    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                   Filed: September 30, 2019

* * * * * * * * * * * * *  *
GARY NAYLOR,               *                               No. 17-135V
                           *                               Special Master Sanders
     Petitioner,           *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                               Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Jessica A. Olins, Maglio Christopher and Toale, PA, Washington, DC, for Petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, D.C., for Respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS1

        On January 30, 2017, Gary Naylor (“Petitioner”) 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 alleged that the influenza (“flu”) vaccine Petitioner received on October 15, 2015, caused
him to develop a shoulder injury related to vaccine administration (“SIRVA”). On June 3, 2019,
the parties filed a stipulation which the undersigned adopted as her decision awarding
compensation on June 12, 2019. ECF No. 42.

       On June 20, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF No. 46
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $32,001.79

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 definition, 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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’ website 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).
(representing $27,170.00 in fees and $4,831.79 in costs). Fees App. at 2. Pursuant to General Order
No. 9, Petitioner warrants that he has personally incurred $68.95 in costs related to this litigation.
Id. Respondent responded to the motion on June 25, 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. 47). Petitioner also filed a reply on June 25, 2019,
reiterating his belief that the requested amount of fees and costs is reasonable. Reply at 3 (ECF
No. 48).

       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 Circuit 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 “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.

        It is “well within the special master’s discretion” to determine the reasonableness 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 determining 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 reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.

        Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (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


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reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.

       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). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3

        Petitioner requests the following rates of compensation for his attorneys: for Ms. Jessica
Olins, $199.00 per hour for work performed in 2019; for Mr. F. John Caldwell, $356.00 per hour
for work performed in 2016, $367.00 per hour for work performed in 2017, $385.00 per hour for
work performed in 2018, and $400.00 per hour for work performed in 2019; and for Mr. Altom
Maglio, $362.00 per hour for work performed in 2017. Fees App. Ex. 1 at 15. Petitioner also
requests various rates for paralegals ranging from $95.00 per hour to $154.00 per hour, depending
on the year of work and the individual paralegal. Id. These rates are consistent with what these
Maglio firm attorneys and staff have previously been awarded. The undersigned therefore finds
the requested rates to be reasonable.

       b. Hours Expended

         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, the undersigned finds the billed hours (103.6) 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
indicated that he finds any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $27,170.00.

       c. Attorneys’ 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 2018 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.


                                                   3
        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). Petitioner requests
a total of $4,831.79 in attorneys’ costs. This amount is comprised of acquiring medical records,
travel costs, the Court’s filing fee, and expert work performed by Dr. Domenick Sisto in reviewing
medical records and submitting an expert report. Fees App. Ex. 2 at 1-2. Upon review, the
undersigned has noted several inadequacies with Petitioner’s submitted documentation which
necessitate a reduction of costs.

        First, Petitioner has failed to substantiate a large number of costs associated with travel
from Petitioner’s prior counsel to meet with Petitioner. These costs include a rental car, meals,
hotel, and baggage fees. Fees App. Ex. 2 at 1. Petitioner has indicated that these costs have been
split across three total cases. However, Petitioner has failed to provide supporting documentation
for any of these requested costs. Accordingly, they cannot be reimbursed, resulting in a reduction
of $457.86.

        Second, Petitioner requests $3,395.00 as reimbursement for work performed by Dr. Sisto.
Pursuant to the Guidelines for Practice Under the National Vaccine Injury Compensation Program
(“Guidelines”), Petitioner’s must provide the Court with an hourly rate for the expert’s services
and contemporaneous, dated records of the work performed. Guidelines at 69.4 In this case,
Petitioner has failed to provide any of this necessary information. Given the relatively modest
amount requested and the overall importance of Dr. Sisto’s work in helping this case reach a
satisfactory conclusion for both parties, the undersigned finds the overall amount reasonable in
light of the work performed on the case. However, the undersigned notes that Petitioner’s attempt
to support this cost was entirely deficient, and counsel is on notice that failure to provide adequate
documentation in the future will result in non-reimbursement.

        Accordingly, for the reasons noted above, the undersigned finds that Petitioner is entitled
to a final award of attorneys’ costs of $4,373.93.

       d. Petitioner’s Costs

       Pursuant to General Order No. 9, Petitioner states that he has personally incurred costs of
$68.95 for shipping documents. Fees App. Ex. 3. Petitioner has provided adequate documentation
to support this cost, and it shall be fully reimbursed.

II.    Conclusion

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




4
 The Guidelines are available at
http://www.cofc.uscourts.gov/sites/default/files/GUIDELINES%20FOR%20PRACTICE%20-
%208.22.2019.pdf.

                                                  4
    Attorneys’ Fees Requested                                             $27,170.00
    (Reduction to Fees)                                                        -
    Total Attorneys’ Fees Awarded                                         $27,170.00

    Attorneys’ Costs Requested                                             $4,831.79
    (Reduction of Costs)                                                  - ($457.86)
    Total Attorneys’ Costs Awarded                                         $4,373.93

    Total Attorneys’ Fees and Costs                                       $31,543.93

    Petitioner’s Costs                                                      $68.95

    Total Amount Awarded                                                  $31,612.88

        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 Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Accordingly, the undersigned
awards a lump sum in the amount of $31,543.93, representing reimbursement for
Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and his
attorney, Ms. Jessica Olins, and a lump sum in the amount of $68.95, representing
reimbursement for 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 the
Court shall enter judgment in accordance herewith.5

          IT IS SO ORDERED.

                                                 s/Herbrina D. Sanders
                                                 Herbrina D. Sanders
                                                 Special Master




5
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

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