    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                        No. 15-1293V
                                  Filed: September 20, 2017

************************************                 Special Master Sanders
ANA YURICEK, as Administratrix of    *
the Estate of JEREMY YURICEK,        *               Attorneys’ Fees and Costs; Adjusted Hourly
Deceased, and ANA YURICEK,           *               Rates.
Individually,                        *
                                     *
                    Petitioner,      *
                                     *
 v.                                  *
                                     *
SECRETARY OF HEALTH                  *
AND HUMAN SERVICES,                  *
                                     *
                    Respondent.      *
                                     *
************************************

Seth D. Bader, Bloomberg, Steinberg, and Bader, New York, NY, for Petitioner.
Justine E. Walters, United States Department of Justice, Washington, DC, for Respondent.

                     DECISION ON ATTORNEYS’ FEES AND COSTS1

        On October 30, 2015, Ana Yuricek (“Petitioner”), on behalf of herself and as
administratrix of the estate of Jeremy Yuricek (“Mr. Yuricek”), petitioned for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).2
Petitioner alleged that the administration of the influenza (“flu”) vaccine administered on

1
 This decision shall be posted 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). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
  The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.
October 4, 2013, caused Mr. Yuricek to develop acute disseminated encephalomyelitis
(“ADEM”), resulting in his death. Petition at Preamble, ECF No. 1. On August 1, 2016, Special
Master Hamilton-Fieldman issued a decision pursuant to the parties’ Joint Stipulation on
Damages. Decision, ECF No. 25.

        On August 4, 2017, Petitioner filed an application for attorneys’ fees and costs.
Petitioner requested attorneys’ fees in the amount of $49,790 and attorneys’ costs in the amount
of $13,962.85. See Pet’r’s Mot. Att’ys’ Fees and Costs at 8, ECF No. 34. Petitioner also
requested costs personally incurred in the course of this litigation in the amount of $1,046.40. Id.
at 9. Respondent indicated that “[t]o the extent the Special Master is treating [P]etitioner’s
request for attorneys’ fees and costs as a motion that requires a response from [R]espondent . . .
Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Resp’t’s Resp. at 2 (Aug. 18, 2017), ECF No. 35. Respondent recommended
that the undersigned exercise her discretion and determine a reasonable award for attorneys’ fees
and costs. Id. at 3. Petitioner filed a brief reply shortly thereafter reiterating her argument for an
award of attorneys’ fees and costs. Pet’r’s Reply (Aug. 18, 2017), ECF No. 36.

       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 numbers 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).

        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. The petitioner bears the burden of providing adequate
evidence to prove that the requested hourly rate is reasonable. Id.

           a. Hourly Rates
        Special Master Gowen determined the reasonable forum rate ranges for attorneys with
varying years of experience. 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). Pursuant to McCulloch, a forum attorney with
more than 20 years of experience may be awarded $350 to $425 per hour. Id. An attorney with
less than four years of experience, on the other hand, has a reasonable hourly rate between $150
and $225. Id.

        In the instant case, Petitioner’s attorney, Mr. Bader, requests a rate of $450 for work
performed from 2014 to 2016. Pet’r’s Mot. at 8. This rate requires adjustment. Mr. Bader has
been a member of the State Bar of New York and New Jersey since 1984. Id. at 7. In 2014, Mr.
Bader had been practicing law for 30 years, but had little experience in the Vaccine Program.
Under the Court’s Fee Schedule,3 an attorney with 20-30 years of experience is entitled to hourly
rates between $350-$415 for work performed in 2015 and 2016. 4 The requested rate of $450 is
not within this range. Based on Mr. Bader’s limited experience with Vaccine Program cases and
30 years of practice, the undersigned finds $385 to be a reasonable rate for work performed from
2014-2016. Mr. Bader’s rate for 2017 also requires some adjustment. The Court’s Fee Schedule
for 2017 provides that attorneys with the most experience (31+ years), may reasonably be
awarded $394-$440. 5 The undersigned will award Mr. Bader $395 for 2017, based on his
minimal experience in the Vaccine Program and more than 31 years of practice. The total fee
reduction for Mr. Bader’s hourly rate is $6,367.50.

        Mr. Bader also requested an hourly rate of $200 for travel time in 2016 and 2017. ECF
No. 34-2 at 4, 7. Following Gruber, the undersigned will grant half the attorney’s rate for
traveling, where the attorney does not provide documentation that she or he performed work
while traveling. 91 Fed. Cl. 773, 791 (2010); see also Amani v. Sec’y of Health & Human Servs.,
No. 14-150V, 2017 WL 772536, at *5 (Fed. Cl. Spec. Mstr. Jan. 31, 2017). Therefore, for travel
time in 2016, Mr. Bader’s hourly rate is reduced to $192.50; for 2017, the rate is reduced to
$197.50. The total fee reduction for travel time is $87.75.



3
 The 2015-2016 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2015-
2016.pdf. The hourly rates contained in the 2015-2016 Fee Schedule are updated from the
decision McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015).
4
 Since the Court did not have a fee schedule in 2014, the Court’s 2015-2016 Fee Schedule is
applied to Mr. Bader’s hourly rate for 2014.
5
 The 2017 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The hourly rates contained in the 2017 Fee Schedule are updated from the decision McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015).
           b. Hours Expended

        Petitioner requests compensation for 117.2 hours entered by Mr. Bader, which includes
12.9 hours for travel time. Petitioner also requests compensation for 2.2 hours entered by Mr.
Bader’s paralegal. See generally Pet’r’s Mot. Petitioner submitted adequate billing logs listing
the date, amount of time, individual, and the nature of each task. Based on the lack of objection
from Respondent and my review of Petitioner’s motion, I find that the hours expended are
reasonable and should be awarded in full.

           c. Costs

         Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
$13,962.85 in attorneys’ costs to Bloomberg, Steinberg, and Bader (“BS&B”). These costs are
associated with expert expenses, medical research expenses, postage, travel for mediation, and
filing fees. See generally ECF No. 34-2. Petitioner also requests $1,046.40 for costs personally
incurred, which are incidental to her appointment as Guardian of the Property of each of her
children. ECF No. 34-5. Lastly, Petitioner requests the following for services related to her
appointment as administratrix of her husband’s estate and as Guardian of the Property of her
children: $3,500 to Ron Katter, Esq.; $10,115.63 to Sax, Sax & Caplan, Esqs.; and $413.15 to
Schulman Blitz, LLP. The undersigned finds them to be reasonable and awards them in full.

   II. Conclusion

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

       Attorneys’ Fees Requested                                             $49,790
       (Reduction to Mr. Bader’s Hourly Rate from 2014)                      -$481
       (Reduction to Mr. Bader’s Hourly Rate from 2015)                      -$747.50
       (Reduction to Mr. Bader’s Hourly Rate from 2016)                      -$3,423
       (Reduction to Mr. Bader’s Hourly Rate for Travel from 2016)           -$83.25
       (Reduction to Mr. Bader’s Hourly Rate in 2017)                        -$1,716
       (Reduction to Mr. Bader’s Hourly Rate for Travel from 2017)           -$4.50
       Total Attorneys’ Fees Awarded                                         $43,334.75

       Attorneys’ Costs Awarded                                              $13,962.85

       Total Attorneys’ Fees and Costs Awarded                               $57,297.60

       The undersigned has reviewed Petitioner’s counsel’s detailed records of time and
expenses incurred in this case, and they are reasonable. In accordance with the Vaccine Act, 42
U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to attorneys’ fees
and costs. Accordingly, the undersigned hereby awards the following amounts: (1)
$57,297.60, in the form of a check made payable jointly to Petitioner and Petitioner’s
counsel, Seth D. Bader, of Bloomberg, Steinberg, & Bader; (2) $3,500, in the form of a
check made payable jointly to Petitioner and Ron Katter, Esq.; (3) $10,115.63, in the form
of a check made payable jointly to Petitioner and Sax, Sax & Caplan, Esqs.; (4) $413.15, in
the form of a check made payable jointly to Petitioner and Schulman Blitz, LLP; and (5)
$1,046.40, in the form of a check made payable to Petitioner only. 6 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.7

       IT IS SO ORDERED.

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




6
  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” 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).
7
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
