    In the United States Court of Federal Claims
                           OFFICE OF SPECIAL MASTERS
                                    Filed: February 21, 2017
                                          No. 15-253V

*************************
SCOTT SICILIANO and KATHLEEN    *
SICILIANO, on behalf of E.S.,   *
                                *                    UNPUBLISHED
                   Petitioners, *
v.                              *                    Special Master Gowen
                                *
SECRETARY OF HEALTH             *                    Attorneys’ Fees and Costs
AND HUMAN SERVICES,             *                    Adjustment to Paralegal Rate
                                *
                   Respondent.  *
*************************

Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for petitioners.
Christine M. Becer, United States Department of Justice, Washington, DC, for respondent.

               DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

       On March 11, 2015, Scott Siciliano and Kathleen Siciliano (“petitioners”) filed a petition
on behalf of their minor daughter, E.S., pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioners alleged that E.S. developed Kawasaki
disease as a result of receiving a Haemophilus Influenzae Type-B (“Hib”) vaccination on January
23, 2013. Stipulation at ¶ 2, 4. On August 31, 2016, the undersigned issued a decision awarding
compensation to petitioners based on the parties’ stipulation. ECF No. 32.


1
  Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision 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), petitioners have 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,
he will delete such material from public access.
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.

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        On February 5, 2017, petitioners filed a motion for attorneys’ fees and costs. Petitioners’
Motion (“Pet’rs’ Mot.”), ECF No. 37. Petitioners request attorneys’ fees in the amount of
$20,197.28 and attorneys’ costs in the amount of $5,867.74, for a total amount of $26,065.02.
Petitioners had previously filed their signed statement that they did not incur any fees or costs
related to the prosecution of this case, in accordance with General Order #9. See General Order
#9 Statement, filed on August 22, 2016. ECF No. 30.

        On February 17, 2017, respondent filed a response to petitioners’ motion. ECF No. 38.
Respondent states he is “satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Id. at 2. He “respectfully recommends that the Special Master
exercise his discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

       For the reasons discussed below, the undersigned awards petitioners $20,040.31 in
attorneys’ fees and $5,867.74 in attorneys’ costs, for a total award of $25,908.05.

  I.   Reasonable Attorneys’ Fees and Costs

        Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). In
the present case, petitioners were awarded compensation pursuant to the terms of a joint
stipulation. Therefore, petitioners are entitled to an award of reasonable attorneys’ fees and
costs.

         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. In determining an award of
attorneys' fees, a court should generally use the forum rate, i.e., the District of Columbia rate. Id.
at 1348. However, an exception to the forum rule applies where 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 1349
(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 of Health & Human Servs., 3
F.3d 1517, 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The requirement

                                                  2
that attorneys’ fees be reasonable also applies to costs. McCulloch v. Sec’y of Health & Human
Servs., No. 09-293V, 2015 WL 5634323, at *5 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (citing
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992)). The determination of
reasonable attorneys’ fees and costs is within the special master's discretion. Saxton, 3 F.3d at
1520 (Fed. Cir. 1993). Special masters may rely on their prior experience in reviewing fee
applications. See id., 3 F.3d at 1521 (citing Farrar v. Sec’y of Health & Human Servs., No. 90-
1167V, 1992 WL 336502, at *2-3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992)).

          i.   Hourly Rates

       Petitioners request the following rates:

                                 2013         2014      2015         2016         2017
        Attorneys
        Mark Sadaka             $337.05      $350.00   $350.00     $362.95       $376.83
        Anna Sweeney               -         $200.00   $207.40     $215.07       $223.03
        Andrew Pinon               -         $200.00   $207.40     $215.07       $223.03
        Paralegals
        Ailona Parker           $130.01      $135.00   $135.00     $140.00       $145.17
        Bria Wilson             $130.01      $135.00   $135.00     $140.00       $145.17
        Keri Congiusti          $130.01      $135.00   $135.00     $140.00       $145.17
        Latashia Vauss          $130.01      $135.00   $135.00     $140.00       $145.17
        Melina Fotiu            $130.01      $135.00   $135.00     $140.00       $145.17
        Nashwa Shalaby          $130.01      $135.00   $135.00     $140.00       $145.17
        Nicole Clauberg         $130.01      $135.00   $135.00     $140.00       $145.17
        Stephanie Keller        $130.01      $135.00   $135.00     $140.00       $145.17

Pet’rs’ Mot. at 2; Pet’rs’ Mot., Ex. A at 1-14.

        The requested rates for Mr. Sadaka, Ms. Sweeney, and Mr. Pinon for work performed
from 2013 to 2016 are consistent with McCulloch and with past fee awards to these attorneys.
See, e.g., Schmidt v. Sec’y of Health & Human Servs., 11-620V, No. 2017 WL 393332 (Fed. Cl.
Spec. Mstr. Jan. 4, 2017); Shell v. Sec’y of Health & Human Servs., 13,692V, 2017 WL
6081829 (Fed. Cl. Spec. Mstr. Sept. 21, 2016). The requested rates for 2017 reflect a 3.7%
increase from the requested rates for 2016, consistent with McCulloch. The undersigned finds
that these rates are reasonable and they need not be adjusted.

        After careful consideration, the undersigned finds that it is appropriate to adjust the
paralegals’ rates. In McCulloch, he found that it was reasonable to award $135.00 per hour for
work performed in 2014 and 2015 by paralegals who were “well-qualified, carefully chosen
college graduates” with “several years at the firm doing exclusively vaccine work.” McCulloch
at *21. The decision did not address paralegal certificates.




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        In this case, petitioners request McCulloch rates for all eight paralegals at Mr. Sadaka’s
law firm. Pet’rs’ Mot. at 2; Pet’rs’ Mot., Ex. A at 1-14. However, it is not appropriate to
uniformly award McCulloch rates, because the paralegals have varying qualifications and
experience. Mr. Sadaka states that seven of the eight paralegals have college degrees. Pet’rs’
Mot. at 5-6.3 Seven of the eight have multiple years of experience working as paralegals and/ or
legal assistants. Id.4 Four of the eight have obtained paralegal certificates. The undersigned
finds that it is appropriate to award the requested McCulloch rate for each paralegal who has a
college degree and several years of experience.

        Slightly lower rates are appropriate for Ms. Clauberg, because there is no indication that
she has a college degree, and for Ms. Parker, because she has just begun working as a paralegal.
Pet’rs’ Mot. at 6. For these paralegals, the undersigned will award $130.00 per hour for their
work in 2014 and 2015. The 3.7% rate of inflation from McCulloch will be applied to the other
years. This results in a deduction of $156.97 from the fee award.5

           ii.   Hours Expended

       Petitioners request compensation for 27.4 hours of work performed by Mr. Sadaka; 12.5
hours by Ms. Sweeney; 2.6 hours by Mr. Pinon; and 54.9 hours by the paralegals. Pet’rs’ Mot.,
Ex. A at 13. On review of petitioner’s billing record, the undersigned finds the number of hours
expended reasonable.




3
    He does not say whether Ms. Nicole Clauberg has a college degree. Pet’rs’ Mot. at 6.
4
  Ms. Ailona Parker graduated from Ramapo College of New Jersey in June 2016. She interned
at a law firm during college. However, based on her date of graduation, it appears that she has
been working as a paralegal for less than one year. Pet’rs’ Mot. at 6.
5

                   2013            2014       2015               2016         Total
                   (Clauberg)      (Clauberg) (Clauberg)         (Parker)
    Requested      $130.01         $135.00    $135.00            $140.00      N/A
    Rate
    Adjusted       $125.36         $130.00       $130.00         $134.81      N/A
    Rate
    Difference     - $4.65         - $5.00       - $5.00         - $5.19      N/A

    Hours          7.9             14.4          8.3             1.3
    Deduction      - $36.72        - $72.00      - $41.50        - $6.75      - $156.97
    from Fee
    Award

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          iii.   Costs

        Petitioners request $5,867.74 in attorneys’ costs. Pet’rs’ Mot. at 1; Pet’rs’ Mot., Ex. 1 at
13-14. The requested costs are for obtaining an expert report; filing the claim; obtaining medical
records; shipping; and photocopies. Id. The undersigned finds that the requested attorneys’
costs are reasonable.

    II.   Conclusion

        Upon review of the documentation submitted in this case, and based on his experience
with the Vaccine Act and its attorneys, the undersigned finds that it is reasonable to award
$20,040.31 in attorneys’ fees and $5,867.74 in attorneys’ costs, for a total award of $25,908.05
in attorneys’ fees and costs.

        Accordingly, the undersigned awards a lump sum in the amount of $25,908.05,
representing reimbursement for attorneys’ fees and costs, in the form of a check payable
jointly to petitioners, Scott Siciliano and Kathleen Siciliano, and their counsel, Mark T.
Sadaka of Mark T. Sadaka LLC.6

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.7

          IT IS SO ORDERED.

                                                             s/Thomas L. Gowen
                                                             Thomas L. Gowen
                                                             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,” and 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
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice not to seek review.
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