    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 15-947V
                                       Filed: July 12, 2016
                                       Not for Publication


*************************************
SANJUANITA KELLY,                              *
                                               *
         Petitioner,                           *
                                               *           Attorneys’ fees and costs decision;
 v.                                            *           reasonable attorneys’ fees and
                                               *           costs
SECRETARY OF HEALTH                            *
AND HUMAN SERVICES,                            *
                                               *
         Respondent.                           *
                                               *
*************************************
Paul Brazil, Philadelphia, PA, for petitioner.
Adriana Teitel, Washington, DC, for respondent.


MILLMAN, Special Master

                    DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

        On August 31, 2015, petitioner filed a petition for compensation under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012). Petitioner alleged that she
suffered brachial radiculopathy due to her receipt of the influenza (“flu”) vaccine on September
5, 2014. On June 9, 2016, the undersigned issued a decision awarding compensation to
petitioner based on the parties’ stipulation.

        On June 16, 2016, petitioner filed a motion for attorneys’ fees and costs. Petitioner

1
 Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
requested attorneys’ fees in the amount of $14,603.50 and attorneys’ costs in the amount of
$861.62, for a total request of $15,465.12. In compliance with General Order #9, petitioner’s
counsel stated that petitioner did not incur any expenses in pursuit of her claim. Fee App. ¶ 4.

        On July 5, 2016, respondent filed a response to petitioner’s motion explaining that she is
satisfied that this case meets the statutory requirements for an award of attorneys’ fees and costs
under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. However, respondent states that her
“estimation of reasonable attorneys’ fees and costs for the present case roughly falls between
$12,000.00 and $14,500.00.” Id. at 3. Respondent bases this estimate on a “survey of fee
awards in similar cases and her experience litigating Vaccine Act claims.” Id. She also cites
three cases in which petitioners were awarded between $12,258.22 and $14,390.49 in attorneys’
fees and costs for cases that settled. Respondent fails to explain how these cases are related to
the instant case.

        On July 7, 2016, petitioner filed a four-page reply to respondent’s response to her
application for attorneys’ fees and costs. In her reply, petitioner cites 15 SIRVA cases that
were settled by her attorney’s law firm in which petitioners were awarded an average of
$14,999.084 for attorneys’ fees and costs. Reply at 2. Petitioner points out that in nine of the
cases petitioner was awarded more than the ceiling of respondent’s proposed range, which means
that “fees within respondent’s proposed range are the exception not the rule.” Id. Petitioner
argues that the amount she requests in her fee application is reasonable and should be awarded in
full. Reply at 4. Petitioner also requests an additional $660.00 for the time her attorney spent
drafting the reply. Id. Therefore, petitioner requests a total of $16,125.12 in attorneys’ fees and
costs.

        Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims
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); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013).
The special master has “wide discretion in determining the reasonableness” of attorneys’ fees
and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir.
1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519 (Fed. Cir. 1993)
(“Vaccine program special masters are also entitled to use their prior experience in reviewing fee
applications.”).
        Respondent’s counsel attempts to justify her suggested range of attorneys’ fees by citing
three cases in which a lower amount of attorneys’ fees and costs were awarded than the amount
petitioner requests. Pryde v. Sec’y of HHS, No. 14-298V, 2014 WL 6464641 (Fed. Cl. Spec.
Mstr. Oct. 24, 2014); Erickson v. Sec’y of HHS, No. 14-351V, 2014 WL 6755956 (Fed. Cl.
Spec. Mstr. Nov. 5, 2014); Russo v. Sec’y of HHS, No. 14-480V, 2014 WL 4628909 (Fed. Cl.
Spec. Mstr. Aug. 27, 2014). In Erickson, the undersigned awarded petitioner $12,258.22 in
attorneys’ fees and costs for injuries including a rotator cuff tear, tendinitis, impingement
syndrome, and/or bursitis that petitioner alleged were caused by the tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccine. 2014 WL 6755956, at *1. Pryde involved a SIRVA injury caused
by petitioner’s receipt of the flu vaccine, for which petitioner received $14,390.49 in attorneys’
fees and costs. 2014 WL 6464641, at *1. Russo also involved a SIRVA injury caused by the flu
vaccine. 2014 WL 4628909, at *1. Petitioner was awarded $13,310.95 in attorneys’ fees and
costs in that case. Petitioner’s attorney in the instant case was the attorney of record in all of the

                                                  2
cases cited by respondent. The issue of attorneys’ fees and costs was settled in the cases cited by
respondent.

        Despite the similarities between the cases cited by respondent and the instant case, the
undersigned does not find respondent’s argument persuasive. It is not necessarily instructive to
compare cases involving similar vaccine injuries in order to determine the appropriate amount of
attorneys’ fees and costs. Each case in the Vaccine Program is different. Petitioners alleging the
same vaccine injury may have vastly dissimilar medical histories, and, consequently, different
numbers of medical records petitioners’ attorneys need to locate, file, and review. Moreover, the
variance in the range proposed by respondent and the attorneys’ fees and costs awarded in the
cases cited by petitioner demonstrate how easy it is for each party to “cherry pick” the cases that
support their proposed attorneys’ fees and costs award.

        Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds the amount requested by petitioner to be reasonable. The undersigned also
finds that the supplemental fees petitioner requests for the 2.4 hours her attorney spent preparing
a reply are reasonable, as drafting petitioner’s reply necessitated researching and compiling past
SIRVA cases.

        Therefore, the undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs.
Accordingly, the court awards $16,125.12, representing attorneys’ fees and costs. The award shall
be in the form of a check made payable jointly to petitioner and Muller Brazil, LLP in the amount
of $16,125.12.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2


IT IS SO ORDERED.


Dated: July 12, 2016                                                       s/ Laura D. Millman
                                                                             Laura D. Millman
                                                                               Special Master




2
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                    3
