    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                            No. 15-185V
                                     Filed: December 16, 2016

* * * * * *              *   *   *   *   * * *             UNPUBLISHED
MARY E. FORDE,                             *
                                           *               Special Master Gowen
               Petitioner,                 *
                                           *               Attorneys’ Fees and Costs
v.                                         *
                                           *
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
               Respondent.                 *
                                           *
* * * * * * * * * * * * *
Simina Vourlis, Law Offices of Simina Vourlis, Columbus, OH, for petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS' FEES AND COSTS1

        On February 27, 2015, Mary E. Forde (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving
a tetanus, diphtheria and pertussis vaccine, administered March 1, 2012, she suffered “an allergic
or immunologic reaction and Stevens Johnson Syndrome.” Petition at Preamble, ¶ 12. Ms.
Forde filed her claim and several sets of medical records pro se. The undersigned held an initial
status conference with Ms. Forde on May 21, 2015, and encouraged her to obtain representation
by an attorney with experience in the Vaccine Program. Another status conference with Ms.
Forde was held on December 2, 2015, during which the undersigned discussed the paucity of
records documenting petitioner’s alleged injury of Stevens Johnson Syndrome, and again

1
 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by 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 files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).

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-10 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.
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strongly encouraged her to obtain counsel. See Order, filed Dec. 3, 2015. Ms. Forde thereafter
obtained representation by Simina Vourlis, Esq., who has experience in the Program. A status
conference was held on March 22, 2016, with Ms. Forde, Ms. Vourlis, and Jennifer Reynaud for
respondent. Ms. Vourlis was encouraged to obtain and review the additional medical records
that Ms. Forde contended would provide proof of Stevens Johnson Syndrome and vaccine
causation, and was given an appropriate extension of time to do so.

        On October 5, 2016, another status conference was held with Ms. Forde, Ms. Vourlis, and
respondent’s counsel, during which Ms. Vourlis indicated that she had made a diligent effort to
assemble all of Ms. Forde’s records and had discussed with Ms. Forde that there was not
evidence to substantiate her claims in those records. Transcript of October 5, 2016, status
conference at 2-4. Ms. Forde indicated that she understood there was insufficient evidence on
which to proceed, and indicated that she wished to dismiss her petition so that she could seek
other civil remedies. On October 6, 2016, petitioner moved for a decision dismissing her
petition. A Decision dismissing the petition for insufficient proof was issued October 7, 2016.
On October 24, 2016, the court received a letter directly from Ms. Forde, which the undersigned
treated as a motion for reconsideration of the October 7, 2016, Decision dismissing her petition.
The undersigned issued an Order denying the motion for reconsideration on November 10, 2016.

         On November 15, 2016, petitioner filed an application for attorneys’ fees and costs,
requesting $11,676.50 in attorneys’ fees3 and $92.54 in attorneys’ costs, for a total fees and costs
request of $11,769.04. Petitioner’s (“Pet.”) Application (“App.”) at 1-2. Petitioner’s counsel
states that to her knowledge, petitioner has not incurred any fees or costs for the litigation of this
case, but that petitioner has refused to sign a General Order #9 statement. Id. at 2.

        Respondent filed a response to petitioners’ application on November 30, 2016, stating
that “[r]espondent respectfully recommends that the special master exercise his discretion and
determine a reasonable award for attorneys’ fees and costs.” Respondent’s (“Resp.”) Response
at 3. Petitioner did not file a reply. This matter is now ripe for adjudication.

    I.   Discussion

      a. Good Faith and Reasonable Basis

        Section 15(e) of the Vaccine Act governs attorneys’ fees. 42 U.S.C. § 300aa-15(e).
When awarding compensation on a petition, the special master “shall also award” reasonable
attorney’s fees and costs. Id. at §15(e)(1)(A)-(B). Even 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). Respondent states that she “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this
case,” and the undersigned finds that this claim was brought in good faith and with a reasonable


3
  Petitioner’s application states both that the total sum of attorney and paralegal fees is $11,676.50 and
$10,461.50. See Pet. App. at 1-2. According to the billing record, the correct figure for total attorneys’
fees is $11,676.50. See Pet. App., Ex. 12 at 9.
                                                     2
basis. Resp. Response at 2 (citing 42 U.S.C. § 300aa-15(e)(1)(A)-(B)). Accordingly, petitioner
is entitled to an award of attorneys’ fees and costs.

   b. Reasonable Attorneys’ Fees

         The Federal Circuit has approved 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 “an
initial estimate of a reasonable attorneys’ 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 court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.

         Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate 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 1347-48 (internal quotations omitted). In
determining an award of attorneys’ fees, a court should generally use the forum rate, i.e., the
District of Columbia rate unless the bulk of an attorney’s work is performed outside of the
forum, and where there is a “very significant” difference in compensation rates between the
place where the work was performed and the forum. Id. at 1348-49 (citing Davis County Solid
Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169
F.3d 755, 758 (D.C. Cir. 1999)).

         Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y or Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cl. 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 his
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and 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). A special master need not engage
in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v.
Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).

          i.   Hourly Rates

       Petitioner requests $400 per hour for Ms. Vourlis for work performed in 2015 and $415
per hour for work performed in 2016. Pet. App. at 1; Pet. Ex. 12 at 9. Petitioner requests $135
per hour for paralegal time. Pet. App. at 2; Pet. Ex. 12 at 9.

       The issue of reasonable 2014-2015 forum rates was recently ruled upon by the
undersigned in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323

                                                 3
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). In support of the requested rates, petitioner’s counsel cites
recent cases awarding forum rates pursuant to McCulloch, and the Office of Special Masters
Attorneys’ Forum Hourly Rate Fee Schedule: 2015 – 2016 and. Pet. App., Ex. 13 at 4.
However, petitioner’s counsel does not address the question of whether she is entitled to forum
rates and did not submit evidence regarding prevailing rates in Columbus, Ohio, where her office
is located.

        The undersigned recently determined prevailing rates in the Southern District of Ohio,
which encompasses Columbus, in Jones v. Sec’y of Health & Human Servs., No. 13-279V (Fed.
Cl. Spec. Mstr. Nov. 18, 2016). In that case, the undersigned found that the local rates in the
Southern District of Ohio are well within the forum rate categories that were found reasonable in
McCulloch. Jones, No. 13-279V, at *5. Forum rates should be awarded except where local rates
are very significantly different than forum rates. Avera, 515 F.3d at 1348; Davis County, 169
F.3d at 758; Garrison v. Sec’y of Health & Human Servs., No. 14-762V, 2016 WL 3022076
(Apr. 29, 2016), aff’d, 2016 WL 4784054 (Fed. Cl. 2016). Accordingly, an attorney practicing
in the Southern District of Ohio should be based on forum rates.

       Pursuant to McCulloch, the range of $350 to $425 per hour is reasonable for attorneys
with more than 20 years of experience. McCulloch, 2015 WL 5634323, at *19. Ms. Vourlis has
26 years of experience and has had several cases in the Program. The undersigned finds the
requested rates reasonable.

         ii.   Hours Expended

        Petitioner requests compensation for 25.40 hours of work performed by Ms. Vourlis at
attorney rates and 9 hours of work performed by Ms. Vourlis at paralegal rates. Pet. App., Ex.
12 at 9. On review of the billing record, the undersigned finds the hours expended reasonable.

    c. Costs

        Petitioner requests a total of $92.54 in attorneys’ costs. Pet. App. at 1-2. The requested
costs consist primarily of medical record fees and postage. See Pet. App., Ex. 16. The
undersigned finds the requested costs reasonable.

         Petitioner’s counsel states that petitioner has refused to sign a General Order #9
Statement. Counsel mailed petitioner a General Order #9 form on October 10, 2016, and again
on November 10, 2016. Pet. Ex. 17 at 1, 3. The form was accompanied both time by letters
explaining the form and asking petitioner to provide receipts if she had incurred any costs in the
case. Id. In light of the fact that petitioner has been unresponsive to counsel’s efforts to
communicate with regarding her costs, the undersigned finds that counsel has complied with the
spirit of General Order #9 and that petitioner’s interests were protected in this matter.

 II.   Conclusion




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        Upon review of the documentation of the requested attorneys’ fees and costs, and based
on his experience with the Vaccine Act and its attorneys, the undersigned finds a total of
$11,769.04 reasonable.

        The undersigned awards attorneys’ fees and costs as follows:

            (1) A lump sum of $11,769.04 in the form of a check payable jointly to petitioner
                and petitioner’s counsel of record, Simina Vourlis, Law Offices of Simina
                Vourlis, for attorneys’ fees and costs.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.4

        IT IS SO ORDERED.

                                                          s/Thomas L. Gowen
                                                          Thomas L. Gowen
                                                          Special Master




4
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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