     In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                           Filed: September 19, 2017

* * * * * * * * * * * * * * * *
ANGELA VIGLIOTTI,             *                                          UNPUBLISHED
                              *
          Petitioner,         *                                          No. 12-281V
                              *
v.                            *                                          Special Master Gowen
                              *
SECRETARY OF HEALTH           *                                          Interim Attorneys’ Fees and Costs;
AND HUMAN SERVICES,           *                                          Special Master’s Discretion.
                              *
          Respondent.         *
* * * * * * * * * * * * * * * *

Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.
Lynn E. Ricciardella, United States Department of Justice, Washington, DC, for respondent.

                 DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1

        On May 3, 2012, Angela Vigliotti (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleges that she
suffers from multiple sclerosis, which was either caused-in-fact or significantly aggravated by an
influenza (“flu”) vaccine she received on September 8, 2010. An entitlement hearing is currently
scheduled to take place in March 2018.

        On August 2, 2017, petitioner filed a motion for interim attorneys’ fees and costs.
Petitioner’s Motion (ECF No. 109). She requests $72,464.52 in interim attorneys’ fees and
$35,480.45 in interim attorneys’ costs, for a total interim award of $107,944.96. Petitioner’s
Motion - Tab 1 at 40.
1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend 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. 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 decision.” Id. If neither party files a motion for redaction within 14 days, the decision
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-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.
        On August 16, 2017, respondent filed a response to petitioner’s motion. (ECF No. 110).
Respondent “defers to the Special Master to determine whether or not petitioner has met the
legal standard for an interim fees and costs award, as set forth in Avera v. Secretary of Health
and Human Services, 515 F.3d 1345 (Fed. Cir. 2008).” Respondent’s Response at 2. “With that
exception, respondent is satisfied that the statutory requirements for an award of attorneys’ fees
and costs are met in this case.” Id. (internal citations omitted). Respondent “respectfully
recommends that the special master exercise his discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3. On August 18, 2017, petitioner filed a reply in support of her
motion for interim attorneys’ fees and costs. (ECF No. 114).3 This matter is now ripe for
review.

       I.    Interim Attorneys’ Fees and Costs

        Section 300aa-15(e) of the Vaccine Act permits an award of reasonable attorneys’ fees
and costs. In addition, the Vaccine Act permits interim attorneys’ fees and costs. Avera, 515
F.3d at 1352; Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010). When a
petitioner has yet to prove entitlement, a special master “may award an amount of
compensation” for 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 the claim.” § 300aa-
15(e)(1)(B); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). In this case, respondent “defers to
the Special Master to decide whether the statutory requirements for an award of attorneys’ fees
and costs are met,” but does not make any objections. Respondent’s Response at 2. I find that
this claim was brought in good faith and with a reasonable basis.

        In Avera, the Federal Circuit stated that “[i]nterim fees are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352.
In Shaw, the Federal Circuit held that “where the claimant establishes that the cost of litigation
has imposed an undue hardship and there exists a good faith basis for the claim, it is proper for
the special master to award interim attorneys' fees.” 609 F.3d at 1375. I find that these
circumstances are present here. Petitioner filed her claim over five years ago on May 3, 2012.
The original medical records were significant and took some time to obtain. Petitioner obtained
one report from a neurologist who then withdrew from the case for unrelated circumstances.
Petitioner then retained another neurologist with significant experience in the Vaccine Program,
who has prepared two reports and will testify at the entitlement hearing in March 2018.




3
  On September 19, 2017, my law clerk telephoned petitioner’s counsel for clarification on two aspects of the fee
application. First, the billing entries suggest that in February 2016, petitioner sent her “out-of-pocket expenses” to
counsel. Petitioner’s counsel stated that these were costs for medical care to be included in the demand. Petitioner’s
counsel represented that petitioner has not incurred out-of-pocket costs associated with litigating her claim. Second,
the interim fee application requests costs associated with retaining a neuroradiologist who reviewed and discussed
petitioner’s MRI images with counsel, but who has not provided a report to date. Counsel could not confirm
whether the neuroradiologist will remain involved in the case. At my request, counsel filed the neuroradiologist’s
curriculum vitae, which reflects significant qualifications in this specialty. (ECF No. 117).


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        Petitioner has also incurred significant fees and costs while attempting to settle the case.
Based on my preliminary findings, the parties litigated the case while simultaneously exploring
the possibility of settlement. Petitioner retained a life care planner and submitted two demands
to respondent. After reviewing each demand, respondent has elected to proceed with litigation.
The case is further complicated because petitioner’s condition is not stable. Her multiple
sclerosis has continued to progress, justifying petitioner’s ongoing consultation with counsel and
filing of new records.

        As referenced above, due to the current number of claims in the Vaccine Program, the
entitlement hearing in this case likely will not occur before March 2018. There will likely be
several months between the hearing and the issuance of an entitlement decision. If petitioner
establishes entitlement to compensation, the case will need to progress to the damages phase,
which may also take significant time. Because of the protracted nature of the proceedings to
date, the retention of costly experts, and the fact that the case will not be ultimately resolved for a
significant time, I find that it is appropriate to award interim attorneys’ fees and costs at this
juncture.

     II.   Reasonable Attorneys’ Fees and Costs

         As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine what attorneys’ fees
and costs are “reasonable” 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. 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 (Fed. Cl. 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 (Fed. Cir. 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
[her] 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). Just as “[t]rial court
courts routinely use their prior experience to reduce hourly rates and the number of hours
claimed in attorney fee requests . . . [v]accine program special masters are also entitled to use
their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521 (citing Farrar v.
Sec'y of Health & Human Servs., 1992 WL 336502 at *2-3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)).
The requirement that attorneys’ fees be reasonable also applies to costs. Perreira, 27 Fed. Cl. at
34 (“Not only must any request for attorneys’ fees be reasonable, so must any request for
reimbursement of costs”).

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       I have reviewed the motion for interim attorneys’ fees and costs and the supporting
documentation. With regard to the requested attorneys’ fees, the hourly rates are consistent with
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Oct. 18, 2015), the Office of Special Masters’ fee schedules, and other special masters’
decisions regarding the Sadaka firm. I find that they are also reasonable in this case.

        The hours expended also seem reasonable. The billing entries reflect the nature of each
task performed, the amount of time expended, and the person performing the task. They do not
appear to bill for administrative work, paralegal work performed by attorneys, duplicative work,
significant interoffice communication and meetings, or other unreasonable practices. In sum, I
find no cause to adjust the requested attorneys’ fees.

         The requested attorneys’ costs are for obtaining medical records, copying and postage,
filing fee, and payments to three experts. Based on my experience, the requested costs also
appear reasonable and will be awarded in full.

III.     Conclusion

         Accordingly, I award the following:

         1) A lump sum in the amount of $107,944.96, representing reimbursement for
            interim attorneys’ fees and costs, in the form of a check payable jointly to
            petitioner and her counsel, Mark T. Sadaka of Mark T. Sadaka, LLC.

       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 a notice renouncing
their right to seek review.

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