         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0813V
                                   Filed: September 28, 2018
                                         UNPUBLISHED


    J.R. by his parents, MAUREEN
    REVAITIS and CHRIS REVAITIS,
                                                             Special Processing Unit (SPU);
                        Petitioners,                         Attorneys’ Fees and Costs
    v.

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.



Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioners.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.


                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

       On July 8, 2016, petitioners filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioners allege that their minor child, J.R., suffered Guillain-Barré Syndrome
(“GBS”) caused-in-fact by the influenza vaccine he received on August 16, 2013.
Petition at 1. On February 1, 2018, the undersigned issued a decision awarding
compensation to petitioner based on the parties’ stipulation. (ECF No. 35).

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the
action in this case, 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).
        On June 7, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 41). Petitioner requests attorneys’ fees in the amount of $30,109.00 and attorneys’
costs in the amount of $8,679.09. Id. at 3. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. Thus, the total amount requested is $38,788.09.

       On June 21, 2018, respondent filed a response to petitioner’s motion. (ECF No.
42). Respondent has contested one aspect of the requested costs – those associated
with the establishment of a special needs trust. Id. at 1. Respondent argues that the
trust was not incurred on a Vaccine Act petition. 3 (ECF No. 42 at 3). The stipulation did
not request an establishment of a special needs trust. Respondent “respectfully
recommends that the Chief Special Master exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” Id.

        Petitioner’s reply was due by June 28, 2018. On September 12, 2018 petitioner
filed their reply. (ECF No. 43). As the reply was filed untimely, the undersigned shall not
address the argument within the reply.

      The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the overall request appears reasonable, and
the undersigned finds no cause to reduce the requested hours or rates, with the
exception of the requested attorney costs in regards to the special needs trust.

       Other special masters have declined to award costs associated with the
establishment of a special needs trust for an award made under the Vaccine Act. In
Torres, the special master noted that, although creation of a special needs trust would
enable petitioner to retain Medicaid benefits, this issue was not encompassed under the
Vaccine Act. Torres v. Sec’y of Health & Human Servs., No. 09-867V, 2013 WL
2256136, at *3 (Fed. Cl. Spec. Mstr. Apr. 30, 2013). In that case, neither the damages
stipulation nor the Vaccine Act contemplated the need for a special needs trust.
Therefore, the special master found that costs associated with the creation of the trust
were not incurred in any proceeding on the petition. Id.

        A special master reached a similar decision in Alvarado v. Sec’y of Health &
Human Servs., No. 15-02V, 2017 WL 4053419, at *3 (Fed. Cl. Spec. Mstr. Aug. 7,
2017). In Alvarado, the special master noted that “[w]hile the special needs trust was
helpful in addressing petitioner’s concerns and facilitating settlement, the trust was not
an integral part of the proceeding in the Vaccine Program, and was not required in order
for petitioner to receive compensation.” Id., at *3. Accordingly, the special master
concluded the creation of that trust was essentially a post-proceeding cost which was
not authorized under the Act. Id.

3
 In the Vaccine Act, the compensation for attorney’s fees and costs is in regards to amounts that have
been “incurred in any proceeding.” § 15(e).
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       The undersigned finds the rationale of the special masters in Torres and
Alvarado persuasive, and will not reach a contrary conclusion in the instant case.
Neither the Vaccine Act, the damages stipulation or the undersigned’s decision on
contemplates the creation of a special needs trust. Accordingly, costs associated with
the creation of the trust must be disallowed.

         Petitioner retained the services of Ms. Laura Ergood, Esq., to perform work in
establishing both the guardianship and the trust. (ECF No. 41 at 3). In total, petitioner
seeks $5,445.34 in compensation for services provided by Ms. Ergood. Id. at 30-39.
Respondent has warranted that he does not object to costs associated with
establishment of the guardianship, but notes that Ms. Ergood performed work for
establishing both the guardianship and the special needs trust. Respondent finds it is
difficult, if not impossible, to determine exactly how much time Ms. Ergood spent on one
task verses the other. (ECF No. 42 at 3).

        Such an exact determination, however, is not required in awarding attorney’s
fees and costs. See McCulloch v. Sec’y of Health & Human Servs., No. 09–293V , 2015
WL 5634323, at *23 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (“[W]hen awarding attorneys’
fees, special masters may use estimates to achieve ‘rough justice.’”) (citing Fox v. Vice,
131 S.Ct. 2205, 2216 (2011)). A detailed review of the billing records provided by Ms.
Ergood shows a total of 9.25 hours for a total of $2,752.45 4 in services performed and
$1.61 in costs associated with the trust. Therefore, the total request for attorney’s costs
will be reduced by $2,754.06, the amount of time and expenses associated with
establishing the trust.

      The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS IN PART petitioner’s motion for attorneys’ fees and costs.

      Accordingly, the undersigned awards the total of $36,034.03 5 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Lawrence R. Cohan.




4   This amount consists of 8.46 hours at a rate of $295 per hour and 0.79 hours at a rate of $325 per hour.
5This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).

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        The clerk of the court shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




6 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.
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