40 for costs incurred in Pennsylvania state 

court, comprised of $3,000.00 in fees paid to Begley Law Group, PC for establishing a pooled 

special needs trust through the Pennsylvania Court of Common Pleas and $4,379.40 in costs for 

establishing Claritza Torres as the limited guardian of W.T.’s estate for purposes of the abovecaptioned case. 

II. Awarding Attorneys’ Fees and Costs

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 

42 U.S.C. § 300aa–15(e)(1). The special master has “wide discretion in determining the 

reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 

(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 

1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their prior 

experience in reviewing fee applications.”). 

Respondent does not object to petitioners’ request for reimbursement of $26,000.00 for 

attorneys’ fees and costs incurred by Maglio Christopher & Toale, PA. Opp’n 1. However, 

respondent does object to petitioners’ costs incurred to establish guardianship and a special needs 

trust. Id. at 2-3. 

 

2 With their fee application, petitioners filed seven exhibits in support of their request. See Fee 

App., Ex. A (counsel’s billing invoices); Fee App., Ex. B (petitioners’ statement that they incurred 

$7,379.40 in fees and costs); Fee App., Ex. C (the signed stipulation); Fee App., Ex. D (invoices from 

Begley Law Group, PC); Fee App., Ex. E (a letter regarding fees from Kristen L. Behrens of the Begley 

Law Group, PC); Fee App., Ex. F (the Pennsylvania order appointing Claritza Torres as limited guardian 

of the estate of W.T.); Fee App., Ex. G (the Pennsylvania order establishing a pooled special needs trust 

for the benefit of W.T.).

3 Respondent filed three exhibits in support of her opposition. See Opp’n, Ex. A (the 

Pennsylvania order establishing a pooled special needs trust for the benefit of W.T.); Opp’n, Ex. B (the 

docket for the Pennsylvania guardianship proceedings); Opp’n, Ex. C (the Pennsylvania and Philadelphia 

Orphans’ Court Rules).
3

III. Analysis

A. Costs Incurred Establishing Guardianship

Respondent objects to the $4,379.40 in costs petitioner incurred establishing Claritza 

Torres as the limited guardian of W.T.’s estate for purposes of the above-captioned case. 

Respondent claims that the costs associated with establishing Claritza Torres’s temporary 

guardianship of W.T. were not incurred in a proceeding on the vaccine, as required by 42 U.S.C. 

§ 300aa–15(e)(1). Opp’n 2. Nonetheless, respondent recognizes that “in more recent cases, 

special masters have interpreted the Vaccine Act’s fee provision to include reimbursement for 

fees and costs incurred in obtaining a guardianship in state court.” Id. at 2-3; see, e.g., Cansler 

ex. rel. Cansler v. Sec’y of HHS, No. 09-596V, 2011 WL 597791, at *2-3 (Fed. Cl. Spec. Mstr. 

Feb. 2, 2011) (in which the undersigned awarded reimbursement of $3,210.59 for guardianship 

costs); Gruber v. Sec’y of HHS, No. 00-749V, 2009 WL 2135739, at *10-11 (Fed. Cl. Spec. 

Mstr. June 24, 2009) (awarding reimbursement of $4,027.00 for the establishment of a 

guardianship), vacated on other grounds, 91 Fed. Cl. 773 (2010).

The special masters award the amounts expended for petitioners to obtain representative 

authority in their local state courts because representative authority is a condition precedent to 

petitioners receiving a vaccine award. See, e.g., Cansler, 2011 WL 597791, at *3 (“This trend of 

using common sense to award guardianship costs when they are mandated as a sine qua non of 

receiving a vaccine damages award should continue.”). In the present case, the terms of the 

damages stipulation require petitioners to obtain representative authority in order for respondent 

to release the money to which the parties have stipulated in their agreement on damages. If 

petitioners do not obtain said representative authority, they do not get paid. In the abovecaptioned case, paragraph 13 of the stipulation reads:

Petitioners represent that they presently are, or within 90 days of the date of 

judgment will become, duly authorized to serve as guardians of [W.T.’s] estate 

under the laws of the Commonwealth of Pennsylvania. No payments pursuant to 

this Stipulation shall be made until petitioners provide the Secretary with 

documentation establishing their appointment as guardians of [W.T.’s] estate. If 

petitioners are not authorized by a court of competent jurisdiction to serve as 

guardians of the estate of [W.T.] at the time a payment pursuant to this Stipulation 

is to be made, any such payment shall be paid to the party or parties appointed by 

a court of competent jurisdiction to serve as guardian of the estate of [W.T.] upon 

submission of written documentation of such appointment to the Secretary.

Paragraph 13 makes obtaining guardianship of W.T.’s estate a condition precedent to payment 

pursuant to the stipulation. As such, the undersigned finds petitioners’ request for 

reimbursement for establishing Claritza Torres’s temporary guardianship of W.T. to be 

reasonable.

In addition, based on the undersigned’s experience, the undersigned finds $4,379.40 to be 

a reasonable amount for establishing guardianship. See Gruber, 2009 WL 2135739, at *11
4

(awarding $4,027.00 for reimbursement of costs to establish guardianship); see also Sampt v. 

Sec’y of HHS, No. 07-122V, 2011 WL 1629661, at *1-2 (Fed. Cl. Spec. Mstr. Mar. 29, 2011) 

(the undersigned awarded reimbursement of $4,442.80 for costs to establish petitioner as the 

representative of the decedent’s estate, as required by the stipulation). 

B. Costs Incurred Establishing a Special Needs Trust 

Respondent objects to the $3,000.00 petitioners request for establishing a special needs 

trust for W.T.’s benefit and having a Pennsylvania court authorize the trust. Respondent states

that the costs associated with establishing a special needs trust were not incurred in a proceeding 

on the vaccine, as required by 42 U.S.C. § 300aa–15(e)(1). Opp’n 3. Petitioners claim that the 

$3,000.00 was incurred in “fulfilling their obligations under the stipulation.” Reply 4. While the 

stipulation requires petitioners to obtain representative authority, there is no requirement in the 

stipulation that petitioners create a special needs trust. Petitioners claim that if the settlement 

funds passed directly to them, petitioners and W.T. would become ineligible for Medicaid 

benefits. This would result, petitioners allege, in vaccine compensation being “a detriment to 

Petitioners rather than a benefit.” Fee App. 2. Regardless of petitioners’ interest in making sure 

that their son W.T. does not get removed from Medicaid coverage in Pennsylvania, the issue of 

Medicaid coverage is not encompassed under the Vaccine Act except for the requirement that 

respondent pay any Medicaid lien that exists for past medical expenses to treat W.T.’s vaccine 

injury. 42 U.S.C. § 300aa–15(g). The Vaccine Act is silent as to providing that a vaccinee keep 

his Medicaid coverage for future medical expenses that are not for his vaccine injury (since the 

vaccine award will compensate for his past and future unreimbursable vaccine-related medical 

expenses). No special master in the twenty-five years of the Vaccine Program has awarded fees 

for creating special needs trusts that enable vaccinees to shelter their vaccine damage awards 

from their state’s Medicaid considerations. A special needs trust is neither in the damages 

stipulation nor in the Vaccine Act. Therefore, the amounts petitioners expended to create the 

special needs trust for W.T. and have it authorized in a Pennsylvania court were not “incurred in 

any proceeding on such petition” and are not recoverable under the Vaccine Act.

C. Petitioners’ Counsel’s Professional Duty 

Petitioners claim in Petitioners’ Reply Brief on Attorney Fees and Costs that petitioners’ 

counsel has an obligation under the Model Rules of Professional Conduct to look after all of the 

interests of his clients. Reply 1-2. Due to this obligation, petitioners assert that petitioners’ 

counsel should be compensated for the amount of money it took to create a special needs trust 

and have the Pennsylvania court authorize it. Id. Petitioners’ counsel’s interpreted professional 

duties are not at issue. There is nothing to prevent petitioners from establishing a special needs 

trust. However, the language of the Vaccine Act, 42 U.S.C. § 300aa–15(e)(1), limits the 

attorneys’ fees and costs that petitioners shall receive in the Vaccine Program to those “incurred 

in any proceeding on such petition.” The interpretation of the words “on such petition” means 

that the activities must be related to the vaccine petition. Petitioners’ costs to create a special 

needs trust and have the Pennsylvania court authorize it were not “incurred in any proceeding on 

such petition” and are not recoverable under the Vaccine Act. 
5

IV. Conclusion

The undersigned awards petitioners the following in attorneys’ fees and costs and finds 

the amounts to be reasonable:

a. $26,000.00, representing reimbursement for attorneys’ fees and costs. The award 

shall be in the form of a check made payable jointly to petitioners and Maglio 

Christopher & Toale, PA, in the amount of $26,000.00; and

b. $4,379.40, representing reimbursement for petitioners’ costs establishing Claritza 

Torres as the limited guardian of W.T.’ estate for purposes of the above-captioned 

case. The award shall be in the form of a check for $4,379.40 made payable to 

petitioners.

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.4

IT IS SO ORDERED.

Dated: April 30, 2013 s/ Laura D. Millman

 Laura D. Millman

 Special Master

 

4

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either 

separately or jointly, filing a notice renouncing the right to seek review.