                 In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 15-1590V
                                          (not to be published)

*************************                                                 Special Master Corcoran
SANDRA CRAIG,                               *
as Personal Representative of the Estate of *
MELVIN CRAIG,                               *
                                            *
                     Petitioner,            *                             Filed: January 11, 2019
                                            *
              v.                            *                             Decision; Final Fees and Costs.
                                            *
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
                     Respondent.            *
                                            *
*************************

Franklin J. Caldwell, Jr., Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner.

Robert P. Coleman, U.S. Dep’t of Justice, Washington, DC, for Respondent.


          DECISION GRANTING AWARD OF ATTORNEY’S FEES AND COSTS1

          On December 30, 2015, Melvin Craig filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Sandra Craig appeared
later in the action as personal representative of Mr. Craig’s estate after Mr. Craig’s death. Petitioner
alleged that Mr. Craig suffered from transverse myelitis (“TM”), and subsequently died, as a result
of receiving his influenza vaccine on October 17, 2014. The parties ultimately agreed that the

1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen 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 files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available.
Id
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
issues before them could be informally resolved and submitted a stipulation for damages on
November 20, 2018 (ECF No. 45), which I adopted by decision that same day (ECF No. 46).

        Petitioner has now filed a motion requesting final attorney’s fees and costs. See Motion for
Attorney’s Fees, dated Dec. 20, 2018 (ECF No. 50) (“Fees App.”). Petitioner requests
reimbursement of attorney’s fees and costs in the total amount of $80,232.48 (representing
$62,859.10 in attorney’s fees, plus $17,373.38 in costs). Id. at 2-3. In accordance with General
Order No. 9, Petitioner indicated that she incurred no personal expenses related to the matter. Ex.
57 at 1. Respondent filed a document reacting to the fees request on December 21, 2018, stating
that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, but deferring to my discretion the determination of the amount to be awarded. ECF
No. 51 at 2-3. Petitioner filed a reply on December 26, 2018, labeling Respondent’s response
(recommending that I exercise my discretion in determining a fee award) as “overly burdensome”
and prejudicial to Petitioner. See Reply, filed Dec. 26, 2018 (ECF No. 52) at 2-3. Petitioner thus
asserted that Respondent’s response should be interpreted as an “unopposed” response, giving me
the authority to grant the fee award “without further analysis.” Id. at 2.

        Vaccine Program attorneys are entitled to a fees award in successful cases. Determining
the appropriate amount of that award is a two-part process. The first part involves application of
the lodestar method – “multiplying the number of hours reasonably expended 3 on the litigation
times a reasonable hourly rate.” Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-
48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves
adjusting the lodestar calculation up or down to take relevant factors into consideration. Avera,
515 F.3d at 1348. This standard for calculating a fee award is considered applicable in most cases
where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37
(1983).

3
  An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.

 In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)).

                                                           2
        Petitioner asks that her counsel, Mr. Franklin J. Caldwell, and his paralegals be reimbursed
at varying rates for work performed from 2015-2018. Petitioner requests $300 per hour for Mr.
Caldwell’s work in 2015, with increases to $356 per hour in 2016, $367 per hour in 2017, and
$385 per hour in 2018. Ex. 55 at 20. For the work of attorney Diana Stadelnikas, Petitioner requests
$300 per hour for work completed in 2014. Id. Petitioner also requests compensation for the work
of several different paralegals for work completed in 2014-2018, with per-hour rates ranging from
$135-148. Id. Finally, for the work of one law clerk in 2015, Petitioner requests $150 per hour. Id.

        In my past decisions, I have determined that Maglio Firm attorneys like Mr. Caldwell are
entitled to forum rates. See, e.g., Dezern v. Sec’y of Health & Human Servs., No. 13-643, 2016
WL 6678496 (Fed. Cl. Spec. Mstr. Oct. 14, 2016). This determination is also consistent with
decisions issued by other special masters. See, e.g., O’Neil v. Sec’y of Heath & Human Servs., No.
08-243V, 2015 WL 2399211 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). The hourly rates requested
herein by Mr. Caldwell, Ms. Stadelnikas, and Maglio Firm paralegals are also consistent with my
prior decisions and those awarded by other special masters, as well as the forum rates set by the
Office of Special Masters,4 and I will likewise award them. See, e.g., Roetto v. Sec’y of Health &
Human Servs., No. 16-018V, 2018 WL 3031026, at *1 (Fed. Cl. Spec. Mstr. Mar. 29, 2018);
Williams v. Sec’y of Health & Human Servs., No. 14-1209V, 2017 WL 2927308, at *1 (Fed. Cl.
Spec. Mstr. June 5, 2017); Bell-O’Neal v. Sec’y of Health & Human Servs., No. 13-835V, 2017
WL 1739206, at *1 (Fed. Cl. Spec. Mstr. Apr. 4, 2017); Dezern, 2016 WL 6678496, at *7-8; see
also Ritchie v. Sec’y of Health & Human Servs., No. 16-514V, 2018 WL 2224203, at *2 (Fed. Cl.
Spec. Mstr. Mar. 23, 2018) (awarding the relevant paralegal rates).

        In addition, the majority of the hours expended on this matter by counsel appear to be
reasonable for a case that lasted over three years and resulted in a successful settlement. This case
has also proceeded in a timely fashion, and Petitioner’s counsel efficiently used his time to resolve
the case. I do not find any particular billing entries to be objectionable, nor has Respondent
identified any as such. Therefore, the requested hours will be reimbursed in full.

        Petitioner also requests that counsel be reimbursed for $17,373.38 in costs. Ex. 56 at 1-2.
The bulk of the amount ($15,250.00) is requested for an expert review by Dr. Kazim Sheikh for
30.5 hours of work at rate of $500 per hour. Id. at 2, 28-29. The remainder represents ordinary
Vaccine Program litigation costs (including the filing fee, medical records requests, postage costs,
and travel expenses). Id. at 1-2.




4
  See Office of Special Masters Attorneys’ Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914
(last accessed on Jan. 11, 2019).
                                                      3
        Upon my review of the billing record, the costs expended on this matter by counsel appear
to be reasonable, and Respondent did not identify any entries as objectionable. Dr. Sheikh’s rate
is also consistent with that awarded to him in my past decisions. See, e.g., Robinson v. Sec’y of
Health & Human Servs., No. 15-967V, 2018 WL 5629850, at *3 (Fed. Cl. Spec. Mstr. Sept. 12,
2018). I find the hours billed by Dr. Sheikh to be reasonable as well. Thus, the requested litigation
costs will be awarded in full.

        Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of a fees awards, and based on the foregoing, I hereby GRANT Petitioner’s Motion for Final
Attorney’s Fees and Costs, and award a total of $80,232.48, in the form of a check jointly payable
to Petitioner and Petitioner’s counsel, Mr. Franklin Caldwell, Esq. In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT
in accordance with the terms of this decision.5


         IT IS SO ORDERED.

                                                                s/ Brian H. Corcoran
                                                                Brian H. Corcoran
                                                                Special Master




5
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
                                                           4
