# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS (Filed: October 30, 2020 )

* * * * * * * * * * * * * * ALLISON FERRINI, parent and *

n atural guardian of minor, W.F.

, * UNPUBLISHED

* No. 18

- 1628V

Petitioner

, *

* Special Master Dorsey

v. * * Attorney s’ Fees and Costs

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

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

Bridget C

. McCullough

, Muller Brazil

, LLP, Dresher, PA for petitioner

. Ronalda E

. Kosh , U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On October 23, 2018, Allison Ferrini (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 2 on behalf of her minor child, W.F., alleging that W.F. suffered Guillain

- Barr é s yndrome as a result of an influenza vaccine administered on November 13, 2015. Petition at 1. On June 23 , 2020, Respondent filed his proffer which the undersigned adopted into her decision that same day. (ECF No. 44 ).

1 This D ecision 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 internet. 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 redaction “ 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 unwarr anted invasion of privacy.” Vaccine Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id

.

2 The National 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 July 1 5 , 2020

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

. Motion for Attorney Fees and Costs (ECF No. 4 8 )

. Petitioner request s compensa tion in the amount of $ 12,848.42 , representing $ 11,975.10 i n attorneys’ fees and $ 873.32 in costs. Fees App. at 2

. Pursuant to General Order No. 9, petitioner warrants that he has not personally incurred any costs in pursuit of h is claim for compensation. Id. Respondent filed his response on July 27

, 2020, indicating that he “ is satisfied the statutory requirements fo r an award of attorneys’ fees

and costs are met in this case .” Response at 2 (ECF No. 50 )

. 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 $ 12,848.42

.

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). Here, because petitioner was awarded compensation pursuant to a proffer, she is entitled to an 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 deter mine 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

Petitioner requests rates for counsel, Ms. Bridget C. McCullough and the attorneys of Muller Brazil, LLP, between $225

- $317 per hour for work performed between 2017

– 2020 and for paralegals between $125

- $165 . Fees App. At 6

- 12. The reque sted rates are consistent with

what Ms. McCullough and her fellow attorneys and staff have previously been awarded for Vaccine Program work, and the undersigned finds them to be reasonable for the work in this

case.

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 objection able. R espondent also has not indicated that he finds any of the entries to be objectionable either. Accordingly, petitioner is entitled to the full amount of attorneys’ fees sought, $ 11,975.10

.

b. Attorneys’ Costs

Petition er requests a total of $ 873.32 in attorneys’ costs. This amount is comprised of acquiring medical records

, the Court’s filing fee and postage

. Fees App. at 14

. Petitioner has provided adequate documentation supporting these costs and they are reasonable in the undersigned’s experience.

II. Conclusion

In accordance with the foregoing, p etitioner’s motion for attorneys’ fees and costs is

GRANTED

. Accordingly, th e undersigned awards a l ump sum of $ 12,848.42 , representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to

p etitioner and p etitioner’s counsel, Bridget Candace McCullough

.4

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith. 3

s/Nora Beth Dorsey Nora Beth Dorsey Special Master

3 Entry of judgment c an be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).