                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         Filed: October 21, 2019

* * * * * * * *                     *    *    *   *    *
ANDREW CAMPBELL,                                       *                 UNPUBLISHED
                                                       *
                  Petitioner,                          *                 No. 16-996V
                                                       *
v.                                                     *                 Special Master Gowen
                                                       *
SECRETARY OF HEALTH                                    *                 Attorneys’ Fees and Costs; Expert
AND HUMAN SERVICES,                                    *                 Rate; Expert Hours Expended.
                                                       *
                  Respondent.                          *
*      * *   *    * * * *           *    *    *   *    *

Diana L. Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Alexis B. Babcock, United States Department of Justice, Washington, DC, for respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On August 5, 2019, Andrew Campbell (“petitioner”) filed a motion for attorneys’ fees
and costs. For the reasons discussed below, petitioner is awarded $52.114.54 in attorneys’ fees
and costs and $568.41 in petitioner’s costs.

     I.   Procedural History

       On August 12, 2016, petitioner, acting pro se, filed a petition for compensation under the
National Vaccine Injury Compensation Program.2 Petition and Petitioner’s Exhibits (“Pet. Exs.”)


1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. 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.A. §
300aa.
1-19 (ECF No. 1).3 Petitioner alleged that as a result of a varicella vaccination received on
August 14, 2013, he sustained injuries including inflammatory bowel disease (“IBD”), which
was later diagnosed as Crohn’s disease. Id. at Preamble. The case was assigned to my docket.

        On October 5, 2016, an initial status conference was held. I encouraged petitioner to
retain an attorney. Initial Order filed October 6, 2016 (ECF No. 6). On January 30, 2017,
petitioner filed a motion to end his pro se status and to be represented by attorney Diana L.
Stadelnikas. Pet. Motion to Substitute Counsel filed January 30, 2017 (ECF No. 10). I granted
the motion that same day. Order filed January 30, 2017 (ECF No. 11). I held another status
conference and directed petitioner, through his counsel, to file additional documentation
supporting the claim. Scheduling Order filed March 24, 2017 (ECF No. 13).

       Afterwards, respondent filed a status report providing that respondent had reviewed the
medical records and affidavits filed to date and intended to defend the claim. Status Report filed
August 24, 2017 (ECF No. 21). In accordance with my orders, petitioner filed an expert report
from Dr. John J. Santoro. Pet. Ex. 31 filed May 24, 2018 (ECF No. 30). Respondent filed a
responsive expert report from Dr. Chris A. Liacouras. Resp. Ex. A filed August 22, 2018 (ECF
No. 36).

       During a status conference on September 4, 2018, petitioner raised an oral motion to
exclude respondent’s expert. Scheduling Order filed September 5, 2018 (ECF No. 37); see also
Resp. Response filed October 5, 2018 (ECF No. 39). Petitioner later withdraw the motion to
exclude. Motion filed November 6, 2018 (ECF No. 42); Scheduling Order filed November 7,
2018 (ECF No. 43). On March 4, 2019, respondent filed a report pursuant to Vaccine Rule 4(c),
in which respondent recommended against compensation. Respondent’s Report (“Resp. Rept.”)
(ECF No. 49).

         On April 3, 2019, I held a status conference pursuant to Vaccine Rule 5. I discussed that
in his initial report, petitioner’s expert Dr. Santoro did not mention petitioner’s history of
gastrointestinal problems prior to receiving the varicella vaccine. I discussed the likelihood that
petitioner’s Crohn’s disease began before the varicella vaccine, which would limit petitioner to a
significant aggravation claim and would necessitate a supplemental expert report. I directed
petitioner, counsel, and the expert to discuss these issues. Scheduling Order filed April 4, 2019
(ECF No. 50). Petitioner did not file a supplemental expert report. Rather, he then filed a
motion for a decision dismissing the petition. Pet. Mot. filed May 20, 2019 (ECF No. 12). I
subsequently granted the motion and dismissed the case for insufficient proof. Decision filed
May 28, 2019 (ECF No. 59); see also Judgment entered June 28, 2019 (ECF No. 62).

      On August 5, 2019, petitioner filed a motion for attorneys’ fees and costs. Petitioner’s
Fee Application (“Fee App.”) (ECF No. 65). Petitioner requested $39,781.00 in attorneys’ fees,
$19,133.54 in attorneys’ costs, and $568.41 in petitioner’s costs. Fee App. Tab 1 at 21, Tab 2 at

3
 The petition was originally filed when petitioner was a minor, by his mother. The caption was subsequently
changed to reflect that petitioner was no longer a minor and should be listed as the petitioner in his own right.
Petitioner’s Motion to Amend Case Caption filed July 18, 2019 (ECF No. 34); Order filed July 19, 2018 (ECF No.
35).


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2, Tab 3 at 1. On August 20, 2019, respondent filed a response. Resp. Response (ECF No. 66).
Respondent was “satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case.” Id. at 2. Respondent did not raise any specific objections to the hourly
rates, time expended, or costs incurred but instead, “respectfully recommend[ed] that the special
master exercise his discretion and determine a reasonable award for attorneys’ fees and costs.”
Id. at 3. On August 20, 2019, petitioner filed a reply. Pet. Reply (ECF No. 67). This matter is
now ripe for adjudication.

 II.   Legal Standard

        Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable
attorneys’ fees and costs “if the special master determines that the petition was brought in good
faith and there was a reasonable basis for which the petition was brought” even when a petition
does not result in compensation for petitioner. § 15(e)(1). In this case, although respondent
recommended against compensation, respondent provided that the statutory requirements for an
award of attorneys’ fees and costs were met. Respondent did not question the existence of either
good faith or reasonable basis for this claim. In light of respondent’s lack of specific objection
and my review of the case, I find that these requirements were indeed met.

        The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. §
300aa-15(e)(1). The Federal Circuit has approved the use of 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, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first
determines the reasonable hourly rate, which is then applied to the number of hours reasonably
expended on the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).

        Petitioners “bea[r] the burden of establishing [that] the hours expended, the rates
charged, and the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs.,
24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented
when the motion is filed. Id. at 484 n.1. The special master has the discretion to reduce awards
sua sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008). Special masters may look to their experience
and judgment to reduce the number of hours billed to a level they find reasonable for the work
performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A
line-by-line evaluation of the billing records is not required. Wasson, 24 Cl. Ct., aff’d in relevant
part, 988 F.2d 131 (Fed Cir. 1993) (per curiam).

III.   Discussion

           A. Reasonable Hourly Rates

        A “reasonable hourly rate” is defined as the rate ““prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera,
515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n. 11). In general, this rate is based on “the
forum rate for the District of Columbia” rather than “the rate in the geographic area of the


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practice of petitioner's attorney.” Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381,
1384 (Fed. Cir. 2011) (citing Avera, 515 F.3d at 1349). There is a “limited exception” that
provides for attorney's fees to be awarded at local hourly rates when “the bulk of the attorney's
work is done outside the forum jurisdiction” and “there is a very significant difference” between
the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See
Hall v. Sec’y of Health & Human Servs. 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid
Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999).

        In cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293-V, 2015 WL 5634323 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015). All current special masters have adopted the reasoning in McCulloch
for determining reasonable hourly rates for attorneys practicing in the Vaccine Program. The
Office of Special Masters has published hourly rate fee scheduled based on McCulloch and
updated for subsequent years.4

        In this case, petitioner requested that his attorney of record Ms. Diana Stadelnikas be
awarded $372.00 per hour for work performed in 2017, $396.00 per hour in 2018, and $415.00
per hour in 2019. He requested that attorney Altom Maglio be awarded $362.00 per hour in
2017 and $381.00 per hour in 2018. He requested that various paralegals received $145.00 per
hour in 2017, $148.00 per hour in 2018, and $154.00 in 2019. Finally, he requested that a
paralegal specializing in medical records received $140.00 per hour in 2018 and $145.00 per
hour in 2019. Fee App., Tab 1 at 21. I and other special masters have previously awarded these
rates. See, e.g., Childree v. Sec’y of Health & Human Servs., No. 17-484V, 2019 WL 4911068
(Fed. Cl. Spec. Mstr. Sept. 30, 2019); Colapietro v. Sec’y of Health & Human Servs., No. 17-
785V, 2019 WL 4415741 (Fed. Cl. Spec. Mstr. Aug. 13, 2019); Smith v. Sec’y of Health &
Human Servs., No. 15-33V, 2019 WL 2246728 (Fed. Cl. Spec. Mstr. May 13, 2019). I find that
they are also reasonable and should be awarded in the present case.

               B. Reasonable Hours Expended

       The second factor in the lodestar formula is a reasonable number of hours. Reasonable
hours are not excessive, redundant, or otherwise unnecessary. Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In this case, respondent did not directly
challenge the nature of any of the work or the total hours expended. Upon review, I find that the
hours are generally reasonable and adequately documented. Accordingly, they are awarded
without adjustment. Therefore, petitioner is awarded $39,781.00 in attorneys’ fees.

               C. Reasonable Attorneys’ Costs

       Like attorneys’ fees, costs incurred – by counsel or the petitioner himself – must also be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cir. 1992).
Here, petitioner requested attorneys’ costs totaling $19,133.54. These include the costs of

4
    OSM Attorneys’ Forum Hourly Rate Fee Schedules, at http://www.cofc.uscourts.gov/node/2914.


                                                        4
obtaining medical records, medical literature, and postage. Fee App., Tab 2 at 1-34, 40-69.
These are adequately documented and generally reasonable. Thus, they are awarded without
adjustment.

        The most significant category of costs requested in this case stem from petitioner’s
expert, Dr. John Santoro. Fee App., Tab 2 at 35-39, 70. He requested $500 per hour for 36
hours of work, for a total request of $18,000.00. Upon review, it seems that Dr. Santoro has
limited experience in the Vaccine Program. He has only received payment in two prior cases, in
which the special masters consistently found that a more reasonable rate for Dr. Santoro was
$400.00 per hour. Carda v. Sec’y of Health & Human Servs., No. 14-191V, 2016 WL 5224406
(Fed. Cl. Spec. Mstr. Aug. 19, 2016); Carda, 2017 WL 1709707 (Fed. Cl. Spec. Mstr. March 23,
2017); Ploughe v. Sec’y of Health & Human Servs., No. 14-626V, 2017 WL 4455632 (Fed. Cl.
Spec. Mstr. Sept. 11, 2017). In the case before me, I do not find that Dr. Santoro’s experience,
qualifications, and/ or quality of work have significantly changed to merit an increased rate.
Accordingly, I will also award Dr. Santoro $400.00 per hour. This results in a reduction of
$3,600.00.

        Dr. Santoro billed a total of 36 hours on this case. This is made up of 5 hours for
“retainer initial case review and case conference/ discussion”, 10 hours for “case records
comprehensive review”, 17 hours on “literature research and review”, 3 hours on “letter [i.e.,
expert report] preparation, correction, and revision”, and 1 hour on “pre- & post- letter [i.e.,
expert report] phone conferences.” Fee App., Tab 2 at 70. Dr. Santoro’s first and only expert
report submitted in this case contained a helpful background information on inflammatory bowel
disease (IBD), Crohn’s disease, and ulcerative colitis. He cited relevant literature and provided
an analysis under the Althen prongs for proving causation-in-fact. Unfortunately, Dr. Santoro
did not seem to review petitioner’s medical records. His “brief summary of the case” appears to
have been copied and pasted from the petition (filed pro se, prior to the retention of counsel and
the expert). Compare Petition to Ex. 31 at 2-5. Therefore, Dr. Santoro did not apply his own
medical expertise to summarizing the medical records and drawing out the most significant facts.
Additionally, Dr. Santoro failed to address petitioner’s pre-vaccination history of gastrointestinal
problems. As discussed at the Rule 5 status conference, this omission “weaken[ed] [Dr.
Santoro’s] opinion supporting vaccine causation. Scheduling Order (ECF No. 50) at 2. Because
Dr. Santoro’s report suggests that he did not spend significant time reviewing the medical
records, I will deduct 8 hours from his invoice. This results in a further reduction of
$3,200.00. Therefore, petitioner is awarded a total $12,333.54 in attorneys’ costs.

           D. Reasonable Petitioner’s Costs

        Petitioner submitted a statement in compliance with General Order #9 which states that
petitioner personally incurred costs related to the litigation of this matter in the amount of
$568.41. Fee App., Tab 3 at 1. These costs are adequately documented and generally
reasonable. Fee App., Tab 3 at 2-3. Accordingly, petitioner is reimbursed for costs in the
amount of $568.41.




                                                 5
IV.     Conclusion

    In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is
GRANTED. I award the following reasonable attorneys’ fees and costs:

        Attorneys’ Fees Awarded                                                  $39,781.00

        Attorneys’ Costs Requested                                               $19,133.54
        Reduction (Expert Rate)                                                 -$ 3,600.00
        Reduction (Expert Hours)                                                -$ 3,200.00
        Attorneys’ Costs Awarded                                                 $12,333.54

        Attorneys’ Fees and Costs Awarded                                        $52,114.54

        Petitioner’s Costs Awarded                                               $    568.41

        Accordingly, I award the following:

        1) A lump sum in the amount of $52.114.54, representing reimbursement for
           attorneys’ fees and costs, in the form of a check payable jointly to petitioner and
           petitioner’s counsel Diana L. Stadelnikas of Maglio, Christopher & Toale PA.5

        2) A lump sum in the amount of $568.41, representing reimbursement for the costs
           petitioner personally incurred in the prosecution of this claim, in the form of a
           check payable solely 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.6

        IT IS SO ORDERED.
                                                                       s/Thomas L. Gowen
                                                                       Thomas L. Gowen
                                                                       Special Master




5
  This 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,” and fees for legal services rendered. Furthermore, Section 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).

6
 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).


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